Badhan v Minister for Immigration
[2014] FCCA 2510
•28 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADHAN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2510 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant applicant a Skilled visa – Whether the applicant demonstrated competent English to the Tribunal – Applicant failed to complete requisite test before the day on which the visa application was made – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338(2), 349(2)(a), 357A Migration Regulations 1994 (Cth), reg.1.15C(1), cl.885.213 of Sch.2 |
| Bali v Minister for Immigration and Border Protection [2014] FCA 986 Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 |
| Applicant: | HARMANJIT BADHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1962 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 28 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 October 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person. |
| Solicitor for the First Respondent: | Ms H Musgrove of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be listed for an immediate hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,331.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1962 of 2014
| HARMANJIT BADHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 9 April 2014 by the applicant, Harmanjit Badhan, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member I. Hasan on 4 June 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant Skilled (Residence) (Class VB) visa.
It is convenient to reproduce the reasons of the Tribunal in its Decision Record as background for these proceedings. The Tribunal stated:
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 February 2014 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 28 December 2012. At the time the visa application was lodged, Class VB contained three subclasses, 88 (Skilled – Independent), 886 (Skilled – Sponsored) and 887 (Skilled – Regional). Having regard to the visa application, the relevant subclass in this case is Subclass 885, the criteria for which are set out in Part 885 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3. The delegate refused to grant the visa because the applicant did not have the required English language proficiency.
4. The applicant was represented in relation to the review by her registered migration agent (the representative).
5. On 6 May 2014, the Tribunal wrote to the applicant and invited her, in accordance with s.360, to appear before it at 9.30 am on 3 June 2014 to give evidence and present arguments relating to the issues arising in her case. The hearing notice was sent to the correspondence address that she noted on the review application. The notice stated among other things that she should contact the Tribunal as soon as possible if she is unable to attend the hearing and that if she fails to attend this hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before the Tribunal. On 27 May 2014 a Tribunal officer rang the representative for confirmation of the applicant’s attendance at the hearing and he said that the applicant will attend his office the following day and he will fax the hearing attendance confirmation. On 2 June 2014 the Tribunal received the hearing attendance confirmation. However, the applicant did not attend the hearing on 3 June 2014. In these circumstances, the Tribunal considered it appropriate not to take any further action to allow or enable her to appear before it relying on s.362B and decided the review on the basis of information contained in her Department of Immigration and Tribunal files.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
7. The issue in the present case is whether the applicant has competent English as required by cl.885.213. Competent English is defined in r.1.15C which provides:
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for the subregulation.
8. For r.1.15C(1)(a) and (c), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components: Legislative Instrument IMMI 12/018.
9. For r.1.15C(2), the Minister has specified passports from UK, USA, Canada, New Zealand or Republic of Ireland: Legislative Instrument 12/018.
10. On the hearing invitation letter dated 6 May 2013, it was relevantly noted that to date the applicant has not presented evidence that she meets the English language proficiency or ‘competent English’ requirement for the visa and the definition of ‘competent English’ applicable to visa applications made on or after 1 July 2012 (being the above mentioned definition) was also noted.
11. The applicant has not provided evidence to the Tribunal showing that she has ‘competent English’.
12. There is information before the Tribunal that [the] applicant has achieved at least 6 for each of the 4 test components in an IELTS test that was conducted on 21 November 2013. She achieved 6.0 for Listening, 6.0 for Reading, 6.5 for Writing and 6.5 for Speaking. However, as this test was conducted outside the applicable 3 year period, being, December 2009 to December 2012, she does not meet the ‘competent English’ requirements on the basis of this evidence.
13. There is no information before the Tribunal that the applicant has competent English by way of satisfactory IELTS or OET result. According to information contained in the visa application form the applicant has a passport from India and she a passport from no other country. For these reasons, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C.
14. Therefore, the requirements of cl.885.213 are not met. As this is the only relevant subclass in this case, the decision under review will be affirmed.
15. As the applicant fails to satisfy one of the primary criteria for the visa, being cl.885.213, the Tribunal is not satisfied that the other visa applicants satisfy the secondary criterion, being cl.885.311 which requires that they are members of the family unit of the applicant who has satisfied the primary criteria. Nor is the Tribunal satisfied on the information before it that the other visa applicants meet the primary criteria for the grant of the visa.
DECISION
16. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Current Proceedings
The application before this Court was filed on 14 July 2014 which, by operation of s.477(1) of the Migration Act, is five days out of time. For the reasons that follow it is not necessary to consider whether an extension of time under s.477(2) should be granted to the applicant.
The application pleads the following three grounds of review:
1. Jurisdictional error and lacked jurisdiction.
2. Error in interpretation of legislation.
3. Natural justice.
The matter was listed for a first court date directions hearing on 28 October 2014. At that directions hearing, I indicated to the parties I would set the matter down for an immediate show cause hearing pursuant to r.44.11(a) of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”).
It was explained to the applicant that the issue before the Court was that, having regard to the Tribunal’s decision, she did not satisfy one of the primary criteria for the grant of the visa and, on that basis, it would be extremely difficult for the Court to accept she had an arguable case for the relief claimed.
Notwithstanding, the applicant was offered the opportunity to make oral submissions in support of her application. The applicant indicated she did not wish to make any submissions in support of her application.
Consideration
Competent English
Her Honour Collier J in Bali v Minister for Immigration and Border Protection [2014] FCA 986 addressed an appeal from Judge Jones of this Court where the Tribunal found in respect of the visa applicant that he had not provided evidence of “competent English” to the Tribunal. Her Honour stated in respect of Judge Jones’ decision, which was the decision under appeal, at [17]-[20]:
17. It is difficult to discern from the statement the appellant provided with his application to the Federal Circuit Court what, if any, grounds of review he sought to invoke. The judge below appears to have treated the first part of the appellant’s case, based partly on that statement and partly on oral submissions made by the appellant at the hearing, as being in the nature of a general challenge to the findings of the Tribunal. The primary judge concluded that the Tribunal correctly found that there was no evidence to find that the appellant satisfied reg 1.15C.
18. The second issue which the primary judge addressed was what appeared to be a challenge to the Tribunal’s decision based on the High Court authority of Berenguel v Minister for Immigration and Ethnic Affairs (2010) 264 ALR 417 . This case is authority for the principle that, as the Regulations at that time provided, English language requirements only mandated the provision of evidence of a valid test having been conducted no earlier than two years before the day on which the application was lodged. That is, the test could be taken after the lodgement of an application.
19. The primary judge observed that Berenguel pre-dated amendments to the Regulations which now require satisfaction of a test conducted “in the two years immediately before the day on which the application was made.“ Her Honour referred to the decision of Riley J in Palanisamy v Minister for Immigration [2013] FCCA 1779 in support of the conclusion that those amendments made it a requirement for the test to be taken prior to lodgement of a visa application.
20. Accordingly, her Honour below dismissed the application on 21 February 2014.
Justice Collier then stated in respect of the appeal before her in Bali (supra) at [22]-[24]:
22. At the hearing I explained in general terms to the appellant the jurisdiction of this Court to review decisions of this kind. I noted the tenor of the decision below, and further explained to the appellant that he needed to identify errors in the primary decision to found proper grounds of appeal. I invited the appellant to make oral submissions.
23. The appellant was unable to further particularise his grounds of appeal, other than dissatisfaction with the decision below. Indeed, during the course of oral submissions the appellant conceded that he had not successfully completed an English language test at all. While my own brief observations of the appellant during the hearing suggested to me that the appellant is conversant in English, nonetheless it is clear that reg 1.15C is mandatory in its terms. There is no evidence that, at the time of applying for the visa (or at any time since for that matter), the appellant has completed a specified English language test as required by reg 1.15C.
24. It follows that the decision of the Federal Circuit Court was undoubtedly correct and the appeal should be dismissed.
I note that in the application before this Court, the terms of the reg.1.15C of the Migration Regulations had been amended in subregulation (b) to state:
(b) the test was conducted in the 3 years immediately before the day on which the application was made …
(Emphasis added)
However, the only difference is the length of time during which satisfaction of the requisite test can be demonstrated before the visa application is made, being 3 years when previously 2.
In Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 Judge Riley stated at [20]:
20 The Tribunal was correct, based on the material before it, to conclude that the applicant had not undertaken one of the specified language tests in the two years immediately before the day on which his visa application was made. He therefore did not meet the competent English requirements as required under reg 1.15C of the Migration Regulations 1994 (“the Regulations”). As a consequence, he did not satisfy the requirements of subclass 485.215 of Sch 2 of the Regulations and could not be granted a visa. The applicant’s contentions fail to appreciate that regulation 1.15C has been amended since Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 ; (2010) 264 ALR 417 ; (2010) 84 ALJR 251 ; [2010] HCA 8 was decided by the High Court. The consequence is that an IELTS test undertaken after the lodgement of the application cannot be relied upon for the purposes of obtaining the relevant visa. The Tribunal made no error in this regard.
Accordingly, though the applicant completed an IELTS test that achieved the specified score required to demonstrate “competent English”, this test result could not be relied for the purposes of obtaining the visa sought, as it was obtained in November 2013 and the visa application itself was made in December 2012 (see Palanisamy (supra) at [20]) and Bali (supra) at [23]). The Tribunal made no error in respect of its finding that the applicant had demonstrated “competent English” to the Tribunal or that she held a passport of the type specified in subregulation 1.15C(2). The applicant, therefore, did not meet the requirements of cl.885.213 and the Tribunal was bound to affirm the decision on review.
Substantive Grounds
I now turn to the grounds of the substantive application before the Court.
Ground 1 of the application pleads that the Tribunal made “jurisdictional error” and/or “lacked jurisdiction”, however, this ground has not been particularised or addressed in oral submission.
The first aspect of this ground, in my view, can only relate to the Tribunal’s findings relating to “competent English”. This has been addressed above at [8]-[12] and needs no further consideration. On a fair reading of the Decision Record (see [2] above) there is no apparent jurisdictional error on the part of the Tribunal. Accordingly, this aspect of Ground 1 raises no arguable case for the relief claimed.
The second aspect of the decision appears to contend the Tribunal lacked jurisdiction, though has not been addressed in any fashion. Having regard to s.338(2) of the Migration Act, the delegate’s decision was an MRT-reviewable decision. Further, the Tribunal’s decision to affirm the decision under review was made pursuant to s.349(2)(a) of the Migration Act. This aspect of the ground raises no arguable case for the relief claimed.
Ground 2 of the application claims there has been an error in the interpretation of legislation, however, does not indicate what legislation was misinterpreted and when this occurred. I note that the applicant failed to appear at the scheduled hearing before the Tribunal (see Decision Record at [5]). Accordingly, there would have been no opportunity for any misinterpretation at the Tribunal hearing as the applicant was not present. This ground does not raise an arguable case for the relief claimed.
Ground 3 of the application simply states “natural justice”, but is not particularised in any more detail. The applicant was not able to make any further submissions in support of this ground.
I have had regard to the Tribunal’s Decision Record, which is the only evidence before the Court, and to s.357A and, more generally, Div.5 of Part 5 of the Migration Act. Having regard to the Decision Record, there has been apparent denial of “natural justice” or procedural fairness to the applicant on the part of the Tribunal. Accordingly, this ground does not raise an arguable case for the relief claimed.
Conclusion
On a fair reading of the Tribunal’s Decision Record and the application before this Court, no arguable case for the relief claimed has been raised by the applicant. Accordingly, the application should be dismissed pursuant to r.44.12(1)(a) of the FCC Rules with costs awarded to the Minister.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 28 October 2014
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