Badrujamaludin v Minister for Immigration & Anor
[2014] FCCA 1004
•27 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADRUJAMALUDIN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1004 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – Refusal of grant of Skilled (Provisional) (Class VC) visa – English language test – Competency requirements – time frame within which to produce English language test results. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), reg.1.15C |
| Berenguel v Minister for Immigration & Citizenship(2010) 264 ALR 417 Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 |
| Applicant: | ASEP BADRUJAMALUDIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1260 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 18 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person. |
| Solicitor for the First Respondent: | Ms A. Carr of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 6 June 2013 is dismissed.
The Applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application, fixed in the sum of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1260 of 2013
| ASEP BADRUJAMALUDIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 6 June 2013 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in the form of constitutional writs against the decision of the Migration Review Tribunal (the “Tribunal”) which affirmed the decision of the delegate of the Minister for Immigration and Border Protection (at the time of the decision that is subject of review in this Court the Minister for Immigration and Citizenship) (the “Minister”) refusing to grant a General Skilled visa to the applicant, Asep Badrujamaludin.
The solicitors for the first respondent, the Minister, filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
By orders made by the Court on 2 July 2013, the applicant was granted leave to file and serve an amended application or any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen days before the hearing. The applicant elected not to file an amended application, any affidavit evidence or written submissions.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Indonesia born on 15 August 1982 (CB 1-2). The applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 visa on 16 February 2012 (CB 1-13). The applicant nominated the occupation of Registered Nurse (CB 11). On the application form, the applicant indicated that he had undertaken an International English Language Testing System (“IELTS”) test on 17 June 2010. No supporting documentation was provided with the application, however the applicant indicated that his language ability was “competent” (CB 12).
On 31 August 2012, the delegate wrote to the applicant requesting, inter alia, that the applicant provide the test results for the IETLS test undertaken on 17 June 2010 (CB 14-19). On 10 September 2012, the applicant provided the requested test results. (CB 20; 25) The test results indicated that the applicant achieved a score of 5.5 for listening, 6.0 for reading, 5.0 for writing and 5.5 for speaking. There was no other evidence to indicate that another IELTS test had been undertaken.
The application before the delegate was refused on 26 September 2012 (CB 31-38).
The applicant applied to the Tribunal for review of the original decision on 5 October 2012 (CB 40-50). The applicant was assisted in making that application to the Tribunal by his registered migration agent (CB 52).
On 21 March 2013, the Tribunal invited the applicant to attend a hearing before it scheduled for 15 April 2013 (CB 63-64). The hearing invitation noted that the applicant was required to provide evidence of competent English and invited the applicant to provide this evidence before the scheduled hearing.
On 3 April 2013, the Tribunal received a written submission from the applicant's registered migration agent acknowledging that the Tribunal may have no choice but to affirm the delegate's decision. However, for reason that Australia had been experiencing a shortage of qualified nurses the applicant's registered migration agent requested that the Tribunal assist in requesting Ministerial Intervention (CB 67-68). The applicant's registered migration agent acknowledged that the applicant's work and study experience could not be used to demonstrate that the applicant had competent English.
The applicant gave oral evidence before the Tribunal on 15 April 2013 (CB 81-83). At the hearing the applicant provided supporting documentation relating to his employment status and his IELTS test results which were achieved on 31 March 2007, 24 November 2007, 13 March 2008, 5 July 2008, 22 August 2009, 17 June 2010 and 17 November 2012 (CB 98-104). The applicant did not achieve the required score in any of these tests.
The Tribunal’s Decision
The Tribunal handed down its decision in respect of the applicant’s visa application on 24 May 2013 (CB 109-113).
The issue before the Tribunal was whether the applicant satisfied the criteria for the grant of a Subclass 485 visa, namely whether the applicant had competent English pursuant to clause 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) (see CB 110 at [6]-[10]). The Tribunal noted that, pursuant to regulation 1.15C(b) of the Regulations, the applicant did not hold a passport of the type specified by the Minister in Legislative Instrument IMMI 12/018.
The Tribunal noted that the applicant had provided evidence of a result from an IELTS test which had been sat within two years of him making his visa application. However, as the applicant had not achieved the required score in that test, the Tribunal was ultimately not satisfied that the applicant had competent English (CB 112 at [20]). The Tribunal noted the applicant's study which had been conducted in Australia and the qualifications the applicant had consequently achieved. The Tribunal also accepted that the applicant had been working in Australia as a registered nurse. However, it ultimately reached the conclusion that it did not have discretion to find that the applicant met the definition of competent English by way of his qualifications or his work as a registered nurse (CB 112 at [22]).
Consequently, the Tribunal was not satisfied on the material before it that the applicant had component English pursuant to clause 485.215 of Schedule 2 to the Regulations (CB 112 at [23]) and affirmed the decision of the Minister’s delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Legislative Framework
“Competent English” as found in clause 485.215 is defined by reg.1.15C of the Regulations. At the time of the visa application, “Competent English” was defined as follows:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument; or
(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 validly operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Current Proceedings
The orders sought in the application filed 6 June 2014 are as follows:
An order that the decision of the tribunal or Minister be quashed.
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
An order that the Minister pay the Applicant’s costs.
The application to the Court pleads one ground with particulars as follows:
1. The Tribunal has made a jurisdictional error in determining whether the applicant has met the required of clause 485.214 of Schedule 2 the Regulation by failure to follow section 55 in Migration Act 1958.
Particular:
1) Section 55 provides that “until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the minister any additional information and the Minister must have regard to that information in making the decision.”
2) The application did IELTS test after applying MRT.
3) The applicant did IELTS test few times before applying skilled graduated visa with various results.
4) The applicant is a Registered Nurse (RN).
5) The applicant is working at public hospital at Liverpool Hospital as RN for 1 year.
6) The applicant has been studying full time in Australia for 5 years.
7) The applicant holds Bachelor of Nursing (BN) from University of Technology, Sydney and Master of Nursing (MN) from University of Western Sydney.
Applicant’s Submissions
The applicant elected not to file an amended application, any affidavit evidence or submissions despite being granted leave to do so. When asked at the final hearing if he had any oral submissions to make, the applicant stated that he did. The applicant stated that he did not know about the Australian legal system and was not aware of the procedures in place. He claimed that in the time between the first court date directions hearing held on 2 July 2013 and the hearing held on 18 March 2014 he was unsure of who he should contact, so he applied to a nursing authority to assess his skills for immigration purposes. It was established that the applicant was referring to the documents that he had sent to the Registry via express post.
The first document posted to the Court’s Registry by the applicant is from the Australian Nursing & Midwifery Accreditation Council and has been marked as received on 18 November 2013. The title of the document is “Determination for Migration Purposes Regarding the Assessment of Nurses /Midwives that hold Australian or New Zealand Registration”. The applicant clarified that this document was undated and claimed that he has current version of the document, dated 23 October 2013. The second document is from the South Western Sydney Local Health District, dated 3 October 2013 from Gina Djordevic, Clinical Nurse Educator. This letter identifies that the applicant is currently employed as a Registered Nurse at Liverpool Hospital.
It was explained to the applicant that it was not the Court’s role to consider new documentation that was not before the Tribunal. Noting that the Tribunal’s decision was made on 24 May 2013, the Court is unable to consider the documents submitted by the applicant. It was explained to the applicant that the visa he was seeking was based on an IELTS test and that the results he had given to the Tribunal at the time of the decision did not meet the threshold. It was suggested to the applicant that there may be other avenues open to him, but that it was not for the Court to advise him or assist him with any such pursuit.
Minister’s Submissions
Ms Carr, appearing for the Minister, argues that the application appears to raise two separate matters:
a)First, that the Tribunal should have allowed the applicant to satisfy the criteria that he had competent English up until the time of decision; and
b)Secondly, that the Tribunal should have taken into consideration the fact that the applicant had studied in Australia for five years, was qualified as a registered nurse and had worked at Liverpool hospital for a year.
In respect of the first matter raised, Ms Carr submits that it was not open to the Tribunal to allow the applicant to satisfy clause 485.215 at the time of its decision. Pursuant to the passing into law of the Migration Amendment Regulations 2011 (No.3) (Cth) (the “Amending Regulations”) reg.1.15C was amended on 1 July 2011 (the Amending Regulations applied to all visa applications lodged on or after 1 July 2011 and before 1 July 2012). The Explanatory Statement specifically stated:
… In particular, the Regulations amend the Principal Regulations to:
Amend several definitions relating to English language qualifications to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application.
…
New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM [General Skilled Migration] visa was made.
These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicant who are assessed as having the specified English language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.
Consequently, the Minister submits that it was Parliament's intention that only an IELTS test undertaken in the two years immediately prior to the date of the visa application, namely 16 February 2012, could have been relied upon to establish that the applicant had “competent English”. His Honour Judge Lucev in Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 stated at [12]:
The purpose of the amendment was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application, and followed judgments in which it was held that the previous version of reg.1.15C of the Migration Regulations allowed for a test to be taken after a visa application had been lodged.
(footnote omitted)
(Emphasis added)
See also Endi v Minister for Immigration & Anor [2013] FCCA 1700; Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 at [20].
The decisions referred to by Judge Lucev for which these amendments were enacted to specifically overcome were Berenguel v Minister for Immigration & Citizenship(2010) 264 ALR 417 and Minister for Immigration & Citizenship v Kamal & Anor(2009) 178 FCR 379.
In respect of the second matter raised by the applicant, the Tribunal was correct to find at [22] of the Decision Record that it did not have discretion to find that the applicant met the definition of having Competent English through other means other than achieving the specified score in either an IELTS test or an Occupational English Test (“OET test”). Regulation 1.15C states the methods by which an applicant can demonstrate that they have competent English; by either sitting a language test (reg.1.15C(a) of the Regulations and Legislative Instrument IMMI 12/018. IMMI 12/018 specifies a score in an IELTS test of at least 6 for each of the four components of speaking, reading, writing and listening, or a score of at least 'B' in each of the 4 components of an OET test) or by holding a passport specified by the Minister; see reg.1.15C(b) of the Regulations and IMMI 12/018. Therefore, the MRT was correct to disregard the information before it regarding the applicant's English competency in both his study and employment circumstances.
Consequently, the Minister submits that the grounds raised by the applicant cannot be made out and the application should be dismissed with costs.
Consideration
The applicant appeared before me on two occasions, initially at the first court date directions hearing and subsequently at the final hearing. He appeared as a self-represented litigant without the assistance of an interpreter and, despite his acknowledged total lack of understanding of the legal system under which he was attempting to advance his matter, he addressed the Court clearly and competently using English as his second language.
The applicant is an Indonesian citizen, born in 1982 and receiving his primary, secondary and initial tertiary qualifications in Indonesia. He obtained a Bachelor of Nursing Science from the Binawan Institute of Health Science in Jakarta in 2005. He was employed as a Registered Nurse (critical care and emergency) at the RS Mitra International/Mitra Hospital. The applicant is married.
The applicant arrived in Australia in 2007 and has obtained a Bachelor of Nursing from the University of Technology Sydney (UTS) and a Masters of Nursing (Clinical Leadership) from the University Of Western Sydney (UWS). At the time of the hearing, he was working full-time at Liverpool Hospital Sydney and was undertaking the new graduate program which finished in August 2013.
On 16 February 2012, the applicant filed a General Skilled Migration application form, seeking a skilled graduate (Temporary) (Class VC, subclass 485) visa. In that application, the applicant nominated his occupation as Registered Nurse. The visa application was refused on 26 September 2012 on the basis that he did not satisfy clause 485.215 of Schedule 2 to the Regulations and because he did not hold a passport of the type specified in IMMI12/018 pursuant to Regulation 1.15C(b).
Although orders were made at the directions hearing for the applicant to file and serve a written outline of submissions and a list of authorities fourteen days prior to the date of the final hearing, he did not do so. He indicated that due to his lack of knowledge of the legal system and the precise nature of the document that he was requested to prepare he was unable to do so, but when invited, he indicated that he wished to make oral submissions in support of his application. He also said that he had forwarded some documents to the Court by Express Post. He had obtained these documents from the Australian Nursing & Midwifery Accreditation Council, subsequent to the Tribunal’s decision. The applicant sought to place them before the Court in support of his review application. I explained to the applicant that anything that is considered by this Court must have been before the Tribunal, as the hearing in this Court is a review of the Tribunal’s deliberations and the material that was before it. This was understood by the applicant and he proceeded to make oral submissions which are summarised above at [20]-[22].
Importantly, s.65 of the Migration Act requires a decision-maker be satisfied that the criteria for the visa being applied for have been satisfied before granting that visa. If the decision-maker is not so satisfied, then the visa must be refused. Section 65 does not confer any discretion as to the exercise of that power. The applicant’s application for his Skilled (Provisional) (Class VC) visa was filed on 16 February 2012, which brings it within the provisions of the Amending Regulations which inserted reg.1.15C into the Regulations which applied to all visa applications lodged on or after 1 July 2011 and before 1 July 2012. The details of that provision are set out at [16] above. Prior to the introduction of reg.1.15C of the Regulations, it was allowed for an English language test to be taken after a visa application had been lodged: Berenguel v Minister for Immigration and Citizenship (supra); Minister for Immigration and Citizenship v Kamal & Anor (supra).
The purpose of the introduction of reg.1.15C was to clarify the timeframe within which an English language test must have been conducted for the purposes of a visa application, being at a time two years immediately before the day on which the visa application was made. This is set out in the Explanatory Statement to the Amending Regulations. The visa sought is a Class 485 and the relevant criteria of that subclass are set out in the Regulations. At the relevant time, clause 425.215 of Schedule 2 to the Regulations read in conjunction with the relevant legislative instrument IMMI 12/018 provided as a mandatory criterion, to be met at the time of the application for the visa, that the applicant have competent English.
In the relevant parts of the Decision Record under the heading Claims and Evidence the Tribunal stated at [11], [16]-[17]:
11. The Tribunal has before it the department’s file relating to the applicant. On that file is a copy of the applicant’s visa application and various supporting material including the biodata page of his passport of Indonesia. The applicant indicated on the visa application form that he had undertaken an IELTS test on 17 June 2010. He subsequently provided the IELTS Test Report Form which indicated that he achieved less than 6 in each of the components except for the writing component. The delegate refused to grant the applicant the visa as the applicant had not provided evidence that met the requirements of competent English as defined in r.1.15C and he thus did not satisfy cl.485.215.
…
16. The Tribunal explained that the definition of competent English that applied in his case required that the language test had to have been undertaken in the two years before the visa application was made. Alternatively, he could meet the definition if he held a passport from one of the specified countries.
17. The applicant confirmed that he had made his application in February 2012 and stated that he had undertaken an IELTS test in the two years before making the application but that he did not achieve the required score. He confirmed that he had a passport of Indonesia. The Tribunal put to the applicant that he did not appear to meet the ‘competent English’ definition and that it would be affirming the decision.
(CB 111)
The Decision Record under the heading Relevant Law has set out the relevant provisions and IMMI 12/018 for the purposes of reg.1.15C(b). The Minister has specified the valid passports required to satisfy that Regulation had to be issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. As the applicant held an Indonesian passport, he did not qualify under the alternate provision of the Regulations.
In the Decision Record under the heading Findings and Reasons the Tribunal stated the following at [18]-[21]:
18. The issue in the present case is whether the applicant meets cl.485.215 which requires that the applicant has ‘competent English’.
19. The definition of ‘competent English’ which applied to an application made in September 2011 is set out above. The applicant gave evidence that he had undertaken an IELTS test in the two years before the application but that he did not achieve 6 in each of the test components as required to meet r.1.15C(a)(iii).
20. The Tribunal is not satisfied on the material before it that the applicant has undertaken a language test conducted in the 2 years immediately before the day on which the visa application was made and achieved the necessary score. He thus does not meet the requirements of r.1.15C(a).
21. The applicant holds a passport of Indonesia and the Tribunal is not satisfied that he holds a passport specified by the Minister in an instrument in writing for the purposes of r.1.15C(b) and he does not meet the requirements of r.1.15C(b).
(CB 112)
I note the sole ground and particulars pleaded by the applicant at [19] above. However, I find the written submissions prepared by Ms Carr on behalf of the Minister appropriately and accurately address that pleaded ground. Unfortunately for the applicant in these proceedings the decision made by the delegate of the Minister and the Tribunal fall within a strict guideline which has been introduced to clarify the operation of the Regulations concerning this particular class of visa and the regime which was enforced at the time of the filing of the applicant’s visa application. Importantly, s.65 of the Migration Act does not confer any discretion to the decision-maker when exercising that power. Consequently, no jurisdictional error arises.
The application should be dismissed with costs awarded to the Minister.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 27 May 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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