Baig & Ors v MIBP
[2018] FCCA 2986
•17 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAIG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2986 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Skilled visas –application for judicial review of decision of Administrative Appeals Tribunal which affirmed the Decision of a Delegate of the Minister for Immigration not to grant Skilled visas to the applicants – Administrative Appeals Tribunal did not have discretion to consider exceptional reasons – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 Kaur & Minister for Immigration and Border Protection (2015) 233 FCR 507 Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508 |
| First Applicant: | FASAHAT ADEEL BAIG |
| Second Applicant: | HUMESA ADEEL |
| Third Applicant: | ASHER BAIG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 199 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 17 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2018 |
REPRESENTATION
| The Applicant appeared in person on behalf of himself and the Second and Third Applicants. |
| Counsel for the First Respondent: | Ms A. Zinn |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 20 January 2017 is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs of the proceeding in the amount of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 199 of 2017
| FASAHAT ADEEL BAIG |
First Applicant
| HUMERA ADEEL |
First Applicant
| ASHER BAIG |
First Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
By Application filed on 20 January 2017, the Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 23 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 August 2016 refusing to grant to them Skilled (Provisional) (Class VC) (Subclass 485) visas (Skilled visa(s)).
Background
The First Applicant is a male citizen of Pakistan aged 39 years, having been born on 6 October 1979. The Second Applicant is his wife and is aged 34 years, having been born on 13 July 1984, and the Third Applicant is their son aged 9 years, having been born on 30 August 2009. The Applicants lodged their application for the Skilled visas on 19 July 2016.
The Second and Third Applicants applied for the Skilled visa on the basis of being the members of a family unit of a person, namely the First Applicant, who held a Skilled visa, he having to satisfy the primary criteria for the Skilled visa and they only having to satisfy the secondary criteria.
Statutory Provisions Relevant for the Grant of a Skilled Visa
In these circumstances, the First Applicant had to satisfy cl.485.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly provided as follows:
485.212
The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
(emphasis added)
For the purposes of cl.485.212, the Minister has specified IMMI 15/062 commencing on 18 April 2015. For the purposes of cl.485.212(a), the instrument specified:
(i) the Pearson Test of English Academic (PTE Academic) as a language test;
(ii) that the language test must be completed in a single sitting;
(iii) the applicant had to achieve a minimum overall score of 50 and minimum scores of 36 for each of the four English test components for the PTE Academic Test; and
(iv) the language test must have been undertaken within three years before the skilled visa application was made.
(emphasis supplied)
For the purposes of cl.485.212(b), the instrument specified the passports of the following countries, namely:
The United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.
It has never been in contention that the First Applicant held passports from any of those countries. In answer to questions in the Skilled visa application as to whether the First Applicant held a current passport from any of those countries, the First Applicant answered “No” on two occasions, and in answer to the question “Have you undertaken an English test within the last 36 months”, the First Applicant, on two occasions in the Skilled visa application form, answered “No”.
Decision of Delegate
The Delegate, in her Decision Record of 1 August 2016, recited the relevant statutory provisions and criteria and found that the First Applicant did not meet the requirements of cl.485.212.
In particular, the Delegate noted that, in his Skilled visa application form, the First Applicant had declared that he had not undertaken an English language test of any type in the last 36 months and that he was not “the holder of a passport from the countries nominated above”.
Accordingly, that meant that the First Applicant satisfied neither cl.485.212(a)(i) nor cl.485.212(b) in holding a passport from one of the said nominated countries, and she refused to grant a Skilled visa to him and that necessarily meant that the Second and Third Applicants, as dependant family members, also could not be granted a Skilled visa.
Decision of Tribunal
The Applicants applied for merits review of the Delegate’s decision on 15 August 2016 and gave a copy of the Decision Record of the Delegate to the Tribunal. The Applicants appeared before the Tribunal on 8 December 2016 to give evidence and present arguments together with their registered migration agent.
In the result, the Tribunal affirmed the decision of the Delegate not to grant a Skilled visa to the Applicants. In its Decision Record the Tribunal identified that it was required to consider whether the First Applicant met cl.485.212 by reference to IMMI 15/062 and found that the First Applicant had a Pakistani passport, and therefore did not have a passport of a specified kind for the purposes of cl.485.212(b) and therefore was required to demonstrate that he had completed a prescribed language test in accordance with the requirements of IMMI 15/062.
The Tribunal recorded at [12] of its Decision Record that the First Applicant had stated in his Skilled visa application form that he had not undertaken an English language test in the previous 36 months. At [14] of its Decision Record, the Tribunal recorded that it had asked the First Applicant at the hearing before the Tribunal to confirm that he held a passport from Pakistan and to confirm that he had not taken an English language test within the last 36 months, as stated in his Skilled visa application form, and he confirmed that his responses in the above two respects was correct. The Tribunal then noted that it informed the First Applicant that this was a mandatory criterion for the grant of a Skilled visa and that the Tribunal had no discretion in this regard.
At [15] of its Decision Record the Tribunal noted that the First Applicant’s migration agent had stated that previous PTE academic tests which First Applicant had since undertaken had only been failed by one or two points and pointed to sympathetic circumstances and compelling and compassionate circumstances concerning the First Applicant’s mother’s recent death. The Tribunal responded that the terms of cl.485.212 did not provide for the sort of exercise of discretion in this regard as asked for by the migration agent. It further recorded that it had told the First Applicant and the migration agent that any additional test would not assist the First Applicant because the legislation and the associated IMMI instrument were clear that the English language test had to be undertaken in the three years before the date of the Skilled visa application.
However, in the last sentence of [15], the Tribunal recorded that it gave the migration agent until 16 December 2016 to provide further submissions in this regard, which I interpret as foreseeing a submission concerning whether or not the English language test had to be undertaken in the three years before the date of the Skilled visa application, or whether it could be taken subsequently. Then at [16] the of its Decision Record, the Tribunal recorded that on 14 December 2016 the migration agent had reiterated to the Tribunal in writing his oral submission as to the “testing circumstances” that the First Applicant was in and asking for more time to allow him to submit English language test results.
The Tribunal recorded at [16], however, that the migration agent did not articulate the basis on which he contended that the Tribunal had any discretion to consider or apply compassionate or compelling circumstances in relation to the First Applicant, and further noted that the Tribunal had later received an untranslated copy of a document purporting to be the death certificate of the First Applicant’s mother, and further results of a PTE academic test undertaken by the First Applicant on 13 December 2016 which did indicate that the First Applicant had achieved the required score, but that this score was achieved and the test taken after the day on which the Skilled visa application had been lodged, namely 19 July 2016.
Grounds of Application in this Court
The Applicants relied on the following Grounds:
1. The Second Respondent (the Tribunal) committed Jurisdictional error as
(i) It failed to consider that exceptional reasons exists and it was beyond the control of the applicant for granting visa class 485 and applied the wrong interpretation of the regulation 485.212(a) and 485.212(b).
2. The Second Respondent failed to ask itself the right question
The Tribunal asked,
(i) Whether the result of the PTE score achieved on 13 December 2016 make him eligible to apply for the visa.
(ii) Whether the Tribunal may consider the matter to be referred to the Minister as the Tribunal has acknowledged that exceptional circumstances does exist in the applicant’s case.
3. Tribunal also took irrelevant consideration into account, ignoring the material provided by the applicant about death certificate and evidence of the accident and injury caused ad failed to consider relevant material provided to show that the applicant has meed the criteria for English requirement for 485 before the decision. Tribunal also fail to consider the series of circumstances surrounding applicant’s personal life and whether those circumstances were unusual and beyond applicant’s control.
4. Tribunal also identified wrong issues about the applicant’s history about the Applicant’s Visa refusal and failed to consider as to whether the application should be return to the case officer with the correct PTE score for reconsideration of the eligibility to meet the conditions of 485 visa.
Consideration
Ground 1
In my view, there is no scope for consideration by the Tribunal of exceptional reasons. It is clear that the Tribunal did, in fact, consider the “exceptional reasons” submitted to it by the First Applicant and his migration agent. Unfortunately for the First Applicant, exceptional reasons or sympathetic circumstances did not form any part of the criteria governing the issue of the Skilled visa. As Mortimer J in Kaur & Minister for Immigration and Border Protection (2015) 233 FCR 507 said at 515 [41]:
[41] I accept the Minister’s submissions that the text of reg 1.15C leaves no room for the approach adopted by the High Court in Berenguel. The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.
I note that in Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508 Katzmann J reviewed the relevant principles and authorities in this area. It is the case that her Honour was there considering the meaning and effect of reg.1.15C of the Regulations, which relevantly provided that the language “test was conducted in the 3 years immediately before the day on which the application was made”. However, in my view there is no material difference between the language of reg.1.15C and the language of IMMI 15/062 for which see [5(iv)] above in this regard and there is no scope in this proceeding for the applicability of the reasoning and approach of the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417.
In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
Ground 2 asserts that the Tribunal “failed to ask itself the right question”. In my view, the Tribunal did ask itself the right question and did properly construe and have regard to and apply the relevant criteria. The evidence of the First Applicant ultimately indicated that he had successfully completed an English language test, but on 13 December 2016, and the Tribunal therefore found correctly that the test was not undertaken within the prescribed period of three years before the Skilled visa application was lodged on 19 July 2016.
Accordingly, Ground 2 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 3
Ground 3 asserts that the Tribunal took into account “irrelevant considerations” and ignored evidence relating to his mother’s death and other circumstances beyond the First Applicant’s control. The simple fact of the matter is that the Tribunal considered the submissions and evidence put before it by the First Applicant, but found that it did not overcome the problems that he faced in terms of satisfying the criteria about the English language test.
Ground 3 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 4
Ground 4 asserts that the Tribunal identified a wrong issue about the First Applicant’s history and failed to consider whether the application should be returned to the Department for reconsideration. If this is a reference to the Tribunal making any sort of recommendation to the Minister or remitting the matter to the Minister, this is an argument that cannot succeed because the Tribunal, whilst it may refer a matter or remit a matter to the Minister or make a recommendation to the Minister, is not statutorily obliged to do so. Further, there is no evidence that, in fact, the Tribunal was ever asked to remit the matter to the Minister, the Delegate of the Minster or a case officer of the Minister. Nothing in this Ground establishes jurisdictional error.
Conclusion
In other words, none of the pleaded Grounds establish that the decision of the Tribunal is affected by jurisdictional error.
A Further Matter
I should further note that at the beginning of the hearing today the First Applicant asked me to receive a two-page document in writing headed “Reply”. I allowed him to hand that document up without objection from Ms Zinn, who appeared for the Minister. On the second page, there appears a “Ground No. 1” in the following terms:
1. This is totally liability of the registered Migration agent which in my case was ill-informed and misguided me to the wrong track.
2. When Tribunal gave us one-week extension till 16th Dec 2016 but still refused my application even after the proof of meeting English requirement was met on 14th Dec 2016.
Insofar as this Ground in paragraph 2 asserts that the Tribunal had given a one week extension until 16 December 2016 for the First Applicant to submit a further test, or evidence of a test, which complied with the criteria, I allow it and regard it as Ground 5.
However, Ground 5 fails because the simple fact of the matter is that when the Tribunal recorded at the end of [15] of its Decision Record that it gave the First Applicant’s agent until 16 December 2016 to provide further submissions it was directing its attention to a submission on the proper construction of the criterion concerning whether the English language test had to be undertaken in the three years before the Skilled visa application. The Tribunal was not allowing until 16 December 2016 for the First Applicant to submit the results of a further English language test. In any event, the Tribunal did consider the further submitted English language test but found that it was irrelevant because it had not been taken within the three year period before the lodging of the Skilled visa application.
As to [1] of the “Reply” I indicated to the First Applicant that I would not allow him to argue at this late point that his migration agent was at fault in some way.
The First Applicant appeared before the Court on 17 March 2017 and was given the opportunity to file and serve any affidavit evidence on which he intended to rely by 9 June 2017 and by order 4 of that date, he was given leave to file any Amended Application that he wished to make by 9 June 2017. Neither of those opportunities were availed of, but in this document handed up at the beginning of the case, he seeks to place blame on his migration agent who acted for him and appeared at the Tribunal hearing in terms of having been given bad advice from the migration agent.
Nothing in this document handed up would indicate fraud but rather, at best, negligence or lack of good advice or negligent advice. However, on any basis I refused to allow the First Applicant to rely on the allegations against the migration agent because of the lateness of the raising of this issue. An allegation of this type of negligence against a third party who is a registered migration agent should be made at an early point of time and the Minister should have a proper opportunity to consider and to work out how he and his legal advisers ought to prepare to deal with such an allegation.
The Minister was not given that opportunity. The matter is sought to be raised far too late in the day and, in my discretion, I considered that it was not in the interests of justice to allow the issue to be raised at this point. Notwithstanding that even if I had, as it seems to be put by the First Applicant, it would only go to negligence rather than to third party fraud.
Disposition
Accordingly, the Application made to this Court fails to establish that the decision of the Tribunal is affected by jurisdictional error and is to be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 25 October 2018
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