Bali v Minister for Immigration

[2014] FCCA 418

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 418

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – whether applicant has competent English.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) r.1.15C, Sch.2

Berenguel v Minister for Immigration and Citizenship(2010) 114 ALD 1
Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779

Applicant: GAURAV BALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1043 of 2013

Judgment of: Judge Jones

Hearing date: 21 February 2014

Date of Last Submission: 21 February 2014

Delivered at: Melbourne

Delivered on: 21 February 2014

REPRESENTATION

The Applicant: Appeared in person

Counsel for the First Respondent: Mr N. Rogers

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection.’

2. The Application filed by the Applicant on 11 July 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.00 within 21 days of these Orders.

   .

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1043 of 2013

GAURAV BALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. The applicant, Mr Gaurav Bali, filed an application for judicial review on 11 July 2013. He seeks a review of a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed a decision of the Minister for Immigration and Citizenship, the first respondent in this matter, to refuse the applicant a Skilled (Provisional) (Class VC) visa (“the visa”). A copy of the Tribunal’s decision of 7 June 2013 is in the court book at pages [74] to [77].

2. The applicant has appeared here in person and has made submissions.

   
   

   I note that he did not file and serve any written submissions as required by the order made by Registrar Caporale on 18 September 2013. However, I have explained to the applicant, because he is self-represented, the nature of the proceedings in judicial review. I explained to the applicant that the Court’s function is not to conduct a review on the merits but to determine whether there was jurisdictional error or, as I put it to him, legal mistake, and I gave an example of a legal mistake as one where the Tribunal incorrectly applied the relevant provisions under the Migration Act 1958 (“the Act”).

3. By way of background, the applicant is a national of India and on 9 March 2012 he applied for the visa. The application is set out at pages [1] to [10] of the court book. The application was made with the assistance of a migration agent. In the application, the applicant indicated that he had undertaken an International English Language Testing System test (“IELTS”) on 2 March 2012, a week before the application was made. This is set out at page 8 of the court book as follows:

   “Have you undertaken an English test within the last 24 months?

   Yes

   If yes, provide details of the most recent English test:

   Name of test  IELTS

   Date of test  2 March 2012

   Test reference number  TBA

   What is your language ability       Competent”

4. I note that in the proceedings today the applicant, in dealing with his grounds for review, said to the Court that he has attempted this test a couple of times and was not successful. He said he failed the tests and that, in fact, he was waiting to have the test until he was at a point in time when he could be competent in English and that is the reason that he hadn’t completed the test before the time he made his application for the visa.

5. By letter dated 17 October 2012, the then Department of Immigration and Citizenship requested further information from the applicant, including a copy of an English language test report indicating he had competent English, and this is at court book page [27]. On 17 December 2012, a delegate of the Minister decided to refuse the visa.

   
   

   The decision of the delegate is set out at court book pages [39] to [42].

   
   

   Relevantly, at page [41] of the court book, the delegate in the decision records states:

   “On 17 October 2012, you were requested to provide to the department, evidence of your English language ability.

   To date, you have not provided any evidence to the department to show that you have undertaken an English language test.

   As you have not provided evidence to the Department that you have not undertaken a test in the two years immediately before the day on which the application was made, I’m not satisfied that you have competent English as prescribed in regulation 1.15C(a)(ii) and regulation 1.15C(a)(iii).

   The passport types referred in regulation 1.15C(b) are passports issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland.

   No evidence has been provided to show that you hold a passport issued to a citizen of that country, of a type mentioned in regulation 1.15C(b) nor have you provided an OET test result, or an IELTS test result.

   Therefore I’m not satisfied that you meet the requirements of regulation 1.15C in its entirety.

   As you do not meet the requirements of regulation 1.15C, you do not meet the requirements of regulation 485.215 and therefore you do not meet the requirements for the grant of a VC-485 Skilled Graduate visa.”

6. As is apparent from that extract, the delegate had found that the applicant had not provided the requisite evidence that he had competent English as defined by regulation 1.15C of the Migration Regulations 1994 (“the Regulations”). Consequently, the applicant did not satisfy clause 485.215 of schedule 2 to the Regulations, which required that at the time of the visa application, the applicant had competent English.

7. On 4 January 2013, the applicant applied to the Tribunal for review of the delegate’s decision. The application was made with the assistance of a representative. That is set out at court book [49]. Turning to page

   
   

   [54] to [55] of the court book, there is a statement or a letter to the Tribunal which sets out part of the applicant’s case. I refer to the extract from the letter at court book page [54]:

   “Today my life has been ruined, left as a hapless (sic) person, coming to the MRT for natural justice on my decision. I am a victim who is a person who has submitted all documents to DIAC and been refused on the basis of IELTS (English language ability) as it is criteria for my 485 visa grant. I never paid attention by DIAC or else my agent that “we have to submit the IELTS, even that IELTS has certain score, which is 6 in every single component, need be done in the last 24 months before lodgement visa application, until I received letter from DIAC delegate,” delegate was friendly and explained me lot, even helped me in travelling to India on an emergency trip for parents sudden ill.”

8. The applicant then goes on to set out the reasons why he believes the Tribunal should find in his favour and they are set out as follows from page [55] of the court book:

   ØI was in a situation where it was not possible to think of staying in Australia either I could attend IELTS examination to provide my IELTS within 28 days time frame given by DIAC delegate.

   Ø

   Due to my parent sickness my mother was joined (sic) in hospital,

   
   

   I had to fly to India by taking DIAC permission, eventually, permission has been given by delegate.

   ØAs my process was passed during my stay in India, it has been resumed by delegate after my arrival to Australia, thanks god.

   ØWhen I came back to Australia, I have tried to book the IELTS test which is not available until December first week, even couple dates been booked in case of not getting the right result to satisfy the criteria.

9. I note here that the applicant’s statement in the letter to the Tribunal dated 4 January 2013 seems to assert some ignorance of the requirements of the IELTS test and this is somewhat inconsistent with the applicant’s submissions today in which he stated that he has in fact completed the test but unsuccessfully on two occasions and that in fact he was waiting to become competent in English before undertaking the test again. It demonstrates to the Court that at least, at the time of the application, he was not competent in English because he had not undertaken the test as required.

10. The applicant was invited to attend a hearing before the Tribunal on

    
    

    22 April 2013 to give evidence and present arguments. This is set out at court book [63] to [65]. On 5 April 2013, the applicant sent a facsimile to the Tribunal, indicating he would take part in the Tribunal hearing.

    
    

    This is set out at court book page [66] to [67]. On 19 April 2013, the applicant’s representative wrote to the Tribunal, advising the applicant did not want to come to the hearing and requesting that the Tribunal make its decision on the basis of the information already submitted. This is set out at court book [68].

11. On 7 June 2013, the Tribunal made its decision. It is appropriate here to set out the relevant legislative framework. Regulation 485.215 of schedule 2 to the regulations requires that the applicant, and I quote, “has competent English” at the time of the application. At the time of the application, reg.1.15C of the Regulations defined competent English as follows:

    “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 two 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 the type specified by the Minister in an instrument in writing for this paragraph.”

12. As Mr Rogers, counsel for the Minister, points out, the Tribunal found, and I have to say quite correctly, there was no evidence that the applicant had competent English as defined in regulation 1.15C of the Regulations. This is set out at [12] to [18] of pages [76] to [77] of the court book. There seems to be no dispute based on the applicant’s submissions and the factual material before the Tribunal that this is so. The applicant simply did not have competent English as defined by the relevant regulation. The applicant did not also hold a passport of the kind specified in regulation 1.15C(b). Given that, it was as the Minister says, inevitable that the Tribunal would find against the applicant and affirm the decision under review. The Court is satisfied that the regulation operates in mandatory terms and that the applicant was required to provide evidence that he met the definition of competent English and he did not do so.

13. As to ground 2 of the applicant’s case, the Court enquired what the meaning of this ground was. The applicant in his application stated at point 2:

    “My Tribunal decision has judicial error considering the High Court case.”

14. I enquired from the applicant what he meant by this, and he responded by submitting that he had not undertaken the test for the reasons that he wanted to get competent in English first, not waste resources and time, and he had been advised to do so. The respondent, in my view, quite properly in its submissions indicated that this may have been a reference to the High Court decision in Berenguel v Minister for Immigration and Ethnic Affairs (2010) 114 ALD 1. Now, this decision was made prior to the amendments to regulation 1.15C in 2011.

15. As the Minister correctly points out, the definition that applied in Berenguel is clearly distinguishable from the definition that applies under the regulation now following the amendments in 2011. As the relevant definition at that time, when the decision of Berenguel was made, could be satisfied by evidence of:

    “A test conducted not more than two years before the day on which the application was lodged.”

16. The High Court held that this required only:

    “That the test was conducted no earlier than two years before the application was lodged.”

17. It appears that the applicant may well have thought that as long as he satisfied this requirement and that he was in a process of undertaking a test, he may well have satisfied the requirements under the legislation and hence the Tribunal decision incorrectly applied the relevant law. Unfortunately for the applicant, this is not the case because of the amendments that were made in 2011 to regulation 1.15C. As the Minister points out, following the amendments, the definition of competent English applying in the present case could only be satisfied by evidence of a test:

    “…conducted in the two years immediately before the day on which the application was made.”

18. The consequence is that an IELT test undertaken after the lodgement of an application for the visa cannot be relied upon for the purpose of obtaining the relevant visa. And if it is necessary, I refer to the decision of her Honour Riley J in Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 at 20. I note that the Tribunal did consider the applicant’s personal circumstances, and this is set out at court book [76], that is, the matters that he dealt with in his letter to the Tribunal dated 4 January 2013, but correctly concluded that, given the applicant had not produced evidence that he had in the two years immediately before the day the application was made completed successfully an IELT test, then his application was required to be refused.

19. I conclude, therefore, that the Tribunal decision was perfectly correct, the Tribunal applied the law correctly and, consequently, the applicant has not established that the Tribunal’s decision is affected by jurisdictional error. The application is therefore dismissed and the applicant will be ordered to pay the first respondent’s costs in accordance with the relevant schedule to the rules of the court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Jones.

Date: 6 March 2014