Bali v Minister for Immigration and Border Protection
[2014] FCA 986
•11 September 2014
FEDERAL COURT OF AUSTRALIA
Bali v Minister for Immigration and Border Protection [2014] FCA 986
Citation: Bali v Minister for Immigration and Border Protection [2014] FCA 986 Appeal from: Bali v Minister for Immigration [2014] FCCA 418 Parties: GAURAV BALI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 119 of 2014 Judge: COLLIER J Date of judgment: 11 September 2014 Catchwords: MIGRATION – Skilled (Provisional)(Class VC) visa – “competent English” – whether appellant had competent English as required by cl 485.215 of the Migration Regulations 1994 (Cth) Legislation: Migration Regulations 1994 (Cth) regs 1.15, 1.15C, 1.15C(a), 1.15C(b), cl 485.215 of Sch 2 Cases cited: Berenguel v Minister for Immigration and Ethnic Affairs (2010) 264 ALR 417 distinguished
Palanisamy v Minister for Immigration [2013] FCCA 1779 citedDate of hearing: 27 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr N Rogers of the Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 119 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: GAURAV BALI
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
11 SEPTEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 119 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: GAURAV BALI
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
11 SEPTEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 26 February 2014 the appellant filed a notice of appeal from a decision of the Federal Circuit Court of Australia (Bali v Minister for Immigration [2014] FCCA 41). At the hearing of the appeal on 27 August 2014 both the appellant and the Minister made oral submissions. After hearing submissions I ordered that the appellant’s notice of appeal be dismissed with costs, and advised the parties that I would provide written reasons for my decision at a later date.
My reasons for decision now follow.
Background
The appellant is a citizen of India. On 9 March 2012 he applied for a Skilled (Provisional) (Class VC) visa (“the visa”) with the assistance of a migration agent. In that application the appellant indicated that he had undertaken an International English Language Testing System (“IELTS”) test on 2 March 2012 and that he had competent English.
By letter dated 17 October 2012, the Department of Immigration and Citizenship (as it then was) requested further information from the appellant, including a copy of an English language test report indicating that he had competent English.
A delegate of the Minister refused the visa application on 17 December 2012.
The delegate found that the appellant had not provided the requisite evidence that he had “competent English” as defined by reg 1.15C of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate therefore found that the appellant did not have competent English for the purposes of satisfying cl 485.215 of Sch 2 to the Regulations, and that because Subclass 485 was the only subclass of visa relevant to the appellant’s circumstances the visa application would be refused.
On 4 January 2013, the appellant applied, with the assistance of a representative, to the Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision.
The appellant was invited to attend a hearing before the Tribunal on 22 April 2013, to give evidence and present arguments.
On 19 April 2013, the appellant’s representative wrote to the Tribunal, advising that the appellant did not wish to attend the hearing and requesting that the Tribunal base its decision on the information already submitted.
Decision of the Tribunal
In written submissions to the Tribunal the appellant stated (inter alia) as follows:
Today my life has been ruined, left as a hapless person, coming to MRT for natural justice on my decision. I am a victim who is the person 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 been 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 last 24 months before lodgement visa application, until I have received letter from DIAC delegate”…
I never been advised nor told to bring IELTS score sheet by agent, even never get aware regrading my IELTS criteria, which could have been possible by me if known before lodge the application or else at during process time.
ØI was in the situation where it is 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.
ØDue to my parent sickness as my mother was joined in hospital, I had to fly to India by taking DIAC permission, eventually permission has been given by delegate.
…
ØWhen I come 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.
…
ØMy obvious juncture was “lax advice was given my agent, I had lack of knowledge on Australian migration regulations, I was in the position could not even go for one IELTS examination in India while I went to visit my sick parent who was joined at hospital, and after coming back to Australia could not get booking to get my IELTS done to submit to delegate within given time frame”.
ØMy results are held soon in coming days that I can provide to Tribunal, if there is a provision which is acceptable under the MRT purview.
(Errors in original.)
The Tribunal identified the key issue before it as whether the applicant had competent English as required by cl 485.215 of the Regulations. “Competent English” is defined by reg 1.15C of the Regulations as where the relevant person:
(a) satisfies the Minister that:
(i)the person undertook a language test, specified by the Minister 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 Tribunal found that reg 1.15C(b) did not apply.
In relation to reg 1.15C(a) the Tribunal identified two language tests as having been specified by the Minister for the purposes of the subparagraph, namely the IELTS and the Occupational English Test.
The Tribunal accepted the appellant’s claims about his personal and family difficulties. However, the Tribunal noted that the difficulties the appellant claimed were faced by him after October 2012, when the Department asked the appellant to provide evidence of his English language ability. The Tribunal found that by that time it would have been too late for him to meet the requirement that the relevant test be conducted in the two years before the appellant applied for the visa.
Accordingly, the Tribunal was not satisfied that the appellant met the English language requirements in reg 1.15. On 7 June 2013 it affirmed the decision of the Minister.
Proceedings below
On 11 July 2013 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.
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.
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.
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.
Accordingly, her Honour below dismissed the application on 21 February 2014.
Application to this Court
In his notice of appeal filed 26 February 2014, the appellant relies upon the following grounds:
1. I am not Happy with the decision made by Federal Circuit court of Australia
2. I am looking for the justice at Federal court of Australia
(Errors in original.)
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.
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.
It follows that the decision of the Federal Circuit Court was undoubtedly correct and the appeal should be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 11 September 2014
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