Banala v Minister for Immigration
[2010] FMCA 570
•5 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANALA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 570 |
| MIGRATION – Review of decision of MRT – where applicant had not complied with requirement of competent English at time of application nor had he applied for an IELTS test that had not been taken at time of application – whether reg.485.215(c) was redundant or should have effect found for it in Habib v Minister for Immigration – whether reg.485 can be distinguished from reg. 885 considered in Berenguel – whether Court should find Habib was clearly wrong. |
| Migration Regulations 1994 (Cth) Migration Amendment Regulations 2007 (No.7) Migration Amendment Regulations 2008 (No.7) |
| Berenguelv Minister for Immigration (2010) 264 ALR 417 Habib v Minister for Immigration & Anor [2010] FMCA 450 Brisbane City Council v Attorney General for Queensland (1908) 5 CLR 695 Lim v Minister for Immigration (1992) 176 CLR 1 |
| Applicant: | RATAN KUMAR BANALA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 525 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 26 July 2010 |
| Date of Last Submission: | 26 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 12 February 2010.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 525 of 2010
| RATAN KUMAR BANALA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 25 September 2007 Mr Banala applied to the Department of Immigration & Citizenship for a skilled (Provisional) (Class VC) visa. That application was refused on 1 August 2008 on the basis that Mr Banala did not satisfy clause 485.215 of Part 485 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) because he did not have competent English. Mr Banala applied for review of that decision from the Migration Review Tribunal on 20 August 2008. On 23 February 2010 the Tribunal handed down its decision to affirm the decision of the delegate. Between the making of the first decision and the second a number of things occurred which were of relevance. Those events are best understood in the context of the delegated legislation with which the Tribunal dealt.
The type of visa that Mr Banala applied for is known as a Subclass 485 visa. This subclass of visa was introduced together with a Subclass 885 visa by the Migration Amendment Regulations 2007 (No.7) (SLI 2007 No 257). In the explanatory statement issued by the Minister to the Amendment Regulations it is said that:
“The purpose of the Regulations is to amend the Migration Regulations 1994 (“the Principal Regulations”) to implement key recommendations of the Evaluation of the General Skilled Migration (GSM) Categories, conducted by three independent academics in March 2006, and to improve the efficiency and effectiveness of the GSM program by restructuring the relevant classes and subclasses of visas.
In particular, the Regulations amend the Principal Regulations to:
·Increase the level of English language requirements to be satisfied by applicants for GSM visas;
·…
·…
·Clarify the requirements to be met by students who must have studied in Australia for two years before being eligible for the grant of a GSM visa;
·…
·Introduce a new temporary visa for graduates who have recently completed studies in Australia, to provide them with additional time to gain skilled work experience in Australia or improve their English skills to allow them to apply for a permanent GSM or employer sponsored visa at any time;
·…
·...”
Sub-clause 485 states relevantly:
“485.1 Interpretation
485.111 In this Part:
degree has the same meaning as in subregulation 2.26A(6).
diploma has the same meaning as in subregulation 2.26A(6).
trade qualification has the same meaning as in subregulation 2.26A(6).
note 1 For 2 year study requirement, see regulation 1.15F.
note 2 For competent English, see regulation 1.15C.
note 3 For registered course, see regulation 1.03.
note 4 For relevant assessing authority, see regulation 1.03.
note 5 For skilled occupation, see regulation 1.03.
note 6 For vocational English, see regulation 1.15B.
485.2 Primary Criteria
Note The primary criteria must be satisfied by at least 1 applicant. Other applicants who are members of the family unit, or the interdependent partner or dependent child of the interdependent partner, of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.
485.21 Criteria to be satisfied at time of application
…
485.215 Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b)the applicant has competent English; or
(c)the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
485.216 The application is accompanied by evidence that:
(a)the applicant; and
(b)each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
485.217The application is accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purpose of the application.
485.22 Criteria to be satisfied at time of application
…
485.222If the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for paragraph 485.215(c):
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b)the applicant has competent English.”
Regulation 1.15C defines competent English as:
“Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”
Mr Banala was not able to establish to the satisfaction of the delegate that he had competent English. He had lodged on 21 December 2007 an IELTS Report dated 17 November 2007 which indicated scores of 6.5 for listening, 5.5 for reading, 6.5 for writing and 7 for speaking. The requirements for competent English is a score of not less than 6 on each of those subjects and it was on this basis that the delegate’s decision was made. At [20] [CB 144] the Tribunal notes:
“[20]On 3 August 2009 the Tribunal wrote to the applicant asking him to provide evidence at the time of application he had competent English as defined in Regulation 1.5 [sic], or alternatively, if his application was accompanied by evidence that he had made arrangements to undergo a language test specified by the Minister, evidence that he now has competent English.
[21]On 24 August 2009 the applicant provided the Tribunal an IELTS test result (dated 18 February 2009) for a test taken on 7 February 2009. In this test result the applicant scores 6.5 for listening, 6.5 for reading, 7 for writing, 7 for speaking and overall band score of 7.”
The Tribunal in its findings and reasons concluded:
“[36]The Tribunal finds that the applicant did not achieve a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted not more than 2 years before the day on which the visa application was lodged. The Tribunal therefore finds that the applicant did not at the time of application have competent English as defined in r.1.15C(a). The Tribunal finds that the applicant does not satisfy c.485.215(b).
[37]As the applicant has not met c.485.215(a) or (b), the Tribunal has considered whether the applicant meets cl.485.215(c). In regards to whether the visa application was accompanied by evidence that the applicant had made arrangements to undergo a language test specified for the purposes of cl.485.215(c) the Tribunal notes the following.
…
[40]These facts indicate that the applicant made arrangements to undergo a language test on 2 October 2007. That is after lodging his application on 25 September 2007. Accordingly the applicant’s application was not accompanied by evidence that he had made arrangements to undergo a language test. The applicant does not satisfy cl.485.215(c).”
The first event was that, on 27 October 2008, by Migration Amendment Regulations 2008 (No.7) (SLI No 205 of 2008) clause 485.215 was amended by excluding 485.215(c).
The second event was a decision of the High Court in Berenguelv Minister for Immigration (2010) 264 ALR 417. In that case the High Court considered the position of an applicant for a skilled (Residence) (Class VB) visa Subclass 885:
“[17]Division 885.2 sets out primary criteria. Under the heading “885.21 Criteria to be satisfied at time of application” there appears the following:
885.213 Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.
By way of relevant contrast, cll 885.214 and 885.215 require the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant has made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.”
Mr Berenguel applied for his visa on 21 April 2008. He had booked an IELTS test on 26 February 2008, nearly two months before he lodged his application, but the earliest date upon which the test could be administered to him was 10 May 2008. He sat the test on 10 May 2008 and secured a score of 6 in respect of each of the prescribed components. On 12 December 2008 the delegate of the Minister refused his application because:
“You have not provided an IELTS test result [for a] test conducted not more than 2 years before the day on which the application was lodged and therefore have not meet [sic] the regulatory requirement of having vocational English at [the] time of application."
The High Court considered as a special case two questions at [10]:
“The following questions were agreed as the questions for determination on the hearing of the special case:
Question 1
Did the delegate of the defendant misconstrue subreg 1.15B(5) of the Migration Regulations in finding that the plaintiff had:
“… not provided an IELTS test result [for a] test conducted not more than 2 years before the day on which the application was lodged and therefore have not meet [sic] the regulatory requirement of having vocational English at [the] time of application?”
Question 2
In the circumstances of the present case, could the plaintiff satisfy the English language requirements of cl 885.213 in Sched 2 to the Migration Regulations by lodging an IELTS Test Report with the defendant’s Department on a date after the date on which he lodged his visa application with the defendant’s Department?”
The High Court in a short, but robust, decision held:
[22] The Minister submitted in the present case that the criterion which the delegate found was not met was that in cl 885.213, which is a time of application criterion. It was submitted that the test score must therefore have been achieved at the time of application because the Minister (and delegate) were bound by s 65 and the Migration Regulations to reach a state of satisfaction as to the position at that time.
[23]In the present case it is said, in circumstances where the plaintiff had received no test score at all at the time of application, the delegate could not be satisfied that cl 885.213 was met. The delegate, it was submitted, had no discretion to have regard to test scores achieved after the making of the application.
[24]The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.
[25]The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
[26]Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
"The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." (emphasis added)
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.”
The third event was the decision of FM Smith in Habib v Minister for Immigration & Anor [2010] FMCA 450. The relevant facts of which case were identical to those before me, namely the applicant did not have competent English at the time of application and did not fall within reg.485.215(c). Federal Magistrate Smith, in a carefully reasoned decision, which took into account the views expressed by the High Court in Berenguel, found for the applicant stating at [17]:
“[The High Court’s reasoning requires decision-makers to take account of test results achieved between the dates of visa application and decision when applying cl.885.213(a) or (b). The same reasoning appears overwhelmingly applicable to the identical language in cl.485.215(a) or (b), when used in an identically structured list of visa criteria. Particularly, where the two sets of criteria had been introduced in the same package of amendments, deal with the same issues, and concern essentially the same general class of former students who have studied in Australia and are seeking to achieve permanent residence in Australia.
And at [22]:
“[I]n my opinion, paragraph (c) does not contain any language, nor exhibit any intent, to exclude the power of decision-makers to take into account all post-application test results which become available before they make a decision. I consider that it can be given its intended operation without implication that it carries the ‘unfair and absurd’ consequence of requiring a decision-maker in other circumstances to ignore the best evidence of English competency available at time of decision.”
And at [23]:
“In my opinion, its literal meaning and intended operation are to provide to a visa applicant the option of notifying a decision-maker, at the time of visa application, that he has made an appointment to sit a future IELTS test. The conferral by the Regulations of this option then gives rise, if it is exercised at the time of visa application, to an expectation that the decision-maker will defer making a decision until the results of the notified test become available. I am inclined to think that par.(c) and cl.485.222 do more than this, and also give rise to a binding obligation on the Minister to give that deferral. At least, there would be a duty on the Minister after receiving evidence under par.(c) with the visa application, not to make a decision before the date of the appointed test without giving the applicant an opportunity to be heard on whether this should happen.”
And at [26]:
“As I have noted, all the points identified by the High Court in favour of the construction given to cl.885.213(a) and (b) appear with equal force when cl.485.215(a) and (b) are considered. Given the authoritativeness of their judgment, it is appropriate, in my opinion, that I should be slow to accept a contrary construction of the same paragraphs in relation to a sister provision. Since I have been able to identify a construction of paragraph (c) which allows it to operate in its intended manner, and without giving it the exclusionary effects submitted by the Minister, I consider that the Berenguel construction should be applied to those paragraphs.”
In the instant case the Minister seeks to re-agitate what he sees as the distinguishing feature between Habib and Mr Banala’s positions and that in Berenguel, namely that the Regulation considered in Berenguel did not have the alternative (c) which was found in reg.485.215 and did not have reg.485.222. The Minister argues that the existence of these provisions clearly tie the criteria to the time of application so that there is no disconnect between the heading and the words “utilised” as there was said to be in Berenguel and that if reg.485.215(c) has any work to do (and it must be construed as if it does) then it is to require that an applicant has made an appointment for a test before the application is submitted.
The applicant argues that I cannot ignore the way in which the High Court has interpreted the equivalent of reg.485.215(b) in Berenguel because the High Court has shown that its interpretation is consistent with the policy of the amendment to the Regulations and that if I take that meaning into account reg.485.215(c) either only has the work suggested by FM Smith or it is redundant and that whilst redundancy is anti-pathetic to the general cannons of construction that a statute is never supposed to use words without a meaning:
“Courts will, however, when necessary, take cognisance of the fact that the legislature does sometimes repeat itself, and does not always convey its meaning in the style of literary perfection.”
Brisbane City Council v Attorney General for Queensland (1908) 5 CLR 695 at 720.
The applicant also notes that in Lim v Minister for Immigration (1992) 176 CLR 1 Mason CJ said at [12]:
“The only argument against the interpretation of s 54 r which I find compelling is that the section, so interpreted, may achieve nothing. The section achieves nothing if it does no more than instruct the courts to act in conformity with the substantive provisions of Div 4 b, that being something which the courts would be bound to do in any event. To construe the section in this way, it is suggested, would be to ignore the presumption that words are not used in a statute without a meaning and are not superfluous. Put another way, the argument is that, if possible, some meaning and effect should be given to all the words used.6 However, this presumption or rule of construction is of limited application. In Hill v William Hill (Park Lane) Ltd Viscount Simon explained it in these terms:7
“When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out” (emphasis added).
His Lordship went on to point out that, if the language offered a choice between tautology and retrospectivity, it would be natural to prefer a construction implying the reproach that Parliament had said the same thing twice over.
In this case, s 54 r presents a somewhat similar choice between one construction which involves superfluity and another which infringes the liberty of the individual and purports to require the courts not to release a person held in unlawful custody, thereby setting at naught the fundamental principle that no person shall be imprisoned except pursuant to lawful authority. Plainly enough, the presumption or rule of construction is not strong enough to enable the second construction to prevail.”
In the instant case if the Berenguel interpretation of 485.215(b) is accepted then 485.215(c) is superfluous but when one looks at it carefully it is not only superfluous in those circumstances it is ineffective even on the pre Berenguel understanding. If the sub-clause is read together with sub-clause 485.222 as intending to provide some relief for an applicant who has not passed the test by the time he makes his application, then it will only do that if the delegate is prepared to await the outcome of the test that had already been booked. But there is no requirement of the delegate to do that (or for a Tribunal for that matter). If I accept the Minister’s contentions that implying into 485.215 a requirement to await the result as suggested by FM Smith does not constitute a criteria and is therefore ineffective, then the sub-clause is defective. It does not ensure any relief to an applicant.
I am comforted in the view that I have come to about sub-clause 485.215(c) by the fact of its repeal within only a short time of it having been inserted into the Regulations. Mr Kennett who appears for the Minister tells me that this was because the delays in obtaining IELTS tests that it was intended to overcome had ceased. But as the clause as written did not, to my mind, alleviate the problems raised by those delays, it is not unreasonable to infer that the repeal may well have been because it was appreciated that the sub-clause was ineffective as drafted.
However, the Court cannot disregard a sub-clause that is merely ineffective in its proclaimed purpose. I would have to accept that if reg.485 can be distinguished from 885 then there was no error on the part of the Tribunal. I am reluctant to make this finding in light of the strong views expressed by the High Court in Berenguel. As I am unable to say that the decision in Habib is clearly wrong, I believe I should take comfort in the convention that requires me to follow it.
The conclusions to which I have come are therefore either that:
(a)Habib was correctly decided for the reasons given by FM Smith; or
(b)Even if FM Smith was wrong in his construction of sub-clause 485.215(c) that sub-clause should be disregarded as being redundant.
In these circumstances the decision of the Tribunal was affected by jurisdictional error and should be reviewed. The constitutional writs requested should be granted and the First Respondent is required to pay the Applicant’s costs assessed in the sum of $5,800.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 5 August 2010
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