Bandi v Minister for Immigration & Anor
[2010] FMCA 365
•21 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANDI v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 365 |
| MIGRATION – MRT decision – skilled onshore provisional visa – satisfaction of competent English tests – effect of Berenguel – visa applicant presented no evidence of necessary IELTS results obtained prior to decision – no errors of law by Tribunal – no jurisdictional error in Tribunal refusing to delay making a decision – application dismissed. |
| Migration Act 1958 (Cth), ss.353(1), 363(1)(b), 476 Migration Regulations 1994 (Cth), regs.1.15B, 1.15B(5), 1.15C, 1.15C(a), Sch.2 cll.485.215, 485.215(a), 485.215(b), 485.215(c), 485.222, 485.222(b) |
| Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8 Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 Kamal v Minister for Immigration & Anor (2009) 224 FLR 337 Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379 |
| Applicant: | MOHAMMEDARIF UMARBHAI BANDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 363 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 21 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 363 of 2010
| MOHAMMEDARIF UMARBHAI BANDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Bandi gained tertiary qualifications in commerce in India between 1998 and 2003, and then came to study in Australia. He pursued a two‑year course in Sydney between July 2006 and July 2008, and gained the qualification of Master of Accounting. He then applied for a skilled provisional visa, with the aim of gaining permanent residence. His application was lodged online by a migration agent on 7 August 2008, and various supporting documents were also forwarded to the Department.
The applicable criteria for the visa included, so far as they are relevant to Mr Bandi, cl.485.215 and cl.485.222 of the Migration Regulations 1994 (Cth). These provided at the relevant time:
485.21Criteria to be satisfied at time of application
…
485.215Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, 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.
485.22Criteria to be satisfied at time of decision
…
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 Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
Mr Bandi’s ‘nominated skilled occupation’ required him to address the ‘competent English’ alternatives in these criteria, rather than the less demanding ‘vocational English’ alternatives.
The reference to ‘competent English’ in both of the criteria was defined in reg.1.15C of the Migration Regulations:
1.15CCompetent 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.
The meaning of the reference in reg.1.15C(a) to “a test conducted not more than 2 years before the day on which the application was lodged” is open to different constructions. I have seen decisions of the Tribunal, and at least one of this Court, construing the words so that a relevant test result must have been achieved before the date on which the visa application was lodged, whether reg.1.15C(a) is applied under cl.485.215 or cl.485.222.
However, the construction of reg.1.15C(a) has now been settled by the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8. Their judgment refers at [25] to the more beneficial construction to which the regulation is susceptible, that is:
… 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. …
Their Honours then answered the first question which was posed to the Full Court, by adopting that beneficial construction of reg.1.15B(5). That sub‑regulation used language in relation to the timing of the vocational English IELTS test results, which is relevantly identical to the competent English test in reg.1.15C (see Berenguel at [19]). It was not necessary for their Honours to elaborate their reasons for accepting that construction, because it was conceded by counsel for the Minister that the High Court should accept the beneficial construction of an ‘analogous’ regulation adopted by myself in Kamal v Minister for Immigration & Anor (2009) 224 FLR 337, and upheld by the Full Court in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379. The concessions of the Minister’s counsel are found in Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 at [210], [250] and [410].
It is therefore clear that the definition of ‘competent English’ in reg.1.15C may be satisfied by a visa applicant achieving the requisite IELTS results in a test conducted at any time before the making of a decision by either a delegate, or by the Tribunal on review, as to whether the visa applicant has satisfied that definition.
Berenguel also addressed whether a more confining effect in relation to the timing of a satisfactory test result applied in the application of cl.485.215, in relation to the tests of both vocational English and competent English. The Minister argued to the High Court that the ‘time of application’ heading, under which cl.485.215 appears, supported a construction of cl.485.215(a), and necessarily also (b), in which satisfaction of the ‘vocational English’ or ‘competent English’ definitions must be achieved before time of application. That construction was rejected by the High Court when answering Question 2.
It is therefore also clear from Berenguel that the effect of both cl.485.215(b) and cl.485.222(b) is that a visa applicant may establish both of those criteria, by proving competent English results being achieved in an IELTS test undertaken at any time prior to date of decision, but not earlier than two years before visa application.
The High Court’s judgment in Berenguel was delivered on 5 March 2010, after the present decisions of the delegate and Tribunal addressing Mr Bandi’s visa application. However, as I shall explain, I do not find in the reasoning of the Tribunal any error of law arising from Berenguel in the present case.
Mr Bandi’s visa application indicated that he had not undertaken an English test before making the application, but that he intended to do so, and to achieve competent English results. Evidence of an appointment for the sitting of the test was presented to the Department, showing that he had paid a fee to sit a test on 13 December 2008.
On 2 March 2009, the delegate explicitly requested that the outcome of the December 2008 test should be forwarded to the Department within 28 days. Mr Bandi’s agent did not forward any results, but on 27 March 2009 he emailed the relevant Department officer, saying:
Our client is currently offshore and will be returning back in Australia on 23rd May 2009. We have also forwarded his IELTS booking on 9th May 2009 (please refer below email confirming IELTS booking) and will send you IELTS report once we will receive it.
There is no evidence that either Mr Bandi’s agent or Mr Bandi himself had been led to believe by anything said by the Department of Immigration, whether in general representations or by this particular officer, that the making of a decision would be suspended until Mr Bandi had sat further tests. The delegate, however, did defer making a decision until 26 June 2009.
The delegate did not, however, allow further time, which was implicitly requested by an email sent by Mr Bandi’s agent on 17 June 2009. This did not disclose the outcome of the May test, but said: “please find attached IELTS booking for our client’s application of 485 visa”, and attaching an invoice showing registration for a test on 12 December 2009.
As the delegate said in her statement of reasons, the effect of all the communications from Mr Bandi’s agent was that at no time were any results from the sitting of an IELTS test forwarded to the Department, and the delegate was therefore left with no evidence of English proficiency. The delegate addressed that circumstance by reference only to cl.485.222, and gave as her reason for refusing the visa application:
As you have not provided any evidence that your demonstrated level of English is at the Competent standard as specified in Migration Regulation 1.15C I am not satisfied that you meet the requirements of clause 485.222.
Mr Bandi’s agent then lodged an appeal to the Tribunal on 15 July 2009. He did not present to the Tribunal any further evidence of sitting IELTS tests and achieving any satisfactory outcome. However, in response to an invitation from the Tribunal to attend a hearing on 10 December 2009, Mr Bandi’s agent requested on 25 October 2009:
We request you for extension of the hearing date for about 30 days for our client’s case for following reasons:
·Our client’s mother is sick and he is currently visiting her in India. He hopes to return back before 10th Dec 2009 however, we request you to give him sufficient time to attend the hearing.
·Our client has planned to attend the IELTS on 12/12/2009 and he is positive for getting his IELTS at competent level. This booking also has been submitted to DIAC prior to his visa refusal. The IELTS result normally be sent by normal mail after 13 days of the test date and he expects to receive it on end of December 2009.
Our clients’ mother is sick and he hopes to return back before 10th December 2009. After arrival, he needs to have some time to appear before the hearing. Also, our client has invested his life, money and career in Australia. However, considering our client’s life and his current situation, we request you sir to approve the extension time for our client’s hearing for about 30 days. Upon approval of only 30 days, our client will resume his life in Australia.
Also, we would submit our written submission / arguments in favour of our client’s case before the hearing date.
We thank you for your consideration and approval of the request.
The Tribunal gave Mr Bandi the opportunity to sit the test on 12 December 2009, by acceding to the adjournment request and postponing the hearing until 19 January 2010.
Mr Bandi then attended that hearing with his agent, and according to the Tribunal:
30.The Tribunal referred to the representative’s written submissions made in October 2009 seeking a postponement of the hearing so that he could sit for an IELTS test booked for 12 December 2009. The applicant told the Tribunal that he had achieved an Overall Band score of 6 in that test but had not achieved a score of 6 in all 4 components of the test. He did not provide a copy of his test results.
31.The applicant stated he had been very anxious during the test and felt it affected his performance. He was also depressed about family illness. He asked to be given a further extension so that he could sit for another IELTS test. He had been practising his English and his friend was giving him extra lessons. The applicant is currently working in a friend’s office to gain work experience in the accounting profession.
32.The Tribunal has considered the request for an extension however has decided not to delay making a decision in the matter to enable the applicant to sit for a further IELTS test. In coming to this decision it has taken into account the period of time between the application made on 7 August 2008 and the date of the Tribunal hearing on 19 January 2010. It considers that the applicant has had a lengthy period of time (almost 17 months) in which to study and sit for and achieve the required score in an IELTS test. The applicant did not provide evidence of a further test booking. He stated that he was anxious and depressed and this was why he failed to achieve the required score in the latest test, however he provided no evidence of any clinical disease. The Tribunal considers it is not unusual that a candidate for any test would feel anxious about the outcome and some depression if they had previously failed other tests, however, the Tribunal does not consider that these are sufficient reasons to further extend the time to allow the applicant to sit for another IELTS test.
No better evidence of what was said at the hearing is before me, nor is there any evidence additional to paragraph 32 as to the Tribunal’s reasons for declining to adjourn its review further.
The Tribunal made its decision on 20 January 2010. It addressed both of the criteria concerning competent English in the following manner:
36.There is no evidence before the Tribunal that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test or at least ‘B’ in each of the 4 test components in an OELT conducted not more than 2 years before the day on which the visa application was lodged. The applicant also admitted at hearing that he had not achieved the required scores. The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.
37.The Tribunal finds that the applicant does not satisfy cl.485.215(b).
38.As the applicant has not met cl.485.215(a) or (b), the Tribunal has considered whether the applicant meets cl.485.215(c). The Tribunal finds that the applicant’s 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). Accordingly, the applicant satisfies cl.485.215(c).
39.Although the applicant satisfies cl.485.215, the Tribunal finds that the applicant does not satisfy cl.485.222 because at the date of this decision he does not have competent English as defined in r.1.15C.
The Tribunal’s application of cl.485.215(b) in paragraph 36 appears legally impeccable in its terms, and in my opinion it does not reveal error of law in the Tribunal’s understanding of that criterion, even on the construction later confirmed in Berenguel. The Tribunal may have been aware of the legal controversy, and not found it necessary to depart from the most beneficial view of the regulations. For whatever reason, it is in my opinion clear from the last sentence of paragraph 36 that the Tribunal addressed whether Mr Bandi could satisfy the competent English test by considering if he had achieved a relevant test result as at the date of its decision. This appears from its use of the present tense.
Moreover, I accept the Minister’s submission that, even if error appeared in the Tribunal’s application of cl.485.215, it would not be a material error vitiating its decision on the review, since the Tribunal also proceeded to address Mr Bandi’s achievement of a satisfactory level of English through the cl.485.215(c) and cl.485.222 pathway.
When it did so, it inevitably followed from the Tribunal’s refusal of an adjournment, and from the absence of any evidence whatsoever of Mr Bandi ever achieving the necessary results, that the Tribunal was unable to be satisfied in terms of cl.485.222 when addressing the situation at the date of decision.
I therefore can find no jurisdictional error of law revealed in the Tribunal’s reasons in relation to its application of both of the ‘competent English’ criteria.
Mr Bandi filed his application to this Court on 23 February 2010, using the form for judicial review of decisions of the Tribunal under s.476 of the Migration Act 1958 (Cth). It did not seek the usual relief by way of writs of certiorari and mandamus, but seeks only “approval of time limit until I achieve my IELTS at competent level”. The following is then inserted as the ground of the application:
1.The Tribunal has made error in interpreting the law of time of the decision. There is an error in the law regarding the time of decision by the Department of Immigration. When I applied, the time of decision criteria states that I have to book IELTS and later on I can achieve the IELTS at competent level. As DIAC has provided the opportunity in the law that I can book my IELTS and then I have to provide the IELTS later on. The law states again that at the time of decision, applicant has to provide IELTS. Considering that scenario, I booked my IELTS and applied for my visa and start preparing to get IELTS. There is not a single word mentioned in the Act that I have to give the IELTS for particular date. The criterion to grant the visa is to provide the IELTS at competent level. When I applied for my visa, I planned for the visa grant and provide the other documents. In my case, there should not be only one person take the decision as I would be give equal opportunity or time to show my ability of English language. I appreciate DIAC and MRT for giving me short extensions for IELTS; however, it was not sufficient time and booking dates available for IELTS test in Australia.
As I have explained to Mr Bandi today, the Court’s jurisdiction to review decisions of the Tribunal, and to intervene to direct the Tribunal to consider his situation further, depends upon my finding jurisdictional error affecting the Tribunal’s decision. Whatever my sympathies in relation to his difficulties in achieving the necessary level of English competence measured by the IELTS tests, I am constrained by the Migration Act to dismiss his application in the absence of any jurisdictional error affecting the Tribunal’s decision.
For that reason, I refused the tender of additional evidence presented by Mr Bandi, which was not before the Tribunal. This evidence consisted of his IELTS test results in seven tests, in all of which he had failed to achieve the necessary level. I also rejected a bundle of medical documents, which he said concerned his father’s illness. In written and oral submissions, he explained his concerns about his parents’ disappointment if he is unable to achieve residence in Australia. This material also was not evidence given to the Tribunal, and in my opinion it is not relevant to any issues which I have jurisdiction to consider.
On one reading of Mr Bandi’s ground of application, he is challenging the Tribunal’s decision for error of law in its application of the visa criteria. However, for the reasons I have explained above, I have been unable to find any error of law in the Tribunal’s application of the criteria.
The second wing of his ground, may be understood as a challenge to the Tribunal’s procedural decision not to adjourn or delay making its decision further, to allow him to sit more IELTS tests.
I have narrated above the evidence before the Tribunal in support of Mr Bandi’s application for delay, and I have extracted the Tribunal’s reasons for declining to further adjourn making its decision.
The Tribunal is directed by the Migration Act to provide “… a mechanism of review that is fair, just, economical, informal and quick” (see s.353(1)). When pursuing those objectives, it is given the express power in s.363(1)(b) to “adjourn the review from time to time”. If the Tribunal were not given such an express discretion, then, no doubt, an implied discretion to decide the timing of its decision would be found. Whatever its source, the discretion must be exercised consistently with the terms and objects of the legislation providing an avenue for merits review of decisions of the delegate of the Minister.
In the present case, I am unable to detect in paragraph 32 of the Tribunal’s statement of reasons, or elsewhere in the material before me, any error by the Tribunal in the exercise of its procedural discretion, allowing me to characterise either it, or its consequent substantive decision, as ultra vires. The Tribunal appears to have considered all the evidence and submissions made by Mr Bandi in support of further delays. The circumstances before the Tribunal certainly left it open to the Tribunal to decide that Mr Bandi had been given more than abundant opportunities to obtain successful test results. In my opinion, there is nothing irrational or unreasonable in the outcome of the exercise of the Tribunal’s decision.
I can therefore find no defect in the Tribunal’s decision not to adjourn, which would allow me to quash its substantive decision made on 20 January 2010.
I have considered all that Mr Bandi has said to me orally and in his written submission, but I have not been persuaded that I have power to make any order which would require the Tribunal to give him more time to present more IELTS test results to the Tribunal, so as to satisfy the criteria which he has not been able to satisfy before now.
For that reason, I must dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 May 2010
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