Berenguel v MIAC

[2009] HCATrans 228

[2009] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 2009

B e t w e e n -

MARCOS FLAVIO BERENGUEL

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

Application for an order to show cause

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 16 SEPTEMBER 2009, AT 9.29 AM

Copyright in the High Court of Australia

MR A. BONNICI:   May it please, your Honour, I appear on behalf of the plaintiff.  (instructed by S.V. Winter & Co)

MR R.C. KNOWLES:   If the Court pleases, I appear for the defendant.  (instructed by Clayton Utz)

HER HONOUR:   I have read the affidavit of Mr Berenguel sworn on 19 June 2009 and I note that that affidavit contains an explanation as to why an extension of time is now sought.  I am assuming there is no objection to that affidavit. 

MR KNOWLES:   There is no objection to the affidavit, no.

HER HONOUR:   I have also read the affidavit of Ms Bosnjak sworn 9 September 2009 in support of the defendant’s summons.  Can I make an inquiry of you, please, Mr Knowles, just before we start?  Has there been any application for special leave in the Kamal Case?

MR KNOWLES:   As I understand it, the last time I inquired about that it was still the subject of some consideration.

HER HONOUR:   Yes.  Well, time has not yet passed.

MR KNOWLES:   The decision was, I think, handed down on 21 August this year.  I am not sure whether or not time has passed.  I am not sure about the precise date of the Full Federal Court decision.

HER HONOUR:   Not sure about the status, yes.

MR KNOWLES:   So I am unable to assist your Honour in that regard.

HER HONOUR:  In order to accede to your application I would have to accept, would I not, that the argument that was lost in Kamal by the Minister should apply in this situation to this regulation.

MR KNOWLES:   Not necessarily, your Honour, on the basis of what is set out in the submissions that have been filed and served.

HER HONOUR:   I understand what has been put about it, but reduced to essentials, that is the argument that is floating around – not explicitly stated in the application as yet, and I am going to ask Mr Bonnici about that, but it seems to me that it is the same argument.  It is a short point of statutory construction in relation to what the “verbal formula” means, whether it means “within two years” or whether it means “no later than two years”.  So I will ask Mr Bonnici about that and whether he wants to pursue the point.

MR KNOWLES:   The only thing I would say about that, your Honour, is that, as your Honour will no doubt have seen in the submissions filed on behalf of the defendant, irrespective of Kamal it said, this case is completely different because it expressly relates to “time of application” criteria as opposed to “time of decision” criteria which were relevant in Kamal and perhaps I may come back to that.

HER HONOUR:   Yes.  I meant “no earlier than two years”, by the way, not “no later than two years”.

MR KNOWLES:   Yes, I understood it to be that, your Honour.

HER HONOUR:   I am sorry about that.  I have just realised I made a mistake there.  I will ask Mr Bonnici about what he wishes to do.

MR KNOWLES:   If your Honour pleases.

HER HONOUR:   Mr Bonnici, I am assuming you have had a chance to read the defendant’s submissions.  I do not know whether you have them there, but ‑ ‑ ‑

MR BONNICI:   Yes, I have them with me.

HER HONOUR:   Would you like to extract them for a moment.  I just wanted to take a point up with you about your application.

MR BONNICI:   Yes, your Honour.

HER HONOUR:   It is the defendant’s outline.

MR BONNICI:   I am sorry I was not here before you, your Honour.

HER HONOUR:   That is perfectly all right.  If you have that, Mr Bonnici, and if you look at paragraph 4.11 there is a reference there to the case of Kamal, a recently decided case in the Full Federal Court.

MR BONNICI:   Yes.

HER HONOUR:   It deals with a different regulation, but what needed to be dealt with – if you turn over the page you will notice at 4.13 that:

In Kamal, the applicant did not undertake an IELTS test before lodging his visa application or before the defendant’s delegate made a decision to refuse the grant of a student visa.  However, he successfully undertook such a test before the Migration Review Tribunal reached its decision.  The Tribunal found that the applicant could not satisfy the requirements of –

a particular regulation.  Now, it is 4.14 that is important, I think, for your purposes:

the Full Court stated that:

The appeal has been conducted on the basis that –

there were two possible constructions of the language of the particular item and the Minister contended that the phrase meant that a test had to be taken “within the period of two years” – you see that bolded up – and the applicant contended that the test had to be taken “no earlier than two years before the date of the application”.  That seemed to me the point that was floating around in your application but never expressly stated, that is to say, it is not stated that there was a jurisdictional error because the Tribunal found that the test had to be taken within the period of two years, whereas the regulation properly construed means that the test has to be taken no earlier than two years before.

MR BONNICI:   Yes.

HER HONOUR:   So as it presently stands, it might be said that the application contains no arguable point, but this point – I mean, Mr Knowles has obviously foreshadowed there would be an argument about whether the point is a good point or not, but it is an arguable point.  So I was just concerned to check with you whether you have an intention to amend the application to include the ground I am talking about.

MR BONNICI:   I certainly would, with respect, your Honour, because that is very crucial to our case.

HER HONOUR:   Well, that is right, otherwise that arguable point is not contained in the application.

MR BONNICI:   Yes.  The fact is, with respect, that Kamal came out long after ours.  We were going to argue that anyway.

HER HONOUR:   After your papers were prepared?

MR BONNICI:   Yes.  So that is an issue that is very much in the – that I was going to address your Honour today because it is crucial to us.

HER HONOUR:   Yes.  It struck me that the case is a case which might be referred to the Full Court either under rule 23.03.3 or, if the parties

co‑operate, it could be referred to the Full Court under the special case procedure under rule 27 because there is only really one question of law involved. 

MR BONNICI:   That is so.

HER HONOUR:   It is a short point.  It would probably take no more than half a day, but to get your papers in order it would be necessary to have the application amended and then have a degree of co‑operation between yourself and the Minister if we go the special case route to raise the question of law that was raised in Kamal.

MR BONNICI:   Yes.

HER HONOUR:   If there is special leave granted in Kamal if it is applied for, I dare say the appropriate course would be for the matters to be heard together, possibly because of the similarities in relation to the argument, even though the regulations are slightly different.

MR BONNICI:   As far as I am concerned, your Honour, this is a déjà vu case in the case of Bodruddaza where we were second to them and we were ‑ ‑ ‑

HER HONOUR:   Bodruddaza, of course, got referred on a special case.

MR BONNICI:   That is right and I had a case on similar lines which – there were discussions as to whether the High Court would hear the two cases together so it is a ‑ ‑ ‑

HER HONOUR:   Yes.  Well, I will just ask Mr Knowles about what I have been discussing with you.

MR BONNICI:   Yes, your Honour.

HER HONOUR:   It does seem to me, Mr Knowles, that there is a point not explicitly raised in the application which ought to be raised.  It does seem to me to be an arguable point.  I understand there are arguments either way, obviously, from your outline of submissions, but it seems to me an appropriate point – it is a short question of law to be referred to a Full Court and perhaps the most desirable way for that to be done is under the special case procedure.  I understand there are no contests about the facts.

MR KNOWLES:   There are no contests about the facts.  The visa application was made in April 2008 and the relevant English language test was conducted in May and the results were provided to the Department in June 2008.

HER HONOUR:   Yes, and no contest about any of that chronology.

MR KNOWLES:   In that context, it is my submission that this particular case, irrespective of what the position may be in Kamal or other cases, in this particular case having regard to the relevant legislative framework here, it cannot possibly succeed.  The basis for that is set out in the outline of submissions, but essentially it is because as at the time of the visa application the applicant, or in this case the plaintiff, was required to meet certain criteria as at that time.

HER HONOUR:   I understand that, but that is all adopting a particular approach to the relevant regulation and the meaning of the relevant regulation.

MR KNOWLES:   In my respectful submission, your Honour, even if Kamal is completely correct, it still would not do anything to save the plaintiff’s position in the present case. 

HER HONOUR:   I understand there is not a complete identity between Kamal and this case.  I understand the point about the difference in relation to the time issue.  I understand there is a factual difference there, but it seems to me that the point which is sought to be raised in the application is the same particular point.  It is the same point about whether or not regulation 1.15B(5) means that the test must be taken “within the period of two years” before the date of the application or whether it can be taken “no earlier than two years” before the date so that it can be taken after the application.  It is a very short point of statutory construction of that particular regulation.

MR KNOWLES:   Yes. I accept that, your Honour, in relation to that particular regulation. The difficulty, in my respectful submission, that arises for the plaintiff in this case is that that particular regulation has to be considered in light of the visa criterion that is found in clause 885.213 of the relevant part of Schedule 2 to the Migration Regulations. That particular clause is actually set out – if I can take your Honour – there is a folder of materials that I was intending to hand up to your Honour, but I think in this instance it is actually set out in the outline of submissions. It is referred to in paragraph 3.23 of the submissions. I do not know if your Honour received a list of authorities that was filed by the defendant ‑ ‑ ‑

HER HONOUR:   Yes.

MR KNOWLES:   The materials that are listed there are contained in a folder and I could provide that folder to your Honour if it would assist your Honour in relation to this particular point that I would seek to make.

HER HONOUR:   Yes.

MR KNOWLES:   I understand there is a copy that can be provided to my learned friend as well in relation to just following through the particular legislative provisions.  It is really a brief point, in my submission, and if it goes nowhere I will not take it any further.

HER HONOUR:   No, I think raise the point.  I mean, one course of action may be to adjourn this matter for a short period, perhaps 28 days or something of that sort to give Mr Bonnici an opportunity to consider the points you are raising, the point he wants to raise, which is not yet apparent on the face of his application and just take the matter on from there.

MR KNOWLES:   Yes.

HER HONOUR:   All that he needs to establish for his purposes, subject of course to arguments about an extension of time, is an arguable case.

MR KNOWLES:   And I totally accept that, your Honour.

HER HONOUR:   Yes.  I understand that on the argument about the statutory construction issue you will be making the points you are now making.  You are making them in advance, if you like.

MR KNOWLES:   Yes.  That was why, in this case, an outline of submissions was provided so that there was at least some notice provided.

HER HONOUR:   Yes.  If I may say so, I think it was very proper for the Minister to raise Kamal’s Case and the point of construction against the Minister, as it were, that was possibly available.  I think that has been very proper and, of course, has alerted Mr Bonnici to deficiencies in the current application if he wishes to raise that point.

MR KNOWLES:   Yes. I do not know whether it would assist your Honour if I could briefly go to that relevant clause in Schedule 2 to the Migration Regulations.

HER HONOUR:   Yes, by all means.  I do not wish to hinder you from doing that.

MR KNOWLES:   I have a folder of materials here and I understand there is a copy for Mr Bonnici as well.  In relation to the relevant provision that I was intending to take your Honour to, that is clause 885.213, it is relevantly found behind tab 3.

HER HONOUR:   Yes, I have that.

MR KNOWLES:   If your Honour goes firstly behind tab 3 to page 197 appears in the bottom right‑hand corner, and there your Honour will see the part of Schedule 2 that relates to subclass 885, which was the visa which was applied for by the plaintiff in the present case.

HER HONOUR:   Yes.

MR KNOWLES:   If your Honour turns over the page, your Honour will see there Division 885.2 setting out the “Primary criteria” and then subdivision 885.21 setting out the “Criteria to be satisfied at time of application”.  Now, this is what is vitally important in this case and what, in my submission, will distinguish it from Kamal.

If your Honour then proceeds to the next page which has 199 in the bottom right‑hand corner, your Honour will see the relevant clause, 885.213, towards the top of the page and your Honour will see that it is split into two paragraphs, (a) and (b), but essentially what is required is that a visa applicant either has “vocational English” or “has competent English” and this is as at the time of the visa application.  In my submission, that bears heavily upon how regulation 1.15B applies in the present case because the relevant requirement is that the person has vocational English or competent English as at the time of making the visa application.  Then, if your Honour turns back to the top of the ‑ ‑ ‑

HER HONOUR:   There could be an argument, could there not, that if an English test is sat one day later after the application, that would demonstrate competent English or vocational English as at the date of the application.  I am just raising a hypothetical issue with you.

MR KNOWLES:   The way that the regulations are structured, in my respectful submission, your Honour, is that the primary criteria are generally divided into two types:  firstly, the criteria that must be satisfied as at the time of actually making the visa application, that is when the visa application is lodged certain requirements must be met; then secondly, there are criteria that apply as at the time of the decision that is made in respect of the visa application so they are completely different to the first set of criteria, in my submission.  Those latter criteria are the types that were found in the case of Kamal, whereas in this case, what one is dealing with is a visa criterion that was required to be satisfied as at the time of making the actual application itself.

HER HONOUR:   As distinct from the time of the decision.

MR KNOWLES:   Yes, your Honour.

HER HONOUR:   So that is the major distinction you make, as I understand it from your submissions.

MR KNOWLES:   That is the entire point, irrespective of Kamal.

HER HONOUR:   That is the entire point, yes.

MR KNOWLES:   In that regard, the undisputed facts that your Honour has already referred to are such that as at the time of the application there had been no test which had been conducted and on that basis, as at the time of the application, the applicant did not have vocational English or competent English within the meaning of those provisions that are found in regulations 1.15B and 1.15C of the Migration Regulations.

I understand your Honour’s point that yes, 1.15B is couched in slightly different wording, it has a slightly different verbal formula to that which is found in Schedule 5A and which was considered in Kamal.  That is not what the defendant relies upon here.  That is not really the issue.  The defendant could, for the sake of the argument in this case, accept that they were to be construed identically, although I am not saying that to prejudice anything that might subsequently be said in any special leave application in Kamal or at some later stage elsewhere, but the point is in this particular application before your Honour, it might be said those two provisions are substantially the same.  It would not matter, in my submission, on the basis that unlike the situation in Kamal, this case purely relates to a visa criterion that needed to be met as at the time of lodging the visa application itself.

Perhaps if I could briefly go back to regulation 1.15B, which is at the top of that bundle under tab 3 in the folder.  Your Honour has already referred to this provision and, in particular, sub‑regulation 1.15B(5) which is the only sub‑regulation which is relevant in the present case because, as is indicated in the outline of submissions, in this case the plaintiff was a person who was applying for a general skilled migration visa, which is a visa which includes an application for a visa of subclass 885.  If one looks at sub‑regulation (5) through the prism of what I have just taken your Honour to in Part 885 of the regulations, in my submission, it is quite clear that there was no other result that could have arisen in the present case.

HER HONOUR:   Does not the same problem arise in relation to (5), to which you have just directed my attention, because the verbal formula there is “not more than 2 years before the day on which the application was lodged”?

MR KNOWLES:   Yes.

HER HONOUR:   The same arguments arise whatever the verbal formula is, as to whether that means within the period before the date of the application or whether it means no earlier than that date.

MR KNOWLES:   Yes, I understand that.

HER HONOUR:   It is the same problem, really.

MR KNOWLES:   The difficulty is that if one looks at “time of decision” criteria, one could not seek to satisfy a “time of decision” criterion after the decision had been made.

HER HONOUR:   No, I understand that.

MR KNOWLES:   And “time of application” criteria, in my submission, the same situation applies, that one could not seek to satisfy “time of application” criteria after the application had been made.  In this regard, if one thinks about it in terms of “time of application” criteria, what is required by sub‑regulation (5) – and it could apply to either situation.  It is couched in terms where it could apply to the person satisfying the Minister as at the time of application or as at the time of the decision.  In this case, though, the person, being the plaintiff, had to satisfy the Minister or the Minister’s delegate as at the time of application, such that the plaintiff had achieved in a test conducted not more than two years before the day on which the application was lodged the relevant test score.

Now, I accept what your Honour says about Kamal and that might mean any time from two years before the application up to the relevant time that the criterion is being assessed.  So one does not have regard to the words “the day on which the application was lodged”, but one still needs to have a cut off at the point in time when the criterion is being assessed, which in this case was at the time of the visa application being lodged.

HER HONOUR:   I think, even under (5) there is the argument that not more than two years before the day means “no earlier than”.

MR KNOWLES:   I accept that.

HER HONOUR:   We just go round and round in circles, I think, do we not?

MR KNOWLES:   I am sorry, your Honour.

HER HONOUR:   I mean, I am not saying anything more to you other than there is an arguable point about the construction. 

MR KNOWLES:   Yes.

HER HONOUR:   I understand the distinctions and I am grateful for the exercise you have gone through.  I have no doubt Mr Bonnici is grateful for it too, but there is this arguable short point of statutory construction and the Minister’s construction may be preferred at the end of the day.

MR KNOWLES:   Yes.  As I say, in my submission, it does not come back to construing what regulation 1.15B means so much as the fact that it needs to be considered ‑ ‑ ‑

HER HONOUR:   In context which includes 885.213.

MR KNOWLES:   Yes, your Honour.  Perhaps, just to indicate the comparison, if your Honour goes, in the bundle under tab 3 in the regulations, to page 234 and your Honour will see there ‑ ‑ ‑

MR BONNICI:   With respect, your Honour, at some stage may I butt in ‑ ‑ ‑

HER HONOUR:   In due course.

MR KNOWLES:   I do not intend to take the Court’s time much longer.  I am conscious of the fact that this is one of many matters that your Honour ‑ ‑ ‑

HER HONOUR:   You are really seeking to address on the point that this could be summarily dismissed.

MR KNOWLES:   Yes, your Honour, and that no extension of time should be permitted.

HER HONOUR:   Granted, yes.

MR KNOWLES:   I should just say, your Honour, at the commencement your Honour referred to there being a summons, I think, filed by the defendant.  The defendant has not actually filed a summons.  The position, your Honour, is simply that the defendant resists any application for an extension or enlargement of time.  That is really the position.  So there was no need, in those circumstances, for a summons to be proactively instituted.

HER HONOUR:   Yes.  Well, I apologise for that.

MR KNOWLES:   No, your Honour, I was just stating it for the record really.  But just in relation to the page that I was intending to take your Honour to which is ‑ ‑ ‑

HER HONOUR:   Page 234.

MR KNOWLES:   Yes, and it is Part 572, which deals with subclass 572 which is subclass of student visa.  Your Honour will see that this is the visa subclass that was considered in Kamal by the Full Federal Court.  Importantly, your Honour will also see over the page at 235 under the “Primary criteria” and more particularly the “Criteria to be satisfied at time of application”, if one goes through those criteria it is apparent that there is no English language visa criterion as at the time of application in this context.  The only English language visa criterion that applied in this context was that under the heading “Criteria to be satisfied at time of decision” which is found at page 237 and the relevant criterion begins at page 238 and the reference to “English language proficiency” is at the top of page 239.

That is, in my submission, a fatal point of distinction between Kamal and the present case.  In the circumstances, it is submitted that this case irrespective of the correctness or otherwise of Kamal could not succeed.  Beyond that, your Honour, I rely on what is said in the written submissions and if I cannot take the matter any further, I will not.  But I am grateful to your Honour’s allowing me to make those submissions.

HER HONOUR:   What do you say to the suggestion I have raised that if Mr Bonnici did amend the application and I took the view there was an arguable point, that the matter proceed by way of a very simple special case under rule 27.

MR KNOWLES:   Yes.  I do not have instructions about that, but I cannot see any reason why that would not be an appropriate course if your Honour were not minded to deal with the matter summarily.

HER HONOUR:   Yes, thank you for that.  Yes, Mr Bonnici.

MR BONNICI:   There is one matter, with respect, your Honour, that when the applicant filed his application in the application itself – page 14 of the application – I was trying to find it a minute ago, I have not found it as yet – but in there there is a question if you have booked for a test to give the date as to when the test will be taking place, or something to that effect.  In other words, when the application was filed, the applicant, or the plaintiff in this

case, has in fact stated in that application that he had applied for IELTS test and that they had given him a date.

HER HONOUR:   I think he applied in February.  They gave him a date in May.

MR BONNICI:   In May, and in the application itself he states that he was given a date in May to sit for the test.  So, in actual fact, I do not know how much that will influence but that will also be part of my argument that, in fact, knowledge.  It is, of course, the respondent who has prepared, who has had the forms, authorised the forms that the plaintiff has used.  That is a matter of some relevance, with respect.  Thank you, your Honour.

HER HONOUR:   Yes.

I am satisfied on the material before me that the extension of time sought should be granted in the interests of justice pursuant to the provisions of section 486A(2) of the Migration Act.  The plaintiff has indicated a desire to amend the application to raise an arguable question on the construction of regulation 1.15B(5).  I will adjourn the further hearing of the plaintiff’s application to allow that to take place.  I would suggest a return date of 9.30 on 7 October 2009.  Does that meet the convenience of the parties?

MR BONNICI:   Yes, your Honour.

MR KNOWLES:   Yes, that will be suitable for me, your Honour.

HER HONOUR: All right. I direct the plaintiff to amend the application dated 29 June 2009 to include a ground of jurisdictional error arising out of the construction of regulation 1.15B(5) of the Migration Regulations 1994. Now, Mr Knowles, in those circumstances, allowing the adjournment for an amendment to occur, would there be anything wrong with directing today that there be a special case stated which could be considered on 7 October?

MR KNOWLES:   I do not see why not, your Honour.

HER HONOUR:   No, it seems to me that with a level of co‑operation, there will be a refinement of this single question of law, which can then be referred to the Full Court without any problems about factual disputes or anything of that order.

MR KNOWLES:   I have no doubt that it would be possible for the parties to come to some agreement about the facts in this case because I think they are relatively straightforward and uncontroversial.

HER HONOUR:   I think there is only one question of law.

MR KNOWLES:   Yes.  The difficulty is how it is necessarily going to be addressed because as I have attempted to indicate to your Honour, in my submission, it is not really the same question that arose in the case of Kamal.

HER HONOUR:   There may be two questions of law that ought to really arise.

MR KNOWLES:   Yes.

HER HONOUR:   I could direct accordingly in the plural.

MR KNOWLES:   Yes, if your Honour pleases.

HER HONOUR:   All right.  I further direct the parties to agree to state the questions of law arising in this proceeding in the form of a special case for the opinion of the Full Court pursuant to rule 27.08 on or before 4.00 pm on 5 October 2009.  Finally, I direct that the matter be listed before me at 9.30 on Wednesday, 7 October and costs are reserved.

MR KNOWLES:   If your Honour pleases.

MR BONNICI:   I am indebted to your Honour.

HER HONOUR:   Thank you, Mr Bonnici.

AT 10.04 AM THE MATTER WAS ADJOURNED