Brar v Minister for Immigration

[2017] FCCA 2440

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2440

Catchwords:
MIGRATION – Application for temporary graduate visa – judicial review – show cause hearing – the Applicant did not achieve the requisite International English Language Testing System (“IELTS”) scores pursuant to cl.485.212 of sch.2 to the Migration Regulations 1994 (Cth) – held no arguable case – application dismissed – order for costs.

Legislation:

Migration Act 1958 (Cth), ss.359A, 360, 360A, 476

Migration Regulations 1994 (Cth), sch.2, cl.485.212
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: PAWANPREET SINGH  BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2440 of 2016

Judgment of: Judge Jones

Hearing date: 19 September 2017

Date of Last Submission: 19 September 2017

Delivered at: Melbourne

Delivered on: 19 September 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms Wylde of Clayton Utz

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application for judicial review filed on 9 November 2016 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2440 of 2016

PAWANPREET SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The First Respondent, the Minister for Immigration and Border Protection (“the Minister”) has applied for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules2001 (Cth) (“the FCC Rules”), on the basis that the application for judicial review filed by the Applicant on 9 November 2016 has not raised an arguable case for the relief claimed. The Minister seeks an order that the proceeding should therefore be dismissed.

2. The application filed by the Applicant on 9 November 2016 seeks judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) of an oral decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 November 2016, and subsequent written record of the decision dated 28 November 2016, affirming a decision of a delegate of the Minister dated 16 February 2016 refusing to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa (“the visa”).

3. The Applicant is a citizen of India. On 1 September 2015, the Applicant applied for the visa (CB 1-55). His application stated that he had completed an International English Language Testing System (“IELTS”) test on 2 October 2014 (CB 5).

4. On 25 November 2015, and subsequently on 5 January 2016, the Department of Immigration and Border Protection (“the Department”) requested, amongst other things, evidence of the Applicant’s English language ability (CB 61-73). The Department received no response from the Applicant.

5. On 16 February 2016, the Applicant was notified of the delegate’s decision to refuse his application for the visa, on the basis that there was no satisfactory evidence of his English language ability had been provided. The delegate found that the Applicant therefore did not satisfy cl.485.212 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 74-83).

6. The delegate clearly set out the specific requirements under cl.485.212 of sch.2 to the Regulations in her decision record (CB 81-82).

The Tribunal’s decision

1. The Applicant, represented by a migration agent at the time, applied to the Tribunal for merits review of the delegate’s decision. His application attached a copy of the delegate’s decision (CB 84-94).

2. On 5 October 2016, the Applicant was invited to attend a hearing before the Tribunal on 7 November 2016 (CB 106-109).

3. On 7 November 2016 at the Tribunal hearing, the Tribunal made an oral decision affirming the decision under review and gave the reasons for its decision (CB 133). In the letter sent to the Applicant that attached the oral decision outcome, the Tribunal informed the Applicant that within 14 days and in writing, he may request for the written record of the decision and reasons be provided (CB 127-133). The Applicant did not make a request for the written record.

4. After the judicial review application was filed by the Applicant, the Department requested a written record of the Tribunal decision which was prepared on 28 November 2016 (CB 137-139).

5. In its written record of decision, the Tribunal set out the relevant background and law (CB 138 at [1]-[6]), identified the issue for determination as being whether the Applicant satisfied cl.485.212 of sch.2 to the Regulations (CB 138 at [7]) and found, having verified the Applicant’s evidence with him at the Tribunal hearing, that the Applicant had not achieved the required score in an English language test (CB 139 at [12]-[13]).

6. Accordingly, the Tribunal found that the Applicant did not satisfy cl.485.212(a) of sch.2 to the Regulations and affirmed the decision under review (CB 139 at [14]-[15]).

7. Clause 485.212 of sch.2 to the Regulations provides as follows:

   485.212 The application was accompanied by evidence that:

   (a)  the applicant:

   (i)  has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii)  has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

8. At the time of the Tribunal’s decision, the relevant legislative instruments was IMMI 15/062. That instrument relevantly required that the Applicant:

   a)undertake an IELTS test and achieve a minimum overall score of six (with a minimum score of five in each of the English test components) within the three year period immediately prior to the visa application being made (cl.485.212(a) of sch.2 to the Regulations); or

   b)hold a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland (cl.485.212(b) of sch.2 to the Regulations).

9. In his application for the visa, the Applicant stated that he had undertaken an IELTS test on 2 October 2015. The Department’s records indicated that the score of the Applicant did not meet the particular requirements. Consequently, the only option available to the Tribunal was to find that the Applicant did not meet cl.485.212(a) of sch.2 to the Regulations. There was no other available consideration for the Tribunal; this is a mandatory criterion.

Judicial review

1. The Applicant was self-represented today. Accordingly, I commenced the proceedings by explaining to him, firstly, the nature of a judicial review at the stage of final hearing. I explained, in particular that the Court’s function is to decide whether, by reason of the conduct of the Tribunal or the decision of the Tribunal, the Tribunal had engaged in jurisdictional error (or in other words, a serious legal mistake).

2. I then explained to the Applicant that the hearing today was not a final hearing. I explained that the Minister had applied under the FCC Rules for a show cause hearing; explaining that it is essentially a hearing in which the Court must decide whether the Applicant has an arguable case. I indicated that the Minister says that the Applicant does not have an arguable case and, consequently, that his application should be dismissed. I confirmed with the Applicant that he understood.

3. The Applicant has specified nine grounds of review in his application for judicial review filed on 9 November 2016.

4. The first six grounds are as follows:

   1. I came to Australia on student visa 23^rd Dec 2008 for higher education and I was enrolled at Acedmia College in Melbourne City to study Hairdressing studies.

   2. I finished my studies where I was enrolled and lodged my paper Temporary Graduate Work Stream (VC 485) on 31.

   3. In support of my English language ability, you gave details of an International English Testing System (IELTS), Transaction Reference Number (TRN) [omitted].

   4. DIB P has advised that I haven’t achieved the specified score in an acceptable English test within the 3 years immediately before the day on which the application was made, you do not satisfy regulation 484.212(a)(ii).

   5. As the application has been assessed as not meeting the requirements of clause 485.212, I have not assessed the application further against the requirements of this subclass.

   6. I made an application to the AAT for review of this matter and AAT has affirmed the decision by DIBP.

5. The first six grounds of review are essentially a narration of background matters. I asked the Applicant whether this was a correct characterisation of grounds one to six of his application for judicial review, and he agreed that they were.

6. Ground seven of the Applicant’s application for judicial review is as follows:

   7. I believe I haven’t been given fair chance to submit a new English language result to meet the criteria.

7. At the hearing, I asked the Applicant what he meant by this ground. The Applicant said that prior to making the application, he was not fully aware of the requirements for the visa and that, if given a chance to complete or sit an IELTS test, he was confident that he would meet the requisite scores on each component and overall.

8. Ground eight of the Application for judicial review is as follows:

   8. I have ability to score a required English language requirement and would like to appeal to FCC to provide me with a chance to provide a new result.

9. The Applicant submitted to the Court that the reasons on which this ground was based were the same as for ground seven; that is, the Applicant was not aware of the requirements for the visa and he wanted the Court to give him a chance to sit the IELTS test again.

10. The final ground of the Applicant’s application for judicial review is:

    9. I wish to make an application for review for with Federal Circuit Court to seek new orders to set aside the decision made by ATT, and so that my application gets approved.  I believe I have been treated unfairly and wish to seek justice from Australian Courts and judiciary system.

11. At the hearing, I asked the Applicant why he said that he believed he had been treated unfairly. The Applicant’s submission was that the Tribunal did not give him a second chance to sit the IELTS test.

12. The Applicant has properly informed the Court today that he understands that the requirement of successfully completing the IELTS test within three years prior to making an application for the visa is a mandatory criterion. The Applicant today said that he understands that he had not achieved the required IELTS score in the three-year period prior to his application for the visa.

13. The Tribunal’s conclusion was based on evidence that the Applicant did not meet the requisite IELTS scores from the Department’s verification of the Applicant’s IELTS test results, which was contained in the delegate’s decision record. The delegate’s decision record was provided by the Applicant to the Tribunal in his application for merits review.

14. At the hearing, the Applicant further gave his own evidence was that he had not achieved the required IELTS score for the test that he undertook on 2 October 2014.

15. Although not raised directly by the Applicant, his grounds of review do raise an issue of whether he was accorded procedural fairness by the Tribunal.

16. I am satisfied that the Applicant was invited in accordance with ss.360 and 360A of the Act (CB 105-116). I am satisfied that the Applicant was on sufficient notice of the issues arising in relation to the decision under review, as the invitation relevantly states (CB 108):

    We note that to date you have not presented evidence that you meet the English language standard for the visa.  How you can show you need to meet the English standard is set out below.

17. The invitation then sets out various ways in which that English standard can be met (CB 108). In particular, the invitation identified the “specified English language tests and scores” as being an IELTS result with a minimum overall score of six, and a minimum score of five for each of the four test components of listening, reading, speaking and writing.

18. The invitation clearly states that the specified language test must have been undertaken within three years before the day on which the visa application was made.

19. Therefore, I am satisfied that the Applicant was clearly on notice about the matters that would be dispositive to his merits review application before the Tribunal.

20. Further, I agree with the Minister’s submission that the Tribunal was not required under the Act to put to the Applicant “information” that was adverse to his interest. This is because it fell within the exception of sub-s.359A(4)(b) of the Act, as it was information the Applicant gave to the Tribunal for the purpose of the application for merits review.

21. The Applicant relies on the fact he was not aware of the criteria for the grant of the visa, referring to the English language requirements. It is the responsibility of the Applicant to be aware of the requirements, and in any event, it is a mandatory requirement. It is unfortunate that the Applicant was not aware of the requirement; however his awareness of the requirement would not have affected the outcome of the decision of the Tribunal.

22. I am satisfied that the Applicant was accorded procedural fairness.

23. Even if I had found that there was procedural unfairness in the way the Tribunal conducted itself or treated the Applicant (which I do not), I would not exercise my discretion to remit the matter to the Tribunal. The Applicant could never meet the requirements for the grant of the visa, as he was required to complete a successful IELTS test in the three years prior to the application for the visa. It would make no difference if he completed the test subsequently.

24. I am satisfied that the Tribunal correctly applied cl.485.212 of sch.2 to the Regulations (set out in full above at [13]). There is no dispute that the Applicant did not successfully complete an IELTS test within three years before his application for the visa.

25. Given that the Applicant did not achieve the required English language scores, it was not necessary for the Tribunal to consider whether the Applicant holds a valid passport issued by one of the countries specified in a ministerial instrument. The only option available to the Tribunal was to find that the Applicant did not satisfy cl.485.212 of sch.2 to the Regulations, as it is a mandatory requirement for the grant of the visa.

26. Consequently, the Tribunal’s decision does not disclose jurisdictional error.

Conclusion

1. I am satiated that the Applicant’s case is not arguable.

2. I will make an order that the Applicant’s application for judicial review filed on 9 November 2016 be dismissed pursuant to sub-r.44.12(1)(a) of the FCC Rules.

3. The Minister is seeking costs in accordance with the Federal Circuit Court scale. I will make an order requiring the Applicant to pay the Minister’s costs in the fixed amount of $3,606.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:  Vanessa Bacchetti

Date:  10 October 2017