Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 732
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 732
File number: MLG 2109 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 18 August 2023 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the first applicant’s completed study towards his Certificate IV qualification – whether the Tribunal ought to have asked the first applicant to provide evidence in relation to a recognised English test – whether the conduct of the applicants’ representative amounted to a fraud on the Tribunal – typographical error in Tribunal decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 359AA, 476 and Part 5
Migration Regulations 1994 (Cth), cll 500.213 & 500.311 in Schedule 2
Cases cited: Attorney General (NSW) v Quin (1990) 170 CLR 1
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 8 August 2023 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms C Mumford Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2109 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHIVA CHAUDHARY
First Applicant
GARIMA SHRESTHA CHAUDHARY
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first and second applicants are both citizens of Nepal (Court Book (“CB”) 12-14). They are husband and wife respectively (CB 13-15).
The first applicant arrived in Australia in August 2014 as the holder of a student visa (CB 118 & 130). The second applicant arrived later (in 2016) as a dependent family member on that student visa (CB 130).
On 30 August 2017, the first applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 11-29). With that visa application, the applicants also provided various supporting documents. These documents included financial information, Overseas Student Confirmation-of-Enrolment documents (“CoEs”), confirmation of overseas health cover, confirmation of the first applicant’s enrolment in full-time study with Acknowledge Education, identity and marriage documents, an ELICOS Statement of Results and a Genuine Temporary Entrant Statement (signed by the first applicant and dated 29 August 2017) (the “GTE statement”) (CB 30-53). In his visa application, the first applicant nominated a migration agent to act as his authorised recipient (the “representative”) (CB 17-18).
On 1 November 2017, the then Department of Immigration and Border Protection (the “Department”) asked the first applicant to provide more information in relation to the visa application (CB 56-63). Relevantly, the Department asked the first applicant to provide evidence of his English language proficiency, explaining as follows (CB 62):
You are required to provide evidence of your English language proficiency to achieve the relevant English language test score.
…
The English test must have been taken two years immediately before the date of Student visa application is made or two year immediately before a decision is made on the application.
Or
If you fall into one of the following student categories, you are exempt from providing an English test score as evidence of English language proficiency:
•students who have completed at least five years’ study in English in one or more of the following countries: Australia, UK, USA, Canada, New Zealand, South Africa, or the Republic of Ireland
•students who have completed in Australia, the Senior Secondary Certificate of Education in the English language, in the two years before applying for this Student visa
•in the two years before applying for this Student visa, completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at Certificate IV or higher level, while holding a Student visa.
On 27 November 2017, the first applicant provided the Department with an email confirming a booking for a “PTE-A Pearson Test of English Academic” scheduled on 11 December 2017 (CB 64-68).
The first applicant also provided a copy of the PTE Academic Test Taker Score Report (dated 11 December 2017) with an overall score of 37 (CB 69).
On 9 January 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 76-79). The delegate was not satisfied that the first applicant met cl 500.213 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the first applicant met the English language proficiency requirement for the grant of the visa (CB 77). The delegate also found that the second applicant had not met cl 500.311 in Schedule 2 of the Regulations (CB 78-79).
On 18 January 2018, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 80-82). The applicants again appointed their representative to act on their behalf in relation to the Tribunal review (CB 81-83).
On 19 January 2018, the Tribunal asked the applicants’ representative to provide information that the first applicant met the English language requirements for the grant of the visa (CB 89).
No response was provided by or on behalf of the applicants.
The Tribunal obtained and reviewed the first applicant’s Provider Registration and International Student Management System (“PRISMS”) records (CB 90-97).
On 18 March 2019, the Tribunal invited the applicants to provide information in relation to their review application (CB 98-100). In particular, the Tribunal requested “information about courses that [the first applicant had] successfully completed while studying in Australia” (CB 100). The applicants were required to provide that information to the Tribunal by 1 April 2019.
On 29 March 2019, the applicants’ representative requested (and was granted) an extension of time of seven days within which to respond to that invitation (CB 101-105).
The applicants’ representative provided the Tribunal with a “Letter of Confirmation” from Acknowledge Education (dated 29 March 2019) confirming that the first applicant was enrolled in an Advanced Diploma of Business. The letter noted that the course had commenced on 24 September 2018 and that the first applicant had “successfully completed 1%” of that course (CB 106).
On 23 April 2019, the Tribunal invited the applicants (through their representative) to attend a hearing before it on 21 May 2019 (CB 107-110).
The first applicant appeared at the Tribunal hearing on 21 May 2019 (CB 121-124). He provided the Tribunal with a copy of his passport (CB 116-120). The second applicant did not attend that hearing. Nor did the applicants’ representative (CB 121).
On 30 May 2019, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 129-134).
On 3 July 2019, the applicants applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). The first applicant swore and filed an affidavit in support of the applicants’ judicial review application, annexing a copy of the Tribunal’s decision (CB 8-10).
THE TRIBUNAL’S DECISION
The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. In the circumstances, it is useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is six pages in length and spans 26 paragraphs. The final two pages contain extracts from the relevant legislative instrument which specify the relevant English language requirements for the grant of the visa (CB 133-134).
The Tribunal began by detailing the visa review application before it, noting that the applicants had applied for the visas on 30 August 2017, a delegate of the Minister had refused to grant the applicants those visas on 9 January 2018 and the reasons for the visa refusals. The Tribunal also detailed the applicants’ migration history and the first applicant’s study history in Australia (at [1]-[5]).
The Tribunal explained that it had sought information from the first applicant (pursuant to s 359(2) of the Act) about any courses that he had completed. The Tribunal noted that it had received evidence (from the applicants’ representative) that the first applicant was enrolled in an Advanced Diploma of Business (from 24 September 2018 to 20 September 2019) at Stott’s College (at [7]).
The Tribunal confirmed that the first applicant appeared before it on 21 May 2019 to give evidence and present arguments. The Tribunal also noted that, while the applicants were assisted in their review by a migration agent, that representative did not attend the Tribunal hearing (at [8]-[9]).
The Tribunal identified that the issue in this matter was whether the first applicant satisfied the English language proficiency requirements for the grant of the visa and outlined those requirements (in particular, the requirement to have a level of English proficiency to meet cl 500.213 in Schedule 2 of the Regulations unless an applicant was within a class specified within the relevant legislative instrument) (at [11]-[12]).
The Tribunal noted that the first applicant had confirmed that he understood the delegate’s decision and understood that his English language test did not demonstrate the level of English required for the grant of the visa (at [13]).
The Tribunal then explained that it had discussed the first applicant’s PRISMS records with him at the Tribunal hearing and had emphasised his lack of academic progress. The Tribunal noted that the first applicant confirmed that he had not obtained any qualifications in Australia but did not attribute his lack of success to inadequate English. Instead, the first applicant claimed that his course providers would not grant him extensions of time to complete assessments or resubmit failed assessments (at [14]-[15]).
The Tribunal continued:
16.As noted, no claim was made by the applicant that he met any of the exceptions in the Instrument. The only exemption relevant to the circumstances of the applicant is cl.2(d)(ii). The Tribunal explored with the applicant whether he met cl.2(d)(ii) of the Instrument: whether might be exempt from the English proficiency requirement because in the two years before applying for the visa (between 30 August 2015 and 30 August 2017) he had successfully completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa.
17.The Tribunal put to the applicant that his PRISMS records indicate that he was enrolled in Bachelor of Commerce courses from 3 August 2015 to 30 June 2017; from 27 February 2017 to 31 December 2018; and from 22 February 2016 to 31 December 2017, and in a Diploma of Commerce course from 19 October 2015 to 31 December 2016, but that all of these enrolments were cancelled and there is no evidence that he had successfully completed any components of any of these courses. The Tribunal further put to the applicant that he enrolled in a Certificate IV level course (the Certificate IV in Commercial Cookery) from 31 July 2015, and that in his General Temporary Entrant statement provided to the Department dated 29 August 2017 he had written ‘I am now studying Certificate IV in commercial cookery from August 2017’, which showed that he was enrolled in this course for only one month or less than one month before the date of his visa application. The Tribunal put to the applicant that in any event, he had acknowledged that he had not successfully completed this course or any other course and had not been able to provide evidence that he had successfully completed a substantial component of any of the courses he was enrolled between 30 August 2015 and 30 August 2017.
18.The Tribunal advised the applicant, pursuant to s.359AA of the Act, that the information in his PRISMS record, along with his own acknowledgement that he could not provide evidence that he had successfully completed any of his enrolled courses, or a substantial component of any his enrolled courses at or above Certificate IV level in the relevant period, was information that would be the reason or a part of the reason for affirming the decision under review. The Tribunal advised the applicant that it was concerned that on the evidence before it, he did not meet the requirement under cl.500.213(3)(b) to be in a specified class of exempt people; he did not meet the English proficiency requirement; and therefore he could not meet a primary, mandatory criterion for the visa.
The Tribunal then explained that it told the first applicant that he could seek an adjournment to consider his response but noted that he did not do so. The Tribunal also noted that the first applicant had accepted that he had not meet the English language requirement for the grant of the visa but nonetheless stressed his wish to continue to study in Australia (at [19]).
The Tribunal explained that, because the first applicant was not “within a class of applicants specified in the [relevant] instrument”, the first applicant was required to provide evidence of English language proficiency in accordance with that instrument. The Tribunal also noted that the first applicant had not provided evidence of an English language test meeting the minimum requirements and did not claim to or provide evidence that he met any of the exceptions outlined in cl 2 of the instrument (at [20]-[22]).
The Tribunal was not satisfied that the first applicant met the requirements set out in cl 500.213 in Schedule 2 of the Regulations or that the second applicant met the requirements outlined in cl 500.311 in Schedule 2 of the Regulations (at [23]-[25]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (at [26]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 3 July 2019 contains one ground of review, as follows (without alteration):
1.The Tribunal did not consider that I had finished half of the certificate IV course and did meet the english requirement for my visa.
On 20 July 2022, procedural orders were made by Registrar van der Westhuizen of this Court transferring the matter to the Perth Registry of the Court and giving the applicants an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicants.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicants on 3 July 2019, a Court Book numbering 134 pages (marked as Exhibit 1), written submissions and a list of authorities filed on behalf of the Minister on 25 July 2023 and an affidavit of service of Centaine Alexandra Mumford affirmed on 31 July 2023 and filed on 1 August 2023 on behalf of the Minister.
The first applicant appeared before this Court on 8 August 2023 without legal assistance. An interpreter was made available to assist him but was ultimately not required as the first applicant indicated that he would address the Court in English. The Court is satisfied that the first applicant was able to communicate effectively with the Court and that no issue arose in this regard.
The Court confirmed with the first applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that he was not aware that he could provide his English test to the Tribunal and he believed this is why he was not granted the visa. The first applicant also stressed to the Court that the Tribunal should have told him that needed to provide an English test.
When asked if he was assisted by an agent or representative before the Tribunal, the first applicant told the Court that he was represented. However, that representative did not attend the Tribunal hearing (even though, the first applicant explained, the agent was asked to do so).
The first applicant also told the Court that he was “about a month” away from finishing some further studies and asked the Court to “hold off” making a decision – noting that, in the event that the decision was not “in his favour”, he would be unable to complete his studies. The first applicant also seemed to suggest that after completing these studies, he might look at other visa options. The Court explained to the applicant that it could not delay making a decision and could only consider matters relevant to the visa the subject of the review before this Court.
RELEVANT LEGISLATIVE PROVISIONS
In this matter, the Tribunal found that the first applicant had not met cl 500.213 in Schedule 2 of the Regulations. A the time of the Tribunal’s decision, cl 500.213 in Schedule 2 of the Regulations relevantly provided:
500.213
(1)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(2)Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).
(3) The Minister may, by legislative instrument, specify:
(a) requirements for the purposes of subclause (1); or
(b) a class of applicants to which subclause (1) does not apply.
The relevant instrument applicable at the time of the Tribunal’s decision was Instrument IMMI 16/019 (“IMMI 16/019”). IMMI 16/019 relevantly provided:
I, PETER DUTTON, Minister for Immigration and Border Protection, acting under subclause 500.213(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations):
1.SPECIFY for the purposes of paragraph 500.213(3)(a) of Schedule 2 to the Regulations:
a.the requirement to use one or more of the English language test providers listed in Schedule 1 to this Instrument; and
b.the requirement to achieve the relevant English language test score listed in Schedule 2 to this Instrument in a test provided by the relevant English language test provider mentioned in item 1 of this Instrument; and
c.countries, listed in Schedule 3 to this Instrument, where an applicant may take a Test of English as a Foreign Language (TOEFL) paper-based test; and
d. the maximum time periods in which an English test must be taken:
i.two years immediately before the date the application is made; or
ii.two years immediately before a decision is made on the application.
2.SPECIFY for the purposes of paragraph 500.213(3)(b) of Schedule 2 to the Regulations, classes of applicants to which subclause 500.213(1) of Schedule 2 to the Regulations does not apply, as stated in subclause 500.213(2) of Schedule 2 to the Regulations :
…
d.in the two years before applying for a Subclass 500 (Student) visa, an applicant has successfully completed:
i.the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia in English; or
ii.a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa; or
…
SCHEDULE 2
English test: Minimum test score: … 2. PTE 42; or
36, if packaged with at least 10 weeks’ ELICOS; or
30, if packaged with at least 20 weeks’ ELICOS.
…
Within this legislative context, the first applicant in this matter needed to satisfy the Tribunal that he had either obtained an overall PTE score of 42 or higher (noting that his test was not “packaged” with an ELICOS course) in the two years prior to the Tribunal’s decision or that he had completed a substantial component of a course at Certificate IV level or higher in the two years prior to applying for the visa.
CONSIDERATION
Ground of review
As outlined above, the applicants’ ground of review provides (without alteration):
1.The Tribunal did not consider that I had finished half of the certificate IV course and did meet the english requirement for my visa.
This ground fails on a factual level.
The Tribunal expressly considered the first applicant’s studies towards a Certificate IV in Commercial Cookery, as follows:
16.As noted, no claim was made by the applicant that he met any of the exceptions in the Instrument. The only exemption relevant to the circumstances of the applicant is cl.2(d)(ii). The Tribunal explored with the applicant whether he met cl.2(d)(ii) of the Instrument: whether might be exempt from the English proficiency requirement because in the two years before applying for the visa (between 30 August 2015 and 30 August 2017) he had successfully completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa.
17.The Tribunal put to the applicant that his PRISMS records indicate that he was enrolled in Bachelor of Commerce courses from 3 August 2015 to 30 June 2017; from 27 February 2017 to 31 December 2018; and from 22 February 2016 to 31 December 2017, and in a Diploma of Commerce course from 19 October 2015 to 31 December 2016, but that all of these enrolments were cancelled and there is no evidence that he had successfully completed any components of any of these courses. The Tribunal further put to the applicant that he enrolled in a Certificate IV level course (the Certificate IV in Commercial Cookery) from 31 July 2015, and that in his General Temporary Entrant statement provided to the Department dated 29 August 2017 he had written ‘I am now studying Certificate IV in commercial cookery from August 2017’, which showed that he was enrolled in this course for only one month or less than one month before the date of his visa application. The Tribunal put to the applicant that in any event, he had acknowledged that he had not successfully completed this course or any other course and had not been able to provide evidence that he had successfully completed a substantial component of any of the courses he was enrolled between 30 August 2015 and 30 August 2017.
18.The Tribunal advised the applicant, pursuant to s.359AA of the Act, that the information in his PRISMS record, along with his own acknowledgement that he could not provide evidence that he had successfully completed any of his enrolled courses, or a substantial component of any his enrolled courses at or above Certificate IV level in the relevant period, was information that would be the reason or a part of the reason for affirming the decision under review. The Tribunal advised the applicant that it was concerned that on the evidence before it, he did not meet the requirement under cl.500.213(3)(b) to be in a specified class of exempt people; he did not meet the English proficiency requirement; and therefore he could not meet a primary, mandatory criterion for the visa.
As outlined above, the first applicant was required to have completed a substantial component of the Certificate IV course in the two years prior to applying for the visa.
Here, the first applicant applied for the visa on 30 August 2017. As such, he needed to complete a substantial component of the Certificate IV in Commercial Cookery between 30 August 2015 and 30 August 2017 (that is, in the two years prior to the first applicant making that visa application).
The Tribunal considered (at [17] in its reasons and outlined above) evidence given by the first applicant in his GTE statement. The Court notes that in that GTE statement, the first applicant claimed to have commenced studying the Certificate IV course in August 2017. Relevantly, the first applicant stated (without alteration) (CB 46):
…I joined Stanley college in July 2016 and started studying Certificate III in commercial cookery in Perth. I completed my first phase of study and now studying Certificate IV in commercial cookery from August 2017.
The Tribunal considered that evidence, noting that the applicant appeared to have only been enrolled in the Certificate IV course for one month.
The Tribunal also reference the first applicant’s PRISMS records and noted that those records, together with the first applicant’s own evidence “that he could not provide evidence that he had successfully completed any of his enrolled courses, or a substantial component of any his enrolled courses at or above Certificate IV level in the relevant period”.
The Court notes that the PRISMS records relevantly provide that the first applicant actually started the Certificate IV in Commercial Cookery on 31 July 2017 and that the course ended on 26 January 2018. This also supports the Tribunal’s finding that that the first applicant had completed one month of study towards his Certificate IV prior to applying for the visa (that is, prior to 30 August 2017) and five months of study after applying for the visa (being the study completed after 30 August 2017).
Whilst there is no definition of what might constitute completion of a “substantial component” of a course, the Court notes that here, the first applicant had completed less than twenty percent of the relevant course during the relevant period.
The Court is satisfied that the Tribunal considered the first applicant’s study towards his Certificate IV qualification but determined that the first applicant had not completed enough of that course (prior to applying for the visa) to be able to meet the exception to the English language proficiency requirements set out in cl 2(d)(ii) in IMMI 16/019. On the material before it, that assessment was rational and entirely open to the Tribunal.
It is clear from the Tribunal’s assessment above that it correctly understood the requirements in IMMI 16/019 and its reasoning in that regard was entirely logical and rational.
No error jurisdictional error arises in this regard.
Otherwise
First applicant’s oral submissions
Whether the Tribunal ought to have asked the first applicant to provide evidence of an English test
Before this Court, the first applicant seemed to suggest that he was unaware that he could provide an English language test to the Tribunal and that the Tribunal should have told him that he could do so.
It is true that that the first applicant could have provided a further English language test to the Tribunal. In this regard, the Court notes the provision in IMMI 16/019 outlined above. In particular, the Court notes that cl 1(d) of that instrument states that the “maximum time periods in which an English test must be taken” are either “two years immediately before the date the application is made” (cl 1(d)(i) of IMMI 16/019) or “two years immediately before a decision is made on the application” (cl 1(d)(ii) of IMMI 16/019).
Hence, the first applicant could have provided the Tribunal with an English language test that met the requirements set out in IMMI 16/019 – provided that the test was taken in the two years immediately prior to the Tribunal making its decision in this matter (being within the two years immediately prior to 30 May 2019).
The Court notes that it is well established that the Tribunal is under no obligation to investigate or conduct an inquiry to determine whether an applicant’s case might be “better put” or supported by additional evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] & [49]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20].
Here, the Tribunal did, in fact, ask the applicants (on 19 January 2019, via email sent to their representative) to provide evidence that the first applicant met the English language requirements. The correspondence from the Tribunal relevantly stated (CB 89):
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
In order to assist the Tribunal to process your application for review, the following information is requested:
•evidence that you meet the English language requirements
If you have any questions please contact us immediately at [email protected], or call 1800 228 333.
As outlined above, the English language proficiency requirements in relation to this matter are set out in IMMI 16/019. As set out in that legislative instrument, the first applicant could have met those requirements by either providing an English language test (meeting the requirements set out in IMMI 16/019 and taken two years immediately before the Tribunal’s decision was made) or by providing evidence that he was a “class of applicant to which cl 500.213(1) in Schedule 2 of the Regulations did not apply (in this case, by providing evidence that he had completed a substantial component of a Certificate IV level course or higher within the two years before he applied for the visa).
No response was provided in relation to the Tribunal’s request.
The Court also notes that the Tribunal did not make its decision in this matter until 30 May 2019. Hence, the applicants (or their representative) had more than five months within which to provide the Tribunal with any additional information or evidence in support of their review application.
The Court is satisfied that the applicants were given ample opportunity to provide the Tribunal with evidence in support of their review application.
No error arises in this regard.
Whether the conduct of the applicants’ representative amounted to a fraud on the Tribunal
Before the Court, the first applicant also expressed frustration with the conduct of his representative. He told the Court that, despite asking his representative to attend the Tribunal hearing, the representative did not do so.
To the extent that the first applicant is suggesting that the conduct of his representative somehow contributed to the refusal of his visa, there is no evidence before the Court in this regard.
As this Court has previously explained in Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81], when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
Essentially, to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the relevant representative prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have had a direct impact on the Tribunal’s decision-making process.
On the material before the Court, it cannot be said that the conduct of the applicants’ representatives amounted to fraud.
The Court also notes that any negligence, incompetence or bad advice (while unacceptable) does not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The applicants’ recourse for any perceived negligence, incompetence or bad advice is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority.
No jurisdictional error arises in this regard.
Typographical error in the Tribunal’s decision
The Court notes that the Tribunal, at paragraph [17] in its reasons, references the date that the first applicant enrolled in the Certificate IV in Commercial Cookery as 31 July 2015. This date is incorrect. The first applicant enrolled in the Certificate IV course on 31 July 2017 (CB 91).
As correctly submitted by the Minister (at [27] in written submissions filed in this Court on 26 July 2023), an error of fact does not in and of itself ordinarily constitute an error of law, much less jurisdictional error: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36. Further, an error in respect of the evidence only constitutes jurisdictional error only if it results in a failure to discharge the Tribunal’s duty to review the delegate’s decision according to law: W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 at [27].
No such failure has occurred here. The Court considers that the Tribunal simply typed 2015 in error (instead of typing 2017). This error is no more than typographical in nature (rather than jurisdictional). The Tribunal went on to correctly note that the first applicant had only been enrolled in the course for “one month or less than one month before the date of his visa application”. Noting that the visa application was made on 30 August 2017, the Court is satisfied that the Tribunal assessed the correct course and was, in fact, working from the correct information (being that the first applicant had in fact enrolled in that course on 31 July 2017).
No error arises in this regard.
CONCLUSION
The application for judicial review filed by the applicants on 3 July 2019 fails to identify any jurisdictional error on the part of the Tribunal. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2023
2
18
0