Chidemo v Minister for Immigration - [2010] FMCA 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHIDEMO v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 19

MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – review of decision of Migration Review Tribunal – competent English – IELTS test – where applicant made arrangements to undergo an IELTS test prior to making her application for a visa – where evidence of arrangements not submitted with application – where applicant successfully attained the required standard in the IELTS test – where evidence of arrangements not submitted to the delegate until after the application for the visa had been refused – no jurisdictional error.

Migration Act 1958 (Cth), ss.54, 55, 474, 476, 504
Migration Regulations 1994 (Cth) Regulations.1.15B, 1.15C, Schedule 2, Part 485, cl.485.215, cl. 485.222

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; 75 ALJR 889; [2001] HCA 22
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31
Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 distinguished.

Applicant:

THENJIWE KAREN CHIDEMO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 431 of 2009

Judgment of:

Scarlett FM

Hearing date:

14 May 2009

Date of Last Submission:

22 October 2009

Delivered at:

Sydney

Delivered on:

27 January 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Oliveri

Solicitors for the Applicant:

Phoenix Attorneys

Counsel for the Respondents:

Mr Kennett

Solicitors for the Respondents:

DLA Phillips Fox (Ms Hooper)

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 431 of 2009

THENJIWE KAREN CHIDEMO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The Applicant applies to the Court under s.476 of the Migration Act 1958 for review of a decision of the Migration Review Tribunal made on 3^rd February 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
In her amended application, the Applicant seeks the following:
i)A declaration that the receipt accompanied the visa application lodged by the applicant.
ii)A declaration that the applicant meets the requirements of cl.485.215(c) of the Migration Regulations.
iii)A declaration that the applicant meets the requirements of cl.485.215(b) of the Migration Regulations.
iv)An order that the matter be remitted to the Tribunal to be dealt with according to law (i.e. an order in the nature of mandamus).
v)Such declaration or order as the Court deems fit; and
vi)Costs.
The Applicant relies on seven grounds of relief.

Background

The Applicant is a citizen of Zimbabwe who applied for a Skilled (Provisional) (Class VC) visa on 16^th October 2007.
In her application, which was submitted by a migration agent on her behalf, the Applicant, in answer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 19
Decision Date: 27 January 2010

CaseChat Overview and Summary

In the case of Chidemo v Minister for Immigration, the applicant, a Nigerian national, sought judicial review of a decision by the Tribunal denying her application for a subclass 485 visa under the Migration Act 1958 (Cth). The applicant argued that the Tribunal had made a jurisdictional error in its interpretation of the visa application criteria, particularly concerning her English language proficiency. The primary legal issue before the court was whether the Tribunal's interpretation of the visa criteria was correct, specifically focusing on the timing and evidence of the applicant's English language proficiency.

The Full Court, comprising Finn, Emmett, and Edmonds JJ, found that the decision in Kamal did not apply to the applicant's case as it related to a different subclass visa. The Court held that the criteria for the subclass 485 visa must be satisfied at the time of application, which in the applicant's case was 16 October 2007. The applicant needed to provide evidence of either having competent English or having made arrangements to undergo a language test by that date. The applicant had evidence of making arrangements to take an IELTS test, which she subsequently passed, but she failed to provide this evidence at the time of her visa application. The Court concluded that there was no jurisdictional error and dismissed the application for judicial review, finding that the Tribunal's decision was a privative clause decision and not subject to the remedies sought by the applicant.

The Court further noted the unfortunate circumstances surrounding the applicant's case, including the apparent oversight by her migration agent in not submitting the necessary evidence on time. The Court observed that the applicant had achieved an IELTS score of 8.0, indicating she was a "very good user" of English, which exceeded the required standard for competent English. The Court suggested that the applicant might consider an approach to the Minister for Immigration and Citizenship for a substitution of a more favourable decision under the provisions of s.351 of the Migration Act, although this matter was not within the Court's jurisdiction.

ORDERS:
1. The application is dismissed.
2. The applicant is to pay the first respondent's costs.

Orders

Orders of the court

The Application is dismissed.

The Applicant is to pay the First Respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision in Kamal does not assist the Applicant because the Court in that case was dealing with the criteria for a subclass 572 (Vocational Education and Training Sector) visa. As the Full Court (Finn, Emmett and Edmonds JJ) pointed out:The criteria for a 572 Visa are set out in Part 572 of Schedule 2 to the Regulations. Relevantly, an applicant must, as at the date of the decision[25], satisfy the criteria specified in clause 572.223.[26] [25] Emphasis added[26] [2009] FCAFC 98 at [5] The point of difference in this case, and it is a crucial point, is that the criteria that applied to the Applicant, being the criteria specified in clause 485.215, are criteria to be satisfied at time of application. Thus, the time of application for the visa, 16th October 2007, was vital for the Applicant. It was at that date that she had to provide evidence of either having competent English by producing a satisfactory IELTS result in order to comply with cl.485.215(b) or having made arrangements to undergo a language test in order to comply with cl.485.215(c). She did not provide evidence of either, although she had evidence of having made arrangements to undergo the necessary IELTS test, which she subsequently passed. There is no jurisdictional error. The Tribunal decision is a privative clause decision and, as such, is not subject to the remedies of declaration or mandamus that the Applicant seeks. It follows that the application must be dismissed with costs. There is one other matter that needs to be mentioned. The application of the law has worked harshly on the Applicant, who had dutifully applied to undergo an IELTS test before her application was lodged. Clearly, she had evidence of this, in the form of the receipt. There is no evidence as to when the migration agent received that document. The statement in the applicant that the Applicant’s language ability was “proficient”[27], unsupported by any evidence, suggests a lack of understanding by her migration agent of the requirements. It is surprising, to say the least, that the migration agent did not submit the receipt to the delegate until after the application for the visa had been refused. There was little point in submitting it to the delegate at that stage. As it was, the IELTS test dated 15th November 2007 was not submitted to the delegate until 30th April 2008. There is no explanation of that delay.[27] Court Book 10 The Tribunal, quite reasonably, described the Applicant’s circumstances as “unfortunate, given she had registered for an IELTS test on 6 September 2007”.[28] It is particularly unfortunate as it is quite clear from the IELTS test result that the Applicant achieved an overall band score of 8.0, which classifies her as a “very good user” of English[29]. The Applicant had achieved an IELTS test score which was greater than the required standard for competent English (reg. 1.15C(a)(i)). [28] Court Book 86 at [34][29] Court Book 13-14. It is most regrettable that the Applicant has failed in her attempt to obtain a visa by what appears to be the omission of her migration agent. It may well be a situation, once the Applicant has completed whatever legal proceedings she wishes to undertake, to consider making an approach to the Minister for Immigration and Citizenship for the substitution of a more favourable decision under the provisions of s.351 of the Migration Act. That, of course, is not a matter for the Court but entirely a matter for the Minister.

Ratio Decidendi

Legal Principle Established

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