Chiravarapu v Minister for Immigration

[2009] FMCA 800

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHIRAVARAPU v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 800

MIGRATION – Review of decision of MRT – where applicant had not achieved a satisfactory result in an IELTS test taken within 2 years of application.

Migration Regulations 1994

Applicant: SURENDER CHIRAVARAPU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 94 of 2009

Judgment of: Raphael FM

Hearing date: 27 July 2009

Date of Last Submission: 27 July 2009

Delivered at: Sydney

Delivered on: 27 July 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 94 of 2009

SURENDER CHIRAVARAPU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an unfortunate case.  The applicant who clearly speaks excellent English and has enviable qualifications, made an application for an Independent (Class VB) subclass 885 general skilled migration visa on 24 November 2007.  At the time that he made the application he was bound by Regulation 1.15C of the Migration Regulations 1994 which required him to have competent English. Competent English was defined in the regulation as:

   “(a)    has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i)    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or …”

2. It is common ground that when the applicant submitted his application he indicated that he had undertaken an IELTS test on 22 November 2007.  But when he was asked to provide the results of the test by the delegate on 25 April 2008 he responded on 4 May 2008 advising the delegate that he had not in fact taken the test on that day but he had a test due on 22 May.  He was successful in that test, achieving scores of eight, six, seven and seven, which would have entitled him to a visa, subject to any other considerations, had those results been achieved prior to the date of the application.  But they were not.  He was refused a visa by the delegate and sought review of that decision from the Migration Review Tribunal.  

3. On 24 November 2008 the applicant was granted an invitation to appear before the Tribunal on 17 December 2008.  He would have been well aware at that time what the difficulty was with his application.  He did not attend the hearing and so the Tribunal determined on 18 December 2008 to affirm the decision under review on the basis that the test had not been conducted more than two years before the day on which the application was lodged. 

   “[31]The wording of the requirement - that a test must be conducted not more than two years before the day on which the application was lodged - is clear an unambiguous and requires the test to have been conducted within a specified period before the application is made.  The past tense in the reference to the test being conducted, at the time of application, also implies that the test must have been conducted before the application was made and not after the date of the application.  This is also consistent with the Explanatory Statement in the SLI 2007 number 257.  Thus, the Tribunal is of the view that the IELTS test undertaken by the applicant in May 2008 cannot be considered when determining whether the applicant has competent English as this test was not conducted ‘not more than two  years before the day on which the application was lodged’.  There is no evidence before the Tribunal that the applicant had achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in such a test and the Tribunal is not satisfied that the applicant meets r.1.15C(a)(i). 

   It follows that the Tribunal is not satisfied has competent English and he does not meet the requirements of  cl.885.213(b).”

4. The applicant appeared before me today in person.  He accepts that his test was not conducted prior to the application.  He believes that he had been wrongly advised in relation to this, but otherwise had nothing to say.  In his helpful written submissions Mr Reynolds submits as follows:

   In Al-Magableh v Minister for Immigration [2009] FMCA 230, Bhatt v Minister  for Immigration [2009] FMCA 219, Fan Fan v Minister for Immigration [2009] FMCA 123, Shah v Minister for Immigration [2009] FMCA 108 and Shibly v Minister  for Immigration [2009] FMCA 193, Scarlett FM considered similar provisions (items 4A 404(a) and (b) and 4A407(a) and (b) of Schedule 5A of the Regulations), which required applicants to demonstrate that they had "achieved, in an IELTS test that was taken less than two years before the date of application" a certain score.  It was held that the phrase "taken less than two years before the date of application” meant that the relevant IELTS test had to be have been taken prior to the date of application.  This was followed by Cameron FM in Rana v Minister for Immigration [2009] FMCA 553. This reasoning would apply by way of analogy to interpreting the phrase "a test conducted not more than two years before the day on which the application was lodged" in reg.1.15C.” 

5. The decisions referred to therein were considered by me in Deng v Minister for Immigration, a case in which I had completed writing the judgment when the matter was withdrawn from the court, but in which I did consider this phraseology and came to the same conclusion as Mr Reynolds in the written submissions adumbrated above. 

6. It follows from this reasoning that the applicant cannot succeed in his application and I must dismiss it, which I do.  No doubt the applicant can take advice from a properly qualified migration agent as to his ability to make a further application or to make an application to the Minister direct. 

7. The application is dismissed.  I order that the Applicant pay the First Respondent costs assessed in the sum of $2,500.00.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  18 August 2009