CUYUGAN v Minister for Immigration
[2016] FCCA 3218
•13 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUYUGAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3218 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether Tribunal erred in construing reg.1.15C of the Migration Regulations or cl.485.212 in Schedule 2 to the Regulations – whether reg.1.15C or the legislative instrument referred to therein involved an invalid exercise of power – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.504 Migration Regulations 1994 (Cth), regs.1.03, 1.15C, sch.2 cl.485.212 |
| Cases cited: Ajaya v Minister for Immigration and Border Protection (2014) 143 ALD 652; [2014] FCA 718 Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 Khan v Minister for Immigration and Border Protection [2015] FCA 162 Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205 Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508; [2015] FCA 1105 Parmarv Minister for Immigration and Citizenship (2011) 195 FCR 186; [2011] FCA 760 |
| First Applicant: | VIVENCIO III MORTALITA CUYUGAN |
| Second Applicant: | MARIA CRISTINA CUYUGAN |
| Third Applicant: | VERNON ANGELO TUBIG CUYUGAN |
| Fourth Applicant: | PAULA CUYUGAN |
| Fifth Applicant: | VIVENCIO V TUBIG CUYUGAN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2780 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 September 2015 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Parish Patience Lawyers |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2780 of 2014
| VIVENCIO III MORTALITA CUYUGAN |
First Applicant
| MARIA CRISTINA CUYUGAN |
Second Applicant
| VERNON ANGELO TUBIG CUYUGAN |
Third Applicant
| PAULA CUYUGAN |
Fourth Applicant
| VIVENCIO V TUBIG CUYUGAN |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 9 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Skilled (Provisional) (Class VC) visas.
There are five applicants. Only the First Applicant (referred to for convenience hereafter as the Applicant) sought to satisfy the primary criteria for a Class VC visa. The other Applicants sought the grant of the visa on the basis that they were members of his family unit.
The Applicant applied for the visa in question on 27 September 2013. He subsequently provided the results of an English language test (an IELTS test) dated 18 January 2014 to the Department.
The delegate found that as the English language test provided had not been conducted in the three years immediately before the date of the visa application, the Applicant did not meet the definition of “competent English” in reg.1.15C(1)(b) of the Migration Regulations 1994 (Cth) (the Regulations) as it stood at the relevant time and hence that he did not meet the criterion in cl.485.212 in Schedule 2 to the Regulations.
The Applicants sought review by the Tribunal. The Tribunal held a hearing on 25 August 2014. The Applicants’ adviser provided a written submission.
In its reasons for decision the Tribunal explained that the issue was whether the Applicant satisfied cl.485.212 in Schedule 2 of the Regulations, which required that when the application was made it was accompanied by evidence that the Applicant had competent English. It set out the definition of “competent English” in reg.1.15C.
The Tribunal recorded that the Minister had specified two language tests and scores for reg.1.15C(1)(a) and (c) (the IELTS test and the Occupational English Test (OET) and scores of at least 6 in each of 4 components and B for each of 4 components respectively).
The Tribunal referred to the basis for the delegate’s decision. It recorded that annexed to the review application was a copy of the English language (IELTS) test conducted on 18 January 2014.
The Tribunal also recorded that at the hearing it had advised the Applicant that as his visa application was lodged after 1 July 2013 he must demonstrate that he had competent English as required by reg.1.15C which required provision of evidence of an English language (IELTS) test in which he had achieved a test score of 6 in each of the four areas of testing. It noted that the test dated 18 January 2014 did not appear to be within the 36 month period preceding his visa application and hence that he did not appear to meet the time of application criterion in cl.485.212.
As the Applicant’s representative was not present at the hearing, the Tribunal advised that the representative could obtain a copy of the hearing tape and provide any post-hearing submission by 29 August 2014. On 26 August 2014 the representative wrote to the Tribunal complaining about the fact the scheduled hearing went ahead without his attendance, but did not provide any post-hearing submissions.
The Tribunal found that the Applicant did not meet the relevant criterion for a Class 485 visa. While the criterion in issue was misdescribed in this part of the reasons as cl.485.215 (rather than cl.485.212) this was clearly a typographical error, as the Tribunal previously referred to the correct criterion and the findings and reasons addressed the requirement in cl.485.212 that when the application was made it was accompanied by evidence that the Applicant had competent English as required by reg.1.15C of the Regulations. No issue was taken by the Applicant in this respect.
The Tribunal found that the evidence indicated that the Applicant had provided the Department with an English language test conducted on 18 January 2014 which was not within the requisite 36 month period prior to lodgement of the application and that there was no evidence before it that the Applicant had undertaken the requisite English language test in the 36 months prior to lodgement of his visa application in which he had achieved a test score of 6 in each of the four areas of testing. Nor was there evidence he satisfied reg.1.15C(2) of the Regulations which related to persons holding passports of a type specified by the Minister.
The Tribunal concluded that there was no evidence that the Applicant met the criterion (misdescribed as cl.485.215) that required the application to be accompanied by evidence of competent English.
The Tribunal affirmed the decision not to grant the Applicants Skilled (Provisional) (Class VC) visas.
The Applicants sought review by application filed in this Court on 7 October 2014. There are four grounds in the application. They are as follows:
1. The Tribunal erred in construing Regulation 1.15C of the Migration Regulations 1994 (“the Regulations”).
Particulars
a. The Tribunal interpreted the definition of the term “competent English” as it if (sic) were exhaustive, which it is not.
b. the Tribunal read into sub-paragraph 1.15C(1)(c), the words, “in the test undertaken for the purposes of paragraph (b)” to follow the words “the person achieved a score specified in the instrument”; when the statutory formula contained no such requirement or limitation.
c. The Tribunal read the preliminary words of the regulation as though they read “if and only if” in circumstances where the statutory language does not import any exclusivity to the definition of “competent English”
d. The Tribunal read into the words “immediately before the day on which the application was made” the word “first” before the word “made”; in circumstances where the statutory scheme, and in particular, ss47(2), 54(2)(c) and 55 suggest that no such temporal limitation on the meaning of when an application is made (sic).
2. The Tribunal erred in construing Item 485.212 in Schedule 2 to the Regulations.
Particulars
a. The Tribunal read “had competent English” as importing the definition in Regulation 1.15C which defines when a person “has competent English”.
b. The Tribunal construed the item as requiring that the evidence accompanying the application must include evidence which is conclusive and accepted (or that the person must have competent English as an objective fact rather than provide some evidence); rather than construing the item as merely requiring some evidence (including the declaration of the applicant) to have been provided.
c. The Tribunal erred by construing the item as imposing a requirement that must be satisfied at the date of the application being first lodged; rather than a requirement to be met at the time of the decision by reference to the events when the application was made consistently with item 485.2 (final sentence) of Schedule 2.
d. The Tribunal erred by reading into the words “when the application was made” the word “first” before the word “made”; in circumstances where the statutory scheme, and in particular ss47(2), 54(2)(c) and 55 suggest that no such temporal limitation on the meaning of when an application is made. (sic)
3. Regulation 1.15C is an invalid exercise of the power to make regulations under the Migration Act.
Particulars
The definition of “competent English” in reg 1.15C is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
4. The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments under the Migration Act.
Particulars
The tests to which the instrument refers are described in a way that is ambiguous, uncertain, misleading and/or incapable of practical administration.
In oral submissions the solicitor for the Applicants acknowledged that the issues in the application were at that time the subject of consideration by the Federal Court on appeal from a decision of Judge Cameron in Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205. Subsequently judgment was delivered by Katzmann J in Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508; [2015] FCA 1105.
I had reserved my decision pending the outcome of this appeal and granted liberty to any party to apply on three days’ notice. The solicitors for the First Respondent notified the court when Milanes was handed down, but indicated that the First Respondent did not wish to exercise liberty to apply and, subject to any exercise of the Applicants’ liberty to apply, would be content for the court to proceed to deliver judgment. Subsequently, the solicitor for the Applicants notified my associate in writing that the decision of Katzmann J in Milanes “appears to be directly in point against the Applicant’s case”.
I am bound to follow the decision of Katzmann J in Milanes which I am satisfied is directly in point. It considered the version of reg.1.15C in issue in this case. For the reasons that follow, none of the grounds in the application are made out.
As set out above, the Tribunal’s decision was based, in essence, on its finding that the Applicant did not satisfy the time of application criterion in cl.485.212 in Schedule 2 to the Migration Regulations which required that when the application was made it was accompanied by evidence that the Applicant had competent English.
At the time of the visa application, reg.1.15C was as follows:
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the three years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
At the relevant time the instrument referred to in reg.1.15C was legislative instrument IMMI 12/018. Relevantly, it specified for applications lodged on and after 1 July 2012 tests and test scores as follows:
D. For the purposes of paragraph 1.15C(1)(a) the following language tests:
- an IELTS test; and
- an OET.
E. For the purposes of paragraph 1.15C(1)(c) the following scores:
- an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
- a score of at least ‘B’ in each of the four components of an OET.
F. For the purposes of subregulation 1.15C(2) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
The term “Occupational English Test” was defined in reg.1.03 to mean “an Occupational English Test conducted by the National Language and Literacy Institute of Australia”.
According to the Applicants, ground 1 challenged the Tribunal’s “implicit assumption” that the definition of “competent English” in reg.1.15C was an exhaustive list of acceptable evidence. While the Applicants accepted that the court “may” be bound by Federal Court authority to the contrary, in particular Parmarv Minister for Immigration and Citizenship (2011) 195 FCR 186; [2011] FCA 760 and Sidhu v Minister for Immigration and Border Protection [2014] FCA 935, it was formally submitted that, if that was so, those cases were wrongly decided on this point. However the Applicant’s primary submission was that the version of reg.1.15C in issue in this instance (unlike the versions considered in Parmar and in Sidhu) did not refer to Ministerial satisfaction and hence that the reasoning in these cases was not binding authority.
It was acknowledged that the current version of the regulation had been considered in Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 at [52] in which Beach J addressed the question of whether the definition of “competent English” in reg.1.15C was exhaustive as follows:
Finally, I have considered the point as to whether there is an argument that reg 1.15C is not exhaustive of the circumstances under which the “competent English” criterion can be satisfied. It is not expressed in the language of “if and only if”. If it was not exhaustive, such that relevant tests after the application for a visa was made could be relied upon, then in such circumstances Mr Kumar could be considered to have met the criterion. But reg 1.15C was specifically introduced in its present form to make it clear that only test results before the making of the application could be used to satisfy the criterion. Moreover, the definition of “competent English” in reg 1.03 stipulates that it “has the meaning given by reg 1.15C”. Accordingly, in the light of reg 1.03, it seems to me that reg 1.15C is exhaustive of the possibilities…
The Applicant submitted however that the appellant in Kumar was unrepresented, that the point had not been raised in the court below and did not seem to have been raised directly on appeal so that the observations of Beach J were not binding. In the alternative it was formally submitted that the point was wrongly decided.
The First Respondent submitted that the approach taken by Beach J in Kumar at [52] was binding on this court (see Singh & Anor v Minister for Immigration and Border Protection [2015] FCCA 1793 at [13] to [18]) and that reg.1.15C was an exhaustive definition of competent English.
In Milanes, Katzmann J found that the version of reg.1.15C in issue in these proceedings contained an exhaustive definition. Her Honour referred to the fact that the argument that reg.1.15C did not provide an exhaustive definition had been rejected in Parmar at [18] per Perram J and rejected the submission that Parmar could be distinguished on the basis that the terms of reg.1.15C considered therein differed from its subsequent form in a significant way (including the fact that the version of reg.1.15C considered in Milanes (as in this case) did not refer to Ministerial satisfaction, or on the basis (reflected in particular (c) to ground 1 in these proceedings) that it was relevant that reg.1.15C did not contain words to the effect that a person was taken to have competent English “only” if one or other of the paragraphs was satisfied (at [71])).
For the reasons given by Katzmann J in Milanes it has not been established that the Tribunal in this case erred in construing reg.1.15C of the Migration Regulations by interpreting the definition therein of the term “competent English” as exhaustive.
Further, insofar as ground 1 suggests that the Tribunal erred in reading into reg.1.15C various words, those contentions are not made out. It was contended that the Tribunal erred in reading into reg.1.15C(1)(c) words indicating that the score was that in the test referred to in paragraphs (a) and (b) of reg.1.15C. Such argument fails on a natural reading of the regulation. In particular, as the First Respondent submitted, paragraph (c) of reg.1.15C (read in the context of paragraphs (a) and (b)) indicates that the “score” referred to in paragraph (c) must be in the “test” referred to in paragraphs (a) and (b). No plausible alternative construction is apparent.
The contention that the Tribunal read the preliminary words of reg.1.15C as though it contained the words “if and only if” took issue with the view expressed in Kumar that the definition of competent English was exhaustive. However, Milanes took the same approach. It is therefore not necessary to determine whether I am, strictly speaking, bound to follow Kumar in this respect. This argument cannot now succeed. Regulation 1.15C is an exhaustive definition of “competent English”.
The Applicants also argued that the Tribunal erred in reading into reg.1.15C(1)(b) a reference to when an application was “first” made. However, as Beach J observed in Kumar at [52]:
…Finally, s 55 of the Act is of no assistance. Later information can be provided, but that general provision does not operate to rewrite the criterion if the criterion has a temporal limitation; any later information could only be considered in the context of determining whether the criterion (with its temporal limitation) had been satisfied.
Even if I were not bound to follow Kumar, it would be persuasive. In any event, I agree. The criterion in issue has a temporal limitation. It makes clear that only test results obtained before the making of the visa application could be relied on to satisfy the criterion.
Ground 1 is not made out.
Ground 2 involves a contention that the Tribunal erred in construing cl.485.212 in Schedule 2 to the Migration Regulations. However, the Applicant’s submissions referred to reg.1.15C and challenged what was said to be the Tribunal’s implicit assumption that the “score” referred to in reg.1.15C(1)(c) must have been achieved in the test referred to in paragraphs (a) and (b) of that provision. There was said to be no justification for this assumption in the language of the regulation. Reliance was placed on the approach taken by the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 at [26] in relation to a different version of reg.1.15C which was construed by the High Court as not requiring that an English language test be conducted before the application was lodged.
In contrast, in this case, as in Milanes, the applicable version of reg.1.15C refers to “a test conducted in the three years immediately before the day on which the application was made”. In Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [12] and [16]; Ajaya v Minister for Immigration and Border Protection (2014) 143 ALD 652; [2014] FCA 718 at [28]; Patel v Minister for Immigration and Border Protection [2014] FCA 823; Kumar at [39] and [51]; and Khan v Minister for Immigration and Border Protection [2015] FCA 162 at [18], it was held the construction adopted in Berenguel was not applicable to the materially different form of reg.1.15C such as the version in issue in this case. The Applicant’s contentions in this respect are contrary to the approach taken in Milanes (at [46]) and hence cannot succeed.
As Katzmann J pointed out in Milanes at [50], the visa criterion (in this case, cl.485.215) must be read with reg.1.15C. When that is done, the criterion that the Applicant has competent English:
…means the applicant has undertaken a specified language test in the three years immediately before the day on which the application was made and has achieved a specified score or holds a passport of a specified type...
The text and the legislative history of reg.1.15C to which Katzmann J referred indicate that reg.1.15C was amended to overcome the effect of the judgment in Berenguel and to ensure that only applicants who had obtained the necessary test scores in a specified English language test conducted in the specified period “before the day on which the application for the visa was made” would be able to satisfy such criterion. Her Honour referred to authorities to this effect in relation to reg.1.15C as amended in 2011 (which referred to the two year period before the application was made) and noted that the only relevant change effected by the 2012 amendments was to increase the period in which the test was to be conducted from two years to three years. The 2012 amendments maintained the requirement that the period be “immediately before the day on which the application was made”.
Having regard to the approach taken in Milanes at [50], ground 2 is not made out.
Ground 3 is that reg.1.15C is invalid, in essence, on the basis that it is said to be an unreasonable exercise of the regulation-making power in s.504 of the Migration Act 1958 (Cth) (the Act). However, not only were the Applicant’s arguments in support of this ground rejected in a number of decisions of this court (see Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205; Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35 and Ashurov v Minister for Immigration and Border Protection (2015) 297 FLR 267; [2015] FCCA 1521 and also see Singh at [32] to [42]), but, moreover, such a contention was rejected by Katzmann J in Milanes at [140] to [150]. Her Honour found that reg.1.15C was not inconsistent with the Migration Act and that it was within the power conferred by the Act that the Regulations may prescribe criteria for the grant of visas (at [149]).
Katzmann J also rejected the contention that reg.1.15C(2) was ultra vires, insofar as the Applicant’s submissions addressed this contention. In any event, as pointed out in Milanes at [139], for reasons which her Honour gave (at [95] to [103]), even if subregulation (2) of reg.1.15C was invalid, the rest of the regulation (which is the only part in issue in this case) would be valid.
Ground 3 as pleaded and as addressed in the Applicants’ submissions is not made out.
Finally, ground 4 is that legislative instrument IMMI 12/018 is not a valid instrument within reg.1.15C(1)(a) because the tests to which it refers are described in a way that is ambiguous, uncertain or incapable of practical administration.
Such a contention was rejected by Katzmann J in Milanes (see in particular Milanes at [85]). The Applicants appeared to rely on the same contentions raised in Milanes to the effect that there was a lack of clarity in the definition of “IELTS test” in the Regulations and that reg.1.03 described an Occupational English Test as one conducted by the National Language and Literacy Institute of Australia, but that such organisation had ceased to exist several years before the instrument was made. It was submitted that if the list was intended to be exhaustive and to have at least two alternatives, the failure of one alternative meant that the drafter’s intention or aim had not been achieved and the whole instrument should be set aside as invalid. In particular, it was submitted that the fact that the instrument (made in 2012) referred to a test which, as defined, did not exist, meant that the references to tests in the instrument were ambiguous and incapable of proper identification and so the instrument failed to give meaningful effect to the definition of competent English in reg.1.15C(1).
Such arguments were rejected in Milanes (which I am bound to follow) on the basis that there was no relevant ambiguity in regs.1.03 and 1.15C or difficulty in their application. Katzmann J had regard to the fact that the legislative instrument referred to “IELTS” as an acronym for the International English Language Test System. Moreover, her Honour also found that if there was an ambiguity arising from the minor differences in language between reg.1.03 and IMMI 12/018, it was not a relevant ambiguity, as reg.1.15C did not refer to IELTS so the definition in reg.1.03 did not apply to reg.1.15C. It was pointed out that the English language test referred to in reg.1.15C was the one specified by IMMI 12/018 (at [89]). Katzmann J also found that even if the reference to an OET in the instrument was ambiguous, the invalidity of the part or parts of the instrument referring to the OET would not render the whole invalid (Milanes at [104]).
Hence, ground 4 is not made out.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 13 December 2016
0
13
3