Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 206
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206
File number: PEG 129 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 2 November 2021 Catchwords: MIGRATION – Temporary Graduate visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred when finding that the applicant did not meet the requirements of cl 485.212 of Schedule 2 of the Regulations – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), reg 1.15C, cll 485.2 and 485.212 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Kaur v Minister for Immigration and Border Protection [2015] FCA 584
Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Milanesv Minister for Immigration and Border Protection [2015] FCA 1105
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thlork v Minister for Immigration & Border Protection [2019] FCA 333
Ugyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 274
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 28 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Shinnick Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 129 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIA ADELAIDA DA COSTA DA ROCHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 NOVEMBER 2021
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:
INTRODUCTION
The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 June 2021. The Tribunal affirmed a decision made by a delegate of the Minister refusing to grant the applicant a Temporary Graduate (Graduate Work) (Class VC) (subclass 485) visa (the “visa”) under s 65(1)(b) of the Migration Act 1958 (Cth) (the “Act”).
The Tribunal determined that the applicant did not meet the requirements of cl 485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the Tribunal found that applicant did not satisfy cl 485.212(a)(ii) of the Regulations as she “undertook her English language test after the day of lodgement of her visa application”.
The applicant’s application for judicial review is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
BACKGROUND
The applicant is a citizen of Venezuela (by birth) and a citizen of Portugal (by descent)
(CB 19-21). She arrived in Australia as the holder of a Student visa in February 2012 (CB 32-33). She has held a further two student visas since that time. Since arriving in Australia, the applicant has completed a Certificate III in Dental Assistance, Certificates III and IV in Commercial Cookery and a Diploma in Hospitality Management (CB 33-34 & 60-68).
On 15 March 2019, the applicant applied for the visa the subject of these proceedings
(CB 18-35). The applicant’s nominated occupation in that application was listed as “Chef” (CB 33).
On 28 June 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 93-95). The delegate was not satisfied that the applicant met cl 485.212(a)(ii) of the Regulations as the applicant undertook her English language test “after the day of lodgement of the visa application”. Further, the delegate determined that the applicant did not satisfy cl 485.212(b) of the Regulations as she did “not hold an eligible passport as specified by the Minister.”
The applicant applied to the Tribunal on 10 July 2019 requesting review of the delegate’s decision (CB 96-97).
On 20 May 2021, the applicant’s migration agent provided the Tribunal with a five page submission addressing cl 485.212 of the Regulations (CB 145-149).
The applicant appeared at a hearing before the Tribunal on 27 May 2021 with her registered migration agent (CB 150-153). Later that same day, the applicant’s migration agent provided a further two page submission to the Tribunal (CB 154-158).
On 8 June 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 165-173).
On 22 June 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision.
TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32]. This is particularly the case when (as is the case here) the applicant appears without legal representation and has some difficulty articulating her concerns. In these circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. A more detailed overview of the Tribunal’s decision is particularly helpful in that regard.
In this matter, the Tribunal began by identifying the visa under review (at [1]-[2]). The Tribunal noted that the delegate had refused to grant the applicant the visa because the applicant did not have the “required English language proficiency” (at [3]).
The Tribunal summarised the issue before it as follows:
8. The issue in the present case is whether the applicant satisfies cl 485.212 which requires that the application was accompanied by evidence that:
•the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(a)); or
•the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(b)).
The Tribunal noted that the relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 (at [9]).
The Tribunal then outlined the evidence before it as follows:
10. In support of the application, the applicant submitted to the Tribunal an IELTS test result for test undertaken on 11 May 2021, and a Submission from the representative dated 20 May 2021.
11. The delegate’s decision records that the applicant answered ‘yes’ to the question ‘Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?’ on her application for the visa.
12. The delegate found that the applicant had not provided any evidence that she held a passport of a type specified by the Minister and therefore did not satisfy cl 485.212(b).
13. Before the Tribunal, the applicant confirmed she did not hold a current passport from any of the countries specified by the Minister and that she held a passport from Portugal. In the present case, the Tribunal finds that there is no evidence that the applicant has held a passport of a type specified, and cl 485.212(b) is not met. As such the applicant must meet cl 485.212(a).
14. As the delegate’s decision records, when making the visa application the applicant declared she had completed a PTE Academic Test on 12 March 2019. She did not provide test results for the test on 12 March 2019 with her application for the visa.
The Tribunal then extracted a table from legislative instrument IMMI 15/062. That table specifies the minimum required overall test score and the minimum required scores for each test component (at [15]).
The Tribunal continued:
16.Before the Tribunal, the applicant confirmed that she did not provide evidence to the Department that she met the English language requirement. She confirmed that she did not achieve the required results in any of the specified English language tests in the 3 years before the day on which the application was made. She told the Tribunal that she had sat for a number of tests but had narrowly failed to meet the required results. In her written submissions her representative stated:
On 19 June 2019, the applicant provided to the Department of Home Affairs the details of her booked language test with PTE Academic as evidence of her intention to obtain the required English result. Thereafter, the applicant requested the Department to permit her to undertake another English language test as the result of her PTE Exams were not meeting the requirements of the Migration Regulations. We forwarded to the Department a receipt representing our client's booked English language test which was to occur on the 2nd of July 2019.
The Delegate refused our client's request for extension and eventually the visa application. She concluded that the evidence of English language ability that was provided to support the application was not meeting the minimum required English test score She also surmised that the supposed second English test result would be “ineligible for consideration as the applicant must have 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. Therefore the applicant does not satisfy 485.212(a)(ii) as they undertook their English language test after the day of lodgment”
The Applicant took another English Test with IELTS on 11/05/2021 and a copy of the test result certificate is attached to this submission bearing Test Report Form Number 21AU00C537DAM080G.
The applicant's scores are:
Listening 6.5
Reading 5.0
Writing 5.5
Speaking 6.0
Overall Band Score 6.0
17. The applicant's representative submitted that:
The applicant's new IELTS test results is dated 11 May 2021.
The application was made on 15 March 2019 and in applying the three year period contemplated in the above proviso of the Instrument, this should cover the whole period of three years from 15 March 2016 to 15 March 2019.
However, subclause 485.2 of the Regulations states:
“All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated.”
We believe that the last statement taken from the Regulations would therefore, suggest that the applicant's current favourable English test results would still be valid as the requirement needs to be complied with “at the time of the decision”.
18.The applicant contended that the Tribunal should adopt the approach taken in Leung (Migration) [2017] AATA 2262 (1 November 2017) (Leung) where the Tribunal found that although the applicant submitted the language test certificate after lodgement and where the test was sat after the application date the Tribunal was satisfied that the application was accompanied by evidence that meets cl 485.212(a) of Schedule 2 to the Regulations. The submissions suggested the decision was analogous to the applicant's and that approach should be adopted by the Tribunal in this case.
19. In summary the applicant submitted that:
We humbly submit that with the applicant's submission of her new IELTS test results, she should be granted the visa. It has been a settled practice that although the Tribunal is not bound by the doctrine of precedent or stare decisis to follow earlier decisions if the Tribunal at first instance, nevertheless, as a matter of comity and consistency, the Tribunal should do so. This was held in Commissioner of Police, NSW Police Force v Lee. Since the findings in the case at bar were not erroneous nor were they unreasonable we therefore, request the Honourable Tribunal to apply this doctrine in the case at hand and consider reversing the decision of refusal by the delegate.
20.Following the hearing, on 27 May 2020, the applicant's representative submitted further written submissions to the Tribunal in support of the application. Those submissions stated that:
We would like to point out that although the Instrument IMMI 15/062 in number [4] states that “the language test must have been undertaken within the three years before the day on which the application was made...”, we are maintaining our submission that under 485.2 (Primary criteria) it states among others:
“All criteria must be satisfied at the time a decision is made on the application, unless otherwise stated."
(Highlights Provided)
We submit that the criteria contained in the clauses under the Regulations should be read in paramount and not inferior to any instrument included therein. The criteria in the Regulations state that it must be satisfied at the time a decision is made on the application therefore, this should be considered not the other way around which is to consider the statement in the instrument.
In the Departmental Policy under subclass 485 it also states that:
“The delegate may request evidence of English language proficiency if it was not provided at the time of application ...”
All the above would point to the fact that the requirement of providing the evidence of English language proficiency under the subclause is allowed even after the time of application precisely because the requirement is to satisfy the criteria at the time of the decision is made. We also submit that since the application has been raised in an appeal to this Tribunal, the relevant time of decision would therefore pertain to the time when this Tribunal makes its decision on the case.
[Emphasis in submissions]
21.The Tribunal notes these submissions largely restated matter raised in submissions prior to the hearing with the additional reference to Departmental policy.
The Tribunal further noted that it had discussed the applicant’s submissions at the hearing and the applicant’s representative had conceded that current judicial authority suggested that the Tribunal did not have discretion (in relation to the criteria in question) to accept a test undertaken outside of the period provided for in the instrument. However, the agent had nonetheless asked that the Tribunal adopt an approach similar to that adopted by the Tribunal in Leung (Migration) [2017] AATA 2262 (“Leung”) (at [22]).
In relation to that request, the Tribunal explained as follows:
23. The Tribunal noted that the decision in Leung was a matter for the Tribunal constituted to that case. In the Tribunal’s view it was not open to the Tribunal to follow the approach in that decision because it was not consistent with the Tribunal’s understanding of the authorities and its reading of the legislation which was clear on its face.
24. The Tribunal notes that the assessment of the criteria was considered in Kaur v Minister for Immigration and Border Protection [2015] FCA 584 (Kaur). In Kaur, Mortimer J took the view that the text in the Regulations, at [41]:
.. now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.
25. Similarly in Milanes v Minister for Immigration and Border Protection [2015] FCA 1105, Katzmann J discussed Berenguel and the Regulations that succeeded the decision of the High Court, and agreed with the approach adopted in Kaur, noting at [55]:
While it may seem logical and sensible that the Minister consider the most recent information concerning the applicant’s proficiency in English, the legislative intention is otherwise. It follows that the results of any test conducted outside the three year period specified in reg 1.15C would not be relevant further information within s 55 of the Act.
26. The approach in Milanes and Kaur rejects the suggestion that an applicant attempting to submit evidence of a test undertaken outside the prescribed raised circumstances is not contemplated in the legislation. On the contrary, the strict temporal approach in the legislation was designed to deal with such circumstances by excluding such results from meeting the criteria. The Tribunal notes that while these decisions concerned the test timing requirement in reg 1.15C of the Regulations (as it then was), the courts have noted those provisions were materially indistinguishable from IMMI 15/062 and the court’s comments on them apply to the same considerations under the instrument.
The Tribunal then explained the requirements of cl 485.212 as follows:
27. With respect to the additional submissions, the Tribunal is not persuaded by them. The statement in cl.485.2 with regard to the primary criteria includes the statement that the criteria must be met at the time a decision is made ‘unless otherwise stated’. It is clear then that were a time is otherwise specified within the criteria, that specification will be a requirement for the criteria to be met. Clause 485.212(a) requires that:
(1) 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;
…
28.Accordingly, a decision on maker [sic] must be satisfied that the application was accompanied by evidence that the applicant had undertaken a language test specified by the Minister in a legislative instrument (in this case IMMI 15/062) and within a specified period, have achieved a specified score. The criteria thus specify how the requirements are to be met, the timeframe within which they are to be met and the timeframe for the provision of evidence that the have been met. In the Tribunal’s view there is nothing in cl.485.2 which is contrary to or alters this view.
The Tribunal continued:
29.Further, the Tribunal does not consider that a statement in Departmental Policy that the Department may request evidence of English language proficiency if it not provided at the time of application alters the requirement that the applicant provide evidence that they met the criteria as stated in cl.485.212(a) and specified in IMMI 15/062. In any event, Departmental policy stated, at the time the application was made, that:
The delegate may request evidence of English language proficiency if it was not provided at the time of application. The delegate should use the standard paragraph in ECS template to advise the applicant that if the assessment did not predate the application date, they can withdraw their application as it will not meet requirements for a visa grant. If the evidence, when provided following a request, is dated post the lodgement .date the delegate should refuse the application. If evidence is not providec, the delegate should refuse the application.
The Tribunal then explained (emphasis added):
30. The Tribunal considers that the critical date relating to the test is the date the test was undertaken. Under the current definitions, an English language proficiency test undertaken after the date of application cannot be accepted for the purposes of the Schedule 2 criteria and the applicable points test provision for the visa. The courts have found that there is no discretion in meeting that requirement. (emphasis added).
The Tribunal then noted that the task before it was to determine whether the applicant met the criterion and that this had been explained to the applicant at the hearing (at [31] and [32]).
The Tribunal continued:
33. The Tribunal accepts that the applicant has now undertaken a specified English language test – a PTE Academic Test – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. Accordingly, it was not undertaken in the period specified in the instrument, within the 3 years before the day on which the application was made. The Tribunal is not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument, and has achieved, within the period specified in the instrument, the score specified.
The Tribunal noted that it had explained to the applicant that cl 485.212 of the Regulations required her to provide evidence that she has completed and achieved the required score in an English language test within the 3 years before submitting her visa application (at [34]). The Tribunal also explained that the Tribunal did not have any discretion to waive this requirement or to find that the applicant met the English language requirement on another basis or on the basis of results of an IELTS test completed after the application was made (at [34]-[36]).
The Tribunal then determined:
37. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS English language test completed on 11 May 2021 – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
The Tribunal was not satisfied that the application was accompanied by evidence that met cl 485.212(a) of the Regulations. Nor was there any evidence that the applicant met the requirements of cll 485.232 or 485.233 of the Regulations (at [38]-[40]).
On the basis of the above, the Tribunal determined that the applicant did not meet the requirements of cl 485.212 of Schedule 2 of the Regulations and, as such, she did satisfy the criteria for the grant of a the visa.
Ultimately, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [41]).
PROCEEDINGS IN THIS COURT
In her application for judicial review filed on 22 June 2021, the applicant provides three “grounds of review” as follows:
1.Applicant was unable to provide English at the time of 485 application.
2.However, applicant obtained required score at the time of AAT hearing.
3.Applicant believed that she can and have fullfill and meet requirement for regulation 485.212.
The applicant filed an affidavit in support of her judicial review application affirmed 22 June 2021. That affidavit simply repeated the grounds of review above
The applicant was given an opportunity to file an amended application, any supporting affidavits and written submissions. No written submissions were filed. The applicant did, however, send chambers a bundle of “relevant documents” on 19 August 2021. On 30 September 2021, the applicant also sent chambers a “Test Taker Score Report” dated 7 March 2019.
The materials before the Court thus include the applicant’s application for judicial review dated
22 June 2021, a Court Book numbering 173 pages (marked as Exhibit 1), written submissions filed by the Minister on 18 October 2021, a bundle of documents sent to chambers on 19 August 2021 (marked as Exhibit 2) and a “Test Taker Score Report” sent to chambers on 30 September 2021 (marked as Exhibit 3).
At the hearing, the applicant appeared without legal representation. An interpreter in the Spanish and English languages was, at the applicant’s request, available to assist the applicant. However, at the hearing the applicant chose to have her hearing conducted in English, without the assistance of an interpreter. No issues arose in this regard. The applicant addressed the Court with confidence and clarity. The Minister was represented by Mr Shinnick. The Court thanks for Shinnick for the clarity of his written and oral advocacy and for the assistance he provided the applicant in better understanding the issues before the Court.
The Court confirmed with the applicant that she had received a copy of the Court Book and the Minister’s written submissions.
As per the now standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the Court gave the applicant an opportunity to elaborate on her grounds of review and outline any other concerns she might have with the Tribunal’s decision.
To assist the applicant, the Court stressed that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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: 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 decision or grant the applicant the visa that she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant (who was, understandably, nervous and visibly upset at the prospects of losing any future opportunity to study in Australia) submitted that had not been given a fair opportunity (stressing that a previous Tribunal had accommodated another applicant’s similar request to accept a test score dated after his visa application had been filed). The applicant also explained that the COVID pandemic had made it difficult for her to sit the required English test.
These submissions are addressed below.
CONSIDERATION
The applicant’s “grounds of review” provide as follows:
1.Applicant was unable to provide English [score] at the time of 485 application.
2.However, applicant obtained required score at the time of AAT hearing.
3.Applicant believed that she can and have fullfill and meet requirement for regulation 485.212.
In effect, the applicant’s three grounds of review raise the same concern. The Court interprets the applicant’s grounds of review as alleging that the Tribunal erred when it found that the applicant did not meet the requirements in cl 485.212 of Schedule 2 to the Regulations.
The applicant’s grounds of review, interpreted broadly, are misconceived.
Clause 485.212 of Schedule 2 to the Regulations provides:
(1) 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;
…
The legislative instrument which specifies “the language test” (cl 485.212(1)(a)(i) of Schedule 2 to the Regulations), the “specified period” and the “specified score” (cl 485.212(1)(a)(ii) of Schedule 2 to the Regulations) is IMMI 15/062.
That legislative instrument is strict and offers the applicant no assistance in relation to her matter.
In this regard, the Court repeats what it said in Ugyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 274 (“Ugyen”) in relation to the legislative criteria applicable to cl 485.212.
As explained in Ugyen, these criterion are “inflexible” and without ambiguity as to their operation: Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140. That is, while “harsh”, there is no uncertainty as to what is required of an applicant seeking a visa of the kind sought here.
What is required is that:
(a)an applicant must sit a specified English Language test. The specified tests are identified in IMMI 15/062. A test that is not one of the specified tests will not meet the criterion;
(b)the applicant must have sat that specified English Language test in the three years before the day that the applicant lodged the application for the visa. The applicant cannot sit the test on the day they apply for the visa or on the day after the applicant applied for the visa or in the month after the applicant applied for the visa. The “window of opportunity” to sit the test is strictly applied;
(c)if the applicant has sat a specified test in the “window of opportunity”, the applicant must achieve the minimum results in that test (which are specified in IMMI 15/062). If the applicant does not meet the minimum score, the applicant does not meet the criteria; and
(d)the visa application must be “accompanied by” the evidence demonstrating (a)-(c) above. While there is some flexibility in relation to the term “accompanied by” (i.e., the evidence can be provided in the days after lodging the visa application), this relates only to the evidence (i.e., the documents that demonstrate (a)-(c) above). It does not extend to the fact of taking the test itself in accordance with (a)-(c).
Accordingly, it does not matter if the applicant passed an English Language test after she applied for the visa. The applicant needed to meet the relevant requirement before she applied for the visa. This part of the criterion is strict.
In this matter, there was no evidence before the Tribunal that the applicant held a passport of a specified type (as per cl 485.212(b) of Schedule 2of the Regulations). As such, the applicant had to meet cl 485.212(a) of Schedule 2 of the Regulations.
As explained by the Minister (in written submissions filed on 18 October 2021 at [25]), in this matter the evidence before the Tribunal demonstrated as follows in relation to “each known English test”:
(a)7 March 2019 Test - The applicant sat a specified test, in the specified time period but the applicant did not achieve the minimum required test score because she achieved an overall score of 49, in circumstances where the minimum overall score required for a PTE Academic test was 50 (CB 143).
(b)12 March 2019 Test - The applicant sat a specified test, in the specified time period, but the application was not 'accompanied by' evidence that this test satisfied the minimum required test score. In any event, the applicant's migration agent suggested that the minimum required test score was not achieved.
(c)2 July 2019 Test - The applicant sat a specified test, but did not sit the test in the specified time period and the application was not 'accompanied by' evidence that this test satisfied the minimum required test score. The results of the test are not known.
(d)IELTS Test - The applicant sat a specified test and achieved the minimum required test score, but did not sit the test in specified time period.
Timing is critical in an application of this sort. Unfortunately, on her own evidence (and as was again explained to this Court), while the applicant passed the required English proficiency requirement after she filed her visa application, she did not do so prior to that date. The applicant applied for the visa on 15 March 2019 (CB 18-35). The applicant did not obtain the minimum score for her IELTS test until 11 May 2021 (CB 136).
Legally, it is “irrelevant” that the applicant passed the test after she applied for the visa. She was required to meet the requirements before she applied for the visa. The applicant did not meet cl 485.212 of Schedule 2 of the Regulations.
Further, the Tribunal was correct to find found that it had no discretion to waive the legislative requirements relevant here. In that regard it cannot be said that the Tribunal erred by rejecting the applicant’s request that it adopt the approach taken by an earlier decision of a differently constituted Tribunal in Leung.
As explained by the Tribunal in forensic detail (at [18]), in Leung the Tribunal concluded that, even though the applicant had submitted the language test certificate after lodgement of the relevant visa and where the test was sat after the relevant application date, the Tribunal was nonetheless “satisfied that the application was accompanied by evidence that meets cl 485.212(a) of Schedule 2 to the Regulations”.
The Tribunal is not bound by the decisions of earlier, differently constituted Tribunal. Further, and in any event, the Court agrees with the Tribunal’s assessment (at [23] to [29]) that Leung is plainly wrong. As the Tribunal in this matter correctly emphasised applying the principles articulated in Kaur v Minister for Immigration and Border Protection [2015] FCA 584 and Milanesv Minister for Immigration and Border Protection [2015] FCA 1105, the legislation adopts a strict temporal approach of the sort applied by this Court Ugyen (and as summarised above at [50] to [52]).
The Tribunal was correct to find that the first applicant did not meet cl 485.212 of the Regulations and, without any legislative flexibility, proceeded to make the only decision it could make on the evidence before it.
The applicant’s grounds of review fail to identify jurisdictional error on the part of the Tribunal.
Other
Before this Court, the applicant stressed that the current “COVID situation” made it difficult for her to “pass the required English proficiency requirements”.
Whether or not current COVID restrictions prevented the applicant form doing what, legislatively, she needed to do (and, relevantly, within the timeframes outlined above), is not an issue this Court can assess on judicial review.
However, while the Court cannot assist the applicant in this regard (as no issue of jurisdictional error arises) the Court does draw the applicant’s attention to the Minister’s broader “discretionary powers”. Relevantly, it is noted that where, as here, the Tribunal has affirmed a decision refusing to grant the applicant a visa because of a failure to meet a mandatory criterion for the grant of that visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s. 351(1) of the Act to substitute a more favourable decision if, in the Minister’s view, the individual facts justify such a determination.
DECISION
The applicant’s application for judicial review filed on 22 June 2021 fails to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision dated 8 June 2021.
The application is, accordingly, dismissed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 November 2021
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