Dabburi v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 522
•11 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dabburi v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 522
File number: MLG 2428 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 11 June 2024 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Temporary Graduate visa – whether the Tribunal committed a jurisdictional error by misunderstanding its statutory task – consideration of whether the applicant was afforded procedural fairness – Tribunal made a decision reasonably open to it on the evidence – Tribunal had no discretion to alter requirements for the visa – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 359A and 368
Migration Regulations 1994 (Cth) cl 485.212
Cases cited: Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255 Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 1 May 2024 Date of hearing: 1 May 2024 Place: Melbourne The Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms S Liddy of Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2428 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOPI KRISHNA DABBURI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
11 JUNE 2024
THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 July 2018 wherein the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) not to grant the applicant a Temporary Graduate (Class VC, subclass 485) visa (‘the visa’).
BACKGROUND
The facts in this matter are not in dispute. The applicant is a citizen of India.[1]
[1] Court book at pages 2 and 3.
He completed a Bachelor’s degree in computer science and engineering in India in April 2014 and thereafter completed a Masters degree at Federation University in December 2017.[2]
[2] Court book at page 12.
Application for the visa on 14 March 2018
On 14 March 2018, the applicant applied for the visa.[3] In his visa application form, the applicant stated that he had undertaken and English test within the preceding 36 months, being a PTE Academic test completed on 13 March 2018 (reference number 331460329) (‘the first test’).
[3] Court book at pages 1 to 13.
At page 16 of the court book is a copy of a PTE Academic Test Taker Score Report (reference number 331755014) which was undertaken by the applicant on 19 March 2018, that is five days after the visa application, and in which the applicant obtained a score of 51 (‘the second test’).
By letter dated 2 May 2018, the applicant was advised that the delegate has refused his application for the visa.[4] The delegate’s decision record indicates that the refusal decision was made on the basis that the applicant did not satisfy the requirements of cl 485.212 of the Migration Regulations 1994 (Cth) (‘the Regulations’) by virtue of the second test score post-dating the application for the visa.[5]
[4] Court book at pages 27 to 30.
[5] Court book at pages 33 to 34.
The delegate stated:
You lodged an application for a 485 visa on 14 March 2018 and declared in your application form that you are not the holder of a passport from the United States of America, the United Kingdom, Canada, New Zealand or the Republic of Ireland. You stated in your application form that you had undertaken a Pearson Test of English (PTE) on 13 March 2018 with reference ID 331460329. This test was verified online and it was noted that you had achieved an overall score of 41, which does not meet the English language requirement.[6]
(Emphasis added)
[6] Court book at page 33.
Application for review by Tribunal on 15 May 2018
On 15 May 2018, the applicant sought review of the delegate’s decision in the Tribunal.[7]
[7] Court book at pages 35 to 36.
By letter dated 20 June 2018, the Tribunal invited the applicant to a hearing before it scheduled for 19 July 2018.[8] The Tribunal’s hearing record indicates that the applicant attended although his representative did not.[9]
[8] Court book at pages 50 to 51.
[9] Court book at pages 58 to 60.
Later in the day on 19 July 2018, the Tribunal notified the applicant of its decision to affirm the delegate’s decision to refuse the applicant’s application for the visa.[10]
[10] Court book at page 63.
TRIBUNAL’S REASONS
The Tribunal’s decision record of 19 July 2018 is set out in the court book at pages 64 to 66.
At the commencement of its reasons, the Tribunal set out the relevant background and law applicable to the grant of the visa, being Part 485 of Schedule 2 to the Regulations.[11] At paragraph [3], the Tribunal stated:
The delegate refused the visa on 2 May 2018 because the applicant did not have the required English language proficiency.
[11] Tribunal decision record dated 19 July 2018 at paragraphs [1] and [2].
The Tribunal identified the issue on review before it and gave consideration to the applicant’s claims and evidence, including submissions made by the applicant at the Tribunal hearing.[12] At paragraphs [10] and [11] of its reasons, the Tribunal stated the following:
Noting that the minimum score on a Pearson test required to satisfy the English language requirement is 50 and that evidence of this must be provided at the time of the application, the Tribunal invited the applicant to make any submissions. He responded that the PTE score was 49 and he only got the result later due to some confusion with his PTE profile. His room-mate helped him to apply and looked at the application and he did not have a clear picture of the situation. Also, things at home were not going well. He understands now.
The Tribunal has some sympathy for the applicant’s situation however, as explained to him at the hearing, the Tribunal must apply the regulations and make a lawful decision and it has no discretion in this matter.
[12] Tribunal decision record dated 19 July 2018 at paragraphs [7] to [11].
Ultimately, the Tribunal was not satisfied that the applicant’s application for the visa met the requirements of the Regulations and therefore for the grant of the visa. As such, the delegate’s refusal decision was affirmed.[13]
[13] Tribunal decision record dated 19 July 2018 at paragraphs [12] and [13].
PROCEEDINGS IN THIS COURT
On 15 August 2018, the applicant filed an application for judicial review in this court, together with an affidavit affirmed by him on the same date annexing a copy of the Tribunal’s decision.
In his application, the applicant set out the following grounds of review:
1.The Tribunal’s decision of 19th July 2018 to affirm the decision not to grant me the a (sic) Skilled (Provisional) (Class VC) visa was affected by jurisdictional error in that I was not afforded procedural fairness in making of the decision as the Tribunal misinterpreted s cl.485.212a
2.The AAT made a jurisdictional error as it had not complied with its obligations with respect to giving of reasons as contained in s368 of the Migration Act
3.The AAT decision was affected by jurisdictional error in that the Tribunal did not conduct review in the manner required by law.
4.The Tribunal made an error amounting to jurisdictional error as it did not properly look at and consider my circumstances.
Hearing on 13 February 2024
By orders of Registrar Downing made in chambers on 12 December 2023, this matter was initially listed for hearing on 13 February 2024.
Prior to the hearing on 13 February 2024, the applicant emailed my chambers requesting an adjournment of the hearing in circumstances where he was medically unfit to attend court and due to undergo surgery. The email also indicated that the applicant was in India at the time. Annexed to the applicant’s email were medical certificates, a hospital report, and insurance claim information.
The applicant’s adjournment request email was forwarded to the Minister’s representative, who opposed the adjournment request.
The hearing proceeded on 13 February 2024 at 10:00am, there being no appearance by the applicant. At the hearing, the Minister’s representative confirmed their opposition to the adjournment request.
On 13 February 2024, I made orders adjourning the matter to 1 May 2024 at 2:15pm.
Hearing on 1 May 2024
The adjourned hearing in this matter took place before me on 1 May 2024. At the hearing, the applicant represented himself and appeared by videoconference.
At the commencement of the hearing, I explained the role and powers of the court in judicial review proceedings, being the determination as to whether the applicant’s grounds of review, or any other ground, is made out and there is a jurisdictional error in the way in which the Tribunal made its decision.
Applicant’s oral submissions
Notwithstanding orders of Registrar Carlton made on 4 March 2020, permitting the applicant to file an amended application and written submissions 28 days prior to the hearing in this matter, as amended by the orders of Registrar Downing made on 12 December 2023, no such documents were filed by the applicant.
The applicant was invited to make oral submissions in support of his grounds of review. In response, the applicant indicated that he was told by a lawyer that a similar case to his had been successful and that he was ‘just following procedure’.
The applicant did not make any further substantive submissions in support of his application.
However, after the Minister made oral submissions opposing the application, which reflected in large part the Minister’s written submissions filed on 30 January 2024, the applicant stated that it was his understanding that there had been a change to the Regulations to allow for the taking of a PTE test and submission of a PTE score after a visa application was filed. He was unable to specify the date that the law changed but stated that it was prior to him lodging the PTE score together with his application for the visa.
The Minister’s representative confirmed that the Regulations had in fact been amended on three occasions due to the Covid-19 pandemic, however, each of those amendments applied prospectively and had no retrospective effect. As such, those changes would not apply to the applicant’s visa application.
The court was referred to the decision of Nareddula v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 255 (‘Nareddula’) in which a similar issue was dealt with. Relevantly, in Nareddula at [53], Judge Young provides an overview of the relevant amendments to the Regulations and their application. The applicant has produced no evidence that any changes to the regulations operated retrospectively. Consequently, the applicant’s visa application stands to be considered against the Regulations as they existed at the time of his application.
In order to qualify for the visa, the applicant was required to satisfy the requirements of cl 485.212(1)(a) or (b) of Schedule 2 of the Regulations. Subparagraph (a) is relevant for present purposes. Relevantly, clause 485.212(1)(a) provided:
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 …
IMMI 15/062 sets out the requisite English language tests, scores and passport types specified for the purposes of cl 485.212(1)(a) and (b). Relevantly, that included the PTE Academic test with a minimum overall score of 50. In addition, the Minister also specified that such test had to have been undertaken within the three years before the day on which the application was made.[14]
[14] Court book at pages 32 and 33.
In this case it is common ground that the applicant did not hold a specified passport type and therefore cl 485.212(b) did not apply. Moreover, it is also common ground that the first test result which the applicant submitted disclosed a result of 41, below the required score of 50. It is also common ground that the second test result which the applicant submitted in which he obtained a score of 51, was undertaken after his application for a visa and therefore did not satisfy the requirement that it be completed within a period of three years prior to the visa application.
GROUNDS OF REVIEW
Ground 1
By ground 1, the applicant asserts that there was a failure by the Tribunal to afford procedural fairness in its misinterpretation of cl 485.212 of the Regulations.
Based on the evidence before it, the Tribunal reached the conclusion that the first test did not satisfy the requirements of cl 485.212(1)(a) because the applicant’s score did not meet the minimum score of 50 and the second test result could not be relied upon because it was not undertaken within a three-year period prior to his application. This conclusion was not only open to the Tribunal to make but was the correct application of cl 485.212 of the Regulations.
No error is disclosed.
Ground 2
Ground 2 of the applicant’s application claims that the Tribunal failed to comply with its obligations under section 368 of the Act.
Section 368 of the Act relevantly provides:
Written statement of decision
(1)Where the Tribunal makes its decision on review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application– indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
How and when written decisions are taken to be made
(2)A decision on a review (other than an oral decision) is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
At pages 65 and 66 of the courtbook is a copy of the Tribunal’s written statement of reasons. That written statement clearly sets out:
(a)the decision of the Tribunal, namely to affirm the delegate’s decision;
(b)the reasons for that decision;
(c)the findings of any material facts, in particular at paragraph [12];
(d)the evidence upon which those findings were made; and
(e)records the day and time that the statement was made.
It is apparent that the Tribunal did in fact comply with its obligations under section 368 of the Act and no jurisdictional error is disclosed.
Ground 3
By ground 3, the applicant makes a vague assertion that the Tribunal did not conduct its review ‘in the manner required by law’.
No particulars are provided.
To the extent that by this ground the applicant claims that the Tribunal did not afford him procedural fairness, that claim cannot be supported. The Tribunal invited the applicant to attend a hearing, which the applicant attended for the purposes of giving evidence and presenting arguments.
Moreover, the issues before the Tribunal were the same issues before the delegate. The applicant was therefore clearly on notice of the dispositive issue when he attended the hearing before the Tribunal.
There has been no failure to afford the applicant procedural fairness.
Nor can it be said that there is any unreasonableness or illogicality in the Tribunal’s reasoning. The findings made were open on the evidence and there was a logical and probative basis to the conclusions reached.
Moreover, as submitted by the Minister, there has been no breach of section 359A of the Act.
Absent any further particulars of the alleged breach, ground 3 does not disclose any jurisdictional error and is therefore not made out.
Ground 4
By ground 4 of the application, the applicant submits that the Tribunal engaged in a jurisdictional error in failing to properly consider his circumstances.
This ground too has not been made out. It is apparent from a fair reading of the Tribunal’s reasons that it had regard to the applicant’s particular circumstances. It also expressed at paragraph [11] some sympathy for the applicant’s situation, however indicated that notwithstanding, it was obliged to apply the Regulations as then in force.
The Tribunal did not have any discretion to waive those requirements.
Ground 4 therefore is not made out.
CONCLUSION
As none of the grounds of review are made out, the application ought be dismissed with costs.
I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mercuri. Associate:
Dated: 11 June 2024
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