Datchinamurthy v Minister for Immigration & Anor
[2014] FCCA 258
•24 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DATCHINAMURTHY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 258 |
| Catchwords: MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Skilled (Provisional) (class VC) subclass 485 visa – time at which to produce evidence of ‘competent English’ – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.97, 99, 100, 101 Migration Amendment Regulations 2011 (No.3) (Cth) |
| Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 |
| Applicant: | DHINESH DATCHINAMURTHY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 857 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Germov |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the Respondents: | Ms Graycar |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.
The Application filed 14 June 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 857 of 2013
| DHINESH DATCHINAMURTHY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced by Application filed 14 June 2013. The Applicant is a citizen of India. He seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made 20 May 2013 wherein the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (as he then was) (‘the Delegate’) to reject the Applicant’s application for a Skilled (Provisional) (class VC) subclass 485 visa (‘the visa’). The Delegate had refused to grant the Applicant the visa on 14 December 2012 on the basis that the Applicant did not satisfy cl.485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) because he did not have ‘competent English’ as defined by Regulation 1.15C of the Regulations.
Prior to the Delegate's decision of 14 December 2012, the Applicant had been contacted, and on 9 October 2012, by the Department of Immigration and Citizenship (as it then was) (‘the Department’) seeking further information. On 6 November 2012, the Applicant provided the requested information but indicated in an email of that date that he was “still waiting for [his International English Language Test System] IELTS result” and would send it when he received it. On 17 November 2012, following the Delegate’s request and some eight months after applying for the visa, the Applicant undertook an International English Language Test System (‘IELTS’) test in which he achieved the requisite result (six or more in each of the four components) as confirmed in certificate of 22 November 2012. On 14 December 2012, and after receiving the Delegate’s decision, the Applicant provided the Department with a copy of the results of his IELTS test.
On 20 December 2012, the Applicant (assisted by a migration agent) sought review of the decision not to grant the visa by the Tribunal.
The Applicant was invited to give evidence and present arguments to the Tribunal. The hearing invitation identified the reason for the decision as being that the Applicant’s visa application was refused because the officer who assessed it was not satisfied that the Applicant had competent English. The hearing invitation also identified the definition of ‘competent English’ as set out in Regulation 1.15C of the Regulations as being, in respect of an application lodged between 1 July 2011 and before 1 July 2012, a specified score (IELTS score of six or more in each of the four components) in a language test conducted “in the 2 years immediately before the day on which the visa application was made” (and for applications lodged after 1 July 2012, in the three years immediately before the application). The Applicant and his registered migration agent appeared before the Tribunal on 19 April 2013.
The Tribunal identified as the issue before it whether the Applicant had ‘competent English’ as required by cl.485.215 of the Regulations. The Migration Amendment Regulations 2011 (No.3) (Cth) inserted into the Regulations a new Regulation 1.15C applying to all visa applications lodged on or after 1 July 2011 and before 1 July 2012. The Applicant’s visa application fell within this period. The new Regulation 1.15C of the Migration Regulations relevantly said:-
“(a) A person has competent English if:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument.
(b) 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.”
In Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 at paragraph 12 Judge Lucev stated:-
“The purpose of the amendment was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application, (Migration Amendment Regulations, Explanatory Statement) and followed judgments in which it was held that the previous version of reg.1.15C of the Migration Regulations allowed for a test to be taken after a visa application had been lodged. (See Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8; Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379; [2009] FCAFC 98.)”
The Tribunal noted that there was no evidence that the Applicant held a passport as referred to in subparagraph (b) as described in paragraph 5 of these Reasons. The relevant tests referred to in subparagraph (a) in paragraph 5 of these Reasons were the IELTS which required a score of six or more in the four components, or the Occupational English Test (‘OET’).
The Applicant had indicated on his visa application form lodged on 10 March 2012 that he had undertaken an English test within the last 24 months, namely, an IELTS test on 10 December 2011, and that he had achieved a competent English result. He had not supplied any evidence of the result, however, and the test reference number was incomplete and thus could not be verified.
The Applicant confirmed at the hearing before the Tribunal that he had not achieved the requisite score in his December 2011 attempt, but he informed the Tribunal that he had done so in a test of November 2012, evidence of which was placed before the Tribunal. The Tribunal determined that it was unable to take into account the result of the test taken in November 2012, as it was a test undertaken after the date of the visa application.
The Tribunal referred to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 in which the Court had held that an earlier version of the Regulation did not preclude the decision maker from taking into account a test result that post-dated the visa application in certain circumstances. However, as the Tribunal pointed out at paragraph 15 of its Decision Record dated 20 May 2013, the English proficiency definitions in the Regulations were amended with effect from 1 July 2011 and in relation to the application before it, which was lodged on 10 March 2012, the Regulations provided “a clear temporal period within which the relevant test must have been undertaken, namely the 2 year period prior to lodgement”. As there was no evidence before the Tribunal that the Applicant had passed a test in that period (that is between 10 March 2010 and 10 March 2012) the Tribunal affirmed the decision.
The Application before this Court contains one ground by which the Applicant pleads that the Tribunal made a “fundamental jurisdictional error because the Tribunal failed to consider the operation of sections 99-101 of the Migration Act 1958 (Cth) (‘the Act’) which require a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given”.
The particulars of the ground as set out in the Application are as follows:-
“(a) The Applicant completed a visa application form, being a form 1276, that is a form prescribed by item 1229 of Schedule 1 to the Migration Regulations 1994 (“the Regulations”) for the purpose of applying for a subclass 485 visa.
(b) The Applicant lodged the visa application form electronically at the website of the First Respondent's Department on 10 March 2012.
(c) In relation to English language requirements, the electronic visa application form required the visa applicant to click a box indicating which answer applied to him and included a question that requested whether the Applicant had made an application to sit an English Language test as well as whether the Applicant had sat an English language test. The electronic form requested that details of the tests be provided.
(d) The electronic form also stated that English Language test results should be forwarded to the First Respondent's Department as soon as possible.
(e) The Applicant ticked the box that stated he had completed an English language test on 10 December 2011 because he understood this to be the correct answer.
(f) The First Respondent’s Department accepted the visa application was valid.
(g) A delegate of the First Respondent wrote to the Applicant on 9 October 2012 requesting the Applicant to provide evidence of competent English.
(h) The Applicant sat an English language test on 17 November 2012 and achieved a score of competent English as required by Regulation 1.15C(a) of the Regulations and clause 485.215 of Part 485 of Schedule 2 to the Regulations.
(i) The letter from the First Respondent’s delegate and the electronic visa application form led the Applicant to believe that he could forward a copy of the results of an English language test completed after the date of application lodgement.
(j) The Applicant did not forward the results of the English Language test sat on 17 November 2012 to the First Respondent's delegate before that delegate made a decision to refuse the visa application on 14 December 2012 but a copy thereof was before the Tribunal.
(k) The Tribunal did not turn its mind to the inconsistency between the visa application form, DIAC's correspondence, regulation l.15C(a) of the Regulations and the obligation of the Applicant to comply with sections 99-101 of the Act.”
Sections 99 to 101 of the Act, on which the Applicant relies, provides as follows:-
“99.
Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100.
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101.
Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.”
Consideration
In his submissions in support of the Application, the Applicant claims to have completed his visa application form in accordance with s.101 of the Act. The Applicant then notes that an application form is defined in s.97 of the Act which in turn leads to Regulations 2.07 and 1.18 of the Regulations which specify the form in which applications may be made and includes online forms.
The Applicant completed his visa application form online. The language questions appear at page 9 and are set out there and in the Applicant’s Submissions at paragraph 4.
The Applicant relies on the sentence “You have up until the time of the decision to provide evidence that you have competent English”. The Applicant's case is that not only was he misled by the information on the form into believing that he had until the date of the decision to satisfy the requirement (as opposed to providing evidence that he had already done so) but that somehow this purportedly misleading information either expressly or impliedly repeals the effect of the operative Regulation (Regulation 1.15C of the Regulations) to the extent that it is inconsistent with it. As Counsel for the First Respondent states in her submissions, this submission of the Applicant overlooks the fact that the next question on the form clearly asks whether an English language test was undertaken within the last 24 months (cf Reg 1.15C of the Regulations). That question was answered by the Applicant in the affirmative. However, when the Department sought to verify the result of the test upon which the application relied (the test of 10 December 2011) it was unable to do so as the reference number was incomplete and the Applicant was asked by letter sent on 9 October 2012 to provide his IELTS test report. As it transpired, he had been unsuccessful on that occasion. Had the Applicant successfully completed an IELTS test in the 24 month period prior to the making of the application, he would have, as the form suggested, had until the time of decision to provide evidence of that - in the form of an IELTS test result. But the evidence referred to in the form would have had to relate to evidence of successful completion of a test as required by Regulation 1.15C of the Regulations: ie, one that was taken and successfully completed prior to application. Thus, contrary to the submission of the Applicant, there is nothing misleading or inconsistent about the text relating to the provision of evidence that appears on page 9 of the online visa application form immediately above the question that asks, in effect, whether Regulation 1.15C of the Regulations has been satisfied.
The Applicant, before the Tribunal, could not provide any evidence of having ‘competent English’ as defined in Regulation 1.15C of the Regulations (as amended on 1 July 2011) by having achieved the required scores in an IELTS test undertaken by him in the two years immediately prior to his lodging of the visa application.
There is no established jurisdictional error on the part of the Tribunal. Further and importantly, Regulation 1.15C of the Regulations is very clear in its language. The test must have been taken “in the 2 years immediately before the day on which the application was made”. The IELTS test of November 2012 was irrelevant given the very clear words of Regulation 1.15C of the Regulations and cannot be used to establish jurisdictional error on the part of the Tribunal.
The application will be dismissed and costs shall follow the event.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 24 February 2014
11
3
5