Desire v Minister for Immigration

[2020] FCCA 1241

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESIRE v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1241

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) visa – no jurisdictional error established – application dismissed – no order as to costs.

Legislation:

Federal Circuit Court Rules 2001, r 44.12(1)(c)

Migration Act 1958 s. 65

Migration Regulations 1994, Clause 485.212, Part 485 of Schedule 2

Thlork v Minister for Immigration and Border Protection [2019] FCA 333
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: MARIE ELIZABETH CORINA DESIRE

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1181 of 2018

Judgment of: Judge Blake

Hearing date: 13 May 2020

Date of Last Submission: 13 May 2020

Delivered at: Melbourne

Delivered on: 13 May 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the Respondents: Ms Wong

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. The application filed on 3 May 2018 be dismissed and such order become operative from 28 days after the date written reasons are published.

3. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1181 of 2018

MARIE ELIZABETH CORINA DESIRE

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 12 April 2018.  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa. 

2. The Applicant, is a Mauritian national. She arrived in Australia in July 2014 and applied for the visa on 29 August 2017. In support of her application, the applicant provided, among other things, an IELTS English language proficiency test report form dated 7 May 2014, and subsequently to the application, an IELTS English language proficiency test report form dated 1 October 2017.

3. As a requirement of the visa class, the applicant was required to meet the criteria contained in Subclass 485. The criteria for the grant of the subclass 485 visa is set out in Part 485 of Schedule 2 of the Migration Regulations 1994. Clause 485.212 relevantly required that:

   ‘The application is 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; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.’

4. It is not in dispute that the applicant did not satisfy subparagraph (b) of Clause 485.212.  The applicant is from Mauritius.  A copy of her passport is contained within the Court Book at page 26. 

5. The focus of the attention of the delegate, and also before the Tribunal, was whether the applicant was able to satisfy subparagraph (a) of Clause 485.212. 

6. It can be readily seen that clause 485.212 refers to an instrument. The relevant instrument at the time was IMMI 15/062. It relevantly required that the applicant achieve specified minimum scores for English language tests in the three year period ending immediately prior to the day on which the visa application was lodged. 

7. Relevantly, for the purposes of the applicant’s visa application, she was, among other things, required to do each of the following: 

   a)ensure that evidence about her English language proficiency ‘accompanied’ her application as required by clause 485.212;  and

   b)ensure that any language test score that accompanied the visa application had been achieved in the three year period ending immediately prior to the day on which the visa application was lodged.

   (emphasis added)

8. The applicant’s visa application form is contained at page 1 of the Court Book. It is uncontroversial that when she completed the form she answered a question in relation to her English language proficiency.  In response to the question of whether she had undertaken an English language test within the last 36 months, the applicant answered ‘no’.  See pages 1 and 9 of the Court Book.

9. It is also uncontroversial that the applicant’s visa application form was accompanied by, relevantly:

   a)an IELTS English language test report form dated 7 May 2014, see page 13 of the Court Book; and

   b)a payment summary for an IELTS English language test booked for 9 September 2017; see page 14 of the Court Book.

10. The applicant’s visa application was assessed by a delegate of the Minister at first instance.  On 19 October 2017, the delegate refused to grant the applicant the visa.  Among other things the delegate noted that the IELTS test result that accompanied the visa application was completed more than three years prior to the visa application contrary to the requirements of the relevant instrument.

11. Further the delegate noted that another IELTS test form dated September 2017 was submitted after the visa application contrary to the requirement of Clause 485.212. The applicant sought a review of the delegate’s decision by the Tribunal on 6 November 2017. The applicant accepted an invitation to attend a hearing of the Tribunal. She subsequently provided a written submission to the Tribunal. 

12. In that submission, which is contained at pages 70 – 72 of the Court Book, she stated that she did not have the benefit of legal assistance and could not attach the relevant test results at the time of lodging her application.

13. The applicant attended the hearing of the Tribunal on 4 April 2018.  Subsequently, on 12 April 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.

14. The decision of the Tribunal is of short compass and is contained within one and a-half pages in the Court Book. The Tribunal relevantly:

    a)identified that the applicant was required to satisfy clause 485.212;

    b)identified the relevant instrument as IMMI15/062;

    c)considered whether the applicant would satisfy subparagraph (b) of clause 485.212 by being the holder of a passport in one of the specified countries and found that there was no evidence which supported a conclusion that the applicant could satisfy subparagraph (b);

    d)checked the English language proficiency test submitted with the visa application and found that it had not been taken within a period of 36 months immediately prior to the lodgement of the visa application as required by IMMI15/062; and

    e)found that the later IELTS test result of September 2017 was lodged after the visa application and as such it did not accompany the visa application.

15. On the basis of what is set out above, the Tribunal found that the applicant did not satisfy the criteria stipulated in Clause 485.212 and was therefore not eligible to be granted a visa.

16. Before this Court, the applicant seeks a review of the Tribunal’s decision. She has filed an affidavit in support of her application. She has also filed written submissions which, although filed late, I have considered.

17. The applicant’s plea is that she has been harshly punished for failing to strictly comply with the relevant regulations.  She says, understandably, that she was straight forward and up-front in her visa application.  She says she has spent many years and significant moneys to obtain her Australian degree.  She says that the strict application of the regulations are unfair and are unjust and would cause her undue hardship.

18. In submissions before me, she said she was unable to complete the relevant forms because her passport was in the process of being renewed.  In her affidavit, she says that her life will be ruined and all her hard work and study will go to waste, if she is not permitted to rely on the English test scores she has provided.  Accordingly, she seeks, inter alia, that she be permitted to submit her English language scores late or that her matter be reheard. It is difficult not to have some sympathy with the position that the applicant finds herself in after all of these years of study in Australia. 

19. The application for review contains six grounds of review.

    ‘1. The Tribunal made an error oflaw in incorrectly applying section 65 of the Migration Act 1958.

    2. The Tribunal made an error of law in incorrectly applying Part 485 of Schedule 2 of the Migration Regulations 1994.

    3. The Tribunal failed to exercise procedural fairness in favour of the Applicant.

    4. The Tribunal ought to have allowed the Applicant to take and supply an English Test for the purpose of a merits review.

    5. The Applicant has achieved the required English results and ought to be granted a Subclass 485 Temporary Graduate Visa.

    6. As a merits review in the Tribunal, the Tribunal ought to have accepted the English test score.

    7. Test Results taken from after a visa application is made may be given for the 485 Visa.’

20. Grounds 1 and 2 assert that the Tribunal made an error of law in, respectively, incorrectly applying section 65 of the Migration Act 1958 and incorrectly applying Part 485 of Schedule 2 to the Regulations. Neither error is identified in any of the application, the applicant’s affidavit or the applicant’s submissions. The applicant was unable to expand upon it in any meaningful way before me today.

21. These are unparticularised grounds.  An unparticularised ground is one that does not specify what the nature of the jurisdictional error is allegedly committed by the decision maker. Failure to particularise a ground of review is, itself, a sufficient basis for it to be dismissed.  See WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.

22. Grounds 4 and 7 relevantly seek that the applicant be allowed to take and supply an English test for the purposes of a merits review and that a test result taken after a visa application is made may be submitted for consideration.  These grounds misunderstand or misconceive the nature and effect of both clause 485.212 and the relevant instrument. When those documents are looked at, the requirements imposed by them are clear.  The Tribunal does not have a discretion to depart from the text of the requirements set out in clause 485.212 or the relevant instrument. Further, the requirement that an English language test be completed within the 36 month period prior to the visa application being made is a fixed mandatory criterion.  See Thlork v Minister for Immigration and Border Protection [2019] FCA 333.

23. Grounds 5 and 6 effectively argue that the applicant ought to be granted the visa. These grounds, again, misconstrue the requirements of both clause 485.212 and the relevant instrument. It was not open to the Tribunal to accept either of the test results submitted by the applicant because they did not fall within the 36 month period, and, in the case of the later test result, did not accompany the application.  Another way of considering these grounds is that they invite the Court to undertake effectively a merits review. It is well settled that this Court cannot embark upon that course. 

24. Finally, ground 3 asserts, as I understand it, a failure by the Tribunal to exercise or accord procedural fairness to the applicant. Quite how the Tribunal failed in this regard is not made clear either in the materials filed by the applicant or in her oral submissions.  I have averted to earlier steps taken by the Tribunal.  These include inviting the applicant to the hearing, receiving the applicant’s written submission and hearing from her during the hearing.  In the circumstances, I am satisfied there has not been any failure to afford procedural fairness.

25. The situation in which the applicant finds herself is regrettable. She appears to be a person who has attempted to make the most of her study opportunities here, and wished to continue to pursue those opportunities.  Regrettably for her, however, the criteria that she failed to comply with are mandatory and fixed.  The Court’s hands are effectively tied. 

26. I have reviewed the Tribunal’s decision and I am satisfied that the Tribunal applied the requirements correctly. I am satisfied that the Tribunal has not committed any jurisdictional error. 

27. Even if I am wrong about my analysis and an error was identified, I would not order the relief that is claimed. That is because it would be futile to do so. The requirements of clause 485.212 are clear:  the relevant English test must be completed in the three year period prior to the application.  Accordingly, even if I were to grant relief, it would be futile to do so given the operation of the relevant provisions to which I have referred. 

28. In these circumstances, the application must be dismissed. 

29. The Minister seeks costs in respect of the application. The applicant submitted in her written submissions that if she was unsuccessful, no costs order ought to be levied against her.  Given her unrepresented state and the circumstances of this matter, I do not intend to make a costs order. 

30. Finally, there was some confusion as to whether this matter was listed before me for final hearing or for a show cause hearing. The orders made by Registrar Allaway on 12 June 2019 listed this matter for a show cause hearing. However, the registry simply listed the matter for hearing. For the avoidance of doubt, I am satisfied, having reviewed the materials, that pursuant to Rule 44.12(1)(c) of the Federal Circuit Court Rules 2001, final orders should be made in relation to the claim for relief on the grounds mentioned.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 19 May 2020