Endi v Minister for Immigration & Anor

[2013] FCCA 1700

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENDI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1700

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – consideration of language requirements for Skilled (Provisional) (Class VC) visa – concession by applicant that Tribunal committed no jurisdictional error.

Legislation:  
Migration Act 1958 (Cth), s.65

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
Minister for Immigration and Citizenship v Kamal (2009) 178 FCR 379

Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439

Applicant: RAHOTONG ENDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1062 of 2013

Judgment of: Judge Raphael

Hearing date: 16 October 2013

Date of Last Submission: 16 October 2013

Delivered at: Sydney

Delivered on: 16 October 2013

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: DLA Piper

ORDERS

1. Application dismissed.

2. Applicant to pay the Respondent’s costs assessed in the sum of $4,000.00.

3. The name of the First Respondent be amended to ‘Minister of Immigration and Border Protection’.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1062 of 2013

RAHOTONG ENDI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant seeks review of the finding a member of the Migration Review Tribunal made on 23 April 2013. The decision that the Tribunal member made was to affirm a decision of a delegate refusing to grant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (Cth)[1]. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.215 in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth)[2], because the delegate was not satisfied that the applicant had competent English.

   [1] The Act.

   [2] The Regulations

2. As Ms Carr has made clear in her helpful written submissions, the requirement to have competent English was a requirement that the applicant satisfy the Minister that he had undertaken a language test specified by the Minister, that the test was conducted in the two years immediately before the day upon which the application was made, and that the applicant achieved a score specified by the Minister.  Prior to 1 July 2011, clauses such as this had been open to an interpretation which allowed an applicant to sit and pass and English test after he or she had applied for the visa:  see Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; and Minister for Immigration and Citizenship v Kamal (2009) 178 FCR 379. However, as and from 1 July 2011, the Migration Amendment Regulations 2011 (No.3) (Cth) came into force, amending regulation 1.15C to the form in which it existed at the time this particular applicant made his application.  The Explanatory Memorandum for the regulation change states inter alia:

   “New regulations 1.15C, 1.15D, and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM [General Skilled Migration] visa was made. 

   These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made.”  (emphasis added)

   That it was the Parliament’s intention that only an IELTS test undertaken in the two years immediately prior to the date of the visa application could be relied upon was confirmed by Lucev J in Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439.

3. In the instant case the application for a visa was made after the passing of the amendments to the regulations, and thus the applicant was not able to take a test any later than the date of the application for the visa.  He had done so in September 2012, but the Tribunal did not take this into account.

4. Although the applicant, in his application, said that the Tribunal made a jurisdictional error in determining whether he had met the requirements of cl.485.215 of Schedule 2 to the Regulations, the fact is that it did not. This was a matter that the applicant was good enough to acknowledge when he appeared before me today. He told me that he only made the application because he needed enough time to take another test which would help him obtain his nurse’s registration. He has not taken the test, or if he has a taken a test, he has not passed one, and therefore he has not yet got his nurse’s registration. What he intends to do now, I do not know. However, he did suggest that if he was able to take a test in the interim, between this decision and any further activity on his part, and he failed that test, he would return to Indonesia.

5. The end result is that the court is unable to grant the applicant the review he seeks.  The Tribunal’s decision was lawful, as has now been acknowledged.  The application is therefore dismissed, and the applicant must pay the respondent’s costs which I assess in the sum of $4,000.00.  The court orders that the name of the first respondent be amended to ‘Minister of Immigration and Border Protection’.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 October 2013