Farook v Minister for Immigration
[2014] FCCA 1000
•23 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAROOK v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1000 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – applicant failing to achieve “Competent English” – whether Tribunal should have given the applicant further chance to take test – whether Tribunal should have considered class of visa not applied for – no jurisdictional error demonstrated. |
| Legislation: Migration Regulations 1994, reg.1.15C, 1.15C(a)(ii) Migration Act 1958, ss.64, 64(1) |
| Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 Minister for Immigration and Citizenship v Li [2012] FCAFC 74 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 Huynh v Minister for Immigration and Citizenship (2012) 269 FLR 92 |
| Applicant: | ANWAR ALI MOHAMED FAROOK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1121 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 29 January 2014 & 13 March 2014 |
| Date of Last Submission: | 24 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the First Respondent: | Mr N. Wood |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1121 of 2012
| ANWAR ALI MOHAMED FAROOK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 15 August 2012. The Tribunal affirmed the decision of a delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa. Put shortly the Tribunal was of the view that the applicant did not meet the test of competent English as defined in reg.1.15C of the Migration Regulations 1994 (“the Regulations”) and was not otherwise entitled to any other visa.
The applicant’s grounds of application are unfortunately not entirely easy to understand, but appear to suggest three substantive matters.
The first, set out as the only ground of application in the application itself, is a denial of natural justice by the Tribunal by failing to give the applicant a further opportunity to obtain the requisite IETLS score.
The second ground identified in the applicant’s Contentions of Fact and Law filed 11 September 2013 (paragraph 1) is that the Tribunal was in error in failing to consider the applicant for a sub-class 487 visa.
The third ground (described as ground 2 in the first respondent’s written submissions, paragraph 3.2) is an assertion that the Tribunal denied the applicant natural justice in finding that the applicant did not comply with reg.1.15C and failed to apply the High Court’s decision in Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251.
For the reasons that follow, I think there is no force in the applicant’s submissions and it follows that the application must be dismissed.
Ground 1: The alleged breach of natural justice by failing to give the applicant a further opportunity to sit IELTS test
This matter is asserted in the original Application but it is not further expanded in the applicant’s Contentions of Fact and Law. In oral submissions to the Court counsel for the applicant referred to the applicant’s IELTS test results (Court Book (“CB”) 247-248), which relevantly showed that the applicant did not satisfy the test of competent English. Counsel submitted that although the applicant had not asked for an extension of time to submit further results, the Tribunal should have given him this time.
Counsel for the first respondent dealt with this matter in both written and oral submissions. Counsel conceded that in certain circumstances a failure to adjourn may be such that the Tribunal might fail to discharge the statutory review function, because the failure to grant an adjournment deprives the applicant of a meaningful hearing thus depriving the applicant of procedural fairness (Minister for Immigration and Citizenship v Li [2012] FCAFC 74).
Counsel for the first respondent submitted that the position here was totally different. As counsel submitted, it is clear that the original Application did not prove that the applicant had competent English within the meaning of the Regulations.
I interpolate and say that the assertion made by counsel for the applicant, in reply, to the effect that reg.1.15C was not in force at the relevant time is plainly wrong.
It has, I think, been amended from time-to-time but not in my view in any material way. While it is true that the applicant did assert in his Application (CB12) that his language ability was “competent”, the fact is that no proof of that assertion was provided and his IELTS score from his test dated 28 August 2009 was not part of that Application.
In any event, I take it to be common cause that those results were as recorded by the delegate at CB87 and it is clear that he had not then passed.
It is equally clear that the first respondent’s submission that the applicant had not provided a successful score by the time of the Tribunal hearing is also correct. Indeed the Tribunal specifically gave the applicant time to undertake a test foreshadowed as due to be heard on 21 July 2012 and the results of that test (CB247-248) show that the applicant once again did not achieve a pass of six or more in each of the required sub-elements of the test.
In this case, the Tribunal expressly gave the applicant, who had notified on 5 July 2012 that he was going to take his test on 6 August 2012 (see CB239), the opportunity to do so. As the Tribunal noted (paragraph 26, CB255) the Tribunal having held off until 7 August 2012 was provided with correspondence on 6 August 2012 showing that the applicant failed to meet the relevant score.
In these circumstances, and given that there was no application by the applicant, who was legally represented throughout the relevant portions of this process, for further adjournment to further take the test, I entirely accept the submission of the counsel for the first respondent that the Tribunal could not possibly said to have fallen into jurisdictional error in failing to grant the applicant a yet further adjournment that he had not requested.
Ground 2: The failure to consider subclass 487 visa
The applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa. He did not apply for a subclass 487 Skilled-Regional Sponsored visa. The form he filled in is entitled “General Skilled Migration Applicant Form” and has the further heading “Skilled Graduate (Temporary) (Class VC, subclass 485) at CB1. Further references at CB21, CB35, CB61, CB70, CB78, CB79, CB96 and CB112 make it clear beyond any doubt that what the applicant applied for was a subclass 485 visa and also that he unquestionably never applied for a subclass 487 visa.
This was so notwithstanding that the decision of the delegate made it clear that the applicant’s application had been assessed not only against subclass 485 but subclass 487 (see CB86-88).
The delegate found that the applicant had not met the requirements of subclause 487.213 which effectively required the applicant either to be nominated by a State or Territory government agency and that the applicant meets certain other sponsorship requirements.
The delegate’s finding was in my view correct. It should be noted that although the matter then proceeded to hearings before the Tribunal, this Court and the Federal Court, no further delegate’s consideration has ever occurred because the Federal Court remitted the matter to be reheard by the Tribunal and it is that latter decision that has given rise to this appeal.
It is also the case that subclass 487 visas attract a far higher lodgement fee. The fee for a subclass 485 visa is $230 and the fee for a subclass 487 such as that not applied for by the applicant is $2,525.
It is a requirement of the Regulations that the fee must have been paid at the time of application.
The Tribunal from which this review has sprung did not do more than refer to the decision of the delegate (see paragraph 33, CB255). The Tribunal went on with its own motion to take the point about the non-payment of the relevant visa fee.
In my view, notwithstanding the criticisms of the counsel for the applicant, who said that no valid consideration had been given to the subclass 487 application, it would seem to me that both the delegate and the Tribunal’s decisions are unimpeachable. The applicant never suggested that his was a subclass 487 application and never addressed, scarcely surprisingly, both the requirement for a nomination from a government agency and/or for sponsorship. Likewise the applicant, who did not apply for a subclass 487 visa, never paid the prescribed fee for it.
In my view, this ground of appeal must be dismissed.
Ground 3: The Regulation 1.15C applicability point and the decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
The first respondent’s written submissions assert at paragraph 30 that this “ground of review is difficult to understand”. With respect, I agree. There is no question that reg.1.15C has been in force for many years, certainly long before the applicant’s application in 2009.
Further, the Tribunal did not fail to apply Berenguel. Berenguel is authority as I would understand it for the proposition that notwithstanding the terms of reg.1.15C an applicant may rely upon an IELTS score achieved after the application is filed but before the decision is reached. In this instance what the Tribunal said was (CB255, paragraph 29):
“There is no evidence before the Tribunal that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of at least ‘B’ in each of the 4 test components in an Occupational English Language test, conducted not more than 2 years before the day on which the visa application was lodged (as interpreted in light of Berenguel).”
That assertion seems to me to be unchallengeable and nothing turns on Berenguel in the circumstances of this case.
This ground is also in my view without merit.
The IMMI point
As a model litigant, counsel for the first respondent referred the Court to what was said to be an error in the Tribunal’s decision. The Tribunal had assumed that IMMI09/073 was the applicable instrument for the purposes of reg.1.15C(a)(ii). In the light of the submissions made by the first respondent, I think it is probably more correct to say that the applicable instrument is indeed IMMI12/018, which came into force on 12 June 2012 and expressly revoked the earlier IMMI11/036 which itself had expressly revoked IMMI09/073. The two later IMMI documents having revoked the earlier ones appear to operate from the date of their introduction. As counsel for the first respondent correctly in my view submits however nothing turns on this matter as the applicant would not have met any of the IMMI scores whether in IMMI09/073, IMMI11/036 and IMMI12/081.
Additional ground advanced orally at the hearing before the Court
Following the conclusion of the hearing Messrs Clayton Utz solicitors for the first respondent wrote to my associate on 14 March 2014. The letter purported to respond to oral submissions made at the hearing by counsel for the applicant “which articulated, for the first time, an argument based on s.64 of the Migration Act 1958 (“the Act”).”
The submission pointed out because this matter was raised very late counsel did not have with him the decision Huynh v Minister for Immigration and Citizenship (2012) 269 FLR 92. The letter went on to draw the Court’s attention to paragraph [18] of that judgment.
Mr Fernandez counsel for the applicant replied on 24 March 2014. He took formal objection to the correspondence sent unilaterally by Clayton Utz but nonetheless, responded. Mr Fernandez’s letter is not altogether easy to construe but I think the point sought to be made is that the terms of s.64 of the Act (which impose an obligation on the first respondent, when in receipt of an otherwise valid application but the visa application charge is not paid, to give notice of the same to the applicant).
It seems to me that the difficulty with the submission advanced by Mr Fernandez is that the applicant not only failed to lodge the relevant fee but more particularly as earlier indicated in this decision, he had never made an application under subclass 487. The precondition therefore contained in s.64(1) was not met. It follows that the Tribunal did not fall into error in this regard.
Conclusion
In these circumstances, the applicant’s grounds of application are not made out and the application will be dismissed with costs.
I will make the necessary orders to change the name of the first respondent also.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 23 May 2014
3
2
2