George v Minister for Immigration
[2020] FCCA 2161
•6 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEORGE v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2161 |
| Catchwords: MIGRATION – Graduate visa – decision of the Administrative Appeals Tribunal – where the applicant completed English Language Test after lodging visa application – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 359AA, 360, 366, 476 Migration Regulations 1994 (Cth), cl.485.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JESTIN GEORGE |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 135 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 6 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 135 of 2020
| JESTIN GEORGE |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He arrived in Australia on a student visa on 9 February 2016 (Court Book (“CB”) 112). On 18 July 2018, he applied for a Temporary Graduate (Post-Study Work) (subclass 485) (the “visa”) (CB 33-44).
On 31 July 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-56). The delegate refused the visa because it was determined that the applicant failed to satisfy cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, there was no evidence that the applicant had completed an English Language Test in the three years immediately prior to applying for the visa.
On 1 August 2018, the applicant emailed the Minister’s Department advising that he had taken an English Language Test the day after he had lodged the visa application and he had obtained the requisite results (CB 57-58). He asked if his application could be reconsidered. The applicant was advised that it could.
On 15 August 2018, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 59-60). He was assisted by a migration agent.
The applicant was originally invited to attend a hearing before the Tribunal on 11 March 2020 (CB 72-74). That hearing did not proceed.
On 30 March 2020, the applicant’s migration agent gave the Tribunal various academic documents, police clearances and an English Language Test (CB 87-108). The migration agent also provided an “explanation” from the applicant that provided:
Jestin’s academic results were published by Curtin University on 6th July 2018 which was hardly a few days before the expiry date of his student visa on 22nd July 2018 (PFA). Jestin had booked his English Language test (PTE provided by Pearson) prior to lodgement of his temporary graduate (485) visa application. But, unfortunately, he could only get the test date on 21st July 2018 which was only a day before his student visa expiry.
He lodged his application for Temporary Graduate (Subclass 485) Visa on 18th July 2018 and while filling the application for the same he had declared that he was not having an English Language requirement, even though he received my English test report on the day of expiry of my student visa. Furthermore, he received all his academic documents on 24th July 2018 and hence was unable to upload the same at the time of lodging the visa application. He was also in possession of the Police Clearance Certificate provided by AFP, Health Insurance and had also completed his medical checkup as per requirement at the time of lodging the visa application.
So, he would like to admit that he had made the mistake of applying for the Temporary Graduate visa (485) on a date prior to possession of all the required documents as he did all the procedure by himself.
On 7 April 2020, the applicant’s migration agent provided written submissions to the Tribunal (CB 109-117). Those submissions conceded that the applicant had not sat the English Language Test prior to lodging the visa application, but suggested that this was because the applicant had completed the application without assistance and because there was “misleading advice” on the Minister’s website.
The applicant was subsequently invited to attend, and did attend, a rescheduled hearing before the Tribunal on 9 April 2020 (CB 84-86 and 118-121). Due to the COVID-19 pandemic health advice in place at the time, the hearing was conducted by telephone. The applicant’s migration agent also attended via telephone.
On 20 April 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 125-128).
On 8 May 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed in this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 4 pages long and spans 23 paragraphs.
The Tribunal provided a summary of the background to the application. This included an overview of the delegate’s reason for refusing the visa. The Tribunal noted that the applicant was represented, noted that both the applicant and agent had attended a hearing and noted that the hearing proceeded by telephone (at [1]-[6]).
The Tribunal then outlined the “issue” on review and detailed the applicable visa criterion as follows:
8. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:
• the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or
•the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).
9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.
The Tribunal explained that the applicant had confirmed at the hearing that he did not hold a passport for any of the countries specified in IMMI 15/062 (at [10]). The Tribunal found that there was no evidence that the applicant held a passport of the type specified. Hence, cl.485.212(b) could not be met (at [11]).
Turning to the relevant English Language Test requirements, the Tribunal then set out the information and evidence before it, as follows:
12. The delegate’s decision records that when making the visa application the applicant declared in his application form that he had not undertaken an English language test in the 36 months prior to making the application.
13. The applicant has not provided the Tribunal with documentary evidence they undertook an English language test in the 36 months prior to lodging their application on 18 July 2018.
14. Before the Tribunal, the applicant set out the circumstances which led to him not meeting the English language requirement. In a written submission to the Tribunal the applicant has explained that he booked Pearson Test of English Academic (PTE Academic) test on 1 July 2018 and undertook the test on 21 July 2018. The applicant submitted a copy of a PTE Academic ‘Score Report’ in the applicant’s name. The test date was 21 July 2018. The overall score was 60. He also submitted an email confirmation from the booking of his test on 1 July 2018.
15. The applicant stated that he had taken an IETLS test in June 2015 but that report 18 June 2015 which was more than three years prior to lodging his application. The applicant’s representative submitted that he believed he could lodge the application and then obtain and provide the English language test report post lodgement.
16. In written submissions, the applicant’s representative submitted as follows:
As a result of the above events and thought process carried out by the applicant Mr Jestin, I request you to review the decision made on his subclass 485 visa application. He achieved the required scores in the PTE test that he was booked to attempt on 21 Jul 2018. The same report is attached for your reference. Mr Jestin had also provided several other information and documents in support of the application for 485 visa. The numerous documents attached prove that Mr Jestin tried his best to book, appear and obtain the PTE test reports prior to the visa lodgement. He further states that if given a chance at that time he would have provided the PTE test result.
Therefore, he believes, his visa was refused on unjustifiable grounds. Jestin is aiming to have a better future by gaining exceptional work experience here in Australia, which will certainly support him for his career growth. He states that he is currently working as a Quality Assurance Manager in Glober Power Services Pty Ltd Malaga, WA since 10 months now.
This particular field of work relates to the studies he has completed in India and also in Australia. If Mr Jestin is denied the AAT appeal, this will deprive him of a better career, which will eventually lead him to assume that his time and effort of achieving a degree in Australia has gone fruitless.
The Tribunal noted that it had explained to the applicant that to meet the requirements for the visa, the applicant had to have undertaken and achieved the required score in an English Language Test three years before the day in which he made the application for the visa (at [17]). The Tribunal noted that the applicant told the Tribunal that he did not know about the requirements, was pressed for time and did not have a chance to lodge the required documents (at [18]).
The Tribunal explained to the applicant that he was required to have taken the English Language Test at the time he made the application. Further, the Tribunal was unable to waive this requirement (at [19]).
Having assessed the evidence before it, the Tribunal concluded as follows:
20. The Tribunal has considered the evidence provided by the applicant and the submissions made by his representative. The Tribunal accepts that the applicant has undertaken a specified English language test – a PTE Academic Test - and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
The Tribunal was not satisfied that the applicant met cl.485.212(a) of the Regulations (at [21]). Accordingly, the Tribunal refused to grant the applicant the visa (at [22]-[23]).
Proceedings in this Court
In his application for judicial review dated 8 May 2020, the applicant does not provide any “grounds of review” per se. Rather, he provides a lengthy passage that provides:
I, Jestin George, Passport number [x] Date of Birth: [x] made an application for a Temporary Graduate Visa subclass 485 Post-Study Work Stream on 18 Jul 2018. I was the primary applicant. At the time of application, I had provided all the necessary documents, relating to the 485 visa application. I had all required documents for the application of a 485 visa including Australian Federal Police Check, health insurance, etc. at time of application. Department of Home Affairs (DOHA) refused my visa application because, according to the decision maker, I did not satisfy the Regulation 485.212 from The Migration Regulations 1994. Basically I was refused on the basis that I failed to submit the evidence of English language test report and thus according to the decision record I did not meet the requirements of schedule 2 of the Migration Regulations as set out at regulation 485 .212. However, the officer did not give me a fair chance for providing further explanation or clarifications in relation to my circumstances or English language ability. Based on the information given by me at the time of application, without any request for further documents or clarification, I received a notice of refusal of 485 visa application by Department of Home Affairs on 31 Jul 2018, which stated that I did not satisfy clause 485 .212 of the Migration Regulations. The decision maker stated that I did not satisfy clause 485.212 and regulations do not support my claims and therefore they refused to grant me the 485 visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 485 .212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 485 .212 which describes the eligibility criteria for a 485 applicant in terms of English language ability. Before lodging the 485 visa application, I referred to the requirements listed on the immigration website.
Wherein I can show the evidence that in the last 3 years, I have achieved a minimum of scores specified in the table for English language With lack of my understanding about the requirements for 485 visa, I believed that I could lodge the visa application and then obtain and provide the English language test report post lodgement. As the department’s website does not specify that the English language report must be of before the time of lodgement or before the time of decision. Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the 485 application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness and eligibility, I think the decision maker has taken the advantage of his discretionary power to refuse the 485 visa. I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too. This was a self-lodged visa application and I did not realise that the department’s website has any hidden requirements additional to the ones available online. I booked for my PTE English exam before the application was lodged. However, as I could only obtain a date for PTE test as 21 Jul 2018 I thought it would be too late to lodge the 485 visa. I lodged the application with the payment receipt of PTE test booking. I genuinely intended to obtain 485 visa as I wanted to pursue a career and have work experience in what I have studied in Australia. I am also currently working in a company as a Civil Engineer (Site QA/QC officer). AAT scheduled a telephone hearing for me. I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study business courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.
After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. Therefore, I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case. I have a strong view that AAT should have considered the fact that I was capable of the English language, I submitted the application on my own referring to the requirements listed on department’s website and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was holding the PTE test report after lodgement, I still satisfy the clause 485.212. I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to continue build a career after what I have graduated in from Curtin University. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me.
In his affidavit dated 4 May 2020, the applicant also says:
…The AAT Decision Maker has not made a fair decision.
The applicant was given an opportunity to file an amended application, further affidavit evidence and an outline of written submissions. No further documents were provided.
The materials before the Court are thus limited to those referred to above, a Court Book numbering 132 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 31 July 2020. The Court confirmed with the applicant that he had received a copy of both the Court Book and the Minister’s written submissions.
The applicant appeared without legal representation. Noting that he was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review in his application for judicial review and to outline any other concern that he had with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that it can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that “his previous visa was expiring and that he had all of the documents and arrangements made at the time that he submitted the application”. The applicant also explained that he had booked his English Language Test on 1 July 2018 (prior to applying for the visa).
The applicant further stated that the Tribunal did not give him a fair chance to submit his documents. Rather, the Tribunal simply dismissed the application. When the Court sought to clarify this submission, the applicant explained that if he had been told or given an indication when he applied for his visa that he needed to have the English Language Test he might have applied for another visa at a later date.
The Court will address these submissions below.
Consideration
As the applicant has not formulated proper “grounds”, the Court will extract the passages of the applicant’s application and address them in sequence.
The applicant commences by stating:
I, Jestin George, Passport number [x] Date of Birth: [x] made an application for a Temporary Graduate Visa subclass 485 Post-Study Work Stream on 18 Jul 2018. I was the primary applicant. At the time of application, I had provided all the necessary documents, relating to the 485 visa application. I had all required documents for the application of a 485 visa including Australian Federal Police Check, health insurance, etc. at time of application. Department of Home Affairs (DOHA) refused my visa application because, according to the decision maker, I did not satisfy the Regulation 485.212 from The Migration Regulations 1994. Basically I was refused on the basis that I failed to submit the evidence of English language test report and thus according to the decision record I did not meet the requirements of schedule 2 of the Migration Regulations as set out at regulation 485 .212.
These are all factual matters that arise from the Court Book. They do not indicate jurisdictional error on the part of the Tribunal.
The applicant continues:
The decision maker stated that I did not satisfy clause 485.212 and regulations do not support my claims and therefore they refused to grant me the 485 visa. According to me I believe that the rule that they applied at the time of making decision on my visa application, which is cl. 485.212 was clearly satisfied. With a lack of knowledge in rules and regulations, I referred to the whole decision record from the department. I realised that the case officer has mentioned in the decision record that I did not satisfy cl. 485 .212 which describes the eligibility criteria for a 485 applicant in terms of English language ability. Before lodging the 485 visa application, I referred to the requirements listed on the immigration website.
The applicant is referring to the delegate’s decision. This Court has no jurisdiction in relation to the delegate’s decision: the Act, s.476(2) and (4). Further, whether the applicant believes that he “clearly satisfied” the criteria indicates no more than disagreement with the overall findings. In relation to the immigration website, there is no evidence before the Court about what the website states. Without more, it cannot be said that information on a website establishes jurisdictional error on the part of the Tribunal.
No jurisdictional error arises in this regard.
The applicant then states:
Wherein I can show the evidence that in the last 3 years, I have achieved a minimum of scores specified in the table for English language With lack of my understanding about the requirements for 485 visa, I believed that I could lodge the visa application and then obtain and provide the English language test report post lodgement. As the department’s website does not specify that the English language report must be of before the time of lodgement or before the time of decision
The fact that the applicant misunderstood the relevant requirements does not evidence jurisdictional error. Whether or not the Minister’s Department’s website specified or did not specify certain information is largely irrelevant in circumstances where the legislation clearly states what is required and the legislation is the relevant consideration (not a second hand source).
No error arises in this regard.
The applicant then states:
Given a fair chance by the decision maker I was able to satisfy these clauses and I truly believed that there has been an error in the decision maker’s judgement for the 485 application. As I was not given a chance by the officer and the officer did not ask or request for any further documents relating to the genuineness and eligibility, I think the decision maker has taken the advantage of his discretionary power to refuse the 485 visa.
The applicant is again referring to the delegate’s decision, which this Court has no jurisdiction to review. Whether there was an obligation on the part of the delegate to request further documents is not, in any event, apparent. Finally, there is no discretionary power to refuse the visa. Clause 485.212 is mandatory.
No error arises in this regard.
The applicant continues:
I have also carefully gone through the decision record from Administrative Appeals Tribunal. I wish to say that I was repeatedly misguided by my friends and was not given a fair chance at the AAT for my visa application too.
The applicant says that he was “misguided” by friends. He has provided no evidence to support this statement. He did not refer to being misguided when explaining his circumstances to the Tribunal.
The applicant does not indicate what he means by a “fair chance”. At the hearing before this Court, the applicant stated that he felt that he was not given a proper opportunity to present his arguments and documents.
The Court is satisfied that the Tribunal gave the applicant procedural fairness as required by pt.5, div.5 of the Act. Specifically:
a)prior to the hearing, the applicant’s migration agent provided a number of supporting documents and submissions (CB 87-117);
b)the applicant was invited to attend a hearing. He attended a hearing and was assisted by his migration agent and he engaged with the Tribunal: the Act, s.360. While that hearing proceeded by telephone, the Tribunal is empowered by s.366 to conduct a hearing by telephone and no issue was raised by the applicant or his agent in this regard;
c)notwithstanding that the determinative issue had not changed and the applicant was clearly on notice that the lack of English Language Test being taken prior to his application was a critical matter, the Tribunal nonetheless advised the applicant of this issue and explained the legislation to him before inviting him to comment. No error of the kind in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 is evident;
d)there was no information that was required to be put to the applicant pursuant to s.359A or 359AA of the Act;
e)there is nothing on the face of the materials to suggest that the applicant or his agent requested an adjournment or any additional time to provide any information so as to enliven a discretion. There is also nothing on the face of the decision to suggest that the applicant wished to provide further documents; and
f)the Tribunal actively engaged with the applicant during the hearing and sought to help him understand the visa requirements before inviting him to comment. The Tribunal gave the applicant a fair chance to make his arguments. Further, there is nothing to suggest the Tribunal displayed actual or apprehended bias.
No jurisdictional error arises in this regard.
The applicant continues:
This was a self-lodged visa application and I did not realise that the department’s website has any hidden requirements additional to the ones available online. I booked for my PTE English exam before the application was lodged. However, as I could only obtain a date for PTE test as 21 Jul 2018 I thought it would be too late to lodge the 485 visa. I lodged the application with the payment receipt of PTE test booking. I genuinely intended to obtain 485 visa as I wanted to pursue a career and have work experience in what I have studied in Australia. I am also currently working in a company as a Civil Engineer (Site QA/QC officer).
The fact that the applicant lodged the application without assistance does not entitle him, legally, to “leniency”. The relevant requirements were not “hidden”. They were outlined in the legislation. While an unrepresented applicant might reasonably fail to access the legislation (and instead rely on the Department’s website), this does not assist in establishing jurisdictional error.
The applicant’s personal circumstances are most unfortunate. The Court does not doubt that he genuinely misunderstood what he was required to do. He clearly wanted to pursue a career in Australia. The emotion he showed at the hearing before this Court was palpable. Unfortunately, the applicant’s errors (however innocent) were such that the visa could not be granted.
No error arises in this regard.
The applicant continues:
AAT scheduled a telephone hearing for me. I was not given a chance to speak or explain further and provide any explanation or make request for extension at the Tribunal to grant me permission to study business courses. I wasn’t provided the natural justice by the Tribunal member who made the final decision.
For the reasons given above at [45], the Court finds that the applicant was provided “natural justice”. The Tribunal did not simply dismiss his case. The Tribunal forensically assessed the evidence it had before it and came to the only conclusion open to it.
Further, the applicant did not object to the hearing proceeding by telephone and the Tribunal’s decision demonstrates that the applicant was able to speak and explain his concerns (at [10], [14]-[15] and [18]). As noted above, there is nothing to suggest that any request for an adjournment or additional time was made.
No jurisdictional error is identified in this regard.
The applicant then states:
After the department refused my visa, I applied for the review the application at the AAT with the expectation that they would understand and consider my scenario. I believe that the information I provided was not carefully acknowledged. Therefore, I truly think the immigration department and the AAT did not provide procedural fairness in making a decision on my appeal application.
Again, the Court refers to [45] above. The Tribunal did afford procedural fairness to the applicant.
While the Tribunal may not have expressly acknowledged the additional documents the applicant provided on 30 March 2020, it can be inferred that the reason for this was that it was not material to the Tribunal’s decision. The applicant had confirmed that he did not take the test prior to lodging the visa application because of a misunderstanding. As the Tribunal explained, there was simply no discretion to waive the criterion in these circumstances.
No jurisdictional error arises in this regard.
The applicant then states:
The main reason behind filing this appeal application at the Federal Circuit Court is that I believe that the tribunal member making the decision at the AAT has not been fair and have not given natural justice to my particular case.
The Court refers to [45] above. It cannot be said that natural justice has been denied here.
The applicant concludes:
I have a strong view that AAT should have considered the fact that I was capable of the English language, I submitted the application on my own referring to the requirements listed on department’s website and had a fair chance of approval. I also believe that I have strong grounds to challenge the decision made by AAT as I am aware that although I was holding the PTE test report after lodgement, I still satisfy the clause 485.212.
Clause 485.212 of the Regulations states:
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; or
…
Clause 485.212 does not require the Tribunal to consider whether the applicant is capable of meeting the English language requirement, that he submitted his application without assistance and that, otherwise, he had a fair chance of approval. All that cl.485.212 requires the Tribunal to consider is whether the applicant provided evidence in his visa application that he had taken a specified language test in the three years before 18 July 2018 and had achieved the score specified in that test.
Here, the applicant’s own evidence was that he had not undertaken the test prior to lodging his application. While the applicant submitted that he had booked a test prior to lodging the visa application, he had not in fact taken the test. As a result, his application was not “accompanied by evidence” that he had taken an English Language Test within the three years immediately before the day on which the application was lodged: Khan v Minister for Immigration & Border Protection [2018] FCAFC 85 at [15]-[17].
The applicant did not satisfy cl.485.212. His visa application was never “accompanied by evidence” that he took the test and had achieved the score within the three years before the day on which he made the application. He took the test after the specified period. In those circumstances, the visa could not be granted. As there was no discretion to waive the criterion, the Tribunal was under no obligation to consider anything else. The visa had to be refused.
No jurisdictional error arises in this regard.
The applicant concludes:
I request the Federal Circuit Court to please shed some light in my case and provide justice to me. I have attached decision record from both AAT and Department of Immigration. I have hope in Federal Circuit Court that I would be considered as I have been a genuine applicant who has made genuine efforts to continue build a career after what I have graduated in from Curtin University. I genuinely hope you will consider my scenario and provide justice to my case. If there is anything else required to support my claims and application, please do contact me
The applicant was, understandably, unaware of what was required of him. The Regulations are not easy to navigate. Nonetheless, there is no right to migration assistance when applying for a visa. Further, as the Minister submitted at the hearing, the visa application itself clearly indicated what was required. Unfortunately, any oversight and ill timing on the part of the applicant, while unfortunate, does not address the fact that he simply did not meet the mandatory criteria.
Conclusion
The circumstances of this case are most regrettable. Undoubtedly, had the applicant had assistance at an earlier stage he may have avoided the situation he now finds himself in. Unfortunately, this does not alter the Court’s conclusion that the Tribunal’s decision is without jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 August 2020
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