Ghouri v Minister for Home Affairs
[2019] FCCA 1559
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GHOURI v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1559 |
| Catchwords: MIGRATION – Skilled (Provisional) (Class VC) (Subclass 485) – Review of decision of Administrative Appeals Tribunal – English language criterion – where applicant has a learning disability – where Tribunal has no discretion – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.485.212, sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| Applicant: | YOUSUF IQBAL GHOURI |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 297 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 6 June 2019 |
| Date of Last Submission: | 6 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Ms A Coole |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made 6 June 2019)
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 297 of 2018
| YOUSUF IQBAL GHOURI |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 6 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondent’s costs fixed in the sum of $6,000.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 6 June 2019.
Background
By application filed in this Court on 5 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 1 May 2018.
The Tribunal affirmed a decision of a delegate of the now Minister for Home Affairs (the “Minister”) to not grant the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court had before it in evidence a Court Book (“CB”) comprising 98 pages (not including the filing sheet and contents). The Court also received written submissions from the Minister filed 16 May 2019. The Court also received an affidavit from the applicant sworn 2 June 2018 and an affidavit from the applicant sworn 31 August 2018. Those affidavits provide information relevant to the applicant’s academic history and medical evidence relevant to the applicant’s diagnosis of dyslexia.
The Minister’s submissions at [2]-[8] summarise the relevant chronology. The Court adopts this summary as its own. That summary (with minor alterations) provides as follows.
The applicant is from Pakistan (CB 1). He appears to have arrived in Australia sometime around June 2012 on a student visa.
The applicant applied for the visa the subject of this application on 15 March 2017. In support his visa application, the applicant provided a Pearson Test of English Academic (“PTE Academic”) Score Report dated 13 March 2017 indicating that he achieved an overall score of 48 (CB 50).
On 4 May 2017, a delegate of the Minister refused to grant the visa on the basis that the applicant did not meet cl.485.212(a)(ii) or (b) of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 59-62). Specifically, the applicant did not meet the minimum English language requirements as the minimum PTE score required was 50. He had also not provided evidence of a USA, UK, Canadian, New Zealand, or Irish passport. Nor had he undertaken an English test in the previous 36 months that demonstrated a level of competent English.
On 21 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 63).
At the time of lodging the review application, the applicant provided to the Tribunal a PTE Academic Score Report that was undertaken on 10 May 2017 which showed an overall score of 55.6 (CB 90).
Also submitted to the Tribunal was a statement from the applicant advising he had dyslexia and that this inhibited his results on the PTE Academic test. A letter from his university corroborating the effects of this medical condition, and a transcript of his studies, was also supplied (CB 85-88).
On 30 April 2018, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his migration agent (CB 79). The hearing was conducted without the assistance of an interpreter. It is noted that an interpreter had not been requested.
On 1 May 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 95).
Tribunal Decision
The Tribunal decision is relatively short. It is just over two pages and spans 19 paragraphs. The substance of the decision appears at [7]-[16]. Paragraphs 1-7 merely recite factual and procedural matters.
Relevantly, the decision provides:
7. 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)).
8. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.
9. The applicant is a citizen of Pakistan. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore the applicant must meet cl.485.212(a).
10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that in his visa application the applicant answered “yes” to the question “Do you hold a current passport from the USA, UK, Canada, New Zealand, or the Republic of Ireland… or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English”. The delegate records that in support of the applicant’s claim to have competent English, he provided a PTE Academic Test Taker Score Report, Registration ID 311345037 undertaken on 13 March 2017. It records that the applicant achieved an overall score of 48. The Tribunal has had regard to the relevant instrument which specifies for cl.485.212(a)(ii) that the minimum overall test score for a PTE Academic test is 50.
11.At the time of making his review application, the applicant provided to the Tribunal a copy of a PTE Academic Test Taker Score Report recording that the applicant achieved an overall score of 55 and exceeded the minimum specified scores in each test component.
12. At the hearing the Tribunal explained to the applicant that the visa application had to be 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. It explained that the period specified is three years before the day on which the visa application was made.
13. The applicant provided further evidence to the Tribunal; a copy of his Bachelor of Creative Industries from Edith Cowan University (ECU) and the related transcript, and a letter from ECU confirming it was aware the applicant has dyslexia but it did not impact on his performance as a student. He also provided a written statement in which he explains he came to Australia in 2012 as the holder of a student visa valid until 15 March 2017. He undertook the PTE test on 13 March 2017 and missed the required score by only 2 points. He thought it was best to send those results to the Department and he would send subsequent PTE results as soon as he had them. The next available test was on 10 May 2017 and he scored an overall score of 55. The reason for not achieving the desired result is due to the fact that he is dyslexic and the exams he took did not cater for people with his condition. Despite his condition he was able to achieve the required score. He asks that the Tribunal examine his results for both tests and note that his spelling scores in the tests are consistently low, due to his dyslexia, while vocabulary, grammar and speaking are higher. However he did well in his degree which was taught in English. He has had films nominated at festivals. He wishes for the Tribunal to take these factors into account.
14. The Tribunal explained to the applicant that it does not have any discretion to waive the requirement that the applicant meets cl.485.212 and the specifications set out in the relevant instrument. It explained that while he was able to achieve the specified scores in the test undertaken in May 2017, the test was not taken in the period specified.
15. The Tribunal has considered all of the applicant’s evidence including his qualifications and written submissions. However it is required to consider whether the applicant’s visa application on 15 March 2017 was accompanied by evidence that he has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified. The applicant provided a PTE Academic Test Taker Score Report for a test undertaken on 13 March 2017, a specified test undertaken within the period specified. However his overall score was only 48, less than 50, the minimum overall score specified in the instrument. The applicant has also provided results for a PTE Academic test taken subsequently in which he achieved the specified scores. However this test was undertaken on 10 May 2017 which was not in the specified period.
16. The Tribunal understands that the applicant’s condition, dyslexia, may have impacted on his performance in the test taken in the specified period. However the Tribunal has no discretion in this case. On the basis of the evidence before it the Tribunal is not satisfied the application was accompanied by evidence the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
(CB 96-97)
Overall, the Tribunal was not satisfied that the application was accompanied by evidence that the applicant meets cl.485.212(a) (CB 97 at [17]).
The Tribunal concluded that the applicant did not satisfy the criteria for the grant of a temporary graduate visa and affirmed the decision under review (CB 97-98 at [18]-[19])
Proceedings in this Court
In his judicial review application, the applicant raised five “grounds”, as follows:
1. I believe that the decision made by the AAT was unfair and my learning difficulty was not taken into consideration before making this decision. I was unable to meet the grounds cl.485.212(a) due to fact that I am dyslexic and have made multiple attempts to achieve the required score before applying for visa. I did achieve the required score eventually. The English tests are not designed to help in my situation.
2. The AAT acknowledged my learning disability may have impacted my PTE score however the tribunal has not discretion in this case. I believe that the federal court has the power to reconsider the case and understand that my learning disability is the reason for not meeting the grounds cl.485.212(a).
3. I filled the application form myself in which I mistakenly answered “yes” to the question “Do you hold a current passport from the USA, UK, Canada, New Zealand, or the Republic of Ireland…or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English”. This was a genuine application mistake made by me and he fully acknowledges his honest mistake which was made during the application. I can also assure the court that this type of error will not be repeated again.
4. The case should also be considered on humanitarian grounds on the basis that I am an Australian graduate in film making. I have contributed positively to the Australian society and the country can only benefit from me if I stay in Australia for a couple of years so I can contribute positively to the society.
5. The court should also look at the negative effects of refusing my visa on my career and the travel difficulties that I may face as a film maker which will restrict my potential and will be detrimental for my career
Accompanying the judicial review application was the applicant’s affidavit sworn 2 June 2018. That affidavit comprises 13 paragraphs and seven annexures. Most of what is written provides an overview of the applicant’s background and his personal circumstances (in particular, his experiences with the English language testing and the impact his dyslexia had on his successfully meeting the scores). The Court notes that each of the annexures of the first affidavit, save for Annexure F, are materials in the Court Book.
Annexure F relates to an International English Language Testing System (IELTS) report dated 8 October 2011. It reflects the applicant’s test results. This result was not before the Tribunal. While it supports the applicant’s assertions in his affidavit that he tried to meet the requirements, this material is largely irrelevant in relation to the sole question before this Court – ie, whether the Tribunal can be found to have fallen into jurisdictional error.
As to the second affidavit sworn 31 August 2018, this affidavit comprises eight paragraphs and two annexures. This material provides evidence that the applicant has been diagnosed with “severe dyslexia”.
The applicant was unrepresented before this Court.
As tends to be the case with unrepresented applicants, the grounds of review and the material reflect a failure on the part of the applicant to understand what the Court can and cannot do.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, 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 (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant what the Court can and cannot do. It was explained that this Court cannot undertake what is referred to as merits review. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
The Court invited the applicant to elaborate on his grounds of review and explain what he thought the Tribunal “did wrong”.
In effect, although it was not entirely clear, the applicant argued that the Tribunal failed to understand and accommodate his learning disability and the Tribunal used the responses he provided on his visa application about what passports he held (at CB 1) and his citizenship “against him”, despite it being clear that his responses were simply errors.
The Court will address these concerns below when considering the applicant’s grounds of review as a whole.
Consideration
Relevant Legislation
The applicant was found not to have met cl.485.212(a)(ii) of the relevant Regulations.
That clause imposes a “time of application” criterion. This means that, when applying for the visa in question, the applicant must provide evidence meeting the relevant criterion.
At the relevant time, cl.485.212(a) would have been satisfied if there was 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.
In the applicant’s circumstances, the relevant legislative instrument was IMMI 15/062 – English Language Tests, Scores and Passports 2015 (the “Instrument”). Clause 4 of the Instrument indicated:
SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:
a.an International English Language Test System (IELTS) test;
b. a Test of English as a Foreign Language internet-based test (TOEFL iBT);
c. a Pearson Test of English Academic (PTE Academic); or
d. a Cambridge English: Advanced (CAE) test; or
e. an Occupational English Test;
Grounds 1 and 2
1. I believe that the decision made by the AAT was unfair and my learning difficulty was not taken into consideration before making this decision. I was unable to meet the grounds cl.485.212(a) due to fact that I am dyslexic and have made multiple attempts to achieve the required score before applying for visa. I did achieve the required score eventually. The English tests are not designed to help in my situation.
2. The AAT acknowledged my learning disability may have impacted my PTE score however the tribunal has not discretion in this case. I believe that the federal court has the power to reconsider the case and understand that my learning disability is the reason for not meeting the grounds cl.485.212(a).
Ground 1 and 2 appear to contradict each other.
The applicant states in ground 1 that the Tribunal did not consider his learning difficulty before refusing the visa. However, ground 2 then says that the Tribunal acknowledged that disability and it noted that it may have negatively affected his score results.
A review of the Tribunal’s decision shows that the Tribunal acknowledged that the applicant suffered dyslexia. Despite this, the Tribunal correctly determined it had no discretion to waive cl.485.212(a) because of a diagnosis of dyslexia. All the Tribunal could do was determine whether the applicant satisfied the relevant criterion.
To be granted the visa, the applicant was required to satisfy cl.485.212(a) at the time he lodged his application. On his own admission, he did not. That he eventually did is so is, most regrettably, irrelevant. Cluse 485.212 mandates a time of application criterion and the applicant simply had not attained the result at the time of the application.
The Court does not dispute that the applicant did all that he could do, and in difficult circumstances, to meet the English language requirements. It is clear that his learning difficulties prohibited him from doing so. Unfortunately, the visa requirements are clear. The applicant must provide evidence that a PTE Academic test (or another specified test in the Instrument) was taken and a minimum score was reached (in this case a score of 50 in the three years prior to the day on which the application was lodged).
As the Minister pointed out, the numerous authorities binding on this Court have recognised that, notwithstanding hardship arising from the inflexible requirements, the terms are unambiguous and the visa must be refused: Kumar v Minister for Immigration & Border Protection [2018] FCA 140 at [24]; Thlork v Minister for Immigration & Border Protection [2019] FCA 333 (“Thlork”).
The English tests do not accommodate persons who face the hardship faced by applicants like this young man. It could be said they are unfair to individuals with learning disabilities (and they certainly appear to be most unfair). However, as recently noted by Bromwich J in Thlork, an applicant is ‘…doomed from the outset due to the inability of the appellant to meet a fixed and inflexible mandatory visa criterion.”
Unfortunately, although pressed by the applicant, the Court does not have the power to reconsider the case as a whole. While the Court is satisfied that the applicant’s dyslexia was the reason he did not meet cl.485.212 at the relevant date, the Court is powerless to assist in the factual and legislative circumstances evident here.
Grounds 1 and 2 are dismissed.
Ground 3
3. I filled the application form myself in which I mistakenly answered “yes” to the question “Do you hold a current passport from the USA, UK, Canada, New Zealand, or the Republic of Ireland…or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English”. This was a genuine application mistake made by me and he fully acknowledges his honest mistake which was made during the application. I can also assure the court that this type of error will not be repeated again.
The Court accepts this was a genuine mistake. However, it was not a mistake that had any bearing on the Tribunal’s decision. Neither the delegate nor the Tribunal drew any adverse inference from the applicant’s mistakes relevant to his claims as they relate to his passports or his citizenship.
The Tribunal simply found that there was no evidence to support the assertions made and the Tribunal concluded, simply, that cl.485.212(b) was not met.
That finding was correct as the applicant himself has indicated that he does not meet the relevant criterion in that regard. The applicant could only be granted the visa if he met cl.485.212(a), which he did not.
No error on the part of the Tribunal can be seen here.
Ground 3 is, accordingly, dismissed.
Grounds 4 and 5
4. The case should also be considered on humanitarian grounds on the basis that I am an Australian graduate in film making. I have contributed positively to the Australian society and the country can only benefit from me if I stay in Australia for a couple of years so I can contribute positively to the society.
5. The court should also look at the negative effects of refusing my visa on my career and the travel difficulties that I may face as a film maker which will restrict my potential and will be detrimental for my career
Grounds 4 and 5 seek impermissible merits review, something the Court cannot undertake.
The Court cannot consider or look at the matters the applicant refers to in grounds 4 and 5. The Tribunal was also excluded from doing so, lest it be suggested that the Tribunal should have done so. There was simply no legislative discretion allowing the Tribunal to consider matters of this sort. The Tribunal had no choice but to refuse the visa when it was determined the applicant failed to satisfy cl.485.212(a).
There is no error as specified in grounds 4 and 5. Those grounds, accordingly, also fail.
Conclusion
The Court has considerable sympathy for this applicant. He has completed a university degree in Australia and has done so while struggling with a learning disability.
Unfortunately, the applicant did not satisfy the strict regulatory requirements imposed here and the Tribunal had no discretion to assist him, despite what appear to be compelling circumstances.
The application for judicial review must, accordingly, be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 7 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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