Grant v Minister for Immigration

Case •

[2009] FMCA 406

•

6 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 406
MIGRATION – VISA – Skilled (Provisional) (Class VC) visas – whether the Tribunal misconstrued or misunderstood Migration Regulations 1994 (Cth) Part 485 Sch. 2 – competent English – IELTS test – whether undertaking an IELTS test can be considered as evidence of making arrangements to undergo a test for the purpose of cl.485.215(c) – whether cl.485.222 requires the test to be done before the application for the visa – whether the application was accompanied by evidence that the first applicant had made arrangements to undergo a language test for the purpose of cl.485.215(c) – whether cl.485.215 and cl.485.222 allow reliance on multiple language tests – certiorari and mandamus.
Migration Act 1958 (Cth), ss.359A, 474, 476
Migration Regulations 1994 (Cth) Reg. 1.15C, Part 485 Schedule 2, clauses 485.214, 485.215, 485.222, 487.213
Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 53
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359
Elbrow v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 595
Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd (1975) 6 ALR 271
Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 433; [2004] FCA 772
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151
Shibly v Minister for Immigration & Anor [2009] FMCA 193
Fan Fan v Minister for Immigration [2009] FMCA 123
Shah v Minister for Immigration & Anor [2009] FMCA 108
Al-Magableh v Minister for Immigration & Anor [2009] FMCA 230
First Applicant: LEON GRANT
Second Applicant: YUKO YOKOI
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 3287 of 2008
Judgment of: Scarlett FM
Hearing date: 5 March 2009
Date of Last Submission: 5 March 2009
Delivered at: Sydney
Delivered on: 6 May 2009

REPRESENTATION

Solicitor for the Applicant: Mr Slater
Solicitors for the Applicant: Brett Slater Solicitors
Counsel for the Respondents: Mr Bevan
Solicitors for the Respondents: DLA Phillips Fox (Mr Johnson)

ORDERS

  1. The name of the First Applicant is changed to LEON GRANT.

  2. That an order in the nature of certiorari will issue to quash the decision of the Second Respondent made on 24 November 2008 affirming the decision of a delegate of the First Respondent not grant the Applicants Skilled (Provisional) (Class VC) visas.

  3. That an order in the nature of mandamus will issue remitting the Applicants’ application for Skilled (Provisional) (Class VC) visas to the Second Respondent for determination according to law.

  4. That the First Respondent is to pay the Applicants’ costs fixed in the sum of $8,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3287 of 2008

LEON GRANT

First Applicant

YUKO YOKOI

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Migration Review Tribunal affirming the decisions of a delegate of the Minister for Immigration and Citizenship not to grant the Applicants Skilled (Provisional) (Class VC) visas. By their application, which they filed on 11th December 2008, the Applicants seek the issue of writs of certiorari, mandamus and prohibition.

  2. The Applicants claim that the Tribunal committed a jurisdictional error by misconstruing or misunderstanding the requirements set out for the grant of a Skilled (Provisional) (Class VC) visa including the requirements for the grant of the visa set out in Part 485 of Schedule 2 of the Migration Regulations 1994 (Cth).

  3. The Minister, who is the First Respondent to the application, has filed a Response opposing the orders sought.

Background

  1. The Applicants applied for Skilled (Provisional) (Class VC) visas on 24th September 2007. The First Applicant, who was then known by the name Upender Singh Rana, was the Primary Applicant for the visa. He is now known by the name of Leon Grant. Ms Yuko Yokoi was the Secondary Applicant. A delegate of the Minister refused their application on 13th December 2007.

  2. The delegate stated that the requirement that was not met by the First Applicant was “English”. The delegate set out his reasons:

    Clause 485.215 of Schedule 2 of the Migration (1994)[1]Regulations requires as follows:

    485.215    

    Either:

    (a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or

    (b) the applicant has competent English; or

    (c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.    

    [1] sic

    The applicant’s nominated skilled occupation is not in Major Croup IV in the Australian Standard Classification of Occupation. Therefore the applicant does not meet the requirements to be assessed for vocational English.

    Reg 1.15C Competent English

    If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

    (a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

    (i)   an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

    (ii)     a score:

    (A)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (B)in a language test specified by the Minister in the instrument; or

    (b)     holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.   

    To date this office has not received any evidence that you have competent English or evidence that you have made arrangements to undergo a language test.

    As a result I am not satisfied that you have proficiency in English to meet the award of competent English as specified in Regulation 1.15C. Therefore you do not meet the requirement at subclause 485.215 of Schedule 2 of the Migration (1994) Regulations.[2]

    [2] Court Book 11-12

  3. The delegate did not consider the qualification of the Second Applicant as her application was not accompanied by a skill assessment.

  4. After the refusal of their visa applications, the Applicants applied to the Migration Review Tribunal on 19th December 2007 for a review of the delegate’s decision. They had the assistance of a registered migration agent, whom they appointed as their representative.

Application to the Migration Review Tribunal  

  1. On 9th September 2008, the Applicants’ then migration consultant, Ms Norman, sent a submission to the Tribunal. In that submission, Ms Norman informed the Tribunal that the First Applicant had prepared his application for a visa without any assistance. At the time of lodgement of the application he submitted IELTS results with the following scores:

    ·Overall band score 6.5

    ·Listening 7.5

    ·Reading 6.0

    ·Writing 5.5

    ·Speaking 6.5

  2. Ms Norman explained that the Applicant was of the belief at the time that any individual component scores with a .5 result would be rounded up to the nearest whole number. In particular, he believed that his score of 5.5 in writing would be rounded up to 6.

  3. Ms Norman went on to submit:

    It appears that [the delegate’s] decision to refuse Mr Singh Rana’s application was based primarily on the belief that Mr Singh Rana had failed to provide any evidence that he possessed competent English language skills or had made arrangements to undergo an IELTS examination, even though these were provided to the Department more than two months prior to this decision being made.

    Since his subclass 485 visa application was refused, Mr Singh Rana has at a subsequent IELTS examination and has received the following results:

    ·    Overall band score – 7.5

    ·    Listening – 8.0

    ·    Reading – 6.6

    ·    Writing – 6.0

    ·    Speaking – 8.5

    As the reason for the grounds for refusal of Mr Singh Rana’s application no longer exist, we would respectfully seek the MRT’s assistance with remitting the application to the Department for further consideration and assessment. In support of this request, we would once again note that it appears that the decision to refuse Mr Singh Rana’s application was made based on the case officer’s understanding that IELTS test results had not been provided.[3]

    [3] Court Book 17 - 18

  4. The Tribunal wrote to the Applicant’s migration agent on 12th September 2008. It appears clear from the text of the letter that it was intended to comply with the requirements of s.359A of the Migration Act. The letter was headed “Invitation to Comment on or Respond to Information in Writing”[4]. The Tribunal’s letter drew the Applicants’ attention to certain information that the Tribunal considered would, subject to any comments or response the Applicant made, be the reason or part of the reason for affirming the delegate’s decision.

    [4] Court Book 26

  5. The Tribunal first put to him this information:

    ·    You applied for the Skilled Graduate visa in Class VC on 24 September 2007.

    ·    When applying for the visa, you had nominated a skilled occupation of a Computing Professional nec. That occupation has the ASCO code 2231-79 and it is not an occupation that is in Major Group IV in the Australian Standard Classification of Occupations.

    ·    You have not provided any evidence with your application that you had made arrangements to undertake an IELTS test or an Occupational English Language Test (OELT).

    That information is relevant because in order to satisfy cl.485.215(a), which is a requirement to be met at the time of the application, you must nominate a skilled occupation that is in Major Group IV in the ASCO and have vocational English. Clause 485.215(c) requires that the application must be accompanied by evidence that you have made arrangements to undertake an IELTS or an Occupational English Language Test.

    If the Tribunal is not satisfied that you meet cl.485.215(a) or (c), the Tribunal must consider whether you have competent English for the purpose of cl.485.215(b). The term ‘competent English’ is defined at r. 1.15C which is reproduced below for your reference.

    ·    When applying for the visa, you stated in your application that you had undertaken an IELTS test in August 2007. You provided the results of that test with the application. You achieved the scores of 7.5; 6.5; 5.5 and 6.5 for listening, reading, writing and speaking respectively.

    ·    You have not provided any evidence to indicate that you have achieved a score of at least ‘B’ in each of the four OELT conducted not more than 2 years before the day on which the application was lodged.

    ·    When applying for the visa, you provided a copy of your Indian passport. There is no evidence that you hold, or have ever held, a passport of any other country.

    This information is relevant because it may cause the Tribunal to find that you do not have competent English as defined in r. 1.15C and that you do not meet cl.485.222 of the Regulations.

    If the Tribunal is not satisfied that you meet any of the alternate provisions in cl.485.215 or that you meet cl.485.222, the Tribunal may find that you do not meet one of the requirements for the grant of the visa and you will not be entitled to the grant of the Subclass 485 visa for which you have applied.[5]

    [5] Court Book 26 - 27

  6. The Tribunal asked the Applicants to provide their written comments or response by 10th October 2008.

  7. The First Applicant changed his name by deed poll on 15th September 2008 from Upender Singh Rana to Leon Grant.[6]

    [6] Court Book 54

  8. The Applicants appointed a new representative, their current solicitor, Mr Slater. Mr Slater wrote to the Tribunal on 10th October in reply to its s.359A letter of 12th September 2008. His letter submitted that the First Applicant, now also known as Leon Grant, had in fact provided the delegate with evidence that he had made arrangements to undergo a language test. He stated:

    In our submission, Mr Singh provided the delegate with evidence that he had ‘made arrangements to undergo a language test’. That evidence was submitted by Mr Singh Rana by way of the IELTS test certificate ‘uploaded’ electronically to DIAC on 4 October 2007, with the details of that certificate being provided to DIAC in the electronic application form lodged on 24 September 2007.

    The fact that Mr Singh Rana undertook an IELTS test and provided evidence of that test is evidence in itself that he had ‘made arrangement to undergo a language test’. Mr Singh Rana could not have sat for his IELTS test without having made such arrangements.

    Further, the IELTS test is evidence that Mr Singh Rana had in fact made arrangements to undergo a language test specified by the Minister in an instrument for the purposes of cl.485.215(c).[7]

    [7] Court Book 32

  9. Mr Slater went on to state that the First Applicant had since passed a further IELTS test with scores of 8, 6.5, 6 and 8.5. He submitted that the First Applicant had demonstrated that he had ‘competent’ English as understood by Regulation 1.15C, he then met the requirements of cl.485.222(b). He further submitted that the First Applicant, by providing details of an IELTS test certificate that did not, at the time of application, demonstrate ‘competent’ English under reg.1.15C was only ever seeking to address cl.485.215(c) and not cl.485.215(b).[8]

    [8] Court Book 33

  10. The Tribunal wrote to the Applicants’ solicitor on 13th October 2008, inviting them to attend a hearing on 27th October. Both Applicants attended and gave evidence. They were accompanied by Mr Mark Sutherland, a migration agent.

  11. They provided a written submission to the Tribunal that same day. The submission referred to an earlier Tribunal decision (071861705 [2008] MRTA 828 (17 September 2008) (Zhao’s case). Whilst conceding that the Tribunal was not bound by decisions of previously constituted Tribunals, the Applicants submitted that the decision was of assistance, as it also concerned a subclass 485 visa and a particular interpretation of regulation 1.15C, which was that only an IELTS test conducted before the subclass 485 application is lodged can be considered was “ultimately unworkable”[9] in relation to clause 485.215(c) and cl.485.222.

    [9] Court Book 61

  12. The Applicants’ submission was that the wording of reg.1.15C(a) merely excludes tests conducted more than two years prior to an application being lodged from being considered as meeting the requirements of ‘competent’ English. Further, they submitted that a test conducted on any date after the date which was two years before the application date, including a test conducted after the application date, can be considered towards the requirements of ‘competent’ English.

  13. On 30th October 2008 the Tribunal invited the Applicants to attend a further hearing on 19th November 2008. The letter of invitation said:

    The Tribunal will seek your comments with respect to the following issues:

    1) whether your application was accompanied by evidence that you had made arrangements to undergo a language test, for the purpose of cl.485.215(c).

    2) whether cl.485.215 and cl.485.222 allow reliance on multiple language tests.[10]

    [10] Court Book 83

  14. The Applicants made a further written submission to the Tribunal on 19th November 2008.[11]  They made a second submission on that same date, specifically commenting on the two issues raised by the Tribunal in its letter of 30th October. 

    [11] Court Book 88 - 90

  15. In respect of the first issue for consideration, namely whether their application was accompanied by evidence that the First Applicant had made arrangements to undergo a language test for the purpose of cl.485.215(c), they submitted:

    In our submission of 10 October 2008, we submitted that the fact that evidence that Mr Grant had undergone an IELTS test is evidence in itself of having made arrangements to undergo a test specified for the purposes of cl.485.215(c)…

    Likewise, Mr Grant could not have met the requirements set out in cl.485.215(b) in that he did not demonstrate that he had ‘competent’ English at the time of application as he did not achieve a(n) IELTS test score that would meet the requirements of reg 1.15C.[12]

    [12] Court Book 92

  16. The Applicants attended the hearing on 19th November 2008. The First Applicant gave evidence.

The Migration Review Tribunal Decision

  1. The Tribunal handed down its decision on 24th November 2008, affirming the decisions not to grant the Applicants Skilled (Provisional) (Class VC) visas.

  2. The Tribunal stated to the Applicants at the hearing on 27th October that there were two issues it needed to consider:

    i)whether undertaking the test could be considered as evidence of making arrangements to undergo a test, for the purpose of cl.485.215(c);

    ii)whether cl.485.222 required the test to be done before the application.[13]

    [13] Court Book 107 at [30]

  3. At the second hearing, on 19th November 2008, the Tribunal heard submissions on two further issues:

    i)Whether arrangements which the First Applicant presented at the time of the application were to ‘undergo’ a test; and

    ii)Whether the legislation required the Applicant to rely, at the time of decision, on the same test for which arrangements were made at the time of application.

  4. In respect of the first issue, the Applicant’s agent submitted that in providing evidence of having done a test which did not meet the requirements, there was a strong implication that a further test would be undertaken.[14]

    [14] Court Book 110 at [43]

  5. As to the second issue:

    The representative[15] stated that there was no correlation between the two clauses. It was the time of application requirement that an applicant makes arrangements to undergo a test. It is a requirement at the time of decision that the applicant must have competent English. If it was intended that the competent English is shown in reliance on the same test for which arrangements were made at the time of the application, then it would be easy for the drafters of the legislation to state that. The Tribunal pointed out that cl.485.222 expressly refers to cl.485.215(c) and it only applies in the circumstances where reliance is placed in cl.485.215(c). The representative noted that the only link is that a person chooses to rely on cl.485.215(c) and there is a separate requirement in cl.485.222 that the person has competent English. There is nothing in the wording that requires it to be the same test. The representative submitted that reference to ‘a test’ in cl.485.215(c) also does not suggest that only one test can be undertaken, otherwise the reference would be to ‘the test’.[16]

    [15] i.e. the applicants’ migration agent

    [16] Court Book 110 at [44]

The Tribunal’s Findings and Reasons

  1. The Tribunal found that the Second Applicant met the requirements of cl.485.214 and found that she was not entitled to the grant of a Subclass 485 visa as a Primary Applicant.

  2. The Tribunal also found that there was no evidence that the First Applicant met the requirements of cl.487.213, as he was not nominated by a State or Territory government agency, and he was not sponsored by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

  3. The above findings are uncontroversial.

  4. The Tribunal then turned to what it described as the main issue, which was whether he met the requirements of cl.485.215 and cl.485.222, saying:

    Clause 485.215 requires the applicant to have vocational English, or competent English, or for the application to be accompanied by evidence that the applicant had made arrangements to undertake an IELTS or an OELT test as specified in the Legislative instrument F2007L02688 of 30 August 2007.[17]

    [17] Court Book 111 at [49]

  1. The Tribunal found that the Applicant did not meet the requirements of cl.485.215(a) or cl.485.222(a) because he had not nominated an occupation in the Major Group IV of ASCO.

  2. The Tribunal then considered cl.485.215(b), which requires the Applicant to have competent English, which is defined by regulation 1.15C. The Tribunal was not satisfied that the Applicant met the requirements of that regulation because:

    a)he did not meet r.1.15C(a)(i) with the required IELTS score;

    b)he did not meet r.1.15C(a)(ii) with the required OELT  score; and

    c)he did not meet r.1.15C(b) because he held an Indian passport, which was not a type specified by the Minister for the purpose of that paragraph.

  3. The Tribunal’s reasons for not being satisfied that the Applicant met r.1.15C(a)(i) were:

    The applicant provided with the application the results of an IELTS test he had undertaken in August 2007 in which he achieved the score of 7.5; 6; 5.5 and 6.5 for listening, reading, writing and speaking respectively. The applicant had not achieved an IELTS score of at least 6 for each of the four test components in that test.[18]

    [18] Court Book 111 at [52]

  4. Accordingly, the Tribunal found that the First Applicant did not have ‘competent English’ as defined in r.1.15C and therefore did not meet the requirements of cl.485.215(b).

  5. The Tribunal then considered the first applicant’s claims in reliance on cl.485.215(c) and cl.485.222, saying:

    Three issues arise for Tribunal’s consideration with respect to these provisions insofar as they are relevant to the applicant’s circumstances: firstly, what constitutes ‘arrangements to undergo a language test’ for the purpose of cl.485.215(c), secondly, whether r. 1.15C allows a language test to be undertaken after the date of the application and, thirdly, whether the test referred to in cl.485.222 must be the same test for which evidence of arrangements was provided under cl.485.215(c).   

  6. Dealing with the first of those issues, the Tribunal noted that the First Applicant had provided evidence with his application that he had undertaken a test in August 2007. The Tribunal made this rather cryptic finding:

    The Tribunal accepts that undergoing a test necessarily involves making arrangements for a test and that having undertaken a test in August 2007, the applicant had, at some time before August 2007, made arrangements to undergo a test. Thus the Tribunal is satisfied that evidence of arrangements had been presented. The issue, however, is whether such evidence was of the arrangements “to undergo” a test.[19]

    [19] Court Book 112 at [57]

  7. The Tribunal took the view that the words ‘has made arrangements to undergo a language test’ in cl.485.215(c) indicates a reference to a future test, not a test that the Applicant had already undergone in the past.

  8. The Tribunal did not accept the Applicants’ argument that by providing the results of a test in which the First Applicant did not achieve the requisite score, there was a strong implication that he would be undertaking a further test. The Tribunal also took the view that such an implication, even if established, would not be sufficient to constitute ‘evidence of arrangements’ and that cl.485.215(c) required evidence of substantive arrangements.

  9. Therefore, while the Tribunal accepted that the First Applicant having provided evidence of a past IELTS test was evidence of arrangements, it did not accept that it was evidence of arrangements to undergo a language test. The Tribunal found that the First Applicant did not meet the requirements of cl.485.215(c) because, at the time of application, the First Applicant had not provided evidence that he had made arrangements to undergo a language test.

  10. The Tribunal then went to consider, if it was wrong in that finding, the other two issues:

    a)When a test can be done; and

    b)How many tests can an applicant undertake?

  11. The Tribunal considered whether cl.485.215(c) and r.1.15C allow for a language test to be undertaken after the application is made. The Tribunal stated:

    There appears to be a conflict between cl.485.215(c), which allows an applicant merely to produce, at the time of the application, evidence of arrangements to undertake a test, and r.1.15C, which requires such a test to be undertaken before the application. There is no requirement in cl.485.215(c) that the test be undertaken or that the applicant presents evidence of having undergone the test. It only requires evidence of arrangements “to undergo” a test at some time in the future.[20]

    [20] Court Book 113 at [63]

  12. The Tribunal considered that the definition of ‘competent English’ in r.1.15C must be read together with the other requirements in cl.485.222. The Tribunal held that this interpretation would allow reliance on arrangements to undergo a test at the time of application and on a test in which the requisite score was achieved at the time of decision.

  13. The Tribunal referred to the Explanatory Statement for the Select Legislative Instrument 2008 No. 205, Migration Amendment Regulations 2008 (No. 7) which stated that the option in paragraph 485.215(c) was introduced in response to claims from migration agents and clients that there were capacity problems with the IELTS regime. The Tribunal said that:

    This suggests that cl.485.215(c) was introduced to enable applicants who had sought to undertake an IELTS test but were unable to do so due to ‘capacity problems’, to make arrangements to register for a test and to undergo the test when they were able to do so. This indicates the intention that the mere making of arrangements to undergo the test was sufficient to meet the time of application requirements in cl.485.215(c) and that the test could be undertaken at a later date for the purpose of cl.485.222.[21]

    [21] Court Book 114 at [68]

  14. The Tribunal found for the reasons that it gave that it was unable to give consideration to an IELTS test that was undertaken after the application was made.

  15. The Tribunal then considered the third issue, whether an applicant can take multiple tests, or whether the test for which the applicant showed that he or she had made arrangements to take was the one in which he or she achieved the requisite standard of English proficiency.

  16. The Tribunal formed the view that it was, saying:

    73. Clause 485.222 makes an express reference to paragraph 485.215(c) which, in turn, deals with evidence of arrangements to undergo a test. This implies that the requirement in cl.485.222 that the applicant must have competent English (which is defined as having achieved a particular score in a language test) is to be read together with the requirement that the applicant must provide evidence of making arrangement to undergo a language test, suggesting that the arrangements presented for the purpose of cl.485.215(c) must be for the same test relied upon in cl.485.222.

    74. Therefore, the Tribunal has formed the view that a language test which evidences the applicant’s competent English for the purpose of cl.485.222 must be the same test for which arrangements were made and evidenced at the time of the application for the purpose of cl.485.215(c). It must be a test that, when evidence of arrangements is presented for the purpose of cl.485.215(c), is a test that is to be undertaken after the application.[22]

    [22] Court Book 114 – 115 at [73]-[74]

  17. The Tribunal found that, if it were wrong in its findings as to what constitutes ‘arrangements to undergo a test’ for the purpose of cl.485.215, it also found that the Applicant did not meet cl.485.222 because he had not achieved the requisite score in the first language test for which he presented arrangements at the time of application. The test in which the Applicant did achieve the requisite score was not the test with respect to which he presented the arrangements.

  18. Whilst the Tribunal conceded that “the substantial justice”[23] required a decision favourable to the First Applicant, he did not meet one of the requirements for the grant of the visa.

    [23] Court Book 115 at [77]

  19. The Tribunal affirmed the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.

Application to the Federal Magistrates Court

  1. The Applicants rely on the one ground, that the Tribunal committed jurisdictional error by misconstruing or misunderstanding the requirements for the grant of a Skilled (Provisional) (Class VC) visa including the requirements for the grant of that visa set out in Part 485 of Schedule 2 of the Migration Regulations 1994.

  2. The particulars of that ground are:

    a)On 27 September 2007 the Applicants applied to the First Respondent for a Skilled (Provisional) (Class VC) visa.

    b)On 13 December 2007 a delegate of the First Respondent refused to grant the Applicants a Skilled (Provisional) (Class VC) visa. The delegate of the First Respondent determined that the Applicants had failed to meet the requirement in cl.485.215.

    c)On 19 December 2007 the Applicants applied to the Second Respondent for a review of the decision of the First Respondent.

    d)On 24 November 2008 the Second Respondent decided to affirm the decision of the First Respondent not to grant the Applicants a (Class VC) visa. That decision was notified to the Applicants by way of a facsimile dated 24 November 2008 and addressed to the representatives of the Applicants.

    e)In its decision of 24 November 2008, the Second Respondent failed to take into account an IELTS test result certificate as well as other evidence provided to the Second Respondent including evidence of IELTS test bookings.

    f)In its decision of 24 November 2008 the Second Respondent committed a further jurisdictional error in misunderstanding the requirements set out in cl.485.222(b) of the Regulations by making a finding that an applicant can only meet the requirements of ‘competent’ English pursuant to reg 1.15C, set out in cl.485.222(b), by reliance on the same prescribed test that the Applicant had referred to in seeking to meet the requirements of cl.485.215(c) where no such additional requirement is set out in either cl.485.222 or cl.485.215(c) or reg.1.15C of the Regulations.  

    For the above reasons the said decision is not a “privative clause decision” within the meaning given by subsection 474(2) of the Migration Act 1958.

The Applicants’ Submissions

  1. The Applicants’ solicitor, Mr Slater, submitted that the Tribunal found that the First Applicant failed to satisfy the requirements for a subclass 485 visa on two bases:

    a)that he failed to satisfy the time of application criterion set out in cl.485.215 (c); and

    b)that he failed to satisfy the time of decision criterion in cl.485.222.

  2. Mr Slater submitted that the Tribunal committed an error of law amounting to jurisdictional error in its interpretation of cl.485.215(c). The interpretation, he submitted, was that the requirement for the Applicant to make arrangements to undergo a language test could only be satisfied in respect of the arrangements relied on if:

    a)the arrangements took place before the visa application; and

    b)the test in respect of which those arrangements were made was to take place after the visa application was lodged.

  3. That interpretation required the addition of the words “provided that the said language test must not yet have been undertaken” at the end of cl.485.215(c). There was no adequate reason to imply this additional requirement within (c).

  4. Mr Slater went on to submit that, as the paragraph reads at present, the requirement is met, irrespective of whether at the time of lodgement of the visa application the relevant test has or has not been taken. All that is required is that the test has been booked and that this took place before the visa application was lodged (before “time of application”.). He further submitted that there is no requirement that the test must be a future test, a “post time of application” test.

  5. The Applicant’s solicitor then submitted that the reference to cl.485.215(c) in cl.485.222 does not operate in the manner held by the Tribunal, but simply plays the role of defining the category of persons to which cl.485.222 applies. Only applicants who seek to satisfy cl.485.215 through the pathway of cl.485.215(c) must satisfy the requirements of cl.485.222.

  6. He further submitted that, for the First Applicant, the above requirement meant that he must have competent English at the time a decision was made on his application. Competent English is defined in reg.1.15C and the Tribunal was simply required to consider whether the Applicant satisfied that definition at the time of decision.

  7. Mr Slater submitted that the Applicant satisfied the requirement of competent English because at the time of decision he had an IELTS test score of the level required. Regulation 1.15C does not restrict the Applicant with respect to a particular test beyond the requirement that it be in relation to a test not conducted more than 2 years before the relevant visa was lodged. Regulation 1.15C refers only to a test, not a particular IELTS test or ‘the’ test otherwise referred to.

  8. It was submitted that the Tribunal erred in going beyond regulation 1.15C in defining ‘competent English’.

  9. The Tribunal’s errors of law were determinative of the outcome of the case and therefore jurisdictional errors. Misconstruction of the criteria for the grant of a visa may amount to jurisdictional error (Scargill v Minister for Immigration and Multicultural and Indigenous Affairs[24]; Lobo v Minister for Immigration and Multicultural and Indigenous Affairs[25]; Elbrow v Minister for Immigration & Multicultural & Indigenous Affairs[26]).

    [24] (2003) 75 ALD 53

    [25] (2003) 200 ALR 359

    [26] [2004] FCA 595

  10. On the question of statutory construction, Mr Slater referred the Court to Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd[27] held at 282:

    These considerations might not have been of importance if the words of the statute were plain and unambiguous, but where two meanings are open, as is the case with the opening words of s 64(1), it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.         

    [27] (1975) 6 ALR 271

  11. Again, the Court was referred to the decision of Mansfield J in Al Tekriti v Minister for Immigration and Multicultural and Indigenous Affairs[28], where his Honour cited Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT[29]:

    The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and legitimate aids to construction.

    …

    Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.[30]

    [28] (2004) 83 ALD 433; [2004] FCA 772

    [29] (1981) 147 CLR 297; 35 ALR 151

    [30] (2004) 83 ALD 433; (2004) FCA 772 at [22]

The First Respondent’s Submissions

  1. Mr Bevan of counsel, who appeared for the First Respondent, the Minister for Immigration and Citizenship, submitted that the Applicants’ argument that the criterion in cl.485.215(c) is satisfied if the test has been booked and that this booking has been made before the application for a visa has been lodged fails to overcome the plain and ordinary meaning of the phrase “has made arrangements to undergo” a language test. The use of the infinitive “to undergo” refers to a state of affairs that is yet to come about.

  2. He submitted that the phrase “has made arrangements to undergo” is capable of referring to two situations:

    ·Where a booking for a language test has been made before the visa application has been lodged but where the test itself will be performed, and necessarily the results provided, after the application date;

    ·Where a booking for a language test has been made and the test performed before the visa application has been lodged but where the results will be provided after the application date.

  3. In both situations the language test has not been completed in the sense that results are not available before the application date. It is the provision of those results which is crucial to demonstrate the requisite competency in English, a state of affairs that is yet to come about. Read in this way, he submitted, the additional words suggested by the applicants (“provided that the said language test must not yet have been undertaken”) are not required.

  4. Further, Mr Bevan submitted, it is entirely inapt to say that the phrase “has made arrangements to undergo” describes a situation where the booking has been made, the test performed and the results provided before the visa application has been lodged. There is nothing left to occur with respect to the language test.

  5. He went on to submit that the Tribunal’s construction of cl.485.215(c):

    a)accords with the plain and ordinary meaning of the language;

    b)is consistent with the statutory purpose to provide applicants who are required to apply for visas within a specified time an opportunity of demonstrating their competency in English where it may not be possible to obtain the necessary results before lodging their visa application; and

    c)does not give rise to the situation submitted by the applicants, that applicants would be better off delaying their tests and ensuring they lodged their visa applications before they sat their tests.

  6. Accordingly, he submitted that the Tribunal did not err in its conclusions regarding cl.485.215(c).

  7. As to the Tribunal’s construction of cl.485.222, Mr Bevan submitted that the construction propounded by the Applicants sought to dilute the statutory criteria so as to provide Applicants with an unlimited number of opportunities to demonstrate their competency in English. This would lead to unnecessary delay assessment of visa applications, higher costs for Applicants and an increased burden on the testing regime.

  8. Mr Bevan submitted that the Tribunal’s construction gives effect to the link between the provisions of cl.485.215(c) and cl.485.222.

  9. Accordingly, he submitted that the Tribunal did not err in its conclusions regarding cl.485.222.  

Conclusions

  1. The Applicant applied for a Subclass 485 Skilled (Provisional) (Class VC) visa on 24th September 2007, relying on the First Applicant’s skills and qualifications. He had undergone an IELTS test in the previous two years, and submitted an IELTS test result dated 16th August 2007. Unfortunately, this test score did not meet the required standard.

  2. Clause 485.215 applied to this application. The relevant criteria to be satisfied at the time of application are set out in cl.485.215:

    Either:

    a)  the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or

    b)  the applicant has competent English; or

    c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.

  3. The First Applicant’s nominated skilled occupation was not in Major Group IV, so he did not qualify under cl.485.215(a).

  4. The First Applicant’s IELTS test result submitted with his application did not contain a score of at least 6 in each of the four test components of speaking, reading, writing and listening, nor had he obtained a qualifying score in another specified language test, nor did he hold a passport specified by the Minister. As a result, he did not have competent English as defined by r.1.15C.

  1. As the First Applicant did not have competent English, he did not qualify under cl.485.215(b).

  2. The First Applicant therefore relied on cl.485.215(c), by submitting an IELTS test result dated 16th August 2007. The Tribunal accepted that undergoing a test necessarily involves making arrangements for a test, which is a logical inference to draw. However, the Tribunal was of the view that “arrangements to undergo a language test” contains a requirement that the arrangements are to be with respect to a future test, not one that has already taken place.

  3. In my view, the Tribunal imported a meaning into the phrase that is not necessarily there. It is not the case that the meaning is plain and unambiguous, and in my view it is necessary to adopt a meaning that will avoid consequences that appear irrational and unjust (Public Transport Commission of New South Wales v J. Murray-More (NSW) Pty Ltd[31]). Again, the Court should consider an interpretation that produces the fairer and more convenient operation, so long as it conforms to the legislative intention (Cooper Brookes (Wollongong) Pty Ltd v FCT[32]per Mason and Wilson JJ at 170).

    [31] supra

    [32] supra

  4. The legislative intention is set out in the Explanatory Statement for the Select Legislative Instrument 2008 No. 205, Migration Amendments Regulations 2008 (No. 7), to which the Tribunal referred in its decision[33]:

    The option in paragraph 485.215(c) was introduced in response to claims from migration agents and clients that there were capacity problems with the IELTS regime. It has since emerged that these capacity problems do not exist. Furthermore, there is a possibility that this option is being exploited by applicants to extend their stay in Australia by not booking the next available IELTS test. This amendment ensures that applicants seeking to satisfy the primary criteria for grant of a Subclass 485 (Skilled (Graduate)) visa must, at the time of application, have either vocational English (if their nominate occupation is in the Major Group IV in the Australian Standard Classification of Occupations), or competent English.

    [33] Court Book 114 at [67]

  5. Counsel for the Minister submits that cl.485.215(c) meets the legislative intention by providing for two situations:

    a)Where a booking for a language test has been made before the visa application has been lodged but where the test itself will be performed after the hearing date; and

    b)Where a booking for a language test has been made and the test performed before the visa application has been lodged but where the results will not be available until after the application date.

  6. This latter situation is not uncommon. It appears that there is a delay of anything from ten days to over a month later in providing test results after the Applicant has undergone the test (see, for example, Shibly v Minister for Immigration & Anor[34] at [43]; Fan Fan v Minister for Immigration & Anor[35] at [45]; Shah v Minister for Immigration & Anor[36] at [45]; Al-Magableh v Minister for Immigration & Anor[37]at [54]).

    [34] [2009] FMCA 193

    [35] [2009] FMCA 123

    [36] [2008] FMCA 108

    [37] [2008] FMCA 230

  7. In allowing an applicant to apply for a visa in this way, there is little risk of applicants exploiting this option to extend their stay in Australia. If an applicant submits an application accompanied by an IELTS test score form that does not meet the requirements, it will not avail him or her to any degree, because of the operation of the time of decision criterion in cl.485.222:

    If the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for paragraph 485.215(c):

    a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or

    b) the applicant has competent English.

  8. If the applicant cannot produce an IELTS test score that shows that he or she meets the required standard at the time of decision, the delegate will not grant the visa.

  9. There is nothing in the wording of cl.485.215 or cl.485.222 that requires that the language test for which the Applicant made arrangements to undergo has to be the same test at which the Applicant succeeded in obtaining the required standard.

  10. Counsel for the Minister expressed the fear that this interpretation would allow Applicants an “unlimited number of opportunities”[38] to demonstrate their competency in English. There is no reason why that should be the case as long as the Minister’s Department processes visa applications promptly.

    [38] First Respondents submissions at [21]

  11. If, at the time of decision, the Applicant cannot show that he or she has competent English, then the application will fail. Whilst it would follow that an applicant who applies for a visa under cl.485.215(c), by providing proof of having made arrangements to undergo a language test, could reasonably expect the delegate to wait until the test result has been made available, no such consideration would apply in respect of an applicant who has made arrangements to undergo a further test after the application for a visa has been made. The delegate would be under no obligation to delay making a decision under those circumstances. 

  12. In my view, the first applicant satisfied the requirements of cl.485.215 by showing that he had made arrangements to undergo a language test. He satisfied the requirements of cl.485.222 by showing that he had competent English at the time of decision because he had produced an IELTS test result showing that he had qualified at the requisite standard. The circumstances are unusual and, for the reasons set out in [88] above, applicants would be well-advised to make arrangements to undergo an IELTS test before applying for a visa. 

  13. In this instance, the Tribunal misconstrued the meaning of cl.425.215 and cl.485.222 and fell into jurisdictional error. Accordingly, the decision is not a privative clause decision and certiorari and mandamus will issue.

  14. I will consider the question of costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  5 May 2009


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Cases Citing This Decision

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Minister for Immigration and Citizenship v Grant [2009] FCA 1059