Guillermo v Minister for Immigration
[2015] FCCA 3132
•3 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUILLERMO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3132 |
| Catchwords: MIGRATION – Administrative review – employer nomination visa – application dismissed – applicant to pay respondent’s costs. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e) Migration Regulations 1994 (Cth), reg.1.15C, cl.187.232 |
| Singh v Minister for Immigration and Border Protection [2013] FCCA 1439 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| Applicant: | MARC EDRIAN GUILLERMO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 326 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 3 November 2015 |
REPRESENTATION
There being no appearance by or on behalf of the Applicant
| Solicitor for the First Respondent: | Clayton Utz |
ORDERS
The Application filed on 20 April 2015 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $6,825.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 326 of 2015
| MARC EDRIAN GUILLERMO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 11 May 2015, the Applicant appeared before me at the first court date of this matter. On that date, I set his hearing down for 10.00 am, on today’s date. The Applicant has not attended Court this morning. I have been told by Ms Kelly (acting for the Respondent Minister) that she was contacted by the Applicant this morning, who said that he would not be attending the hearing. The Court is then faced with a question as to how it ought dispose of the matter.
The matter has this short history; on 9 May 2014 the Applicant applied to the Department of Immigration and Border Protection for a regional employer nomination visa. The requirements for a visa of this kind are set out in Schedule 2 to the Migration Regulations 1994 (Cth). Within subclass (187) there are primary and secondary criteria for Applicants to satisfy.
In this case, the requirement that the Applicant needed to satisfy was that he have competent English, as defined by r.1.15C of the Migration Regulations 1994 (Cth), at the time of making the application. The Applicant holds a passport from the Philippines and was nominated for the position of hotel service manager. The Applicant indicated in his application he had taken an IELTS test, which was conducted on 15 February 2014. He did not achieve the requisite scores in that test.
He took his matter to the then Migration Review Tribunal, which is now the Administrative Appeals Tribunal. On 2 March 2015 the Tribunal sent him a letter, inviting him to attend a hearing. The letter explained what the English language requirement in relation to the visa was and invited him to provide any documents or any evidence in relation to that issue.
The hearing was scheduled for 30 March 2015. On that day, the Applicant’s representative wrote to the Tribunal to explain that the Applicant would not attend the hearing but wanted the Tribunal to proceed to make a decision on the papers. The Tribunal considered the evidence and the relevant provisions of the regulations, including whether there were any relevant exemptions from the competent English requirement.
The Tribunal concluded that the Applicant did not meet the requirements of cl.187.232 of the schedule of Migration Regulations 1994 (Cth) and, therefore, affirmed the decision.
By application filed in this Court on 20 April 2015 the Applicant sought to review that decision. The grounds for the application are:
“1. I have worked on the nominated position with my employer for a long time and have demonstrated my English ability. Therefore, I believe I should meet the English requirement for the visa to be granted
2. I should be given more time to sit the English test.”
It is trite to say that this Court can only look at whether there is a jurisdictional error, not an error in the decision itself. It would seem to me that there really was no option for the delegate of the Minister, nor the Tribunal in deciding this matter. A visa could not issue unless there had been a compliance with the condition for competent English. The Applicant himself acknowledged that he did not meet this criterion.
It would seem in relation to that matter, there could never be established a jurisdictional error on the part of the Tribunal. Ms Kelly, in her submissions does point to the fact that the first ground is an impermissible request for merits review. That may be, but it is also a ground that has no substance whatsoever. It really does not matter whether he has been able to work and been able to get by with the English that he has. That is irrelevant.
What is relevant is whether or not he has been able to pass the test. So one wonders how ground 1 could ever have been successful. The second ground, that he should be given more time to sit the English test, is not a matter that is within the purview of the Tribunal, who is really there to ensure that everything that the delegate ought to have taken into account was taken into account. Therefore, in my view, that could not be a ground that would lead to jurisdictional error.
Ms Kelly also points out that the Applicant didn’t attend the hearing and didn’t request the Tribunal to provide further time for him to sit a further test. The fact is that the English test must be taken prior to the visa application being made. Ms Kelly has helpfully referred me to two authorities: Singh v Minister for Immigration and Border Protection [2013] FCCA 1439, where the Applicant applied for a skilled visa.
Again, obtaining competent English was a requisite condition which needed to be satisfied for the applicant to obtain that visa. Before the Tribunal, the Applicant conceded he had not achieved the required scores in the test undertaken in the two years prior to the lodging of his visa application, but he had, however, sat and passed that same test after his visa application was made.
The Tribunal rejected the application. The Applicant sought a review of the decision before the Federal Circuit Court. The Federal Circuit Court affirmed the decision. The matter was appealed to the Federal Court and the Federal Court ruled in Singh v Minister for Immigration and Border Protection [2014] FCA 185 that the test had to have been taken before the visa application had been lodged. That really was a simple form of statutory interpretation.
In another Federal Court decision, Govind v Minister for Immigration and Border Protection [2014] FCA 864, the Court reached the same conclusion, finding that the amendments to the Act meant that, unless the relevant test was sat in the two-year period prior to the making of the visa application, the competent English visa criterion could not be satisfied. Obviously, not only does the Applicant fail what would seem to be quite a simple construction of what the test ought be, there is authority that also backs up that position.
Therefore, when I look at the matter, it is best that I dispose of the matter, pursuant to rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), and, that is, decide the matter, notwithstanding that the Applicant has failed to attend. For the reasons that I have previously mentioned, it is my view that there is no jurisdictional error. The application for review filed on 23 April 2015 should be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 24 November 2015
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