Habib & Ors v Minister for Immigration & Anor
[2010] FMCA 450
•5 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HABIB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 450 |
| MIGRATION – MRT decision – skilled graduate temporary visa – English language requirements – evidence of successful IELTS results obtained after visa application – no arrangements for test notified with visa application – Tribunal failed to consider results – jurisdictional error established – Berenguel applies to subclass 485 visas – matter remitted. |
| Migration Act 1958 (Cth), ss.61, 63(1), 65(1)(b) and 353(1) Migration Amendment Regulations 2007 (No.7) (Cth), (SLI 2007 no.257) Migration Regulations 1994 (Cth), rr.1.15B, 1.15C, sch.2 subclass 485, cll.485.213, 485.215, 485.222, subclass 885, cll.885.111, 885.213 Migration Amendment Regulations 2008 (No.7) (Cth), (SLI 2008 no.205) |
| Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 Kamal v Minister for Immigration & Anor (2009) 224 FLR 337 Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379 Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 145 FCR 523 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Saeed v Minister for Immigration & Citizenship [2010] HCA 23 |
| First Applicant: | MD BADRODDOZA HABIB |
| Second Applicant: | NUSHRAT HABIB |
| Third Applicant: | TAWSIF FARHAN HABIB |
| Fourth Applicant: | ADIB HABIB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 546 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 21 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 5 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 11 February 2010 in matter 090225.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 17 March 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 546 of 2010
| MD BADRODDOZA HABIB |
First Applicant
| NUSHRAT HABIB |
Second Applicant
| TAWSIF FARHAN HABIB |
Third Applicant
| ADIB HABIB |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Habib studied in Australia, and on 25 March 2008 he applied for a ‘skilled graduate (temporary)(Class VC, subclass 485)’ visa, using an on-line facility offered by the Department of Immigration & Citizenship. His wife and sons were secondary applicants. The application was refused by a delegate on 17 March 2009, and this was affirmed by the Tribunal on 11 February 2010. In particular, the Tribunal found that Mr Habib did not satisfy criteria requiring him to show “competent English”, notwithstanding that he had presented evidence to the Tribunal that he successfully achieved the required IELTS results in a test conducted on 7 November 2009. Mr Habib now contends that its reasoning displays jurisdictional error.
A jurisdictional error would be apparent, if the relevant regulations have the construction taken by the High Court in Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 in relation to the same language used in a similar criterion for the different subclass of visa which was addressed in that case, being subclass 885.
Subclass 485 and 885 visas were introduced together in major amendments made by the Migration Amendment Regulations 2007 (No.7) (SLI 2007 no.257), which restructured the classes and subclasses of visas in the general skilled migration categories. Subclass 485 visas allow temporary residence for graduates who have recently completed studies in Australia, to provide them with additional time to gain skilled work experience in Australia or improve their English skills to allow them to qualify for a permanent residence visa, including a subclass 885 ‘skilled – independent’ visa. The criteria for both of the visas require basic qualifications for the applicant’s nominated skilled occupation, and identical basic levels of English proficiency. The permanent visa also requires the visa applicant to achieve sufficient qualifying scores under a ‘points system’ for various occupational, age, language, employment, and other attributes.
The present issue of statutory construction concerns the basic language proficiency criteria prescribed for these two subclasses. In particular, whether IELTS test results establishing a required level of English are required to be achieved no later than the date of visa application, so that decision-makers at first instance and in the Tribunal must ignore results achieved after the date of visa application and before they make their decisions. As I shall explain, the language proficiency criteria for the two subclasses used identical language in the 2007 amendments, except for the addition in relation to the temporary visa of an option provided under Sch.2 items 485.215(c) and 485.222. I shall call it ‘the arranged language test option’. This option was removed from the regulations in further amendments which took effect on 27 October 2008, and since that date the basic language criteria for the two subclasses have used exactly the same terms.
The Minister now submits that the presence of the arranged language test option in the 2007 regulations supports the adoption of a construction of the other paragraphs of cl.485.215, which is opposite to that taken in Berenguel in relation to the same words. On his submissions, this has the consequence that applicants for 885 visas can establish basic English language proficiency in test results obtained at any time after visa application and before the date of decision, but applicants for 485 visas cannot do so unless they applied for their visa before 27 October 2008 and expressly invoked the arranged language test option at the time of their visa application.
For the reasons which follow, I have concluded that the arranged language test option in cl.485.215(c) was not intended to confine the effect of the other language test criteria found in cl.485.215(a) and (b). I consider that those paragraphs should be given the same effect as was given by the High Court to cl.885.213(a) and (b). As a result, the present Tribunal made a jurisdictional error by refusing to take into account Mr Habib’s 7 November 2009 test results when applying cl.485.215(b).
The legislation
The relevant criteria for both subclasses adopt definitions of ‘vocational English’ and ‘competent English’, which were also inserted into the Migration Regulations as part of the 2007 amendments. Relevant to the present visa criteria are regs.1.15B(5) and 1.15C, whose terms have remained unchanged since 2007:
1.15B Vocational English
……….
(5)If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(a)an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or
(b)a score:
(i) specified by the Minister in an instrument in writing for this subparagraph; and
(ii) in a language test specified by the Minister in the instrument.
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.
Clauses 485.215 and 485.222 in the terms introduced in 2007, and which were applicable to Mr Habib’s visa application, are:
485.21 Criteria to be satisfied at time of application
…
485.215Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, 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.
485.22 Criteria to be satisfied at time of decision
…
485.222If 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 Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
Clause 885.213 as introduced in 2007, and construed in Berenguel, provided:
885.21Criteria to be satisfied at time of application
…
885.213Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
As I noted above, cll.485.215(c) and 485.222 were repealed with effect from 27 October 2008 by the Migration Amendment Regulations 2008 (No.7) (SLI 2008 no.205), Sch.5 item [2]. Since that date, the terms of cll.485.215 and 485.213 have mirrored each other. They currently both provide only the more demanding option for English proficiency, that “the applicant has competent English”. They both continue to appear under the headings ‘criteria to be satisfied at time of application’.
Berenguel
The first question posed for the Full Court in Berenguel addressed the words “in a test conducted not more than 2 years before the day on which the application was lodged” which appear in the definitions of both ‘vocational English’ and ‘competent English’. There is ambiguity in these words, which has also been found in some other similar references in the Migration Regulations to the achievement of a prescribed level of results in an IELTS test. This is whether the definitions refer to a period for undertaking the test which concludes on the date of visa application, or to a period which extends until the date of decision at the primary and review levels.
As the High Court said in Berenguel at [25]:
The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
The High Court accepted the suggested construction of the definitions, when responding ‘yes’ to the first question posed for the Full Court. The question was whether the delegate in Mr Berenguel’s case had erred in his application of cl.1.15B(5) by excluding consideration of a test result satisfying the defined levels required for both vocational and competent English, which he achieved between time of visa application and the making of the visa decision (see [4]).
It was not necessary for their Honours to elaborate their reasons for accepting the more beneficial construction of the definitions, because it was conceded by counsel for the Minister that the High Court should accept the same construction of an analogous regulation, which had been adopted by myself in Kamal v Minister for Immigration & Anor (2009) 224 FLR 337 and upheld by the Full Court in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379. The concessions of the Minister’s counsel are found in Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 at [210], [250] and [410]. For example, at [250] Mr Lloyd SC, for the Minister, said:
… we do not say that 1.15B(5) or 1.15C in and of itself operates to limit the matters to the date of application. So we are not re-running the Kamal point at all.
The Minister’s submissions to the High Court were directed at persuading their Honours that the confining of an admissible IELTS test result to one which was achieved prior to visa application arose, not from the language of the definitions of ‘vocational’ and ‘competent’ English, nor from the language used in cl.885.213(a) or (b), but from the location of these criteria under the heading ‘Criteria to be satisfied at time of application’.
However, this submission was rejected by the High Court. Their Honours reasoned:
i)The Explanatory Statement to the 2007 amendments which introduced the definitions in reg.1.15B(5) and 1.15C “supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate level of English competency.” (see [21])
ii)“The evident purpose of the alternative criteria in cl.885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application.” (see [24])
iii)“In this respect”, the terms of cl.885.213 could be contrasted with two other criteria appearing under the same heading, which required the visa application to be “accompanied by evidence” of police checks and arrangements for medical examination. (see [17] and [24])
iv)The language of the definition of “vocational English” which was intended to be applied by cl.885.213 (see the note to cl.885.111), was susceptible to the more beneficial construction which had been conceded by the Minister’s counsel (see [25]), allowing consideration of evidence of English proficiency achieved after visa application.
v)The heading to cl.885.213 “does not connect grammatically its terms”, I infer, due to its use of the present tense. Other criteria under the same heading also did not “support any general conclusion that the criteria in Pt.885 speak exclusively to satisfaction at the time of application.” (see [26])
vi)Finally, at [26] they considered the consequences of the construction submitted by the Minister:
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The effect of cll.485.215(c) and 485.222
The High Court’s reasoning requires decision-makers to take account of test results achieved between the dates of visa application and decision when applying cl.885.213(a) or (b). The same reasoning appears overwhelmingly applicable to the identical language in cl.485.215(a) or (b), when used in an identically structured list of visa criteria. Particularly, where the two sets of criteria had been introduced in the same package of amendments, deal with the same issues, and concern essentially the same general class of former students who have studied in Australia and are seeking to achieve permanent residence in Australia.
In this respect, I do not accept the Minister’s submission that the character of subclass 485 as a temporary visa, obtained in anticipation of a permanent 885 visa, might point to an intention to preclude the recognition of results achieved after visa application. I can see no obvious policy reason why a subclass 485 applicant, and not a subclass 885 applicant, would be intended to be subjected to a restriction which, in the opinion of the High Court, produces “plain unfairness and absurdity” by requiring a decision-maker to ignore the obviously best evidence as to the applicant’s current competence in English. As I shall explain, the added paragraph cl.485.215(c) appears designed to extend, rather than to limit, the position of an applicant for the temporary visa.
The situation therefore appears suitable for the application of the principle of statutory interpretation that the same language used in the same statutory instrument should normally be given a uniform construction (compare cases cited in Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] and [72]).
It is at this stage in the debate, that the Minister emphasises the one difference between the provisions of cl.485.215 and 885.213, being the presence of cl.485.215(c) giving applicants for this subclass, but not applicants for subclass 885 visas, the ‘arranged language test option’. He submits that this points towards a restrictive effect to paragraphs (a) and (b), because otherwise that option would have ‘no work to do’ or would be ‘superfluous’ or ‘otiose’ (cf Mason CJ in Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12, and Heydon J in Saeed v Minister for Immigration & Citizenship [2010] HCA 23 at [76]).
The Minister’s counsel submitted that the Court “must strive to give meaning to every word of the provision”, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. He submitted that to apply the Berenguel interpretation to cl.485.215(a) and (b) would leave no purpose for including the option under cl.485.215(c) for an applicant to “accompany” his visa application with evidence of a future appointment for a language test, nor for providing under cl.485.222 that the results of that test should be taken into account. In effect, he submitted that paragraph (c) was intended to provide the only permissible pathway by which decision-makers could take into account a visa applicant’s results in an IELTS test undertaken after the date of visa application.
However, in my opinion, paragraph (c) does not contain any language, nor exhibit any intent, to exclude the power of decision-makers to take into account all post-application test results which become available before they make a decision. I consider that it can be given its intended operation without implication that it carries the ‘unfair and absurd’ consequence of requiring a decision-maker in other circumstances to ignore the best evidence of English competency available at time of decision.
In my opinion, its literal meaning and intended operation are to provide to a visa applicant the option of notifying a decision-maker, at the time of visa application, that he has made an appointment to sit a future IELTS test. The conferral by the Regulations of this option then gives rise, if it is exercised at the time of visa application, to an expectation that the decision-maker will defer making a decision until the results of the notified test become available. I am inclined to think that par.(c) and cl.485.222 do more than this, and also give rise to a binding obligation on the Minister to give that deferral. At least, there would be a duty on the Minister after receiving evidence under par.(c) with the visa application, not to make a decision before the date of the appointed test without giving the applicant an opportunity to be heard on whether this should happen.
Allowing a visa applicant such an option confers a real benefit, since otherwise decision-makers at first instance and on review would be under obligations to decide the visa application and any application for review expeditiously (cf. ss.61, 63(1), 65(1)(b) and 353(1) of the Migration Act). Absent a statutory deferral period, the visa applicant could have no expectation, and certainly no enforceable right to demand, that the decision-making be deferred until after the taking of a future test aimed at achieving evidence which would satisfy paragraphs 485.215(a) or (b). If evidence of the appointment for such a test did not accompany the visa application, decision-makers might have a discretion to allow time for further testing to occur, but they would be under no obligations or expectations to exercise their discretion favourably (cf. Kamal (supra) 224 FLR 337 at [47]).
When the ‘arranged language test option’ is so understood, paragraph (c) is not made redundant and its presence is not otiose, if paragraphs (a) and (b) are construed not to exclude the usual obligation identified by Berenguel which requires a decision-maker to take into account any up-to-date evidence available at the date of decision (see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 624). Such a duty does not carry with it the added obligation, which exercise of the paragraph (c) option would carry, to defer making a decision to await the tender of additional evidence which is not yet in existence.
As I have noted, all the points identified by the High Court in favour of the construction given to cl.885.213(a) and (b) appear with equal force when cl.485.215(a) and (b) are considered. Given the authoritativeness of their judgment, it is appropriate, in my opinion, that I should be slow to accept a contrary construction of the same paragraphs in relation to a sister provision. Since I have been able to identify a construction of paragraph (c) which allows it to operate in its intended manner, and without giving it the exclusionary effects submitted by the Minister, I consider that the Berenguel construction should be applied to those paragraphs.
The explanatory memoranda
I was taken to the explanatory memoranda for the 2007 and 2008 amending regulations by both counsel. I have noted above that the High Court took some strength in favour of its interpretation from statements in the 2007 memorandum in relation to the definitions introduced in reg.1.15B(5) and 1.15C. Their Honours found no assistance from the memorandum’s explanation of the terms of the criteria for subclass 885 applicants, including cl.885.213. This was probably because the explanation was ambiguous, and overlooked or obscured the points of construction which occupied the High Court in relation to that clause.
I find myself in the same position in relation to the explanation of cl.485.215, and can find in it no clear statement of legislative policy which causes me to depart from the construction I have accepted above. Such explanations “cannot overcome the need to carefully consider the words of the statute to ascertain its meaning” (see Saeed (supra) at [31]).
The relevant passage is:
Division 485.2 – Primary criteria: This Division sets out the criteria to be satisfied by a person seeking to satisfy the primary criteria for the grant of a Subclass 485 visa. It has two subdivisions:
-Subdivision 485.21 – Criteria to be satisfied at time of application:
Applicants must not have previously held a Subclass 476 or 485 visa granted on the basis of satisfying the primary criteria. The applicant must have satisfied the 2 year study requirement within the 6 months immediately before making the application, and obtained qualifications closely related to the applicant’s nominated skilled occupation. (For the meaning of ‘2 year study requirement’, please see new regulation 1.15F, inserted in the Principal Regulations by item [14] of Schedule 1 to these Regulations, above.) These criteria also require applicants to have either nominated occupation in ASCO Major Group IV and have vocational English, or to have competent English (for the meanings of the terms ‘vocational English’ and ‘competent English’, please see new subregulation 1.15B(5) and new regulation 1.15C, respectively, inserted in the Principal Regulations by items [13] and [14] of Schedule 1 to these Regulations, above); alternatively, applicants may provide evidence that they have made arrangements to undergo a relevant English test. In addition, applicants must provide evidence relating to arrangements for skills assessment, character and medical checks.
-Subdivision 485.22 – Criteria to be satisfied at time of decision:
At the time of decision, it must be confirmed that the applicant has the relevant qualifications and language skills, and the applicant must satisfy certain public interest criteria, special return criteria, and other requirements as prescribed.
The explanation given for the 2008 amendments which repealed cl.485.215(c) and cl.485.222 was:
Item [2] – Schedule 2, paragraph 485.215(c)
This item omits paragraph 485.215(c) in Schedule 2 to the Principal Regulations.
Clause 485.215 is a criterion to be satisfied at time of application by applicants seeking to satisfy the primary criteria for a Subclass 485 (Skilled (Graduate)) visa. It provides that applicants must satisfy English language requirements by meeting one of paragraphs (a), (b) or (c). Paragraph 485.215(a) provides that if the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, then the applicant must have vocational English. ‘Vocational English’ is defined in regulation 1.15B. Paragraph 485.215(b) requires that the applicant has competent English. ‘Competent English’ is defined in regulation 1.15C. Paragraph 485.215(c) requires that 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. The International English Language Testing System (IELTS) test is one of the testing regimes specified for the purpose of paragraph 485.215(c).
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 time of application, have either vocational English (if their nominated occupation is in the Major Group IV in the Australian Standard Classification of Occupations), or competent English.
This tends to confirm, rather than the contrary, my construction of paragraph (c), as intended to do no more than confer a right to insist upon the deferral of a decision by the Minister until after the notified language test has been completed. However, the author of the explanatory memorandum appears in the last paragraph of the above extract, to hold a legal opinion as to the effect of leaving cl.485.215 in exactly the same terms as cl.885.213, which I am bound by Berenguel to regard as legally erroneous. The assistance which can be gained from the 2008 explanatory memorandum is therefore limited. Moreover, an explanatory memorandum for later amending legislation will generally provide little assistance, since statutory construction is not arrived at by applying retrospective statements by the maker of a regulation as to his or her intentions or legal opinions concerning earlier legislation.
The present Tribunal’s reasoning
The location of a Berenguel error in the present Tribunal’s decision can be identified without setting out the details of Mr Habib’s visa application and how it proceeded in the Department of Immigration and the Tribunal. It is enough to note that his visa application on 25 March 2008 answered “No” to the question: “Have you undertaken an English test within the last 24 months?”. Somewhat inconsistently, he subsequently presented to the Department of Immigration results for an IELTS test undertaken on 10 February 2007 which did not achieve the score necessary for ‘competent’ English.
The Delegate refused the visa on the uncontested grounds that Mr Habib’s ‘nominated occupation’ of ‘computing professional (not e/where class)’ required competent English, and that there was no evidence of his achieving the necessary results either before or after making the visa application.
In the course of the appeal proceedings before the Tribunal, Mr Habib attempted further IELTS tests on 13 June 2009 and 7 November 2009. In the latter test, he achieved the requisite scores of at least 6 in each of the four components.
The Tribunal refused to adjourn its hearing appointed for 11 November 2009 to await the results of this test. However, they were presented to the Tribunal on 4 January 2010. This was well before it made its decision on 11 February 2010, and the Tribunal acknowledged in its statement of reasons that it had received this evidence. The Tribunal’s records show that it investigated, and verified, the authenticity and correctness of the submitted results.
In its findings and reasons, the Tribunal found that Mr Habib did not satisfy cl.485.215(a) because his nominated occupation was not of the type which allowed recognition of the lower IELTS results for ‘vocational English’.
It then referred to his 2007 test results, and noted that they did not satisfy the requirements for ‘competent English’. It said:
The Tribunal finds that at the time of application the applicant has not achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of at least B in each of the 4 test components in an OELT conducted not more than 2 years before the day on which the visa application was lodged. The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.
The Tribunal finds that the applicant does not satisfy cl.485.215(b).
The Tribunal considered whether Mr Habib had provided evidence of a test booking which accompanied his visa application. It referred to his sworn evidence that, when he completed the on-line application, he “entered a booking number in the IELTS section confirming that I had booked another test date after lodgement” and that “the online form would not let me continue” without this. However, the Tribunal said that “there is no evidence that the applicant did provide evidence with the application that he had made arrangements to sit a language test”. In effect, the Tribunal preferred the evidence of a hard-copy of the visa application which was on the Department’s file, and contained no reference whatsoever to this option. The Tribunal concluded:
The Tribunal appreciates that the applicant is distressed because he has since achieved a score of more than 6 in each of the 4 components in the IELTS test that he undertook on 7 November 2009. However, the Tribunal cannot find that the applicant has competent English at the time of decision if the applicant does not meet the time of application requirements. The Tribunal finds that the applicant’s visa application was not accompanied by evidence that the applicant had made arrangements to undergo a language test specified for the purposes of cl.485.215(c). Accordingly, the applicant does not satisfy cl.485.215(c).
For the reasons given above, the Tribunal finds that, the applicant does not satisfy cl.485.215.
In my opinion, the above reasoning plainly applied a construction of reg.1.15C contrary to the construction conceded by the Minister’s counsel before the High Court, which was accepted by the High Court. It also gave effect to an interpretation of cl.485.215(b) contrary to the construction which I have accepted above.
That error was material and determinative in the Tribunal’s reasoning, and the Minister does not dispute that it amounts to a jurisdictional error. I am therefore satisfied that Mr Habib and his family are entitled to the issue of writs of certiorari and mandamus to require the Tribunal to reconsider the matter.
I note that Mr Habib’s application also challenged the legality of the Tribunal’s consideration of cl.485.215(c), inter alia, upon arguments that the e-lodgement form was defective by preventing or discouraging visa applicants from invoking that option. This is a contention which has also been made in several other cases which have been in my docket and those of my colleagues. Those cases have all been resolved by consent orders for remitter, and I have not yet been required to address that issue, nor issues as to how on-line applications can be ‘accompanied’ by evidence satisfying this regulation. Since I am satisfied that the Tribunal’s decision is otherwise invalid, I have not needed to address these issues in the present matter. However, I note that I do not consider that they were abandoned by Mr Habib’s legal representatives, notwithstanding that, on my encouragement at directions hearings, they presented submissions at the hearing which were directed only at the Berenguel points.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 5 July 2010
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