Herath v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 36
Federal Circuit and Family Court of Australia
(DIVISION 2)
Herath v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 36
File number: PEG 35 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 30 January 2023 Catchwords: MIGRATION – Regional Employer Nomination (Permanent) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was incorrect to find that applicant had not satisfied the English competency requirement – whether the Tribunal failed to allow the applicant to present evidence – where remittal is futile in any event – Ministerial intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 351, 476
Migration Regulations 1994 (Cth), reg 1.15C, Part 187 and cll 187.232 & 187.311 in Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 25 January 2023 Place: Perth Applicants: The applicants appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 35 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UDITHA CHAMINDA BANDARA HERATH
First Applicant
VIDANARALALAGE MARIE SHIREEN RAMYA HERATH
Second Applicant
MARIE SACHINI NISHARA HERATH
Third Applicant
JOSEPH RAYAN BANDARA HERATH
Fourth Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 JANUARY 2023
THE COURT ORDERS THAT:
1.The application (as amended on 25 January 2023) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The first and second applicants in this proceeding are both citizens of Sri Lanka. They are husband and wife respectively (Court Book (“CB”) 1-4). The first applicant arrived in Australia in 2008. The second applicant arrived in May 2009 with the third and fourth applicants (the first and second applicants’ daughter and son respectively) (CB 138).
On 30 June 2017, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (the “visa”) in the Direct Entry Stream (CB 1-18). The second, third and fourth applicants were included in that visa application as members of the first applicant’s family unit (CB 3-6). In that application, the first applicant was nominated for the position of “Contract Administrator” (CB 10) with Direct Eight Pty Ltd (the “sponsor”). Attached to the visa application were copies of the first applicant’s educational records relating to a Master of Business Administration qualification obtained from Central Queensland University (“CQU”) (CB 19-21).
On 6 June 2019, the Department of Home Affairs (the “Department”) asked the first applicant (through the applicants’ representative) to provide more information in relation to the visa application (CB 34-47). Relevantly, the Department requested that the first applicant provide one of the following (CB 43):
1.results of an International English Language Test Systems (IELTS) test conducted in the three years immediately before the day on which you lodged your visa application, in which you obtained a test score of at least 6 in each of the four test components;
2.results of an Occupational English Test (OET) conducted in the three years immediately before the day on which you lodged your visa application, in which you obtained a test score of at least ‘B’ in each of the four test components;
3.results of a Test of English as a Foreign Language internet-based test (TOEFL iBT) conducted in the three years immediately before the day on which you lodged your visa application, in which you obtained at least the following test scores in each of the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking;
4.results of a Pearson Test of English (PTE) Academic conducted in the three years immediately before the day on which you lodged your visa application, in which you obtained a test score of at least 50 in each of the four test components;
5.results of a Cambridge English: Advanced (CAE) test conducted from 1 January 2015, in which you obtained a test score of at least 169 in each of the four test components; or
6.evidence that you hold a valid passport issued by the United Kingdom, Canada, New Zealand, the United States of America or the Republic of Ireland, to a citizen of that country.
The first applicant provided the Department with a number of International English Language Test Systems (“IELTS”) Test Report Forms for tests undertaken between September 2011 and September 2017 (CB 48-51). The only Test Report Form in which the first applicant obtained a test score of at least 6 in each of the four test components was that undertaken on 24 September 2011 (48).
On 9 August 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 61-66). The delegate determined that the first applicant had not obtained the necessary score in an approved English language test in the three years immediately prior to the day on which the visa application was lodged. The delegate also found that the applicant was not “mentioned in the classes of persons that are exempt from the English language criteria”. On that basis, the delegate found that the first applicant did not satisfy cll 187.232(a) or 187.232(b) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 63). The delegate also found that the second, third and fourth applicants failed to satisfy cl 187.311 in Schedule 2 of the Regulations (CB 64-66).
On 22 August 2019, the applicants applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 67-69). The applicants were represented by a registered migration in relation to the review application (CB 68-69).
On 30 November 2021, the Tribunal wrote to the applicants (through their representative) inviting them to attend a hearing before it, scheduled to take place on 15 December 2021 via video link (using Microsoft Teams) (CB 75-80).
On 6 December 2021, the applicants’ representative advised the Tribunal that the first applicant was “booked for an English test and [was] due to sit … the exams on the 9th of December 2021”. On that basis, the applicants’ representative requested a postponement of the Tribunal hearing until after the first applicant was “issued with the result of his English language test” (CB 81).
On 7 December 2021, the applicants were advised that the Tribunal would not postpone the hearing (CB 85-90).
Also on 7 December 2021, the applicants’ representative wrote to the Tribunal providing a completed response to hearing invitation form and supporting documents (including a booking form for an Academic English language test with Pearson Test of English (“PTE”)) (CB 91-101). In that correspondence, the applicants’ representative stated (CB 101):
The applicant is due to sit another English test as per the attached booking from PTE and he hopes to obtain a favourable score. With this, the applicant is also hoping for the Tribunal to consider in relaxing the rules for him to meet the Competent English requirement and consider his previous English exam results as meeting the requirements.
On 15 December 2021, the applicants attended the Tribunal hearing via video link. The applicants were assisted at that hearing by their registered migration agent (CB 113-115). At the hearing, the applicants were granted additional time to provide further information to the Tribunal.
Following the hearing, the first applicant provided a completed PTE Academic Score Report for a test taken on 9 December 2021 (CB 111).
On 3 January 2022, the applicants’ representative provided additional documents to the Tribunal. The Tribunal requested that those documents be submitted in a form compliant with the relevant Practice Direction (CB 117).
On 6 January 2022, the applicants’ representative re-submitted the materials (which were paginated and indexed) and notified the Tribunal accordingly (CB 121-127).
On 18 February 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 132-144).
On 4 March 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision in this matter is 13 pages in length and spans 75 paragraphs.
The Tribunal began by identifying the type of visa under review and noted that a delegate of the Minister had refused to grant the applicants the visa (which the first applicant had applied for on 30 June 2017). The Tribunal also pointed out that the visa class contained only one subclass at that time (at [1]-[2]).
The Tribunal explained that at least one of the applicants must satisfy the primary criteria for a Subclass 187 visa (as set out in Part 187 in Schedule 2 of the Regulations) and that the remaining members of the family unit need only satisfy the secondary criteria. The Tribunal noted that in this matter the first applicant was seeking the visa in the “Direct Entry stream” and that the sponsor’s nomination in relation to the applicant for the position of Contract Administrator was approved on 1 August 2019 (at [3]-[4]).
The Tribunal detailed that a delegate of the Minister had refused to grant the first applicant the visa because he had not demonstrated that he met the English language requirements at the time the visa application was lodged (at [5]).
The Tribunal then confirmed that the applicants appeared at the hearing before it on 15 December 2021 (via video conference) and were represented by their registered migration agent at that hearing (at [6]).
The Tribunal identified that the issue in this matter was whether the first applicant met the English language proficiency criterion set out in cl 187.232 of Schedule 2 of the Regulations. The Tribunal acknowledged that submissions had been received from the applicants’ representative prior to the hearing in which the representative advised that the first applicant was due to sit another English test. The applicants’ representative also requested that the Tribunal “consider relaxing the rules” and accept the first applicant’s IELTS results from September 2011 in satisfaction of the criterion (at [8]-[9]).
The Tribunal then set out the relevant Regulation, as follows:
10.The Tribunal noted at the commencement of the hearing that, in relation to an applicant seeking to satisfy the primary criteria for a Direct Entry stream Subclass 187 visa, cl.187.232 of Schedule 2 to the Regulations requires that:
At the time of application, the applicant:
(a) had competent English; or,
(b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
Further, the Tribunal stated that it has no discretion and must apply the law. Mr Herath acknowledged the Tribunal’s comments in this regard. The representative made no comment.
The Tribunal confirmed that, following the hearing, the applicants’ representative had provided the Tribunal with a copy of the first applicant’s PTE Academic Test Score dated 9 December 2021 (at [11]).
The Tribunal continued:
12.The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if either they:
1)undertook a specified language test in the 3 years immediately before the day the visa application was made and achieved a specified score (emphasis added); or,
2) hold a specified passport.
13.The following test scores are specified in IMMI 15/005 for the purposes of r.1.15C(1) of the Regulations:
a)an IELTS test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening (the 4 Test Components); or
b)an OET test score of at least B in each of the 4 Test Components; or
c)a TOEFL iBT test score with at least the following scores in the 4 Test Components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or
d)a PTE Academic test score of at least 50 in each of the 4 Test Components.
14.The Department's file and its ISCE records confirm that Mr Herath completed IELTS tests on multiple occasions before lodgement of his Subclass 187 visa application on 30 June 2017 and that he undertook another test 2½ months after that date. The Table below sets out the dates of the tests undertaken and the results of those IELTS tests against each of the 4 Tests Components:
Date Listening Reading Writing Speaking 24/09/2011 6.5 6.5 7.0 7.5 24/02/2014 6.5 6.5 7.0 7.5 17/06/2017 7.5 5.5 6.0 6.5 24/06/2017 6.0 5.5 6.0 6.5 09/09/2017 6.0 6.0 5.5 7.0
The Tribunal noted that, despite claiming otherwise in his visa application, the first applicant had conceded at the hearing that he had not obtained at least six in each of the four test components in the three years prior to lodging his visa application. The Tribunal also explained that, whilst the first applicant had achieved the requisite English results in IELTS tests completed on 24 September 2011 and 24 February 2014, he was required to have achieved those results within the three years before lodgement of his visa application (being between 30 June 2014 and 30 June 2017). The Tribunal found that there was no evidence before it that the first applicant had obtained the specified scores in an English language test in the three years immediately prior to lodging his visa application (at [15]-[17]).
The Tribunal also noted that the first applicant did not hold one of the five specified passports listed in IMMI 15/005 and thus did not meet the requirement of having “competent English” at the time of lodgement of his visa application. On that basis, the Tribunal found that cl 187.232(a) in Schedule 2 of the Regulations was not met (at [18]-[20]).
The Tribunal further found that the first applicant was not within a specified class of persons set out in IMMI 15/083 (the legislative instrument relevant at the time the first applicant lodged his visa application). That is, the first applicant was not a person whose earnings would be at least equivalent to the Australian Tax Office’s top individual income tax rate (being $180,001 per annum at that time). On that basis, the Tribunal found that cl 187.232(b) in Schedule 2 of the Regulations was not met (at [21]-[24]).
Accordingly, the Tribunal determined that the first applicant did not satisfy cl 187.232 in Schedule 2 of the Regulations. Further, the second, third and fourth applicants could not meet the criteria for the grant of the visas and the decision to refuse their visas needed to be affirmed (at [25]-[27]).
The Tribunal then considered whether this was “an appropriate matter to refer to the Minister” pursuant to s 351 of the Act (at [28]-[74]).
The Tribunal explained that there was no statutory obligation to consider whether a matter ought to be referred to the Minister and that the Tribunal had no power to make a binding recommendation in that regard. The Tribunal noted, however, that the Minister had issued guidelines explaining the circumstances for consideration when using his powers pursuant to s 351 of the Act and cases which would be inappropriate to bring to the Minister’s attention. Those guidelines indicate that consideration will be given to cases which exhibit one or more “unique or exceptional circumstances” (at [28]-[30]).
The Tribunal then outlined the circumstances which might be considered “unique” or “exceptional” and confirmed that the Tribunal had also considered the Tribunal President’s Directions regarding whether the matter was appropriate for a referral to the Minister. The Tribunal stressed that it took this issue seriously and confirmed that the applicants gave oral evidence in support of the Tribunal referring the matter to the Minister. It was further noted that, following the hearing, the applicants’ representative had provided extensive documentation to the Tribunal in support of the Minister exercising the public interest powers (at [31]-[36]).
The Tribunal first considered any exceptional economic benefit which would result from the applicants remaining in Australia (at [38]-[43]). The Tribunal then considered other benefits which would result from the applicants being permitted to remain in Australia (including details of 10 letters of support dated 20 and 21 December 2021 supporting the applicants remaining in Australia “for the benefit of the country”) (at [44]-[59]). The Tribunal finally considered whether the application of relevant legislation lead to an unfair result in the applicants’ case (at [60]-[73]).
The Tribunal determined that this was not a matter that it should refer to the Minister but highlighted that the applicants could independently seek Ministerial intervention. In that regard, the Tribunal set out further information that the applicants might wish to supply to the Minister in support of such a request (at [74]).
The Tribunal ultimately affirmed the decision refusing to grant the applicants the visas (at [75]).
Application to this Court
The application for judicial review filed by the applicants on 4 March 2022 contains three “grounds of review” as follows (without alteration):
1. English level shows “competent” in year 2011 and year 2021
2.Completed a Masters of Business Administration degree (HR major) full-time study, in English at CQuniversity, in Brisbane Australia.
3.As per the Migration regulations 1994 - schedule 2, confirms “All criteria must be satisfied at the time a decision is made on the application”
The affidavit sworn by the first applicant on 2 March 2022 (in support of the application for judicial review) largely repeats these grounds of review.
On 5 May 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
The day prior to the hearing before this Court (that being 24 January 2023), the first applicant sent some additional documents to the Court (via email). Those documents related to the first applicant’s English language competency and also appear in the Court Book (at CB 21, 48-51, 111 & 124).
The materials before this Court thus include the application for judicial review and supporting affidavit filed by the applicants on 4 March 2022, a Court Book numbering 144 pages (marked as Exhibit 1), written submissions filed by the Minister on 10 January 2023, an affidavit of service of Ms Georgina Ellis affirmed and filed on 17 January 2023 and materials provided by the first applicant to the Court on 24 January 2023 (marked as Exhibit 2).
The applicants appeared before this Court on 25 January 2023 without legal representation. The Court confirmed with the applicants that they had received copies of the Court Book and the Minister’s written submissions.
The Court noted that the application for judicial review filed by the applicants only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the first applicant orally amending the application to rectify the oversight. The Court explained this issue to the first applicant and made an order amending the application for judicial review to include seeking a writ of mandamus.
The Court also made orders, with the consent of the applicants and the Minister, appointing the first applicant as the litigation guardian of the fourth applicant (who is still a minor).
Noting that the applicants were unrepresented, the Court gave them the opportunity to explain orally what they thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, 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 ignores relevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant explained that he “totally agreed with the Tribunal member on all of the points made” in the Tribunal’s decision, confirming that there was no error in that decision. The first applicant did advise the Court, however, that the Tribunal member “cut him off” when he wanted to “explain about the situation and experiences he had gained in the past” (in relation to his English language skills). This issue will be discussed further below.
Consideration
Grounds of review
Ground 1
Ground 1 provides:
1. English level shows “competent” in year 2011 and year 2021
To the extent that the first applicant is suggesting that he satisfied the relevant English language requirements because he achieved a competent level of English in 2011 and 2021, this is not the case.
At the time of his visa application (being 30 June 2017), the first applicant was required to satisfy cl 187.232 in Schedule 2 of the Regulations which relevantly provided (at the time of the visa application) as follows:
187.232
At the time of application, the applicant:
(a) had competent English; or
(b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
The meaning of “competent English” is set out in reg 1.15C of the Regulations and relevantly provided (at the time of the visa application) as follows:
1.15C Competent English
(1) A person has competent English if:
(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba)for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and
(bb)for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2)A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The first applicant in this matter was not invited by the Minister to apply for the visa. The time period within which the test was required to be conducted was in the three years immediately before the day on which the first applicant’s visa application was made: reg 1.15C(1)(bb) of the Regulations.
The instrument setting out the applicable tests and specified scores was IMMI 15/005. That instrument relevantly provided as follows:
5.SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:
…
D. for paragraph 1.15C(1)(a), the following language tests:
i.an International English Language Test System (IELTS) test; or
ii. an Occupational English Test (OET); or
iii.a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or
iv. a Pearson Test of English Academic (PTE Academic); or
v.a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).
E. for paragraph 1.15C(1)(c) the following test scores:
i.an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or
ii.an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or
iii.a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or
iv.a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or
v.a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading writing and speaking.
As outlined above, the first applicant was required to complete one of the applicable tests at the specified level (as set out above) between 30 June 2014 and 30 June 2017. Unfortunately, test scores showing the first applicant’s English proficiency as “competent” in 2011 and 2021 cannot assist him in satisfying the visa requirements.
Insofar as the applicants suggest that the Tribunal failed to consider the “competent” test scores achieved by the first applicant in 2011 and 2021, this fails on a factual level.
The Tribunal discussed the first applicant’s 2021 test scores (where the first applicant’s English was assessed as “competent”) in its decision as follows:
11.After the hearing, the representative provided a copy of Mr Herath’s PTE score dated 9 December 2021 confirming he achieved PTE Academic test scores of Listening 65, Reading 53, Speaking 72 and Writing 68. The representative also provided additional documentation as discussed below.
The Tribunal then considered the first applicant’s 2011 and 2014 test scores (where the first applicant’s English was also assessed as “competent”) as follows:
16.Whilst the Tribunal acknowledges Mr Herath completed IELTS tests on 24 September 2011 and 24 February 2014 which confirm that he had ‘competent English’ as at those dates, it does not alter his position at the time of lodgement of the visa application. Had Mr Herath been able to provide the Department with evidence that he had ‘competent English’ as demonstrated by one of the prescribed tests in IMMI 15/005 undertaken within the 3 years before lodgement of his visa application (that is, between 30 June 2014 and 30 June 2017), he would have met the English language requirement in cl 187.232(a) of Schedule 2 to the Regulations.
Although the first applicant’s test scores in 2011 and 2021 did show that the first applicant’s English level was “competent”, because the scores were not obtained within the specified time period, the first applicant is unable to rely on them for the purposes of his visa application.
No error arises in relation to ground 1.
Ground 2
Ground 2 states:
2.Completed a Masters of Business Administration degree (HR major) full-time study, in English at CQuniversity, in Brisbane Australia.
This ground of review is unclear and not particularised.
To the extent that the first applicant is suggesting that, because he obtained a Masters degree from an Australian university, he should not have to demonstrate that he has a competent level of English (as required by cl 187.232(a) in Schedule 2 of the Regulations), unfortunately this is not the case. As set out (at [53]) above, the first applicant was required to complete a specified English language test as set out in IMMI 15/005 and obtain the corresponding test scores. A Masters degree from an Australian (or English speaking) university is not one of the English language tests specified.
No error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.As per the Migration regulations 1994 - schedule 2, confirms “All criteria must be satisfied at the time a decision is made on the application”
The applicants have incorrectly interpreted the relevant Regulations in relation to ground 3 and appear to suggest that the first applicant ought to have been able to satisfy the English language requirement at the time of the Tribunal’s decision. Unfortunately, this interpretation is incorrect.
While cl 187.2 in Schedule 2 of the Regulations outlines the requirements regarding primary criteria for the grant of the visa and states that “[a]ll criteria must be satisfied at the time a decision is made on the application”, this statement merely explains that the decision maker must be satisfied (at the time they are making their decision) that an applicant has satisfied all of the relevant criteria for the grant of the visa.
The specific requirement for the first applicant to have a “competent English” proficiency is set out in cl 187.232 in Schedule 2 of the Regulations. As outlined above (at [50]), that clause clearly states that, “at the time of application”, the applicant must have met that level of English competency.
No error arises in relation to ground 3.
Oral submissions
As outlined above, the first applicant told the Court that he felt the Tribunal member had “cut him off” when he wanted to give oral evidence in support of his claim that he was fluent in the English language.
The Court does not have a transcript of the Tribunal hearing so it is difficult to determine whether the first applicant was indeed “cut off”. Nonetheless, having discussed the issue with the first applicant, it is clear that what the first applicant wanted to detail was his English language competency and the language and social skills he had gained throughout his life. He did not seek to present evidence relevant to the required English language tests.
Unfortunately, within the strict statutory context within which the Tribunal was operating, once the applicant had conceded at the Tribunal hearing that he had not met the legislative requirements, any such evidence could not have assisted the first applicant to meet the English language competency within the requisite three year period (being between 30 June 2014 and 30 June 2017) or have changed the Tribunal’s decision in that regard.
No error arises in relation to issues raised by the first applicant at the hearing.
Futility
As noted above, the first applicant conceded at the Tribunal hearing (and again at the hearing before this Court) that he did not obtain an IELTS test score of at least six in each of the four test components within the three years prior to lodging his visa application (on 30 June 2017) (Tribunal’s reasons at [15]).
As correctly submitted by the Minister (at [30] in written submissions filed in this Court on 10 January 2023), in circumstances where the first applicant did not achieve the requisite level of English proficiency prior to lodging his visa application, the first applicant is unable to satisfy the visa requirements. That is, even if the Tribunal’s decision contained any jurisdictional error and the matter were remitted, the Tribunal would have no choice but to come to the same conclusion: Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [67].
Accordingly, any decision to remit the matter to the Tribunal for reconsideration would be futile.
Ministerial intervention
This is a most unfortunate matter.
The first applicant in this matter did not meet the English competency requirements for the grant of the visa because he was unable to demonstrate the requisite score levels on a test within the three year period immediately prior to applying for that visa (that is, between 30 June 2014 and 30 June 2017).
As outlined above, however, in 2011, the first applicant successfully completed a Master of Business Administration course (instructed in English) at CQU. Further, an IELTS Test Report from 24 September 2011 indicated that the first applicant had the requisite level of English competence (as legislated for the grant of the visa) as early as September 2011. Finally, in December 2021, the first applicant also undertook a PTE Academic English test and scored at least 50 in each of the test components (again indicating that the first applicant had the requisite level of English competence required for the grant of the visa as recently as December 2021).
The first applicant conceded (both before the Tribunal and before this Court) that he did not have the necessary test scores within the requisite three year period to satisfy the visa. In the circumstances, the Court is not able to assist the applicants (as no jurisdictional error arises in this matter). It does, however, seem to this Court that the strict (but necessary) application of the relevant legislation in this matter has disadvantaged an applicant who is clearly competent in the English language (and his family).
The Court draws the applicants’ attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicants’ visas, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
Conclusion
The application for judicial review filed by the applicants on 4 March 2022 (and amended on 25 January 2023) has failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 January 2023
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