Herath v Minister for Immigration, Citizenship & Multicultural Affairs
[2024] FCA 547
•15 May 2024
FEDERAL COURT OF AUSTRALIA
Herath v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FCA 547
Appeal from: Herath v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 36 File number(s): WAD 29 of 2023 Judgment of: O'SULLIVAN J Date of judgment: 15 May 2024 Date of publication of reasons: 23 May 2024 Catchwords: MIGRATION – Regional Employer Nomination (Permanent) visa – appeal from a decision of the Federal Circuit and Family Court of Australia – whether the primary judge erred in affirming the decision of the Administrative Appeals Tribunal that the appellant had not satisfied the English competency requirement pursuant to regs 187.232(a) & (b) and 1.15C of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed Legislation: Federal Court Rules 2011 (Cth), Item 15, Schedule 3
Migration Act 1958 (Cth), s 351(1),
Migration Regulations 1994 (Cth), regs 1.15C, 187.232(a) and (b)
Cases cited: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
De Guzman [2022] AATA 5097
Thapa v Minister for Immigration [2021] FCCA 686
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 15 May 2024 Counsel for the First, Second, Third and Fourth Appellants: Appellants appeared in person Solicitor for the Respondents: Ms G Ellis appearing for Sparke Helmore Lawyers ORDERS
WAD 29 of 2023 BETWEEN: UDITHA CHAMINDA BANDARA HERATH
First Appellant
VIDANARALALAGE MARIE SHIREEN RAMYA HERATH
Second Appellant
MARIE SACHINI NISHARA HERATH (and another named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1.Leave to the appellant to amend the orders sought in the notice of appeal filed 9 February 2023, by deleting the orders sought and substituting the following:
(a)The appeal be allowed.
(b)The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
2.The appeal is dismissed.
3.The first to fourth appellants pay the first respondent’s costs fixed in the amount of FOUR THOUSAND AND FIVE HUNDRED DOLLARS ($4,500).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
This is an appeal from a decision of the Federal Circuit and Family Court of Australia delivered 30 January 2023: Herath v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 36.
By a notice of appeal filed 9 February 2023, the appellants sought two orders:
(1)To relax regulation 187 visa or 187 visa regulations in relation to English language test requirements in 2017 (at the time of the application) consider/accept previous (2011, 2014) and present (2021) English test results as those show “competent level English” language skills (sic); and
(2)Grant 187 visa.
When the matter was called on, I indicated to Mr Herath, who appeared for all of the appellants and is himself the first appellant, that the Court had no power to make those orders.
Accordingly, Mr Herath applied orally to amend the orders sought to seek an order that the appeal be allowed and that the matter be remitted to the Administrative Appeals Tribunal for determination according to law.
There being no objection from the first respondent (Minister for Immigration, Citizenship and Multicultural Affairs) to that course, the order was made.
Neither Mr Herath, nor any of the appellants, have provided any written submissions.
At the Court’s invitation, Mr Herath was asked to submit to the Court why it was that the primary judge had made an error. Mr Herath informed the Court that he does not contend that the primary judge made an error.
In short, Mr Herath applied on 30 June 2017 for a visa in the direct entry scheme. The other appellants - that is, Mrs Herath and their two children - applied for the visa as members of his family unit.
In so doing, the first appellant was required to satisfy the criteria in regs 187.232(a) and (b) of the Migration Regulations 1994 (Cth).
Regulation 187.232(a) requires that at the time of the application the applicant has competent English. Whether a person has competent English is defined in reg 1.15C as being:
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)Aperson 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.
There is no issue that Mr Herath undertook those tests however, there is an issue as to whether he did so within the three years required by reg 1.15C. It is apparent, and the Tribunal found, that Mr Herath has undertaken five English language tests, two of which were on 24 September 2011 and 24 February 2014 respectively. The results of those two tests were such that Mr Herath would have achieved the level of competency required by the Regulations however, they fall outside the three year limitation period provided by reg 1.15C.
Mr Herath also undertook English language competency tests on 17 June 2017, 24 June 2017 and 9 September 2017.
Unfortunately, in each of those tests, Mr Herath did not achieve the required competency.
Accordingly, it is not disputed that the appellant did not satisfy the criteria in reg 187.232(a) that the applicant has competent English.
The primary judge held: Reasons [77] and [78], that Mr Herath 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.
That is not in dispute. I add that it is also apparent that Mr Herath was unable to demonstrate the requisite score levels on a test in the period between the time of the application and the time the visa decision was made, that is on 9 August 2019.
The primary judge also noted that in 2011, Mr Herath had successfully completed a Master of Business Administration course instructed in English at Central Queensland University and an IELTS test report from 24 September 2011 indicated that he had the requisite level of English competence as legislated for the grant of the visa as early as September 2011.
Finally in December 2021, Mr Herath also undertook a PTE academic English test and scored at least 50 in each of the test components, again indicating that he had the requisite level of English competence required for the grant of the visa as recently as December 2021. Nonetheless, as the primary judge found: Reasons [79], and as Mr Herath conceded before his Honour and before the Tribunal, he did not have the necessary test scores within the requisite three year period to satisfy the visa.
The primary judge described this matter as a most unfortunate matter. I agree.
The primary judge noted that there was no jurisdictional error arising and that the strict but necessary application of the relevant legislation has disadvantaged an applicant, who is clearly competent in the English language, and his family.
The primary judge continued at Reasons [80] that the Court draws the applicant’s attention to the Minister’s discretionary powers. Whereas, 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 Migration Act1958 (Cth) to substitute a more favourable decision.
I reiterate his Honour’s observations.
Mr Herath referred to two cases in the course of his submissions, Thapa v Minister for Immigration [2021] FCCA 686, and De Guzman [2022] AATA 5097. I have considered both those cases.
Thapa does not assist the appellants. Although the general principles espoused in that matter, which in turn rely on the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, may well be applicable to Mr Herath’s position.
At no time within the three years prior to the making of the visa application, nor in the period up to the time the delegate refused the visa, did Mr Herath satisfy the criteria.
De Guzman was a case in which the AAT found the relevant criteria had been satisfied. In that sense, the decision does not assist the appellants.
Conclusion
The appellants have not demonstrated any error on the part of the primary judge and the appeal must be dismissed.
The Minister seeks costs as against the first to fourth appellants. It does so in the sum of $4,500, which is less than the amount that can be claimed in a short form bill for an appeal involving a migration decision pursuant to the Federal Court Rules 2011 (Cth), Item 15 of Schedule 3 of $7,965. The Minister also submits it is a reasonable sum and proportionate to the nature including the complexity of the case.
Mr Herath does not argue against the order sought and I am satisfied that a costs order in that sum is appropriate in the circumstances.
There will be orders accordingly.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 15 May 2024
SCHEDULE OF PARTIES
WAD 29 of 2023 Appellants
Fourth Appellant:
JOSEPH RAYAN BANDARA HERATH
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4
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