Ilyas v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 328
•17 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ilyas v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 328
File number(s): MLG 2689 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 17 February 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled Provisional Class VC Visa – show cause hearing – Applicant did not satisfy clause 485.212 of Schedule 2 of the Migration Regulations 1994 (Cth) – failure to accompany visa application with satisfactory language test results – no arguable case established – application dismissed Legislation: Migration Regulations 1994 (Cth) cl 485, 485.212 of Schedule 2
Migration Act 1958 (Cth) ss 55, 56, 58, 476(2)(a), 476(4)
IMMI 15/062 Specification of English Language Tests, Scores and Passports 2015
Cases cited: Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
Number of paragraphs: 20 Date of hearing: 17 February 2021 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Solicitor Advocate for the Respondents: Ms Roeger Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 2689 of 2018 BETWEEN: SAUD ILYAS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
17 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Application filed on 7 September 2018 be dismissed.
2.The Applicant pay the Minister's costs in the sum of $3,737.
3.These Orders become operative and take effect on the date written reasons are published.
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPT
JUDGE BLAKE:
This is an application by the Applicant, Mr Ilyas, for a review of a decision of the Administrative Appeals Tribunal ('the Tribunal'). The Tribunal made its decision on 14 August 2018. In its decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Skilled (Provisional) (Class VC) visa ('the visa').
The matter came on before me today for a show cause hearing. For reasons related to the lockdown in Victoria because of COVID-19, I heard the matter via Microsoft Teams remotely.
For the purposes of the present application, the criteria for granting the visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 ('the Regulations'). Clause 485.212 of Schedule 2 of the Regulations stated as follows:
The application was accompanied by evidence that:
(a) the applicant:
(i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
There was no issue before the Tribunal or this Court that the Applicant did not satisfy clause 485.212 subparagraph (b). The Applicant is not the holder of a passport specified for the purposes of that sub-regulation. Rather, the relevant question is whether the Applicant satisfied clause 485.212 subparagraph (a). At the relevant time, the period specified for the purposes of clause 485.212(a)(ii), when a test must have been undertaken, was within three years before the day on which the application for the visa was made.
The Applicant applied for the visa on 14 March 2018. In his application, the Applicant provided a copy of an International English Language Test System ('IELTS') result. The IELTS test was taken on 16 December 2017. The Applicant achieved an overall score of 5.5 for the test. That test score did not meet the minimum overall test score required by the relevant instrument, that is item 3 of IMMI 15/062 Specification of English Language Tests, Scores and Passports 2015 ('IMMI 15/062'), which provides that the minimum overall test score is a score of 6. Further, item 4 of that instrument specifies that the IELTS test must have been undertaken within three years before the day on which the application was made.
The Applicant's failure to demonstrate that he had achieved the requisite IELTS score, or any other score under the test, was sufficient for the delegate of the Minister for Immigration Citizenship, Migrant Services And Multicultural Affairs ('delegate') to conclude that the Applicant did not meet the requirements of clause 485.212(a)(ii) of the Regulations. As a consequence, the Applicant was not granted the visa. The Tribunal affirmed the decision of the delegate.
It is appropriate to briefly review, which I have, the decision of the Tribunal. In its decision, the Tribunal:
(a)identified the Applicant had applied for a sub-class 485 visa; see paragraph 2 of the reasons;
(b)outlined the adjournments granted to the Applicant to enable him to present his case; see paragraphs 4 and 5 of its reasons;
(c)identified the issue before it as being whether the Applicant was able to satisfy the requirements of clause 485.212 of the Regulations; see paragraph 8 of the reasons;
(d)identified the relevant instrument as being IMMI 15/062 and noted that the Applicant was not the holder of a passport which would satisfy clause 485.212 subparagraph (b) of the Regulations; see paragraph 9 of the reasons;
(e)found that the Applicant's test result did not meet the minimum overall score required; see paragraph 10 of the reasons;
(f)noted the Applicant's claimed discussions with his migration agent and his claim that he could have sat another English language test; see paragraph 12 of the reasons;
(g)noted the Applicant's evidence that he had asked for his IELTS test results to be re-marked, identified that any request for a re-marked test must be made within six weeks of the test result and be accompanied by a fee, and noted the Applicant had not paid a fee and that eight months had passed; see paragraphs 16 to 18 of the reasons; and
(h)as a result of the matters above, affirmed the decision under review; see paragraph 20 of the reasons.
The Applicant appeared before me today unrepresented. As best as I can understand it, in his application filed at this Court and before me, he complains of the following:
(a)that he was not given the opportunity to provide further information such as an opportunity to submit a further English language test;
(b)that he has been unfairly treated;
(c)that he should have been given 28 days to produce the evidence in support of his visa application;
(d)that sections 55 and 56 of the Migration Act 1958 ('the Act') permit the Applicant to provide the Minister with further information which the Minister must have regard to; and
(e)he should have been invited to provide further information, pursuant to section 58 of the Act.
At the hearing before me today, the Applicant appeared and made submissions that are consistent with those that were set out in his application documents. The Applicant also tendered to this Court an English test result from a test conducted on 23 March 2020; that result shows a score of 59 overall.
Prior to dealing with the submissions of the Applicant, it is appropriate to record that the Applicant submitted a test result at the time of his visa application that contained a score that was lower than that specified by IMMI 15/062. I do not understand the Applicant to contest the fact that he submitted an IELTS test result that was below what was required by IMMI 15/062 at the time he submitted his visa application. Clearly the fact that the test result contained a score that did not meet the instrument was a sufficient basis for the Tribunal to reject the visa application and confirm the delegate's decision.
The thrust of the Applicant's submissions before me concerned whether he should have been permitted to submit a further test result.
The first observation to be made about the submissions of the Applicant concerns the specific requirements of the Regulations. In particular, clause 485.212 subparagraph (a) requires a visa application 'to be accompanied by evidence' and that, relevantly, the English language test has been undertaken and that the Applicant has achieved a test score specified in the instrument within the particular period of time. That is an immutable requirement. However harsh it may seem to the Applicant, it is no answer to these requirements to say that the test can be taken later or has, in fact, been taken later.
In the case of the Applicant, a satisfactory IELTS test result was required to accompany the application. Unfortunately for the Applicant, a satisfactory IELTS test result did not accompany the visa application. The regulation cannot be satisfied by the Applicant providing a new or further test result after he has submitted the application for the visa, as occurred today.
The Applicant also submitted today that usually he would have had 28 days to submit any further information to the Department. When asked, the Applicant was unable to specify where that requirement arose. The Minister submitted, and I accept, that while the Department can require further information for certain classes of visa and require that information to be provided later, it does not, and could not, occur in a case like this where the requirements that the document accompany the visa application are spelled out explicitly in the relevant regulation.
The Applicant points to sections 55, 56 and 58 of the Act and asserts a failure by the Department to adhere to those sections of the Act. To the extent the Applicant seeks to challenge the delegate's decision, that application cannot be pursued in this Court and must be rejected; see sections 476(2)(a) and 476(4) of the Act. Further, as already noted, permitting the Applicant an opportunity to supply updated test results would not have assisted the Applicant to satisfy the specific regulatory criteria that is set out in clause 485.212 subparagraph (a).
The Applicant complains in his documentation about unfairness. I largely take this to be a complaint pertaining to his inability to submit a further IELTS test, which I have addressed above. To the extent that the Applicant complains about unfairness in a general sense however, I am unable to discern any unfairness of the Tribunal. The Applicant was successful in having the Tribunal proceedings adjourned so that, amongst other things, he could attend. He was represented by a migration agent. In those circumstances I am satisfied he was not treated unfairly or denied procedural fairness.
The Applicant submitted before me in his documentation that there should be some flexibility in relation to the application process and the requirements. That may well be a desired outcome, however, it is of no assistance to the Applicant as matters presently stand. The criteria set down by clause 485.212 is fixed and there is not any ambiguity in respect of it; see Thlork v Minister for Immigration and Border Protection [2019] FCA 333 and also Kumar v Minister for Immigration and Border Protection [2018] FCA 140.
Having said all of that, it is difficult not to feel sympathy for the Applicant. It appears that he sought advice in relation to what was required of the IELTS test result and obtained incorrect advice. As I said to him during the hearing, he may be able to pursue some claim against the agent. While that might be the case, it does not alter the immutable and fixed nature of clause 485.212.
The Tribunal was astute in observing that granting any opportunity to the Applicant to complete a further English language test would not assist, given the terms of the regulation and the instrument to which I have referred.
Regrettably for the Applicant, I am unable to detect any error in the reasoning or approach of the Tribunal. Accordingly, the application for review does not raise an arguable case for the relief claimed. I will make orders dismissing the application. Costs ordinarily follow the event and I propose to make an order in respect of costs in favour of the Minister.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 25 February 2021
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