Islam v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 50
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Islam v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 50
File number(s): SYG 803 of 2019 Judgment of: JUDGE LAING Date of judgment: 30 January 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa – whether the Tribunal failed to exercise a discretion, misinterpreted the relevant criteria, failed to consider evidence, denied the applicant procedural fairness and/or acted in a way that was legally unreasonable – application dismissed Legislation: Migration Act 1958 (Cth) ss 357A, 359A & 360
Migration Regulations 1994 (Cth) Sch 2, cl 485.212
Cases cited: Brar v Minister for Immigration [2017] FCCA 2440
Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Rahman v Minister for Home Affairs [2020] FCCA 881
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 28 Date of hearing: 23 January 2024 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms G Gutmann of MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 803 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD RASHEDUL ISLAM
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
30 JANUARY 2024
THE COURT ORDERS THAT:
1.The application 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 LAING:
The applicant seeks judicial review of a decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Skilled (Provisional) (Class VC) visa (skilled visa).
BACKGROUND
The applicant is a national of Bangladesh. On 30 July 2018, the applicant applied for a skilled visa. The applicant answered “No” on his application form in response to the following:
Language requirements
Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?
A notation under the answer box stated:
Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 months that demonstrates you have met the English language requirement.
The Delegate refused the applicant’s skilled visa application on 29 August 2018.
On 13 September 2018, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 26 February 2019.
On 26 February 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which specified the following criterion for the grant of the skilled visa:
485.212
(1) 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.
The applicable instrument was IMMI 15/062 - Specification of English Language Tests, Scores and Passports 2015 (IMMI 15/062), which relevantly required the applicant to have undertaken a specified English language test “within the three years before the day on which the application was made”. If a Pearson Test of English Academic (PTE Academic) test was undertaken, the required minimum overall score was 50. Minimum scores of 36 were required in relation to the Listening, Reading, Speaking and Writing test components.
THE TRIBUNAL’S DECISION
At [1]-[6] of its decision, the Tribunal set out the background to the matter and its conclusion that the decision under review should be affirmed. The Tribunal gave reasons for this at [7]-[11] as follows:
7.The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:
•the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or
•the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).
8.The relevant instrument specifies language tests, scores, relevant periods and passports required. In the present case, there is no evidence that the applicant has held a passport of a type specified and, as such, cl.485.212(b) is not met. As such the applicant must now meet cl.485.212(a) to succeed.
9.The applicant explained that he has passed his PTE language test and secured the minimum number of points required which is 50. However, he admitted that he had not performed the test within the 3 years prior to the date of application.
10.The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).
11.On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
PROCEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 2 April 2019 relying upon the following grounds for review (footnotes omitted):
i.Tribunal had failed to exercise its discretion and to make an order on the given evidence of the case;
Particulars:
(a)I had not satisfied the requirement under clause 485.212(a) (i) of the Regulations at the time the application for the visa was made. The legislative instrument1 under this clause, specifies that an English language test must have been undertaken within the three (3) years before the day on which the application was made. However, I at first had not known that a mandatory English language requirement was needed as I did not have any assistance when I was making the visa application. I had been honest in the application to say that I had not undertaken any English Test within the last 26 months.
(b)When I was aware that the application was refused due to not satisfying the English Language requirement, I immediately sat for a PTE Academic English Test and scored the required minimum marks in one sitting. However, this was satisfied before the application was considered by the Tribunal and within one month after the decision of the First Respondent.
ii. The tribunal's decision suffers from breach of principles of fairness;
Particulars:
(a)The underlying reason for me to not satisfy the requirement under clause 485.212(a)(i) was because the circumstances were out of my control. In other words, my student visa was to expire before I applied for this visa type. Taking this into consideration, I had not found an opportunity to research more on this visa or to get help from a migration agent. Therefore, I genuinely had not known this particular requirement.
(b)Had I known that the English language requirement is a compulsory criterion, I would have with no doubt completed it before the application for the visa. It has to be inferred from the fact that once I was informed of this compulsory English language requirement, I took this test within a month and successfully achieved a good result.
(c)It is highly unlikely and unfair to say that I had purposely not satisfied this requirement.
iii.The tribunal made an error in not accepting and considering the relevant information and was unreasonable, and did not accord to procedural fairness.
Particulars:
(a)The PTE English Language requirement was given subsequently but available at the time the Tribunal heard the matter.
(b)I submit to the court that the reason behind having an English language requirement for this visa type is to assess the English language competency of an applicant. Unlike in the case of Brar v Minister for Immigration & Anor,2 I, in this matter satisfied the English language requirement before the tribunal decision. Hence, fulfilling the purpose under the act to satisfy the English language requirement.
It is admitted that I did not satisfy this requirement at the time of the application. However, unlike in the case of Brar v Minister for Immigration & Anor3 I was not informed by the tribunal to submit further documents; Thus, depriving me of procedural fairness. I submit that I was unfairly treated in this manner by the tribunal.
However, I had in fact completed my English language requirement before the tribunal hearing.
Another fact to prove that I was genuinely unaware of this requirement is that, within a short period as one week after the First Respondent refused my application, I sat for the 'PTE Test' and scored successful marks before the tribunal hearing.
Therefore, I submit to this court that I had been deprived of procedural fairness which leads to a judicial review of the tribunal's decision.
In conclusion, I recognise that I haven't been given a fair opportunity to explain myself, and even though I gave my genuine reasons, the tribunal has not taken them into consideration. The tribunal has not considered my circumstances and has unfairly refused my visa application even though I have satisfied the English Language requirement before the tribunal considered my application. I perceive that this English language requirement is in place to solely assess the competency of English. If I am being denied of this visa that will be unfair on me as I already have proof that I am competent in my English. Therefore, I request from this court to review the decision of the tribunal as the tribunal has acted unfairly and unreasonably.
Ground 1
Ground 1 contended that the Tribunal “failed to exercise its discretion and to make an order on the given evidence”. The particulars relied upon referred to the applicant not having known of the requirements of cl 485.212 and to his inability to meet the criterion having been reflected in his visa application form. However, the applicant contended that he had undertaken a successful English test before his application was considered by the Tribunal.
I accept the Minister’s submission that the ground appears to be based upon a misunderstanding of cl 485.212. Although the applicant did undertake a PTE Academic test achieving the requisite scores after his visa application had been made, this was unable to meet the requirements of IMMI 15/062 which required the test to have been undertaken in the three years prior to the making of the visa application. The Tribunal had no discretion allowing it to waive this requirement, whether on compassionate or other grounds: Rahman v Minister for Home Affairs [2020] FCCA 881 at [41] (Judge Kendall).
As has occurred in other cases, the applicant’s skilled visa application and application to the Tribunal were consequently “doomed from the outset due to the inability of the [applicant] to meet a fixed and inflexible mandatory visa criterion”: Thlork v Minister for Immigration and Border Protection [2019] FCA 333 at [12] (Bromwich J); see also Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24] (Robertson J).
Ground 1 is therefore unable to succeed.
Ground 2
Ground 2 contended that the Tribunal’s decision breached “principles of fairness”. This was contended to be because the applicant’s inability to meet cl 485.212 was due to circumstances beyond his control. It was contended that due to his limited time to research the requirement or obtain assistance, the applicant had not known of the requirement. It was contended that had he known he would have complied with the requirement, noting that he had been subsequently able to obtain the requisite scores on the test. The applicant therefore submitted that it was “highly unlikely and unfair to say that I had purposely not satisfied this requirement”.
The Tribunal made no finding that the applicant had purposely not satisfied cl 485.212. Rather, the Tribunal found that the applicant was unable to meet this criterion because he did not hold a specified passport and had not performed the relevant test within the 3 years prior to the date of application (regardless of the reasons for this).
I accept the Minister’s submission that no breach of the procedural fairness provisions in the Migration Act 1958 (Cth) (Act) is apparent on the materials before the Court. The Tribunal’s obligations in this regard were limited under Division 5 of Part 5 of the Act: s 357A. The applicant was invited to a hearing pursuant to s 360 of the Act, which he attended with his representative. He was on notice of the issues on the review, with the same criterion having been in issue before the Delegate. It is apparent from the Tribunal’s reasons that the applicant sought to address matters relating to that criterion at the Tribunal hearing. It is not apparent on the materials that there was any “information” before the Tribunal capable of enlivening its obligations under s 359A of the Act.
I understand that the applicant may feel that the result in this matter was unfair to him, in circumstances where he was ultimately able to achieve the required scores on a PTE Academic test. However, this does not change the fact that he was unable to meet a mandatory requirement for the grant of the visa, which was that his visa application was accompanied by evidence that he had achieved those results in a test undertaken “within the three years before the day on which the application was made”. In these circumstances, the Tribunal had no choice but to affirm the Delegate’s decision notwithstanding the reasons he had been unable to meet it.
Ground 2 is therefore unable to succeed.
Ground 3
Ground 3 contended that the Tribunal erred in “not accepting and considering the relevant information”, that it was “unreasonable”, and “did not accord to procedural fairness”.
The ground referred to the case of Brar v Minister for Immigration [2017] FCCA 2440. In that case, the Tribunal had found that an applicant was unable to meet cl 485.212 in circumstances where he had not achieved the requisite score in a specified test. Judge Jones dismissed an application for review of the Tribunal’s decision, finding (inter alia) that it was not arguable that the applicant was denied procedural fairness. In this regard, it was found that the applicant was on sufficient notice of the issues arising in relation to the decision under review. It was noted that the invitation to a hearing before the Tribunal detailed what was necessary to meet the criterion in issue.
The ground contended that, unlike in Brar, the applicant had met the English requirement before the Tribunal’s decision, thus satisfying the legislative purpose of language competency. For the reasons given above, that understanding of the requirements of cl 485.212 is incorrect. Whilst the applicant had achieved the requisite scores in a PTE Academic test prior to the Tribunal’s decision, the criterion required this to have been done within a specified period before making the visa application. The Tribunal was therefore correct to find that the test relied upon was incapable of meeting the criterion in issue. The Tribunal was bound to find this even if the applicant had been unaware of the criterion before applying for the visa.
The ground also contended that the applicant was denied procedural fairness by not being invited to submit further documents. For the reasons given above, I do not accept that the applicant was denied procedural fairness. Further, as the Minister observed, the applicant was invited to “provide all documents” that he relied upon towards establishing that he met the criteria for the visa in the invitation to attend a hearing before the Tribunal (CB 56).
The ground additionally contended that the Tribunal failed to consider the applicant’s circumstances and acted unfairly and unreasonably. For the reasons given above, I am unable to accept this. Although the applicant may not have understood the timing requirement of the criterion before applying for the visa, the Tribunal was not able to find that the criterion was met by reference to the test taken after the visa application. The Tribunal had no power to waive the timing requirement on account of the applicant’s circumstances. There is therefore insufficient basis for finding that the applicant’s lack of knowledge and other circumstances were not considered by the Tribunal, simply because they were not referenced in the Tribunal’s decision. It is more likely that the Tribunal considered that such matters were incapable of materially affecting the decision that it was required to make.
Whilst the applicant may well feel that his situation is unfair or unreasonable, the fact remains that the Tribunal had no option other than to make the determination that it did in finding that he was unable to meet the criteria for the visa. The matters relied upon by the applicant therefore do not provide this Court with a basis for setting aside the Tribunal’s decision. Like the Tribunal, this Court has no power to grant the applicant the relief that he seeks on compassionate or discretionary grounds.
Ground 3 is therefore unable to succeed.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 30 January 2024
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