KANDEL v Minister for Immigration

[2015] FCCA 3122

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3122

Catchwords:
MIGRATION – Skilled (Residence) (Class VB) visa – non-satisfaction of the 'competent English' criteria – application without merit – application dismissed.

Legislation:

Migration Act 1958 (Cth), Part 5, Division 5

Migration Regulations 1994 (Cth), Part 885, Schedule 2, reg.1.15C(a) and (b)

Applicant: PRASHANT KANDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 194 of 2014

Judgment of: Judge Hartnett

Hearing date: 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Perth

Delivered on: 19 November 2015

REPRESENTATION

for the Applicant: In Person

Counsel for the Respondents: Ms E Tattersall

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to Administrative Appeals Tribunal.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 194 of 2014

PRASHANT KANDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 8 July 2014, wherein the Applicant seeks judicial review of a decision of the Second Respondent (the Tribunal) made on 17 June 2014 which affirmed a decision of a delegate of the First Respondent dated 3 April 2014 to refuse to grant to the Applicant a Skilled (Residence) (Class VB) visa.

2. The Applicant relies upon his application filed, and an affidavit sworn by him on 8 July 2014.  That affidavit does not add anything further to the application, in that it has only one paragraph which is a repetition of the single ground of the application, namely:

   They did not consider relevant evidence.

3. There is no particularisation of that ground by the Applicant.  Orders were made by Registrar Trott on 20 August 2014 including, relevantly, orders for the Applicant to file and serve any amended application giving complete particulars of each ground for review relied upon, by 19 December 2014.  The Applicant was also ordered, in order number (5) of those orders, to file and serve written legal submissions and a list of authorities 14 days before the hearing.  The Applicant did not amend his application and nor has he provided any written submissions to the other party or the Court.

4. The First Respondent seeks that the application be dismissed and that the Applicant pay the costs of the First Respondent.  The First Respondent relies on written submissions filed and dated 12 November 2015.  The First Respondent has filed, in accordance with the orders of Registrar Trott of 20 August 2014, a court book.  The contents of that court book are evidence in the proceedings before the Court.

5. The Applicant appeared as a litigant in person this day.  He confirmed that he had filed no amended application, nor submissions.  He was given an opportunity to make oral submissions to the Court.  He was asked for some further particularisation or insight into the ground on which he has made his application.  He was not able to provide the Court with any explanation as to what it is he claims the Tribunal failed to consider, and how it is the Tribunal decision and/or any processes of the Tribunal led to jurisdictional error.

6. The Applicant’s ground is a template ground and does not identify any jurisdictional error in the Tribunal’s decision.  It is not for this Court to create grounds for the Applicant in circumstances where there is no apparent jurisdictional error attending the Tribunal decision record.

History

1. The Applicant was born on 7 April 1988 in Ramechhap, in Nepal. He has resided in Australia for many years. He made application from within Australia and by electronic lodgement on 9 May 2012, for a Skilled (Residence)(Class VB) visa. At the time the visa application was lodged, (Class VB) contained three subclasses: 885 (skilled - independent), 886 (skilled – sponsored) and 887 (skilled – regional). Having regard to the visa application, the relevant subclass applicable to the Applicant was subclass 885, criteria for which are set out in Part 885, Schedule 2, to the Migration Regulations 1994 (the Regulations).

2. The Applicant lodged his application for review of the delegate’s decision, which was to refuse his application for the visa, on 10 April 2014. On 14 May 2014, the Tribunal invited the Applicant to appear before it and give evidence and present arguments at a hearing to be held on 10 June 2014 via telephone. The Tribunal sets out in its statement of decision and reasons what transpired as to the Applicant appearing before it in the period between lodgement of the review application, and the Applicant appearing on 10 June 2014. For the purposes of this judicial review application, nothing turns on that, save that the Court is satisfied that the Applicant was afforded procedural fairness by the Tribunal and that the Tribunal complied with its statutory obligations as to the natural justice hearing rule as contained in Division 5, Part 5 of the Act [Migration Act 1958 (Cth)]. No complaint is made in that regard in any event by the Applicant.

Tribunal hearing and decision

1. The Applicant appeared before the Tribunal on 10 June 2014 to give evidence and present arguments.  The Tribunal hearing was conducted via telephone with the Applicant in Western Australia.  The Applicant said he understood why his visa was refused.

2. The Applicant agreed that he lodged his visa application on 9 May 2012.  The Applicant said he did not have evidence of “competent English” attained in either an IELTS or OET test in the two years immediately before he lodged his visa application. The Applicant had provided evidence of his IELTS test results with his visa application;  however, he had only achieved 6.0 for listening, 5.0 for reading, 5.5 for writing and 6.5 for speaking.  The Applicant made a complaint about his then migration agent and asked the Tribunal for an opportunity to sit a test for ‘competent English’ at that time.  The Tribunal explained to the Applicant that it had no discretion to not apply the law which required him to have evidence of ‘competent English’ at the time of the application.

3. The Tribunal correctly set out the relevant law as it was, and the issue in the case before it, namely, whether the Applicant had competent English as required by cl.885.213.  The Tribunal set out in paragraph 27, regulation 1.15C which provided at the time of lodgement of the visa application that a person had “competent English” if the person:

   a)satisfies the Minister that:

   i)the person undertook a language test, specified by the Minister in writing, for this subparagraph;  and

   ii)the test was conducted in the two years immediately before the day on which the application was made;  and

   iii)the person achieved a score specified in the instrument;  or

   b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

4. There was no evidence that the applicant held a passport of the type specified in IMMI 12/018 and, as such, regulation 1.15C(b) was not met.

5. The Tribunal set out further and in paragraph 29 of its decision record that for regulation 1.15C(a)(i) and (iii), the Minister has specified two language tests and scores:  the international English language test system (IELTS test) and a test score of at least six for each of the four test components; and the occupational English test (OET), and a test score of at least B for each of the four test components; legislative instrument IMMI 12/018.

6. Whilst the Applicant had been in Australia for some eight years before the hearing, and the Tribunal accepted his evidence that he was not advised of the requirement for ‘competent English’ at the time of application, and further accepted that his personal circumstances were difficult, including his suffering from anxiety, when he did sit his IELTS tests, the Tribunal had no choice other than to find that the Applicant did not have ‘competent English’ as defined in regulation 1.15C(a). Despite trying eight times and only missing in one band by .5, he had not achieved the specified test score results in a relevant test conducted in the two years immediately before the day on which the visa application was made. On that basis, he did not meet the requirements of clause 885.213 of Schedule 2 to the Regulations and therefore did not satisfy the criteria for the grant of a subclass 885 visa. The Tribunal thus correctly affirmed the decision not to grant the Applicant a Skilled (Residence)(Class VB) visa and the judicial review application before the Court is without merit. It shall be dismissed and costs follow the event.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 23 November 2015