Katam v Minister for Immigration
[2014] FCCA 633
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KATAM v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 633 |
| Catchwords: MIGRATION – Skilled migrant visa – English language test. |
| Legislation: Migration Regulations 1994 (Cth) |
| Datchinamurthy v Minister for Migration and Border Protection [2014] FCCA 258 Sandhu v Minister for Immigration and Border Protection [2013] FCCA 2285 |
| Applicant: | VEERANARAYANA SASIDHAR KATAM |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION MIGRATION REVIEW TRIBUNAL |
| File Number: | DNG 6 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | 14 March 2014 |
| Date of Last Submission: | 14 March 2014 |
| Delivered at: | Darwin |
| Delivered on: | 14 March 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Newman |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
That the application is dismissed.
That the applicant shall pay the costs of the Respondent fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 6 of 2013
| VEERANARAYANA SASIDHAR KATAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
This is an application filed by the applicant on 13 September 2013 for judicial review of the decision made on 26 August 2013 by the Migration Review Tribunal refusing the applicant’s application for a skilled migrant visa. I have jurisdiction to determine the review application pursuant to section 476 of the Migration Act1958. In order for the applicant to be successful, I must be able to find a jurisdictional error.
The applicant filed an online visa application on 10 March 2012. The application itself refers to the requirement for the applicant to have successfully undertaken the required English test within the two year period prior to the date he filed the visa application. It is necessary for the applicant to satisfy the requirements set out in clause 485.215 of Schedule 2 of the Migration Regulations 1994. That is, the requirement that the applicant has competent English.
There are two ways in which an applicant can prove that he or she has competent English. One is having a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland. If a person is a citizen of one of those countries and has a passport from one of those countries, they are taken to have competent English. The regulation makes that clear.
It is clear from the material provided in the court book, and is not argued, that the applicant does not have a passport from one of those countries. The applicant is a citizen of India.
The other way an applicant can prove he or she has competent English is by completing the test required by the Minister for English within a two year period prior to the date of filing the application for a visa. In order to have competent English on that test, it is necessary to have a IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening.
The Minister specifies the language test. It is then necessary for the applicant to provide a copy of that test result. The legislation makes it clear that it is possible for the applicant to submit the test result after filing the application but the legislation is equally clear that the test must have been completed within the two years prior to filing the application for the visa which, in this case, is 10 March 2012.
Both the delegate for the Minister and then later the Migration Tribunal refused the applicant’s application for a skilled migrant visa because he was not able to submit a test score showing that he passed the test to the requisite degree in the two year period prior to 10 March 2012.
The applicant has gone on to undertake the test on some five occasions and did pass the test with the requisite score on 1 December 2012. There is nothing in the legislation that enables the applicant to rely on a test score for a test performed after the date of the application. Given that the test score was after 10 March 2012, the applicant is not able to rely on that test score in support of his application for a skilled migrant visa.
The respondent relied on two authorities which are directly on point, the first being Datchinamurthy v Minister for Migration and Border Protection [2014] FCCA 258, which is a decision by Judge Hartnett of this Court on 24 February 2014. The facts in that case were similar to this case in that the applicant had undertaken the test and had achieved the requisite result some eight months after applying for the visa.
In that case, the applicant relied on a sentence in the visa application which says:
You have up until the time of the decision to provide the evidence that you have competent English.
What that clearly means is that until the decision is made, the applicant has time to submit the passing test result. But the passing test result must still have been undertaken in the two year period prior to the application for the visa. It was clear in that case that the applicant did not understand that distinction and I find that that is the same difficulty in this case.
Judge Hartnett found that there was no jurisdictional error on the part of the Tribunal because the wording of the regulation is very clear on its face. I agree with her reasoning.
The other decision, which the respondent referred me to, was Sandhu v Minister for Immigration and Border Protection [2013] FCCA 2285, which was a decision of Judge Riethmuller of this court on 12 December 2013.
Again, this is a similar fact situation where the applicant did not undertake the test with the passing score prior to filing the application. Judge Riethmuller said at paragraph 6 of that decision:
That the effect of regulation 1.15C, which sets out the competent English requirements, is that the application is doomed to fail if the test was not undertaken successfully in the 24 month period prior to the visa application being filed unless the applicant holds one of the eligible passports from the five countries where English is the native language.
I agree with that view.
In my view, the only conclusion both the delegate and the Migration Review Tribunal could have reached was the decision that it did.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 1 April 2014
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