Kaur v Minister for Immigration
[2015] FCCA 498
•12 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 498 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – application for skilled visa – whether jurisdictional error established – satisfaction of criterion relating to granting of visa – competency in English – application for adjournment to allow further time to satisfy criterion – whether conduct of MRT in allowing applicant a short period of time to undertake further IELTS was unreasonable – no error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5; 474, 476(1), 476(2) Migration Regulations (1994), r.1.15C |
| Cases cited: Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 Kruger v Commonwealth (1997) 190 CLR 1 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Rahman v Minister for Immigration & Citizenship [2012] FCA 1312 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 |
| First Applicant: | KAMALJEET KAUR |
| Second Applicant: | GURSHARN SINGH |
| Third Applicant: | JASLEEN KAUR RAYAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 241 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 24 February 2015 |
| Date of Last Submission: | 24 February 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 12 March 2015 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Solicitors for the Applicants: | Not Applicable |
| Counsel for the First Respondent: | Mr Tredrea |
| Solicitors for the First Respondent: | Sparke Helmore |
| Solicitors for the Second Respondent: | Submitting Appearance |
ORDERS
The applicant pay the respondent’s costs fixed in the sum of $6,646.00.
All applications are otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG241 of 2014
| KAMALJEET KAUR |
First Applicant
| GURSHARN SINGH |
Second Applicant
| JASLEEN KAUR RAYAT |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Migration Review Tribunal “the MRT” made on 3 June 2014. The decision affirmed an earlier decision of a delegate of the Minister for Immigration & Citizenship[1] not to grant the applicant, Kamaljeet Kaur a Skilled (Provisional) (Class VC) visa.
[1] As the Minister for Immigration & Border Protection was then known.
The applicant seeks the issue of constitutional writs, which would have the consequence of quashing the decision of the MRT. In order to be successful in her application, the applicant must establish that there has been some error in how the MRT has exercised the jurisdiction conferred upon it, to review migration decisions, pursuant to the provisions of the Migration Act (1958) (Cth) “the Act”.
In this context, it is important to note that this process is not a re-hearing of Ms Kaur’s original application, in which this court is able to make its own findings and substitute its own discretion for that of the MRT.
Ms Kaur is the primary visa applicant in the proceedings. Related to her application and dependent upon it for success are secondary visa applications brought by her daughter Jasleen Kaur Rayat and her former husband Gursharn Singh.
Ms Kaur has prepared her own application, which provides one ground in support of her application to quash the decision of the MRT. It is as follows:
“My Skilled-Graduate 485 visa got rejected on 06/08/2013 by DIBP as the evidence of competent English proficiency was not provided. Later Migration Review Tribunal affirmed the decision on 04/06/2014. I am lodging my application to Federal Circuit Court so that I can get some more time to provide competent English.”
Accordingly, this application turns on findings made by the MRT regarding Ms Kaur’s proficiency in English and whether she was fairly treated by the Tribunal concerned, particularly in terms of being given sufficient time to satisfy the prerequisite conditions regarding her English language skills.
The respondent to the application is the Minister for Immigration & Border Protection “the Minister”. The Minister’s position is that the decision of the MRT discloses no jurisdictional error and so should be dismissed.
Background
The applicant is a citizen of India. She arrived in Australia in mid-2008 on a student visa. She completed a master of commerce degree in early 2011. As a consequence her student visa lapsed.
On 2 May 2011, Ms Kaur applied for a skilled, graduate (subclass 485) visa, so that she and her family could remain in Australia. The grant of the visa is subject to the satisfaction of a number of conditions, which in the main relate to suitability of skills, character, health and proficiency in English.
With her visa application, Ms Kaur supplied a skills assessment from CPA Australia Ltd in respect of her professional skills in accountancy. She indicated that she had booked a test to provide an assessment of her English language ability.
The applicant’s daughter was born in North Adelaide on 15 November 2010. She has been issued with a passport by the Republic of India. The applicant has now separated from Mr Singh. I have been provided with a document by Ms Kaur, which indicates that they were divorced in India on 15 January 2015.
On 6 August 2013, a delegate of the Minister determined that the applicant did not meet the criteria specified for the grant of the visa in question. In particular, it was determined that the applicant had not satisfied the condition that she had competent English.
As a consequence of this decision, the applicant sought a review in the MRT on 22 August 2013. She was invited to appear before the MRT on 4 March 2014. The purpose of the invitation was to enable Ms Kaur to make submissions to the MRT and provide evidence to it.
The hearing date of 4 March 2014 was rescheduled to 11 March 2014. On 10 February 2014, the applicant requested a deferral of the hearing so that she could seek a re-evaluation of her IELTS, which she had undertaken on 25 January 2014. On 20 February 2014, the applicant was advised that her request for postponement of the hearing had been refused.
IELTS is an acronym for International English Language Testing System. It tests non-native English speakers in four aspects of English, namely listening; reading; writing; and speaking. In order to be assessed as proficient, in the English language, pursuant to the IELTS system, a non-native English speaker needs to attain a score of over 6 in each category.
In her IELTS test of 25 January 2014, the applicant obtained a score of 6.5 in each of listening, reading and writing; but a score of 5.5 in speaking. Her request to the Operations Manager of IELTS in Australia to have the speaking component of her IELTS re-evaluated was unsuccessful.
The hearing scheduled for 11 March 2014 took place. I have not been provided with a transcript of the proceedings but it appears clear that the hearing’s main focus was on the issue of the applicant’s competency in English and her failure, up to that stage, to provide a satisfactory IELTS score.
In this context, the Tribunal discussed with Ms Kaur the mechanisms through which she might be able to establish her competency in English in a manner satisfactory to the Tribunal. The issue for the court, in the exercise of its review function, is whether the approach of the MRT, in this regard, was unreasonable.
As a consequence of the manner in which the MRT approached this issue, it appears axiomatic, from its subsequent reasons for decision, which were released on 3 June 2014 that the MRT agreed, at least, to a quasi-deferral of its decision. This explains why the relevant decision confirming the delegate’s decision was not made until 3 June 2014. Again this court must determine whether this was unreasonable in the circumstances.
The applicable regulatory framework
The legal principles applying to applications of this type are complex. I will do my best to explain them. In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did.
Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it.
Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal. Part VIII of the Act deals with judicial review. Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions.
Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions. A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[2]
[2] See Migration Act at section 5
Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.
Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[3]
[3] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[4]
[4] See Craig v South Australia (1995) 184 CLR 163
As previously indicated, jurisdictional error is a complex concept. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction.
The Decision of the MRT
The MRT identified the central issue in the case to be whether the applicant had demonstrated competency in English as required by clause 485 of the Migration Regulations (1994) “the Regulations”. The means by which an applicant for the visa in question in these proceedings is specified by Regulation 1.15C (now repealed) of the Regulations.
This regulation provides that a person has competent English if he or she satisfactorily completes a test, as specified by the Minister, within a period of two years of the making of the relevant visa application or holds a passport from one of a specified number of countries where English is the predominant languages spoken. India is not such a country.
The Minister has specified two tests as being appropriate to demonstrate English language competency – IELTS and the Occupational Language Test or OET.
The MRT noted, during the course of the hearing of 11 March 2014 that it was open to the applicant to provide a satisfactory test result after she had filed her visa application. In this context, the Tribunal made reference to the High Court decision of Berenguel v Minister for Immigration & Citizenship[5] and advised the applicant as follows:
·More than two years had passed since the applicant had made her visa application and she had still not been able to demonstrate satisfactory competency in English;
·Nonetheless the Tribunal was prepared to allow an extension of time to the applicant to demonstrate English competency by allowing her more time to undertake another IELTS test;
·In this context, the Tribunal noted that IELTS tests were available on 15 March, 5 April and 12 April and thereafter results could be provided within 13 calendar days;
·Accordingly, the applicant was given until 21 March to book a test and until 30 April to provide a satisfactory result;
·The applicant was further advised that these deadlines would be strictly adhered to given the very substantial time it was considered that the applicant had already had to demonstrate competent English.
[5] See Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 at [26]
On 12 May 2014 the applicant wrote to the Tribunal to inform that she had booked a test for 17 May but would not be able to take it as her brother had suffered an accident in India and was compelled to visit him there, leaving Australia on 13 May.
The Tribunal responded by email on 14 May seeking formal evidence of the applicant’s dates of departure and return to Australia and advise as to when she would be able to undertake an IELTS test in India. In its reasons for decision the Tribunal found that the applicant had complied with neither direction. In these circumstances, it elected to finalise the hearing. It found as follows:
“Considering the very substantial time the applicant has had to demonstrate competent English (from the time she made this application in May 2011) the tribunal, in allowing the applicant further time after the hearing to submit further results, acted only to give her every opportunity to meet the criteria for the visa despite it being plain that she was not able to do so in the almost 3 years from the time she applied for the visa, until the tribunal hearing. The parties were informed that in providing this opportunity the tribunal would adhere to the timeframe specified above strictly. More than two months have now passed since the end of that timeframe.
The Tribunal finds itself in a situation where any further allowed time would not appear to be of benefit, given that the applicant has failed to achieve the requisite English test scores in the last three years. The tribunal sympathises with the applicant’s personal circumstances which she says forced her to book a further test on 17 May 2014, and after the dates which were agreed at hearing. If accepted, that explanation might account for why she book a final test attempted outside the period which was agreed, but it does not account for the years previous to the hearing in which she was not able to demonstrate competent English.
Being under an obligation to render a decision which is quick, the tribunal now proceeds to decide that the applicant does not have competent English as defined in r.1.15C(a).”[6]
[6] See casebook at page 153 [13] – [15]
As a consequence of these findings, the MRT that Ms Kaur had not satisfied the primary criteria for the grant of the visa for which she had applied. It therefore affirmed the decision not to grant her a skilled (provisional) (class VC) visa.
Discussion
The applicant submitted a written submission to the court in the form of a letter dated 24 February 2015. In the letter, the applicant outlined her very difficult personal circumstances, which included the illness of her former husband. She also submitted a document entitled PTE Academic Test Taker Score Report, which she apparently took on 26 December 2014 in India. It is apparently an assessment of English language skills. She scored 69.
In oral submissions, the applicant asserted that the PTE is similar, if not the same as IELTS. Counsel for the Minister does not accept this submission. In any event, the Minister asserts that this test result is irrelevant to the court’s judicial review process, as it is not authorised to conduct a fresh hearing into whether the applicant does now meet the conditions attached to the visa in question.
Rather Mr Tredrea characterises the application as being a complaint of denial of procedural fairness as Ms Kaur was not granted either an adjournment of the proceedings scheduled for 11 March 2014 or was unfairly not given enough time to complete a satisfactory IELTS.
In the exercise of its functions under the Act, the MRT is required to provide a mechanism of review that is fair, just, economical, informal and quick [section 353]. It is authorised adjourn reviews before it from time to time [section 363]. The power to adjourn proceedings is one which must be exercised reasonably. [7]
[7] See Kruger v Commonwealth (1997) 190 CLR 1 at 36 per Brennan CJ
In this case, the applicant was effectively given until 21 March 2014, a period of ten days from the date of the hearing to book a further IELTS test and, all in all, a period of around fifty-nine days to provide a satisfactory result. She was advised that these time limits would be strictly enforced.
During this process, she unsuccessfully sought a further adjournment, which was considered but rejected when the applicant failed to provide precise evidence of when she would be outside of Australia and what she proposed to do about a further IELTS test whilst in India.
The question is whether this conduct, on the part of the MRT, is reasonable in all the circumstances which prevailed at the time. These include the fact that the original visa application was made on 2 May 2011 and therefore the applicant had already had a significant period of time available to her to satisfy the English competency criterion.
In Minister for Immigration & Citizenship v Li[8]under the heading Judging Unreasonableness Gageler J said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”
[8] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 256
Also in Li, Hayne, Kiefel and Bell JJ said as follows:
“It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course, it may decide, in an appropriate case, that ‘enough is enough’, but it is not apparent how that conclusion was reached in the present case…
Necessarily, it seems clear that the issue of whether it was unreasonable to refuse to adjourn proceedings or the overall reasonableness of the extent of any adjournment granted is one which must be determined by the circumstances prevailing in the individual case concerned.
In the current case, the Minister contends that, in the idiosyncratic circumstances of this case, it was not unreasonable for the Tribunal to conclude that enough was enough, so far as giving Ms Kaur further time to satisfy the English language competency criterion was concerned.
In my view, the record of decision discloses no jurisdictional error in respect of the exercise of Tribunal’s discretion to adjourn proceedings from time to time arising under section 363. The Tribunal noted that Ms Kaur had recently undertaken an IELTS test, which had indicated an unsatisfactory result following a re-evaluation.
In these circumstances, it provided Ms Kaur with a short period of time to take the test again. In my view, the Tribunal was not obliged to adjourn the proceedings so as to guarantee Ms Kaur enough time so that she would certainly pass the test in question. For obvious reasons, the Tribunal was not in a positon to estimate how long that period would be.
However, in this context, the Tribunal was entitled to look at how long satisfaction of the relevant criterion had been outstanding. It was a matter of years rather than months or weeks. In my view, given the findings made by the MRT in this regard, the following comments of Yates J in Rahman v Minister for Immigration & Citizenship[9] are apposite:
“The plain fact is that the Tribunal was not under an obligation to indefinitely postpone finalisation of its review. Similarly, it was not under an obligation to postpone the finalisation of its review whenever the appellant informed it of his intention to sit for another test. If it were under such an obligation the review process could be postponed indefinitely by the expedient of the appellant simply providing the Tribunal with evidence that he had applied to sit for the test again. On the rationale of the appellant’s argument he could always ask, rhetorically, what prejudice would there be to the Minister if an extension of time of a few weeks were granted compared to the prejudice to him if such an extension were not granted?”
[9] See Rahman v Minister for Immigration & Citizenship [2012] FCA 1312 at [49]
In my view, the Tribunal did not fail to provide a mechanism of review that was fair or unreasonably exercise its discretion to adjourn the proceedings, in the manner in which the hearing of 11 March 2014 was finalised on 3 June 2014.
This de facto deferral, as is clear from the reasons provided by the MRT, was intended to give Ms Kaur a final and closely constrained opportunity to satisfy the condition relating to her visa. The logic of the Tribunal’s approach is clear from the reasons provided by it.
There was a level of intelligible justification[10] in how the Tribunal approached the issue of Ms Kaur not having been able to satisfy the English competency criterion, up to the time of the hearing of 11 March 2014 and wanting the Tribunal to accord her more time to do so.
[10] See Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [48]
The Tribunal balanced the competing claims of fairness and the need for the process of review to be concluded by allowing her one last opportunity to do the IELTS. Unfortunately, Ms Kaur was unable to avail herself of the opportunity afforded to her by the Tribunal.
As such, I can no error or procedural unfairness in what occurred. For these reasons, I have come to the conclusion that the application must be dismissed. It is appropriate the Ms Kaur pay the Minister’s costs fixed in the sum of $6,646.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 12 March 2015
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