Kaur v Minister for Immigration
[2014] FCCA 2211
•1 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2211 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal – refusal to grant applicants’ Skilled (Residence) (Class VB) visas – primary visa applicant failed to satisfy “competent English” criterion – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.338 Migration Regulations 1994 (Cth), reg.1.15C, cl.886.213 of Sch.2 |
| Ahsan v Minister for Immigration & Anor [2013] FCCA 1653 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 Farook v Minister for Immigration & Anor [2014] FCCA 1000 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Parmar v Minister for Immigration and Citizenship & Anor (2011) 195 FCR 186 |
| First Applicant: | SUPREET KAUR |
| Second Applicant: | RAJWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 414 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 27 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Punjabi interpreter. |
| Solicitor for the First Respondent: | Ms S Burnett of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application filed on 24 February 2014 be dismissed.
The applicants pay the first respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 414 of 2014
| SUPREET KAUR |
First Applicant
| RAJWINDER SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court, on 24 February 2014 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”), seeking relief in the form of constitutional writs against a decision of the Migration Review Tribunal (the “Tribunal”) dated 30 January 2014 of L. Symons, case number 1315118. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicants Skilled (Residence) (Class VB) visas.
By orders of the Court made on 18 March 2014 the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 1 April 2014. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
By orders made on 18 March 2014 the applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review by 18 July 2014 and any additional affidavits upon which they wished to rely. The applicants were also granted leave to file and serve an outline of written submissions fourteen days prior to the hearing. The applicants filed an affidavit of Supreet Kaur affirmed 18 July 2014 with the Court on the same day. The applicants elected not to file any amended application, or written submissions.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicants applied for Skilled Sponsored (Class VB, subclass 886) visas on 30 June 2010 (CB 1-33). The first applicant was the primary visa applicant on the visa application and is the holder of an Indian passport (CB 2).
On 20 September 2013 a delegate of the Minister refused to grant the applicants skilled visas, primarily on the ground that the first applicant did not satisfy the competent English criterion for a skilled visa contained in cl.886.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”) (CB 55-64). This criterion required the applicant to demonstrate “competent English” as defined in r.1.15C of the Migration Regulations.
Tribunal Proceedings
On 10 October 2013 the applicants’ then representative lodged an application to the Tribunal for review of the Minister’s delegate’s decision (CB 65-75). The Tribunal wrote to the applicants through their representative on 14 November 2013, inviting them to a hearing before it (CB 79-86). In its letter the Tribunal identified satisfaction of the competent English criterion as an issue in the review (CB 80).
On 12 December 2013, the day before the applicants’ scheduled hearing before the Tribunal, their representative wrote to the Tribunal attaching evidence of an International English Language Testing System booking (“IELTS”) scheduled for the first applicant on 9 January 2014 (CB 89-93). The representative requested that his clients be given “up to 30 January 2014 to produce IELTS results”.
On 13 December 2013 the applicants and their representative attended the scheduled hearing before the Tribunal (CB 94-96). There the first applicant gave evidence that the results of the IELTS test booked for 9 January 2014 would be available on 23 January 2014 (CB 103 at [12]). The Tribunal granted the applicant until 28 January 2014 to provide any evidence of competent English to it (CB 103 at [12]). The Tribunal did not receive any further evidence from the applicants (CB 103 at [13]) and proceeded to a decision on 30 January 2014 (CB 101).
Statutory Framework
At the time of the applicants’ visa application, the criteria for a skilled visa were set out in Part 886 of Schedule 2 to the Migration Regulations. The critical criterion relating to the current application flowed from cl.886.213, which required the primary visa applicant to have “competent English”.
The definition of “competent English” is found at r.1.15C of the Migration Regulations. As at 30 June 2010, the date on which the applicants’ lodged their skilled visas application, the definition provided as follows:
If a person applies for a General Skilled Migration visa [including a skilled visa], the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A)Specified by the Minister in an instrument in writing for this sub-paragraph; and
(B)In a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Accordingly, pursuant to r.1.15C(a)(i), a skilled visa applicant may satisfy the component English criterion by achieving the specified scores in an IELTS conducted on a date after the visa application was lodged (see Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417).
For the purposes of these reasons, it is not necessary to consider the provisions of sub-rule 1.15C(b) as the applicant was not the holder of a passport of a country referred to in the instrument.
Tribunal’s Decision
On the evidence before the Tribunal, it was apparent that the first applicant sought to satisfy the English language criterion by achieving the requisite scores in an IELTS test (CB 103 at [12]).
At the hearing before the Tribunal on 13 December 2013 the evidence before the Tribunal indicated the first applicant could not, at that time, meets the definition of “competent English” (CB 103 at [11]-[12]). She sought further time in which to successfully sit an IELTS test and provide the results to the Tribunal. The Tribunal granted the first applicant an adjournment to 28 January 2014.
At the date of the Tribunal’s decision on 30 January 2014, there was no evidence before it the first applicant had “competent English” (CB 103 at [13]). The Tribunal affirmed the delegate’s decision on the basis that the first applicant did not have “competent English” and, therefore, did not satisfy cl.886.213 of Sch.2 to the Migration Regulations (CB 103 at [14]-[15]).
As the first applicant did not satisfy the criteria for the grant of a Skilled visa the second applicant, applying as a family member of the first applicant, also did not satisfy the criteria (CB 103 at [16]).
The Tribunal ultimately affirmed the decision of the delegate not to grant the applicants Skilled visas (CB 103 at [18]).
Current Proceedings
The application filed in this Court on 24 February 2014 pleads the following three grounds of review:
1. Jurisdictional error and lacked jurisdiction.
2. Error in interpretation of legislation.
3. Natural justice
The first applicant also filed an affidavit affirmed by herself on 18 July 2014 which stated:
1. Member of Migration Review Tribunal misinterpreted the applicable law or misapplied the law:
(a) Under reg 886.213, Minister would test my English language ability.
(b) It is submitted that IELTS is not suitable for testing my English skills.
(c) IELTS disclaimer states “The International English Language Testing System (IELTS) is designed to be but one of many factors used by schools, colleges, universities, and employers in determining whether a test taker has sufficient skills to successfully be admitted as a student or employed. These tests are specifically designed not to be the sole method of determining admissions or employment for the taker. IELTS is made available worldwide to all persons, regardless of age, gender, race, nationality, or religion. The Cambridge English Language Assessment, British Council, IELTS Australia Pty Ltd, IELTS USA and any other party involved in creating, producing, or delivering IELTS shall not be liable for any direct, incidental, consequential, indirect, special, punitive, or similar damages arising out of access to, use of, acceptance by or interpretation of the results by any third party, or any errors or omissions in the content hereof.”
(d) It is against the principle of natural justice to test my English skills with a test which is not designed to test my English skills.
(e) Therefore I request your honour to set aside requirements laid down under reg 886.213 and Migration Regulation 1.15C as they are invalid and Minister of Immigration be directed to grant me visa under SC886.
I intend to refer to the contents of this affidavit as submissions.
Applicants’ Submissions
The first applicant appeared at the hearing before the Court with the assistance of a Punjabi interpreter, however, proceeded to make the majority of her submissions in English without the interpreter’s assistance.
The applicant conceded that she had not attained the scores required to satisfy “competent English” as prescribed in r.1.15C and asked the Court to extend time for her to achieve the required results. She stated she had undertaken the test on a number of occasions and had only just missed out on achieving the required results. She asked that the Court give her another chance to take the test so she could be successful in being granted a visa.
The applicant also conceded she had not satisfied the criteria for the grant of the visa and, further, did not seek to address her written grounds or affidavit filed on 18 July 2014.
Minister’s Submissions
The Minister contends the three grounds of the application to this Court appear to allege jurisdictional error by the Tribunal on the basis of an error in the interpretation of the applicant legislation or a breach of the rules of natural justice. No particulars of these allegations are given.
From a fair reading of the Tribunal’s reasons for decision, no error in the interpretation of the relevant legislation, nor any breach of the rules of natural justice, is apparent. The issue in the Tribunal’s review was confined to the satisfaction of otherwise by the first applicant of the competent English criterion for a skilled visa.
The Tribunal invited the applicants to a hearing as it was required to do. It is apparent from the Tribunal’s Decision Record that the first applicant recognised that she did not satisfy the competent English criterion at the time of the Tribunal hearing. The Tribunal granted the applicants an adjournment of the review to allow the first applicant time to satisfy the criterion. When that time elapsed and there was no further evidence from the applicants, the Tribunal was entitled to proceed to a decision. There is no evidence that it applied the legislation incorrectly or that it failed to discharge its obligations of procedural fairness.
There is no evidence to support a finding that the first applicant sought further time to sit an additional IELTS test subsequent to the expiry of the adjournment. Accordingly, this is not a case to which the principles espoused by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, apply. The Minister submits that there can be no miscarriage of the Tribunal’s discretion to adjourn proceedings in circumstances where, at the expiry of an adjournment, the applicant failed to provide evidence of competent English. The case accordingly falls within a category of factually similar cases that have come before this Honourable Court, and have, invariably, been dismissed (see for example Farook v Minister for Immigration & Anor [2014] FCCA 1000, Ahsan v Minister for Immigration & Anor [2013] FCCA 1653 at [30]).
In her affidavit filed on 18 July 2014, the first applicant submits that the IELTS test “is not suitable for testing my English skills”. She further submits that it is “against the principle of natural justice to test my English skills with a test which is not designed to test my English skills.” The first applicant apparently submits that, for those reasons, r.1.15C is invalid.
In the Minister’s submission, the evidence filed by the applicants does not support the submissions contained in the first applicant’s affidavit. In particular, it does not support the submission that the IELTS test is not designed to test, or is not suitable to text, English language ability.
As evidence of what the IELTS test does or does not test, the document styled “IELTS Disclaimer” and annexed to the first applicant’s affidavit is hearsay and inadmissible for that reason. To the extent that the document evidences what the publisher of the IELTS website says about the IELTS test, the salient fact is that the document says nothing about what is contained in, or targeted by, the IELTS test. It merely states that the IELTS test is not designed to be the sole method of determining admission to a course of study or employment.
There is, therefore, no basis upon which to submit that the IELTS test is unsuitable as a test of English language ability. There is no basis for a challenge to the validity of r.1.15C on the grounds that it specifies IELTS test scores as a criterion of competent English.
Moreover, in Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186, Perram J, sitting on appeal from this Court (at the time the Federal Magistrates Court), upheld the validity of r.1.15C applicable to the present case. In that case it was alleged that r.1.15C was invalid to the extent that it set forth a score of six in each of the four components of the IELTS test as a criterion of competent English. Perram J rejected this challenge to the validity of r.1.15C and held that the definition of “competent English” by reference to IELTS scores rationally served the end of testing the English language skills of visa applicants at [28]. There is binding Federal Court authority to the effect that the legislative provisions sought to be impugned as invalid by the applicants in this proceedings is in fact a valid exercise of the regulation-making power contained in the Migration Act.
The Minister submits the applicants have failed to demonstrate any jurisdictional error affecting the decision of the Tribunal. The application should be dismissed with costs awarded to the Minister.
Consideration
I will first address the substantive grounds of review contained in the application. These grounds are broad and unparticularised, and no submissions were made in respect of them at the final hearing. In my view, the Minister’s submissions in respect of these grounds, noted above at [24]-[27] above accurately address these grounds. Accordingly, these grounds must fail and should be dismissed.
The first ground states that there has been jurisdictional error on the part of the Tribunal or that the Tribunal lacked jurisdiction in respect of its decision. The first aspect of the ground is unparticularised and needs no further consideration. Section 338 of the Migration Act confers power on the Tribunal to review decisions of the nature of the proceedings before this Court. Accordingly, this aspect of the ground also must fail and should be dismissed.
In respect of the second ground of the application, I note that the first applicant, at the hearing before this Court, accepted that the Tribunal’s decision was correct. To successfully advance a ground of this nature, a transcript of the Tribunal hearing would need to be provided, as well as sworn evidence by a relevantly qualified interpreter showing the alleged errors in interpretation. This has not occurred. Accordingly, this ground must also fail and should be dismissed.
In respect of the third ground of the application, there is no evidence or submission advanced by the first applicant that she was denied natural justice or procedural fairness before the Tribunal. I note that the Tribunal, at the hearing which the first applicant attended after being validly invited, granted the applicant an adjournment, as her representative had sought, of approximately six weeks to enable her to provide evidence of satisfying the “competent English” criterion in respect of her visa application by achieving the requisite scores in an IELTS test. There was no contact from the applicants to the Tribunal during that period and the Tribunal, as it was obliged to, affirmed the delegate’s decision to refuse to grant the applicants visas.
In Ahsan v Minister for Immigration & Anor [2013] FCCA 1653 Judge Driver stated at [28]-[30]:
28. The Tribunal was correct to enable Mr Ahsan to satisfy whether he had competent English up until the time of decision.
29. Pursuant to this Regulation the courts have found that an applicant can satisfy the criteria of competent English up until the time of decision. However, as Mr Ahsan had not provided evidence that he had achieved the specified score at the time of decision, it was open to the Tribunal to find that Mr Ahsan did not have competent English.
30. In regards to Mr Ahsan’s complaint that the Tribunal should have allowed him “proper time” to re-sit the IELTS test so that he could achieve the specified score, as noted above, the Tribunal acceded to Mr Ahsan’s request to defer its decision until after he had sat another IELTS test booked for 11 May 2013. No other request for an adjournment was made by Mr Ahsan. Therefore, in these circumstances, the Tribunal did not fall into error by proceedings to make its decision on 12 June 2013.
(footnotes omitted)
In my view, his Honour’s reasoning, in circumstances similar to those currently before the Court, was correct. Accordingly, this ground must also fail and should be dismissed.
I now turn to the affidavit of the first applicant affirmed and filed on 18 July 2014. The Minister has responded to this in its submissions, noted at [28]-[32] above. These submissions accurately address the first applicant’s statements contained in the affidavit and I agree with them. Further, the applicant chose not to address these claims at the hearing and accepted the Tribunal’s decision to be correct. Accordingly, it is not necessary for the Court to have any further regard to the first applicant’s affidavit of 18 July 2014.
I finally turn to the first applicant’s oral submissions made at the hearing on 27 August 2014. The applicant conceded she had not satisfied the “competent English” criterion requirement for her visa application and that the Tribunal’s decision was correct. She asked that the Court allow her time to provide IELTS test results to it. However, it was explained to the first applicant that the function of this Court is to have regard to the decision of the Tribunal and ascertain whether there has been any jurisdictional error on its part. There is no power for this Court to consider evidence that was not before the Tribunal, or to grant the applicants visas.
Consequently, the application must fail and should be dismissed, with costs awarded to the Minister.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 1 October 2014
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