Kaur v Minister for Immigration
[2020] FCCA 629
•18 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 629 |
| Catchwords: MIGRATION – Application for judicial review – Skilled (Provisional) (Class VC) visa – English language proficiency test failed – no matters of principle – application dismissed |
| Legislation: Migration Act 1958 (Cth), s.351 Migration Regulations 1994 (Cth), cl.485.212 Migration Agents Registration Act 1998 (Cth) |
| First Applicant: | SANDEEP KAUR |
| Second Applicant: | HARDEEP SINGH |
| Third Applicant: | SARHANDEEP SINGH MATHARU |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1863 of 2018 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 18 February 2020 |
| Date of Last Submission: | 18 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 February 2020 |
REPRESENTATION
| Solicitors for the Applicants: | In person |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1863 of 2018
| SANDEEP KAUR |
First Applicant
| HARDEEP SINGH |
Second Applicant
| SARHANDEEP SINGH MATHARU |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered extempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 12 June 2018.
The Tribunal affirmed a decision of a delegate of the Minister not to grant the first applicant a Skilled (Provisional) (Class VC) visa. The other applicants are her dependent husband and child.
The applicants seek judicial review of the decision of the Tribunal by way of an application filed in June 2018. The matter is listed today by the Registrar for a show cause hearing.
The applicant applied for the visa in July 2017. At the time of applying for the visa, she lodged a language test result showing that she had an overall score of 49 out of 100. Unfortunately for the applicant, the visa category requires that the language score be at least 50 out of 100, not 49: see [11] of the decision.
The visa conditions include cl.485.212 to the Migration Regulations 1994, which is in the following terms:
485.212 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 result of this clause is that the language test results must have been completed in the three years preceding the visa application date. As a result, at the time of application, based on the test results she lodged, the applicant was not eligible for the visa.
Following the refusal by the delegate, the applicant undertook another language test and did obtain a language score that was sufficient (namely, 54), as an overall score for that visa criteria. However, that test result was lodged well after the date of application and, therefore, was not able to be relied upon under cl.485.212: see pp.94 to 95 of the Court Book for a copy of that language score test.
The Tribunal
Before the Tribunal, the applicants were represented by a migration agent who provided written submissions in April 2018. The applicants attended to present evidence and argument.
The Tribunal summarises the applicant’s arguments (at [11]) as follows:
11. The applicant confirmed to the Tribunal that she booked a PTE test on 28 July 2017, but the earliest date available at that time was 5 September 2017. She sat the test on 5 September 2017, not 28 July 2017. Then there were delays in her being able to obtain the results from the test administrators due to technical issues. In response to the Tribunal’s query, the applicant said that she did do an earlier PTE test, before making her visa application, but she only obtained an overall score for that of 49 (the minimum required is 50) despite scoring at least 36 points for each of the 4 components of speaking, writing, listening and reading. The Tribunal observed that the PTE test appeared to give weight to other components, as well as those 4, to determine an applicant’s ultimate overall score. The applicant stated that her agent advised her to do another test but did not make it clear that she had to do so before making her visa application. The applicant further stated that she had studied IT/Networking and had wanted the subclass 485 visa in order to complete her Professional Year in that field as her friends were doing. She noted that she had achieved good marks in her Masters degree at Melbourne Institute of Technology.
Ultimately, the Tribunal found (at [15]):
15. Based on the evidence before it, the Tribunal makes the following findings:
·the applicants applied for subclass 485 visas online on 28 July 2017. In the online visa application, the applicant indicated that she had undertaken a PTE Academic English test on 28 July 2017;
·on 24 August 2017, the applicant was requested to provide evidence of her English test;
·on 29 October 2017, the applicant provided the Department with a copy of her PTE Academic English test taker score report indicating that she undertook a test on 5 September 2017 in which she obtained an overall score of 54, with scores of 50 for listening, 59 for reading, 48 for speaking, and 56 for writing;
Based upon this finding, the Tribunal affirmed the decision of the delegate not to grant the visa.
The Tribunal also noted (at [22] to [24]) that it was open to the applicant to apply for ministerial intervention pursuant to s.351 of the Migration Act 1958 (Cth).
Given the difficulties that the applicant faced, it is difficult to understand why the migration agent would have suggested applying to the Tribunal, as the Applicant’s application to the Tribunal was bound to fail, given the difficulties that she had with her language test. That application seems to have been a waste of money and time.
However, the applicant has remedies of her own at common law against the migration agent, who would be compulsorily insured under the Migration Agents Registration Act 1998 (Cth) conditions. These are not matters, however, that are the subject of litigation in this Court.
Grounds of Judicial Review
The Applicant’s application for judicial review sets out the following five grounds:
1. The Tribunal committed jurisdictional error for the following reasons:
a. the Tribunal erred in failing to give the applicant an opportunity to respond to matters raised by the Tribunal in its decision thereby denying the Applicant procedural fairness;
2. The Tribunal has breached Sections 338, 348, 353 and 357 A of the Migration Act by its failure to properly review the decision that was before it and further by its failure to act in a way that is fair and just.
3. The Tribunal has breached Section 368 of the Migration Act by its failure to provide proper reasons for its decision and the findings on the material questions of fact on which the decision was made.
4. The Tribunal erred in reasonably evaluating the evidence before it therefore materially affecting its purported determination. Therefore, it committed jurisdictional error.
5. The Tribunal has erred jurisdictionally by its failure to objectively consider the totality of the evidence before it.
None of these grounds relate to the particular circumstances of this case.
The Tribunal had no option but to refuse the application, given that the applicant did not comply with the visa conditions and that she could not rely upon the more recent language test as a result of the regulation set out above.
The applicant does not articulate any other concern about the hearing process and, clearly, was given a hearing before the Tribunal where the Tribunal considered the facts and circumstances of her case and the evidence before it.
Conclusion
In this case, I am not persuaded that the applicant has raised anything that would show an arguable or prima facie case for judicial review on the material, either in respect of the matters set out in her grounds or otherwise.
In the circumstances, I therefore dismiss the application for judicial review.
Costs
In this matter, a technical error by the applicant (which she says was caused by her migration agent) resulted in her being unable to obtain the visa, as the relevant language test that she needed to rely upon was obtained after the date of application and, therefore, not able to be used under cl.485.212. This was apparent to the Tribunal member, who (at [22] and [24]) said:
22. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department’s website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: The Tribunal notes that it remains open to the applicants and their agent to raise any evidence that he considers relevant, in seeking Ministerial intervention directly, should they believe it appropriate to do so.
The Tribunal member quite fairly identified for the applicant that she could apply to the Minister under s.351 and even pointed her to some online guidelines that would be of assistance when preparing that application. In the circumstances, I find it appropriate that costs should be ordered and do so at the scale amount.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 19 March 2020
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