Kaur v Minister for Immigration & Anor
[2018] FCCA 1657
•12 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOTHER | [2018] FCCA 1657 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of skilled work visa – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.55. Migration Regulations 1994 (Cth), Sch.2, cl.485.212 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 |
| First Applicant: | HARDEEP KAUR |
| Second Applicant: | RAJ KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 86 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 10 April 2018 |
| Date of Last Submission: | 10 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 12 April 2018 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitor for the Applicant: | R & J Lawyers |
| Counsel for the First Respondent: |
| Solicitor for the First Respondent: | Clayton Utz |
ORDERS
The Application, filed 26th October 2017, be dismissed.
The Applicants are to pay the Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 86 of 2017
| HARDEEP KAUR |
First Applicant
| RAJ KUMAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 12th April 2018, the Court delivered oral reasons. What follows are those reasons revised from the transcript.
This Application concerns judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), pursuant to s.476 of the Migration Act 1958 (“the Act”). That decision affirmed a decision of the delegate to refuse the Applicants a skilled provision, VC subclass 485 visa under s.65 of the Act.
The Applicants are both nationals of India. They are Husband and Wife, who arrived in Australia in March 2013 and April 2014, respectively. The Minister’s submissions, at paragraph 5 and 6, set out other uncontroversial details regarding the Applicants by reference to information contained in the Court Book (“CB”). Relevantly, that detail is:
5) On 15 March 2017, the Applicants applied for the skilled visa: CB1. In support of their application, the Applicant provided an English language test result from PTE Academic Institution taken on 2 September 2016 with an overall score of 43: CB1, 18.
6) On 3 May 2017, the Delegate refused to grant the skilled visa application on the basis that the Applicant did not have the required English language proficiency: CB7, 62-70. The Delegate found that the Applicant did not meet the requirements of cl.485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because she did not hold a specified passport type and did not satisfy the English language requirements for the visa. The minimum overall score for the PTE Academic test specified in IMMI 15/062, for the purposes of cl 485.212(a)(ii), was 50. The Applicant had therefore not provided evidence of having achieved the specified minimum required overall score in an acceptable English test undertaken within the three years immediately before the day on which the application for the visa was made. The Delegate also found that because the Applicant did not meet the visa criteria, the Second Applicant, as a dependent on the visa application, could not meet cl.485.311: CB7, 69.
The decision of the delegate is dated 3rd May 2017.[1] On 21st May 2017 the Applicants applied to the Tribunal for review of the delegate’s decision. On 21st September the Tribunal affirmed the delegate’s decision.[2] I note in particular that at pars.6 – 15, the Tribunal set out the claims that were before it and the reasons for its decision.
[1] See CB 66 – 70.
[2] The decision is at CB 115 – 117.
On 26th October 2017 the Applicants filed an Application for Review in this Court. That Application sets out seven distinct grounds of review. They are set out in full later in these reasons. In my view, most of them are broad articulations of dissatisfaction by the Applicants’ then lawyer with the Tribunal’s decision. Those grounds are reasonably replete with references to “unfairness” or similar terms. In broad terms, the Grounds of Review in fact seek little more than to have this Court undertake a review of the merits of the Tribunal’s decision. Such a course is impermissible, according to longstanding authority.[3]
[3] Among many cases, see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 618 – 619 (Gummow A-CJ and Kiefel J).
In the hearing before me, the articulation of the Applicants’ Grounds of Review were helpfully narrowed to two connected grounds: first, that in failing to have regard to the later PTE (Pearson Test of English) academic score of the Applicant Wife, the Tribunal fell foul of s.55 of the Act. Secondly, it was contended that the High Court decision in Berenguel v the Minister for Immigration and Border Protection (“Berenguel”) relevantly provided sufficient scope for, and should be used as a general remedial principle to enable, this Court to take into account the later IELTS (International English Language Testing System) test score.[4] The Applicants also contended that the cases referred to in paragraph 20 of the Minister’s submissions were wrongly decided.
[4] Berenguel v the Minister for Immigration and Border Protection (2010) 264 ALR 417.
The Tribunal’s decision
The Applicant indicated at the time of visa application that she had undertaken an English language test on 2nd September 2016 and achieved an overall score of 43. The minimum overall score for the PTE academic, specified in IMMI 15/062, for the purposes of cl.284.212(a)(ii) is 50.[5]
[5] Tribunal’s reasons at par.9.
The Applicant provided evidence to the Tribunal that she had undertaken a PTE Academic test on 23rd August 2017 and had achieved an overall score of 58 on that occasion. The Applicant indicated that when she applied for the visa, she did not meet the requisite English language standard, but had since re-sat the test, and met the necessary score.[6]
[6] Reasons par.10.
The Tribunal concluded (at pars.12 – 15) that:
(a)the necessary score in the English language test was only obtained after the Applicant applied for the visa, rather than within three years before the day on which the application was made in accordance with cl.485.212 of Schedule 2 of the Regulations,
(b)it was not satisfied that the application was accompanied by evidence that relevantly met the requirements of cl. 485.212 on the information provided, and
(c)it had no power to waive the requirements of the Regulations, or any relevant discretion to take account of the August 2017 PTE test result. Accordingly, the decision of the Delegate was confirmed.
Grounds of Review
The Grounds of Review were set out in the Application for Review, filed 26th October 2017. This Application was filed by the Applicants’ previous lawyer, however, in the Applicants’ submissions, filed 5th April 2018, the same grounds are found.
The Grounds of Review are as follows.
1. The Applicant reserves the right to amend the Application. The Applicant reserves the right to add further grounds in support of the Application. The Applicant is not bound by any pleadings in this matter.
2. The tribunal, failed to take into account a relevant consideration that is the PTE Academic test result on 23 August 2017.
3. The decision by the Tribunal not to take the 2017 test result into account was unreasonable decision. It was not a logical decision. The Li case and the decision of Mason CJ in the Peko Wallsend have provided a definitive statement as to what constitute unreasonableness.
4. The Tribunal is required to act in fair manner. It is not fair for the Tribunal to ignore the 2017 test result. The requirement to act fairly is different to the requirement to act reasonably. The requirement to act fairly is a substantive right. It is not mere statement of principal.
5. The construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Section 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose. The Tribunal has made an error of law by applying section 55 incorrectly.
6. It is also important to note that the subsequent amendments to the Migration Act and Regulations do not operate to top preclude the operation of Section 55 of the Act. If there is an inconsistency, then section 55 will override the operation of another provision.
7. The other provisions are ultra vires.
The Applicants’ Submissions
The relevant excerpts of the Applicants’ written submissions, filed 5th April 2018, were as follows.
Submissions
15) The Migration Act 1958 does have a mechanism of providing and receiving any information without any condition or qualification. This mechanism is provided by sections 54, 55, 56, 349 and 359 of the Act. Under section 56, the Minister or its delegate may get any information and or additional information that he or she considers relevant while considering an application for a visa. For the purposes of review, section 349 grants to the Tribunal the same powers and discretions that are conferred by the Migration Act on the person who made the decision. In addition to these, section 359 confers discretion on the Tribunal to get "any information" that it considers relevant while it is conducting the review of the delegate’s decision.
16) In this matter, the relevant information was the evidence of the PTE Academic test result of 23 August 2017 by virtue of which the first applicant satisfied the minimum score requirement of the English language competency. During the course of hearing before the Tribunal, the first applicant informed the Tribunal about this information however the Tribunal refused to receive and consider it on the basis that this information was not provided at the time of lodgement of the visa application and that the Tribunal had no discretion in this mater or to waive the time of application requirement.
17) The approach of Tribunal that it had no discretion to receive the information in the form of PTE Academic test result of 23 August 2017 was also unreasonable in the sense of Li. There is no provision in the Act or the Regulations which prohibits the Tribunal from accepting and considering this information at any stage during the review process. Quite the contrary, section 349 and 359 make it very clear that the Tribunal has the discretion and power to get any information that it considers relevant and then have regard to that information in making the decision on the review.
18) The finding of the Tribunal in paragraph 14 of its decision that it had no discretion in this matter is incorrect and suffers from ignorance of the relevant provisions of the Act as contained in sections 54,55,56,349 and 359 of the Act. The Tribunal had an erroneous view of the PTE Academic test result of 23 August 2017 when it directed and focused its mind towards clause 485.212 only. There was no consideration and discussion of aforementioned relevant provisions of the Act. In this context, it is submitted that the Tribunal failed to properly exercise its jurisdiction.
19) The review before the Tribunal was a merit review. Section 353 of the Act makes it clear that the Tribunal is not bound technicalities, legal forms and rules of evidence and must act according to the substantial justice and the merits of the case. It cannot be disputed that the required minimum score of the PTE Academic test result was directly relevant to the merits of the case. Instead of deciding the case on its merits, the Tribunal adopted the technical approach and just endorsed the delegate's decision. This amounts to the failure on the part of the Tribunal to conduct a review as required by section 353 of the Act.
20) The rejection of the PTE Academic test result of 23 August 2017 was on the basis of the “time of application” approach of the Tribunal. The Tribunal failed to appreciate that in cases involving the time of application criteria the High Court, in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, has settled the law that there is nothing to prevent relevant information being submitted after the lodgement of the application and having regard to such information. The Tribunal’s finding in paragraph 12 that the first applicant did not satisfy the English language requirement as she achieved minimum specified score after the visa application was made is misconstruction of the clause 485.212 and IMMI 15/062 and is antithetical to the legislative purpose as it deprived itself of the most recent information. This approach of the Tribunal has led to a plain unfairness and absurdity.
21) Similar to the circumstances of this case in relation to the PTE Academic test result of 23 August 2017, in Berenguel, the High Court approached the issue of providing the IELTS test result in the followings words:
“……………..could the plaintiff satisfy the English language requirements of cl 885.213 in Sched 2 to the Migration Regulations by lodging an IELTS Test Report with the defendant's Department on a date after the date on which he lodged his visa application with the defendant's Department?”
And answered it in Yes.
The issue in this case is exactly along the same lines as was decided by the High Court in favour of the plaintiff in Berenguel.
The First Respondent’s Submissions
The First Respondent’s written submissions, filed 3rd April 2018, were as follows:
1) There is before the Court an application under s. 476(1) of the Migration Act 1958 (Cth) (Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate of the Minister (Delegate) to refuse the Applicants a Skilled (Provisional) (Class VC) Subclass 485 visa (skilled visa) under s. 65 of the Act.
2) These submissions are filed by the Minister in accordance with the orders of the Court made on 27 November 2017. Those orders provided the Applicants with an opportunity to file written submissions by 27 March 2018. They have not done so. Accordingly, these submissions respond to the grounds pleaded in the application filed on 26 October 2017.
3) The Minister respectfully submits that those grounds do not establish jurisdictional error. For the reasons that follow, the application ought to be dismissed with costs.
Background and the Tribunal's decision
4) The Applicants are Indian nationals. The Second Applicant is the First Applicant's (hereafter, Applicant) husband and they arrived separately in Australia on 6 April 2014 and 11 March 2013 respectively: Court Book (CB), 50-51.
5) On 15 March 2017, the Applicants applied for the skilled visa: CB1. In support of their application, the Applicant provided an English language test result from PTE Academic Institution taken on 2 September 2016 with an overall score of 43: CB1, 18.
6) On 3 May 2017, the Delegate refused to grant the skilled visa application on the basis that the Applicant did not have the required English language proficiency: CB7, 62-70. The Delegate found that the Applicant did not meet the requirements of cl.485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because she did not hold a specified passport type and did not satisfy the English language requirements for the visa. The minimum overall score for the PTE Academic test specified in IMMI 15/062, for the purposes of cl 485.212(a)(ii), was 50. The Applicant had therefore not provided evidence of having achieved the specified minimum required overall score in an acceptable English test undertaken within the three years immediately before the day on which the application for the visa was made. The Delegate also found that because the Applicant did not meet the visa criteria, the Second Applicant, as a dependent on the visa application, could not meet cl.485.311: CB7, 69.
7) On 21 May 2017, the Applicants applied to the Tribunal for review: CB8.
8) On 20 September 2017, the Applicants appeared before the Tribunal by phone to give evidence and present arguments and were represented by a registered migration agent. At the Tribunal hearing, the Applicant explained that:
a) she had since undertaken a further PTE Academic Test on 23 August 2017 and had received an overall score of 58; and
b) when she had applied for the visa on 15 March 2017 she did not have the necessary score and had made a mistake. However, she now had the requisite English test score and asked the Tribunal to take that result into account.
9) The Tribunal explained to the Applicant that, while she had now achieved the required score, the test taken after her visa application was lodged did not satisfy the relevant regulatory requirements because it was not taken within the three years before the day on which the visa application was made: CB14, 115-117: Tribunal's Decision Record (DR) at [10].
10) On 21 September 2017, the Tribunal affirmed the Delegate's decision on the basis that the Applicant did not meet the requirements of cl 485.212 of Schedule 2 to the Regulations: CB14.
Relevant legislative criteria
11) Clause 485.2 of Schedule 2 to the Regulations sets out the primary criteria for the grant of a skilled (subclass 485) visa, followed by criteria set out in two streams: the Graduate Work stream and the Post-Study Work stream.
12) Clause 485.21 sets out the common criteria for a skilled (subclass 485) visa in the Post-Study Work Stream. This criteria must be satisfied by at least one member of the family unit, and must be satisfied at the time a decision is made on the application (unless otherwise stated): note to cl 485.2.
13) Clause 485.212 requires an applicant to satisfy the following:
The application was accompanied by evidence that:
(a) the applicant:
·has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
·has achieved, with the specified period 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.
14) The relevant legislative instrument is IMMI 15/062. It states at paragraph 4(c): SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made …". The minimum required overall test score for a PTE Academic test is 50: see paragraph 3.
Application for review
15) On 26 October 2017, the Applicants' former legal representative, Mr Hugh Ford, filed an application for review on behalf of the Applicants.
16) On 28 March 2018, Mr Ford filed a "Notice of Withdrawal as Lawyer". In the absence of anything to the contrary, the Minister assumes that the Applicants, who are now unrepresented, continue to rely on the seven grounds of review contained in their application.
17) When read together, those grounds essentially allege that the Tribunal:
a) failed to take into account a relevant consideration, namely the Applicant's PTE Academic test result of 23 August 2017, and that failure was both "unreasonable" and "not fair"; and
b) erred by failing to apply s 55 of the Act which, to the extent of any inconsistency, "overrides" the operation of the Regulations and specifically provides that the Minister may have regard to "up-to-date information" (in this case the Applicants' assert this to be the PTE Academic test result of 23 August 2017).
Disposition
18) In the Minister's respectful submission, the Applicants' grounds are without merit and the application for review must fail.
19) When cl 485.212(a) is read together with IMMI15/062, it is clear that evidence of a PTE Academic test will only meet the requirements of cl 485.212(a) in circumstances where an applicant reached a minimum overall score of 50 and the test was completed within three years before the day on which the application for a skilled (subclass 485) visa was lodged.
20) In a number of recent decisions, the Federal Circuit Court and the Federal Court have consistently recognised that the operation of this visa criterion is both inflexible and unambiguous: see, for example; Kumar & Anor v MIBP [2017] FCCA 2406 (Kumar) at [15] (affirmed on appeal in Kumar & Anor v MIBP [2018] FCA 140 at [24]), Brar v Minister for Immigration & Anor [2017] FCCA 2440 at [38] and Rangasamy v MIBP [2017] FCCA 1711 at [27]-[30]. Accordingly, in circumstances where the Applicant's successful PTE Academic test was undertaken outside of the three year period before the visa application was lodged, and there was no evidence before the Tribunal to suggest that the Applicant had obtained the requisite score for the specified language test within the specified period, the only finding open to the Tribunal was that the Applicant did not meet the requirements under cl 485.212.
21) With respect to the Applicants' grounds of review, and contrary to the Applicants' assertions, the Tribunal plainly did consider the Applicant's evidence that she had successfully passed a PTE Academic test: DR [10]-[12]. However, the Tribunal found that the test was undertaken on 23 August 2017, after the skilled visa application had been lodged, and was therefore insufficient to satisfy the relevant visa criterion. Similarly, in circumstances where the Applicant was required to show that she had undertaken a successful language test within the three years before the day on which she made the skilled visa application, the results of any test conducted outside the three year period was not 'additional relevant information' within the meaning of s 55 of the Act: see Kumar at [26].
Consideration and disposition
In my view, the Court’s determination of the current Application must be based on the following matters.
First, the Migration Regulations that were the subject of the High Court’s decision in Berenguel were subsequently changed and relevantly tightened. Therefore, in my view, the applicability of Berenguel to the current Application, which involves quite different Regulations, is inapposite and is of no obvious assistance to the Applicants.
Secondly, contrary to the submission on behalf of the Applicants, which was that the authorities relied upon by the Minister were wrongly decided, the decision of Robertson J in Kumar v the Minister for Immigration and Border Protection is, in my view, formally binding on this Court.[7] Respectfully, it is impeccably correct.
[7] Kumar v the Minister for Immigration and Border Protection (2018) FCA 140.
Thirdly, his Honour’s comments with respect to the provenance and operation of Regulation 485.212 also relevantly apply to the matter before this Court. At [24] in Kumar Robertson J said:
In my opinion, there is no arguable ambiguity in the terms of either cl 485.212 or IMMI 15/062. It is therefore not arguable that the Tribunal misconstrued the provisions or that the primary judge erred in so holding.
In such circumstances, s.55 of the Act, as submitted by the Applicants, does not assist them in the current proceeding for reasons set out not only in his Honour’s judgment but also in the first-instance decision in this Court in Kumar.[8] In that case, at [15], Judge Driver said:
The visa criterion requiring an English language test not more than 36 months before the date of lodgement of the application is an inflexible one and was strengthened in order to deal with the decision of the High Court in Berenguel v Minister for Immigration (Berenguel). While the Commonwealth has been successful in exorcising the interpretation of the criterion made by the High Court in that case, the result is an inflexible criterion that has harsh consequences, as was explicitly recognised by the Tribunal in its reasons.
[8] Kumar & Anor v Minister for Immigration & Border Protection & Anor [2017] FCCA 2406.
Judge Driver also commented on the contention that was before him - the same argument that is before this Court - in relation to the operation of s.55 and in the context of the High Court decision in Berenguel, at [25] and [26] (internal citation omitted unless otherwise specified):
[25] In relation to the first limb, in Berenguel, the plaintiff booked an IELTS exam prior to the lodgement of the application. However, he was unable to sit the exam until after he lodged the application. The High Court’s decision turned on the construction of the provision as it was then. Specifically, the relevant regulation said that the relevant test had to have been conducted “not more than 2 years before the day on which the application was lodged”. Having regard to the language of that provision and the requirement that the Minister to have regard to up-to-date information (s.55), the High Court found that the delegate erred by not considering the plaintiff’s test results provided after the application.
[26] By contrast, the relevant criterion in the present case is different. The applicants were required to show that they had undertaken the IELTS test within the three years before the day on which the application was made. It follows that the results of any test conducted outside the three year period would not be relevant further information within s.55 of the Migration Act 1958 (Cth) (Migration Act).
His Honour relied upon comments by Katzmann J in Milanes v Minister for Immigration, at [55], where her Honour said:[9]
While it may seem logical and sensible that the Minister consider the most recent information concerning the applicant’s proficiency in English, the legislative intention is otherwise. It follows that the results of any test conducted outside the three year period specified in reg 1.15C would not be relevant further information within s 55 of the Act.
[9] Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508.
Similarly, I accept (as I must and do so readily) the comments by Katzmann J in Milanes. They prevent the success of the Applicants’ submission that s.55 assists them in the matter before me.
Fourthly, otherwise I accept the Minister’s submissions.
For these reasons, the Application, filed 26th October 2017, must be dismissed with costs, as per the Schedule to this Court’s Rules.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 5 July 2018
4
9
3