Kaushal v Minister for Immigration
[2014] FCCA 2857
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUSHAL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2857 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – consideration of the “competent English” criterion – whether the applicant was prevented by amendments to the Migration Regulations 1994 (Cth) from relying upon a test conducted after he applied for the visa considered. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration Amendment Regulations 2011 (No.3) (Cth) |
| Ajaya v Minister for Immigration [2014] FCA 718 Singh v Minister for Immigration [2014] FCA 185 |
| Applicant: | SUMIT KAUSHAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 612 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr M Wiese of Clayton Utz |
ORDERS
The application filed on 12 March 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 612 of 2014
| SUMIT KAUSHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 18 February 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Kaushal, a skilled resident visa. The following statement of background facts relating to Mr Kaushal’s visa application and the decision of the Tribunal on it is derived from the Minister’s outline of legal submissions filed on 27 November 2014.
Mr Kaushal is the holder of an Indian passport.[1] His skilled visa application was lodged on 14 October 2011.[2] The Delegate's decision was made on 15 November 2013, on the footing that Mr Kaushal did not satisfy the criterion in clause 885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[3] This criterion requires an applicant for a skilled visa to have “competent English”.
[1] Court Book (CB) 2.
[2] CB 1-13, 23.
[3] CB 23-26.
Mr Kaushal's application for merits review of the Delegate's decision was given to the Tribunal on 26 November 2013.[4] On 6 January 2014 the Tribunal wrote to Mr Kaushal, inviting him to a hearing and requesting him to provide evidence that he satisfied the “competent English” criterion.[5] The Tribunal identified in its letter the methods by which it was open to Mr Kaushal to establish competent English as defined in the Regulations.[6]
[4] CB 27-46.
[5] CB 56-59.
[6] CB 59.
On 17 February 2014, Mr Kaushal appeared at the Tribunal hearing.[7] His evidence was that he did not meet the requirements of the “competent English” criterion.[8] On the following day, the Tribunal affirmed the Delegate's decision.[9]
[7] CB 69 [5].
[8] CB 69-70 [10]-[11].
[9] CB 68-70, 70 [12]-[13].
Relevant law
Section 65 of the Migration Act 1958 (Cth) (Migration Act) provides that a visa must not be granted if the criteria for the visa set out under the Migration Act are not satisfied. The relevant skilled visa sub-class in the present case was sub-class 885. At the relevant time, the criteria for a sub-class 885 skilled visa were set out in Part 885 of Schedule 2 to the Regulations. Clause 885.213 of Schedule 2 required the applicant to have “competent English” to meet the criteria for a sub-class 885 skilled visa.
“Competent English” is defined in regulation 1.15C of the Regulations. The version of regulation 1.15C applicable to a skilled visa application lodged on 14 October 2011 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:
(a) satisfies the Minister that:
(i)the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii)the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii)the person achieved a score specified in the instrument; or
(b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph."
(emphasis added)
By IMMI 12/018, the Minister specified the following language tests and scores:
a)an International English Language Test System (IELTS) test, with a score of at least 6 for each of the four test components of speaking, reading, writing and listening; and
b)an Occupational English Test, with a score of at least “B” in each of the four components.
The Minister has also specified certain passports for the purposes of regulation 1.15C(b). These do not include a passport issued by India.
Tribunal’s findings and reasons
Whether Mr Kaushal satisfied the “competent English” criterion in clause 885.213 of Schedule 2 to the Regulations was the critical issue in the review.[10] Regulation 1.15C provided the test to be applied in assessing whether Mr Kaushal satisfied this criterion.[11] It is apparent from the Tribunal's reasons for decision that it considered any IELTS test conducted after the date of lodgement of the visa application to be irrelevant to that assessment.[12]
[10] CB 69 [7].
[11] CB 69 [7].
[12] CB 69-70 [10].
There was no evidence before the Tribunal that Mr Kaushal held a passport of a type specified for the purposes of the criterion.[13]
[13] CB 69 [8].
At the hearing, Mr Kaushal confirmed that he could provide no evidence that he had achieved the requisite scores in an IELTS test conducted in the two years immediately before the day he submitted his application for a skilled visa.[14]
[14] CB 69-70 [10].
Accordingly, the Tribunal concluded that Mr Kaushal did not have competent English as defined.[15]
[15] CB 70 [12]-[13].
The Tribunal thus affirmed the decision of the Delegate.
The judicial review application
These proceedings began with a show cause application filed on 12 March 2014. Mr Kaushal continues to rely upon that application. There are two grounds in the application:
1..The Migration Review Tribunal did not take into account my evidence.
2.The delegate of the Minister did not accept my excuse that I was not aware of the changes in the rules immediately before I submitted my Application for a Skilled Visa.
The first court date in these proceedings was on 9 April 2014. The Court indicated that it wished to hear submissions regarding whether the Tribunal applied a correct understanding of the timing requirements for a test undertaken to satisfy the “competent English” criterion. The Minister has provided written submissions on this point. Mr Kaushal was given the opportunity to file an amended application, any evidence in addition the Court Book, and written legal submissions. He has not taken up that opportunity.
I have before me as evidence Mr Kaushal’s affidavit made on 11 March 2014 and the court book, filed on 22 April 2014. The grounds of review raised by Mr Kaushal are dealt with shortly at [18] and [19] of the Minister’s submissions. I agree with those submissions and adopt them for the purposes of this judgment.
As to Mr Kaushal's first ground, the only evidence capable of assisting Mr Kaushal's case before the Tribunal was evidence of achievement of the requisite scores in a test conducted in the two years immediately prior to submitting his application for a skilled visa. Mr Kaushal acknowledged that he had no such evidence to provide. Accordingly, this ground of review has no merit.
As to Mr Kaushal's second ground:
a)to the extent that it takes issue with the Delegate's decision it must be rejected. The Delegate's decision is a “primary decision” within the meaning of s.476(4) of the Migration Act and this Court does not have jurisdiction to review it;
b)in any event, pursuant to s.65 of the Migration Act a visa must not be granted if the visa criteria are not satisfied. There is no provision for the decision-maker to “excuse” a failure to meet the requirements of the competent English criterion in the event that an applicant does not understand them, and no provision for flexibility as to the timing of the test sought to be relied upon. It was therefore not relevant to the Tribunal's decision (or the Delegate's decision) whether it accepted Mr Kaushal's “excuse”; the visa could not be granted if the criteria were not met. Further, a visa applicant's misunderstanding as to the relevant visa criteria does not, of itself, subvert the decision-making process such as to found a case of jurisdictional error.[16]
[16] Singh v Minister for Immigration [2014] FCA 185 at [7] and [13] (Barker J).
An additional issue was apparent when the matter came before me for directions on 9 April 2014, I raised with the parties the question of the interpretation of regulation 1.15C of the Migration Regulations.[17] It was apparent that the version of the regulation applicable at the time of Mr Kaushal’s visa application was intended to overcome the consequence of the High Court’s decision in Berenguel v Minister for Immigration.[18]
[17] reproduced at [7] of the Tribunal’s decision, CB 69.
[18] (2010) 264 ALR 417.
The question in my mind was whether the drafter had achieved, in the wording of subparagraph 1.15C(a)(ii), the express purpose. Since that time, as reflected in the Minister’s submissions, both this Court and the Federal Court have considered that issue. That consideration is addressed in the Minister’s submissions. In the light of the now available authority I accept the Minister’s submissions.
The version of regulation 1.15C applicable to Mr Kaushal’s skilled visa application was introduced by the Migration Amendment Regulations 2011 (No.3) (Cth) (Amending Regulation). The Amending Regulation was reactive to the High Court's construction in Berenguel of an earlier version of regulation 1.15C. The Berenguel form of regulation 1.15C provided that a person could satisfy the competent English criterion if, relevantly, he or she had achieved the required test scores “in a test conducted not more than 2 years before the day on which the application was lodged”. The High Court construed these words to mean that the test scores could be obtained as early as two years before the visa application was lodged, and at any time after until the visa application was decided.
Regulation 1.15C, as amended by the Amending Regulation, was re-worded to provide that the relevant test results may satisfy regulation 1.15C only if they are obtained within the period of two years immediately before the visa application was lodged (and hence could not be obtained after the visa application was lodged). In the Minister's submission, the re-worded regulation 1.15C clearly has this effect.
Thus, to satisfy the competent English criterion under paragraph (a) of regulation 1.15C, an applicant must have undertaken the test in the two years before lodging his or her visa application. This was recognised by Judge Lucev in Shafi v Minister for Immigration & Anor[19] when his Honour explained at [22]:
Previously reg.1.15C of the Migration Regulations allowed for an English language test to be taken after a visa application had been lodged (see: Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8; Minister for Immigration & Citizenship v Kamal & Anor (2009) 178 FCR 379; [2009] FCAFC 98). This is no longer the case. The purpose of the new reg.1.15C of the Migration Regulations was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application, being at a time 2 years immediately before the day on which the visa application was made (Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) (Cth)."
[19] [2014] FCCA 577 (Shafi).
The issue as to the proper construction of the timing requirement imposed by the amended version of regulation 1.15C has now come before the Federal Court, sitting on appeal from this Court, on several occasions. On each occasion the construction according with the purpose of the amendment, articulated by Judge Lucev in Shafi, has been endorsed. Thus, in Singh v Minister for Immigration,[20] Barker J said the following:
[20] [2014] FCA 185 (Singh).
[6] As to the IELTS ground of review, his Honour [Judge Lucev at first instance] dealt with this on the basis that the IELTS test that Mr Singh relied upon was dated 23 February 2013 and therefore irrelevant under the Regulations because under the Regulations the test result must have been achieved in the two years immediately before the day on which the visa application was made. Accordingly, his Honour considered no jurisdictional error could be established on the part of the MRT, or the delegate.
…
[12] As his Honour noted, at [12], the purpose of the amendment to the Regulations was to clarify the timeframe within which an English language test must have been conducted for the purpose of a visa application, following the decision of the High Court of Australia in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 in which it was held that an earlier version of reg 1.15C allowed for a test to be taken after a visa application had been lodged.
…
[15] The requirement under the current applicable Regulations is that an applicant for such a visa demonstrates he or she has competent English. To do this, the Regulations require an IELTS score of at least 6 for each of the four components of speaking, reading, writing and listening: reg 1.15C(a) and Legislative Instrument IMMI12/018. Unless that can be done a visa must be refused.
[16] The fact that Mr Singh may have since obtained an IELTS score that meets the regulatory requirements is irrelevant, in circumstances where the Regulations also require, as the primary judge in the Court below emphasised, that the score must have been achieved in a test taken “in the two years immediately before the day on which the application was made”.
[17] As the primary judge pointed out, only a test undertaken prior to 19 October 2011 could have been relied upon by Mr Singh to establish that he had “competent English”. His IELTS test of 23 February 2013, which he relied upon, therefore was irrelevant to the administration of the Act and Regulations in this instance.
The construction endorsed by Barker J in Singh has subsequently been applied by the Federal Court in Ajaya v Minister for Immigration[21] and Patel v Minister for Immigration.[22]
[21] [2014] FCA 718 at [28] (McKerracher J).
[22] [2014] FCA 823 at [30] (Robertson J).
It follows that the Tribunal correctly construed the relevant aspect of regulation 1.15C.
In the course of oral argument today I asked Mr Kaushal if his circumstances had changed. In particular, has he succeeded in achieving a passing score in an IELTS test. I noted in that regard that he had told the Tribunal at its hearing that he had not at that time been able to do so. He confirmed that the position has not changed. I asked the solicitor for the Minister whether it was obvious from subparagraph 1.15C(a)(iii) of the Regulations that the score specified in the instrument must be achieved in the same test as is referred to in subparagraphs (i) and (ii). He conceded that because of the absence of the words “in that test” or “in the test” from subparagraph (iii) there might be an issue for the Court to consider, but this case is not an appropriate vehicle for that consideration, given that in Mr Kaushal’s circumstances, whatever is the correct interpretation, it could not have made any different to him.
I have concluded in this case that the decision of the Tribunal is free from jurisdictional error.
I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $4,500. Mr Kaushal indicated he might require time to pay, but he did not oppose an order for costs in principle. I will not require payment by any particular time.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 December 2014
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