Khan v Minister for Home Affairs

[2019] FCCA 1076

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1076

Catchwords:
MIGRATION – Skills (Provisional) (Class VC) visa – applicant holds two Master’s qualifications and obtained English test results after filing of application –  application for judicial review of Tribunal decision – show cause hearing – criterion for English test results not satisfied because results post-dated application for visa – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.65, 351, 474, 476

Migration Regulations 1994 (Cth), Sch.2 cl.485.212

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Kaur v Minister for Immigration and Border Protection [2018] FCA 1765

Kaur v Minister for Immigration and Border Protection [2019] HCASL 4

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Khan v Minister for Immigration and Border Protection [2018] HCASL 278

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

(2004) 78 ALJR 992

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: AKRAM KHAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1431 of 2017

Judgment of: Judge A Kelly

Hearing date: 17 April 2019

Date of Last Submission: 17 April 2019

Delivered at: Melbourne

Delivered on: 26 April 2019

REPRESENTATION

The Applicant: In person

Solicitor advocate for the Respondents: Ms Roberts

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the First Respondent be amended in the title of the proceeding to the Minister for Home Affairs.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1431 of 2017

AKRAM KHAN

Applicant

And

MINISTER FOR HOME AFFAIRS & ANOR

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 4 July 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 June 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Skills (Provisional) (Class VC) visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicant who holds two tertiary qualifications appeared without any need for an interpreter. Both his demeanour and submissions were impressive. He has been refused a visa by reason that his English test results were obtained after, rather than before, the date on which he lodged his visa application. While those circumstances dictate that the Minister was obliged to refuse the visa application, the present case is one in which the applicant ought seek the exercise of ministerial discretion pursuant to s 351 of the Act.

Background

1. The applicant, an Indian national aged 33 years, first applied for a Skilled (Provisional) (Class VC) visa on 30 August 2016.  In the body of his application he confirmed that he had not undertaken an English test within the period of 36 months before the lodgement of that application.

2. At the time of the application, the criteria for the grant of the relevant visa in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) included cl 485.212 which required the application to be accompanied by evidence that the applicant:

   (a)had undertaken a specified language test as specified by the Minister in a legislative instrument made for cl 485.212(a)(i);

   (b)had achieved, within the specified period, the score in that language test in accordance with the relevant requirements; or

   (c)held a passport of a specified type.

3. On 22 September 2016, the applicant undertook an English test and achieved a test result of 61, including skills assessments of 78 in both grammar and oral fluency, and 90 for written discourse (Test Results).

Tribunal decision

1. On 25 October 2016, a delegate of the Minister refused to grant the visa application.  The delegate found that the applicant had not provided evidence that he held a specified passport or that he had undertaken a specified English test within the period of 36 months prior to the visa application being lodged. 

2. The delegate referred to the applicant’s Test Results but concluded that they could not be used to satisfy the English requirement of cl 485.212.

3. On 14 November 2016, the applicant applied for review of the delegate’s decision, and on 28 March 2017 the applicant was invited to a hearing scheduled for 19 April 2017.  The invitation requested that the applicant provide all documents he intended to rely on so as to establish that he met the criteria for the grant of the visa.  In particular, it identified that, to  demonstrate the applicant met the English language criteria, the applicant needed to provide evidence:

   To show you meet the English language standard, you must hold a valid passport issued by a specified country (UK, USA, Canada, New Zealand or Republic of Ireland), or have achieved a specified score in a specified language test that was undertaken within 3 years before the day on which the visa application was made.  

4. On 31 March 2017, the applicant provided documents demonstrating that on 25 August 2016, he had booked a Pearson Test of English (PTE) test for 22 September 2016 and also provided those Test Results.

5. The applicant attended the scheduled hearing on 19 April 2017.  At the hearing the applicant stated that he had completed two Master’s degrees in Nursing and Health Administration.  He also stated that he had undertaken an IELTS test in the three years prior to his application, but had not been able to obtain the results.  At the conclusion of the hearing the Tribunal allowed the applicant until 5 May 2017 to provide evidence of his IELTS test results. No further evidence was provided.

6. On 13 June 2017, the Tribunal affirmed the delegate’s decision to refuse the applicant’s visa application and provided a written statement of reasons (Reasons) for that decision.

7. The Tribunal correctly identified that the issue in the case was whether the applicant satisfied cl 485.212 and that the relevant instrument was IMMI 15/062: Reasons, [6]-[7].

8. The Tribunal found that, as the applicant did not hold a passport of a specified type as required by cl 485.212(b), the applicant was required to meet cl 485.212(a): Reasons, [10].

9. The Tribunal noted that, on the basis that the applicant had declared in his visa application that he had not taken an English language test in the previous 36 months and did not hold a specified passport, the delegate was not satisfied he met the requirements of par 485.212(a) or (b): Reasons, [11].  The Tribunal accepted that prior to the hearing, the applicant had provided documents showing he had booked a PTE test on 25 August 2016 scheduled for 22 September 2016 and that the Test Results confirmed he had achieved the requisite score: Reasons, [12].

10. The Tribunal also considered the applicant’s evidence that he had completed two Master’s degrees and undertaken an IELTS test in the three years prior to his application but had not been able to obtain the test results.  The Tribunal noted the applicant had provided copies of emails between himself and RMIT, where he sat the IELTS test, but the emails stated the results were unavailable because they were only valid for two years: Reasons, [13].  On the basis of this evidence, the Tribunal queried why the applicant had not answered “Yes” on his application about undertaking an English language test and the applicant explained it was because he did not have a copy of the results: Reasons, [14].  The Tribunal did not question the veracity of that answer.

11. In the course of the hearing, the Tribunal had explained the requirements of cll 485.212(a)-(b) and indicated it had allowed the applicant further time to obtain his IELTS results, which he had not provided: Reasons, [15].  The Tribunal stated at [16]:

    While it is clear that the applicant has high level English language competency, as evidenced by his completion of two master’s degrees, the Tribunal does not have any discretion in this regard.

12. The Tribunal also accepted that the applicant had undertaken a specified English language test and achieved the specified score, but that he had done so on 22 September 2016; after his visa application was lodged.

13. The Tribunal found that since the applicant had not provided evidence with his application that he had completed an English test and achieved the specified score within three years before the date on which he had made his application and had not held a current passport of the type specified by the instrument, he did not meet the requirements of cll 485.212(a)-(b) of the Regulations: Reasons, [17]-[18]. The Tribunal expressed sympathy for the applicant’s circumstances but noted it did not have any discretion to waive the requirement: Reasons, [19].

14. On 4 July 2017, the applicant filed his application for judicial review, doing so as a self-represented litigant.  The sole ground of review contained in the application reads:

    The member had made an error in establishing that there was a ground for refusal. It was not as I heard, the PTE English result would have been okay to satisfy the English requirement. If this application is not accepted than I would deny the procedural fairness, and I request that the court accept on the grounds of fair justice as my whole situation depends on the decision.

15. On 7 March 2018, the applicant was given leave to file and serve any amended application, further affidavit evidence and written submissions by 19 March 2019.  The applicant has not done so.

Judicial Review

1. If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review.  A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]  Whether it should do so is a separate issue.

   [1] Act, s 474(2).

   [2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3] Act, s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. The latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[5] 

   [5]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

4. Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[6]  If satisfied that the criteria for a visa are satisfied, the application must be granted.[7] 

   [6]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].

   [7] Act, s 65(1)(a).

5. In Kaur v Minister for Immigration and Border Protection [2018] FCA 1765, Charlesworth J held that:

   Properly construed, cl 485.212 required that evidence of Ms Kaur’s English competency, as specified in cl 485.212(a), be provided at the time of the visa application. The test passed by Ms Kaur was undertaken after her visa application was made. This is not a case in which the required competency for English had been achieved before the visa application was made, but evidence of that achievement provided afterward or even shortly afterward. It is not a case of asking whether or not there was such a short period of time between the visa application being made and the provision of evidence of the competency having been achieved that the application could be said to have “accompanied” the application: cf Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562.

6. In holding that the Tribunal’s decision was not affected by jurisdictional error, her Honour had regard to the Full Court’s decision in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 which rejected a submission that the Tribunal had a residual discretion to receive and consider evidence, relevantly, that a visa applicant had later satisfied the English test requirements for the visa.

7. The High Court has refused applications for leave to appeal both the decision in Khan and Kaur respectively: see Khan v Minister for Immigration and Border Protection [2018] HCASL 278 (Bell and Nettle JJ); Kaur v Minister for Immigration and Border Protection [2019] HCASL 4 (Keane and Edelman JJ). The reasoning in those decisions is decisive of the present application.

Conclusion

1. The application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 26 April 2019.