KHAN v Minister for Immigration

[2014] FCCA 300

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 300

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision – “competent English”.

Legislation:  

Migration Act 1958, s.474

Migration Regulations 1994, reg.1.15C, cl.485.215 of sch.2
Instrument number IMMI 12/018 “Language Tests, Scores and Passports”, select legislative instrument F2012L01287

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

Applicant: MOHSIN KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1599 of 2013

Judgment of: Judge Cameron

Hearing date: 14 February 2014

Date of Last Submission: 14 February 2014

Delivered at: Sydney

Delivered on: 14 February 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr M.J. Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1599 of 2013

MOHSIN KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of India, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 29 June 2012. On 6 December 2012 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy reg.1.15C of the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

Delegate’s decision

1. The criteria for the grant of a subclass 485 visa were set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.485.215 which required that an applicant for a subclass 485 visa have “competent English”.

2. “Competent English” has the meaning given to it by reg.1.15C. At the time the applicant lodged his application reg.1.15C provided:

   If a person applies for a General Skilled Migration visa, the person hascompetent Englishif the person:

   (a)     satisfies the Minister that:

   (ii)    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

   (ii)    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.

Background facts

Primary application

1. As noted earlier, the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 29 June 2012.  In the application form the applicant answered “No” to the question “Have you undertaken an English test within the last 24 months?”.

2. On 6 December 2012 the delegate refused to grant the applicant a visa because he was not satisfied that the applicant had undertaken a language test in the two years immediately before the day on which the application was made, as prescribed by reg.1.15C(a)(ii). As the applicant also did not provide evidence that he satisfied reg.1.15C(b), the delegate was therefore not satisfied that the applicant met the requirements of reg.1.15C “in its entirety”.

Review application

1. On 21 December 2012 the applicant applied to the Tribunal for a review of the delegate’s decision. On 15 April 2013 the Tribunal wrote to the applicant and requested that he provide evidence of competent English, as defined by reg.1.15C(a), on or before the hearing date, 13 May 2013. No such evidence was provided before the hearing date or at the hearing and the applicant stated that he had no evidence of competent English.

The Tribunal’s decision and reasons

1. The Tribunal found that the applicant did not meet the requirements of cl.485.215 of sch.2 to the Regulations. In this connection, the Tribunal found that there was no evidence before it that the applicant had competent English as defined by reg.1.15C. Accordingly, it found that the applicant did not have competent English as defined by that regulation.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal made a mistake that the Tribunal did not allow time to the applicant to provide evidence of competent English.  The applicant asked additional time to the Tribunal but the Tribunal did not allow that.  The Tribunal did not mention any relevant act which does allow the Tribunal not to allow time.  The Tribunal did not allow sufficient time for the hearing.  The Tribunal made a decision within very short time which was unfair.  The Tribunal did not consider the applicant’s situation and the Tribunal was not interested to listen to the applicant.  There were other people in the hearing room waiting for the hearing and the Tribunal did same approach to the other review applicant which made this review applicant upset.  The review applicant was convince with the action of the Tribunal that the Tribunal is not there to do justice the Tribunal is there to help the Department of Immigration and Citizenship (DIAC).

   Particulars

   On 15 April 2013, the Tribunal wrote to the applicant and requested that he provide evidence of competent English, as defined in r.1.15C(a), on or before the hearing date.  The requested evidence was not provided to the Tribunal.  The hearing date was 13 May 2013.

   2.The Tribunal made a procedural mistake that the Tribunal relied on the DIAC findings.  The Tribunal rejected the review application on the basis of the Legislative Instrument IMMI12/018 (Instrument) which was signed by the Minister for Immigration and Citizenship on 12 June 012 [sic] and commenced on 1 July 2012 but the applicant applied to the DIAC on 29 June which was before the commencement date of Instrument.

   3.The Tribunal made a mistake and the Tribunal was only interested to reject the review application.  The review application was lodged on 21 December 2012 and the Tribunal rejected the application on 17 June 2013 but the Tribunal’s timeliness of decisions is 350 calendar days from the date of lodgement.  The processing time for skill linked review application average and median are 252 and 239 calendar days from the lodgement date.  So it is clear that the Tribunal wanted to reject the review application quickly without listening to the reiveiwaplicnt [sic].  The Tribunal did not allow time to give to it English test result, the Tribunal did not allow time for the hearing and the hearing was conducted unfairly.

   4.The Tribunal made a procedural mistake that the Tribunal did not review the review application properly and the Tribunal was engaged to find out irrelevant Instrument and regulation to reject the applicant’s case.

Ground 1

1. The first ground of the application alleged that the Tribunal refused a request by the applicant for more time to provide evidence of competent English.  At the hearing of this application, the applicant said that he had made that request at the Tribunal hearing.  Although there is no record in the Tribunal’s reasons for decision of such a request having been made, I am prepared to accept that it was.  However, given the circumstances, the Tribunal’s refusal of that request has not been demonstrated to have amounted to a miscarriage of discretion.  Given the visa criterion which the applicant had not satisfied and the applicant’s concessions at the hearing of this application that he had not sat an English language test in the two years before making his visa application and that the Tribunal’s decision was correct, nothing could have been gained by giving the applicant additional time to prove that he had competent English. 

2. Other allegations were made in the first ground of the application but, given that the applicant had conceded in his visa application that he had not sat an English test in the preceding twenty-four months, none of them has any particular substance or relevance. Even if they were made out, in the absence of evidence that the applicant satisfied cl.484.215 of sch.2 to the Regulations, and there was none before the Tribunal or the Court, it would be futile to remit the matter for rehearing.

Ground 2

1. The second ground of the application alleged that the Tribunal relied on a legislative instrument which was not in force at the time of the applicant’s application.  The instrument in question was IMMI 12/018, select legislative instrument F2012L01287, which commenced operation on 1 July 2012.  Paragraph 2 of that instrument expressly specified tests, test scores and passports for applications lodged before that date.  Therefore, the anachronism alleged by the applicant is not made out. 

2. In any event, as pointed out by the Minister in his written submissions, the relevant question was whether the applicant had demonstrated “competent English”, something he could not do if he had not sat an English test at all, regardless of which test was prescribed by whatever instrument.

Ground 3

1. There were two elements to the third ground of review.  The first was that the Tribunal did not conduct a bona fide review and the second was that the Tribunal denied the applicant an opportunity to submit an English language test result. 

2. Most of the second element of this ground has already been addressed in the context of the first ground of the application.  To the extent that it has not, it raises no issues different from the first element of this ground of the application, namely, that the Tribunal did not conduct a bona fide review.  In that regard, the applicant has not demonstrated why a simple matter such as his could not properly have been dealt with expeditiously by the Tribunal.  His review involved only one issue on which he adduced no evidence, notwithstanding the Tribunal’s letter to him of 15 April 2013 inviting him to submit some.  Moreover, more than a month passed between the applicant’s appearance before the Tribunal and its decision made on 17 June 2013, a period which, in the circumstances, does not suggest the excessive haste of which the applicant accuses the Tribunal.

Ground 4

1. The fourth ground of the application made a further allegation of want of good faith, but this one was based on an assertion that the Tribunal had not been open to persuasion and had resolved to find adversely to the applicant.  That is a serious allegation and one which is, in substance, an allegation of actual bias.  Such allegations must be clearly made out and no evidence has been adduced which would do that. 

Conclusion

1. For these reasons, the grounds set out in the application are not made out and, consequently, the application must be dismissed. 

2. However, before doing so, I should record in these reasons that I was impressed by the applicant’s presentation of his case at the hearing of this application, in so far as it demonstrated what appeared to be a clear and competent understanding of the English language.  It seems to me that if the applicant had sat an English language test before he lodged his visa application, he would almost certainly have passed it.  Consequently, should the applicant make a further application for a visa, I would encourage the Minister to show some flexibility in the treatment of any such application. 

3. The application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  21 February 2014