Khan v Minister for Immigration

[2018] FCCA 2854

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2854

Catchwords:
MIGRATION – Application for judicial review – skilled visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.317
Migration Regulations 1994 (Cth)¸ cl.484.212

Applicant: KHURRAM SHAHZAD KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1021 of 2017

Judgment of: Judge Riethmuller

Hearing date: 24 August 2018

Date of Last Submission: 24 August 2018

Delivered at: Melbourne

Delivered on: 24 August 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The application filed 28 April 2017 be dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1021 of 2017

KHURRAM SHAHZAD KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 28 April 2017.  The decision affirmed a decision of a Delegate not to grant the applicant a Skilled Provisional (Class VC) visa.

2. The applicant is a citizen of Pakistan, who applied for the visa on

   
   

   14 September 2016.  The delegate refused the grant of the visa on

   
   

   11 November 2016 on the basis that the applicant had not complied with cl.484.212 of the Migration Regulations 1994 (“the Regulations”), namely, that he did not satisfy the English language requirements.

3. The requirements are not easily identified on the face of the documents.  That is, there is nothing on the electronic form to indicate the actual nature of the requirements, other than the fact that a requirement is in place to have taken the test within the three years before applying for the visa.

4. Regulation 485.212 only provides:

   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.

5. The regulation refers to ‘a legislative instrument’.  The legislative instrument ultimately provides for the minimum scores, for the particular type of test that the applicant utilised, of 36.  That legislative instrument seems to be IMMI15/062.  Fortunately, the instrument, or an extract thereof, has been provided to the Court by the Minister.

6. The test that the applicant undertook, the PTE test, is one in which he obtained an overall score of 51: see Court Book (‘CB’) p.33. Unfortunately for the applicant, whilst his overall score was above the minimum requirement, one of the four facets of the score, the speaking facet, was a score of only 35. The minimum for that facet required by the legislative instrument promulgated in accordance with the Regulations that was made in accordance with the provisions of the legislation was for a speaking score above 35. In substance, then, for the sake of one point out of 100, in one of the four categories, the applicant’s test score was below the minimum required.

7. The applicant was not made aware of this until after the delegate’s decision, at which point he attempted to have a review of his PTE score, although he was out of time to do so: see CB p.63.  The applicant then undertook an IELTS test (which is the more commonly used form of English test).  The applicant’s IELTS scores, if they were able to be relied upon by him, were sufficient for him to obtain the visa.  Unfortunately for the applicant, his IELTS scores were not obtained until after he had applied for the visa in question.

8. The applicant appeared before the Tribunal, who explained that, as the applicant required the minimum test scores prior to lodging the visa application, that it was not a valid application, or at least not an application that could be allowed.

9. Adding to the pathos of the particular circumstances of the applicant is his submission that he suffers a speech impediment, which may well have affected his test results, particularly on the speaking part of the test, as evidenced by a letter from a doctor: see CB p.62.

10. The Tribunal did provide time for the applicant to seek out the review by the PTE organisation, who refused to do so because he had missed the time limit with PTE.

Tribunal findings

1. The Tribunal made formal findings at [14] as follows:

   14. The tribunal therefore finds that:

   ·   The applicant applied for this visa on 14 September 2016.

   ·   He does not, and did not at the time, hold a current passport for the USA, UK, Canada, New Zealand or the Republic of Ireland.

   ·   His visa application was accompanied by evidence that he had undertaken a PTE test within the three years before the day on which the application was made however he did not achieve the specified score in that test: (cl.485.212(a) and IMMI 15/062).

   ·   Although the applicant provided evidence that, on 19 November 2016, he undertook a specified English language test (IELTS) and achieved the specified score, there is no evidence that he had achieved the specified score in a specified English test within three years before the day on which the visa application was made.

Applicant’s grounds

1. The applicant applies on the following grounds:

   1. My Skilled (Provisional) (Class VC) visa was refused due to not satisfying the cl.485.212 which states that my score in English test was not accepted as in speaking I lacked just one point; my medical were not taken into consideration given to the Migration Review Tribunal. I have disability in speaking, hence I struggles with PTE but all my medical documentation was discarded.

   2. I wish to lodge judicial review and get the evidence re-examined by the judicial review authority so that I can get a fair decision on the refusal of my visa application.

   3. I have studied hard in Australia since arrival: Masters in Information Technology; but till date due to my medical issue, I couldn’t speak properly; but this fact was not considered by the Migration review Tribunal.

Ground One

1. The first ground complains that the Tribunal did not take into account his medical evidence when considering his test scores.  It seems to me that, the way in which cl.485.212 is worded, it is not open to the Tribunal to accept a lesser score. Even if there may be a proper explanation for why a lesser score should be considered to be, in substance, a sufficient capacity in English language speaking as a greater score (for example, in this case, where the person suffers a speech impediment). 

2. For this reason, I am not persuaded that ground 1 can succeed.

Ground Two

1. Ground 2 seeks that the evidence be re-examined in the judicial review proceedings.  It is not open for the applicant to seek to have a merits review in this Court, but only for him to argue that there is a jurisdictional error. 

2. There does not appear to be a jurisdictional error in this case.

Ground Three

1. The third ground articulates that he has studied hard in Australia since his arrival, and attained a Master’s degree in Information Technology, and that this technical problem with his scores and application could well result in him not being able to obtain a skilled visa in Australia.

2. The pathos of his case is apparent. However, on the current framing of the Regulations, it is not open to this Court to determine that the decision should be set aside. Even if it was, the applicant continues to confront the same problem, that he did not have a test score sufficient at the time of lodging his application.

3. During the course of argument, I inquired of the representative for the Minister as to whether or not the online forms provide either an information page or pop-up box to warn people of the minimum scores when they are filling in that part of the electronic application form that seeks the name of the test, the date of the test, and the test reference number.  Indeed, it would be remarkably simple for programmers to also add a box asking the test score, and a very small test routine within the form to ensure that the score was above the minimum required.  Such forms are ubiquitous now on the internet, in all manner of areas that we utilise all the time.  The question was studiously avoided by the Minister’s representative.

4. The nature of the form cannot, of course, change the legal requirement, although it does raise questions about the reasonableness of the applicant’s position and the nature of the technical defect that has arisen.

5. In the circumstances of this case, I therefore dismiss the applicant’s application, but suggest that the applicant consider making an application to the Minister under the Minister’s general discretion, pursuant to s.317 of the Migration Act 1958.  I note, in suggesting this to the applicant, that I make no formal recommendation to the Minister, as that section operates purely within the discretion of the Minister, and it is not appropriate for the Court to make formal recommendations, one way or the other, to the Minister in that regard.

Costs

1. In this application, the Minister seeks costs. It seems to me that this is a most unfortunate situation that an applicant has been left technically unable to obtain a visa that, on the substance of his case, he would be entitled to, having faithfully completed his education when in Australia and obtained a quality qualification and employment.

2. There is no evidence to suggest that the applicant was given reasonable warning in the electronic form of the difficulty that he may confront in this regard.  It seems to me, on the material and the presentation of the applicant, that, had he had this matter brought to his attention during the course of filling in the form, that he would have fixed the problem before formally lodging the form.

3. In these circumstances, I am not persuaded that this is a case where a costs order is appropriate. 

4. I therefore make no order as to costs on the present application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 4 October 2018