Khumalo v Minister for Immigration
[2016] FCCA 1204
•20 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHUMALO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1204 |
| Catchwords: MIGRATION – Business visa – refusal – review of Migration Review Tribunal decision. WORDS AND PHRASES – Secondary education institution. |
| Legislation: Migration Act 1958, ss.360, 474 Migration Regulations 1994, cl.457.223 of sch.2 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | NQOBILE REEVIS KHUMALO |
| Second Applicant: | XHOLANI CAROLINE KHUMALO |
| Third Applicant: | CUTIE ZINHLE KHUMALO |
| Fourth Applicant: | GEORGEOUS NTOMBENHE KHUMALO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1105 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 May 2016 |
| Date of Last Submission: | 17 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2016 |
REPRESENTATION
| Solicitor for the Applicants: | Mr N. Dobbie of Dobbie and Devine |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1105 of 2014
| NQOBILE REEVIS KHUMALO |
First Applicant
| XHOLANI CAROLINE KHUMALO |
Second Applicant
| CUTIE ZINHLE KHUMALO |
Third Applicant
| GEORGEOUS NTOMBENHE KHUMALO |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 7 November 2012 the applicants, who are citizens of South Africa, applied for Temporary Business Entry (Class UC) Business (Long Stay) subclass 457 visas. The first applicant was the primary visa applicant on the application while his wife, the second applicant, and their children, the third and fourth applicants, were included in the application as members of the first applicant’s family unit.
The applicants’ application for subclass 457 visas was refused by a delegate of the first respondent (“Minister”). The delegate found that the first applicant had not provided evidence of his English language proficiency and did not therefore satisfy cl.457.223(4) of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LAW
The criteria for the grant of a subclass 457 visa are set out in pt.457 of sch.2 to the Regulations. In summary, unless the first applicant was an “exempt applicant” he would not qualify for a subclass 457 visa if he did not pass an English language skills test at a particular level, relevantly for the purposes of this case, being an International English Language Testing System (“IELTS”) test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening.
At all relevant times “exempt applicant” was defined in cl.457.223(11) as:
… an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
At the time of the Tribunal’s decision the instrument in writing specified by the Minister for the purposes of cl.457.223 was IMMI 14/009, entitled Tests, Scores, Period, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas (Legislative Instrument F2014L00327), which came into effect on 22 March 2014. Relevantly for this case, item 7(b) of IMMI 14/009 specified the following class of applicants to be an “exempt applicant”:
(b) applicants who:
(i) …
(ii) have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English; …
That provision was no different from the equivalent provision in the instrument which had been operative at the time of the Tribunal’s hearing, IMMI 13/099, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas (Legislative Instrument F2013L01462).
The English language skills requirement was a time of decision criterion and was found in cl.457.223(4). At the time of application and at the time of the delegate’s decision on 3 January 2013, it relevantly provided:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
…
(eb) if:
(i) the applicant is not an exempt applicant;
(ii) …
(iii) …
the applicant has a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening; …
Clause 457.223(4)(eb) was amended on 22 March 2014 by the Migration Amendment (2014 Measures No.1) Regulation 2014 and in its amended form applied to applications made but not finally determined before that date: item 6 of sch.5 and item 1 of sch.6. Consequently, it applied to the applicants’ application at the time of the Tribunal’s decision on 28 March 2014. It relevantly provided:
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
…
(eb) if:
(i) the applicant is not an exempt applicant;
(ii) …
(iii) …
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; …
For the purposes of subparagraphs (iv) and (v) of cl.457.223(4)(eb), items 2, 3 and 4 of IMMI 14/009 provided:
2. SPECIFY for the purposes of subparagraph 457.223(4)(eb)(iv) of Schedule 2 to the Regulations, the following language tests:
(a) International English Language Testing System (IELTS test); and
(b) Occupational English Test (OET).
3. SPECIFY for the purposes of subparagraph 457.223(4)(eb)(v) the following scores:
(a) a score of at least “B” in each of the four components of an OET; or
(b) an IELTS test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening.
4. SPECIFY for the purposes of paragraph 457.223(4)(eb), the period of three years from the date of the visa application.
BACKGROUND FACTS
Proceedings before the department
The applicants’ application for subclass 457 visas was made on the basis of the first applicant’s proposed employment with Hurricanes Corporate Services Pty Ltd in the occupation of Cook at an annual salary of $74,308.
On 8 November 2012 the applicants wrote to the Minister’s department (“Department”) and requested a waiver of “the requirement for the [first] applicant to undergo an IELTS test” on the basis that he had worked in Australia in his nominated occupation for more than ten years. The applicants were advised on 22 November 2012 that the delegate had no discretion to waive the IELTS requirements and were referred to earlier correspondence from the Department dated 12 November 2012 in which they were asked to provide evidence of the first applicant’s English language proficiency within twenty-eight days.
The delegate of the Minister refused the applicants’ application on 3 January 2013. In reaching that decision, the delegate relevantly found that the first applicant was not an exempt applicant for the purposes of cl.457.223(4)(eb)(i) and also did not satisfy cl.457.223(4)(eb)(ii) or (iii) and, as a consequence, was required to provide evidence of his English language proficiency. As no such evidence had been submitted to the Department, the delegate found that the first applicant had not achieved an IELTS test score of at least 5.0 in each of the four test components of speaking, reading, writing and listening. Consequently, the delegate found that he did not satisfy cl.457.223(4)(eb) of the Regulations.
Proceedings before the Tribunal
The first applicant appeared before the Tribunal on 28 February 2014. According to the Tribunal, at that hearing the first applicant claimed that he had studied up to year seven but had not completed five years of consecutive study in English. He was due to sit an IELTS test on 8 March 2014.
On 28 March 2014 the Tribunal affirmed the decision of the delegate to not grant the applicants subclass 457 visas. Like the delegate, the Tribunal found that the first applicant was not an exempt applicant for the purposes of cl.457.223(4)(eb)(i). It found that he had not completed at least five consecutive years of full-time study at a secondary or higher education institution where the instruction was delivered in English. The Tribunal therefore found that the first applicant was not in the class of applicants specified in item 7(b) of IMMI 14/009.
The Tribunal also found that subparagraphs (ii) and (iii) of cl.457.223(4)(eb) did not apply to the first applicant.
Because subparagraphs (i), (ii) and (iii) of cl.457.223(4)(eb) did not apply to him, the first applicant was required to provide evidence of his English language proficiency in accordance with subparagraphs (iv) and (v). The Tribunal noted in this regard that the first applicant had provided IELTS test results for a test which he sat on 8 March 2014 and that the scores he achieved were less than the scores specified in item 3(b) of IMMI 14/009. The Tribunal therefore found that the first applicant did not satisfy the English language requirements in cl.457.223(4)(eb) and so did not satisfy cl.457.223(4).
PROCEEDINGS IN THIS COURT
In support of their allegations, the applicants relied on a transcript of the Tribunal hearing and relevantly the following exchanges:
Q.23… Have you had at least five years of study in English, have you done at least five years of continuous study in English?
A.Here?
Q.24Well, it can be here or in, you’re from South Africa?
A.Yes.
Q.25So or South Africa. So have you done - - -
A.Yes.
Q.26So you have done - - -
A.Yeah, did seven ah, seven years at school.
Q.27In English?
A.(not transcribable) subject English (not transcribable)
Q.28O.K. Well, that, that - - -
A.That’s based on English.
Q.29Sorry?
A.Based on English, I’m talking about school.
Q.30Yeah. O.K. Let’s look at that in some detail then. So there is an exemption that you have completed at least, if you have completed at least five years’ consecutive study, of full-time study in a secondary and/or higher education institution where the instruction was delivered in English. So there’s [sic] a few requirements. So it has to be consecutive, so you can’t have any breaks in between, has to be full-time study, and it can be in secondary or higher education, and the instruction has to be delivered in English. So I’ll just get some information about your study history then. So you, you went to school in South Africa?
A.Yes.
Q.31So you completed high school?
A.No, I, I finish at seventh year.
Q.32Finished in year 7. O.K. And what did you do after that?
A.I start working.
Q.33Oh, O.K. You, so you were working in South Africa before you came here?
A.Yes.
Q.34Did you do any further study in South Africa?
A.No, except for my IELTS test I think.
Q.35Except for what, sorry?
A.For IELTS test when I was coming here.
Q.36O.K. So no full-time study?
A.No.
Q.37And did you do any study after you came to Australia? So if you’ve done the Certificate III in hospitality.
A.Yeah, yes.
Q.38How long was that for?
A.I think about three years was doing it.
Q.39Three years. O.K. Was that part-time or full-time?
A.Ah, that was teaching us come sometimes and we have to (not transcribable) do it and then she come after two months and do it (not transcribable)
Q.40Ah hmm. So it wasn’t on a full, was it on a full-time, was it a full-time course or was it a part-time?
A.It seems like full-time.
Q.41Full-time. O.K. You came out on a 457 visa, so you weren’t here on student visa. O.K. So that was for about three years, was it?
A.Yes.
Q.42So I’m just thinking, if you were here on a 457 you would have been working for your - - -
Applicants’
representative: I think it was training that they do.
Q.43Oh, O.K.
A.(not transcribable)
Q.44O.K.
Applicants’
representative: It’s company training, it’s not actual study.
Q.45O.K. Yeah. And is that the only course you’ve done here?
A.Yes.
Q.46O.K. O.K. So it seems from that evidence that you haven’t had five years consecutive study. You finished high school but then you had a break, you were working not studying and then you did some training here for three years. So I can’t see that it was five years’ consecutive study. It seems to me that there was a bit of a gap in between. So it seems that I don’t believe you fall within that exemption. …
Ground 1
Ground one of the applicants’ amended application was pleaded as follows:
1.The Tribunal failed to ask the right question or failed to complete its core function of review
Particulars
(a)The Tribunal failed to ask the right question relating to whether the First Applicant was an exempt applicant for the purposes of subclause 457.223(4)(eb)(i):
(i) Subclause 457.223(4)(eb) relevantly provided:
…
(ii) The First Applicant sought to rely on being an exempt applicant, as provided by subclause 457.223(4)(eb)(i). Subclause 457.223(11) relevantly provided:
…
(iii) The relevant instrument for the purposes of subclause 457.223(11) is IMMI 14/009, F2014L00327. That instrument, introduced on 21 March 2014 and in effect from 22 March 2014, relevantly provided at Item 7(b):
…
(iv) The Tribunal was required to ask whether the First Applicant’s school, where he studied up to Year 7, was a secondary education institution. Its failure to ask that question was a jurisdictional error, as it could not determine whether the First Applicant’s study was at a secondary education institution, for the purposes of Item 7(b) above, such that he might be an exempt applicant.
(b)The Tribunal failed to conduct the review required by not asking whether the school where the First Applicant completed up to Year 7 was a secondary education institution before finding that the First Applicant was not an exempt applicant.
(c)[Not pressed]
Referring in particular to question 30 in the transcript, the applicants submitted that the Tribunal had concerned itself with whether the five years of full-time study which the first applicant said he had undertaken had been at secondary level, not whether it had been undertaken at a secondary education institution, noting that the evidence was that the first applicant had completed his schooling at year seven level and that the Tribunal had accepted that he had attended high school. The implication of the applicants’ argument was that the Tribunal must have concluded that, although the first applicant had attended high school, the five years of study which he had undertaken had not been at secondary level and that he did not meet the criterion for that reason.
The Minister submitted that the applicants’ argument was premised on construing “secondary and/or higher education institution” as an institution that might offer primary education, arguing that it would only be on that construction that one would be required to ask whether an institution was a secondary education institution. He submitted:
15.The Court should not accept that construction. The ordinary meaning of a “secondary education institution” is an institution that offers a secondary, as opposed to primary, education to students. That a secondary institution may also offer primary education does not alter that ordinary meaning. Particularly when the reference to secondary education institution in item 7(b) is read as the composite phrase, “secondary and/or higher education institution”, the Item is directed at the level of education undertaken. It does not follow from the fact that the Item focuses on the level of education by reference to the institution that it should include a level of education for which it does not make express provision, namely, primary education.
In summary, the applicants’ argument was that a secondary education institution could provide primary school tuition and still be a secondary education institution with the result that it did not matter what level of education the first applicant’s school had provided to him as long as it had been in English and of at least five years’ duration. In summary, the Minister’s argument was that, in context, the term “secondary education institution” meant an institution which provided education only at a secondary level.
The context in which the expression “secondary education institution” appears is one concerned with exempting a visa applicant from having his or her English language skills tested. That is to say, if an applicant has “completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English” then he or she will not have to achieve, for instance, “an IELTS test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening”. It cannot have been intended that primary level tuition in English would be sufficient to be exempted from the need to demonstrate adequate English language skills. That understanding is reinforced by the fact that the relevant expression is in fact “secondary and/or higher education institution”, which points to the requirement being concerned with higher order English language skills.
In another context the expression in question might mean what the applicants posited in this case. However, in item 7(b)(ii) of IMMI 14/009 it refers to an institution which provides education only at a secondary level. Noting that some schools provide both primary and secondary education, the expression would also extend to a secondary institution within or part of a larger institution.
Ground 2
Ground two of the amended application stated:
2. The Tribunal failed to comply with s.360 of the Act
Particulars
(b)The Tribunal failed to comply with s.360 of the Act by incorrectly stating to the First Applicant that the law required him to show that his study had to be in secondary or higher education, when there was no such requirement in law. The law merely required that he have the requisite period of five consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English.
(i) Section 360 of the Migration Act 1958 (‘the Act’) provided:
…
(ii) By having the First Applicant give evidence and present arguments in relation to that incorrect statement of law meant that the hearing required to be given pursuant to s.360 was not given. That failure constitutes jurisdictional error.
The applicants submitted in connection with this allegation that question 30 of the transcript revealed that the Tribunal had misled the first applicant by saying at its hearing that, relevantly, the issue he had to address was whether his English language education had been at secondary or higher level, rather than in a secondary or higher education institution.
Reading the passage in question fairly, I do not accept that interpretation. The first part of the passage set out the test and then the second set it out again in slightly different words. In context I do not read the second form of expression as being different in import from the first. It should also be noted that the applicants were assisted at the Tribunal hearing by their migration agent. If the Tribunal’s meaning had not been clear the agent could have been expected to raise the matter. Further, it is apparent that the agent shared the Tribunal’s correct understanding of the test because later in the hearing she stated:
Basically we just want to take the opportunity for him to sit the IELTS test …
The agent appears to have been under no misapprehension that the first applicant was an exempt person or to have understood the Tribunal to have been saying what the applicants now contend. I am not of the view that the Tribunal breached s.360 as alleged.
Ground 3
Ground three of the applicants’ amended application was pleaded as follows:
3.The Tribunal failed to consider a claim made by the First Applicant
Particulars
(c)The Tribunal failed to consider a claim made by the First Applicant.
(i) The First Applicant claimed that he had studied in English at school in South Africa. The Tribunal failed to consider that claim.
The applicants submitted in connection with the third ground of the amended application that the transcript of the Tribunal hearing recorded that the first applicant had claimed to have undertaken five continuous years of study in English in South Africa and that the Tribunal had not had regard to that claim, an omission which they said could be inferred from the Tribunal’s statement at para.12 of its reasons:
The applicant confirmed that he had not completed at least 5 years consecutive study in English.
Later, at para.17 of its reasons, the Tribunal also said:
The Tribunal accepts, based on the applicant’s evidence at the hearing, that he has not completed at least 5 consecutive years of full-time study at a secondary or higher education institution where the instruction was delivered in English.
Given what the Tribunal said at its hearing and in para.17 of its reasons, I read the statement quoted from para.12 of those reasons as referring to five consecutive years of full-time study at a secondary or higher education institution. Understood that way, what the Tribunal said in para.12 did not represent a failure to consider the applicants’ claim but a rejection of the proposition that the English language education which the first applicant had undertaken met the requirements of item 7(b)(ii) of IMMI 14/009.
Ground 4
Ground four of the amended application was pleaded as follows:
4.The Tribunal based its decision on a fact that did not exist
Particulars
(a)The Tribunal based its decision on a fact that did not exist.
(i) The Tribunal found that the First Applicant had claimed at hearing that he had not completed at least 5 years consecutive study in English, when no such claim was made by the First Applicant. In fact, his claim was to the contrary.
The reasons given in relation to the third ground of the amended application apply equally well to the fourth ground.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 20 May 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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