Kim v Minister for Immigration

[2017] FCCA 230

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIM & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 230

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal decision – no matter of principle.

Legislation:

Migration Act 1958, ss.474, 477

Migration Regulations 1994, reg.1.15C, cl.885.213 of sch.2
Migration Amendment Regulation 2012 (No.2), items.12, 124 of sch.1, items 26, 29 of sch.2
Migration Amendment Regulations 2011 (No.3), reg.3, item 2 of sch.1

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

First Applicant: GYEONG IN KIM

Second Applicant: NAYOUNG KIM

Third Applicant: NOAH HEEMANG KIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1910 of 2014

Judgment of: Judge Cameron

Hearing dates: 12 December 2016 and 1 February 2017

Date of Last Submission: 1 February 2017

Delivered at: Sydney

Delivered on: 1 February 2017

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms E. Warner Knight of Australian Government Solicitor on 12 December 2016

Ms B. Griffin of Australian Government Solicitor on 1 February 2017

ORDERS

1. The time for the commencement of this proceeding be extended to 9 July 2014.

2. The application be dismissed.

3. The first and second applicants pay the first respondent’s costs fixed in the amount of $800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1910 of 2014

GYEONG IN KIM

First Applicant

NAYOUNG KIM

Second Applicant

NOAH HEEMANG KIM

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

PROCEDURAL HISTORY

1. Today is the resumed hearing of an application to set aside a decision of the second respondent (“Tribunal”) which first came before the Court on 12 December 2016.  On that occasion it became clear that the Court Book had not been provided to the applicants.  Consequently, the matter was stood over to today for the applicants to have an opportunity to consider that document which the Minister’s representatives provided to them at the bar table on that occasion.

2. The application which is presently relevant is the applicants’ application for an extension of the time within which to bring proceedings for judicial review. Such an application was necessary because the applicants’ application for judicial review of the Tribunal’s decision was filed a short time outside the limitation period provided by s.477 of the Migration Act 1958 (“Act”).  On the last occasion, the first applicant explained to the Court why the application had been filed late.  He stated that a person who had been acting as his migration adviser had taken control of the matter and the applicants had, in essence, been unaware of the process which was being undertaken. 

3. Although the first applicant’s account was given from the bar table, the Minister’s representative at the time indicated that she did not wish to cross-examine him.  The first applicant’s account appeared to me to be truthful and genuine.  In my view, the applicants adequately explained why the proceedings were not commenced in time.  Consequently, at the commencement of today’s hearing I found that it was in the interests of the administration of justice that time be extended for the commencement of this proceeding. 

THE ISSUE FOR DETERMINATION

1. The remaining issue before the Court is whether the Tribunal’s decision should be set aside because it is affected by jurisdictional error. It is only when a Tribunal’s decision is affected by jurisdictional error that the Court has power to set it aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

Background facts

1. The first applicant is a citizen of South Korea who applied for a Skilled (Residence) (Class VB) subclass 885 visa on 23 June 2011. His wife and son, who are the second and third applicants, were included in that application as members of his family unit. On 11 February 2014 the first applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.885.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the Tribunal for a review of that departmental decision and on 30 May 2014 the Tribunal affirmed the delegate’s decision.

Relevant legislation

1. The criteria for the grant of a subclass 885 visa were found in pt.885 of sch.2 to the Regulations. Part 885 was omitted from the Regulations on 1 July 2013 but it continued to apply to visa applications made before that date: items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2).

2. One of the criteria which the first applicant had to satisfy was cl.885.213 which required him to have “competent English” at the time he made his application.

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

   1.15C    Competent English

   If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

   (a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii)a score:

   (A)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B)     in a language test specified by the Minister in the instrument; or

   (b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

4. Regulation 1.15C was subsequently amended but the version set out above continued to apply to the first applicant: reg.3 and item 2 of sch.1 to the Migration Amendment Regulations 2011 (No.3) and items 12 and 124 of sch.1 to the Migration Amendment Regulation 2012 (No.2).

Visa application

1. In his application form the first applicant nominated the position of cook.  He indicated that he had last undertaken an IELTS test on 1 June 2011 and that his English language ability was “competent”.

2. Following a request for further information, on 20 August 2013 the applicants provided to the Minister’s department (“Department”) an IELTS test result form for the second applicant which indicated that she had scored an overall band score of 4.  On 10 October 2013 the Department wrote to the applicants advising them that the second applicant’s IELTS test score did not meet the minimum overall score of 4.5 required to demonstrate that she had functional English language ability.  As a result, the applicants were required to pay a visa application fee in relation to her.  On 12 October 2013 the applicants’ representatives wrote to the Department providing a receipt indicting that the applicants had paid that fee on 10 October 2013.  In their covering email the applicants’ representatives stated “Please finalise the visa application.”

3. On 31 October 2013 the delegate wrote to the applicants in the following terms:

   I have just realised that I made an error in assessing this application, specifically with respect to the English language component for the primary applicant.

   I initially accepted Mr Kim’s vocational IELTS result as meeting the English requirement because his nominated occupation is trade-related.  The Regulations allow for Vocational English if the applicant’s nominated occupation is a Trade and if the application was lodged prior to 01/01/2010.  Given that the application was lodged on 23/06/2011, Mr Kim is required to demonstrate Competent English as defined by Regulation 1.15C.

   …

   Before I am able to lawfully grant the visas for Mr Kim and his family, Mr Kim must provide acceptable evidence of having Competent English, as described above.

   I sincerely apologise for this error and for any inconvenience this may cause.

4. On 15 January 2014 the Department again wrote to the applicants requesting evidence that the first applicant had competent English. In his decision the delegate noted that the first applicant had failed to provide evidence of competent English. Consequently, the delegate found that Mr Kim did not meet reg.1.15C and cl.885.213 of sch.2 to the Regulations and refused to grant the applicants visas.

Tribunal proceedings

1. On 28 February 2014 the applicants applied for a Tribunal review of the delegate’s decision.  On 9 April 2014 the Tribunal wrote to the applicants inviting them to attend a hearing at 9:30am on 13 May 2014.  For various reasons which are not relevant for present purposes the hearing date was postponed.  In seeking an adjournment of the Tribunal hearing, the applicants wrote to the Tribunal on 13 May 2014 submitting that the first applicant’s visa application had been approved and that he had paid the second visa application fee for his wife but the Department later advised him that the approval had been the result of an administrative error and would be revoked.

2. At the relisted hearing on 30 May 2014 the first applicant stated that he had only undertaken one IELTS test, in February 2009, and had achieved an overall score of 5.5.  The first applicant stated that he had been in Australia for ten years, that he had studied and worked hard and that his son had been born here.  He stated that he felt that his time had been wasted due to the Department’s error and that he would have studied in order to achieve the required score in an IELTS test.

The Tribunal’s decision and reasons

1. In its decision the Tribunal noted that the first applicant claimed that his application had initially been approved by the Department.  It found that while the departmental officer had indicated during the processing of the application that it would be approved and had requested payment of a second visa application fee, the applicants had not in fact been granted visas.  The Tribunal also noted the first applicant’s view that he should have been granted the visa even though he did not have competent English but found that the issue before it was whether he did have competent English.  The Tribunal found that the delegate’s initial inclination that the visas would be granted and his subsequent request for payment of a second visa application fee were not relevant to the issue it had to decide.

2. The Tribunal found that it did not have any discretion in relation to the requirement that the first applicant have competent English. It found that it also had no discretionary power to grant the applicants visas. It found that the first applicant had not provided evidence that he had achieved the specified score for competent English. The Tribunal concluded that the first applicant did not have competent English as defined by reg.1.15C and therefore did not meet the requirements cl.886.213 [sic] of sch.2 to the Regulations. Consequently, it affirmed the delegate’s decision to refuse the applicants visas.

Proceedings in this Court

1. The applicants did not include any grounds in their application commencing these proceedings.

2. At the hearing of this application the first applicant, appearing in person and representing his wife and child, conceded that he had not demonstrated competent English to the Tribunal and that the Tribunal was correct to so find.  In the circumstances, the first applicant also conceded that the Tribunal did not err in concluding that he did not have competent English.  That was an appropriate and correct concession because, based on the evidence before the Tribunal, and there being no contradictory evidence before this Court to show that the Tribunal was mistaken as to a jurisdictional fact, the Tribunal had no alternative but to reach the conclusion which it expressed. 

3. That is to say, the Tribunal’s decision is not affected by jurisdictional error. 

4. This is an unfortunate case in which I accept that the applicants have been very poorly served by a person who held himself out as someone who would assist them.  Nevertheless, the law gives no latitude to the Court to reach any conclusion other than that the Tribunal’s decision was not affected by jurisdictional error and thus that the present application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 February 2017