KISHORE v Minister for Immigration

[2021] FCCA 998

FEDERAL CIRCUIT COURT OF AUSTRALIA

KISHORE & ORS v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 998

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) visa – whether the Administrative Appeals Tribunal considered the information it was bound to consider regarding the applicants’ health issues and circumstances – whether the Tribunal considered an irrelevant consideration – whether the Tribunal misapplied to law – whether the Administrative Appeals Tribunal ought to have referred the matter to the Minister under section 351 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.18B

Migration Act 1958 (Cth), ss.349, 351, 499

Migration Regulations 1994 (Cth), r.1.15C, cl 487.215 of sch 2

Cases cited:

EI Ess & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 1038

First Applicant: KAMAL KISHORE

Second Applicant: MONICA

Third Applicant: BIANCA AHEER

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 118 of 2017

Judgment of: Judge Mercuri

Hearing date: 6 October 2020

Date of Last Submission: 6 October 2020

Delivered at: Melbourne

Delivered on: 14 May 2021

REPRESENTATION

Advocate for the applicants: In person

Solicitors for the applicant: None

Advocate for the respondents: Mr Cunynghame

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The applicants’ application filed on 18 January 2017 be dismissed.

3. The applicants pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 118 of 2017

KAMAL KISHORE

First Applicant

MONICA

Second Applicant

BIANCA AHEER

Third Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 21 December 2016 affirming a decision made by a delegate of the first respondent (“the Delegate”) on 1 December 2015 not to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).

2. The first applicant and second applicant are Indian citizens. The first applicant arrived in Australia on a student visa in April 2007 and has worked in the hospitality industry since his arrival.[1]  He applied for and was granted a 485 visa in December 2009 which was renewed until December 2012.[2] The first applicant and second applicant were married in India around February 2012. The first applicant returned to Australia in May 2012 and the second applicant arrived in Australia in November 2012.[3] The third applicant was born in Australia in 2014.[4]

   [1] Applicant’s outline of submissions filed on 16 September 2020 page 3.

   [2] Applicant’s outline of submissions filed on 16 September 2020 page 3.

   [3] Applicant’s outline of submissions filed on 16 September 2020 page 4.

   [4] Applicant’s outline of submissions filed on 16 September 2020 page 5.

3. The applicants applied for the visa on 19 December 2012 using a migration agent.[5]  In that application, the applicants stated that the first applicant had booked an English language test on 23 February 2013.[6]

   [5] Court book pages 1 to 71.

   [6] Court book page 5.

4. Relevantly, clause 487.215 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) requires that the applicant have ‘competent English’. A person would be deemed to have ‘competent English’ if they met the following requirements of regulation 1.15C of the Regulations:

   (1)    A person has competent English if

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the test was conducted in the 3 years immediately before the day on which the application was made; and

   (iii)   the person achieved a score specified in the instrument; or

   (2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

5. Two and a half years after the English language test was scheduled, a delegate of the first respondent (“the Delegate”) wrote to the applicants on 8 September 2015 seeking further information regarding the application and evidence of the first applicant’s English language skills.[7] The applicants provided written submissions on 5 October 2015 in which it was acknowledged by the first applicant that he did not attain the required score in the International English Language Testing System (“IELTS”).[8] The first applicant stated that he ‘was going through some family problem (sic) and was not able to concentrate well on my studies.’[9] The first applicant annexed copies of his wife’s medical records in support of his submissions.

   [7] Court book pages 78 to 85.

   [8] Court book pages 95 to 96.

   [9] Court book page 95.

6. On 1 December 2015, the Delegate wrote to the applicants to inform them of the decision not to grant the visa. The visa was refused on the basis that the first applicant did not meet the English language competency requirements under rule 1.15C and clause 487.215 of schedule 2 to the Regulations.[10]

   [10] Court book pages 109 to 113.

The application to the Tribunal

1. The applicants applied to the Tribunal for a review of the Delegate’s decision and appointed a second migration agent.[11] The Tribunal invited the applicants to attend a hearing on 25 October 2016 by way of letter emailed to the applicants’ agent on 23 September 2016.[12]

   [11] Court book pages 114 to 116.

   [12] Court book pages 121 to 125.

2. Relevantly, in that letter, the Tribunal stated:

   We note that to date you have not presented evidence that you meet the English language standard (‘competent English’) for the visa. How you can show competent English is set out below.

   How you can show you meet the English language proficiency standard

   To show competent English, you must hold a valid passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issue to a citizen of that country, or have achieved a specified score in a specified language test that was conducted in the 2 years immediately before the day on which the visa application was made.

   The specified English language tests and scores are: an International English Language Testing System (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least ‘B’ in each of the four components. The required scores must be achieved in the same test.[13]

   [13] Court book page 124.

3. The hearing was later rescheduled to 8 November 2016 at the request of the applicants.[14] The applicants attended the hearing on 8 November 2016 and were represented by a migration agent.[15] At the hearing, the applicants provided the following further documents to the Tribunal:

   a)IELTS test dated 7 March 2013;[16]

   b)IELTS test dated 11 June 2015;[17] and

   c)medical records relating to the second applicant.[18]

   [14] Court book pages 136 to 139.

   [15] Court book page 157.

   [16] Court book pages 153 and 154.

   [17] Court book pages 155 and 156.

   [18] Court book pages 143 to 149.

The Tribunal’s decision

1. The applicants were advised by letter dated 21 December 2016 that the Tribunal affirmed the Delegate’s decision not to grant the visa.[19]

   [19] Court book pages 160 to 167.

2. The Tribunal decision set out the nature of the application before it and the decision of the Delegate which was the subject of the review application.[20]

   [20] Court book page 165 at paragraphs 1 to 4.

3. At paragraphs [5] and [6] of its reasons, the Tribunal then referred to the relevant law. At paragraph [7], the Tribunal noted that the issue before it was whether the first applicant met the criterion in clause 487.215, namely whether he had competent English as defined.

4. The Tribunal went on to set out the applicants’ claims and evidence, noting in particular the evidence given by the applicants at the hearing before it on 8 November 2016.[21]

   [21] Court book pages 165 to 166 at paragraphs 10 to 18.

5. The Tribunal then set out its findings and reasons at paragraphs [19] to [27]. Of particular relevance to the grounds of review raised in this matter, the Tribunal noted that the first applicant had provided evidence of two IELTS tests, both of which were undertaken after his application for a visa, and in neither of which did he achieve the necessary scores to evidence competent English.[22]

   [22] Court book page 168 paragraph 21.

6. Consequently, the Tribunal found:

   … that he does not have competent English as defined … and thus does not satisfy cl 487.215. the relevant definition of ‘competent English’ does not allow for a new IELTS test to be taken into account, if lodged outside the period specified in r.1.15C(1)(bb).[23]

   [23] Court book page 168 paragraph 22.

7. The Tribunal acknowledged the explanations given by the first applicant as to why he had not met the competent English requirement, however, it noted that ‘the law does not give any discretion to the Tribunal to waive or overlook the requirements of cl.487.215.’[24]

   [24] Court book page 168 at paragraph 23.

8. The Tribunal went on to consider the applicants’ request to refer the matter to the first respondent for consideration pursuant to section 351 of the Act. It noted that section 351 is an entirely discretionary power and concluded that it was not satisfied that the applicants’ claim fell within the ministerial guidelines for intervention. It therefore declined to refer the matter.[25]  However, the Tribunal noted that it was still open to the applicants to seek ministerial intervention directly.[26]

   [25] Court book page 168 at paragraph 26.

   [26] Court book page 168 at paragraph 27.

9. For each of these reasons, the Tribunal concluded that it was appropriate to affirm the Delegate’s decision to refuse the applicants the visa.[27]

   [27] Court book page 168 at paragraphs 28 to 29.

Grounds of review

1. In their application filed on 18 January 2017, the applicants rely upon four grounds of review.

2. The first applicant represented himself at the hearing before me.  The second and third applicants were also present with him.  The first applicant did not specifically address the four grounds of review in his application.

3. In his written submissions, the first applicant set out his migration history in Australia, namely:

   a)he arrived in Australia on a student visa in April 2007 and completed an Advanced Diploma in Hospitality and Management and a Certificate III between 2007 and September 2009;[28]

   b)in December 2009, he applied for and was granted a 485 visa for the period from June 2011 to December 2012;[29]

   c)in December 2012, he lodged an application for a 487 visa, naming himself as the primary applicant and his wife as the secondary applicant;[30]

   d)on 23 February 2013, he lodged a 487 visa application, although he had not yet completed the IELTS test to prove his English competency;[31] and

   e)on 1 December 2015, the first applicant’s application for a 487 visa was refused.[32]

   [28] Applicant’s outline of submissions filed on 16 September 2020 page 3.

   [29] Applicant’s outline of submissions filed on 16 September 2020 page 3.

   [30] Applicant’s outline of submissions filed on 16 September 2020 page 4.

   [31] Applicant’s outline of submissions filed on 16 September 2020 page 4.

   [32] Applicant’s outline of submissions filed on 16 September 2020 page 4.

4. It was common ground that the first applicant undertook an IELTS on 23 February 2103 but did not achieve the necessary result to establish English competency.[33]

   [33] Respondent’s outline of submissions filed on 21 September 2020 paragraph 5.

5. The first applicant’s evidence was that he was provided with incorrect advice at the time that he lodged his 487 visa application, namely that his application could still be considered provided he submitted an IELTS result prior to the Department of Immigration and Citizenship (“the Department”) considering his application.[34] 

   [34] Applicant’s outline of submissions filed on 16 September 2020 page 5.

6. In any event, the first applicant conceded that at no stage prior to either the Delegate’s decision, or indeed the Tribunal’s decision, did he complete the IELTS and achieve the requisite score to demonstrate English competency.  The first applicant explained that this was due to the fact that shortly after he lodged his 487 visa application, his wife became pregnant with their daughter and became unwell during the pregnancy.[35]  As the applicants had no family here to assist, the first applicant had to care for her and therefore was unable to focus on his studies.  Moreover, after the child was born on 28 January 2014, his wife developed various health issues, which again put pressure on the first applicant to care for both his wife and infant child.  Consequently, he was unable to apply himself to undertaking the IELTS.[36]

   [35] Applicant’s outline of submissions filed on 16 September 2020 page 5.

   [36] Applicant’s outline of submissions filed on 16 September 2020 page 5.

7. Against this background, the first applicant submitted that he ought to be given the opportunity to undertake a further IELTS exam to demonstrate his English competence.[37]

   [37] Applicant’s outline of submissions filed on 16 September 2020 pages 6, 10 and 11.

8. At the hearing before me, I explained the court’s role in a judicial review application such as this, and relevantly, that the court is not empowered to consider the merits of the applicants’ application.[38]  Rather, the court’s role is limited to determining whether there is a jurisdictional error in the Tribunal’s consideration of the application.

   [38] Transcript page 4 at lines 9 to 14.

9. When invited to make submissions in support of his application, the first applicant said when he appeared before the Tribunal, he had explained his circumstances and why he was unable to pass the IELTS exam on 23 February2013 to the requisite standard.  In particular, he made reference to:

   a)the fact that members of his family either passed away or were unwell in India and that there were financial issues; and

   b)he had received incorrect advice from his migration agent about when he was required to undertake and submit an IELTS.[39]

   [39] Transcript page 3 at lines 29 to 45.

10. The first applicant further stated that:

    a)he respected the court system and the decision of the court;

    b)he had been working in this country for the last 8 years, paying his taxes and serving the community in regional Australia;

    c)he was now eligible for many visas, but because he cannot apply for another visa whilst in Australia, he must leave the country with his family;

    d)he was concerned for his wellbeing and that of his wife and child if they were required to return to India at the moment, in light of the effects of the COVID-19 pandemic in that country; and

    e)he was further concerned about the impact on his child of being forced to return to India in circumstances where she was born in Australia, has lived her whole life in Australia and has commenced school in Australia.[40]

    [40] Transcript page 4 at lines 16 to 46.

11. In response to these oral submissions, counsel for the first respondent submitted that the applicants had raised each of those matters before the Tribunal and those matters were taken into account by the Tribunal.[41]  Consequently, it was submitted that there is no jurisdictional error arising from those matters.

    [41] Transcript page 6 at lines 35 to 42.

12. I agree with this submission. It is clear from a fair reading of the Tribunal’s reasons that these matters were raised before it and that the Tribunal did consider them. However, as noted by the Tribunal, once it concluded, as it had to on the evidence, that the applicant did not meet the criteria in clause 487.215 of Schedule 2 of the Regulations, there was no discretion.[42]  The visa could not be granted. 

    [42] Court book page 168 paragraph 23.

13. I will turn now to consider each of the grounds of review raised by the applicants in the application for review. Each of those grounds relates to the manner in which the Tribunal dealt with the applicant’s request to refer the matter to the first respondent under section 351 of the Migration Act 1958 (Cth) (“the Act”). 

14. As noted by the first respondent, ground one essentially contends that the Tribunal failed to consider information which it was bound to consider.

15. Relevantly, the effect of the particulars attached to ground one[43] is that in determining whether to refer the matter to the first respondent under section 351 of the Act, the Tribunal failed to consider:

    a)the second applicant’s health issues;

    b)the fact that the third applicant was born in Australia;

    c)that the applicants were victims of an unscrupulous migration agent;

    d)the fear the applicants held about their safety and stability if returned to India, particularly in relation to the third applicant; and

    e)the applicants’ family in Australia who had expressed a desire that the applicants remain in Australia.[44]

    [43] Applicants’ application filed on 18 January 2017 page 4.

    [44] Applicants’ application filed on 18 January 2017 page 4.

16. Rather, the applicants stated that in considering whether to refer the matter to the first respondent, the Tribunal confined itself to a consideration of the first applicant’s employment.[45]

    [45] Applicants’ application filed on 18 January 2017 page 4.

17. Ground two also claims that the Tribunal failed to consider information which it was bound to consider.  Relevantly, the particulars to ground two[46] allege that the Tribunal failed to have regard to a direction issued pursuant to section 18B of the Administrative Appeals Tribunal Act 1975 (Cth), which directs Tribunal members to have regard to ministerial guidelines in considering whether or not to refer a case to a minister.[47]

    [46] Applicants’ application filed on 18 January 2017 pages 4 and 5.

    [47] Applicants’ application filed on 18 January 2017 page 4.

18. Relevantly, the particulars to ground two state that in its reasons, the Tribunal referred to ministerial guidelines on the Department’s website.  The applicants asserted that the said ministerial guidelines are not actually available at that website in full, and consequently, it was asserted that the Tribunal failed to consider the correct ministerial guidelines and this amounted to a jurisdictional error.[48]

    [48] Applicants’ application filed on 18 January 2017 page 5.

19. By ground three, the applicants claim that to the extent that the Tribunal had regard to the ministerial guidelines on the relevant website, it had regard to irrelevant consideration.  This ground, like ground two, is based on the assertion that the relevant ministerial guidelines are not available at the nominated address.[49]

    [49] Applicants’ application filed on 18 January 2017 page 5.

20. The essence of ground four is that the Tribunal misunderstood, and therefore misapplied, section 351 of the Act. The particulars to ground four assert that the Tribunals’ summary of the effect of section 351 does not refer to the public interest consideration relevant to the minister’s determination of any referral, and together with its failure to consider the actual ministerial guidelines, the Tribunal ‘fettered its consideration of the Applicants’ request and circumstances, applied the wrong test, and thereby erred’.[50]

    [50] Applicants’ application filed on 18 January 2017 page 6.

1. It was submitted for the first respondent that each of these grounds of review must fail given that the Tribunal was under no legal obligation either to consider the ministerial guidelines or to consider whether or not to refer the matter to the first respondent under section 351 of the Act.[51]

   [51] Respondent’s outline of submissions filed on 21 September 2020 at paragraph 23.

2. As to ground one, it is clear from a fair reading of the Tribunal’s reasons that it did in fact have regard to each of the matters identified in ground one. Ultimately, however, in the absence of meeting the criteria in clause 487.215 of schedule 2 of the Regulations, the Tribunal had no discretion. Rather, it could not grant the visa sought.

3. As to grounds two and three, it was submitted for the first respondent that the statutory task that the Tribunal had to undertake was to review the Delegate’s decision as to whether the applicants met the requirements for the visa.[52] Whether the applicant’s application ought to be referred to the first respondent under section 351 of the Act was not relevant to that statutory task.

   [52] Respondent’s outline of submissions filed on 21 September 2020 at paragraph 24.

4. There is much force to this submission, which for the following reasons, I accept.

5. Section 351 of the Migration Act relevantly provides:

   (1)If the Minister things that it is in the public interest to do so, the Minister may substitute for a decision o the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

   (2)…

   (3)…

   (4)…

   (5)…

   (6)…

   (7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. 

6. Section 349 of the Act sets out the Tribunal’s powers on review of a Part 5 reviewable decision. It is silent on the Tribunal’s power to refer a matter to the first respondent for consideration under section 351.

7. Similarly, to the extent that grounds two and three rely upon an argument that the ministerial guidelines on the website were incorrect or incomplete and therefore in having regard to those, the Tribunal either had regard to irrelevant considerations or failed to have regard to relevant considerations, that submission ought also be rejected.

8. As noted in EI Ess & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 1038 at [45]:

   … PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. … PAM3 does not have the effect of a direction pursuant to s499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of htose powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations in the sense of considerations that the decision-maker is bound by legislation to take into account. … A failure to apply the guidelines may have significance in establishing some error on the part of a decision maker, but it is not of itself a jurisdictional error.

9. In any event, there is no evidence before the court that the guidelines referred to in the Tribunal’s reasons are directions which were issued pursuant to section 499 of the Act, which would therefore require the Tribunal to comply with them. As such, the Tribunal’s decision not to refer the matter to the first respondent for consideration under section 351 of the Act does not give rise to a jurisdictional error in the manner alleged.

10. Even if I were satisfied that the Tribunal had erred in its consideration as to whether or not to refer the matter to the first respondent for consideration under section 351, there was no statutory obligation on it to do so. Any such error therefore could not amount to a jurisdictional error as alleged.

11. For each of these reasons, neither ground two nor ground three are made out.

12. For similar reasons, ground four is also not made out. The Tribunal was not required to consider whether to refer the matter to the first respondent. As such, even if it had misunderstood the effect of section 351 as claimed, that would not amount to a jurisdictional error.

Conclusion and orders

1. For each of these reasons, no jurisdictional error was established by the applicants.  Nor is the court satisfied that any jurisdictional error is evident in the Tribunal’s reasons. 

2. I therefore order that:

   a)the applicants’ application be dismissed; and

   b)the applicants pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date:         14 May 2021