Kumar & Anor v Minister for Immigration & Border Protection & Anor
[2017] FCCA 2406
•29 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2406 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of skilled work visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.55 |
| Cases cited: Berenguel v Minister for Immigration [2010] HCA 8 Milanes v Minister for Immigration (2015) 234 FCR 508, [2015] FCA 1105 |
| First Applicant: | SHIVANI KUMAR |
| Second Applicant: | SUMIT KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1301 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2017 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Hutton of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1301 of 2017
| SHIVANI KUMAR |
First Applicant
| SUMIT KUMAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The first applicant, Mrs Kumar, together with her husband, the second applicant (Mr Kumar) and a member of her family group, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants skilled provisional visas.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 21 September 2017.
The applicants are citizens of India. Mrs Kumar obtained a student visa on 2 August 2014, with Mr Kumar being granted a visa as a member of her family on the same day. On 6 December 2016 the applicants applied for the currently relevant visas.[1]
[1] Court Book (CB) 1
On 2 February 2017 the delegate refused to grant the applicants the visas. The delegate was not satisfied that Mrs Kumar met the requirements of clause 485.212 of the Migration Regulations 1994 (Regulations).[2]
[2] CB 40
On 20 February 2017, the applicants applied to the Tribunal for review of the delegate’s decision,[3] and attended a hearing before the Tribunal on 24 March 2017.[4]
[3] CB 44
[4] CB 55
Decision of the Tribunal
The Tribunal affirmed the decision under review on 4 April 2017.
The Tribunal found that the applicants did not satisfy clause 485.212 of the Regulations, as Mrs Kumar had not undertaken an International English Language Test System (IELTS) test in the three years prior to lodging her application for the visas. Although the Tribunal acknowledged that Mrs Kumar had demonstrated that she had the required English language proficiency in the IELTS tests she undertook on 22 June 2013 and 4 March 2017, it noted that clause 485.212 is a mandatory requirement and the Tribunal must make its decision in accordance with the requirements in the provision.[5]
[5] CB 64 at [15]
The Tribunal also acknowledged the applicants’ concerns that they were permitted to lodge the online application form for the visas despite answering “no” to the question regarding the English language test. The Tribunal noted that this was not a factor relevant to its consideration of clause 485.212 of the Regulations, and was a matter the applicants may wish to take up with the Minister’s Department.[6]
[6] CB 64 at [15]
As Mrs Kumar had not undertaken an IELTS test in the three years prior to lodging her application for the visa, nor did she hold a current passport of the type specified by the Minister (that is, a passport from the USA, UK, Canada, New Zealand, or the Republic of Ireland),[7] the Tribunal found that the applicants did not meet the requirement under clause 485.212 of the Regulations, and affirmed the decision under review.
[7] CB 63 at [9]
The present proceedings
These proceedings began with a show cause application filed on 1 May 2017. The applicants continue to rely on that application. The grounds in it are:
1. The Tribunal erred in law by not considering all the information on record available at the time of review before it.
Particulars
3.The applicant filed several documents and gave evidence before the Tribunal in support of her claim. The Tribunal failed to consider all evidence on record including the IELTS score and merely confirmed the delegate findings. I got the required IELTS score subsequent to lodging the application. The Tribunal has observed in para 14 & 15 of its order that to a question in the online application which requires to state if I had taken the IELTS exam and I replied ‘NO’. At this stage the online application failed to indicate that the IELTS score was a prerequisite before lodging the 485 application. To this extent I state that the online application was misleading and deceptive. In several other cases, there are warnings of similar nature in the online application.
2. The Tribunal erred in law by misconstruing the provisions r.485.212 of the Migration Regulation 1994 relating to the definition of Competent English
Particulars
The Tribunal failed to consider that the First applicant is entitled to furnish the IELTS results at any time before the date of decision pursuant to the decision in the case of Berenguel vs MIAC [2010] HCA 8.
It is further submitted that since the heading in Migration Regulations Schedule 2, 485.21 “Criteria to be satisfied at the time of application” has no definition it should be read as part of the whole Migration regulations dealing with skilled residence class pursuant to Sec 13 of the Legislative Instruments Act. Hence Migration regulations schedule 2,485.21 relating to submission of documents in relation to competency in English should be interpreted in the same way as Migration regulations which permits skill assessment document to be given at any time before the decision, as they all fall under the same heading ‘Criteria to be satisfied at the time of application’.
It is submitted that the error in application of law and resultant denial to consider the IELTS result furnished before the date of decision has also resulted in miscarriage of justice and has vitiated the procedural fairness of the hearing at the Tribunal
The application is supported by an affidavit by Mrs Kumar filed with it, which I received.
I also have before me as evidence the book of relevant documents filed on 23 June 2017.
Both the Minister and the applicants have filed written submissions in advance of today’s hearing. Those of the applicants were emailed to my associate yesterday.
It is plain that the applicants are unable to advance an arguable case of jurisdictional error by the Tribunal. Their emailed submissions draw attention to the injustice, perhaps even the absurdity, of being permitted to complete a visa application for which they could not possibly qualify once they answered the question “no” to the question of whether a valid IELTS test result had been obtained within the period of three years preceding the application. Mrs Kumar makes the reasonable point that it would be kinder to applicants and perhaps more efficient if the online form prevented applicants proceeding further once they answered that question in the negative.
The visa criterion requiring an English language test not more than 36 months before the date of lodgement of the application is an inflexible one and was strengthened in order to deal with the decision of the High Court in Berenguel v Minister for Immigration (Berenguel).[8] While the Commonwealth has been successful in exorcising the interpretation of the criterion made by the High Court in that case, the result is an inflexible criterion that has harsh consequences, as was explicitly recognised by the Tribunal in its reasons.
[8] [2010] HCA 8
It would seem to me that if the purpose of the criterion is to ensure that a visa applicant has English of the requisite standard, it should be possible for an applicant in the position of Mrs Kumar to satisfy that criterion. She sat the required English language test twice, and twice passed it. Her only sin was to have done so in the first instance three and a half years before she applied for the visa, and in the second instance, after she applied for the visa.
It seems to me that an alternative criterion might properly state that if a visa applicant successfully sits an English language test more than 36 months before they apply for the visa, they should be permitted to re-sit and pass the test within a short and fixed time after they apply for the visa. That is a matter for the Minister’s Department to consider.
On the legal issue, I agree with the Minister’s submissions in relation to the grounds of review advanced.
By Ground 1, the applicants allege that the Tribunal erred in failing to consider all the material before it, specifically the IELTS results dated 22 June 2013 and 4 March 2017.
Contrary to the applicants’ assertion, the Tribunal did consider all of the evidence before it, including the IELTS results of Mrs Kumar from both 22 June 2013 and 4 March 2017. The Tribunal considered Mrs Kumar’s scores in both tests, but noted the scores were not achieved in a test undertaken within three years before the day on which the application was made.[9]
[9] CB 64 at [13]
For completeness, the applicants allege that the online application form for the visa was deceptive and misleading, as it did not advise Mrs Kumar that an IELTS test within the specified period was a prerequisite for the visa.
The Tribunal had no power to consider this complaint, as it is not a factor relevant to the issue of whether the applicants satisfy the requirements for the visa. The Tribunal expressly acknowledged the complaint at [15],[10] but advised the applicants that they may wish to take up the matter with the Minister’s Department, as the online visa lodgement facility is not a factor relevant to the Tribunal’s consideration of clause 485.212 of the Regulations.[11]
[10] CB 64
[11] CB 64 at [15]
No arguable case is disclosed by Ground 1.
By Ground 2, the applicants contend that the Tribunal erred by:
a)misconstruing the requirements of clause 485.212. By reference to Berenguel, the applicants contend that they are entitled to provide the IELTS results at any time before the date of the decision; and
b)denying them procedural fairness.
In relation to the first limb, in Berenguel, the plaintiff booked an IELTS exam prior to the lodgement of the application. However, he was unable to sit the exam until after he lodged the application. The High Court’s decision turned on the construction of the provision as it was then. Specifically, the relevant regulation said that the relevant test had to have been conducted “not more than 2 years before the day on which the application was lodged”. Having regard to the language of that provision and the requirement that the Minister to have regard to up-to-date information (s.55), the High Court found that the delegate erred by not considering the plaintiff’s test results provided after the application.
By contrast, the relevant criterion in the present case is different. The applicants were required to show that they had undertaken the IELTS test within the three years before the day on which the application was made.[12] It follows that the results of any test conducted outside the three year period would not be relevant further information within s.55 of the Migration Act 1958 (Cth) (Migration Act).[13]
[12] clause 4 of the Migration Regulations 1994 English Language Tests, Scores and Passports 2015 – IMMI15/062
[13] Milanes v Minister for Immigration (2015) 234 FCR 508, [2015] FCA 1105 at [55]
In relation to the second limb, there is no basis to the applicants’ complaints that they were denied procedural fairness. The applicants were invited to and attended a hearing on 24 March 2017. The applicants provided oral evidence at the hearing in English, and were represented by their registered migration agent. There is no evidence that the Tribunal failed to afford procedural fairness to the applicants as required by Part 5 of the Migration Act in its conduct or in the making of its decision.
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. Mrs Kumar did not wish to be heard on costs.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 4 October 2017
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