Kumar v Minister for Immigration

[2018] FCCA 3212

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3212

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal –10 month delay between visa application lodgement and provision of prescribed English test result – no jurisdictional error – application dismissed.

Legislation:

Acts Interpretation Act 1901(Cth), s.13

Migration Act 1958 (Cth), s.359AA

Migration Regulations 1994 (Cth), Schedule 2, cl.485.212, 487.216

Cases cited:

Alcan (NT) Alumina Pty Ltd  v Commissioner of Territory Revenue (2009) 239 CLR 27

Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562

Nguyen v the Minister for Immigration and Border Protection [2016] FCCA 1523

First Applicant: KULDEEP KUMAR

Second Applicant: NEHA SHARMA

Third Applicant: ALIYAH SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2780 of 2016

Judgment of: Judge Hartnett

Hearing date: 29 October 2018

Delivered at: Melbourne

Delivered on: 29 October 2018

REPRESENTATION

The First Applicant: In Person

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2780 of 2016

KULDEEP KUMAR

First Applicant

NEHA SHARMA

Second Applicant

ALIYAH SHARMA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Edited (Ex Tempore) Reasons

1. Before the Court is an application for judicial review which was filed on 20 December 2016. The Applicant seeks judicial review of the decision of the Second Respondent (‘the Tribunal’) made on 6 December 2016 wherein the Tribunal refused to grant the Applicant a temporary graduate (Class VC) (subclass 485) visa (‘the visa’). The Tribunal found that the Applicant did not meet the requirements of cl.485.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because he did not provide evidence, accompanying his visa application, of having completed a prescribed language test.

2. The grounds of application are as follows:-

   “1. The clause 485.212 was incorrectly construed by the Review Tribunal and the legislative definition of “accompanied” was falsely interpreted, which I will seek to get a reveie of.

   2. In accordance with the Anand v MIAC[2013] FCA 1050 I seek to get a review of the words “temporal connection’ between application and incorporative evidence used to meet the criteria of an application.

   3. Though the heading informs the criterion, yet I would like to lodge a judicial review of the fact that it is not determinative and hence evidence of correct PTE details entered in the application will be suffice enough to prove and validate the point that at the time of application criterion was met.”

   (Errors in original).

3. The First Applicant does not particularise any grounds of review.  However, on 21 July 2017, the Applicant filed written submissions wherein he submits that he did complete a relevant English language test but that his agent, Viva Immigration and Education Consultants (‘Viva’), failed to provide evidence of the completed test to the Department of Immigration and Border Protection (‘the Department’). 

4. The Court determines that no jurisdictional error attends the decision of the Tribunal, for the reasons which follow. 

Background

1. The First  Applicant is a citizen of India.  He is married, having married his wife on 21 April 2013, and is the father of the parties’ female child, born on 12 January 2015 in Australia. The First Applicant’s wife and child are also named Applicants in this proceeding and are secondary Applicants in respect of the First Applicant’s visa application.  The First Applicant will hereafter in these reasons be referred to as ‘the Applicant’.

2. The Applicants applied for the visas on 9 December 2015. 

3. A delegate of the First Respondent (‘the delegate’) refused the visas on 22 February 2016 because the Applicant did not have the required English language proficiency as required by cl.485.212 of Schedule 2 to the Regulations. The Applicants sought review of the delegate’s decision before the Tribunal and were invited by correspondence of 6 October 2016 to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The invitation to attend a hearing contained, amongst other things, the following:-

   “How you can show you meet the English language proficiency standard

   To show you meet the English language standard, you must hold a valid passport issued by a specified country (UK, USA, Canada, New Zealand or Republic of Ireland), or have achieved a specified score in a specified language test that was undertaken within 3 years before the day on which the visa application was made.

   The specified English language tests and scores are: 

   ·an International English Language Test System (IELTS) test, minimum overall score of 6;  with minimum score of 5 in each of the 4 test components of listening, reading, speaking and writing;  or

   ·an Occupational English Test (OET), minimum overall score of B;  with minimum score of B in each of the 4 test components of listening, reading, speaking and writing;  or

   ·a Test of English as a Foreign Language internet-based Test (TOEFL iBT), minimum total overall score of 64;  with minimum score of 4 for listening, 4 for reading, 14 for speaking and 14 for writing;  or

   ·a Pearson Test of English Academic (PTE Academic), minimum overall score of 50, with minimum score of 36 in each of the four test components of listening, reading, speaking and writing; or

   ·a Cambridge English:  Advanced (CAE) test (taken on or after 1 January 2015), minimum overall score of 169;  with minimum score of 154 in each of the four test components of listening, reading, speaking and writing.

   The test, other than the OET, must have been completed in a single test sitting.”

4. The Applicant appeared before the Tribunal on 7 November 2016.  The Applicants were represented in relation to the review by their registered migration agent.

5. The Tribunal set out the issue before it, which was whether the Applicants satisfied cl.485.212 of Schedule 2 to the Regulations, which required that the Applicants’ application was accompanied by evidence that:-

   ·the Applicant has undertaken a language test specified in an instrument;  and has achieved within the period specified in the instrument the score specified in accordance with any specified requirements (cl.485.212(a));  or

   ·the Applicant holds a passport of a type specified by the Minister for Immigration and Border Protection in an instrument (cl.485.212(b)).

6. The Tribunal noted that there was no evidence before it that the Applicant had held a passport of a type specified, and, as such, cl.485.212(b) was not met. The Tribunal thus went on to consider whether the Applicant met the requirements in cl.485.212(a).

7. The Tribunal considered the evidence before it, being details of an IELTS test undertaken by the Applicant on 7 June 2014.  The Tribunal noted that the visa application stated that an IELTS test was undertaken on 7 June 2014, with an IELTS reference number, and that it was undertaken in Australia. 

8. The Tribunal had before it the delegate’s decision record and noted that the IELTS results for the test undertaken on 7 June 2014 indicated that the Applicant had an overall band score of less than six. At the hearing, under the procedure in s.359AA of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal invited the Applicant to comment on the scores for the IELTS test result. The Tribunal advised the Applicant that he could seek an adjournment to consider the information. The Tribunal noted that the Applicant’s representative responded immediately and made submissions regarding the process of lodging the visa application and the completion of a PTE test. The Applicant and his representative did not dispute the IELTS test results and confirmed that the test date was correct.

9. The Tribunal went on in its Statement of Decision and Reasons (‘the Decision Record’) to consider the PTE test undertaken by the Applicant which was in evidence before it.  The Tribunal noted in paragraph 14 of the Decision Record that:-

   “On 14 October 2016 the Tribunal received a submission and accompanying PTE test results for a PTE test undertaken by the applicant on 14 September 2015.  In the written submission the representative referred to the PTE test result and notes that it was valid before the applicant lodged his sc485 visa application.  [The Applicant’s representative] further submits “unfortunately due to some technical error, the system didn’t accept the attachment online and the application was refused in absence of it”.”

10. At the hearing before the Tribunal, the Applicant gave evidence to the Tribunal regarding the PTE test. As set out in paragraph 24 of the Decision Record, the Tribunal found that the Applicant did successfully complete the PTE test on 14 September 2015 and achieved an overall score of 50 and scores of 45 for listening, 52 for reading, 62 for speaking and 45 for writing. Therefore, the Tribunal was satisfied that the Applicant had undertaken a language test specified by the Minister and had achieved within the period specified by the Minister the score specified in accordance with the requirements specified in the relevant instrument.   

11. However, as discussed at the Tribunal hearing between the Tribunal and the Applicant, the issue for the Tribunal was whether the Applicant’s visa application, lodged on 9 December 2015, was “accompanied by evidence” that the Applicant met the English language proficiency requirement. The Tribunal noted that according to the delegate’s decision record before it, and confirmed by the Applicant himself at the hearing before the Tribunal, the visa application was lodged on 9 December 2015. The visa application uploaded to the Department’s system only included details of an IELTS test.  As discussed between the Tribunal and Applicant at the hearing, there was no documentary information before the Tribunal as provided by the Department that the Department had received the PTE test results.  The Tribunal received the PTE test results on 14 October 2016. 

12. The Tribunal deferred making a decision until after 21 November 2016 for the Applicant and his agent to provide further information to show that the PTE test result evidence accompanied the application.  The Tribunal received no further submissions or evidence from the agent or the Applicant.  During the hearing, the Applicant had said he provided Viva with the PTE academic test result prior to lodging the visa application.  The Applicant’s agent, in turn, gave evidence that he uploaded the PTE academic test to the Department’s online portal, but he did not place any evidence as to that having occurred, before the Tribunal. The Applicant’s evidence was that it was not his fault if his agent had made a mistake. 

13. On 6 December 2016, the Tribunal affirmed the decision not to grant the Applicant the visa.  In coming to that decision, the Tribunal, in addition to the above findings, referred to the decisions in Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 (‘Anand’) and Nguyen v the Minister for Immigration and Border Protection [2016] FCCA 1523 (‘Nguyen’), which provided guidance in interpreting the words “accompanied by” in the context of a subclass 485 visa application.  In the decision in Anand (2013) 215 FCR 562, Katzmann J held at [27] and [28]:-

    “27. It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question.

    …

    28… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Still, there must be some temporal connection with the application.  Evidence supplied around the time of the application may be sufficient.  I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application.  It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application.  But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made.  Language cannot be stretched so far that it snaps...”

14. The Tribunal, in having regard to the decision in Nguyen,[1] noted that Judge Burchardt held that the words “accompanied by” in the context of a subclass 485 visa application were “imperative” and suggested that there must be “a very close temporal connection” between the time that the application was lodged and when the evidence which must accompany that application must be provided. In Nguyen Judge Burchardt held that a 29-day gap was too great.[2]

    [1] [2016] FCCA 1523.

    [2] Ibid.

15. On the evidence available before it, the Tribunal was not satisfied that the visa application was accompanied by evidence that the Applicant had undertaken the specified language test and achieved the specified score within the specified period as required by the relevant instrument. 

16. The Tribunal considered that the first time the PTE results had been provided by the Applicant was when they were given to the Tribunal on 14 October 2016. In such circumstances, the Tribunal was not satisfied that the visa application was accompanied by evidence that met cl.485.212(a) of the Regulations.

Consideration

1. The Tribunal found, as a matter of fact, that the first time the Applicant (through his agent) provided the results of the PTE academic test he undertook on 14 September 2015 was 14 October 2016. This was 10 months after the Applicant had applied for the visa.  In these circumstances, where there was such a significant delay between the date on which the visa application was lodged and the provision of the PTE academic test result, it was clearly open to the Tribunal on the evidence before it to find that there was “no temporal connection” between the two events.  The Tribunal’s finding was a question of fact for it to determine. 

2. Clause 485.212 of the Regulations qualifies the substantive requirement to have achieved English language proficiency with a requirement that evidence of that proficiency must “accompany” the visa application itself.  The meaning to be attributed to the words “accompanied by” were the subject of judicial treatment in the cases described in paragraphs 17 and 18 above. 

3. Unlike cl.487.216 of the Regulations, Part 485 is not divided into ‘time of application’ and ‘time of decision criteria’. While a heading used in a statutory instrument may aid the Court’s interpretative task,[3] the absence of any directory heading does not create ambiguity.  The Court’s task will still require a consideration of the ordinary sense of the words having regard to their context and purpose.[4]

   [3] Acts Interpretation Act 1901(Cth) s 13(2)(d).

   [4] Alcan (NT) Alumina Pty Ltd  v Commissioner of Territory Revenue (2009) 239 CLR 27, 4

4. The Applicant’s attack upon the competence of Viva is, as submitted by Counsel for the First Respondent, of no bearing to the resolution of this matter.  There is no suggestion that Viva practiced any fraud upon the Tribunal itself so as to stultify the operation of the legislative scheme.

5. No jurisdictional error attends the decision of the Tribunal, and the application is accordingly dismissed with costs.

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

Date: 8 November 2018