Kumar v Minister for Immigration
[2015] FCCA 2037
•22 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2037 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – requirement of competent English – time at which test is to be conducted. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), reg.1.15C, cl.885.213 of Sch.2 |
| Ajaya v Minister for Immigration and Border Protection & Anor (2014) 143 ALD 652; [2014] FCA 718 Datchinamurthy v Minister for Immigration and Border Protection & Anor [2014] FCCA 258 |
| Applicant: | RAJNISH KUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 475 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2015 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person |
| Solicitors for the Respondents: | Ms F Taah of Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 475 of 2014
| RAJNISH KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal dated 3 February 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Residence) (Class VB) visa.
The Applicant first arrived in Australia in about June 2007 as a holder of a Student visa. He applied for the visa in question on 20 December 2012 through electronic lodgement. He provided some documentation in support of his application. However on 5 June 2013 and 3 July 2013 the delegate asked the Applicant to provide further detailed information including, relevantly, evidence of competent English demonstrated in a test undertaken prior to the lodgement of his application.
On 25 October 2013 the delegate refused the visa application on the basis that the Applicant did not satisfy the criterion for a Subclass 885 visa in cl.885.213 of Sch.2 to the Migration Regulations 1994 (Cth) (the “Regulations”). This was a time of application criterion which, relevantly, required the Applicant to demonstrate competent English as defined in reg.1.15C of the Regulations.
The delegate found that the Applicant had not provided satisfactory evidence of competent English with his visa application and that he had been requested twice to provide evidence of competent English but had not done so. Hence it was found that he did not meet cl.885.213.
The Applicant sought review by the Migration Review Tribunal on 13 November 2013. By letter of 7 January 2014, the Tribunal invited him to attend a Tribunal hearing. In addition the Tribunal noted that he had not presented evidence that he met the competent English requirement. It set out the law in relation to competent English, including the requirement, for applications made on or after 1 July 2012, that a language test had to be conducted in the three years immediately before the date of the visa application and that the applicant had to achieve a score of at least 6 in each of the four test components (if the test was an IELTS test).
On 30 January 2014 the Applicant’s then lawyer provided submissions to the Tribunal to the effect that the principles in Berenguel v Minister for Immigration and Citizenship (2010) 114 ALR 1; [2010] HCA 8 were applicable to the Applicant such as to enable him to provide a language test conducted after the date of the visa application. That submission was made notwithstanding changes to the Regulations in July 2011. It was submitted that the Minister should have regard to up-to-date information and process the application in the same manner as he had processed applications that were lodged before 1 July 2011.
The Applicant attended the Tribunal hearing. He provided the Tribunal with a copy of an IELTS test result for a test undertaken on 22 June 2013, some six months after his visa application. It showed that he had achieved a score of 6 or above in three of the components of the test, but had scored only 5.5 in the speaking component of the test.
In its reasons for decision of 3 February 2014, the Tribunal set out the requirement that the Applicant have competent English as defined in reg.1.15C. It found that the applicable definition of competent English provided that that requirement was met if, in a test conducted in the three years immediately before the day on which the visa application was made, the Applicant had achieved a score of at least 6 for each of the four test components in an IELTS test. It described certain alternative methods of satisfying that requirement that were not applicable in this case.
The Tribunal summarised the adviser’s submission in relation to whether or not the approach taken in Berenguel applied to the Applicant’s circumstances. It recorded that the Applicant had presented an IELTS test report form for a test undertaken on 22 June 2013 in which he had achieved 6 or more in the test components of listening, reading and writing, but only 5.5 in the speaking component. It found that this test did not meet the requirements of regulation 1.15C as it was undertaken and conducted after the visa application was made.
The Tribunal also recorded that the Applicant had provided evidence of a booking for an IELTS test on 15 February 2014. However the Tribunal did not agree to allow further time for him to sit another IELTS test as that test would also be conducted after the visa application was made. It addressed the Applicant’s request for more time to apply for state sponsorship. However, it found that this was not relevant to the issue before the Tribunal of whether the Applicant had competent English. It did not agree to the request and proceeded to make a decision on the information before it.
The Tribunal found that there was no evidence before it that the Applicant had undertaken a language test in the relevant period and achieved the specified score.
The Tribunal found that the Applicant did not meet the requirements of reg.1.15C(1). It also found that he did not hold a passport of a country meeting the requirements of reg.1.15C(2). As he did not have competent English, the Tribunal found the Applicant did not meet the criterion in cl.885.213 of Schedule 2 to the Regulations. As that was the only relevant subclass, the Tribunal affirmed the decision under review.
The Applicant sought review by application filed in this Court on 3 March 2014. There is one ground in the application. It is as follows:
When I lodged the application I was under this impression that I can provide the IELTS test report when my case officer is appointed. It even stated on my visa application which says I have until the time of decision to provide evidence of my English.
The Applicant also made submissions today to which I will return. Dealing first with his contention about the wording of the form on which he applied for the visa, it is the case that under the heading “Applicant Language Ability” there is what is described as an “Important Note” as follows:
You have up until the time of decision to provide evidence that you have competent English. However, applicants should not delay in providing their evidence of English language ability. The Department will not delay finalising applications for English language test results have not been provided at time of application. Applicants will have 28 days from the date of application to provide their English language test results if they did not provide them at the time of application. At this point in time, if evidence has not been provided the application may be refused.
Insofar as the Applicant contended that he was misled by this information into believing that he had until the date of the delegate’s decision to satisfy the English language competence requirement (as opposed to providing evidence that he had already done so), and that this somehow meant that the operative version of regulation 1.15C was not applicable, there are a number of difficulties with such argument.
First, the Applicant simply did not provide the delegate (or the Tribunal) with any evidence that he had competent English. This argument falls away for that reason alone. Secondly, the delegate twice asked the Applicant for evidence of competent English and, as indicated above, explained in that request the nature of the information required, that is, a test undertaken prior to lodgement of the application.
The form does go on to ask whether an English language test was conducted within the last 24 months. I place no reliance on that aspect of the form. It is not relevant in the present case because the applicable version of regulation 1.15C allowed an applicant to undertake an English test in the prior 36 months.
Had the Applicant successfully completed an IELTS test in the three year period prior to making the application, he would have had until the time of the decision to provide evidence of that test, for example by providing a copy of an IELTS test result. However, contrary to the Applicant’s submission, the fact that the application form stated that he had until the time of the decision to provide evidence that he had competent English is neither misleading nor inconsistent with the application of reg.1.15C. There is no basis on which this aspect of the application form establishes jurisdictional error on the part of the Tribunal (see to the same effect Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258).
Insofar as the Applicant takes issue with the Tribunal’s application of Regulation 1.15C, I am satisfied that, as submitted for the First Respondent, the Tribunal correctly applied the version of reg.1.15C introduced with effect from July 2012 by the Migration Amendment Regulation 2012 (No. 2) (Cth). That form of reg.1.15C provided:
1.15C Competent English
(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
(c) the person achieved a score specified in the instrument.
(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.
The Tribunal understood and properly considered this requirement. It found that the Applicant did not meet the requirement, first because he had not provided evidence of any test conducted in the three years prior to the application and secondly, because the test he provided after the date of the visa application did not, in any event, achieve the requisite score.
There is an associated issue that the Applicant may have intended to raise and the Minister’s submissions addressed. This is the issue of whether there was any legal error in the Tribunal’s understanding of the relevant law and its application to the Applicant’s circumstances, in particular, whether the Applicant had any basis for an argument based on the principles considered in Berenguel.
In Berenguel it was held that an earlier version of reg.1.15C, which required only that the test of English competence be “conducted no earlier than the two years before the application was lodged”, encompassed a test conducted after the date of the visa application. However, the regulation was amended. There is consistent and clear authority from this Court and the Federal Court that the requirement in the applicable version of regulation 1.15C can only be satisfied by evidence of a test conducted before the day on which the visa application was made and not by evidence of a language test undertaken after the lodgement of the visa application (see, in particular, Singh v Ministerfor Immigration and Border Protection & Anor [2013] FCCA 1439 upheld on appeal in Singh v Minister for Immigration and Border Protection [2014] FCA 185; also see Patel v Minister for Immigration and Border Protection [2014] FCA 823; Ajaya v Minister for Immigration and Border Protection & Anor (2014) 143 ALD 652; [2014] FCA 718; Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 at [20]; Endi v Minister for Immigration & Anor [2013] FCCA 1700; Pajarla v Minister for Immigration & Anor [2013] FCCA 1808; Badrujamaludin v Minister for Immigration & Anor [2014] FCCA 1004; Kaur v Minister for Immigration & Anor [2014] FCCA 830; Govind v Minister for Immigration & Anor [2014] FCCA 957).
The Applicant submitted that he understood from his agent or lawyer that he would be able to apply for a visa and obtain a visa based on an IELTS test conducted after the visa application. A similar argument was apparently raised in Singh. On appeal Barker J stated (at [11]) that in that case there was no real doubt that the relevant competent English test was that defined in reg.1.15C inserted by the amendment in 2011 which applied to all visa applications lodged on or after 1 July 2011 and which provided that there was a two year period before the visa application for the test to be conducted.
Relevantly as both Judge Lucev at first instance and Barker J on appeal noted in Singh, the purpose of such amendment was to clarify the timeframe within which an English language test must be conducted following the decision of the High Court in Berenguel in which it had been held that an earlier version of regulation 1.15C allowed for a test to be taken after the visa application had been lodged. Regulation 1.15C was amended in 2012 to allow for the test to be conducted in the three year period before the visa application. This applies to any application for a visa made on or after 1 July 2012 (see Schedule 1, Item [124] to the Migration Amendment Regulation 2012 (No. 2) (Cth)).
It is perhaps also relevant to note that in Singh Barker J understood that the applicant before him felt aggrieved in that he was judged according to a different test from that which had previously applied and a different test to that which had applied to people he knew. Mr Kumar understandably expressed a similar concern. However, as was pointed out in Singh at [13], the law plainly is that the version of reg.1.15C as amended has to be applied.
In any event, Mr Kumar did not (including in the time after the visa application was lodged)] provide any IELTS test result that met the requisite score. Even if an argument based on Berenguel was correct, he could not succeed on that basis.
In oral submissions the Applicant seemed to suggest that he was in some way misled by what he had been told by his solicitor or migration agent. There is no evidence in this respect. Nothing in what the Applicant has said raises even an arguable case of jurisdictional error by reason of migration agent fraud. There is no allegation of fraud. At most there is an allegation of a mistaken belief on the part of the Applicant (or perhaps of misinformation provided by a migration agent or solicitor in relation to the criteria for a visa and when they could be met). In any event, such complaints do not establish any basis for suggesting that there was any impact on the Tribunal decision, whether in the sense considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 or otherwise.
Insofar as the Applicant raised, more generally, his desire to stay in Australia; to work here; not to return to his home country; and referred to his past study and work in Australia, while I understand, on a personal level, the concerns expressed by the Applicant, they are not matters which establish jurisdictional error on the part of the Tribunal. As I tried to explain to him, the Court has no discretion on humanitarian grounds or otherwise to grant a visa. The matters that he raises do not establish a reviewable error on the part of the Tribunal.
For the sake of completeness, I note that the Tribunal recorded, in its reasons for decision, that it refused further time for the Applicant to sit another IELTS test or to seek state sponsorship. There is nothing to suggest that it acted unreasonably or irrationally in the exercise of its discretion in the sense considered in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 or Minister for Immigration and Border Protection v Singh & Anor (2014) 139 ALD 50; [2014] FCAFC 1. There was an evident and intelligible justification (see Li at [76]). The Tribunal gave reasons, pointing out, quite correctly, that a further test would also be conducted after the visa application was made and that insofar as the Applicant sought more time to apply for state sponsorship that was not relevant to the issue before the Tribunal as to whether the Applicant had competent English, as required.
As no jurisdictional error has been established, the Application must be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $4500. This is considerably less than the amount provided as a starting point in Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). The Applicant indicated that this was too much for him, based on his personal circumstances, the fact he was not employed and his family situation (including having lost his mother). He sought that the amount be reduced.
However, I am satisfied that the Applicant should pay the Minister’s costs and that the amount is appropriate and reasonable in light of the nature of this matter and other similar matters. I am not satisfied that the Applicant’s personal circumstances are an appropriate basis on which to reduce the amount of the costs in this case, although they may be matters to be taken into account by the Minister in determining when and how to seek to recover such costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 22 July 2015
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