Kumar v Minister for Immigration

[2014] FCCA 2496

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2496

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal (Tribunal) – whether Tribunal was correct to conclude that reg.1.15C of the Migration Regulations 1994 (Cth) required an applicant for a Skilled Graduate (Temporary) (Class VC) Subclass 485 visa (485 visa) to have undertaken an English language test that was conducted in the two years immediately before the day on which the applicant applied for the 485 visa – no jurisdictional error.

Legislation:

Migration Regulations 1995 (Cth), reg. 1.15C, 1.15C(a), 1.15C(a)(ii)

Schedule 2, cl. 485.215

Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439
Singh v Minister for Immigration and Border Protection [2014] FCA 185

Applicant: MANOJ KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1351 of 2013

Judgment of: Judge Manousaridis

Hearing date: 15 April 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Applicant in person.

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1351 of 2013

MANOJ KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled Graduate (Temporary) (Class VC) Subclass 485 (485 visa).

Background

1. The applicant applied for a 485 visa on 14 September 2011. One of the criteria he had to satisfy was that prescribed by cl.485.215 of Schedule 2 to the Migration Regulations 1995 (Cth) (Regulations), namely, that the applicant had “competent English”.

2. On the day the applicant applied for a 485 visa, the expression “competent English” in relation to a person who applied for a General Skilled Migration visa[1] was defined in reg.1.15C of the Regulations as follows:

   [1] The expression “General Skilled Migration visa” was defined in reg.1.03 of the Regulations to mean “a Subclass 175, 176, 475, 476, 485, 487, 885, 886 or 887 visa, granted at any time”.

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

   (a)satisfies the Minister that:

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

   (ii)the test was conducted in the 2 years immediately before the day on which the application was made; and

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

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

3. In that form, reg.1.15C incorporated an amendment made by the Migration Amendment Regulations 2011 (No 3).[2] The amendment was expressed to commence on 1 July 2011. Its purpose “was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application and followed judgments in which it was held that the previous version of reg.1.15C of the Migration Regulations allowed for a test to be taken after a visa application had been lodged”.[3]

   [2] SLI NO 74 of 2011

   [3] Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 at [12] (Judge Lucev). Reg.1.15C was again amended by Migration Amendment Regulation 2012 (No. 2) SLI 2012 No. 82. These amendments commenced on 1 July 2012

4. At the time he applied for a 485 visa, there was also in force legislative instrument IMMI 11/036 the Minister had made pursuant to reg.1.15C that specified the language test and the score that was required to be achieved under that test. Legislative Instrument IMMI 11/036 was revoked by Legislative Instrument IMMI 12/018 which commenced on 1 July 2012. It specified requirements for visa applications lodged before 1 July 2012, as well as for visa applications lodged on or after 1 July 2012. The language tests and scores specified by Legislative Instrument IMMI 12/018 for visas lodged before 1 July 2012, were in substance the same as the tests and scores specified by Legislative Instrument IMMI 11/036.

5. The applicant applied for a 485 visa through his agent who lodged the application online.[4] The application form the applicant submitted contained the question “Have you undertaken an English test within the last 24 months?” which the applicant answered “No”.[5] The application form also contained the following information:[6]

   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 where 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 results if they did not provide them at time of application. At this point in time, if evidence has not been provided the application may be refused.

   [4] Affidavit of M. Kumar, 14.11.2013, [3]

   [5] CB10

   [6] CB10

6. A delegate refused to grant the applicant a 485 visa, and the Tribunal affirmed the delegate’s decision. It did so after the applicant failed to appear before the Tribunal to present evidence and provide arguments. The Tribunal affirmed the delegate’s decision because there was no evidence before the Tribunal that the applicant “has achieved the specified test score in an IELTS test conducted in the 2 years immediately before the day on which the visa application was made”.[7] For that reason, the Tribunal concluded the applicant did not have competent English within the meaning of reg.1.15C(a) of the Regulations and, therefore, the applicant did not satisfy cl.485.215 of Schedule 2 to the Regulations.

   [7] CB83, [9]

Grounds of application

1. The applicant, who is not legally represented, stated the following grounds of application:

   1.Here, the First and Second Respondent erred in the application of clause 485.215 in Part 485 of Schedule 3 of the Migration Regulations.

   2.That the requirement to demonstrate competent English in an application for a sub class 485 visa should be a time of decision requirement as the online visa application stipulated that the applicant has time until the decision to provide evidence of English,

   3.That the failure of the first and second respondent to provide reasonable opportunity to provide evidence of English language ability at the time of the decision was a jurisdictional error.

Ground 1

1. Ground 1 does not identify the manner in which it is said the Tribunal failed to apply cl.485.215 of Schedule 2 to the Regulations. And at the hearing before me, the applicant said he had no submission to make in support of ground 1.

2. In my opinion, the Tribunal correctly applied cl.485.215 of Schedule 2 to the Regulations. As has been held in a consistent line of cases, reg.1.15C(a) means what it says: an applicant must have undertaken the test specified in any legislative instrument the Minister may have issued under reg.1.15C, that test must have been conducted in the two years immediately before the day on which the application is made, and the applicant must have achieved the score specified by any legislative instrument made pursuant to reg.1.15C of the Regulations.[8] There was no evidence before the Tribunal that the applicant had undertaken a test that had been conducted in the two years before 14 September 2011 when the applicant applied for a 485 visa.

   [8] See, for example, Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [11]-[13] (Barker J)

Ground 2

1. As I read ground 2 of the grounds of application, it is a claim that the passage from the application which I set out in paragraph 6 of these reasons states that the satisfaction of the English competency test is a criterion that needed to be satisfied at the time of decision, not at the time of application. At the hearing before me, the applicant made no submission in support of the ground.

2. In my opinion, the passage is not misleading. It states that the applicant has no more than twenty-eight days to provide the “English Language results”. The passage does not refer to an applicant being able to undergo an examination after the date of application. Even if the passage were misleading, that could not alter the proper construction of cl.485.215 of Schedule 2 to the Regulations, and the duty the Tribunal had to apply to the application before it the correct construction of cl.485.215. Further, although the applicant has sworn an affidavit in which he says that he read the passage as meaning that his having English competency was a time of decision criterion, and that he relied on the passage to his detriment, he did not give evidence of the nature of the detriment he say he suffered. For example, he does not say when he became aware of the passage; nor does he say how he relied on the passage.

Ground 3

1. The third ground appears to claim that the Tribunal was obliged to give the applicant an opportunity to acquire English competence before it made its decision. The Tribunal was not so obliged. As I say above, reg.1.15C(a)(ii) makes it clear that an applicant for a 485 visa had to have undertaken a language test that was conducted in the two years immediately before the day on which the application was made. The applicant did not do that.

Other matters

1. At the hearing before me, the applicant said he was unable to undertake the English language test because at the time his father in India was seriously ill, and that led the applicant not being able to concentrate on his career. As I understood him, the applicant asked whether I could now accept his English language test results which he attached to an affidavit, and, in effect, give him the opportunity to pursue his career in Australia.

2. I have no reason to doubt that the applicant’s father was seriously ill and that his father’s illness affected the applicant’s concentration; and I have no reason to doubt the applicant is now in a position to demonstrate English language competence. Unfortunately, these are not matters that are relevant to my determining whether the Tribunal made any jurisdictional error. If, as I have found, reg.1.15C of the Regulations required that the applicant must have undertaken an English language test that had been conducted in the two years immediately before the day on which the applicant applied for the 485 visa, the applicant’s not having undertaken such test in the two years before that date necessarily meant he was incapable of satisfying an essential criterion for the granting of a 485 visa.

Conclusion and disposition

1. The applicant has not succeeded on any of his grounds of review. I propose, therefore, to dismiss his application, and order that he pay the Minister’s costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 31 October 2014