KUMAR v Minister for Immigration
[2014] FCCA 1439
•23 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1439 |
| Catchwords: MIGRATION – Failure to provide evidence of having competent English – whether criteria for visa satisfied – Minister required to refuse visa. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.65, 99, 100, 101, 424A, 425 Migration Regulations 1994, reg.1.15C(1), cl.487.215 |
| Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 Katam v Minister for Immigration & Anor [2014] FCCA 633 |
| First Applicant: | PARDEEP KUMAR |
| Second Applicant: | MS KOMAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2128 of 2013 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 23 June 2014 |
| Date of Last Submission: | 23 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2014 |
REPRESENTATION
| The Applicants appeared In Person |
| Counsel for the First Respondent: | Mr N. Wood |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for judicial review filed 4 December 2013 is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2128 of 2013
| PARDEEP KUMAR |
First Applicant
| MS KOMAL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for a judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 19 November 2013. That decision affirmed the decision of a delegate to the Minister not to grant the applicants Skilled (Provisional) (Class VC) visas. The applicants applied for visas on the General Skilled Migration application form on 21 August 2012 (Court Book “CB” p.1). The second applicant – Ms Kamal – is the Spouse/De Facto Partner of the first applicant (CB p.4).
The application form (in CB p.11) clearly states the requirement that:
“You have up until the time of decision to provide evidence that you have competent English.”
The application form sets out the requirement for English language training and states (at CB p.1):
“Have you paid a fee for an English language training course in a State/Territory in which acceptable arrangements exist?”
The applicants filed an application for judicial review on 4 December 2013, and an amended application on 15 April 2014. The grounds for judicial review are included therein as follows:
(1)The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction; The tribunal made a fundamental jurisdictional error, as it failed to consider the operation of sections 99 – 101 of the Migration Act (Cth) which requires a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given.
Particulars
The applicant says that the form he filled out when making his application does not state that you need to have passed your English test at the time of lodging your application. The applicant proceeded with his application on this basis. The applicant now has that required level of English.
If the applicant had made an online application, you are asked if you have the requisite English and if you say no it does not allow you to proceed.
By order of Registrar Allaway on 19 February 2014, a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”) was dispensed with, and it was ordered that the application be listed for final hearing on 23 June 2014. At the hearing before the Court today, the applicants appear in person, and the Minister is represented by Mr Wood of Counsel.
The applicants filed Contentions of Fact and Law on 15 April 2014, and the Court asked the first applicant whether he wished to make further submissions in support of their application. He declined to do so. The Court obtained the consent of the Minister to proceed to a decision in the matter without hearing oral submissions on his behalf, pursuant to r.15.03 of the Rules.
Sections 99 to 101 of the Migration Act 1958 (the “Act”) provide as follows:
(99)Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
(100)For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
(101)A non-citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
The application form provides that you have up until the time of decision to provide proof that you have competent English (CB p.11). Regulation 1.15C(1) of the Migration Regulations 1994 (the “Regulations”) provides as follows:
(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.
Therefore, a person has competent English if the person undertook and achieved a score of six or more in a language test conducted in the three years immediately before the day on which the application was made. Pursuant to the requirements on the form, the applicants had up until the time of decision to provide proof that they had undertaken and achieved a score of six or more in an English language test in the three years immediately before they made their applications. They failed to provide that proof. The delegate decided that the applicants did not satisfy cl.487.215 in Schedule 2 to the Regulations because they did not have competent English as defined in reg.1.15C.
The Tribunal found that the first applicant had undertaken an English language test within 36 months before the date of application, but had not achieved a score of six or more in each of the four bands (CB p.119 [15]).
The first applicant advised the Tribunal that he had achieved a score of six or more in each band in a test he undertook on 17 August 2013 (CB p.119 [16]). The Tribunal found that the applicant achieved the relevant score in the IELTS after lodging his application, and therefore not during the relevant period of three years immediately before the date of the application as required by reg.1.15C(1)(b) (CB p.120 [21]). The Court finds no error of law in that conclusion.
The application was lodged on 21 August 2012 (CB p.1). The test was undertaken on 17 August 2013 and was therefore not in the three years immediately before the day on which the application was made. It is true that the application form does not state that an applicant has to have passed the English language test at the time of lodging their application for a visa; however, that is a requirement in reg.1.15C(1)(b).
Upon being satisfied that the required criteria for the grant of a visa had not been satisfied, the Minister must refuse to grant the visa pursuant to s.65 of the Act. Sections 100 to 101 do not have the effect that completion of a form is the only requirement that must be complied with to obtain a visa. The Tribunal therefore affirmed the decision of the delegate not to grant visas to the applicants. An error of law has not been established.
The Court finds that the letter from the Tribunal to the applicants on
8 October 2013 (CB p.107) satisfied the requirements of s.424A of the Act, as it gave the applicants particulars of information that the Tribunal considered could be the reason for affirming the decision of the delegate, specifically that the applicants had not presented evidence that they had competent English. The letter related to both applicants, and it is noted that they live at the same address (CB p.8). The application form states they are Spouse/De Facto Partners (CB p.4).
The Department had also satisfied the requirements of s.425 of the Act (CB p.107).
The first applicant argues that he was misled by the application form into believing that he had up until the time of decision to satisfy the requirements to have competent English. The Court accepts the submissions from the Minister that in Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 and Katam v Minister for Immigration & Anor [2014] FCCA 633, the Courts explained that, read in context, the application form does not indicate that an applicant can on a date after the visa application satisfy the criterion by successfully undertaking an English test. Rather, the application form simply indicates that the applicant, can, on a date after the visa application, provide evidence that he has satisfied the criterion of successfully having undertaken an English language test during the requisite period. In Datchinamurthy, the Court specifically rejected the contention that the visa application form effected and implied a repeal of the visa criterion.
The Court finds that both the application form and reg.1.15C allow for proof of having sat an English language test and achieved the required results to be submitted up until the time of decision; however, the test must be conducted in the three years immediately before the date of application.
The Court finds that the form is not inconsistent with reg.1.15C(1) of the Regulations; they must be read together. The Court finds that nothing in the form repeals reg.1.15C, as contended by the applicants.
The second applicant did not provide proof of having met the requirements of reg.1.15C(1). Therefore, the delegate held that she did not meet the requirements of that regulation (CB 89.6).
The application for judicial review by both applicants is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 7 July 2014
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