Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 307
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 307
File number(s): SYG 3410 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 29 April 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Student visa – whether delegate considered compelling and compassionate circumstances – whether Tribunal gave ‘fresh look’ – reliance on s 55 of Migration Act – whether applicant denied natural justice – whether there is jurisdictional error – no jurisdictional error identified – application dismissed. Legislation: Migration Act 1958 (Cth) ss 55, 357A, 359A, 476
Migration Regulations 1994 (Cth)
Cases cited: Berenguel v Minister for Immigrationand Citizenship [2010] HCA 8
Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Thork v Minister for Immigration & Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 21 April 2022 Date of hearing: 21 April 2022 Place: Parramatta Counsel for the Applicant: In person Solicitor for the Respondents: Ms Dunn ORDERS
SYG 3410 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANJEEV KUMAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $5600.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. The applicant entered Australia in 2014, holding a Student visa. The applicant applied for a further student visa on 13 March 2017. A delegate of the Minister (“the delegate”) refused to grant the applicant his visa on 28 April 2017 on the basis the applicant did not meet the English language proficiency requirements pursuant to cl 485.212(a) of the Migration Regulations 1994 (Cth) (“the Regulations”).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short consisting of some 15 paragraphs only. After setting out the relevant background, the Tribunal noted that the issue in the case was whether the applicant satisfied cl 485.212 of the Regulations. That regulation requires the visa application to be accompanied by evidence that:
a) The applicant:
i.has undertaken a language test specified by the Minister in a legislative instrument; and
ii.has achieved, within this period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements…: (see; cl 485.212(1)(a)); or
b) The applicant holds a passport of a type specified by the Minister in an legislative instrument made for this paragraph: (see; cl 485.212(1)(b)).
The Tribunal noted that the applicant did not hold a passport from one of the specified countries in the legislative instrument and that he had not undertaken an English language test with in the last 36 months.
After lodgement of the visa application, the applicant provided to the Department of Immigration evidence that he had undertaken a Pearson Test of English (“PTE”) on 29 March 2017. The Tribunal noted that the applicant must achieve a PTE test result of overall 50, with not less than 36 in each of the four test components within three years before the day on which the application was made.
Although the applicant achieved the specified score in the test, the test he undertook was not undertaken within the three years before the day on which the visa application was made.
The Tribunal noted that at the hearing it discussed the requirements and the evidence that was required to the applicant. The applicant noted that he had booked a test but decided to lodge the visa application early, as he thought he could meet the requirements of the language test later. The Tribunal advised the applicant that it was bound by the Regulations that apply to the time of lodgement of the visa application and that in relation to the applicant’s other evidence, the Tribunal had no discretion in the matter.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his Student visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Initiating Application lodged with the Court on 7 November 2017. It is a matter of regret that this matter has taken so long to come on for hearing. The grounds of judicial review are as follows verbatim:
1. I am a national of India, born on 2nd September 1989. I entered Australia in February 2014 holding a Student visa, which expired in March 2017.
2. I applied for the 485 visa in March 2017. The delegate refused to grant the visa on the basis that I did not satisfy Regulation 485.212(a). He did not consider the compelling and compassionate circumstances I had for not meeting this requirement the time of the application.
3. I sought a review of the delegate’s decision at the Administrative Appeals Tribunal (AAT) but the AAT did not give a fresh look at my case but rather affirmed the decision.
4. I believe that the AAT and DIBP made an error by not considering the compelling reasons I had for not satisfying Regulation 485.212(a). I also gave the reason in written letter but it was still not taken into consideration.
5. I had taken the Pearson Test of English (PTE) test on 29 March 2017 and satisfied the English language requirements set out for the 485 Visa by obtaining a score of 64. I tried my best to find a date before the application lodgement but due to all bookings being taken I could not obtain an earlier date.
6. Under section 55 of the Migration Act it states that further information may be given until the Minister has made a decision whether to refuse or grant the visa and that the Minister must have regard to that information in making the decision. Taking this into account I believe the Minister should have considered the PTE test results I provided after lodging the visa because I had provided them before the refusal decision was made on 28th April 2017.
7. The injustice of this decision will have detrimental impacts on my life. I have always been a diligent and hard-working student and I have always complied with my visa conditions and requirements.
8. I meet all the requirements set out for the primary applicant for the 485 Visa and I wish to be given a fair chance to pursue my study goals and complete the final part of my academic career.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter and the Court was satisfied that the applicant was able to understand and meaningfully participate in the hearing.
Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court Books and that a copy of the first respondent’s written submissions had been provided to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be conducted.
Despite Court orders, no written submissions or other material was provided to the Court in support of the application. The applicant confirmed with the Court the circumstances that led him to lodge the PTE after he lodged his application for a Student visa. The applicant confirmed however that he had completed his studies in Australia.
At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in reply. The applicant said ‘No’.
THE FIRST RESPONDENT’S SUBMISSIONS
After setting out the background of the matter, the first respondent’s written submissions noted to the extent that Grounds two, four and six seek judicial review of the delegate’s decision, the Court has no jurisdiction to review primary decisions pursuant to s 476(2)(a) of the Migration Act 1958 (Cth) (”the Act”).
In relation to Grounds one, five, seven and eight, the first respondent’s representative submitted that they make no claim as to jurisdictional error on the part of the Tribunal and appeared to seek to engage the Court in impermissible merits review.
In order to satisfy cl 485.212 of the Regulations, as they stood at the time of the applicant’s Student visa application, the application was required to be accompanied by evidence of English language proficiency that met the requirements of the legislative instrument IMMI 15/062, including that the required score be obtained “within the three years before the day on which the application was made”: (see; IMMI 15/062[4] and cl 485.212 of the Regulations).
The first respondent’s representative submitted that it was well established that evidence of English language proficiency obtained after the time of the visa application does not satisfy this criteria: (see; Kumar v Minister for Immigration & Border Protection [2018] FCA 140, Thork v Minister for Immigration & Border Protection [2019] FCA 333).
The visa criterion requiring an English language test score be obtained not more than 36 months before the date of lodgement of the visa application is an inflexible one and was strengthened in response to the decision of Berenguel v Minister for Immigrationand Citizenship [2010] HCA 8 (“Berenguel”). The High Court in Berenguel distinguished between clauses which allow for criteria “to be satisfied at the time of the application” as compared to clauses which require an application to “be accompanied by evidence” as here. In the absence of the applicant provided evidence of the specified PTE score at the time of the visa application, the applicant did not meet the criteria in cl 485.212 of the Regulations for the grant of a Student visa and it was submitted that the Tribunal was correct to have found accordingly.
In terms of the grounds of judicial review, by ground three, the applicant contends that the Tribunal did not “give a fresh look” to his case. It was submitted the Tribunal properly considered the applicant’s claims and properly founded had no discretionary power to grant the Student visa.
In relation to ground four, which alleges that the Tribunal did not consider compelling reasons, it was submitted this was not a class of visa in which compelling reasons may affect the outcome of the visa application. The Tribunal accepted that the applicant had achieved a specified PTE test score, however this was obtained after the visa application had been made and was not in accordance with cl 485.212(a) of the Regulations.
Grounds four and six allege the Tribunal failed to consider evidence. This assertion cannot be sustained. Whilst the Minister acknowledges that the Tribunal did not specifically refer to the applicant’s representative’s written submissions, those submissions merely referred to the applicant having met the criteria for the Student visa at the time of the decision that the applicant had, at that stage, score the required mark of his PTE test.
There is no evidentiary basis to infer the Tribunal overlooked any item of significant evidence such that fell into error. The Tribunal had regard to the fact there was no evidence before it to indicate that the visa application was accompanied by evidence of the specified language test. Evidence of the attainment of the required score in the test after the submission of the application was irrelevant. The submission made by the applicant’s representative was not evidence that was cogent or significant to the Tribunal’s reasoning such that the Tribunal fell into error by not expressly referring to it: (see; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]-[112]).
To the extent that ground seven alleges that the “injustice” of the decision resulted in the applicant being denied procedural fairness, the applicant does not particularise any alleged breach of any provision of Division 5 of Part 5 of the Act. Section 357A of the Act has the effect that the relevant provisions are an exhaustive statement of the natural justice hearing rule. The applicant was invited to and attend the hearing before the Tribunal. There was no information which enlivened the Tribunal’s obligations under s 359A of the Act. The applicant was granted a meaningful opportunity to present evidence and arguments.
CONSIDERATION
The relevant regulations clearly require that, for the type of visa sought by the applicant, the application must be accompanied by, at the time of the submission of the application, evidence of undertaking a PTE and achieving the relevant score “within three years before the day on which the application was made”.
In this case, regrettably, the applicant submitted evidence of the PTE and achieving a relevant score after submitting the application. That being the case, the Tribunal had no discretion other than to refuse the applicant his Student visa. It was the only decision open to the Tribunal. The law on ‘time of application’ matters is now well settled as set out above. Section 55 of the Act cannot override a time of application criteria. In any event, that section only applies to a delegate’s decision and not to the Tribunal and is of no impact in the current matter.
Any compelling evidence, which even if accepted by the Tribunal, could not impact on the decision of the Tribunal. It was required to affirm the decision under review as the applicant did not meet the criteria under cl 485.212(a) of the Regulations.
In terms of the specific Grounds of judicial review, Ground one is a statement of fact and not a ground of judicial review.
Ground two relates to the delegate’s decision which is not reviewable by this Court due to the operation of s 476(2(a) of the Act. The Court’s jurisdiction in this case is limited to a review of the Tribunal decision.
Ground three has no merit. The Tribunal conducted a proper review of the applicant’s case and came to the only decision open to it in all the circumstances. All legislative and procedural requirements were followed. This ground merely expresses disagreement with the outcome arrived at by the Tribunal.
Ground four complains that the Tribunal did not consider the applicant’s compelling circumstances. Given the applicant did not meet the time of application criteria for his PTE by submitting it after his application for a Student visa, there was no capacity for the Tribunal to consider the applicant’s personal circumstances. Ground four has no merit.
Ground five is not a proper ground of judicial review, rather an explanation as to why the applicant completed his PTE after submitting his visa application.
Grounds four and six allege the Tribunal failed to consider all the evidence. A fair reading of the Tribunal decision does not indicate any item of relevant evidence was overlooked by the Tribunal. It specifically acknowledged the applicant had undertaken the PTE test and achieved a pass score. It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. The Tribunal is required to address in its reasons only those matters which are necessary to determine the matter according to law. This ground has no merit.
Ground seven is a broad statement that the decision is unjust. The Tribunal made no adverse finding in relation to the applicant as regards his application to his study and his compliance with all visa conditions. While the Court appreciates that the applicant may well view the decision as unjust, the Court must apply the law as it stands. In regards to this type of via, the application must be accompanied by a PTE test result. Ground seven has no merit.
Ground eight is not a proper ground of judicial review. Rather, it is a statement of disagreement with the Tribunal decision.
CONCLUSION
In the circumstances as set out above, the Court finds the Tribunal decision has no error of law either on the basis articulated by the applicant or on any other basis.
Accordingly, the application is dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 29 April 2022
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