LU v Minister for Immigration

[2018] FCCA 925

FEDERAL CIRCUIT COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 925

Catchwords:
MIGRATION – Application for skilled visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to consider the intention and circumstances of the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), sub-div.B of div.3 of pt.2

Migration Regulations 1994 (Cth), reg.1.15C , cl.885.221 of sch.2, pt.6B.4 of sch.6B, sch.6C

Other material cited:
IMMI 15/005 Language Tests, Scores and Passports dated 3 December 2014

Cases cited:

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Applicant: WEI LU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1167 of 2017

Judgment of: Judge Smith

Hearing date: 8 March 2018

Date of Last Submission: 8 March 2018

Delivered at: Sydney

Delivered on: 8 March 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Lucchese, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1167 of 2017

WEI LU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration made on 12 May 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa.

2. In order to be granted that visa, the applicant had to satisfy the criteria in cl.885 in sch.2 to the Migration Regulations 1994 (Cth). Clause 885.221 required that the applicant have what is referred to as the qualifying score when assessed in relation to the visa under sub-div.B of div.3 of pt.2 of the Migration Act 1958 (Cth). Relevant to that are the provisions in sch.6B and 6C of the Regulations.

3. The scheme set up by those legislative provisions is a fairly complex scheme which changes from time to time according to instruments made by the Minister under the Act and the Regulations and, in effect, gives different scores according to different types of characteristics and achievements by each visa applicant. One of those achievements is English language proficiency, which is scored by reference, relevantly, to a test under the International English Language Testing System (IELTS).

4. There were, relevantly, three different levels of English, which each scored different points under the system. For instance, in sch.6B of the Regulations, somebody with proficient English would score 25 points, whereas a person with competent English would score only 15 points.

Background

1. The delegate made a decision on 12 May 2015 refusing the applicant a visa, having assessed the points according to the scheme set up under the Act and Regulations. One of the critical bases for that decision was the assessment of the level of the applicant’s English language proficiency.

2. The applicant then applied to the Migration Review Tribunal (MRT) for review of that decision.  Subsequently, on 1 July 2015 the MRT’s functions were taken over by the Tribunal, which continued with and concluded the review of the delegate’s decision.  The applicant attended a hearing conducted by the Tribunal.  During that hearing, the applicant “requested the Tribunal postpone making a decision until she was able to undertake a further IELTS test”.

3. In the test that the applicant had lodged with her application, she had scored the requisite level of 7.0 in three of the four components, but only 6.5 for the writing component.  This meant, as the Tribunal explained at [10] of its reasons, that “she was assessed by the delegate as having ‘competent English’ rather than ‘proficient English’: the latter requires a score of at least 7 in each of the 4 components”[1]: see reg.1.15C of the Regulations and IMMI 15/005 Language Tests, Scores and Passports dated 3 December 2014.

   [1] Emphasis in original.

4. The applicant “told the Tribunal that she has been studying in Australia, including a Master degree” and “expressed frustration with her IELTS test performances”.  The Tribunal noted that after that initial IELTS test, the applicant had attempted multiple tests to assess if she had the requisite level of English.  Those tests, according to the Tribunal, revealed that the applicant had “regularly scored 7.0 points for Writing but, in any single test sitting, she scored less than 7.0 for another of the remaining 3 components, typically, Speaking”.  As a result, on the basis of each of those tests, the applicant only had achieved the level of competent English rather than proficient, and so would, under the points system, qualify for fewer points.

5. The Tribunal noted that, in all, the applicant had “provided evidence of having undertaken 34 separate IELTS tests” and that “[s]he did not provide results from any other type of English language test such as the Occupational English Test.”  It is apparent that the Tribunal did postpone its decision for some time after the hearing on the basis of the applicant’s request at the hearing.  It noted at [12] of its reasons that on 6 January 2017 the applicant provided the results of IELTS tests that had been undertaken on 10 and 17 December 2016. 

6. In the first of those, the applicant had “scored 7.0 for Listening, 7.5 for Reading and 7.0 for Speaking but only 6.0 for Writing”.  In the second test, the applicant “scored 7.0 for Listening, 7.0 for Reading, 6.5 for Speaking and 6.0 for Writing”.  The Tribunal recorded that the applicant’s adviser “indicated she was seeking to have the test results remarked and would provide the results to the Tribunal within the 2 month period indicated by IELTS on its website for a remark”[2].

   [2] Citations omitted.

7. It is clear also, given the date of the Tribunal’s decision, being 23 March 2017, the Tribunal waited for news of that re-mark.  However, it noted that it did not receive any further documentation, and it was for that reason that it made its decision when it did.

8. I note all of that background because, although the applicant did not raise an issue with that aspect of the Tribunal’s reasoning, it might be thought that there could have been some unreasonableness in the Tribunal’s failure to wait for the applicant to achieve better results, given its centrality to the ultimate reasoning by the Tribunal: see, for example, Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

9. In my view, the circumstances in this case are not such that no reasonable decision-maker could have proceeded to a decision when it did and to have refused to allow further time. Given the background and the many attempts by the applicant to achieve a higher result in the IELTS test, there was a readily apparent and logical basis for its decision.

Tribunal’s decision

1. In its decision of 23 March 2017, the Tribunal went through each of the elements of the points system and made findings which ultimately led to the conclusion that the applicant did not reach the qualifying score. The particular findings made by the Tribunal are summarised by the respondent in his written submissions at [6] to [10], and I set those out below:

   6The Tribunal assessed the applicant’s score under Schedule 6B as 115 (at [13]-[34]). Relevantly, the Tribunal found that the applicant had ‘competent English’ at the time of her subclass 885 visa application and was therefore entitled to 15 points (whereas an applicant who has ‘proficient English’ is entitled to 25 points) (at [17]-[18]).

   7The Tribunal assessed the applicant under each of the qualifications and found that she did not achieve the qualifying score of 120 under Schedule 6B at the time of the delegate’s decision (at [35]), or at the time of the Tribunal’s decision (at [36]).

   8Based on its anterior findings, the Tribunal went on to assess the applicant’s score under Schedule 6C as 50 (at [39]-[55]). Relevantly, the Tribunal found that the applicant had competent English at the time of her subclass 885 visa application was therefore not entitled to any points (whereas an applicant who as ‘superior English’ is entitled to 20 points) (at [40]).

   9The Tribunal found that the applicant did not achieve the qualifying score of 65 under Schedule C at the time of the delegate’s decision (at [56]), or at the time of the Tribunal’s decision (at [57]-[58]).

   10The Tribunal concluded that the applicant did not achieve the qualifying score under either Schedule 6B or 6C and accordingly, did not meet cl 885.221 of Part 5 of Schedule 2 of the Regulations. As such, it affirmed the decision under review.

   (Without alteration)

2. Once again, then, it was clear that one of the bases for which the applicant did not satisfy the criterion in cl.885.221 in sch.2 of the Regulations was the score that she had achieved in the IELTS test.

Consideration

1. In her application for judicial review, there are six separate paragraphs, the first three numbered 1 to 3 and the second set of three also numbered 1 to 3.  The first two of those grounds, and the fifth, that is, [2] in the second set of paragraphs, relate to or contend that the applicant had a genuine intention to apply for the subclass 885 visa, and that the applicant, in fact, had always tried to pass her test, and that she could not do so for a situation beyond her control.

2. That much may be accepted.  However, the difficulty with the grounds is that they do not raise any jurisdictional error in the Tribunal’s reasons.  The role of this Court is limited to determining whether the Tribunal properly fulfilled its obligation to review the delegate’s decision.  Any failure to do so may constitute a jurisdictional error.

3. The allegations made by the applicant, however, do not relate to the task of the Tribunal. Simply put, that is because there is no requirement in cl.885.221 and the complicated points system to which it refers, that depends upon the genuineness of the applicant’s attempts. Indeed, the Tribunal did not doubt in any way that the applicant was genuine in her attempts. However, it recorded, as has not been disputed by the applicant, simply the outcome of those attempts, and it was that outcome that was relevant to whether or not the applicant scored one score in her pursuit of a visa or a higher score.

4. In [3] of the first set of paragraphs, the applicant explains that she could not obtain work experience due to a situation beyond her control.  Work experience is relevant in the points system in at least one respect.  In pt.6B.4 of the Regulations, for example, there are points available if the applicant was employed for at least 36 months in the 48 months immediately before the visa application was made; however, those points are only awarded if the employment was either in a skilled occupation or if the nominated skilled occupation was one for which 60 points were available which was the case in this case, the skilled occupation being accountancy. 

5. However, the applicant told the Tribunal, and the Tribunal clearly accepted, that she had not worked in her nominated occupation or a related occupation or, indeed, in any other skilled occupation because, despite her efforts to find work, all her employers required her to already have permanent residence. At [20], the Tribunal considered that evidence and found that she did not qualify for any points under that Part. The Tribunal was entitled to do so, given the applicant’s evidence.

6. In this ground, which was repeated today in oral submissions, the applicant in effect, contends that it was not fair that she was unable to obtain points because she had tried to obtain relevant work experience, but was unable to do so because she only had a bridging visa and not a permanent residency visa which was required by the people from whom she sought employment.  The Tribunal accepted that that was the case.  The difficulty, however, for the applicant before the Tribunal and now before the Court is that there is nothing in the points system and, in particular, in pt.6B.4 or in sch.6C of the Regulations for that matter, that allocates any points for genuine efforts made by an applicant to obtain work experience which attempts are thwarted by the requirement of potential employers for permanent residency. 

7. That may give rise to some significant difficulty for people who are applying for this type of visa or in any other visa which requires the qualifying score.  However, that is a matter for the policy which has been determined by the legislature and in delegated legislation and is beyond the power of the Court to interfere in.  For those reasons, this ground does not establish any jurisdictional error. 

8. In the fourth paragraph in the grounds before the Court, the applicant explains that she has completed the relevant qualifications for a subclass 885 visa. There are two ways to see that ground: the first is that the qualifications relate to her study qualifications, and if it means that, then the ground can go nowhere because the Tribunal accepted that the applicant had her qualifications and allotted the maximum 60 points to the applicant for those qualifications. If, however, the applicant means the English language qualifications, which I am not sure that she does, then the Tribunal found, and there can be no real contest about this, that the applicant only achieved the level of competent English as described by the Regulations, and so found that she was entitled to 15 points rather than to the 25 points for the higher level of English.

9. Properly understood, this ground relates to educational qualifications, and while that may be accepted, it is, according to the scheme of the Act and the points system, alone not sufficient to qualify the applicant for a visa.

10. The sixth paragraph is the expression of a desire that the Court gives the applicant a fair decision and allows her “to apply for a subclass 885 onshore”. Those two things, namely, a fair decision and allowing the applicant to apply for a subclass 885 visa onshore, are not necessarily the same things.

11. The outcome that the applicant wants, of course, is for the Tribunal to reconsider the matter and for her to be granted a visa.  However, as I have explained, the only way that she can achieve that outcome in the Court is for her to establish that there is a jurisdictional error in the Tribunal’s reasoning or in the way it conducted the review.  Nothing in her grounds and nothing raised by the applicant today has established that.  For that reason, the Court cannot grant her wish in that respect. 

12. Apart from explaining some of the grounds in her application at the hearing today, the applicant also said that she asked the Tribunal for time so that she could do another IELTS test. The material before the Court, which consisted of the material in the Court book, does not support that assertion. As I explained earlier in these reasons, what the applicant’s adviser did before the Tribunal handed down its decision was to seek further time in order for the applicant to have her IELTS tests re-marked.

13. That time was granted.  Unfortunately, it appears there was no material before the Tribunal to show what the results of the re-mark were.  In light of that, the assertion is not made out and so whatever ground might arise from the assertion is not established.

Conclusion

1. For those reasons I am not satisfied that the Tribunal’s decision was affected by jurisdictional error and the application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       17 April 2018