Luwandri v Minister for Immigration
[2020] FCCA 3003
•9 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUWANDRI v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3003 |
| Catchwords: MIGRATION – Graduate visa – decision of Administrative Appeals Tribunal – where the applicant did not sit an English Language Test before applying for visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.349, 476 Migration Regulations 1994 (Cth), reg.4.15, cl.485.212 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | DIOVIAN LUWANDRI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 183 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 November 2020 |
| Date of Last Submission: | 5 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 9 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 183 of 2020
| DIOVIAN LUWANDRI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Indonesia. He arrived in Australia in February 2013 on a student visa (Court Book (“CB”) 10).
On 5 March 2018, the applicant applied for a Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa (the “visa”) (CB 1-21).
On 8 March 2018, the applicant wrote to the then Department of Home Affairs as follows (CB 15):
Thank you for reviewing my visa application. I am writing this letter to inform you regarding the English language requirement.
At the time of lodgement, I was not able to provide the evidence that I have met the English language requirement. I have attached a copy of the booking receipt for the IELTS test that I would be undertaking on the 24th of March 2018. I will append the result of the test that I will undertake as soon as I receive it.
Please do let me know if you require further information or clarification. I believe that the booking receipt attached would be sufficient to show that I have the intention to meet the English language requirement so as to not delay the application further.
The applicant later provided the Department with the results of an English Language Test taken on 24 March 2018 (CB 21).
On 13 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 22-29). The delegate found that the applicant did not meet cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). The delegate was not satisfied that the applicant had undertaken an acceptable English Language Test within the 3 years immediately before the day on which his application was made.
The applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 27 April 2018 (CB 30-32).
On 26 May 2020, the applicant’s migration agent provided extensive written submissions and supporting documents to the Tribunal (CB 46-105). The submissions stated that the applicant had been advised by an officer at the Department that he did not need an English Language Test result, and that he could provide an explanation in writing.
On 28 May 2020, the applicant attended a hearing before the Tribunal (CB 106-108). The applicant’s migration agent also attended.
On 2 June 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 112-116).
On 23 June 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To succeed, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 31 paragraphs.
The Tribunal began by identifying the type of visa sought. It then summarised the reason the delegate refused the visa and noted that the applicant appeared before the Tribunal via telephone (at [1]-[6]).
The Tribunal then noted:
8. The issue in the present case is whether the applicant satisfies cl.485.212 of Schedule 2 to the Regulations, which requires that the application was accompanied by evidence that:
• the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or
• the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).
9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.
The Tribunal explained that there was no evidence that the applicant met cl.485.212(b) of the Regulations (at [10]). It referred to the delegate’s decision in which it is noted that the applicant had answered “No” in relation to a question directed at cl.485.212(b). The Tribunal also noted that the applicant had confirmed at the hearing that he did not hold a passport from a specified country (at [11]-[12]). The Tribunal concluded that the applicant did not meet cl.485.212(b). As such, cl.485.212(a) needed to be met (at [13]).
The Tribunal noted that the applicant had provided no evidence that he undertook an English Language Test in the 36 months prior to lodging his application (at [14]).
Referring to the delegate’s decision, the Tribunal then explained that the English Language Test the applicant had provided was taken after he had lodged his visa (at [15]).
The Tribunal then summarised the information before it as follows:
16. In written submissions and at the hearing, the applicant set out the circumstances which led to him not meeting the English language requirement. Before the Tribunal, the applicant said he had missed the requirement because he had been studying here for a number of years and had not realised he needed to take a test. He realised this the day after submitting the application and he rang the Department and explained he was intending to take the test but had not done so yet. He testified that the officer he spoke to told him to provide an explanatory letter regarding his intention to take the IELTS test. He said he was advised that would be sufficient to show that he had the intention to meet the English language requirement. On 8 March 2018, he wrote to the Department and provided the letter of explanation that he was sitting the test on 24 March 2018 and would provide a test record as soon as it was available.
17. In detailed written submissions from his representative dated 27 May 2020, the applicant contended that:
• The delegate’s decision was tainted by jurisdictional error due to a failure to afford the applicant natural justice; and
• In the alternative, the Tribunal should ‘read down’ the requirement that the evidence of English language proficiency be ‘included in the application’ and proceed to determine the application for the visa before it ‘which now includes all of the relevant documents’.
18. The Tribunal discussed these submissions with the representative at the hearing. With respect to the submission regarding jurisdictional error by the delegate arising from a failure to afford the applicant procedural fairness, the applicant submitted that the Department had provided incorrect advice to the applicant, which he was entitled to rely on in making his application. The applicant contended the Department should have told the applicant his application was ‘doomed for failure’. Further, he was not told he could withdraw the application and re-lodge once he received the English test.
19. The applicant submitted that s.57(2) placed an obligation on the Minister to give the particulars of relevant information to the applicant. The applicant submitted that information regarding the fact the applicant had not met the English proficiency criterion was not provided to the applicant for his comment or response. Further, the applicant submitted that the delegate failed to follow the Departmental policy advice (contained in PAM3) that if evidence of English language proficiency was not provided at the time of application, the delegate should advise the applicant that if the assessment did not predate the application date they could withdraw their application as it would not meet the requirements for a grant of the visa. As the applicant was not requested to provide an explanation or invited to withdraw his application, he was denied procedural fairness.
20. In support of these submissions, the applicant submitted phone records showing he had called a Departmental information line on the date claimed.
The Tribunal continued:
21. The Tribunal expressed some concerns with these submissions. The Tribunal notes that there was no evidence to corroborate the content of the advice provided to the applicant by the Department. In any event, the Tribunal noted that its role was to conduct a review de novo, not to review the delegate’s decision of legal error, jurisdictional or otherwise. The Tribunal’s task is to determine whether the applicant meets the criterion. Even in circumstances of misleading or confusing information from the Department, including in circumstances where the application form for the visa was misleading, the Tribunal’s role was restricted to performing this task. The Tribunal explained that regardless of the reasons for the applicant not meeting the criterion, they must be met. This includes the requirement that the applicant has undertaken a specified English language test within the 36 months before submitting his visa application. The Tribunal explained that it does not have any discretion to waive this requirement.
The Tribunal observed that the advice from the Minister’s Department could not alter the fact that the applicant had to meet the criterion (at [22]).
The Tribunal then stated:
23. With respect to the second submission, the Tribunal understood the applicant to be contending that because the Tribunal was conducting a review de novo, it should assess whether the criteria were met at the time of decision, or at the time the application for review was made. The Tribunal observed that while time of decision criteria may apply for some criteria for the grant of a visa, where the criteria specified that a requirement must be met, or evidence must be provided, at the time the application was made, the requirement must be met satisfying that temporal requirement. The Tribunal accepts that the critical date relating to the test is the date the test was conducted, so a person could rely on a test result received or provided after the date of application for the visa, as long as the test was conducted before that date. However, that was not the situation of the applicant. Under the current definitions, an English language proficiency test undertaken after the date of application cannot be accepted for the purposes of the Schedule 2 criteria and the applicable points test provision for the visa.
The Tribunal did not accept that the submissions provided a basis to find that the applicant met the criteria for the visa (at [24]).
Having explained to the applicant the requirements of cl.485.212 (at [26]-[27]), the Tribunal then stated:
28. The Tribunal accepts that the applicant has undertaken a specified English language test - an IELTS test - and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified
As the applicant did not satisfy cl.485.212 of the Regulations, the Tribunal affirmed the decision not to grant the applicant the visa (at [29]-[31]).
Proceedings in this Court
The applicant’s application for judicial review filed on 23 June 2020 contains a single ground of review as follows:
The Tribunal fell into jurisdictional error due to advice given to the Applicant by an officer of the Minister’s Department about writing a letter to explain why he did not have the IELTS test done at the time he made his application. The Tribunal ought to have remitted the application back to the Minister’s Department with a direction that the Applicant be permitted to withdraw and relodge his application for a Skilled visa.
The applicant was given an opportunity to file an amended application, any affidavit evidence and an outline of written submissions. Nothing further was filed.
The materials before the Court thus include the applicant’s application for judicial review dated 23 June 2020, a Court Book numbering 117 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 21 October 2020.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the ground of review and to outline any other concerns that he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that if he had been told that he could not meet the visa criterion because of the English Language requirement, he would have withdrawn his application. However, he was advised by a Departmental officer that he simply needed to write a letter explaining why the test had not been taken.
This issue will be discussed below when considering the sole ground of review in the application for judicial review.
Consideration
The applicant raises a sole ground of review which argues that the Tribunal should have remitted the matter back to the delegate with a direction that the applicant be permitted to withdraw his visa application.
Section 349(2) of the Act states that on review:
…
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear--exercise a power under section 362B in relation to the dismissal or reinstatement of an application.
The only basis on which the Tribunal can remit a matter to the delegate is in accordance with reg.4.15 of the Regulations which provides:
(1) For paragraph 349(2)(c) of the Act (which deals with the Tribunal’s power to remit):
(a) an application for a visa or entry permit made on or after 19 December 1989 is a prescribed matter; and
(b) subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit.
…
The applicant applied for the visa after 19 December 1989. Accordingly, reg.4.15(1)(a) is met.
However, a direction that the applicant be permitted to withdraw and re-lodge his application for the visa is not a “permissible direction” as per reg.4.15(1)(b).
A permissible direction may have been, for example, a direction that the applicant met the requirements in cl.485.212(a) of the Regulations.
However, a direction that the applicant be permitted to withdraw and re-lodge his application is not a direction that in any way directs “that the applicant must be taken to have satisfied a … criterion”. It is a general direction for remittal to enable the applicant to withdraw an application and this is not permitted.
Further, the Court accepts the Minister’s submission that the Tribunal could not remit the matter with a direction that the applicant met cl.458.212(a) in circumstances where he did not actually meet that criterion. Any argument of equitable estoppel cannot be accepted as to do so would have the effect of compelling the authority to act beyond its statutory power: Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73 at [50].
Accordingly, the sole ground of review is dismissed.
Oral Submissions and Otherwise
The applicant in his oral submissions made reference to the advice provided by the Departmental officer. He stated that he “just wished he had been told so he could have exhausted other options”.
The Court has, in its duty to the self-represented litigant, remained astute and alert to the possibility of error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
The Court is not unsympathetic to the concerns raised by the applicant. His situation is similar to many who come before this Court. Unfortunately, it is not uncommon for an applicant to be provided advice which is misunderstood and which results in the refusal of a visa.
The Court makes no finding as to whether or not the applicant was provided incorrect advice. However, even if it is the case that incorrect advice had been provided, the Court’s ability to address this situation is limited to determining if the Tribunal’s decision is affected by jurisdictional error.
Here, the Tribunal’s decision is not so affected.
The advice that the applicant says was provided by the Minister’s Department did not stultify or prevent the Tribunal from conducting the review of the delegate’s decision. The Tribunal undertook a proper and considered review of the delegate’s decision (including addressing the advice that was given).
Ultimately the Tribunal concluded, correctly, that, notwithstanding any advice given, the applicant was still required to meet the visa criteria. The fact that advice had been given did not provide a discretion to waive the relevant criteria. It did not exempt the applicant from having to meet the criteria. The advice could not “rewrite” the requirements to be granted the visa: Kumar v Minister for Immigration & Border Protection [2014] FCA 1336.
The applicant was required to meet the criteria. There was no basis for the Tribunal to consider or find otherwise. The Tribunal came to the only conclusion open to it.
Further, any remittal of the matter would be futile. It remains the case that the applicant did not take the English Language Test prior to applying for the visa. He cannot “fix” that fact. The Tribunal would inevitably come to the same conclusion.
Conclusion
The application for judicial review fails to identify any jurisdictional error. The Court has otherwise been unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 November 2020
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