MASOOD v Minister for Immigration

[2017] FCCA 1988

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASOOD & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1988

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (class VC) subclass 487 visas – competent English – satisfactory score not achieved in test conducted in three years prior to application being lodged – show cause hearing – agent possibly negligent – no arguable case.

Legislation:
Federal Circuit Court Rules 2001, r.44.12
Migration Regulations 1994, reg.1.15C

First Applicant: KAMRAN MASOOD

Second Applicant: NAZIA IRFAN

Third Applicant: DANEEN KAMRAN
(by his litigation guardian, the first applicant)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPLEALS TRIBUNAL

File number: MLG 2282 of 2016

Judgment of: Judge Riley

Hearing date: 12 July 2017

Date of last submission: 12 July 2017

Delivered at: Melbourne

Delivered on: 12 July 2017

REPRESENTATION

Advocate for the first applicant: In person

Solicitors for the first applicant: None

Advocate for the second applicant: No appearance

Solicitors for the second applicant: None

Advocate for the third applicant: First applicant, as litigation guardian

Solicitors for the third applicant: None

Advocate for the first respondent: Ada Wong

Solicitors for the first respondent: Mills Oakley

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Mills Oakley

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the application filed on 20 October 2016 be dismissed.

2. The first and second applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2282 of 2016

KAMRAN MASOOD

First Applicant

NAZIN IRFAN

Second Applicant

DANEEN KAMRAN

Third Applicant, by his litigation guardian, the first applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

1. This is a show cause hearing in the context of an application for review of a decision of the Administrative Appeals Tribunal.  The first applicant applied for a Skilled (Provisional) (class VC) subclass 487 visa.  The second applicant is his wife, and the third applicant is his child.  The wife and child joined in the application as family members.  The first applicant was appointed as the litigation guardian of the third applicant. The first applicant appeared on behalf of the third applicant at the hearing before the court today.  The second applicant did not appear at the hearing before the court today. 

2. One of the requirements for the type of visa that the applicant sought was competent English, as defined in reg.1.15C of the Migration Regulations 1994 (“the Regulations”). That regulation provided that:

   (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.

   (2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

3. The first applicant undertook a language test in the three years immediately before the application was lodged. That language test was undertaken on 21 January 2012. His visa application was lodged on 23 October 2012. The language test he undertook was specified by the Minister in an instrument in writing for the purposes of reg.1.15C of the Regulations, being an IELTS[1] test.  The instrument required a score of at least six in all four components of the IELTS test.  As it happened, in the test completed by the first applicant, he did not achieve a score of at least six in each of the four test components, although his average total score was six. 

   [1] International English Language Testing System

4. None of the applicants held a passport of a type specified in the instrument.  They hold Pakistani passports.  Accordingly, one of them was required to undertake either an IELTS test or an occupational English test. None of them undertook an occupational English test.

5. A delegate of the Minister set out in his decision the relevant regulation, being reg.1.15C of the Regulations, and also extracted the relevant instrument requiring a score of at least six in each of the four test components.  The delegate in his decision dated 9 September 2015 noted that the first applicant had submitted test results which showed 5.0 for listening, 6.0 for reading, 5.5 for writing and 7.0 for speaking.  Consequently, the delegate determined that the applicants did not meet the criteria for the grant of the visa. 

6. The applicants then applied to the Tribunal for review.  The applicants were invited by letter dated 13 September 2016 to a hearing on 10 October 2016.  They were told in the hearing invitation letter that their matter was one of several matters to be heard in a two hour block.  It appears that the Tribunal conducted a group hearing, in which the Tribunal heard numerous matters at once, including the present matter.

7. It appears that:

   a)the Tribunal gave an introductory statement to all of the applicants setting out the basic procedure and the legal requirements for the grant of the visa that each of the applicants was seeking;

   b)the Tribunal then gave each applicant an opportunity to give oral evidence; and

   c)the Tribunal then made a decision in each matter.

8. During the applicants’ hearing before the Tribunal, the first applicant confirmed that all of the applicants held Pakistani passports.  They conceded that none of them had achieved the specified scores in an IELTS test conducted in the three years immediately before they applied for the visas on 23 October 2012. 

9. The first applicant told the Tribunal that he had undertaken an IELTS test after the date of the visa application. He suggested that those results were satisfactory. However, the Tribunal noted that the Regulations require the test to be conducted in the three years immediately prior to the visa application. In the circumstances, the Tribunal found that the applicants did not meet the definition of competent English as defined in reg.1.15C(1) of the Regulations and proceeded to affirm the decision under review.

10. The first applicant attended court today.  He explained to the court that there were seven to ten other matters heard by the Tribunal on the same day as his case.  He said his case was different.  He said that he had trusted his migration agent to make a proper application on his behalf.  He said that his agent told him that he did not need to have a score of six in each of the four test components but only needed an average score of six.  He said that if he had known the law he would not have lodged his application through that agent.  The implication is that he would have waited to get the appropriate test result before lodging his visa application.  He confirmed to the court that did engage his agent to apply for a Skilled (Provisional) (class VC) subclass 487 visa for him.

11. Although the Tribunal can be found to have made a jurisdictional error where a migration agent has perpetrated a fraud on the Tribunal, that does not appear to have happened in this case.  At most, it appears that the agent may have been incompetent and negligent.  That would not be sufficient to establish a jurisdictional error.

12. The first ground in the application is:

    On our hearing at AAT, our case was bundled with other AAT appeals. Although those cases were somewhat IELTS related but our case was different from all the cases. We felt that our case was not heard properly by AAT and we were not given enough time to explain our case.

13. The first applicant said today to the court, in effect, that he would have explained to the Tribunal the fraud issue discussed above.  However, it does not seem to me that it would have made any difference if the first applicant had explained those matters to the Tribunal, because they did not amount to a fraud on the Tribunal, and would not have led to a different outcome. 

14. The first applicant did not suggest any other basis upon which his case was different from all the other cases.  It seems to me that the Tribunal can adequately provide procedural fairness to applicants where hearings are grouped.  Clearly, it saves the Tribunal a great deal of time by providing only one set of introductory remarks rather than having to repeat them numerous times.  It seems to me that there was not a denial of procedural fairness in the Tribunal proceeding in that way.

15. The second ground in the application is:

    After the hearing, we were not given any reasoning or details of decision. We were only provided with appeal outcome (we have attached that file here). It doesn’t say anything about details of why our AAT appeal was refused.

16. The Tribunal record in the court book shows that oral reasons were given at the conclusion of the hearing.  It is indicated at CB173 that the Tribunal made an oral decision at 3:44pm and gave an oral statement of reasons.  The record at CB173 indicates that the Tribunal completed the hearing at 3:48pm.  Clearly the reasons were very brief. 

17. In addition, the reasons in this case were reduced to writing.  They are to be found at CB183.  The Tribunal said in paragraph 2 of its reasons for decision that it made an oral decision and gave an oral statement of decision and reasons at the hearing on 10 October 2016.  The Tribunal then set out the written record of those reasons, which extends to a little over one page. In these circumstances, it appears that the Tribunal did give oral reasons at the time that it pronounced its decision.

18. The third ground in the application is:

    We want this honourable court to provide us with an opportunity to explain our case, our reasoning and above all our circumstances in respect to immigration laws. All we want is a fair go at our application appeal.

19. The first applicant did have the opportunity today to explain the applicants’ case.  However, there was nothing in the first applicant’s submissions that would lead the court to conclude that there was jurisdictional error in this case. 

20. The matter was listed today for a show cause hearing. The requirement in such cases is to ascertain whether there is an arguable case. It seems to me for the reasons mentioned that there is not an arguable case in this matter. Consequently, the application must be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:      18 August 2017