MEVADA v Minister for Immigration
[2010] FMCA 616
•17 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEVADA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 616 |
| MIGRATION – Requirement that application be “accompanied by evidence” – whether could be lodged up to date of decision. INTERPRETATION – Meaning of “accompanied by”. |
| Migration Act 1958 (Cth), ss.55, 65, 474 Migration Regulations 1994, sch.2, reg.1.15C |
| Bandi v Minister for Immigration & Amor [2010] FMCA 365 Berenguel v Minister for Immigration and Citizenship 264 ALR 417 Chidemo v Minister for Immigration and Citizenship & Amor [2010] FMCA 19 Habit & Ors v Minister for Immigration & Amor [2010] FMCA 450 Hossain v Minister for Immigration & Amor [2007] FMCA 175 Minister for Immigration and Citizenship v Grant & Ors [2009] FCA 1059 Nowicka v Superannuation Complaints Tribunal [2008] FCA 939 Rawson Finances v Deputy Commissioner of Taxation [2010] FCA 538 Todhunter v Attorney-General (Cth) 124 ALR 442 Winkler v Director of Public Prosecutions (1990) 94 ALR 361 |
| Applicant: | KALPESH MEVADA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1595 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 9 July 2010 |
| Date of Last Submission: | 9 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fairfield |
| Solicitors for the Applicant: | Lily Ong Solicitors |
| Counsel for the Respondents: | Mr Horan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Court issues a writ of certiorari quashing the decision of the Migration Review Tribunal (the “MRT”) dated 25 November 2009 in MRT case number 0902955.
The Court issues a writ of Mandamus requiring the Migration Review Tribunal to hear and determine MRT case number 0902955 according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1595 of 2009
| KALPESH MEVADA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”). That decision affirmed the decision of a delegate of the Minister to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa.
The delegate refused the visa application after holding that the applicant did not satisfy cl.485.215 in sch.2 to the Migration Regulations 1994 (the “Regulations”).
The criteria for a subclass 485 visa are set out in Part 485 of sch.2 to the Regulations. Primary criteria to be met at the time of application (cl.485.21) were set out in cl.485.215 as follows:
485.215 Either
(a)The applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b)The applicant has competent English
(c)The application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister, in an instrument in writing
(Court Book “CB” 74).Where an application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, an applicant has to satisfy clause 485.222 also which required that:
·The applicant’s nominated skilled occupation is in ASCO Major Group IV, and the applicant has vocational English [cl.485.22(a)]; or
·The applicant has competent English [cl.485.222(b)].
The language tests specified by the Minister for these purposes are International English Language Testing System (IELTS) and Occupational English Language Test (OELT): Legislative Instrument IMMI07/055, English Language Tests and Level of English Ability for General Skilled Migration (Regulations 1.15C, 1.15D and clauses 485.215 and 487.215).
In the present case the first question under is whether the applicant had “competent English”?
“Competent English” is defined in Regulation 1.15C as follows:
Competent English
1.15C If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii)a score:
A.specified by the Minister in an instrument in writing for this sub-subparagraph; and
B.in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph
The Delegate decided that the applicant did not meet the legislative requirements for a subclass 485 visa as specified in sub-cl.215, and refused to grant a subclass 485 visa (CB 74).
By decision dated 25 November 2009 the Tribunal affirmed the decision of the delegate (CB 136).
The grounds in the amended application for judicial review filed on
31 March 2010 are that:
(1)The MRT failed to exercise, or acted in excess of, jurisdiction in that the MRT misconstrued or misapplied subclause 485.215(b) by finding that the applicant did not satisfy subclause 485.215.
(2)The MRT failed to exercise, or acted in excess of, jurisdiction in that the MRT failed to consider material before it on whether the visa applicant satisfied subclause 485.215(b) and/or subclause 485.222(b).
(3)The MRT failed to exercise, or acted in excess of, jurisdiction in that the MRT failed to find that the applicant satisfied subclause 485.215(b) and/or subclause 485.222(b).
(4)The MRT failed to exercise, or acted in excess of, jurisdiction by misconstruing or misapplying subclause 485.215(c) by finding that a test receipt dated 1 April 2008 and provided to the MRT on 3 April 2008 did not accompany the application.
Mr Fairfield appeared for the applicant and Mr Horan for the first respondent at the hearing before the Court on 9 July 2010.
Submissions for the Applicant
Ground one put to the Court at the hearing arises from grounds one to three of the amended application (Transcript “T” p.17, l.46); Ground two arises from ground four of the amended application.
Mr Fairfield submits that the Tribunal erred when it found in para.23 of it’s decision (CB 135) that:
There is no claim or evidence before the Tribunal that the applicant meets any of the other limbs of cl.485.215.
The applicant contends that there was evidence before the Tribunal that the applicant satisfied 485.215(b) being that he had competent English. This submission is considered below.
The Tribunal found in para.25 (CB 136) that:
… the applicant does not satisfy 485.215(c), and by extension, cl.485.215 as a whole.
Mr Fairfield referred to the applicant’s results under the IELTS that show an overall band score of 6.5 (CB 102). Mr Fairfield submitted that that document was before the Tribunal as it is referred to in the
e-mail from the applicant’s migration agent to the Tribunal on 26 October 2009 (CB 116.4).
Mr Fairfield submits that it is clear from the definition of “competent English” that the visa applicant passed the test. He submits then that the Tribunal did not look at the question of whether the applicant satisfied the criteria in 485.215(b).
Mr Fairfield referred to the judgment of the High Court in Berenguel v Minister for Immigration and Citizenship 264 ALR 417. The relevant questions to be determined in the special case in Berenguel were:
Question 1
Did the delegate of the defendant misconstrue subreg 1.15B(5) of the Migration Regulations in finding that the plaintiff had:
“… not provided an IELTS test result [for a] test conducted not more than 2 years before the day on which the application was lodged and therefore have not meet [sic] the regulatory requirement of having vocational English at [the] time of application?”
Question 2
In the circumstances of the present case, could the plaintiff satisfy the English language requirement of cl.885.213 in Sched 2 to the Migration Regulations by lodging an IELTS Test Report with the defendant’s department on a date after the date on which he lodged his visa application with the defendant’s Department? [10]
Mr Fairfield noted that the High Court referred to s.55 of the Migration Act 1958 as follows:
(1)Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2)Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. [12]
Mr Fairfield referred to where the High Court set out the time of application requirements of 885.213 in [17] as follows:
885.215 Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b)the applicant has competent English.
Mr Fairfield noted that (b) is in the same provision as in 485.215(b).
Mr Fairfield referred to [22] where the High Court stated that the Minister had submitted that, as 885.213 is a “time of application requirement”: “the test score must have been achieved at the time of application because the Minister (and delegate) were bound by s.65 and the Migration Regulations, to reach a state of satisfaction as to the position at that time.”
Mr Fairfield referred to where the High Court stated in [24]:
The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215
And at [25]:
The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at time of application".
And at [26]:
Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
"The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." (emphasis added)
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
And at [27]:
In our opinion the questions posed in the special case should be answered in favour of the plaintiff in the following way:
Question 1 – Yes.
Question 2 – Yes.
Mr Fairfield submits that the judgment in Berenguel is relevant here because the applicant here provided an IELTS test score, after the date of application, that showed that he was competent in English; and therefore when the Tribunal came to decide the matter the applicant had recent competency in English.
Mr Fairfield submits that the judgment in Berenguel and its application to subclass 485 has been considered in two judgments of this Court.
The first judgment is Bandi v Minister for Immigration & Anor [2010] FMCA 365 per Federal Magistrate Smith.
Mr Fairfield referred to [2] and noted that the relevant criteria there were 485.21, 485.215 and 485.222, which at the relevant time, were the same as in the present case. There relevant definition of “competent English” was also the same in both cases.
Mr Fairfield referred to Bandi at [5] et seq where his Honour found:
The meaning of the reference in reg.1.15C(a) to “a test conducted not more than 2 years before the day on which the application was lodged” is open to different constructions. I have seen decisions of the Tribunal, and at least one of this Court, construing the words so that a relevant test result must have been achieved before the date on which the visa application was lodged, whether reg.1.15C(a) is applied under cl.485.215 or cl.485.222.
However, the construction of reg.1.15C(a) has now been settled by the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8. Their judgment refers at [25] to the more beneficial construction to which the regulation is susceptible, that is:
… that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. …
Their Honours then answered the first question which was posed to the Full Court, by adopting that beneficial construction of reg.1.15B(5). That sub‑regulation used language in relation to the timing of the vocational English IELTS test results, which is relevantly identical to the competent English test in reg.1.15C (see Berenguel at [19]). It was not necessary for their Honours to elaborate their reasons for accepting that construction, because it was conceded by counsel for the Minister that the High Court should accept the beneficial construction of an ‘analogous’ regulation adopted by myself in Kamal v Minister for Immigration & Anor (2009) 224 FLR 337, and upheld by the Full Court in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379. The concessions of the Minister’s counsel are found in Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 at [210], [250] and [410].
It is therefore clear that the definition of ‘competent English’ in reg.1.15C may be satisfied by a visa applicant achieving the requisite IELTS results in a test conducted at any time before the making of a decision by either a delegate, or by the Tribunal on review, as to whether the visa applicant has satisfied that definition.
Berenguel also addressed whether a more confining effect in relation to the timing of a satisfactory test result applied in the application of cl.485.215, in relation to the tests of both vocational English and competent English. The Minister argued to the High Court that the ‘time of application’ heading, under which cl.485.215 appears, supported a construction of cl.485.215(a), and necessarily also (b), in which satisfaction of the ‘vocational English’ or ‘competent English’ definitions must be achieved before time of application. That construction was rejected by the High Court when answering Question 2..
It is therefore also clear from Berenguel that the effect of both cl.485.215(b) and cl.485.222(b) is that a visa applicant may establish both of those criteria, by proving competent English results being achieved in an IELTS test undertaken at any time prior to date of decision, but not earlier than two years before visa application.
And at [16] and [17]
As the delegate said in her statement of reasons, the effect of all the communications from Mr Bandi’s agent was that at no time were any results from the sitting of an IELTS test forwarded to the Department, and the delegate was therefore left with no evidence of English proficiency. The delegate addressed that circumstance by reference only to cl.485.222, and gave as her reason for refusing the visa application:
As you have not provided any evidence that your demonstrated level of English is at the Competent standard as specified in Migration Regulation 1.15C I am not satisfied that you meet the requirements of clause 485.222.
Mr Bandi’s agent then lodged an appeal to the Tribunal on 15 July 2009. He did not present to the Tribunal any further evidence of sitting IELTS tests and achieving any satisfactory outcome.
Mr Fairfield submitted that his Honour “applied the same reasoning as in Berenguel (supra) to 485.215(b) but the applicant lost in Bandi because there was no IELTS test result provided, unlike in the present case where we have an IELTS test result and the applicant satisfies the definition in the present case of competent English.”
The next judgment referred to by Mr Fairfield is Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450 (5 July 2010) per Federal Magistrate Smith.
Mr Fairfield referred to [1-6] as follows:
In particular, the Tribunal found that Mr Habib did not satisfy criteria requiring him to show “competent English”, notwithstanding that he had presented evidence to the Tribunal that he successfully achieved the required IELTS results in a test conducted on 7 November 2009. Mr Habib now contends that its reasoning displays jurisdictional error.
A jurisdictional error would be apparent, if the relevant regulations have the construction taken by the High Court in Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 in relation to the same language used in a similar criterion for the different subclass of visa which was addressed in that case, being subclass 885.
Subclass 485 and 885 visas were introduced together in major amendments made by the Migration Amendment Regulations 2007 (No.7) (SLI 2007 no.257), which restructured the classes and subclasses of visas in the general skilled migration categories. Subclass 485 visas allow temporary residence for graduates who have recently completed studies in Australia, to provide them with additional time to gain skilled work experience in Australia or improve their English skills to allow them to qualify for a permanent residence visa, including a subclass 885 ‘skilled – independent’ visa. The criteria for both of the visas require basic qualifications for the applicant’s nominated skilled occupation, and identical basic levels of English proficiency. The permanent visa also requires the visa applicant to achieve sufficient qualifying scores under a ‘points system’ for various occupational, age, language, employment, and other attributes.
The present issue of statutory construction concerns the basic language proficiency criteria prescribed for these two subclasses. In particular, whether IELTS test results establishing a required level of English are required to be achieved no later than the date of visa application, so that decision-makers at first instance and in the Tribunal must ignore results achieved after the date of visa application and before they make their decisions. As I shall explain, the language proficiency criteria for the two subclasses used identical language in the 2007 amendments, except for the addition in relation to the temporary visa of an option provided under Sch.2 items 485.215(c) and 485.222. I shall call it ‘the arranged language test option’. This option was removed from the regulations in further amendments which took effect on 27 October 2008, and since that date the basic language criteria for the two subclasses have used exactly the same terms.
The Minister now submits that the presence of the arranged language test option in the 2007 regulations supports the adoption of a construction of the other paragraphs of cl.485.215, which is opposite to that taken in Berenguel in relation to the same words. On his submissions, this has the consequence that applicants for 885 visas can establish basic English language proficiency in test results obtained at any time after visa application and before the date of decision, but applicants for 485 visas cannot do so unless they applied for their visa before 27 October 2008 and expressly invoked the arranged language test option at the time of their visa application.
For the reasons which follow, I have concluded that the arranged language test option in cl.485.215(c) was not intended to confine the effect of the other language test criteria found in cl.485.215(a) and (b). I consider that those paragraphs should be given the same effect as was given by the High Court to cl.885.213(a) and (b). As a result, the present Tribunal made a jurisdictional error by refusing to take into account Mr Habib’s 7 November 2009 test results when applying cl.485.215(b).
Mr Fairfield submits that the definition of competent English and clauses 485.215 and 485.222 in Habib are the same as in the present case.
The Court refers to [7 – 8] in Habib:
The legislation
7. The relevant criteria for both subclasses adopt definitions of ‘vocational English’ and ‘competent English’, which were also inserted into the Migration Regulations as part of the 2007 amendments. Relevant to the present visa criteria are regs.1.15B(5) and 1.15C, whose terms have remained unchanged since 2007:1.15B Vocational English
(5)If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(a)an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or
(b)a score:
(i) specified by the Minister in an instrument in writing for this subparagraph; and
(ii) in a language test specified by the Minister in the instrument.
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A)specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B)in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
8. Clauses 485.215 and 485.222 in the terms introduced in 2007, and which were applicable to Mr Habib’s visa application, are:
485.21 Criteria to be satisfied at time of application
485.215Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English; or
(c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
485.22 Criteria to be satisfied at time of decision
485.222If the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for paragraph 485.215 (c):
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English
Mr Fairfield referred then to Habib [9 and 10]:
9. Clause 885.213 as introduced in 2007, and construed in Berenguel, provided:
885.21Criteria to be satisfied at time of application
885.213Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
10. As I noted above, cll.485.215(c) and 485.222 were repealed with effect from 27 October 2008 by the Migration Amendment Regulations 2008 (No.7) (SLI 2008 no.205), Sch.5 item [2]. Since that date, the terms of cll.485.215 and 485.213 have mirrored each other. They currently both provide only the more demanding option for English proficiency, that “the applicant has competent English”. They both continue to appear under the headings ‘criteria to be satisfied at time of application’
Mr Fairfield noted Habib [11] where his Honour referred to Berenguel and the ambiguity in the words “in a test conducted not more than 2 years before the day on which the application was lodged...”
11. …“This is whether the definitions refer to a period for undertaking the test which concludes on the date of visa application, or to a period which extends until the date of decision at the primary and review levels.”
Mr Fairfield referred to Habib [13-26]:
13. The High Court accepted the suggested construction of the definitions, when responding ‘yes’ to the first question posed for the Full Court. The question was whether the delegate in Mr Berenguel’s case had erred in his application of cl.1.15B(5) by excluding consideration of a test result satisfying the defined levels required for both vocational and competent English, which he achieved between time of visa application and the making of the visa decision (see [4]).
14. It was not necessary for their Honours to elaborate their reasons for accepting the more beneficial construction of the definitions, because it was conceded by counsel for the Minister that the High Court should accept the same construction of an analogous regulation, which had been adopted by myself in Kamal v Minister for Immigration & Anor (2009) 224 FLR 337 and upheld by the Full Court in Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379. The concessions of the Minister’s counsel are found in Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 at [210], [250] and [410]. For example, at [250] Mr Lloyd SC, for the Minister, said:
… we do not say that 1.15B(5) or 1.15C in and of itself operates to limit the matters to the date of application. So we are not re-running the Kamal point at all.
15. The Minister’s submissions to the High Court were directed at persuading their Honours that the confining of an admissible IELTS test result to one which was achieved prior to visa application arose, not from the language of the definitions of ‘vocational’ and ‘competent’ English, nor from the language used in cl.885.213(a) or (b), but from the location of these criteria under the heading ‘Criteria to be satisfied at time of application’.
16. However, this submission was rejected by the High Court. Their Honours reasoned:
i)The Explanatory Statement to the 2007 amendments which introduced the definitions in reg.1.15B(5) and 1.15C “supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate level of English competency.” (see [21])
ii)“The evident purpose of the alternative criteria in cl.885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application.” (see [24])
iii)“In this respect”, the terms of cl.885.213 could be contrasted with two other criteria appearing under the same heading, which required the visa application to be “accompanied by evidence” of police checks and arrangements for medical examination. (see [17] and [24])
iv)The language of the definition of “vocational English” which was intended to be applied by cl.885.213 (see the note to cl.885.111), was susceptible to the more beneficial construction which had been conceded by the Minister’s counsel (see [25]), allowing consideration of evidence of English proficiency achieved after visa application.
v)The heading to cl.885.213 “does not connect grammatically its terms”, I infer, due to its use of the present tense. Other criteria under the same heading also did not “support any general conclusion that the criteria in Pt.885 speak exclusively to satisfaction at the time of application.” (see [26])
vi)Finally, at [26] they considered the consequences of the construction submitted by the Minister:
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The effect of cll.485.215(c) and 485.222
17. The High Court’s reasoning requires decision-makers to take account of test results achieved between the dates of visa application and decision when applying cl.885.213(a) or (b). The same reasoning appears overwhelmingly applicable to the identical language in cl.485.215(a) or (b), when used in an identically structured list of visa criteria. Particularly, where the two sets of criteria had been introduced in the same package of amendments, deal with the same issues, and concern essentially the same general class of former students who have studied in Australia and are seeking to achieve permanent residence in Australia.
18. In this respect, I do not accept the Minister’s submission that the character of subclass 485 as a temporary visa, obtained in anticipation of a permanent 885 visa, might point to an intention to preclude the recognition of results achieved after visa application. I can see no obvious policy reason why a subclass 485 applicant, and not a subclass 885 applicant, would be intended to be subjected to a restriction which, in the opinion of the High Court, produces “plain unfairness and absurdity” by requiring a decision-maker to ignore the obviously best evidence as to the applicant’s current competence in English. As I shall explain, the added paragraph cl.485.215(c) appears designed to extend, rather than to limit, the position of an applicant for the temporary visa.
19. The situation therefore appears suitable for the application of the principle of statutory interpretation that the same language used in the same statutory instrument should normally be given a uniform construction (compare cases cited in Minister for Immigration & Multicultural & Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] and [72]).
20. It is at this stage in the debate, that the Minister emphasises the one difference between the provisions of cl.485.215 and 885.213, being the presence of cl.485.215(c) giving applicants for this subclass, but not applicants for subclass 885 visas, the ‘arranged language test option’. He submits that this points towards a restrictive effect to paragraphs (a) and (b), because otherwise that option would have ‘no work to do’ or would be ‘superfluous’ or ‘otiose’ (cf Mason CJ in Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12, and Heydon J in Saeed v Minister for Immigration & Citizenship [2010] HCA 23 at [76]).
21. The Minister’s counsel submitted that the Court “must strive to give meaning to every word of the provision”, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. He submitted that to apply the Berenguel interpretation to cl.485.215(a) and (b) would leave no purpose for including the option under cl.485.215(c) for an applicant to “accompany” his visa application with evidence of a future appointment for a language test, nor for providing under cl.485.222 that the results of that test should be taken into account. In effect, he submitted that paragraph (c) was intended to provide the only permissible pathway by which decision-makers could take into account a visa applicant’s results in an IELTS test undertaken after the date of visa application.
22. However, in my opinion, paragraph (c) does not contain any language, nor exhibit any intent, to exclude the power of decision-makers to take into account all post-application test results which become available before they make a decision. I consider that it can be given its intended operation without implication that it carries the ‘unfair and absurd’ consequence of requiring a decision-maker in other circumstances to ignore the best evidence of English competency available at time of decision.
23. In my opinion, its literal meaning and intended operation are to provide to a visa applicant the option of notifying a decision-maker, at the time of visa application, that he has made an appointment to sit a future IELTS test. The conferral by the Regulations of this option then gives rise, if it is exercised at the time of visa application, to an expectation that the decision-maker will defer making a decision until the results of the notified test become available. I am inclined to think that par.(c) and cl.485.222 do more than this, and also give rise to a binding obligation on the Minister to give that deferral. At least, there would be a duty on the Minister after receiving evidence under par.(c) with the visa application, not to make a decision before the date of the appointed test without giving the applicant an opportunity to be heard on whether this should happen.
24. Allowing a visa applicant such an option confers a real benefit, since otherwise decision-makers at first instance and on review would be under obligations to decide the visa application and any application for review expeditiously (cf. ss.61, 63(1), 65(1)(b) and 353(1) of the Migration Act). Absent a statutory deferral period, the visa applicant could have no expectation, and certainly no enforceable right to demand, that the decision-making be deferred until after the taking of a future test aimed at achieving evidence which would satisfy paragraphs 485.215(a) or (b). If evidence of the appointment for such a test did not accompany the visa application, decision-makers might have a discretion to allow time for further testing to occur, but they would be under no obligations or expectations to exercise their discretion favourably (cf. Kamal (supra) 224 FLR 337 at [47]).
25. When the ‘arranged language test option’ is so understood, paragraph (c) is not made redundant and its presence is not otiose, if paragraphs (a) and (b) are construed not to exclude the usual obligation identified by Berenguel which requires a decision-maker to take into account any up-to-date evidence available at the date of decision (see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 624). Such a duty does not carry with it the added obligation, which exercise of the paragraph (c) option would carry, to defer making a decision to await the tender of additional evidence which is not yet in existence.
26. As I have noted, all the points identified by the High Court in favour of the construction given to cl.885.213(a) and (b) appear with equal force when cl.485.215(a) and (b) are considered. Given the authoritativeness of their judgment, it is appropriate, in my opinion, that I should be slow to accept a contrary construction of the same paragraphs in relation to a sister provision. Since I have been able to identify a construction of paragraph (c) which allows it to operate in its intended manner, and without giving it the exclusionary effects submitted by the Minister, I consider that the Berenguel construction should be applied to those paragraphs.
Mr Fairfield referred to Habib [38-40]:
The Tribunal concluded:
38. …The Tribunal appreciates that the applicant is distressed because he has since achieved a score of more than 6 in each of the 4 components in the IELTS test that he undertook on 7 November 2009. However, the Tribunal cannot find that the applicant has competent English at the time of decision if the applicant does not meet the time of application requirements. The Tribunal finds that the applicant’s visa application was not accompanied by evidence that the applicant had made arrangements to undergo a language test specified for the purposes of cl.485.215(c). Accordingly, the applicant does not satisfy cl.485.215(c).
For the reasons given above, the Tribunal finds that, the applicant does not satisfy cl.485.215.
39. In my opinion, the above reasoning plainly applied a construction of reg.1.15C contrary to the construction conceded by the Minister’s counsel before the High Court, which was accepted by the High Court. It also gave effect to an interpretation of cl.485.215(b) contrary to the construction which I have accepted above.
40. That error was material and determinative in the Tribunal’s reasoning, and the Minister does not dispute that it amounts to a jurisdictional error. I am therefore satisfied that Mr Habib and his family are entitled to the issue of writs of certiorari and mandamus to require the Tribunal to reconsider the matter.
Mr Fairfield submits that it is clear from the judgments in Berenguel, Bandi and Habib (supra) that the applicant in this case clearly did satisfy 485.215(b) and that the Court should follow the judgments in Bandi and Habib unless satisfied that they are plainly wrong. Hossain v Minister for Immigration & Anor [2007] FMCA 175 at [16-18] and Nowicka v Superannuation Complaints Tribunal [2008] FCA 939 (20 June 2008) at [24]. The Court accepts that submission.
Mr Fairfield submitted:
·that FM Smith’s judgments are plainly correct;
·that there was plainly material before the Tribunal to show that the applicant satisfied 485.215(b) and the Tribunal did not consider it.
The Court accepts that submission.
Ground two alleges that the Tribunal erred by misapplying 485.215(c) by finding that the IELTS test receipt (CB replacement page.13) dated 1 April 2008 and provided to the Tribunal on 3 April 2008
did not accompany the application.
Mr Fairfield submits that because the receipt for the IELTS testing fee was sent eight days after lodging the on-line application form [Application form dated 26 March 2008 (CB 1)]; receipt dated 1 April 2008 (CB replacement page.13) as sent on 3 April 2008 (CB 12), the Tribunal found that the evidence did not accompany the application and did not satisfy 485.215(c) (CB 135.10). The receipt stated that the test was to be conducted on 6 September 2008.
Mr Fairfield submits that, as the application was made on-line
(CB 1-11), if evidence was required of arrangements to undertake a test, that evidence would have to be submitted other than on-line and after the application was submitted (T p.19, l.35). The Court accepts that submission.
Mr Fairfield submits that the word “accompany” is defined as “to add or conjoin to.”
Mr Fairfield referred to the decision in Todhunter v Attorney-General (Cth)& Anor 124 ALR 442 where the phrase “accompanied by” was defined as being “sufficiently elastic to include all material submitted at about the time of the request and before the expiration of the relevant cut-off date” (p.455 at 17).
Mr Fairfield referred to the decision in Winkler v Director of Public Prosecutions (1990) 94 ALR 361 to support his contention that “accompanied by” may refer to something being sent subsequently.
Mr Fairfield referred to the decision in Queens Bench Division, Ex parte Muir 7 December 1987 unreported (Ref Winkler supra, p.378, l.45) where it was held by MacPherson J that “accompanied by... such evidence” means accompanied by such evidence at the time when the decision to commit is taken (94 ALR 361 at 378, l.48).
Mr Fairfield submits that having regard to the ordinary meaning of the word “accompany” it is clear that documents can be provided later, and that eight days was about the time of the application, having regard to the fact that the decision was not made for a further 12 months. The Court accepts those submissions.
Submissions for the first respondent
Mr Horan submitted that the replacement receipt 9(at CB 13) could not satisfy 485.215(c) because the arrangements were not made at the date of application (T p.22, l.33).
Mr Horan submitted as to the issue arising from 485.215(b), that the issue is whether the applicant had competent English. He submits that the decision in Berenguel does not preclude the construction of 485.215(b) that “the question is whether the applicant had competent English at the time of application.”
Mr Horan submits as to (b), that the very points arising in this case were addressed in Habib (supra). Mr Horan submits that Habib should not be followed, as the Court must embark on its own independent consideration of the issues and reach its own conclusions. Rawson Finances v Deputy Commissioner of Taxation [2010] FCA 538 at [56] where Justice Yates decided that he was not bound to follow a decision of a coordinate authority if he was of the view that the decision was clearly wrong or plainly wrong and that he must embark on his own independent considerations…to reach his own conclusion.
The Court has embarked on its own independent consideration of the issues and concludes that applying Berenguel, the evidence of the test score was properly before the Tribunal. The Court follows Berenguel, Bandi and Habib.
The Court does not reach a different view from Federal Magistrate Smith in Bandi or Habib.
It is submitted as to Berenguel that although 885 and 485 were introduced by the same amending regulation there was a key difference in 485, being the presence of 215(c). (Some confusion arises from the transcript as to who made various submissions, and the Court will deal with the confusion by way of addressing the issues raised). Mr Horan submits that the question that the Court was addressing Berenguel is similar and that is the question whether the test score and the standard of English had to be achieved at the time of application (T p.25, l.33).
Subclause 485.215(c) was removed from the criteria on 27 October 2008 before the decisions in Berenguel, Habib and Bandi. The interpretation in Berenguel was therefore of the same wording as in 485.215 and the Court with respect accepts it.
Mr Horan referred to the Court in Berenguel in moving from concluding that the heading of 885.21 of “Criteria to be satisfied at time of application not supporting any general conclusion that those criteria speak exclusively to satisfaction at the time of application”, to go “to a position where the heading can be ignored and, effectively, all these criteria to be satisfied at time of application, can be satisfied by information that’s provided at any time before the decision” as a “massive step”.
Be that as it may, that is the High Court’s decision. For the reasons expressed herein, the Court has decided that Berenguel is binding on it.
Mr Horan referred to the Explanatory Statement of the 2008 amendment to remove paragraph (c) from 485.215 where (c) was described as an “alternative to demonstrating that the applicant meets the standard at the relevant time.”
Mr Horan submits that there would be no purpose in having (c) if (b) was given a Berenguel interpretation. However Berenguel was decided after (c) was removed and the argument has no substance.
Mr Horan submitted that Federal Magistrate Smith went wrong in Habib supra. The Court rejects that submission for the reasons set out above.
Mr Horan referred to the judgment in Minister for Immigration and Citizenship v Grant & Ors [2009] FCA 1059 and stated that “the issues for decision were slightly different” (T p.24, l.9). The main point there involved the construction of 485.215(c) in circumstances where an applicant failed a language test, but later set another test and satisfied the competent English standard.
Mr Horan referred to a “non-Berenguel construction of 485.215(b), because if Berenguel had applied, then it would have been possible to satisfy (b) on the facts of Grant” (T p.31, l.46).
That in effect is saying that a single judge of the Federal Court, on hearing an appeal, came to a different conclusion on 485.215(b) than the High Court on 885.213(b). With respect, the decision in Grant does not affect the force of the reasoning in Berenguel.
Mr Horan referred to the judgment of Federal Magistrate Scarlett in Chidemo v Minister for Immigration and Citizenship & Anor [2010] FMCA 19.
Mr Horan referred to paras.55 and 56 as follows:
In order to meet the requirements of cl.485.215(b), the Applicant had to show that, at the time she lodged her application for a visa, she had competent English, as evidenced by the possession of the appropriate IELTS test result. It is not the case that an applicant can meet this requirement by sitting for an IELTS test and obtaining the necessary score during the time that the application is being processed.
It follows that the Applicant was not able to demonstrate that she had competent English at the time of application and thus could not meet the requirement of cl.485.215(b).
The judgment in Chidemo preceded Berenguel and for reasons expressed herein the Court is bound to follow Berenguel.
Mr Horan then addressed 485.215(c).
He submits that (c) required two things:
·It required that arrangements be in place at the time of application
·To undergo a test after the date of application (T p.32, l.40).
He submitted that this is supported by the decision in Grant (supra) at [28].
Mr Horan withdrew his written submissions that the second criterion was not met, as a new test receipt had been provided (CB 13).
Mr Horan submits that the first criterion is not met as the arrangements were not in place at the date of application.
The application was made on 26 March 2008 (CB 1) and the Tax Invoice shows that the fee was paid on 1 April 2008 (CB 13).
Mr Horan referred to Grant (supra) at [28]:
In this context the words “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test” are directed towards an outcome contemplated by cl 485.222, being proof that an applicant has “competent English”. The purpose of the provision, to enable an applicant to demonstrate competent English at the time of application or of decision, is best achieved by giving the words their ordinary meaning. The ordinary meaning of the phrase “has made arrangements to undergo” involves two key aspects. First, the arrangements must have been made, in the sense of being in place or in existence, when the application is made. Second, the arrangements must be to undergo, in the sense of to take or to sit for, a test
Grant preceded Berenguel which is binding on the Court.
The application in this matter was lodged on-line on 26 March 2008 (CB 1). It was accompanied by evidence that the applicant had done a test on 16 February 2008 (CB original page 13). The replacement receipt showing a test date of 6 September 2008 (CB replacement page 13) did not accompany the application but was forwarded to the Department on 3 April 2008 (CB replacement page 12).
Mr Horan submits that the first requirement of 485.215(c) was not met because arrangements for the test were not in place at the date of application. Replacement page (CB 13) shows that arrangements were not in place until 1 April 2008. The application was lodged on 26 March 2008.
The Court accepts the submission by Mr Horan that the first criterion in 485.215(c) was not met. The applicant failed to comply with 485.215(c).
As the applicant failed to meet 485.215(c) his only live issue is whether he met the time of decision criterion in 455.215(b). For the reasons expressed above, the Court finds that there was evidence before the Tribunal that could have shown compliance with 455.215(b) and the Tribunal did not consider it.
Mr Horan submits that even if the applicant had competent English at the time of decision, that can only be relevant under 485.222, if the applicant had made arrangements for a test within 485.215(c) (T p.37, l.23). However the Court notes that the requirement was “competent English” or evidence of arrangements to undergo a language test.
Mr Fairfield in reply
Mr Fairfield submits that any statements in Grant on the construction of 485.215(b) are obiter. The Court has not reached conclusions based on the decision in Grant. Grant preceded Berenguel.
Mr Fairfield submits that the Tribunal could have found that submission of evidence within eight days after the application was lodged, meant that it accompanied the application (T p.42, l.40). The Tribunal did not make that finding. The argument that the Tribunal “could have found something” does not raise a ground for judicial review.
Section 55
Turning to s.55, it provides that until the Minister has made a decision, the applicant may give the Minister additional information and the Minister must have regard to that information in making a decision. The High Court commented on s.55 in Berenguel at [26] as follows:
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The grounds
Ground one arises from grounds one to three of the amended application being that the applicant’s IELTS results were before the Tribunal (CB 116.5) and that the Tribunal did not look at whether the applicant satisfied criteria 485.215(b). The Court finds that ground to be established.
Ground two arises from ground four of the amended application, being that the Tribunal erred in finding that the test receipt (dated 1 April 2008 CB 13) and provided to the Tribunal on 3 April 2008 (CB 12) did not accompany the application. The Court finds that ground to be established.
The Court finds that the applicant has shown jurisdictional error.
The Court issues a writ of certiorari quashing the decision of the Migration Review Tribunal (the “MRT”) dated 25 November 2009 in MRT case number 0902955.
The Court issues a writ of Mandamus requiring the Migration Review Tribunal to hear and determine MRT case number 0902955 according to law.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 17 August 2010
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