Mohammed v Minister for Immigration
[2016] FCCA 1691
•7 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOHAMMED v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1691 |
| Catchwords: MIGRATION – language proficiency – applicant failed IELTS test at relevant time – subsequently obtained competence – Tribunal refused visa – authorities examined – no jurisdictional error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 360, 360A, 379A |
| Cases cited: Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 Singh v Minister for Immigration and Border Protection [2015] FCA 896 |
| Applicant: | ZAHEER UDDIN MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1169 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 16 May 2016 |
| Date of Last Submission: | 16 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 7 July 2016 |
REPRESENTATION
| Applicant in person |
| Solicitor-Advocate for the First Respondent: | Ms P. Mitchell |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 13 June 2014 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1169 of 2014
| ZAHEER UDDIN MOHAMMED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The short point raised in this case has been determined by a very large number of cases since 2014. The point is whether an applicant who at the date of the hearing possessed the relevant language proficiency for the purposes of reg.1.15C of the Migration Regulations 1994 (Cth) (“the Regulations”), but who did not possess the requisite language proficiency when the visa application was made, was
entitled to a Skilled (Residence) (class VB) subclass 885 (Skilled – Independent) visa (“the visa”).
The delegate (“the delegate”) of the first respondent (“the Minister”) decided that Zaheer Uddin Mohammed (“the applicant”) did not satisfy all the requirements of cl.885.213 of Sch.2 of the Regulations.
The delegate refused to grant the visa to the applicant.[1] The Migration Review Tribunal, now the Administrative Appeals Tribunal
(“the Tribunal”) affirmed the delegate’s decision to refuse to grant the visa.[2] The applicant sought a review of the Tribunal’s decision.[3]
[1] Court Book filed 18 September 2014 at pp.38-41.
[2] Court Book filed 18 September 2014 at pp.137-140.
[3] Application filed by Zaheer Uddin Mohammed on 13 June 2014.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error. It correctly affirmed the delegate’s decision. This application for the review of the Tribunal’s decision must be dismissed.
Relevant factual setting
On 24 October 2011, the applicant applied for the visa.[4] In his visa application he stated that Trades Recognition Australia (“TRA”) had assessed his skills as a cook on 30 November 2009 and that he had acquired the status of “competent” according to an
International English Language Testing System (“IELTS”) test conduct on 5 September 2009.
[4] Court Book filed 18 September 2014 at pp.1-13.
The delegate’s decision
On 11 February 2014, the delegate informed the applicant that his visa application had been refused.
In the delegate’s reasons for refusal, the delegate pointed out that the applicant had failed to meet the criteria in reg.1.15C of the Regulations in two respects. The first was that he had not scored at least six for each of the four components of the IELTS test. The second was that his test had been undertaken outside of the prescribed time period.
The delegate also gave other reasons not presently relevant.
The delegate stated that as the applicant did not meet reg.1.15C of the Regulations, he also did not meet the requirements of cl.885.213 of Sch.2 of the Regulations.
The proceeding in the Tribunal
The applicant applied for the review of the delegate’s determination and did so by application received by the Tribunal on
21 February 2014.[5]
[5] Court Book filed 18 September 2014 at pp.47-62.
The applicant was invited to appear before the Tribunal and give evidence at a hearing to be held on 20 May 2014.[6] He sought to adjourn the hearing on the basis that he suffered migraine pain.[7]
His request for an adjournment was refused and by email dated
19 May 2014 the Tribunal informed the applicant that he was free to make submissions and give evidence by telephone.[8]
[6] Court Book filed 18 September 2014 at pp.71-72.
[7] Court Book filed 18 September 2014 at p.83.
[8] Court Book filed 18 September 2014 at p.127.
The hearing in the Tribunal commenced on 20 May 2014 at 2.01 p.m. It concluded at 2.03 p.m. The applicant appeared in person.[9]
[9] Court Book filed 18 September 2014 at pp.131-134.
The Tribunal recorded the applicant did not have evidence of competence in English in either an IELTS or an Occupational English Test test in the two years immediately prior to his lodging his visa application. The Tribunal recorded that he understood the consequences of that.[10]
[10] Court Book filed 18 September 2014, p.139 at [9].
The Tribunal identified, correctly in my view, that the issue was whether the applicant had competent English as was required by cl.855.213 of Sch.2 of the Regulations. The Tribunal recited reg.1.15C of the Regulations and its precise stipulations. The Tribunal stated that there was no evidence before it that the applicant had achieved the specified test results in a relevant test conducted in the two years immediately before the day on which the visa application was made.[11]
[11] Court Book filed 18 September 2014, p.140 at [16].
The Tribunal found that the applicant did not have competent English with the consequence that the applicant did not satisfy the elements of cl.885.213 of Sch.2 of the Regulations. The Tribunal affirmed the decision not to grant the visa.
The proceeding in this Court
The applicant filed an application to review the Tribunal’s decision on 13 June 2014.
The one ground in support of this proceeding was as follows –
1. Competant (sic) English score (IELTS).[12]
[12] Application filed by Zaheer Uddin Mohammed on 13 June 2014 at p.3.
The Minister denied the existence of jurisdictional error in the Tribunal. The Tribunal, as second respondent, filed a submitting appearance.
At the commencement of the hearing before me, I informed the Minister’s legal representative, Ms P. Mitchell, of my practice where an applicant is unrepresented. The exchange was in the following terms –
HIS HONOUR: Thank you. Yes. Well, now, Ms Mitchell, in situations where the person is unrepresented as is Mr Mohammed in this case, I normally require the representative of the Minister to present the case as if Mr Mohammed were being adequately represented. That puts a burden on you but I expect you to expose all the weaknesses of your case in so doing.
MS MITCHELL: Yes, your Honour.
HIS HONOUR: That’s how I do it so let’s begin.
MS MITCHELL: Certainly, your Honour.[13]
[13] Transcript of Proceedings, 16 May 2016 at p.2.
The Minister’s written submissions[14] correctly identified how the
so-called ground of review was not one that could be characterised as a ground of review. I agree. That said, Ms Mitchell submitted that the applicant may have intended to argue that the applicant was denied procedural fairness before the Tribunal.
[14] Outline of the first respondent’s submissions filed 2 May 2016.
That argument cannot be maintained.
The applicant was duly heard. That led to the Tribunal’s factual finding that the applicant did not have evidence that he had attained the requisite standard in the prescribed testing within the prescribed time period.
The Minister submitted that s.357A of the Migration Act 1958 (Cth) (“the Act”) provides that Div.5 of Pt.5 of the Act is an exhaustive statement of the requirements of the natural justice rule in relation to the matters it deals with. That much is beyond doubt.
In my view, the Tribunal did in fact comply with the requirements of ss.360, 360A, 379A and of reg.4.21(4) of the Regulations.
In the hearing before me, the applicant and I engaged in the following exchange –
HIS HONOUR: Mr Mohammed ‑ ‑ ‑
MR MOHAMMED: Yes, sir.
HIS HONOUR: ‑ ‑ ‑ what would you like to tell me?
MR MOHAMMED: I have been hearing that there is – that I haven’t provided any evidence to – regarding competent English. I had provided all my scores, but I was not – I didn’t meet the requirements, which was ... in all the four modules of the test.
HIS HONOUR: Yes.
MR MOHAMMED: So now I have got the test because, like, I have the – PT which is equivalent to ... So I have met the requirements which is required for the unskilled migration, like, which is ... in all the four modules.
HIS HONOUR: Well, the point that is made on behalf of the Minister is that in a particular timeframe, in a particular window of time, so to speak, you had to have a level of competency at a certain standard. That has been changed, but at that particular date, which is when you applied, so the Minister says, you needed to have a particular level but you didn’t have that. The fact that you’ve achieved a higher standard since then doesn’t really help. That’s what the Minister says. I have to look at that, of course, but is there anything that you would like to tell me about that? No? Okay. Is there anything that you would like to say in response to the points made by Ms Mitchell?
MR MOHAMMED: Yes, I just wanted to say, like, I have got the required score at this time.
HIS HONOUR: Yes.
MR MOHAMMED: Yes. All right.
HIS HONOUR: But in – when we speak about the important time, do you say that you had the score or you didn’t have the score at ‑ ‑ ‑
MR MOHAMMED: At that time, I didn’t have the required score.
HIS HONOUR: I see. Thank you.
MR MOHAMMED: Yes.
HIS HONOUR: All right. Anythign (sic) else you would like to tell me, Mr Mohammed?
MR MOHAMMED: No, sir.[15]
[15] Transcript of Proceedings, 16 May 2016 at pp.10-11.
That succinctly demonstrated the point in this case. At the date of the hearing, the applicant met the requirements of reg.1.15C of the Regulations but he did not meet those requirements when required by the Regulations to have done so.
That was fatal to the applicant’s application for review in this Court.
A wave of decisions in the Federal Court of Australia has so held.[16]
[16] See Singh v Minister for Immigration and Border Protection [2014] FCA 185; Sandhu v Minister for Immigration and Multicultural Affairs and Citizenship [2014] FCA 486; Ajaya v Minister for Immigration and Border Protection [2014] FCA 718; Patel v Minister for Immigration and Border Protection [2014] FCA 823; Baig v Minister for Immigration and Border Protection [2014] FCA 855; Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892; Bali v Minister for Immigration and Border Protection [2014] FCA 986; Sidhu v Minister for Immigration and Border Protection (No 2) [2014] FCA 1078; Kaur v Minister for Immigration and Border Protection [2014] FCA 1297; Kumar v Minister for Immigration and Border Protection [2014] FCA 1336; Singh v Minister for Immigration and Border Protection [2015] FCA 85; Mann v Minister for Immigration and Border Protection [2015] FCA 65; Ashraf v Minister for Immigration and Border Protection [2015] FCA 167; Chahal v Minister for Immigration and Border Protection [2015] FCA 181; Khan v Minister for Immigration and Border Protection [2015] FCA 162; Singh v Minister for Immigration and Border Protection [2015] FCA 193; Singh v Minister for Immigration and Border Protection [2015] FCA 220; Kaushal v Minister for Immigration and Border Protection [2015] FCA 421; Kaur v Minister for Immigration and Border Protection [2015] FCA 480; Singh v Minister for Immigration and Border Protection [2015] FCA 896; Milanes v Minister for Immigration and Border Protection [2015] FCA 1105; and Kumar v Minister for Immigration and Border Protection [2015] FCA 1189.
Conclusion
The Tribunal was correct in its findings. It reached the correct result. No jurisdictional error was shown.
I dismiss this proceeding and order the applicant to pay the Minister’s costs fixed at $6,825.00.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 7 July 2016
Corrections
Paragraph 26 – the amount of costs ordered has been amended to $6,825.00.
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