Mudiyanselage v Minister for Immigration
[2011] FMCA 961
•9 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUDIYANSELAGE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 961 |
| MIGRATION – Review of Migration Review Tribunal’s decision which upheld the rejection for Skilled (Provisional) (Class VC) visa – visa rejected because Applicant failed to satisfy requisite criterion – no jurisdictional error – review application dismissed. |
| Migration Regulations 1994, Reg. 1.15B(5)(b), 1.15C(a)(i), 1.15C(a)(ii) and 1.15D; Schedule 2, Pt 485, Subclause 485.215(a), 485.215(b) and 487.215 |
| Berenguel v MIAC [2010] HCA 8 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | KUSHAL SANJEEWA BANDARA WEKADAPOLA WASALA MUDIYANSELAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 881 of 2011 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 9 November 2011 |
| Date of Last Submission: | 9 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 November 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 29 June 2011 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 881 of 2011
| KUSHAL SANJEEWA BANDARA WEKADAPOLA WASALA MUDIYANSELAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(EX TEMPORE)
This matter comes before me today on an application to review a decision of the Migration Review Tribunal (the Tribunal) that was made on 2 June 2011; which decision affirmed an earlier decision of the First Respondent’s delegate not to grant the Applicant a Skilled (Provisional) (Class VC) visa. The basis for that determination by the Tribunal, in short, was the Applicant did not meet the necessary criteria for competency in English, when he failed to score a requisite 6 on all 4 components of speaking, reading, writing and listening. There was one where he recorded only 5.5.
In the legislative framework, which I won’t go through now, but I reserve the right to address that legislative framework (see below), it spells out the requirements to meet the English competency or language test. As I said, Mr Mudiyanselage failed to meet all of the requirements of that test, even after he had a remark of an earlier test and even after conducting a second test, he still failed in that one regard.
At the time of the hearing that was the state of the situation.
I am satisfied that it was open to the Tribunal on the evidence to make that finding that he failed to meet the necessary criteria, and that he did not qualify for the Skilled (Provisional) (Class VC) visa. I reserve the right to refer more fully to the decision of the Tribunal in that regard (see below), and I also reserve the right to refer to the
First Respondent’s contentions of fact and law which I adopt for the purposes of this decision in respect to the pertinent arguments raised by the First Respondent (see below).
Conclusion
In my view it is clear that the Tribunal has not committed a jurisdictional error, and therefore, because the decision is a privative clause decision, it is unchallenged and I intend to dismiss the application.
The legislative framework
As set out in the Tribunal’s decision and the First Respondent’s contentions, the Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled – Graduate) and
Subclass 487 (Skilled – Regional Sponsored).
In the present case, the Applicant is seeking to satisfy the criteria for the grant of a Subclass 485 visa.
Criteria in issue
The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations. Relevant to this matter, a primary criterion to be met at the time of the application is cl.485.215.
Clause 485.215 requires that either:
·the Applicant’s nominated skilled occupation is in the Australian Standard Classification of Occupations (ASCO) Major Group IV, and the Applicant has vocational English (cl.485.215(a)); or
·the Applicant has competent English (cl.485.215(b)).
‘Vocational English’ is defined in r.1.15B of the Regulations.
For Subclass 485 visa applications, r.1.15B(5) relevantly provides that a 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 sub-subparagraph; and
(ii)in a language test specified by the Minister in the instrument.
There is no other language test or score specified for the purposes of r.1.15B(5)(b).
‘Competent English’ is defined in r.1.15C of the Regulations.
A person has ‘competent English’ under r.1.15C if the person satisfied 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 High Court in Berenguel v MIAC [2010] HCA 8 held that the English language proficiency requirement in cl.885.213 can be satisfied by a test undertaken after the application has been made. Clause 485.215 is expressed in identical terms and the Tribunal considered the Court’s reasoning to be equally applicable to it.
For the purposes of r.1.15C(a)(ii), at the time the visa application in this case was made, the Minister had specified a score of at least ‘B’ in an Occupation English Language test (OELT) and for r.1.15C(b), passports issues by the United Kingdom, the United States of America, Canada, New Zealand and Ireland: Legislative Instrument IMMI08.084, English Language Tests and Level of English Ability for General Skilled Migration (Regulations 1.15C, 1.15D and clauses 485.215 and 487.215).
The issue in the present case is whether the Applicant has provided evidence of the relevant level of English ability for the grant of this visa.
The First Respondent’s contentions of fact and law adopted
The Applicant is a 31 year old citizen of Sri Lanka.
On 16 March 2009, the Applicant applied for the visa with the assistance of a migration agent. The Applicant did not provide any IELTS test results with the visa application, however he provided a booking fee receipt indicating that he was booked to sit an EILTS test on 13 June 2009.
On 19 August 2009, a delegate of the First Respondent refused the application on the basis the Applicant had not demonstrated competent English in accordance with the Regulations.
On 7 September 2009, the Applicant applied to the Tribunal for merits review.
On 10 February 2011, the Tribunal invited the Applicant to provide evidence the Applicant could meet the definition of competent English. The Tribunal noted that evidence of competent English was a criterion for the grant of the visa, set out the relevant statutory criterion and indicated the criterion could be satisfied by submission of a test result taken after the visa application was lodged. The Tribunal gave the Applicant until 21 March 2011 to provide a response.
On Saturday, 19 March 2011, the Applicant wrote to the Tribunal and asked for an extension of time. The Tribunal received the letter on
21 March 2011. The Applicant sought a further six weeks to provide a response, stating that he had applied for a previous IELTS score to be re-marked and sat a further IELTS test. The Applicant attached documents in support, including previous IELTS test results obtained – none of which evidenced a score of at least 6 in each of the 4 test results obtained – none of which evidenced a score of a least 6 in each of the 4 test components of speaking, reading, writing and listening.
On 22 March 2011, the Tribunal wrote to the Applicant and stated the Tribunal would not grant an extension of time. The Tribunal instead listed the matter for hearing on a date by which the IELTS test result and re-mark would be available. In any event, the hearing date was scheduled approximately six weeks later.
At the hearing the Applicant provided the Tribunal with an IELTS test result dated 19 March 2011. The test result evidences a score of:
a. listening: 5.5;
b.reading: 5.5;
c. writing: 5.5; and
d. speaking 6.5.
The Applicant also provided evidence of a re-mark of an IELTS test undertaken on 12 February 2011. On the re-mark, the Applicant obtained the following score:
a. listening: 6.5;
b. reading: 5.5;
c. writing: 6.0
d. speaking: 6.5.
The Tribunal’s decision
The Tribunal found the Applicant held a Sri Lankan passport, which is not a passport specified for the purpose of reg. 1.15C(b). For this reason, the Tribunal was not satisfied the requirement of reg. 1.15C(b) was made out.
On the basis of the Applicant’s evidence and the material before it,
the Tribunal found the Applicant had not undertaken an OELT and accordingly, the requirements of reg. 1.15C(a)(ii) were not met.
The Tribunal acknowledged the Applicant had undertaken a number of IELTS tests between June 2009 and March 2011. The Tribunal found none of the IELTS test results before it evidenced a score of at least 6 in each of the 4 test components of speaking, reading, writing and listening. On this basis, the Tribunal found the Applicant had not met the requirements of r 1.15C(a)(i).
On the material before it, the Tribunal found the Applicant did not have “competent English” as defined in reg. 1.15C(a) or (b) and did not satisfy cl. 485.215(b) of the Regulations. Accordingly, the Tribunal refused to grant the Applicant the visa.
Contentions of Law
The Applicant is self-represented. He has lodged his application on the basis of jurisdictional error, claimed to arise from the Tribunal’s failure to find he had competent English.
The First Respondent makes two submissions in response:
a.first, the Applicant’s ground invites this Court to reconsider the merits of his application to the Tribunal, which is impermissible in this jurisdiction: compare Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; and
b.second, the Tribunal’s finding was open on the material before it. An Applicant can only demonstrate competent English by providing evidence that satisfies reg. 1.15C(a) or (b). There was no evidence of the Applicant having obtained “competent English” in the requisite sense. For completeness, the First Respondent submits the Applicant’s claims of proficiency in English arising from his work experience:
(i) goes to the merit of his application and accordingly cannot be considered by this Court; and
(ii) would not have satisfied the requirements of reg. 15C(a) or (b) in any event – because it is not evidence of this requisite kind: refer paragraph 11 above.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Date: 5 December 2011
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