Nawaz v Minister for Immigration

[2015] FCCA 1245

FEDERAL CIRCUIT COURT OF AUSTRALIA

NAWAZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1245

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (class VC) visa – whether language test may be undertaken after visa application is lodged – whether definition of “competent English” in the Migration Regulations 1994 was exhaustive – whether regulatory provisions or instruments were invalid – application dismissed.

Legislation:  

Migration Act 1958, ss.104(1), 476
Migration Regulations 1994, regs.1.15B, 1.15C

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1
Carter v Egg & Egg Pulp Marketing Board (1942) 66 CLR 557
City of Brunswick v Stewart (1941) 65 CLR 88
Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) NSWCA 149
Judiciary and Navigation Acts, Re(Advisory Opinions case)(1921) CLR 257
Milanes v Minister for Immigration & Anor [2015] FCCA 205
Mondal v the Minister for Immigration and Anor [2015] FCCA 571
Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1
Primary Industries & Energy, Minister for v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Sidhu v the Minister for Immigration and Border Protection [2014] FCA 935
Singh v the Minister of Immigration and Border Protection [2014] FCA 185
State of South Australia v Tanner (1989) 166 CLR 161
Widgee Shire Council v Bonney (1907) 4 CLR 977
Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126

Applicant: HAQ NAWAZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2107 of 2013

Judgment of: Judge Street

Hearing date: 12 May 2015

Date of Last Submission: 12 May 2015

Delivered at: Sydney

Delivered on: 12 May 2015

REPRESENTATION

Solicitors for the Applicant: Mr M. Jones
Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr M.J. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The further amended application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $8000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2107 of 2013

HAQ NAWAZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 12 August 2013 affirming the decision of the delegate not to grant the applicant a Skilled (Provisional)(class VC) visa.  The further amended application identifies the following grounds:

   1. The Tribunal missapplied the law.

   Particulars

   The Tribunal found that Regulation 1.15C requires the applicant to have a prescribed IELTS score at the time of application for the visa rather than at the time of decision on the visa application.

   2. The Tribunal misinterpreted reg 1.15C.

   Particulars

   The Tribunal interpreted reg 1.15C as if it were an exhaustive definition of the term “competent English” which is not.

   3. The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments.

   Particulars

   The instrument is ambiguous, uncertain and incapable of practical administration. It refers to a test (“Occupational English Test”) which, as defined in reg 1.03, does not exist, and its description of the “four test components” of the IELTS test is incapable proper interpretation since there are six distinct components of that test.

   4. Paragraph 1.15C(b) is an invalid exercise of the power to make regulations in s 504 of the Migration Act 1958.

2. In relation to ground 1, it is accepted by Mr Jones that this ground was the subject of a recent decision of Judge Cameron in Milanes v Minister for Immigration & Anor [2015] FCCA 205, which is adverse to the construction argument sought to be advanced. In this matter, I am of the view that the decision of Judge Cameron is correct and I follow the decision in Milanes.

3. I am also of the view that ground 1 is the subject of a decision by Barker J in Singh v the Minister of Immigration and Border Protection [2014] FCA 185 at [15] - [17]. In these circumstances, ground 1 was bound to fail. In relation to ground 2, again, Mr Jones has properly conceded that it is also the subject of an adverse decision by Judge Cameron in Milanes.  I am of the view that the decision of Judge Cameron was correct. 

4. I also note that ground 2 was the subject of the decision of Mansfield J in Sidhu v the Minister for Immigration and Border Protection [2014] FCA 935 at [11], which is binding on this Court. Accordingly, ground 2 is doomed to failure. In relation to ground 3, Mr Jones accepted that it fell within the decision of this Court of Mondal v the Minister for Immigration and Anor [2015] FCCA 571. There was no additional argument that Mr Jones sought to develop in relation to ground 3 and I am of the view that it has no substance, for the reasons given in Mondal.

5. Ground 4 was also properly conceded by Mr Jones to fall within the decision in Milanes.  In my opinion, that decision was correct and there was no substance in ground 4.  I am also of the opinion that reg.1.15C(b) is not outside the field of operation which the statute marks out for itself, Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1 at [174].

6. In my opinion, the regulation is not so oppressive and capricious that no reasonable mind can justify it.  See Widgee Shire Council v Bonney (1907) 4 CLR 977 at [980]-[983] and [986]-[989]; City of Brunswick v Stewart (1941) 65 CLR 88 at [97]; Carter v Egg & Egg Pulp Marketing Board (1942) 66 CLR 557 at [584]-[585]; Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126 at [39]-[43].

7. I find that reg.1.15C(b) is proportionate to the regulation-making power found in s.504(1),  see Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 at [58]-[59] and [62]; Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) NSWCA 149 at [67].

8. It is only in an extreme case where the delegated legislation would be declared invalid on unreasonableness or lack of proportionality grounds.  See Lockhart J in Primary Industries & Energy, Minister for v Austral Fisheries Pty Ltd (1993) 40 FCR 381. Adopting the test applied by Beaumont J and Hill J in Minister for Primary Industries & Energy at [41], reg.1.15B is not a provision that no reasonable person could ever have devised. It cannot be said in this case that reg.1.15B is so lacking proportionality as not to be a real exercise of the power, see State of South Australia v Tanner (1989) 166 CLR 161 at [168].

9. I note in this case that the Tribunal recorded that at the hearing on 12 August 2013, the applicant stated that he has done the IELTS test seven times but has not been able to get the required scores.  The Tribunal found that the applicant did not have competent English as defined in reg.1.15C(a).  It was in those circumstances the Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (class VC) visa.  There was no jurisdictional error in these findings by the Tribunal.

10. The Court raised with both parties whether there was a hypothetical assumption underlying the grounds raised in the present case, given the absence of any other test demonstrating that the applicant was, in fact, competent in English.  No argument was developed as to the questions in this case being hypothetical and accordingly, I have not dealt with the Judiciary and Navigation Acts, Re(Advisory Opinions case)(1921) CLR 257 issue. I should, however, note that the absence of any evidence of competence in English by some other means will be, in my opinion, a material and relevant consideration to any discretionary issue in respect of the grant of prerogative relief in a case of this type. The further amended application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 May 2015