Nayeem v Minister for Immigration & Anor
[2010] FMCA 618
•17 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAYEEM v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 618 |
| MIGRATION – Review of Migration Review Tribunal decision – subclass 485 visa – criterion requiring “competent English” – whether criterion must be satisfied at time of application or may be satisfied at a later time. |
| Migration Act 1958, s.474 Migration Amendment Regulations 2008 (No.7), reg.7 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417 |
| Applicant: | ABUL HASNAT MD NAYEEM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 615 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 June 2010 |
| Date of Last Submission: | 6 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young |
| Counsel for the First Respondent: | Mr G. Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the second respondent quashing its decision dated 23 February 2010.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made on 8 May 2010.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 615 of 2010
| ABUL HASNAT MD NAYEEM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 February 2008 the applicant applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa. A delegate of the first respondent (“Minister”) refused the application on 6 May 2009 on the basis that the applicant did not have “competent English”, one of the criteria for the grant of such a visa found in cl.485.215 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.
Relevant law
The Tribunal described the Skilled (Provisional) (Class VC) visa as a visa which enables graduates of Australian educational institutions, and people who have held certain temporary skilled visas, to reside in Australia temporarily in order to obtain the skills and qualifications required for the grant of a permanent general skilled migration visa.
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. Relevantly for this matter, a primary criterion was cl.485.215 which provided at the date of application:
485.21 Criteria to be satisfied at time of application
…
485.215 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; 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.
Clause 485.222 provided at 20 February 2008:
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 Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.
“Competent English” is relevantly defined in reg.1.15C as follows:
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; …
It is plain that the criteria found in cl.485.222(a) and (b) replicate those found in cl.485.215(a) and (b) and will be relevant if, pursuant to cl.485.215(c), a visa application is accompanied by evidence that the applicant has made arrangements to undertake a language test at some later date.
The amendments made to cl.485 by the Migration Amendment Regulations 2008 (No.7) and the Migration Amendment Regulations 2009 (No.7) do not apply to visa applications which predate them and thus the version of cl.485 in force at the time of the applicant’s visa application is the one which applies in this case: reg.7(2) Migration Amendment Regulations 2008 (No.7); reg.5(2) Migration Amendment Regulations 2009 (No.7).
Background
As noted earlier in these reasons, the applicant lodged his application for a subclass 485 visa on 20 February 2008. In his application form, the applicant indicated that he had not undertaken an English test in the previous twenty-four months. Subsequently, he provided to the Minister’s department an International English Language Testing System (“IELTS”) receipt dated 18 March 2008 for a test which was to be undertaken on 30 August 2008.
On 6 May 2009 the delegate refused the applicant’s application on the basis that he did not have competent English to the standard specified in reg.1.15C and therefore did not satisfy the requirements of cl.485.215. In this regard reference was made to an IELTS test report dated 21 February 2009 which indicated that the applicant had achieved the scores of 6.0 for speaking, 5.5 for reading, 6.0 for writing and 6.5 for listening. The applicant failed to meet the test for competent English because he had not achieved “an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening”.
On 8 May 2009 the applicant sought a Tribunal review of the delegate’s decision. He later provided to the Tribunal an IELTS test report dated 23 July 2009 for a test which he had undertaken on 11 July 2009 and for which he scored 7.0 for speaking, 6.5 for reading, 6.0 for writing and 7.0 for listening.
At a hearing before the Tribunal on 10 February 2010 the applicant stated that he had lodged his visa application on-line. He claimed that, in applying on-line, he first had to fill in the form and pay the relevant fee. He claimed that three days later he received email correspondence from the Minister’s department indicating that his application form had been accepted and that he had twenty-eight days within which to upload all the relevant documents including the IELTS receipt, which he did. In support, the applicant provided to the Tribunal a hard copy of the email correspondence between himself and the department.
By decision dated 23 February 2010 the Tribunal found that the applicant did not satisfy cl.485.215 of sch.2 to the Regulations, because:
a)he had not demonstrated at the time of application on 20 February 2008 that he had competent English and thus he did not satisfy cl.485.215(b); and
b)his IELTS receipt of 18 March 2008 was submitted during the processing of his application, not at the time of its lodgment as required by cl.485.215(c). This meant that the applicant’s application of 20 February 2008 had not been accompanied by evidence that he had made arrangements to undergo a language test and thus he did not satisfy cl.485.215(c).
As the Tribunal concluded that the application had not satisfied the requirements of cl.485.215, it affirmed the decision of the delegate to not grant the applicant a subclass 485 visa.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Second Respondent made jurisdictional error in that it made an error of law in relation to the construction of clause 485.215(b) of schedule 2 of the Migration Regulations 1994.
2.The Second Respondent made jurisdictional error in relation to the construction of clause 485.215(c) of schedule 2 of the Migration Regulations 1994.
At the hearing only the first ground was pressed.
Construction of cl.485.215(b)
Applicant
In the applicant’s written submissions the first allegation was particularised as follows:
(i)The Second Respondent at [20] stated that while the applicant had achieved (on 23 July 2009) an IELTS test result which showed competent English, this is after the date of application.
(ii)The implicit finding in (i) above was that to satisfy the requirements of clause 475.215(b) [sic] the relevant IELTS test (for the purposes of Regulation 1.15C of when a person has competent English) must be undertaken before the date of the application.
(iii) The matters in (i) and (ii) above constitute legal error in that clause 485.285(b) [sic] contemplates a test taken after the date of the application.
The applicant referred to para.17 of the Tribunal’s decision, where it referred to the IELTS report dated 23 July 2009 which stated that in a test on 11 July 2009 the applicant had achieved an overall band score of 6.5, and to para.20, and where it said that it could not take those results into consideration unless it was satisfied that the requirements of cl.485.215(c) had been met, namely, that the application had been accompanied by evidence that he had made arrangements to undergo a language test.
In submitting that the Tribunal had erred by construing the Regulations to require the applicant to have sat his IELTS test before lodging his visa application, the applicant referred to the High Court’s decision in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417. In that case the High Court considered cl.885.213 of sch.2 to, and reg.1.15B of, the Regulations. As will be seen shortly, those provisions are very similar to the regulatory provisions relevant in this case, cl.485.215 and reg.1.15C.
The version of cl.885.213 which was considered in Berenguel’s case provided:
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.
Similarly to cl.485.215, cl.885.213 appeared under a heading “Criteria to be satisfied at time of application”.
Regulation 1.15B defines the demonstration of “vocational English” partly by reference to an applicant having achieved the requisite IELTS score “in a test conducted not more than 2 years before the day on which the application was lodged”. Significantly for this case, the definitional of “vocational English” in reg.1.15B is in terms which are relevantly identical to the definition of “competent English” in reg.1.15C, except that the test score required is 5, not 6.
The applicant submitted that in Berenguel’s case the High Court held that even if an applicant had received no test score at all at the time of making the relevant visa application, he or she could satisfy the requirements of reg.1.15B by relying on a test conducted after the application was lodged. He submitted that the Tribunal’s finding in this case, that the applicant had not demonstrated at the time of the application that he had “competent English”, could not survive the decision in Berenguel.
The applicant also submitted that cls.485.215(b) and 485.215(c) were alternatives, the implication being that he needed to satisfy only one of them, although if cl.485.215(c) were satisfied it would then be necessary to satisfy cl.485.222 too. He submitted that the question for the Tribunal was whether he had satisfied cl.485.215(b).
The Minister
The Minister acknowledged that the decision in Berenguel’s case establishes that cl.885.213 of sch.2 of the Regulations is not to be construed as imposing a criterion which must be satisfied at the time of application. Counsel for the Minister summarised the considerations leading to the decision in Berenguel’s case:
(a)The evident purpose of the clause was to require recent competency in English to have been demonstrated by the time a decision was made. Achievement of that purpose did not require that a test be conducted before lodging the application.
(b)The provision which relevantly defined ‘vocational English’ (reg.1.15B) was susceptible to a construction which encompassed an English test conducted after lodgement of the Application.
(c)The heading ‘Criteria to be satisfied at the time of application’ did not connect grammatically to anything in cl.885.213 and thus was insufficient to require a conclusion that the clause was to be satisfied at that time – there being nothing in the clause itself pointing to that conclusion.
(d)A construction requiring the criterion to be satisfied at the time of application was not to be preferred because it led to ‘unfairness and absurdity’.
The Minister’s case was that notwithstanding the ostensible applicability of the reasoning in Berenguel’s case to this case, the criteria in cl.485.215 were ones which had to be satisfied at the time of application, not at a later point. In this regard it was submitted that the existence and the wording of cl.485.222 demonstrated that that clause prescribed criteria applicable at the time of decision and that cl.485.215 prescribed criteria which applied only at the time of application. Clause 485.215(c) was central to this argument and the Minister submitted that it comprised two elements. The first of these was said to be a procedural requirement that the visa application was to be accompanied by evidence of arrangements to undertake an IELTS test. The second element was said to be an underlying substantive requirement that those arrangements actually be in place at the time of application.
Clauses cls.485.215 and 485.222 were said to create a scheme which permitted a visa applicant to meet the relevant language criteria by:
(a)establishing that he or she has obtained the relevant test results at the time of application (cl.485.215(a) or (b)); or
(b)establishing that at the time of application he or she had arranged to undertake the test (cl.485.215(c)), and that by the time of decision he or she has obtained the necessary test results (cl.485.222(a) or (b)).
It was submitted that these criteria were different to those considered in Berenguel’s case where no issue arose concerning future test arrangements or the duplication of regulatory provisions.
The Minister submitted that the reasoning in Berenguel’s case applied to the procedural aspect of cl.485.215(c), with the result that evidence of arrangements to undertake an IELTS test could be submitted after the application, but that the substantive aspect of cl.485.215(c) was a different matter. In particular, it was submitted that incongruous results would be produced if cl.485.215 as a whole was able to be satisfied at the time of decision, and was not restricted to being a criterion to be satisfied at the time of application. One of these incongruities would be that cl.485.222 would duplicate cl.485.215(a) and (b). The second was that if cl.485.215 could be satisfied at the time of decision, cl.485.215(c) would add nothing to cl.485.215(a) and (b) and would be redundant. It was submitted that cl.485.215(c) would be redundant because a person who, at the time of decision, satisfied the procedural requirement to have submitted evidence of arrangements to undergo a language test, would also be required to demonstrate that he or she had passed that test. That is to say, it was incongruous at the time of decision to require evidence of arrangements to sit a test as well as evidence of the results of that test.
The Minister also submitted that the headings preceding the clauses, namely “Criteria to be satisfied at time of application” and “Criteria to be satisfied at time of decision” did connect grammatically with the clauses beneath them and that the only construction of those clauses which avoided incongruity was one which implemented the legislative intention reflected by those headings.
It was put that cl.485.215(a) and (b), and cl.485.215(c) in so far as it operated substantively, should be understood to impose alternative criteria which had to be satisfied at the time of application, not decision. Consequently, according to the Minister, the Tribunal did not err when it found that the applicant had failed to satisfy cl.485 because he did not have the necessary IELTS test result at the time of the application and because he had not, as at the time of application, made arrangements to sit such a test.
Consideration
Although Berenguel’s case considered cl.885.213 and reg.1.15B, which do not apply to this matter, there is no relevant difference between those provisions and cl.485.215(a) and (b) and reg.1.15C which do. The High Court found that the evident purpose of the two alternative criteria in cl.885.213 was to ensure that, when the Minister or delegate decided upon the application for a visa, the applicant would have demonstrated reasonable competency in the English language.
The apparent applicability to the present matter of the High Court’s construction of cl.885.213 and reg.1.15B is obvious. The task therefore is to determine whether this case should be distinguished from Berenguel’s case and whether, notwithstanding the similarities between cl.485.215 and reg.1.15C, and cl.885.213 and reg.1.15B, the latter operate differently from the former. Attention therefore turns to the arguments advanced by the Minister.
The Minister set out to demonstrate that cls.485.215 and 485.222 must be read as complementary and in such a way that the latter can only be satisfied at the time of application and the former only at the time of decision.
As recorded earlier, one limb of the Minister’s argument was that if cl.485.215(a) and (b) can be satisfied at the time of decision and thus operate concurrently with cl.485.222, cl.485.215(c) is redundant because all it achieves is the operation of cl.485.222 which says the same things as cl.485.215(a) and (b). That argument is related to the Minister’s submission that the posited procedural aspect of cl.485.215(c) is governed by the reasoning in Berenguel’s case with the result that evidence of arrangements to undertake an IELTS test may be submitted after the application. However, in Berenguel’s case the High Court specifically drew a distinction between provisions such as cl.485.215(a) and (b) and provisions such as and cl.485.215(c). In relation to the former, the High Court found that regulations such as regs.1.15B and 1.15C did not require that the language test be conducted before lodgment of the application unless such a requirement emerged from the visa criteria and, specifically, from the direct operation of the heading “Criteria to be satisfied at time of application”. By contrast, visa criteria such as cl.485.215(c) require that “the application is accompanied by evidence” of the proposed future language test. At 422 [24] the High Court said:
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 cll 85.213 [recte: cl.885.213], 5.214 [recte: cl.885.214] and 885.215.
In order to illustrate the significance of this observation and the High Court’s comparison of the clauses it cited, the three clauses referred to should be quoted:
885.213 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.
885.214 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
885.215The application is accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purpose of the application.
Plainly, cl.485.215(a) and (b) use language the same as that seen in cl.885.213, and cl.485.215(c) uses language the same as that seen in cls.885.214 and 885.215. From the High Court’s comments it must be understood that when a clause requires that an application be “accompanied by evidence” of a particular state of affairs, the relevant criterion can only be satisfied by evidence provided to the Minister at the time the application is lodged. Consequently, far from imposing a procedural requirement which may be satisfied at a date later than the time of application, cl.485.215(c) imposes a substantive requirement which must be satisfied at the time of application if it is to be satisfied at all. This means that an applicant cannot, after the time of application, satisfy the paragraph by submitting evidence of arrangements for a future language test. It also means that to characterise cl.485.215(c) as having procedural and substantive elements is to erect a false dichotomy.
If cl.485.215(c) is understood in this way, it is not redundant. It provides one way for an applicant to be able to demonstrate that he or she has an adequate level of skill in the English language. More importantly, the necessary implication of cl.485.222 is that a decision on the application will not be made until the applicant has had an opportunity to sit the test which he or she has arranged, the arrangements for which were demonstrated by evidence which accompanied the visa application. In this respect, cl.485.215(c) provides a degree of certainty for an applicant, in that a decision on the visa application will not be made until he or she has sat a language test, as well as for the decision-maker, in that a test will have been sat by a particular date thus facilitating the timetabling of a decision on the application.
The degree of certainty provided by cl.485.215(c) can be contrasted with the rights which cl.485.215(a) and (b) will provide if construed in accordance with the reasons in Berenguel’s case and it is in this connection that the other limb of the Minister’s argument must be considered. That part of the Minister’s argument was that if cl.485.215 as a whole were understood to apply at the time of decision, cl.485.222 would simply duplicate cl.485.215(a) and (b) and there would be no reason for the drafter to have included two provisions which said the same thing. However, cl.485.222 cannot truly duplicate cl.485.215(a) and (b) because the former will only have work to do if the requirements of cl.485.215(c) have been satisfied at the time of application. If the requirements of cl.485.215(c) are not satisfied at the time of application, and the applicant afforded the certainty which that would provide, then the applicant may use the alternative route of cl.485.215(a) and (b) to demonstrate adequate English skills.
In this connection, there is no reason to suppose that the purpose underlying reg.1.15C is any different to that underlying reg.1.15B. In relation to reg.1.15B the High Court said that the relevant regulatory explanatory statement supported the inference that the purpose of requiring an applicant to undergo a language test is to establish that he or she currently has an appropriate standard of English competency (at 422 [21]). The court went on to say:
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 2 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”. (at 422 [25]).
Although that part of the explanatory statement dealing with reg.1.15C is not in terms identical to that part dealing with reg.1.15B, it is sufficiently similar that it can be concluded that the purpose underlying the former is the same as the purpose underlying the latter.
Additionally, in Berenguel’s case, the High Court found that the group of clauses in pt.885 headed “Criteria to be satisfied at time of application” did not connect grammatically to the terms of that heading such that the heading governed the construction of those clauses. In this regard the High Court observed that the text of pt.885 did not support a conclusion that the criteria in pt.885 spoke exclusively to satisfaction at the time of application, quoting, by way of example, cl.885.212 which read:
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] (at 423[26]).
Importantly for the present proceeding, cl.485.214 is in terms identical to those of cl.885.212:
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.
The High Court’s reasoning regarding the significance of the regulations’ headings should be considered to apply not only to pt.885 but also to pt.485 with the result that the construction of cl.485.215 is not governed by the heading under which it appears.
Finally, it must be kept in mind that cl.485.215(a), (b) and (c) are alternatives and it is only necessary that an applicant satisfy one of them in order to satisfy that criterion. It may be that their operation can overlap but they do not contradict each other. An applicant who has not passed an IELTS test in the two years before the visa application may either give evidence of arrangements for a future test when making the visa application or may continue to sit tests and obtain results up to the date of decision but run the risk of a decision on the visa application being made before a test is sat or results advised. The provisions work in a way whereby the operation of one does not compromise or contradict the operation of another.
Conclusion
I find that cl.485.215(b) does not require an applicant to establish that he or she has obtained the relevant IELTS test results by the time of application. In this case, the applicant could have satisfied the language requirement of cl.485.215(b) by lodging an IELTS test report satisfying the requirements of reg.1.15C at any time up to the time of decision, which is in fact what he did. The Tribunal erred by finding that it could not take into account the applicant’s IELTS test results set out in the test report dated 23 July 2009.
As jurisdictional error on the part of the Tribunal has been demonstrated, its decision will be set aside and the matter remitted to be determined according to law.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 17 August 2010
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