Owino v Minister for Immigration
[2020] FCCA 3004
•9 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OWINO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3004 |
| Catchwords: MIGRATION – Graduate visa – decision of Administrative Appeals Tribunal – where the applicant took English Language Test after applying for visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.485.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | FRANCIS OMONDI OWINO |
| Second Applicant: | SHARON AKINYI AKOTH |
| Third Applicant: | DEVAUGHN THOMAS OWINO |
| Fourth Applicant: | SHEM JOSPEH OCHIENG |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 227 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 5 November2020 |
| Date of Last Submission: | 5 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 9 November 2020 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Counsel for the First Respondent: | Mr J Papalia |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 227 of 2020
| FRANCIS OMONDI OWINO |
First Applicant
| SHARON AKINYI AKOTH |
Second Applicant
| DEVAUGHN THOMAS OWINO |
Third Applicant
| SHEM JOSPEH OCHIENG |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Kenya. The first and second applicant are husband and wife. The third and fourth applicants are their children. They arrived in Australia in May 2015 on a student visa (Court Book (“CB”) 47-48).
On 30 January 2019, the applicants applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 1-20). The first applicant was the primary applicant and the remaining applicants were members of the family unit.
On 3 April 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 25-39). The delegate found that the first applicant did not meet cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he had not provided evidence that he had undertaken (and achieved the requisite results for) an English Language Test in the 36 months prior to lodging the visa application. As the first applicant did not meet the primary criteria, the remaining applicants were also denied the visa.
On 18 April 2019, the applicants applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 40-42).
On 18 June 2020, the first applicant provided the Tribunal with a Pearson “PTE Academic” Test Score report dated 5 February 2019 (CB 63-64).
The applicants attended a hearing before the Tribunal on 18 June 2020 (CB 65-68). That same day, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 73-77).
On 22 July 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is three pages long and spans 18 paragraphs.
The Tribunal began by identifying the type of visa the applicants were seeking. The Tribunal then summarised the delegate’s decision and confirmed that the first applicant attended a hearing before the Tribunal by telephone (at [1]-[6]).
The Tribunal confirmed that it had had regard to all of the documentary evidence and oral evidence before it (at [8]). It then noted (at [9]) that the issue before it was whether the applicant satisfied cl.485.212 of the Regulations, which requires:
The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
Having identified that the relevant instrument was IMMI15/062, the Tribunal found that there was no evidence that the first applicant held a passport of a type specified in that instrument. Accordingly, the Tribunal concluded that cl.485.212(b) was not met (at [11]).
The Tribunal noted that to satisfy the criterion for the visa, the visa application had to be accompanied by evidence that the first applicant had undertaken an English Language Test (and had achieved the minimum scores), within the three years before the day the visa application was lodged. The Tribunal explained that it had reminded the first applicant of this fact at the hearing and noted that the first applicant had indicated that he understood (at [11]).
The Tribunal continued:
12. The Tribunal confirmed with the applicant at the hearing that he lodged the online visa application on 30 January 2019 which meant that the applicable three year period was up to and including 29 January 2019. The applicant indicated in his online visa application that he had not taken the relevant language test. He gave oral evidence at the hearing that before he lodged the visa application, on 28 January 2019, he applied to take the PTE test but that the first date available to sit the test was 5 February 2019.
13. The applicant gave evidence that he completed the PTE test on 5 February 2019 and he provided the Tribunal with a copy of the test, which the applicant confirmed he understood was not within the required timeframe as specified in the relevant instrument. The applicant said he realised he waited too long to do the language test, that it ‘caught him off guard’ and requested that the Tribunal show leniency in his case. It was explained to the applicant that the Tribunal has no discretion to waive the criteria relating to the language requirement in cl.485.212(1)(a).
14. The Tribunal acknowledges that the applicant completed a PTE test and that he exceeded the minimum test scores. However, the test was not undertaken in the three years before the visa application was lodged, as specified in the relevant instrument.
The Tribunal was not satisfied that the applicant met cl.485.212(a) of the Regulations and affirmed the delegate’s decision not to grant the first applicant the visa (at [15]-[16]).
As the Tribunal had affirmed the decision not to grant the first applicant the visa, the Tribunal found that the remaining applicants could not meet cl.485.311 of the Regulations. Accordingly, the Tribunal affirmed the decision not to grant the remaining applicants the visa.
Proceedings in this Court
The applicants’ application for judicial review filed 22 July 2020 contains one ground of review as follows:
THE APPLICANT HAS PROVIDED A VALID LANGUAGE PROFICIENCY RESULT
The first applicant filed an affidavit sworn 21 July 2020. Annexed to that affidavit was a Pearson “PTE” Academic report dated 5 February 2019.
The applicants were given an opportunity to file an amended application, any further supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application dated 22 July 2020, a Court Book numbering 77 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 30 September 2020.
The applicants appeared before this Court without legal representation. The first applicant spoke on behalf of the other applicants. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant stated that the Tribunal “failed to consider the English Language Test that he had undertaken and passed”. He explained that the English Language Test results were “meant to be sent to the delegate but were not”. The results were then provided to the Tribunal and the “Tribunal failed to consider it”.
For reasons to be provided below, these concerns do not identify jurisdictional error.
Consideration
The applicants’ sole ground of review fails to identify jurisdictional error. Rather, it expresses disagreement with the Tribunal’s finding that the first applicant did not meet cl.485.212.
For the benefit of the applicants, the Court will explain why the English Language Test that the first applicant has provided in his affidavit was not sufficient for the Tribunal to find that the first applicant met cl.485.212.
In essence, the English Language Test that the first applicant provided was taken “too late”. The English Language Test was taken on
5 February 2019. The applicants lodged the visa application on
30 January 2019. The English Language Test was required to have been taken (and the first applicant to have obtained the required score) before the applicants lodged the application. Here, that simply did not occur.
It does not matter that the first applicant sat the test “just six days after the application was lodged” and that he far exceeded the required scores (the first applicant obtained a score 83. All he required was 50). IMMI 15/062 is clear that the test must be taken and the score must be achieved “within the three years before the day on which the application was made”.
The courts have referred to cl.485.212 and IMMI 16/062 as a “fixed and inflexible mandatory visa criterion” which has no “arguable ambiguity”: Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140. An applicant is required to provide evidence that they have taken a test and achieved the result before they lodged the application.
The information before the delegate, before the Tribunal and before this Court demonstrates that the first applicant did not take (or achieve a required result on) an English Language Test before he lodged the applications.
In those circumstances, the Tribunal was correct. It had no choice but to refuse the visa. The English Language Test dated 5 February 2019 was not a “valid” form of evidence for the purposes of cl.485.212 of the Regulations as it was taken after the date the application was filed.
The Court notes that the Tribunal and the delegate state that the first applicant indicated in his online visa application that he had not taken the relevant language test (at [12]). This is true (CB 19). However, the first applicant also indicated that he did meet the language requirements (CB 1).
Nothing turns on this in circumstances where the first applicant himself confirmed to the Tribunal that he lodged his application on
28 January 2019 (which appears to be incorrect) and that the first available date to take a test was 5 February 2019 (at [12]). The first applicant conceded that he was not within the timeframe (at [13]). He gave no evidence or indication of having taken any English Language Test prior to lodging his visa application.
Here, the overwhelming information before the Tribunal (from the first applicant’s own evidence) was that cl.485.212 was not met as the first applicant had taken the English Language Test six days after he lodged the application. It was entirely open for the Tribunal to find that he could not meet cl.485.212.
While the applicants may have requested leniency, there is no discretion for the Tribunal to waive cl.485.212. Once it is determined that no test or result was obtained in the three years prior to lodging the application, the application must be refused.
The sole ground of review is, accordingly, dismissed.
Conclusion
The application for judicial review fails to identify any jurisdictional error. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 November 2020
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