Pabbi v Minister for Home Affairs
[2019] FCCA 1750
•25 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PABBI & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1750 |
| Catchwords: MIGRATION – Temporary Graduate (Class VC) (Subclass 485) visa – review of a decision of the Administrative Appeals Tribunal – where applicants failed to provide evidence of English language test prior to filing visa application – where the Tribunal has no discretion – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.360, 474, 476 Migration Regulations 1994 (Cth), sch.2, cl.485.212 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | GAGANDEEP KAUR PABBI |
| Second Applicant: | BHUPINDER SINGH VIRK |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 387 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Perth |
| Orders Pronounced: | 24 June 2019 |
| Delivered on: | 25 June 2019 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The first and second applicants pay the first respondent’s costs in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 387 of 2018
| GAGANDEEP KAUR PABBI |
First Applicant
| BHUPINDER SINGH VIRK |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 June 2019, this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court.
Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written reasons for judgment be published by Chambers at a later date.
3. The first and second applicants pay the first respondent’s costs in the sum of $4,500.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 24 June 2019.
Background
By application filed in this Court on 14 July 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 27 June 2018.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Home Affairs (the “Minister”) to refuse to grant the applicants Temporary Graduate (Class VC) (Subclass 485) visas (the “graduate visas”).
The applicants now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the Tribunal.
The applicants appeared in this Court without legal representation. The Court had before it and in evidence a Court Book (“CB”) numbering 73 substantive pages. Written submissions were filed by the applicants on 17 May 2019 and a written outline of submissions was filed by the Minister on 4 June 2019.
The Court notes the Minister’s submissions at [3]-[11]. These paragraphs accurately summarise the chronology relevant to this matter. This summary was not disputed and the Court adopts it as its own. It provides as follows.
The first applicant is a citizen of India who arrived in Australia on 1 February 2014 on a Student (Class TU) (subclass 573) visa (CB 45). She subsequently held a number of further student visas (CB 44). The second applicant is her husband. He is also an Indian citizen. He was a member of the “family unit” on the first applicant’s visa application (CB 4).
On 20 January 2018, the applicants applied for graduate visas to the former Department of Immigration and Border Protection (the “Department”) (CB 1-17).
On 8 February 2018, the first applicant submitted evidence of a Pearson Test of English Academic Test Taker Score Report with a test date of 30 January 2018 (CB 21-22).
On 15 February 2018, a delegate of the Minister refused to grant the graduate visas on the basis that the first applicant did not meet the English language ability requirements set out in cl.485.212 of sch.2 to the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 24-31).
On 19 February 2018, the applicants lodged an application with the Tribunal seeking review of the delegate’s decision (CB 39-40).
On 16 May 2018, the applicants were invited to a hearing before the Tribunal. In the invitation letter, the Tribunal explained the effect of cl.485.212 of sch.2 to the Regulations and outlined how the English language ability requirement can be met (CB 49-52).
On 23 May 2018, the applicants provided a statement addressing the English language ability requirement (CB 58).
On 20 June 2018, the applicants appeared before the Tribunal to give evidence and present arguments (CB 60-64).
On 27 June 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants the graduate visas (CB 67-69). The Tribunal determined that it was not satisfied that the applicants met cl.485.212(a) of the Regulations which required that the visa application be accompanied by evidence that the first applicant had undertaken a specified language test and had achieved the required score prior to lodging the visa application. The language test was undertaken 10 days after the visa application was filed. Accordingly, cl.485.212(a) had not been complied with.
The Tribunal’s Decision
The Tribunal’s decision is brief. It provides, relevantly, as follows:
...
CONSIDERATION OF CLAIMS AND EVIDENCE
6.The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:
• the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or
•the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).
7.The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.
8.The applicant is a citizen of India. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).
9.The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that in her visa application she declared she had not undertaken an English language test within the last 36 months. It further records that the applicant subsequently provided to the Department, a Pearson Test of English Academic (PTE Academic) result recording that she sat the PTE Academic test on 30 January 2018, in support of the English language requirement. The delegate found that the applicant did not satisfy 485.212(a)(ii) as she undertook the English language test after the day of lodgement.
10.In a submission provided to the Tribunal prior to her hearing, the applicant set out the circumstances which led to her not meeting the English language requirement. She states that at the time she applied for her visa she was the holder of a student visa which was due to cease on 31 January 2018. She states that because she was concerned that she would not have a valid visa to ensure she was able attend her graduation ceremony on 3 February 2018, she contacted the Department to seek advice in relation to her situation and was ultimately told to apply for the current visa. She also states that around the time she applied for the visa she was experiencing a great deal of stress - in particular, she was dealing with significant personal family issues. She states she encountered a delay in booking an English test at the time. She states she thought the Department would invite her to provide evidence of her English competency and she would have 28 days to provide that evidence.
11.At the hearing the Tribunal explained to the applicant the requirements of cl.485.212. It explained that to meet the requirement the applicant had to provide evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified. It explained that the period specified is three years before the day on which the visa application was made.
12.The applicant indicated to the Tribunal that she now understood the requirements for the visa. She reiterated to the Tribunal that in uncertain and difficult personal circumstances, she made arrangements to sit an English language test, in support of her visa application, as soon as she could.
13.The Tribunal explained that the law requires the applicant to have already taken an English language test by the time she made her visa application. The Tribunal explained that it does not have any discretion to waive this requirement.
14.The Tribunal accepts that the applicant has undertaken a specified English language test – a PTE Academic Test - and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
15.The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).
16.On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
Proceedings in this Court
The applicants’ application for judicial review contains the following “grounds of review”:
1. I was born on [x].
2. I am currently on Bridging visa A.
1. I Gagandeep Kaur Pabbi has applied for a Graduate visa (VC 485) on 20th January 2018. The visa application was refused by DIBP on 15th February 2018 and affirmed by Administrative Appeals Tribunal on 27th June 2018
2. In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances
(Identifying particulars omitted)
The applicants filed written submissions on 17 May 2019. Those submissions provided as follows:
1. Initially, Delegate of Department of Home Affairs (DIBP) did gave me unlawful and wrong advice to lodge Post graduate visa (485) or visitor visa, from the official call center, which led me to lodge application, which was refused later and it is on record.
2. More over case officer of DIBP failed to follow Code of procedure for dealing fairly, efficiently. During the processing of application under s56 (2) of Migration Act 1958 Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. According to law I deserved a fair chance to explain while application was in process. But Case officer never invited me for any further information or gave me chance to present my circumstance.
3. Apart from this under s57 of Migration Act 1958 and natural justice rule, delegate had chance to explain me that this would be the reason, or part of the reason for refusing visa and invite the applicant to comment on it or I can withdraw application, again case officer failed to give me chance to withdraw application.
4.English result provide was also consistent with the principles set out earlier in Berenguel 264 ALR 417; (20101 HCA 8 at [24]-[27] and the Tribunal acting on the most up-to-date information.
5. In my case, AAT did not provide me fair chance while hearing to explain my situation and circumstances, more it look like AAT member was prepared to Affirm the decision without even listening or considering my side of argument. Hiring was resumed on 10:30am and finished 10:37am. AAT respected member gave me merely 7 minutes to present my circumstances. under s.359 of the Migration Act 1958 (Cth) AAT did not provide me fair chance at hearing to explain my situation and circumstances.
The grounds of the judicial review application are not specific and are largely irrelevant to this Court’s task on judicial review. The submissions however, are more particular and, arguably, of some assistance.
Noting the remarks of the Federal Court (most recently in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]) that an unrepresented applicant or applicants should be given an opportunity to explain their grounds of review or what they believe the Tribunal “did wrong”, the Court gave the applicants the opportunity to make oral submissions. The first applicant did so on her own behalf and on behalf of her husband.
To assist the applicants, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions and visas of this sort they most commonly include 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 (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]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; 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] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicants what the Court cannot do. It was explained that this Court cannot undertake what is referred to as “merits review” and cannot grant them the visa they seek. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The first applicant was asked to explain what she believes the Tribunal “did wrong”.
Unfortunately, her oral response did not assist the applicants in relation to the issues arising on judicial review. The comments made simply repeated what appears in the application for judicial review and the written submission before the Court.
Consideration - Judicial Review Application
Grounds 1-3
1. I was born on [x]
2. I am currently on Bridging visa A.
1. I Gagandeep Kaur Pabbi has applied for a Graduate visa (VC 485 ) on 20th January 2018. The visa application was refused by DIBP on 15th February 2018 and affirmed by Administrative Appeals Tribunal on 27th June 2018
Grounds 1-3 of the judicial review application do not evidence jurisdictional error. They simply provide background facts to the matter.
Grounds 1-3 of the judicial review application are, accordingly, dismissed.
Ground 4
In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances
Insofar as ground 4 complains of the delegate’s decision, this Court has no jurisdiction to review that decision: Act, ss.474 and 476(2) and (4).
Insofar as ground 4 relates to the Tribunal, however, the Court assumes that the “circumstances” the applicants are referring to are those outlined in a letter to the Tribunal dated 23 May 2018 (CB 58). That letter provides:
This is regarding the review of my temporary graduate visa refusal wherein I was unable to prove the English requirements required for this case.
The reasons for not proving English requirements was uncertain as below:
• I applied for student visa (Subclass 500) on 14th September 2017 and was granted a student visa on 2nd January 2018 which was until 31st January 2018.
•My Graduation ceremony was falling on 3rd February 2018, and I was not having enough visa to stay until my graduation. I contacted the Department of Immigration for the same as was advised to either apply for Post study work visa or Visitor visa.
•I booked for my Pearson Test of English on the same date I hardly got a date as it was after the Christmas holidays. My Exam was on 30th January 2018. And I decided to apply for my visa on 31st January 2018 when I will get my results. (I got my result on 31st January 2018)
•I was already going through stressful situations due to issues my brother had where he got missing in Canada and started substance abuse. Unfortunately, at the same time around 18th January my Father got seriously sick and as my parents live alone in India. There was no one else to look after them.
•I again contacted the department and told my situation and was advised that I can apply for Post study work visa and will be granted a Bridging visa A and can apply for Bridging Visa B and travel.
•As I was in such a stressful situation. I started applying for my Post study Work Visa to get a Bridging visa and in that stressful situation what was going in my mind was to go and look after my parents.
•As the department normally gives 28 days to provide the documents. I had same in mind that in 28 days I will provide my English proficiency test and, in my application, I didn’t provide any False information. The system even allowed me to submit my application.
• I applied for my Post study work visa on 20th January 2018 and was granted a Bridging Visa A and then started to apply for Bridging Visa B.
So, these were the circumstances which made me to apply for my visa in stressful situations. I hope you will consider these circumstances while reviewing my case.
The Tribunal specifically referred to this letter at [10] and it cannot be said that the Tribunal “overlooked” the circumstances detailed in this letter. At [12] the Tribunal referred to the first applicant’s evidence at hearing that she faced uncertain and difficult personal circumstances at the time she was lodging her visa application.
The Tribunal expressly acknowledged the applicant’s circumstances. Unfortunately, as noted by the Tribunal at [13], the Tribunal had no discretion to consider those circumstances when determining whether the first applicant met the relevant criterion.
Even if the Tribunal had overlooked the circumstances, which it did not, there would be no jurisdictional error in this regard. Put simply, the subjective reasons, or the circumstances, for why the applicants applied for the graduate visas without the accompanying evidence were not relevant to the Tribunal’s overall task: Khan v Minister for Immigration & Border Protection [2018] FCAFC 85 at [15]-[18].
Ground 4, accordingly, fails.
Consideration – Written submissions
Paragraph 1
Initially, Delegate of Department of Home Affairs (DIBP) did gave me unlawful and wrong advice to lodge Post graduate visa (485) or visitor visa, from the official call center, which led me to lodge application, which was refused later and it is on record.
The first applicant spoke to this issue in oral submissions. She advised that she was twice given wrong information by the Department (before she applied for the graduate visa). There is no suggestion here that the Tribunal provided the applicants incorrect information in relation to their hearing before the Tribunal.
It is clear that these events occurred at a particularly stressful time for the first applicant. Her father was critically ill.
While sympathetic, the first applicant’s own (somewhat unclear) summary of what she says occurred here does not point to an assertion of fraud or illegality on the part of the Department. Nor can anything before the Tribunal be read to suggest that this was an issue to be assessed.
All that can be said is that any advice given to applicant about her visa status was, at its highest, simply inaccurate.
In this regard, the Court notes the Minister’s submissions as follows at [43]:
The first applicant’s written submissions to the Tribunal state that the first applicant thought that she would have 28 days to provide evidence of the English language ability test. Whilst it is unfortunate that the first applicant was not aware of the requirements for the visa, it is the responsibility of the applicants to understand the mandatory requirements: Brar v Minister for Immigration and Border Protection [2017] FCCA 2440 at [36]. In relation to this point, it is also relevant to observe that there is a note in the application beneath the ‘language requirements’ question that states as follows: ‘Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 months that demonstrates you have met the English language requirement.’
The Court agrees. While sympathetic to the concerns the applicants raise, paragraph 1 fails to identify any jurisdictional error on the part of the Tribunal.
Paragraph 2
More over case officer of DIBP failed to follow Code of procedure for dealing fairly, efficiently. During the processing of application under s56 (2) of Migration Act 1958 without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. According to law I deserved a fair chance to explain while application was in process. But Case officer never invited me for any further information or gave me chance to present my circumstance.
This Court has no jurisdiction to review the delegate’s decision.
It is also well established that any error in the delegate’s decision, including a failure to afford procedural fairness, will be “cured” by the Tribunal decision: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
Hence, the fact that that the first applicant was never invited to an interview or given an opportunity to present her circumstances to the delegate does not give rise to any error in the Tribunal’s decision.
Paragraph 3
Apart from this under s57 of Migration Act 1958 and natural justice rule, delegate had chance to explain me that this would be the reason, or part of the reason for refusing visa and invite the applicant to comment on it or I can withdraw application, again case officer failed to give me chance to withdraw application.
The Court sympathises with the applicants in this regard. Unfortunately, the Court cannot assist in relation to this issue as the Court cannot review the delegate’s decision.
In any event, as an aside, the Court notes that while it is true that the delegate must put certain information to an applicant, that information does not include any reference to an absence in the evidence before it: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]. Nor does it include identified gaps in an applicant’s evidence with respect to the visa criterion: VAF v Minister for Immigration &Multicultural & Indigenous Affairs (2004) 236 FCR 549 at [24] per Finn and Stone JJ. Nor is a delegate required to advise an applicant about whether or not they should reconsider their application. That is advice properly given by a migration agent or lawyer (regrettably, advice that was not made available, or sought, by the applicants here).
Paragraph 3 fails to disclose any error.
Paragraph 4
English result provide was also consistent with the principles set out earlier in Berenguel 264 ALR 417; (2010) HCA 8 at [24]-[27] and the Tribunal acting on the most up-to-date information.
The first applicant seems to refer to the decision in Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251 at [24]-[26] which provides:
24. 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 cl 885.213 and cll 885.214 and 885.215.
25. 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 two 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”.
26. Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
“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)
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The Court notes the Minister’s submissions in relation to this issue as follows:
44.The case authority of Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 (Berenguel) does not assist the applicants. In that case, the High Court construed a regulation setting out the criteria for the grant of a Subclass 885 visa, particularly the English language competency requirement. The High Court stated at [17]:
Division 885.2 sets out primary criteria. Under the heading “885.21 Criteria to be satisfied at time of application” there appears the following:
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.
45.The High Court continued at [17]:
By way of relevant contrast, cll 885.214 and 885.215 require the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant has made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.
46.Clause 485.212 is not relevantly different from the 2 provisions that were contrasted by the High Court at [17]. In other words, the applicants’ application in this case was required under clause 485.212 to be accompanied by certain evidence to satisfy the English language ability requirement, in direct contrast to the former clause 885.21 considered in Berenguel that merely required the applicant to have competent English: see also Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [20]; Kaur v Minister for Immigration and Border Protection [2018] FCA 1765 at [14]-[17].
47.The Full Court authority of Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [32] makes it clear that Berenguel does not set forth any principle to the effect that considerations of fairness or absurdity are to govern the assessment of whether or not a temporal requirement exists between the making of an application and the provision of evidence required under the relevant clause.
48.An application for special leave to appeal from the Full Court’s judgment and orders in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 was refused by the High Court on the basis that there was no reason to doubt the correctness of the decision: see Khan v Minister for Immigration and Border Protection & Anor [2018] HCASL 278.
Here, the application was required to be “accompanied by” evidence that the applicant had met the English language requirements in the three years prior to the application (as per the specification in IMMI 15/062 English Language Tests, Scores and Passports 2015 – the relevant Instrument at the time). That evidence was not provided. Indeed, it did not exist. Without it, the Tribunal had no discretion to extend the time period set out in the statute. This is so regardless of any personal difficulties experienced by an applicant.
Further, to the extent the applicants are suggesting that the Tribunal should act on the most up-to-date information, this too overlooks the statutory requirement that the information be provided at the “time of application”. Hence, the information and evidence was confined to the “time of application”. Here, the evidence showed that, at the time of application, no test had been undertaken.
Paragraph 4 fails to identify jurisdictional error.
Paragraph 5
In my case, AAT did not provide me fair chance while hearing to explain my situation and circumstances, more it look like AAT member was prepared to Affirm the decision without even listening or considering my side of argument. Hiring was resumed on 10:30am and finished 10:37am. AAT respected member gave me merely 7 minutes to present my circumstances. under s.359 of the Migration Act 1958 (Cth) AAT did not provide me fair chance at hearing to explain my situation and circumstances
The applicants were invited to a hearing before the Tribunal. A substantial portion of the Tribunal’s invitation letter indicated that the applicants were required to provide evidence to the Tribunal as to how they met the English language proficiency standard (CB 51). This was, ultimately, the dispositive issue in this review.
The Tribunal hearing was seven minutes long (CB 60-64). It is understandable that to an unrepresented applicant this would seem oddly brief. Given the facts specific to this case, however, it cannot be said that the hearing was unreasonably short.
There is no minimum statutory time limit for hearings before the Tribunal and brevity alone is not indicative of a denial of procedural fairness.
What is required is that the Tribunal provide the applicant with a real and meaningful opportunity to provide evidence and present arguments: Act, s.360. That includes providing the applicants with a hearing in which they understand the process and can participate and engage in that process: Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575.
There is no written transcript of the Tribunal hearing before this Court. However, from what can be gleaned from the Tribunal decision, the Court is satisfied that the first applicant (noting that the second applicant did not attend) comprehended, participated and engaged in the Tribunal hearing.
The hearing has to be seen within the context of the relevant statutory requirements. Here, the Court notes [11]-[13] in the Tribunal’s decision. In these paragraphs the Tribunal indicates that it explained the relevant visa requirements to the first applicant, that the first applicant indicated that she now understood the language proficiency requirements but that she reiterated her difficult personal circumstances. The Tribunal then again explained what the requirements were and noted that it did not have any discretion to waive them or assist the applicants once it was clear that a language test had not been undertaken prior to the visa application being lodged.
On the face of the Tribunal’s decision, the Court is satisfied that the applicants were given a fair opportunity to attend and participate. There is there is nothing to suggest here that the requirements of Part 5 Division 5 of the Act were not complied with.
Paragraph 5 of the submissions fails to identify any jurisdictional error.
Conclusion
The Tribunal had no discretion to waive the statutory requirements relevant to this matter. The applicants simply did not satisfy the mandatory statutory criteria and the only option open to the Tribunal was to affirm the delegate’s decision to refuse to grant the applicants graduate visas.
There is no jurisdictional error identified by the applicants in their grounds of review or otherwise apparent in the Tribunal’s decision.
The application for judicial review dated 14 July 2018 is, accordingly, dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 June 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Statutory Construction
6
20
3