Parmar v Minister for Immigration
[2010] FMCA 818
•21 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARMAR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 818 |
| MIGRATION – MRT decision – skilled graduate temporary visa – English language requirements – applicant unable to achieve sufficient IELTS results at any time – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth), Migration Amendment Regulations 2008 (No.7) (SLI 2008 no.205), Sch.5 item 2 Migration Regulations 1994 (Cth), sch.2 subclass 485, cll.485.215, 485.222 |
| Ghori v Minister for Immigration & Citizenship [2010] FMCA 770 Habib v Minister for Immigration [2010] FMCA 450 |
| Applicant: | DUSHYANT MANILAL PARMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1426 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 21 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr G Kennett SC |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1426 of 2010
| DUSHYANT MANILAL PARMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is another case where a visa applicant for a skilled residence visa has been unable to achieve the required level of English language competence, notwithstanding many years of study in Australia and repeated efforts to obtain the prescribed IELTS test results.
Mr Parmar studied in Australia from between 2005 and 2007, achieving a “Master of Information System with Honours” from the University of New England at its MIT Sydney campus. He then applied on 6 March 2008 for a ‘Skilled Graduate (Temporary)(Class VC, subclass 485)’ visa, presumably intending then to qualify for a permanent visa under subclass 885.
The Migration Regulations concerning English competency which applied to his visa application are the same provisions which I set out and examined in Habib v Minister for Immigration [2010] FMCA 450. In particular, the criteria which I set out in paragraphs [7] and [8] of Habib, were applicable:
1.15B Vocational English
……….
(5)If a person applies for a General Skilled Migration visa, the 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 subparagraph; and
(ii) in a language test specified by the Minister in the instrument.
1.15C Competent English
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; 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.
485.21 Criteria to be satisfied at time of application
…
485.215Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, 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.
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 Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
As I noted in Habib, cll.485.215(c) and 485.222 were repealed with effect from 27 October 2008 by the Migration Amendment Regulations 2008 (No.7) (SLI 2008 no.205), Sch.5 item [2], but the repeal did not affect Mr Parmar's visa application at first instance or on review, since it had been lodged prior to that date.
Mr Parmar nominated his skilled occupation for the purposes of the visa application as ‘Computing Professional (not e/where class)’, and it appears to have been conceded by Mr Parmar, who was assisted by a registered migration agent, that he needed to achieve “competent English” for the purposes of clause 485.215(b), or to achieve that level of English for the purposes of 485.222(b).
No evidence of an appointment to sit an IELTS test made before lodging the visa application was ever conveyed to the Department, before the delegate decided the application. Mr Parmar’s agent provided evidence of an appointment to sit a test on 9 May 2009, but that appointment was made long after the lodgement of the visa application. It is difficult, therefore, to see how the visa application could have been regarded as having been ‘accompanied by evidence’ of an appointment for a test.
However, there was evidence given to the Tribunal on review that, in fact, Mr Parmar had made a booking on 18 February 2008, prior to making his visa application, to sit an IELTS test which had been held on 19 April 2008. As I shall explain, the Tribunal accepted that this evidence was sufficient to establish satisfaction of cl.485.215(c) and 485.222. No challenge to that opinion of the Tribunal is now made by the Minister or Mr Parmar. It reflects a beneficial interpretation of cl.485.215(c) which has been discussed by other Federal Magistrates (see the review of authorities by Barnes FM in Ghori v Minister for Immigration & Citizenship [2010] FMCA 770), and may be addressed by the Full Court in the Minister’s pending appeal from Habib.
The delegate's decision to refuse the visa, which was made on 13 January 2009, did not address cl.485.215(c) in any manner, apparently because its possible relevance was overlooked by the delegate. She appears to have misapprehended that the repealing regulation applied to this visa application. That mistake was not, however, repeated by the Tribunal.
The delegate's decision addressed only cl.485.215(b), and explained an opinion that this criterion was not met:
At the time of application, you are required to provide evidence that you have undergone an English Language Exam and have been given a result of Competent which is the minimum requirement for your nominated occupation. No evidence has been received.
This reasoning adopts an interpretation of cl.485.215(b) that competent English had to have been established by successful results achieved before visa application. On my opinions in Habib, that opinion reflected error of law, because the paragraph allowed the recognition of competent English achieved at any time prior to decision. The Tribunal also made that error. However, errors as to the effect of cl.485.215(b) made no difference in Mr Parmar's case, since at no time has he been able to achieve the requisite scores of 6 in each of the four components of the IELTS test required to establish competent English as defined.
On appeal from the delegate's decision, Mr Parmar presented a large number of results from sitting the IELTS tests, without ever achieving the necessary results. At the time of a hearing held by the Tribunal on 17 November 2009, he and his agent informed the Tribunal that he “had sat more than 10 or 12 tests. He has three more bookings in December 2009, January and February 2010. He is awaiting the results”.
In its statement of reasons, the Tribunal said:
18. I put to the applicant that there was an issue of the pass mark. The adviser indicated that the applicant needed more time to re-sit the test. The Tribunal granted additional time for the applicant to sit a further IELTS test.
19. After the Tribunal hearing the Tribunal received a letter from Macquarie University dated 26 November 2009 confirming that the applicant had made a booking on 18 February 2008 for an IELTS test to be held on 19 April 2008.
20. A letter from the applicant’s adviser was received on 27 November 2009 enclosing his IELTS test result dated 11 November 2009 indicating the applicant achieved the scores of listening 6, reading 5, writing 5, speaking 7 and an overall score of 6.
There is no evidence that any further applications for adjournment beyond the foreshadowed tests was ever sought from the Tribunal by Mr Parmar or his agent.
After the hearing, the agent provided some lengthy submissions on the effect of the word "accompanied" in clause 485.215(c), encouraging the broadest interpretation of that requirement.
The Tribunal delayed making its decision until long after the foreshadowed future test appointments. It made its decision on 12 June 2010. By that time Mr Parmar had not provided any evidence of successfully achieving a score of at least 6 in each test component.
The Tribunal's conclusion that it should affirm the decision was made by reference to clause 485.222(b):
30. The definition of competent English in r.1.15C requires that an applicant achieve a score of at least 6 in each test component of an IELTS test conducted not more than 2 years before the day on which the application was lodged. In brief the applicant conceded at the Tribunal hearing that he had not passed the IELTS test, as required, and he would shortly sit for another test. He sought additional time to sit for the test. This was granted. To date the applicant has not provided an IELTS test result indicating that he achieved a score of at least 6 in each test component of an IELTS test. The applicant does not meet paragraph 485.222(b) an essential criteria for the grant of the visa.
Before addressing that criterion, the Tribunal addressed cl.485.215(b), and appears to adopt the construction which I held in Habib to be erroneous: that it required proof of competent English having been achieved prior to visa application. However, that error made no material difference to the outcome of the case for two reasons.
First, because Mr Parmar never achieved such a result before the Tribunal made its decision.
Secondly, because the Tribunal gave effect to the Habib interpretation of cl.485.215(b) when applying clause 485.222(b) on a construction which allowed the Tribunal to take into account any sufficient test result achieved prior to decision.
When deciding that this pathway was available to Mr Parmar, the Tribunal effectively adopted the generous interpretation of cl.485.215(c) submitted by Mr Parmar's agent, that it was sufficiently met by evidence of a booking having been made prior to the visa application, whether or not that fact was communicated with the visa application.
In my opinion, therefore, the Tribunal's decision that Mr Parmar had not satisfied the criteria for the grant of this visa was unaffected by an error of law which operated to his detriment.
Mr Parmar's amended application in this Court contains grounds which are numbered as follows:
2.The Applicant submits that the Migration Review made a jurisdictional error when it did not comply with the rules of natural justice and procedural fairness.
3.Particulars: The Tribunal ignored the error made by the delegate of the First Respondent by applying law that was not in force at the relevant time of the application. Thus the applicant’s application was rejected on the basis that he failed to satisfy subclause 485.215 of the Migration Regulations 1994. The applicant was denied procedural fairness when the MRT did not account the cl.485.215(c) factor when making decision. The MRT member blindly followed the delegate’s decision. The applicant submits that the reason behind was that cl.485.215(c) was omitted by Select Legislative Instrument 2008.205. In the delegate’s decision letter the delegate mentioned about the fact cl.485 is been omitted and following decision (A1).
4.The MRT member failed to understand that the delegate did not understand the significance of the date of implementation of Regulation which was relevant to the Applicant.
5.Particulars: The delegate wrote “As you do not meet the legislative requirement for subclass 485.215, I therefore refuse the grant of subclass 485 visa to you”. The applicant claims that the omission of cl.485.215(c) came into effect on 27 October 2008 as Select Legislative Instrument came into effect on 27 October 2008. It may be mentioned that there is no further amendment made in relation to cl.485.215 which gives retrospective or retroactive of relevant subclause.
6.The MRT made a jurisdictional error when it failed to give importance of Legislative framework related to consideration of time frame to submit the Evidence of English Test and other relevant law related with the decision
Particulars: In the decision of the MRT at the column 20 to 22 (page 137 of the Green Book) the MRT member discarded the arguments from the Applicant’s advisor and concluded that it is lengthy. The applicant’s argument about ambiguity in the word “accompany” in Regulation was not considered as relevant to this decision. The applicant claims that he was a truthful witness when he accepted that he tried many time to score required score in the English Test and asked for some further times to attempt to achieve the required English Test points. He was denied procedural fairness when the MRT did not use his/her discretionary power to consider the applicant exceptional situations.
The argument in paragraphs 2, 3, 4, and 5 appears to be based on a misconception. That misconception is that the Tribunal made the same error as the delegate in overlooking “the clause 485.215(c) factor when making decision”. As I have outlined above, it in fact did not overlook that paragraph, but in fact followed that pathway when making its decision. Any error made by the delegate was therefore immaterial, and cannot provide grounds for setting aside the Tribunal's decision.
The argument in paragraph 6 of the grounds is somewhat obscure. The first sentence of the "particulars" suggests that the MRT member “...discarded the arguments from applicant's advisor”. However, as I have explained, those arguments concerned the meaning of "accompanied" in cl.485.215(c), and the Tribunal adopted a construction favouring Mr Parmar which arrived at the outcome submitted by the applicant's advisor. No material error arises from it not providing more discussion of the advisor’s submissions.
The second sentence of the particulars in paragraph 6 might appear to challenge the exercise of the Tribunal of its discretion to postpone making a decision until Mr Parmar had been given time to sit more tests. This was the only ‘discretionary power’ available to the Tribunal to meet Mr Parmar's situation. It is clear that it had no statutory power to dispense with the requirement of successful achievement of competent English prior to decision.
No argument has been presented by Mr Parmar to point to any particular unfairness or flaw in the Tribunal’s exercise of the discretion to postpone decision-making. In effect, the only complaint is that Mr Parmar, in fact, was never able to achieve a successful result prior to the making of the Tribunal's decision notwithstanding a lengthy delay by the Tribunal before it made its decision.
Although from Mr Parmar's perspective that outcome was unfortunate, in my opinion, no flaw in the exercise of the Tribunal's discretion to postpone making a decision can be found. The Tribunal, in fact, gave a postponement much longer than the period which appears to have been sought by Mr Parmar and his agent at the hearing. I can see no consideration which it failed to address when deciding in June 2010 to bring finality to the matter, by making a decision on the evidence then before it.
As I pointed out on my opinions in Habib, at [23] and [24], although the Tribunal may have been under a legal obligation to postpone decision-making until after the date of a test which had been appointed before the visa application, it was not under any obligation to postpone decision-making for a greater period.
Taking into account the arguments in the amended application, and noting Mr Parmar's concern conveyed to me today that he had still not been able to achieve successful results at the Competent English standard, I am unable to see any jurisdictional error materially affecting this Tribunal's decision.
I must therefore dismiss the application to the Court.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 1 November 2010
2
3