Patil v Minister for Immigration

[2016] FCCA 1169

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATIL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1169

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal decision – no matter of principle.

Legislation:

Migration Act 1958 (Cth), ss.92, 94, 96, 474

Migration Regulations 1994 (Cth), regs.1.03, 1.15C, 1.15D, 1.15EA, 2.26AA, 2.26AB, cl.885.221 of sch.2, pt.6B.3 of sch.6B, pt.6C.2 of sch.6C

Migration Amendment Regulation 2012 (No. 2)(Cth), items 12, 13 and 124 of sch.1, items 7, 26, 27 and 29 of sch.2
Instrument number IMMI 12/017, “Pass Marks and Pool Marks in relation to Applications for General Skilled Migration Visas (Classes VE, VC, VF, VB, SI, SN and SP”, legislative instrument F2012L01317
Instrument number IMMI 12/018 “Language Tests, Score and Passports”, legislative instrument F2012L01287

Instrument number IMMI 12/068 “Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas”, legislative instrument F2012L01314

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508

Applicant: ROHAN ARAVIND PATIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1883 of 2014

Judgment of: Judge Cameron

Hearing date: 12 May 2016

Date of Last Submission: 12 May 2016

Delivered at: Sydney

Delivered on: 23 May 2016

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms H. Musgrove of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1883 of 2014

ROHAN ARAVIND PATIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of India, applied for a Skilled (Residence) (Class VB) subclass 885 visa on 10 May 2012. His application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy cl.885.221 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of a subclass 885 visa were set out in pt.885 of sch.2 to the Regulations. Part 885 and other provisions in the Regulations which dealt with subclass 885 visas, including regs.2.26AA and 2.26AB and schs.6B and 6C to the Regulations referred to below, were repealed on 1 July 2013. However, those provisions continued to apply to visa applications made before 1 July 2013: items 7, 26, 27 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No. 2). 

2. One of the pt.885 criteria which the applicant had to satisfy was cl.885.221 which provided:

   885.22      Criteria to be satisfied at time of decision

   885.221The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.

   Subdivision B of div.3 of pt.2 of the Act consists of ss.92 to 96 and provides a points system under which applicants for relevant visas are given a score based on points which are prescribed for particular attributes and qualifications.

3. By virtue of reg.2.26AA of the Regulations, sch.6B to the Regulations prescribed for subclass 885 visas twelve different attributes and qualifications including nominated occupation, age, education, employment and English language skills, as well as the points applicable to those attributes and qualifications. Relevant for this proceeding was the English language skills qualification which was found in pt.6B.3 of sch.6B and relevantly provided:

   Part 6B.3  English language qualifications

Column 1 Item	Column 2 Qualification	Column 3 Number of points
6B31	The applicant has proficient English	25
6B32	The applicant has competent English	15

1. Regulation 2.26AB(2)(a) provided that a person who applied for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013, was in a specified class of persons and had an assessed score under sch.6B less than the applicable pass mark at the time of assessment, could also be assessed against the thirteen prescribed attributes and qualifications in sch.6C to the Regulations. A person to whom reg.2.26AB(2)(a) applied was specified in IMMI 12/068 (Legislative instrument F2012L01314) as, amongst others, a person who had applied for a subclass 485 visa on or before 8 February 2010 which application had not been finally determined by that date and who, on or after 1 July 2010 but before 1 July 2012, applied for a subclass 885 visa. The delegate found that the applicant’s circumstances engaged IMMI 12/068, noting that on 17 November 2009 he had applied for a subclass 485 visa which was granted on 22 November 2010. As was recorded earlier, he had made his subclass 885 visa application on 10 May 2012.

2. Part 6C.2 of sch.6C prescribed the English language qualification for sch.6C. It provided:

   Part 6C.2  English language qualifications

Column 1 Item	Column 2 The applicant has ...	Column 3 No. of points
6C21	superior English	20
6C22	proficient English	10

1. Section 94(1) provides that an applicant whose score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score. At the time the delegate and Tribunal made their respective decisions the applicable pass marks for schs.6B and 6C were prescribed by the Minister in IMMI 12/017 (Legislative instrument F2012L01317). For a subclass 885 visa the pass mark under reg.2.26AA (and sch.6B) was 120 points and the pass mark under reg.2.26AB (and sch.6C) was 65 points.

2. At the time the applicant lodged his application, the different levels of English language skills referred to in schs.6B and 6C were prescribed as follows:

   1.15C    Competent English

   If a person applies for a General Skilled Migration visa, the person has competent English if the person:

   (a)     satisfies the Minister that:

   (i)the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

   (ii)the test was conducted in the 2 years immediately before the day on which the application was made; and

   (iii)the person achieved a score specified in the instrument ...

   1.15D    Proficient English

   If a person applies for a General Skilled Migration visa, the person has proficient English if the person satisfies the Minister that:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the test was conducted in the 2 years immediately before the day on which the application was made; and

   (c)the person achieved a score specified in the instrument.

   ...

   1.15EA Superior English

   If a person applies for a General Skilled Migration visa, the person has superior English if the person satisfies the Minister that:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the test was conducted in the 2 years immediately before the day on which the application was made; and

   (c)the person achieved a score specified in the instrument.

3. Those regulations were subsequently amended but the versions set out above continued to apply to applications made before 1 July 2012: items 12, 13 and 124 of sch.1 to the Migration Amendment Regulation 2012 (No. 2).

4. At the time the applicant made his application for a visa, reg.1.03 of the Regulations relevantly provided:

   IELTS test means the International English Language Testing System test.

   …

   Occupational English Test means an Occupational English Test conducted by the National Language and Literacy Institute of Australia.

5. The instrument referred to in regs.1.15C, 1.15D and 1.15EA was IMMI 12/018 (Legislative Instrument F2012L01287) which relevantly provided:

   2.SPECIFY for applications lodged before 1 July 2012 tests, test scores and passports as follows:

   A.For the purposes of paragraph 1.15C(a)(i) the following language tests:

   ·   an International English Language Test System (IELTS test); and

   ·   an Occupational English Test (OET).

   B.For the purposes of paragraph 1.15C(a)(iii) the following scores:

   ·   an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   ·   a score of at least ‘B’ in each of the four components of an OET.

   …

   D.For the purposes of paragraph 1.15D(a) the following language tests:

   ·   an IELTS test; and

   ·   an OET.

   E.For the purposes of paragraph 1.15D(c) the following scores:

   ·   an IELTS test score of at least 7 for each of the 4 test components of speaking, reading, writing and listening; or

   ·   a score of at least “B” in each of the four components of an OET.

   ...

   H.For the purposes of paragraph 1.15EA(a) the following tests:

   ·   an IELTS test; and

   ·   an OET.

   I.For the purposes of paragraph 1.15EA(c) the following scores:

   ·   an IELTS score of at least 8 in each of the 4 test components of speaking, reading, writing and listening; or

   ·   a score of at least “A” in each of the four components of an OET.

Background facts

1. The applicant provided in his application form a test reference number for an IELTS test he had undertaken on 13 August 2011 and identified his English language ability as “proficient”.

2. On 20 November 2013 the Minister’s department (“Department”) wrote to the applicant noting that the results for the IELTS test reference number referred to in his application form showed that he had not achieved a test score of at least 7 for each of the 4 test components and asking him to provide additional evidence that he had proficient English.  On 8 January 2014 the applicant provided an IELTS test report form for a test he had undertaken on 30 November 2013 and in which he had achieved scores of 8 for listening, 7 for reading, 7 for writing and 8 for speaking.

3. The delegate refused the applicant’s application for a visa on 4 April 2014. Relevantly, the delegate noted that the applicant had achieved scores of 7.5 for listening, 6 for reading, 6.5 for writing and 7.5 for speaking in the IELTS test he had undertaken on 13 August 2011. Based on those results, the delegate found that the applicant had competent English and awarded him 15 points for his English language qualification under sch.6B. The delegate did not consider the results of the test the applicant had undertaken on 30 November 2013 because it had not been taken in the two years immediately before the day on which his application had been made. After awarding the applicant points for his nominated occupation, age, employment and education qualifications, the delegate awarded the applicant a total of 110 points under sch.6B to the Regulations. It also assessed him under sch.6C and awarded him no points for his English language ability and a total of 55 points. As the applicant had failed to achieve either of the sch.6B and sch.6C pass marks, the delegate found that he did not satisfy the criteria for the grant of a subclass 885 visa.

4. The applicant sought a Tribunal review of the delegate’s decision.  On 2 June 2014 the applicant’s migration agent provided written submissions to the Tribunal in which it was submitted that the allocation of points was a time of decision criterion.  The migration agent submitted that as the applicant had submitted the results of the 30 November 2013 IELTS test before the delegate had assigned him points, those IELTS results should have been taken into account.

The Tribunal’s decision and reasons

1. The Tribunal affirmed the delegate’s decision to refuse the applicant a visa. In assessing the points for the applicant’s English language qualification under sch.6B, the Tribunal noted that the applicant had submitted at its hearing that it should rely on the results of the test he had undertaken on 30 November 2013 and find that he had proficient English. The Tribunal also noted that the applicant’s migration agent had argued that it was required to rely on his best score available at the time it made its decision. The Tribunal noted that it had taken those submissions into consideration but it found that the test conducted on 30 November 2013 did not meet the definition of proficient English in reg.1.15D because it had not been conducted in the two years immediately before the day on which the applicant made his application. It found that the results of the applicant’s test conducted on 13 August 2011 met the definition of competent English in reg.1.15C and so awarded him 15 points for his English language ability. After awarding the applicant points for his nominated occupation, age and education qualifications, the Tribunal awarded the applicant a total of 100 points under sch.6B. It noted that the pass mark under sch.6B was 120 points and as the applicant had only achieved 100 points, he had failed to achieve the qualifying score.

2. The Tribunal went on to assess the applicant against the sch.6C points test. It noted that it had found that the applicant had competent English, not proficient English, and also found that he did not have superior English. It therefore found that he was not entitled to any points for the English language qualification under sch.6C. The Tribunal awarded the applicant a total of 50 points for sch.6C. As the pass mark was 65 points, the Tribunal found that he had failed to achieve the qualifying score.

3. The Tribunal concluded that the applicant had failed to achieve the qualifying score required to pass the points test when assessed against schs.6B and 6C and that he therefore did not meet the cl.885.221 criterion for the grant of a subclass 885 visa.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal misapplied the law

   Particulars

   The Tribunal found that Regulation 1.15D requires the applicant to have a prescribed IELTS score at the time of application for the visa rather than at the time of decision on the visa application for the purpose of Regulations 6B3 and 6C2.

   2.The Tribunal misinterpreted reg 1.15D.

   Particulars

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

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

   Particulars

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

Ground 1

1. The first ground of the application mistakes the law. It is true that cl.885.221 was a time of decision criterion but that does not mean that the level of the applicant’s English language skill at that time would be relevant to the decision on his visa application. Clause 885.221 required the applicant to have a “qualifying score”. A qualifying score was determined by reference to:

   a)subdiv.B of div.3 of pt.2 of the Act, which provided for the points system whose practical operation depended on:

   b)regs.2.26AA and 2.26AB, which operated by reference to:

   c)schs.6B and 6C, which depended, amongst other regulations, on:

   d)regs.1.15C and 1.15D.

2. It can therefore be seen that the applicant could not achieve a qualifying score unless his English language skills met the criteria provided for by regs.1.15C and 1.15D.  Importantly, those regulations required that the only English language test which was to be considered by the delegate, and then by the Tribunal, was one which had been “conducted in the 2 years immediately before the day on which the application was made”.  The Tribunal therefore did not err by not taking into account, when determining whether the applicant satisfied the criteria for the grant of the visa he sought, the IELTS test taken by the applicant after he lodged his visa application. 

Ground 2

1. The terms of reg.1.15D are identical in relevant respects to the provisions considered by Katzmann J in Milanes v Minister for Immigration & Border Protection (2015) 234 FCR 508. Her Honour’s decision makes it quite clear, with respect, that reg.1.15D does provide an exhaustive definition of proficient English for the purposes of the Regulations.

Ground 3

1. Contrary to the allegation made in this ground, the instrument referred to in reg.1.15D, namely IMMI 12/018, was not invalid because it referred to the Occupational English Test, which was not offered at the time the applicant lodged his visa application: Milanes at 523-526 [83] to [105].

2. Finally, the applicant alleged that IMMI 12/018’s reference to “the “four test components” of the IELTS test [was] incapable of proper interpretation since there [were] six distinct components of that test”.  The Court was not taken to evidence which suggested that the IELTS test did have “six distinct components”.  But, in any event, the test components to which IMMI 12/018 relevantly referred were not at large but were explicitly identified as “the 4 test components of speaking, reading, writing and listening”  Consequently, even if there were other test components, they were not relevant to the criterion which had to be satisfied.

Another point

1. It appears that the delegate and the Tribunal erred by considering the applicant’s application by reference to the requirements of sch.6C. In order for an applicant to be considered by reference to that schedule, he or she had to satisfy the following condition found in IMMI 12/068:

   I, CHRIS BOWEN, Minister for Immigration and Citizenship … :

   …

   3. SPECIFY, in relation to a person who [met certain preliminary criteria]:

   the following:

   (v) for the purposes of paragraph 2.26AB(2)(a) of the Regulations, a person or a person in a class of persons is a person who nominates a skilled occupation listed in Part A of Schedule 2 to this instrument; …

2. The occupation nominated by the applicant was listed in pt.B of sch.2 to IMMI 12/068, not pt.A.

3. However, even if I am correct in concluding that the Tribunal erred in this connection, such a finding could not affect the outcome of this review.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 23 May 2016