Paulson v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 870
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paulson v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 870
File number(s): SYG 3353 of 2019 Judgment of: JUDGE SKAROS Date of judgment: 11 September 2024 Catchwords: MIGRATION – Judicial Review – Where applicant did not provide an English language test 36 months prior to application – Tribunal had no power to decide otherwise – application dismissed Legislation: Migration Act 1958 ss 359, 361, 476, 368D, 379A Cases cited: Kumar v Minister for Immigration and Border Protection [2018] FCA 140
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279
Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 4 September 2024 Place Parramatta Applicant: Appeared in person Solicitor for the First Respondent: Mr Dennis (Mills Oakley) Second Respondent Submitting appearance, save as to costs. ORDERS
SYG 3353 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIBIN PAULSON
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.
2.The application filed 19 December 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed 19 December 2019, the applicant seeks judicial review under s 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 November 2019. The Tribunal affirmed the decision of a delegate of the Minister (the delegate) to refuse the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa (the Subclass 485 visa).
BACKGROUND
The applicant is a 30-year-old male citizen of India. He applied for the Subclass 485 visa on 14 March 2019 after having completed his Master of Professional Accounting qualification from the University of Wollongong.
In his visa application form, in response to questions about his English language ability, the applicant indicated that he did not hold a passport from one of the countries specified and that he had not undertaken an English test within the last 36 months. The applicant later provided the results of a Pearson Test of English Academic (PTE Academic) indicating that he had undertaken that test on 22 March 2019, a week after the visa application was made.
On 17 May 2019 the delegate refused to grant the applicant the Subclass 485 visa on the basis that the applicant did not satisfy the requirements of cl 485.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
On 31 May 2019 the applicant applied to the Tribunal for a merits review of the delegate’s decision, a copy of which was attached to his application to this Court.
On 22 October 2019 the applicant was invited by the Tribunal to attend a hearing on 26 November 2019. The applicant appeared before the Tribunal at the scheduled hearing and the Tribunal made an oral decision affirming the delegate’s decision to refuse to grant the applicant the Subclass 485 visa.
On 27 November 2019, the Tribunal sent the applicant a letter confirming that the Tribunal had made an oral decision at the hearing.
By email, on 2 December 2019, the applicant requested a written statement of the reasons.
On 11 December 2019 the Tribunal provided the Applicant a written statement of decision and reasons dated 9 December 2019.
THE TRIBUNAL’S DECISION
In the statement of decision and reasons, the Tribunal noted that the applicant had made his application on 14 March 2019, that he sat the first English test in November 2015 and then the PTE on 22 March 2019. The Tribunal observed that the first English test was undertaken more than 36 months before the visa application was made and that the PTE test was undertaken after the visa application. The Tribunal also observed that the applicant did not hold a passport from one of the countries specified in the relevant instrument. Having found that neither of the English language tests were undertaken by the applicant in the 36 months before the visa application was made, the Tribunal concluded that it must affirm the decision under review.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contains two ground of review which have been considered further below.
The applicant also filed an affidavit, sworn by him on 18 December 2019, which annexed a copy of the Tribunal’s decision record.
On 7 January 2020 the Minister filed a Response pleading that the application fails to raise an arguable case for the relief claimed, that the application fails to establish any jurisdictional error and for costs.
The matter was listed for a first court date before a Registrar of the Court on 30 January 2020. Orders were made which relevantly provided for the Minister to file a court book by 5 March 2020 and for the applicant to file an amended application giving complete particulars and other evidence he wished to rely upon by 9 April 2020. The Minister filed the court book on 3 March 2020.
A call over was held before a Registrar of the Court on 12 March 2024 at which the applicant and the Minister’s representative appeared by telephone. Orders were made which provided for the applicant to file written submissions, any amended application with proper particulars of the grounds and any additional evidence by 28 March 2024. The orders also provided for the Minster to file written submissions and any additional evidence by 11 April 2024 and to file, at least 7 days prior to the hearing, an affidavit of service of the court book, written submissions and any additional evidence filed.
On 8 April 2024 the Minister filed a second court book and a written outline of submissions.
No amended application or additional evidence was filed by the applicant.
The matter was heard on 4 September 2024 at the Parramatta Registry of the Court. The applicant appeared in person. Mr Liam Dennis, Solicitor, appeared on behalf of the Minister.
The Minister sought to rely on the second court book, which Mr Dennis explained contained additional documents. Accordingly, the court book, filed on 8 April 2024, was tendered at the hearing and marked Exhibit CB.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
As no amended application or written submissions has been filed by the applicant, he was invited to make oral submissions in support of the grounds of review set out in his originating application. The Minister also made oral submissions at the hearing which largely reflected those in the written submissions filed on 8 April 2024.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2.
In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2].
Grounds of Review
The application for judicial review sets out the following grounds, which are reproduced without alteration:
1.The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to consider relevant considerations.
Particulars
a. The Applicant matter was remitted to the Second Respondent and the Tribunal provided its oral decision and reasons on 26 November 2019.
b. The Tribunal did not provide a written record of the decision until requested by the Applicant on 2 December 2019 after which the decision record was sent to him on 11 December 2019.
c. The Tribunal failed to consider the reasons due to which the Applicant's PTE exam was undertaken after the visa application date. The decision was made based on the evidence held by the tribunal and the applicant was not provided a chance of presenting his reasons for undertaking the PTE exam after the visa application date.
d. The tribunal in many paragraphs failed to consider that the circumstances due to which the PTE exam was undertaken after the application date and made a narrow decision.
2. The Second Respondent made jurisdictional error under s361 (3) of the Migration Act 1958 in that it failed to provide the Applicant a chance to present his reasons and failed to have regard to the reasons his PTE exam was undertaken after the visa application date.
By ground one, the applicant asserts that there was a failure by the Tribunal to afford him procedural fairness under s 359 of the Act and a failure to have regard to a relevant consideration. The particulars set out in paragraphs 1(a) – 1(d) bear no relevance to ground one and the Court has considered each of those particulars as separate grounds.
When invited at the hearing to explain how ground one, including each of the particulars, demonstrate that the Tribunal had fallen into error, the applicant said when he applied for the Subclass 485 visa, he had not realised that his IELTS test, which he undertook more than three years prior, had expired. He said he had to submit the Subclass 485 visa application on 14 March 2019 as his student visa was expiring the following day, on 15 March 2019. Upon realising that he could not rely on his IELTS score, he booked the next available English test, which was the PTE Academic. He said he undertook the PTE Academic on 22 March 2019, achieved the required score and uploaded the results to the application. The applicant said he uploaded the results of the PTE Academic before the Department made a decision on his Subclass 485 visa application.
The applicant further submitted that the error stemmed from the failure to consider his PTE Academic score as well as the failure to consider the reasons for why he could not sit the test and that he tried his best to sit the test on the next available date.
In considering ground one, the Court observes that s 359 of the Act relates to the power of the Tribunal to obtain any information it considers relevant and, if it gets such information, to have regard to it when making the decision on the review. Having regard to the material before it, the Court accepts the Minister’s submission that the Tribunal did not invite the applicant to provide information in accordance with s 359 of the Act and that the applicant’s reliance on a failure of procedural fairness regarding that provision is misconceived. No jurisdictional error is established by ground one.
The ground in particular (a) refers to the matter being remitted to the second respondent and the Tribunal providing an oral decision and reasons on 26 November 2019. The applicant’s matter has not been remitted to the Tribunal (the second respondent) for reconsideration and this statement appears to be an error regarding the history of the matter. As to the Tribunal providing an oral decision and reasons, the Court has considered the applicant’s complaint regarding this process further below. There is nothing in particular (a) which establishes jurisdictional error.
The ground in particular (b) appears to allege a failure on the part of the Tribunal in not providing the written statement of decision and reasons until after it had been requested by the applicant. The Court accepts the Minister’s submission that, pursuant to s 368D(2) of the Act, the Tribunal was entitled to give an oral decision at the hearing. What is not entirely clear, was whether the Tribunal had also provided an oral statement of reasons at the hearing, as provided for in s 368D(2)(a), or whether it gave an oral decision without oral reasons and later provided its written statement of reasons for the decision, as provided for in s 368D(2)(b). The uncertainty arose because the hearing form (CB 73) indicates that an oral decision had been made, that a written statement of reasons would be prepared after the hearing and that an oral statement was not given at hearing, whereas the decision record at [2] (CB 86) indicates that at the hearing, on 26 November 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons.
The Minister acknowledged the discrepancy in the information and stated that in the absence of a transcript it was difficult to speculate about what took place at the hearing. It was submitted that the Tribunal had nevertheless provided the reasons for the decision to the applicant’s nominated email address within 14 days after the request had been made. It was further submitted that, in any event, pursuant to s 368D(7)(b), the validity of the decision is not affected by procedural irregularities.
It is not in dispute that the Tribunal made an oral decision at the hearing on 26 November 2019 at 10:53 am. Section 368D(1) provides that a decision on a review given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally. The Tribunal has no power to vary or revoke that decision: s 368D(3).
If the Tribunal made an oral statement under s 368D(2)(a) and, within the period prescribed by the Regulations, the applicant makes a written request for the statement to be provided in writing, the Tribunal must reduce the oral statement to writing and, within 14 days after the day the request is received by the Tribunal, give a copy to the applicant by one of the specified methods: s 368D(4). In this case, the applicant made a request by email on 2 December 2019, which was within the prescribed period of 14 days after the day on which the Tribunal made the oral statement: r 4.27B, for a copy of the written statement of reasons. The written statement of reasons, dated 9 December 2019, was sent to the applicant by email, being one of the methods specified in s 379A, on 11 December 2019, which was within 14 days after the day the request was received by the Tribunal.
If the Tribunal did not make an oral statement of the reasons at the hearing, as suggested by the information on the hearing form (CB 73), the Tribunal was nevertheless required under s 368D(2)(b) to make a written statement which sets out the reasons for the oral decision. As to the period by which the written statement of reasons must be made, the Act is silent. Nor does the Act or Regulations prescribe a period by which the Tribunal must provide the written statement, made under s 368D(2)(b), to the applicant. The Tribunal, in this case, produced a written statement of reasons on 9 December 2019, which was within 14 days of the oral decision being given, and a copy of that statement was provided to the applicant two days later, on 11 December 2019, by email. No failure on the part of the Tribunal can be identified in providing the statement of reasons to the applicant when it did. The applicant had ample time to consider his options following the receipt of the Tribunal’s reasons, including filing a judicial review application which he did on 19 December 2019.
Whether the Tribunal made an oral statement of reasons at the hearing under s 368D(2)(a) or later made a written statement of reasons under s 368D(2)(b) is of no moment because, on either scenario, no procedural irregularities can be identified. It is apparent that, on either scenario, the Tribunal complied with its obligations in s 368D of the Act.
The ground in particular (b) fails to establish jurisdictional error.
By the grounds in particulars (c) and (d) the applicant contends that the Tribunal failed to consider the circumstances and reasons for why he had undertaken the PTE Academic (English language test) after the visa application was made. He also alleges that the Tribunal failed to afford him the opportunity to provide those reasons and made a “narrow decision”. The applicant’s oral submissions at the hearing were largely directed to these grounds.
In oral submissions, the Minister agreed that the hearing was relatively short and that the written statement of decision and reasons was brief. It was nevertheless submitted that, given the issue before the Tribunal and the applicant being on notice of the dispositive issue in the review, which was set out in the delegate’s decision record, the Tribunal was able to swiftly discharge its procedural fairness obligations.
The Tribunal’s reasons were brief, however, brevity of reasons does not in and of itself establish error: NAXT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 279 per Jacobson J at [15].
To the extent that the applicant claims he was denied procedural fairness or was not afforded a real and meaningful opportunity to present his case, these claims are not made out. As submitted by the Minister, the applicant was invited to a hearing before the Tribunal, which he attended, and was on notice of the dispositive issue in the review.
The issue that was before the Tribunal was whether the applicant, who was not the holder of one of the specified passports, had undertaken one of the language tests specified in the instrument; and had achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements: cl 485.212(1)(a). The relevant instrument specifying language tests, scores, relevant periods and passports was IMMI 15/062.
Item 1 of IMMI 15/062 specifies that the PTE Academic and IELTS tests are acceptable for the purposes of cl 485.212 (1)(a). Item 3 of IMMI 15/062 specifies that the test must have been undertaken by the applicant within the 3 years before the day on which his visa application was made.
As submitted by the Minister, the visa criterion in cl 485.212 is an inflexible one. The Federal Court of Australia has found that there is “no arguable ambiguity” in the terms of either cl 485.212 or IMMI 15/062: Kumar v Minister for Immigration and Border Protection [2018] FCA 140 (Kumar) at [24] per Robertson J.
The evidence before the Tribunal, which is not in dispute, was that the applicant had not undertaken one of the specified language tests within the 3 years before the day on which the visa application was made. The reasons for why the applicant had undertaken the PTE Academic English language test after the visa application was made were not relevant considerations. As submitted by the Minister, the Tribunal, having found that the applicant could not satisfy the requirements of cl 485.212, had no power to decide otherwise: Thlork v Minister for Immigration and Border Protection [2019] FCA 333 at [12] per Bromwich J and Kumar at [24] per Robertson J.
The grounds in particulars (c) and (d) fail to establish jurisdictional error.
By ground two, the applicant alleges that the Tribunal breached s 361(3) of the Act in that it failed to provide him with a chance to present his reasons and failed to have regard to the reasons his PTE exam was taken after the visa application date.
At the hearing, the applicant could not elaborate on this ground, and particularly its relevance to s 361 of the Act and said that an agent had assisted him with the application. The applicant said his main complaint was that the Tribunal had not considered his circumstances and the reasons for why he had to take the test after the visa application was lodged. As noted above, these matters were not relevant to the Tribunal’s consideration of whether the applicant satisfied the mandatory criterion in cl 485.212 for the grant of the visa.
The Court accepts, as submitted by the Minister, that the matters raised by ground two have no logical nexus with s 361(3) of the Act, which requires the Tribunal to take notice of an applicant’s request to obtain oral evidence from a witness or to obtain written evidence or material from a person named in a notice as provided for in ss 361(2) or (2A). There is also no evidence that a written notice was given pursuant to ss 361(2) or (2A) of the Act.
Ground two, therefore, does not establish jurisdictional error.
CONCLUSION
As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate: I.M
Dated: 11 September 2024
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