Pun v Minister for Immigration

[2018] FCCA 2932

FEDERAL CIRCUIT COURT OF AUSTRALIA

PUN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2932

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of employer nomination visas – English language proficiency – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.65, 375A

Migration Regulations 1994 (Cth)

Cases cited:

AVO15 v Minister for Immigration [2017] FCA 566

BEG15 v Minister for Immigration [2017] FCAFC 198

Gill v Minister for Immigration [2017] FCAFC 51

Minister for Immigration v CQZ15 [2017] FCAFC 194

Minister for Immigration v SZMDS (2010) 240 CLR 611

First Applicant: GAU PRASAD PUN

Second Applicant: GITA PURJA PUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3873 of 2017

Judgment of: Judge Driver

Hearing date: 16 October 2018

Delivered at: Sydney

Delivered on: 16 October 2018

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr J Hutton of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3873 of 2017

GAU PRASAD PUN

First Applicant

GITA PURJA PUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The first applicant, Mr Pun, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 November 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Pun and his wife permanent employer nomination visas. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 9 October 2018. 

Chronology

1. On 7 March 2016, Mr Pun applied for the visa on the basis of his employment as a pastor with the Sydney Nepalese Fellowship Church.[1]  Mr Pun’s wife was included as a dependant on the application.

   [1] Court Book (CB) 9

2. On 20 April 2017, the delegate refused to grant the applicants the visa.  The delegate was not satisfied that Mr Pun met clause 186.311, which relevantly requires that Mr Pun demonstrate that, at the time of his application, he had competent English.[2]  As Mr Pun received a Pearson Test of English Academic (PTE Academic) score of 38 in his speaking test, he did not meet the definition of “competent English”.[3]

   [2] CB 79 to 83

   [3] See regulation 1.15C(1)(c) of the Migration Regulations 1994 (Cth) (Regulations) and IMMI15/005 – Language tests, score and passports 2015

3. On 5 May 2017, the applicants applied to the Tribunal for review.[4]  On 26 October 2017, the applicants were invited to attend a Tribunal hearing, which they attended on 24 November 2017.[5]  The applicants also provided documents in support of their application on 6 November 2007.[6]

   [4] CB 84 to 85

   [5] CB 96 to 99 and CB 138

   [6] CB 107 to 137

Tribunal decision

1. On 24 November 2017, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas.

2. The Tribunal set out the requirements for the grant of the visa, specifically that Mr Pun was required to achieve a specific score in a language test in the three years preceding the visa application.[7]

   [7] CB 146 at [18] to 147 [21]

3. The Tribunal noted that Mr Pun scored 38 in his speaking skills test.  IMMI 15/005 relevantly required Mr Pun to achieve a test score of at least 50 in each component (including speaking skills).  As such, the Tribunal was not satisfied that Mr Pun met the language requirements for the purpose of clause 186.232 of the Regulations.[8]  As a requirement for the grant of the visa was not met, the Tribunal affirmed the delegate’s decision.

   [8] CB 147 at [21]-[24]

The present proceedings

1. These proceedings began with a show cause application filed on 14 December 2017.  Mr Pun continues to rely upon that application. 

2. The grounds in the application are: 

   1.The Tribunal Member misunderstood my role as a Pastor and the fact that I completed my education in Australia and provided academic activities in Australia and have the support of my church via Senior Pastor Limbu and failed to be exempted from the English language requirement.

   2.I also find that the Member of the Tribunal failed to refer my matter to the honourable Minister because of my role as a Pastor and even though I provided substantial evidence to support my claim the Tribunal Member failed to see the relevanc[e] of it and his decision is tough and unreasonable.

3. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the book of relevant documents filed on 22 March 2018 and the affidavit of Jonathon Hutton made on 22 March 2018 and filed on the same day.

4. Mr Pun handed up a document comprising an email exchange between him and his migration agent.  The Minister handed up extracts from the Regulations bearing upon the English language test. 

5. I invited oral submissions from Mr Pun this morning.  He is concerned that he received incorrect advice from his migration agent.  That may well be so, given the extremely technical nature of the English language requirement.  It may well be that Mr Pun was mistaken as to whether he was required to meet the English language requirement, what he had to do to meet it and when he had to do it.

6. It seems logical that a person understanding all of the requirements would not have lodged their visa application at the time Mr Pun did.  That is because, as became clear, he could not meet the English language requirement for the class of visa he was seeking. 

7. Mr Pun strikes me as an honest and sincere person.  He was not making his visa application to in some way game the system.  In these circumstances it would, in my view, be fairer and save a significant amount of taxpayers’ money if applicants were invited by the Minister’s Department to withdraw their visa application once it becomes apparent that the applicant cannot meet the requirements for the class of visa sought.  That, however, is not a legal issue bearing upon the decision of the Tribunal.  By that stage, Mr Pun had obtained the decision of the delegate and was seeking review by the Tribunal of that decision. 

8. In my view, there is no arguable case of error by the Tribunal.  This is discussed in more detail below.  The issues, while technical, are tolerably clear.  Mr Pun simply could not satisfy the English language requirement for the visa he sought.  The Tribunal had no discretion to waive the requirement. 

Section 375A certificate

1. There is a s.375A certificate on the Minister’s Department’s file.[9]  The certificate covers a page of internal Departmental file notes which has been included in the affidavit of Mr Hutton.

   [9] CB 95

2. The reasons for the s.375A certificate are because the document “contain[s] internal process”. This is not a valid certificate because it does not specify a reason why the disclosure of the information about be contrary to the public interest.

3. There is no reference to the existence of the certificate in the Tribunal’s decision.  As such, it must be inferred that the Tribunal did not disclose the existence of the certificate to the applicants.  A failure to disclose the existence of a certificate may, depending on the circumstances, result in a denial of procedural fairness.[10]  The Court is required to consider whether the applicants were denied an opportunity to advance their case before the Tribunal.

   [10] Minister for Immigration v CQZ15 [2017] FCAFC 194 at [68]

4. I heard from the solicitor for the Minister concerning the issue of the certificate.  I accept that the non-disclosure certificate in issue in this case is invalid.  It follows, in my view, that there was no obligation on the Tribunal to disclose the certificate.  Only one document was purportedly covered by the certificate and that document had no conceivable bearing on any issue whatsoever before the Tribunal.  It follows, in my view, that the Tribunal was under no obligation to disclose the document and no issue of procedural fairness arises. 

5. The document covered by the certificate is a single page which notes when certain documents were sent to Mr Pun.  It is completely irrelevant to the issue which was the subject of the Tribunal’s decision.  As such, there was no “practical injustice” to the applicants.[11]

   [11] AVO15 v Minister for Immigration [2017] FCA 566 at [91]

6. Even if there were some breach of procedural fairness arising from the Tribunal’s failure to discuss the certificate and documents with the applicants, the Court would refuse relief in the exercise of its discretion as providing copies of the document covered by the certificate to Mr Pun could not have impacted, or alternatively, would not impact upon, the outcome of the review.[12]  The outcome of the matter was dictated by the fact that Mr Pun had not satisfied one of the required criteria for the grant of the visa, the material covered by the certificate and the failure to disclose the existence of the certificate could have had no effect on the outcome.

   [12] BEG15 v Minister for Immigration [2017] FCAFC 198 at [33]

7. In other respects, I agree with and adopt the Minister’s submissions concerning the grounds of review advanced.

Ground 1

1. By Ground 1, the applicants contend the Tribunal erred as it failed to consider additional evidence provided by Mr Pun, and failed to find he was exempt from the language requirements.  The issue before the Tribunal was whether or not it was satisfied that Mr Pun met the language requirements for the grant of the visa.[13]  The Tribunal considered Mr Pun’s evidence in relation to his test scores, and was not satisfied that he met the requirements.

   [13] Clause 186.232 of the Regulations

2. Once the Tribunal had concluded that Mr Pun did not meet the language requirements, it was bound to affirm the delegate’s decision.[14]

   [14] Section 65 of the Migration Act

3. Further and contrary to the applicants’ assertion, the Tribunal considered whether Mr Pun is a person who is exempt from the language requirements, and was not satisfied that he fell into the classes identified in the legislative instrument.[15]

   [15] IMMI15/083 – Specification of Class of Persons; CB 146 at [18] and [20]

4. No jurisdictional error is disclosed by this ground.

Ground 2

1. By Ground 2, the applicants allege that the Tribunal erred by:

   a)failing to refer the matter to the Minister for consideration of intervention`;

   b)failing to consider the additional evidence of Mr Pun; and

   c)making a decision that was unreasonable.

Ministerial intervention

1. In relation to the first limb, the Tribunal is not required to refer matters for Ministerial intervention.  Further, there is nothing to suggest that Mr Pun ever made a request that the matter be referred. In the absence of a transcript or any further particulars, this limb cannot succeed.

Failure to consider additional evidence

1. Prior to the hearing, Mr Pun provided the Tribunal with a number of documents including a reference letter from the pastors at his church.  In its decision, the Tribunal refers to and considers this information.[16]

   [16] CB 146 at [13]

2. However, as noted above, the issue before the Tribunal was whether Mr Pun met the language requirements.  The information provided to the Tribunal prior to the hearing was irrelevant to the dispositive issue.

3. No error arises from the Tribunal’s failing to consider evidence.

Unreasonableness

1. Mr Pun alleges that the Tribunal’s decision was “tough and unreasonable”.  Mr Pun’s ground is either seeking impermissible merits review or, if understood as an allegation of jurisdictional error, would be characterised as a complaint that the Tribunal’s findings were illogical or irrational.[17]

   [17] See Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ

2. Mr Pun is unable to demonstrate that the Tribunal’s findings were so irrational or illogical that no other decision could have arrived at the same conclusion on the same evidence.[18]  The Tribunal engaged in a process of reasoning and made findings on the material before it.[19]

   [18] SZMDS at [130]

   [19] Gill v Minister for Immigration [2017] FCAFC 51 at [61]

3. Accordingly, this final limb of Ground 2 cannot succeed.

Conclusion

1. I conclude that Mr Pun is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The scale amount, when the show cause application was filed, was $3,667.  Mr Pun did not wish to be heard on costs.

3. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 18 October 2018