Rahman v Minister for Home Affairs

[2020] FCCA 881

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 881

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) visa – decision of the Administrative Appeals Tribunal – show cause hearing – where applicant did not take required English language test – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), cl.485.212 of sch.2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: MOHD IMRAN RAHMAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 386 of 2018

Judgment of: Judge Kendall

Hearing date: 17 April 2020

Date of Last Submission: 17 April 2020

Delivered at: Perth

Delivered on: 23 April 2020

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 386 of 2018

MOHD IMRAN RAHMAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 25 June 2018.

2. The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) to deny the applicant a Skilled (Provisional) (Class VC) visa (the “visa”).

3. This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). The matter has been listed for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”). The applicant must satisfy the Court that he has a reasonably arguable case that the Tribunal has fallen into jurisdictional error.

4. The Court had before it the applicant’s judicial review application dated 16 July 2018, a Court Book (“CB”) numbering 59 pages (marked as Exhibit 1) and an outline of written submissions from the Minister dated 26 March 2020.

5. The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.

6. The hearing of this matter on 17 April 2020 proceeded by way of teleconference. In light of the current health advice, the Court determined that this was appropriate. The applicant did not request nor require an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for the parties to participate in the proceedings.

Background

1. The applicant is a citizen of Bangladesh. On 31 January 2018, he applied for the visa (CB 1-15). In the visa application, the applicant indicated that he had not taken an English language test in the previous 36 months.

2. On 23 February 2018, a delegate of the Minister refused to grant the applicant the visa. The delegate found that the applicant did not meet cl.485.212(a)(i) of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had not provided evidence of having completed an acceptable English language test within the 36 months immediately before 31 January 2018 (being the day on which his application was made).

3. The applicant sought review of the delegate’s decision at the Tribunal on 9 March 2020 (CB 24-25). The applicant was represented by a migration agent. Included with his application to the Tribunal was an International English Language Testing System (IELTS) Test Report dated 23 February 2018 (CB 26).

4. The applicant attended a hearing before the Tribunal on 20 June 2018 (CB 36-39). At the hearing, the applicant provided a number of documents. These included a confirmation of payment for the IELTS, a letter of completion from the applicant’s university, an ophthalmic report dated 21 July 2014 and an IELTS Test Report dated 22 February 2014 (CB 41-49).

5. On 25 June 2018, the Tribunal affirmed the decision not to grant the applicant the visa (CB 53-55).

Tribunal’s Decision

1. The Tribunal’s decision is 3 pages long and spans 17 paragraphs.

2. At [1]-[5], the Tribunal outlined the procedural background to the matter.

3. At [6]-[7], the Tribunal notes that the issue that it need to address was:

   6.… 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 Bangladesh. 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).

4. The Tribunal continued:

   9.The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that in his visa application the applicant indicated that he had not undertaken an English language test within the last 36 months. The delegate’s decision also records that in support of his English language ability, the applicant stated that his main language was English. As there was no evidence before the delegate that the applicant had undertaken a specified test in the three-year period ending immediately prior to the day on which he lodged his visa application, the delegate found that he did not meet cl.485.212.

5. The Tribunal then noted that the applicant had provided the Tribunal an IELTS Test Report but that the evidence showed that that test was taken after the visa application had been lodged (at [10]).

6. The Tribunal then explained the requirements of cl.485.212 and recorded as follows:

   12. The applicant provided to the Tribunal evidence relating to his qualifications achieved in Australia, including a Masters in Cyber Security. He also provided evidence relating to a vision impairment he suffers – congenital coloboma - which means that it takes time for him to process the images his eyes see. He told the Tribunal that he did not intentionally not meet the English language requirement. He said he was concerned with making application for the visa before the student visa he held at the time expired, but finalising his research paper in the lead up to completing his studies in December 2017 was his main priority and took up the majority of his time. He said that it was not until he started to complete his online application, that he realised an IELTS test he had previously taken and intended relying on as evidence of his English competency did not fall within the specified period. However, he said he did not have time to organise another English test before he needed to lodge his visa application.

7. The Tribunal noted that it had no discretion to waive cl.485.212 (at [13]). It then found as follows:

   14. On the evidence before it, the Tribunal accepts that the applicant has undertaken a language test specified in an instrument - an IELTS test - and achieved the score specified. 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.

8. Accordingly, the Tribunal found that the applicant did not meet cl.485.212 of the Regulations and refused to grant the visa (at [15]-[17]).

Proceedings in this Court

1. The application for judicial review contains 11 “grounds” of review as follows:

   1. On or about 31 January 2018, Mohd Imran Rahman made an application for a Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa.

   2. The 485 visa requires that if the applicant does not have a passport from certain English speaking countries, then an English test result achieved within a certain period must accompany the 485 application.

   3. The 485 visa application was not accompanied by evidence that the applicant has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph and has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements specified by the Minister in the instrument.

   4. On or about 23 February 2018, my 485 visa application was refused.

   5. I think it is pertinent to explain that I suffer from low vision and believed that I had the relevant English test result on hand.

   6. On or about 20 June 2018, I went to the Administrative Appeals Tribunal merits review. I tried to explain my situation.

   7. On or about 25 June 2018, I received notification form the AAT that they have affirmed decision of the Department and my 485 visa had been refused.

   8. I believe that relevant information was not taken into consideration at both the time of decision to refuse the visa by the Department and the decision to refuse the visa by the AAT.

   9. I will be relying on evidence that I will produce myself once I can get my documents from the Department.

   10. I would like the opportunity to be heard with an open mind before any conclusions are reached.

   11. I am now seeking relief in the Federal Circuit Court.

2. The applicant was provided an opportunity to file any amended application, affidavit evidence and an outline of written submissions. Notwithstanding what is said in “ground 9” above, no “evidence” or other materials were filed in this Court.

3. Before this Court, the applicant appeared without legal representation. The Court explained to him that the purpose of the hearing was to determine whether there was any arguable case of jurisdictional error.

4. The Court accepts that r.44.13 of the Rules provides that, at a show cause hearing, the applicant is confined to the grounds and relief sought in the judicial review application. However, the Court is also mindful that an unrepresented applicant will usually be given an opportunity to explain orally any concerns that they have with the Tribunal’s decision and that the Court should remain astute and alert to any error in the Tribunal’s decision: Bala v Minister for Immigration & Border Protection [2019] FCA 600; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.

5. Noting that the applicant was legally unrepresented, the Court gave him an opportunity to explain what he believes the Tribunal “did wrong”. The Court also considered the Tribunal’s decision in detail.

6. To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, they most commonly include (but are not limited to) 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 & Anor (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]; 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) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

7. It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

8. Against this background, the applicant submitted that, at the time of the application, he “made a human error”. The applicant stated that the Tribunal did not consider his case properly or take into account his medical condition. The Court will consider these submissions below.

Legislative Framework

1. Clause 485.212 provides as follows:

   The application is accompanied by evidence that:

   (a) the applicant:

   (i)     has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii)    has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

2. The relevant legislative instrument is IMMI 15/062. Relevantly, IMMI 15/062 specifies that the IELTS is a specified test. The Court can also confirm that the applicant’s IELTS test scores (on 22 February 2014 and 23 February 2018) met the required standard specified in the Instrument.

3. Critical in this case is the following clause in the Instrument:

   … English language tests must have been undertaken within the three years before the day on which the application was made…

4. The specified passports for cl.485.212(b) were passports issued from the USA, United Kingdom, Canada, New Zealand, or the Republic of Ireland.

Consideration

1. As noted, this is a show cause hearing. Hence, the Court need only be satisfied that there is a reasonably arguable case that the Tribunal fell into error.

2. In relation to grounds 1-7, these are not grounds of review. They are factual matters that are not in dispute. The Court accepts that the applicant has poor vision and that he thought he had the relevant IELTS results on hand. Unfortunately, this issue is not relevant to any determination of whether there was jurisdictional error here.

3. Grounds 9-11 are also not grounds of review. The applicant has not provided any further evidence. The Court gave the applicant an opportunity to be heard and has considered all submissions accordingly. It has not approached this matter with a closed mind. Ground 11 is only applicable if the Court is satisfied that relief should be awarded.

4. The sole ground of review that addresses jurisdictional error is ground 8, which provides as follows:

   I believe that relevant information was not taken into consideration at both the time of decision to refuse the visa by the Department and the decision to refuse the visa by the AAT.

5. Insofar as the applicant refers to the “Department”, the Court has no jurisdiction in relation to the delegate’s decision (i.e., the Department’s decision): s.476(2) and (4) of the Act.

6. As for whether the Tribunal did not take into account relevant information, it is clear that the Tribunal did consider the correct provision of the relevant Regulations. It identified these (at [6]-[7]).

7. It is also apparent that the Tribunal considered the evidence (or “information”) that the applicant provided to the Tribunal (at [12]). This included the evidence the applicant provided at the hearing (in the form of documents and orally) that explained why he did not meet the English language requirement. The Tribunal referred to all of the information before it in detail.  It cannot be said here that anything was overlooked. 

8. It appears the applicant may be suggesting that the Tribunal did not consider/assess his explanation as to why he did not have the IELTS scores at the time of the application. Before this Court, the applicant stated that the Tribunal did not “consider his medical condition”. The Court disagrees. The Tribunal acknowledged the applicant’s medical history at [12].

9. The applicant also explained to the Court that one of the reasons he did not sit the relevant tests on time was because no tests were available when he needed to take them.

10. Unfortunately, the reasons provided as to why the applicant was unable to provide the test by a certain date (even if outside of his control) are not relevant to the Tribunal’s task. As correctly observed by the Minister, the Tribunal had no discretion to waive cl.485.212 of the Regulations, however unfair that might seem on the facts of this case.

11. Ground 8 identifies no arguable case in relation to jurisdictional error.

12. While the Court is sympathetic to the applicant’s personal situation, the Tribunal’s decision is without error. In the circumstances of this case, the only decision open to the Tribunal was to refuse the visa.

Conclusion

1. The applicant’s judicial review application and oral submissions do not disclose any arguable case in relation to whether the Tribunal fell into jurisdictional error.

2. The application is, accordingly, dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  23 April 2020