RAHMAN v Minister for Immigration
[2015] FCCA 2461
•8 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAHMAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2461 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Skilled (Residence) (Class VB, Subclass 885) Visa – requirement of “competent English” under Migration Regulations 1994 (Cth) – applicant had previously failed more than 20 IELTS exams – whether the Tribunal erred in applying reg.1.15C – whether definition of “competent English” in the Migration Regulations 1994 (Cth) was exhaustive – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.504(1), 505, 476 Migration Regulations 1994 (Cth), rr.1.15C |
| Berenguel v The Minister for Immigration and Citizenship [2010] HCA 8 Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 Milanes v Minister for Immigration & Anor [2015] FCCA 205 Nawaz v The Minister of Immigration& Anor [2015] FCCA 1245 Sidhu v The Minister for Immigration and Border Protection [2014] FCA 935 Singh v Minister of Immigration and Border Protection [2014] FCA 185 |
| Applicant: | KHALILUR RAHMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1482 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 8 September 2015 |
| Date of Last Submission: | 8 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms N Blake Clayton Utz |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1482 of 2014
| KHALILUR RAHMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 5 May 2014, affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) Visa.
In the application filed in support of the visa, the applicant was asked a question whether he had undertaken an English test within the last 12 months to which the answer was ‘Yes’. The applicant identified the test as being IELTS test. The applicant identified a date of the test being 18 February 2012 and the applicant identified on the application form a test reference number by reference to a receipt enclosed and, in answer to the question, “What is your language ability?” the applicant replied, “Competent” on the application.
The applicant is a national of Bangladesh and put into evidence before the Tribunal his Bangladesh passport. The delegate, by a decision made on 30 December 2013, refused the application and relevantly said (CB98-99):
Under migration law a visa cannot be granted unless you, the applicant, meet the legal requirements that are specified in the Act and Regulations. After careful consideration of all the information you have provided, I am not satisfied that you meet the criteria for the grant of a Skilled (Residence) (class VB) subclass 885 (Skilled – Independent) visa as set out in Australian migration law.
The delegate identified that cl.885.213 of Schedule 2 of the Regulations is one of the mandatory requirements for the grant of the visa and it states (CB99):
The applicant has competent English.
Regulation 1.15C, at the time of the application, provides as follows:
1.15C Competent English
If a person applied for a General Skilled Migration visa, the person has competent English is 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 persona achieved a score specified in the instrument; or
(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The delegate noted that, in the application for the visa dated 19 February 2012, there was a reference to the applicant having achieved competent English and a test conducted on 18 February 2012, but no evidence to support that claim had been provided. The delegate wrote to the applicant by email on 28 November 2013 requesting provision of the evidence of competent English and no response was received by the delegate.
The delegate then said:
As you have not provided evidence of competent English, I am not satisfied you meet clause 885.213; therefore, I am not satisfied you meet the criteria for the grant of this visa.
The applicant lodged an application for review to the Migration Review Tribunal. On 5 March 2014, the Tribunal sent the applicant an invitation to appear before the Tribunal on 4 April 2014. The applicant did appear before the Tribunal on that date and, relevantly, prior to the hearing date, the solicitors for the applicant sent a letter dated 20 March 2014, identifying arguments in relation to the construction of cl.885.213 and making reference to the decision of the High Court in Berenguel v The Minister for Immigration and Citizenship [2010] HCA 8 relevantly providing (CB134):
We note that the core principle set by the Court in Berenguel was in regards to s55 of the Act, that the Minister must have regard to ‘Up-to-date’ information. Thus the changes in the Migration Regulation on the 1 July 2011 with respect to the definition of English do not override Berenguel, the principles in Berenguel is derived with respect to section of the Act, sections of the Regulation should not defeat sections of the Act. We thus submit the principles in Berenguel’s case still applies and a legislative changes is required if is not in the intent of the Legislature.
We request the Tribunal to process this applicant in the same manner as all pre 1 July 2011 lodged cases and offer our client a chance to sit for a further IELTS test.
The day before the hearing before the Tribunal the solicitors for the applicant forwarded by letter dated 3 April 2014 attaching bookings by the applicant to sit further IELTS tests on 5 and 12 April.
The Tribunal noted that the issue before it was whether the applicant had competent English as required by cl.885.213 and noted that the applicant had told the Tribunal he had undertaken the IELTS test more than 20 times but did not achieve six in each of the test components, having particular difficulty with the reading component.
The Tribunal noted the argument advanced by the applicant’s solicitors in relation to Berenguel and noted that there had since that decision been changes to the Regulations. The Tribunal rejected the argument that the application should be processed in the same way as all pre-1 July 2011 cases and the Tribunal held that there was no utility permitting the applicant to sit a further test as this would not give rise to a capacity to meet the requirements of reg.1.15C(a).
The Tribunal relevantly found:
9. The applicant has not provided evidence that he has undertaken one of the specified language tests in the 2 years immediately before the visa application was made and achieved the specified score and the Tribunal finds that the applicant does not meet the requirements of r.1.15C(a).
10. The applicant holds a passport of Bangladesh, which is not a passport of a type specified in IMMI 12/018, and he does not meet the requirements of r.1.15C(b).
11. Therefore, the requirements of r.1.15C are not met and the Tribunal finds that the applicant does not have ‘competent English’ as defined and does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
The grounds of the amended application are as follows:
1. The Tribunal misapplied the law.
Particulars
The Tribunal found that Regulation 1.15C 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.
2. The Tribunal misinterpreted reg 1.15C.
Particulars
The Tribunal interpreted reg 1.15C as if it were an exhaustive definition of the term “competent English”, which it is not.
3. Subregulation 1.15C(b) is an invalid exercise of the regulation-making power.
4. Legislative instrument F2012L01287 (IMMI 12/018) is an invalid exercise of the power to make such an instrument.
In relation to ground 1, Mr Jones, solicitor for the applicant, drew attention in his submissions to the scheme of the Act and, in particular, ss.65, 47 and ss.54 and 55. Mr Jones maintained that, having regard to the most recent information concerning the applicant’s level of English language would be consistent with the application of those statutory provisions and that the Tribunal had erred as identified in ground 1 by adopting an approach that required the applicant to have a prescribed IELTS test score at the time of the application for the visa rather than at the time of the decision on the visa application.
Specifically, Mr Jones put that there was no time specified in relation to reg.1.15C(a)(iii) in respect of a person achieving a score specified and that it was consistent with the objects of the Act and the scheme of the statute requiring the Minister to have regard to all of the information in the application and the ability to have regard to further information, that the applicant be able to demonstrate competence in English after the time of the application.
The difficulty with this ground is the amendment to the regulations and specifically the legislative purpose identified relating to the new reg.1.15C as identified in the explanatory statement to the 2011 regulation stated in schedule 1, item 2.
New Regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.
These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion. (emphasis added)
I accept the first respondent’s submission that reg.1.15C removed the requirement considered before the High Court in Berenguel that a person achieve a particular IELTS test score “in a test conducted not more than two years before the day on which the application was lodged,” and relevantly inserted a new provision which clearly required that the applicant show that the applicant had conducted a test “conducted in the two years immediately before the day on which the application was made.”
Further, in answer to Mr Jones’ construction argument relating to reg.1.15C(a)(iii), there are three cumulative requirements under reg.1.15C(a) as made clear by the use of the conjunction which, together with the words “specified in the instrument” makes clear that it is a test and a score in the instrument conducted in the two years immediately before the day on which the application was made that the applicant must achieve.
Mr Jones properly drew the Court’s attention to the proposition that this construction had in substance been accepted both in the Federal Circuit Court as well materially as in the Federal Court in Singh v Minister of Immigration and Border Protection [2014] FCA 185. Mr Jones formally challenged the correctness of that decision. Mr Jones further pointed out that there was a decision of Judge Cameron in Milanes v Minister for Immigration & Anor [2015] FCCA 205 raising this construction issue that was the subject of appellate challenge before the Federal Court of Australia. The first respondent opposed the matter being adjourned until the outcome of that decision.
I am satisfied that this was an appropriate case in which to proceed to deal with the argument given the adverse authority in this Court which I consider to be correct and which was identified in the submissions of the parties as well as more recently in this Court in Nawaz v The Minister of Immigration& Anor [2015] FCCA 1245. Accordingly, ground 1 fails to make out any jurisdictional error.
In relation to ground 2, there was tendered in evidence the instrument being Language Tests, Scores and Passports Regulations 1.15B, 1.15C, 1.15D, 1.15E and 1.15E(a) dated 12 June 2012 which relevantly provided:
2. SPECIFY for applications lodged before 1 July 2012 tests, test scores and passports, as follows:
A. For the purposes of subparagraph 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 subparagraph 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.
C. For the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
In substance, Mr Jones contended that competent English was a matter that could be demonstrated by ways other than the completion of the IELTS test or the OET test and that it was a matter that the applicant should have been given the opportunity to demonstrate either by provision of further tests in combination or in other evidence adduced before the Tribunal.
In my opinion, the correct construction of reg.1.15C is that it provides an exhaustive definition of “competent English”. Mr Jones properly conceded that again there was an adverse binding decision of the Federal Court relevantly in Sidhu v The Minister for Immigration and Border Protection [2014] FCA 935 and that his ground 2 challenge was a formal challenge and that this Court would be bound by the decision. This Court is bound by the decision in Sidhu. Those concessions were properly made by Mr Jones. In the circumstances, ground 2 cannot be made out.
In relation to ground 3, Mr Jones sought to identify why reg.1.15C(b) could be said to be irrational, capricious or absurd in that the mere existence of a person’s passport would not necessarily mean that they had any English language competency. Mr Jones maintained that the holding of a passport did not identify anything to do with the acquisition of skills of English language competence.
Mr Jones contended that reg.1.15C(b) was accordingly beyond the regulation-making power under s.504(1) and that subparagraph (b) could not be severed whereby the whole of the regulation was invalid. Mr Jones also attacked the exclusivity of particular passports as providing no rational basis in the regulation-making power to establish English language competency.
In my opinion, the regulation is not so oppressive that no reasonable mind can justify it and the regulation is proportionate to the regulation-making power found in s.504(1). See the authority cited in Nawaz v The Minister of Immigration [2015] FCCA 1245 at [6] and [7].
Mr Jones properly conceded that there were authorities in this Court adverse to ground 3. It was in light of the subtlety of the developed argument by Mr Jones that it was clearly appropriate to determine whether or not there was jurisdictional error on this ground for the reasons given. Ground 3 failed to make out any jurisdictional error.
In relation to ground 4, Mr Jones maintained the argument that specifying particular passports identified no basis upon which there could be an assessed competency of English language and put that the selectivity of a number of English-speaking countries for the purpose of identified passports falling within reg.1.15C(b) was irrational in relation to English competency as well as being contrary to s.10 of the Racial Discrimination Act 1975 (Cth).
Mr Jones also drew attention to s.505 of the Act in attacking the validity of the instrument and put that s.505 does not authorise the specification of a person or organisation by means of a legislative instrument to meet the prescribed criteria for a visa of a particular class and further that such persons or organisations would have to be specified on the regulations themselves. Mr Jones also maintained that there was an ambiguity and uncertainty in relation to the identification of the tests specified in the instrument by reference to paras.2A and 2B and that on this further ground the instrument was not a valid exercise of the instrument-making power.
Mr Jones properly accepted that there was a decision of the Full Court of the Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 which was contrary to the s.10 of the Racial Discrimination Act1975 argument and that there were decisions of this Court upholding the validity of the instrument. The principles for determining whether or not the instruments exceeds the regulation-making power were identified by Lockhart J in Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at [446].
I accept the first respondent’s submission that there is nothing absurd or irrational in the specification of passports for the purpose of the English language requirement as the instrument makes clear the passports specified are English-speaking countries. I reject the applicant’s submissions. For these reasons, ground 4 fails to make out any jurisdictional error. The amended application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 September 2015
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