Ranabhat v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1077
•22 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ranabhat v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1077
File number(s): BRG 100 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 22 October 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal –Employer Nomination (Permanent) (Class EN) visas– judicial review - whether the decision of the Tribunal is affected by legal unreasonableness – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error made out – application dismissed Legislation: Migration Act 1958 (Cth) ss 476(1)
Migration Regulations 1994 (Cth) cl 186.232 and 187.222(b) of Schedule 2, r 1.15C
Cases cited: Minister for Immigration and Citizenship v SZLIX [2008] 245 ALR 501 Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 14 October 2024 Date of hearing: 14 October 2024 Place: Brisbane Counsel for the Applicants: The First and Second Applicants appeared in person. Solicitor for the Respondents: Ms Satyendra appeared on behalf of the First Respondent - Minter Ellison ORDERS
BRG 100 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANTOSH RANABHAT
First Applicant
SHARMILA KC
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, and Multicultural Affairs”.
2.The application is dismissed.
3.The applicants are to pay the first respondent’s costs, fixed in the amount of $5900.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the first applicant’s application for an Employer Nomination (Permanent) (Class EN) visa.
BACKGROUND
Application for an Employer Nomination Visa
The applicants are citizens of Nepal.
On 15 March 2022, the first applicant applied for an Employer Nomination (Permanent) (Class EN) (Subclass 186) (Direct Entry Stream) visa (“the visa”) (Court Book (“CB”) 23 - 121). The second applicant, who is the first applicant’s wife, was included in the application as a member of the first applicant’s family.
On 4 April 2023, the delegate refused to grant the first applicant the visa on the basis that the first applicant had not provided evidence that he had satisfied the English language requirement in cl 186.232 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”)
(CB 213 - 218).
Clause 186.232 of Schedule 2 of the Regulations provides that at the time of the application, the applicant:
a) had competent English; or
b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
Application for review in the Administrative Appeals Tribunal
On 8 April 2023, the applicants applied to the Tribunal for review of the delegate’s decision (CB 219 - 225). The applicants appointed a registered Migration Agent to assist them (CB 224).
On 20 April 2023, the Tribunal acknowledged receipt of the application for review and advised the applicants that should they wish to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 229). The applicants did not respond.
On 11 January 2024, the Tribunal notified the applicants that the application would be heard on 30 January 2024 (“the hearing invitation”) (CB 239 - 241). The hearing invitation requested the applicants to provide all documents they intended to rely upon to support their case and referred the applicants to the decision made by the delegate setting out the reasons for the decision.
On 30 January 2024, the applicants appeared before the Tribunal to give evidence and present arguments. Only the first applicant gave evidence. The applicants’ representative did not attend the hearing (CB 258 – 260).
On 30 January 2024, the Tribunal affirmed the delegate’s decision not to grant the applicants the visas and gave written reasons for its decision (CB 267-270).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal identified that the issue on review was whether the first applicant met the requirements of cl 186.232 of Schedule 2 of the Regulations which required that the first applicant satisfy the competent English requirement ([8]).
The Tribunal identified the relevant legislative requirements as follows ([9] – [10]):
a) At the time the visa application is made an applicant in the Direct Entry stream must have either competent English, or be in a class of persons specified in legislative instrument LIN 19/216;
b) Pursuant to r 1.15C of the Regulations, a person will have competent English if either he or she undertook a specified language test in the three years preceding the visa application and achieved a score or, holds a specified passport;
c) The relevant tests, score and passports are specified in legislative instrument IMMI 15/005.
The Tribunal noted that the first applicant was not the holder of a passport prescribed in IMMI 15/005 and that accordingly the first applicant was required to provide a competent English assessment ([13]).
As to that assessment, the Tribunal noted that the first applicant had sat for a Pearson Test of English (PTE) Academic test on 9 March 2022 in anticipation of his visa lodgement made on 15 March 2022. The results of that test were that the applicant scored for listening 53; reading 49; speaking 50 and writing 50. Accordingly, the Tribunal concluded that the first applicant had not attained the required score of 50 in each of the four categories ([13]).
Having not satisfied the competent English language requirement as required by cl 186.232 of Schedule 2 of the Regulations, the Tribunal affirmed the delegate’s decision ([17] – [18]).
PROCEEDINGS IN THIS COURT
On 29 February 2024, proceedings were commenced in this Court by application pursuant to s 476(1) of the Migration Act 1958 (Cth) (“the Act”).
The first applicant also filed an Affidavit affirmed on 29 February 2024. The Affidavit sets out the background to the visa application, otherwise largely recites the grounds in the application, and annexes a copy of the Tribunal’s decision.
Procedural orders were made permitting the applicants to file an amended application with proper particulars of the grounds of the application, any additional evidence on which they sought to rely, and written submissions. Orders were also made as to the filing and service of written submissions and any further evidence by the first respondent. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicants did not file an Amended Application or any further evidence. The applicants did not file written submissions.
At the hearing, the material before the Court included the application, the first applicant’s Affidavit, an Affidavit filed on behalf of the first respondent on 1 October 2024 annexing the Pearson PTE Scoring Comparison chart from Pearson’s website (which had been omitted from the Court Book), the first respondent’s written submissions and a Court Book which was made an exhibit in the proceedings.
The grounds of review set out in the Application are (without alteration):
Ground One
The Tribunal’s decision was unreasonable because the Tribunal failed to consider and understand my personal circumstances and level of English as part of assessment of visa application subclass 186.
a) Neglecting my claims that my migration agent advised me that my studies in Australia is sufficient to meet the English requirements for the purpose of the visa.
b) As a visa applicant with limited legal knowledge, I relied on the expertise and advice of my migration agent and hence I shouldn’t be punished for a third-party mistake.
c) I was capable of taking IELTS or PTE exams and meet the requirements if my migration agent has informed me to do so
Ground Two
The Tribunal failed to give consideration to and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information when assessing whether I met the requirements for the visa including subclause 186.232.
a) The Tribunal ignored the evidence that my English competency is good otherwise, except that it was not evidenced via IELTS or PTE.
b) Me and my wife are disadvantaged because of a third party mistakes but it was ignored by the Tribunal.
Ground Three
The Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.
a) The Tribunal failed to provide me to the opportunity to address the English requirements by providing new evidence of IELTS or PTE.
b) The Member failed to follow the Directions and consider the benefit of my employment would bring to an Australian employer as the 186 nomination was approved by the Department of Home Affairs.
Ground Four
The Tribunal misapplied itself by making specificative inferences and made no logical connection in finding that I did not meet the English language requirements:
a) The Tribunals finding is not supported by the facts.
The applicants appeared before the Court in person unrepresented.
The applicants did not have with them in Court the Application, the first applicant’s Affidavit or any of the material with which they had been served. Accordingly, the Court provided the applicants with a copy of the materials. The Court also provided the applicants with a pen and paper.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
As the applicants were unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error.
Ground One: Unreasonableness and failure to take into account personal circumstances and level of English
In ground one, the applicants plead that the Tribunal’s decision was unreasonable as the Tribunal did not take into account the first applicant’s personal circumstances and his level of English.
The applicants also plead that they relied upon the advice of their Migration Agent that the first applicant’s studies in Australia were sufficient to meet the English language requirement and that if the Migration Agent had informed the first applicant to do so he was capable of taking an IELTS or PTE examination to meet the requirements. In paragraphs 11 and 12 of his Affidavit, the first applicant states that his Migration Agent told him that the exemption for applicants who had studied full time in either secondary or higher education in English for 5 years applied to him as he had studied in Australia for more than 5 years in English. The first applicant pleads that accordingly, there should have been some leniency by the Tribunal in assessing the English language requirement.
As the first respondent correctly submits (First Respondent’s submissions (“FRS”) [22] – [23]), the first applicant was required to satisfy cl 186.232 of Schedule 2 of the Regulations. As noted, cl 186.232 requires that at the time of the application for the visa, the applicant must have competent English or be a person in a class of persons specified by the Minister in an instrument. The relevant instrument is Migration (LIN 19/216 Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visa) Instrument 2019. No class of persons is currently specified by LIN19/216 for the purpose of clause 186.232 of Schedule 2 of the Regulations.
Accordingly, the first applicant was required to have competent English at the time of the application. Competent English is defined in r 1.15C of the Regulations as follows:
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The first applicant accepted that he is not the holder of a passport of a type specified by the Minister (first applicant’s Affidavit at paragraph [10]).
Accordingly, the first applicant must have undertaken a test conducted in the three years immediately before the day on which the visa application was made, in accordance with the tests and scores set out in the relevant instrument.
The relevant instrument for the purposes of r 1.15C of the Regulations is IMMI 15/005. Items 5(D) – (F) of IMMI 15/005 relevantly required the first applicant to have undertaken a PTE Academic test and have achieved a score of 50 in each of the test components. This is the test which the first applicant undertook shortly prior to his visa application and which he submitted with his visa application (CB 54). The first applicant did not achieve a score of 50 in each of the four components.
Accordingly, the Tribunal did not err when it found that the first applicant had not met the competent English language requirement as required by cl 186.232(a) of Schedule 2 of the Regulations at the time of his visa application.
The first applicant’s reliance upon his studies in Australia as sufficient to satisfy the English language requirement is misconceived. The first respondent is correct in in its submission that this exemption in respect of applicants who have undertaken five years of full-time study in English only applies to cl 187.222(b) of Schedule 2 of the Regulations: item 7 of LIN19/216 (FRS [22]). Had the Tribunal taken those studies into account it would have fallen into error.
It may be that the first applicant’s Migration Agent provided him with incorrect advice as to whether reliance could be placed on studies completed in Australia as evidence of his English language competency. However, this is not a case in which it is suggested that there was a fraudulent omission vis-à-vis the visa applicant, and which occasioned fraud on the Tribunal. The simple fact of a failure to properly advise by the Migration Agent amounting to negligence or inadvertence is not necessarily sufficient to give rise to a fraud on the Tribunal (Minister for Immigration and Citizenship v SZLIX [2008] 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ). In any event, there is no evidence before the Court that any assertion of negligence by the Migration Agent was raised with the Tribunal.
It may also be that the first applicant may have been able to, if differently advised by his Migration Agent, passed the IELTS test or PTE test. The first applicant undertook the PTE test and provided the results of that test with his visa application. The fact that the applicant might have later passed that examination or the IELTS test was irrelevant to the review by the Tribunal as cl 186.232 of Schedule 2 of the Regulations requires that the applicant satisfy the English language requirement at the time of the visa application.
As to the first applicant’s personal circumstances, it is not clear what personal circumstances the first applicant is referring to and which he says the Tribunal should have considered. In any event, personal circumstances are not a consideration that was relevant to the dispositive issue before the Tribunal, that is, whether the first applicant had competent English at the time of the visa application.
No jurisdictional error is established on this ground.
Ground two: Failure to consider evidence and relevant facts
In ground two, the first applicant pleads that the Tribunal ignored that his English competency was otherwise good except that it was not evidenced via IELTS or PTE. The applicants reiterate that the Tribunal ignored the mistakes made by their Migration Agent.
The issue before the Tribunal was to consider whether the first applicant had competent English at the time of the visa application in accordance with r 1.15C of the Regulations and
IMMI 15/005. That is what the Tribunal did. The Court agrees with the first respondent’s submission that whether the Tribunal otherwise considered the first applicant’s English competency to be good was not relevant to the satisfaction of the specific requirements imposed by cl 186.232 of Schedule 2 of the Regulations (FRS [30]). The Tribunal had no discretion to otherwise consider competency. Had it done so it would have fallen into error.
In oral submissions, the first applicant submitted that in assessing the English language competency requirement the Tribunal should have had regard to the Pearson PTE Scoring Comparison (“PTE Comparison”). The PTE Comparison was annexed to the Affidavit filed on behalf of the first respondent on 1 October 2024. It is apparently a document prepared by Pearson explaining its scoring scale and how, based on its research into the relationship between the PTE Academic test, the IELTS Academic test, and TOEFL, it has developed comparison tables as a guide to show how PTE scores relate to other score bands. The comparison indicates that PTE scores between the range of 46-55 were equivalent to a IELTS test score of 6.
The first applicant’s submission was that had the Tribunal had regard to the PTE Comparison it would have concluded that the first applicant’s scores on the PTE test (including the score below 50) would have satisfied the scores required in IMMI 15/005 in respect of the IELTS test. Pursuant to IMMI 15/005 Item 5E(i) an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking is required.
The first respondent submitted that the requirement in IMMI 15/005 is that the visa applicant achieve the required score in each of the components in respect of the test which the visa applicant has undertaken in the required period prior to the visa application (FRS [25]). The Court agrees. Regulation 1.15C speaks of a test that the person ‘undertook’. There is no scope in IMMI 15/005 for either the delegate or the Tribunal to assess and take into consideration what an applicant’s score might have been had they undertaken a different test to the one which they in fact undertook. In any event, the PTE Comparison is only a guide produced by Pearson to explain its own scoring system.
The applicants further plead in ground two that the Tribunal ignored that they were disadvantaged because of third party mistakes. The Court understands this to be a reference to advice given to the applicants by their Migration Agent about the English language requirement. For the reasons already given, this cannot be the basis of any jurisdictional error by the Tribunal.
No jurisdictional error on this ground is established.
Ground three: No opportunity to provide new evidence and failure to consider benefit of the employment to Australia
In ground three, the applicants plead that the Tribunal failed to provide them with an opportunity to provide new evidence relating to the English language requirement.
There is no evidence before the Court to suggest that the applicants asked the Tribunal for the opportunity to present new evidence and that that request was denied.
In any event, it is understood from the applicants’ oral submissions that the evidence the applicants wished to rely upon was the results of a test or tests the first applicant had undertaken after applying for the visa.. As already stated, cl 186.232 of Schedule 2 of the Regulations requires that a visa applicant satisfy the criteria as to competent English at the time of the visa application with respect to a test conducted in the three years immediately before the day on which the application was made. The Tribunal would have fallen into error if it had considered evidence of a test undertaken by the first applicant after the date of the visa application. The Court agrees with the first respondent’s submission in that regard (FRS [34(d)]).
Otherwise, the Court agrees with the first respondent’s submission that the Tribunal complied with the statutory requirements as to procedural fairness set out in Division 5 of Part 5 of the Act (FRS [34 (a) – (c)]).
In ground three, the applicants also plead that the Tribunal did not consider the benefit the first applicant might bring to a potential employer in Australia. The Court agrees with the first respondent’s submission that this is an irrelevant consideration to determining whether the first applicant satisfied the criteria in cl 186.232(a) of Schedule 2 of the Regulations (FRS [33]).
No jurisdictional error is established on this ground.
Ground four: Finding illogical and not supported by the facts
In ground four, the applicants plead that the Tribunal made no logical connection in finding that the first applicant did not meet the English language requirement and that the finding is not supported by the facts.
For the reasons already set out, the Tribunal’s finding that the first applicant did not meet the English language requirement followed a correct application of the relevant legislative requirement and was supported by the results of the PTE test provided by the first applicant with the visa application.
No jurisdictional error is established on this ground.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 22 October2024
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