Rangasamy v Minister for Immigration

[2017] FCCA 1711

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANGASAMY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1711

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.257A, 359A, 360
Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Berenguel v Minister for Immigration [2010] HCA 8
Milanes v Minister for Immigration [2015] FCA 1105
ProjectBlue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Applicant: KARTHIKPRASAD RANGASAMY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3251 of 2016

Judgment of: Judge Driver

Hearing date: 24 July 2017

Delivered at: Sydney

Delivered on: 24 July 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Crawford of HWL Ebsworth

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3251 of 2016

KARTHIKPRASAD RANGASAMY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 October 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant, Mr Rangasamy, a provisional skilled visa.  Background facts relating to Mr Rangasamy's visa application and the decision of the Tribunal on it is conveniently set out in the Minister's outline of submissions filed on 13 July 2017.  

Background

1. On 31 May 2016, Mr Rangasamy applied for a skilled visa.[1] 

   [1] Court Book (CB) 1 to 12

2. At two points in the visa application Mr Rangasamy was asked whether he had undertaken an English language test within the last 36 months that demonstrates at least competent English.[2]  Mr Rangasamy answered “no” to those questions.[3]  Page 2 of the visa application included a note that stated:

   Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English language test within the last 36 months that demonstrates you have at least competent English.

   [2] CB 1

   [3] CB 1 and 12

3. The delegate refused the visa on the basis that Mr Rangasamy did not have the required English language proficiency.[4]  Mr Rangasamy applied to the Tribunal for review and attached a copy of the delegate's decision.[5] 

   [4] CB 22

   [5] CB 26 to 35

4. The Tribunal was satisfied that Mr Rangasamy did not hold a valid passport of the type specified in IMMI 15/062, and as such needed to meet clause 485.212(a) of the Migration Regulations 1994 (Cth) (Regulations).[6] 

   [6] CB at [11]

5. The Tribunal noted information in the delegate's decision record that Mr Rangasamy did not provide evidence that he had completed an English language test within three years before the day on which the application was made.[7] 

   [7] CB 56 at [14]

6. Mr Rangasamy appeared before the Tribunal on 19 October 2016 to give evidence,[8] and told the Tribunal that he had undertaken the language test after he lodged the application.[9]  Mr Rangasamy provided the Tribunal evidence of a language test undertaken on 4 July 2016.[10] 

   [8] CB 55 at [4]

   [9] CB 56 at [15]

   [10] CB 28 and CB 56 at [15]

7. The Tribunal found that Mr Rangasamy had not provided evidence that he achieved, within the period specified by the Minister in the instrument, the score specified in the instrument, in accordance with the requirements.[11]  To meet the requirements Mr Rangasamy's test must have been completed within the three years before the day on which the application was made.[12]

   [11] CB56 at [17]

   [12] CB 56 at [17]

8. The Tribunal affirmed the decision under review.

Present proceedings

1. These proceedings began with a show cause application filed on 22 November 2016.  Mr Rangasamy continues to rely upon that application.  The grounds in the application are:

   1. The Applicant was denied procedural fairness by the Respondents and committed jurisdictional error.

   Particulars:

   a. The Applicant applied for subclass 485 visa without having competent English.

   b. The Applicant was planning to arrange IELTS test and provide the results to the Respondents.

   c. The Respondents made a decision without giving the Applicant further chance to submit IELTS result.

   d. The Applicant was relied on the High Court decision in the matter of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010) and lodged the application for visa without IELTS results.

   2. The Second Respondent made jurisdictional error by making a decision which was unreasonable by finding that the Applicant had understood the definition stated in the Regulations.

   Particulars:

   a. The Applicant is a student and was not capable of understanding complex legal definitions. In addition, the law changes frequently and it is obvious that reasonable layman can find will find him under dilemma and confusion.

   b. The Applicant was under the impression that he would be able to submit IELTS result with 28 days and obtained the required band within 28 days.

   c. The Applicant's IELTS result was not considered by the First Respondent.

   3. The Respondents made jurisdictional error by misleading the Applicant.

   Particulars: 

   a) The Respondent has created online lodgement system and documents can only be attached after lodgement of the application.

   b) The First Respondent's online system allowed him to lodge the application.

2. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar for the purpose of today's hearing.  Mr Rangasamy relied upon his short affidavit accompanying his judicial review application.

3. I invited oral submissions from Mr Rangasamy this morning.  He explained that he had made a simple and honest mistake concerning the time within which he was required to submit the results of the English language test.  There was no question about Mr Rangasamy's compliance with the requirement to submit a passing result for the rest.  The issue is with the timing of that evidence.  Mr Rangasamy thought that he could provide the result after his visa application.  The delegate and the Tribunal decided otherwise on the basis of the state of the legislation at the time it considered the matter.

4. The only legal argument potentially available to Mr Rangasamy in these proceedings is that the Tribunal misinterpreted the legislation and that the case is governed by the decision of the High Court in Berenguel v Minister for Immigration.[13]  The Minister relies upon the decision of the Federal Court in Milanes v Minister for Immigration,[14] which dealt with amendments to the legislation which were intended to deal with the issue arising from the High Court's decision in Berenguel.

   [13] [2010] HCA 8

   [14] [2015] FCA 1105

5. The Federal Court found that there was no ambiguity in the legislation as amended and that in consequence applicants must provide an English language result before they lodge their visa application.  The Minister submits that the same is the position here, notwithstanding that the legislative provisions are different because they have been changed since the decision in Milanes. The critical provision is that appearing in a legislative instrument, being IMMI 15 of 062, which at [4] states that the English language tests must have been undertaken within three years before the day on which the application was made.

6. In Milanes Katzmann J was dealing with regulations which included the word "immediately".  That word does not appear in the legislative instrument relevant for present purposes, but it is not apparent to me that the drafters of the instrument intended to effect any substantive change by the removal or omission of that word.  The position remains in relation to this class of visa that the English language test must have been undertaken within three years before the day on which the application was made and that compliance cannot be effected up until the time of decision on the visa application.

7. I otherwise agree with the Minister's submissions. Section 357A of the Migration Act 1958 (Cth) (Migration Act) has the effect that the relevant provisions are an exhaustive statement of the natural justice hearing rule in relation to the matters with which they deal.

8. Mr Rangasamy was invited to, and attended, a hearing in accordance with s.360 of the Migration Act.[15] No issues in relation to s.359A of the Migration Act arose in this matter.

   [15] CB 47

9. Mr Rangasamy claims that he was not provided a further chance to submit IELTS results.  Mr Rangasamy was on notice from the time of the visa application that he was required to have undertaken an English language test within the last 36 months that demonstrated he had at least competent English.  Mr Rangasamy himself indicated that he had not done so.[16]

   [16] CB 12

10. Insofar as Mr Rangasamy relies on the judgment in Berenguel, the Regulations have been amended since that decision.

11. For the purposes of the present case, clause 485.212 of the Regulations relevantly provided:

    The application was 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.

12. The relevant instrument, IMMI 15/062, stated at paragraph 4:

    SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made…

13. In Milanes, Katzmann J held that there is a material difference between the legislation under consideration in Berenguel (supra) and the amended legislation.[17]  Her Honour went on to rely on the decision in ProjectBlue Sky v Australian Broadcasting Authority,[18] citing the need to construe the relevant provisions of a legislative instrument so they are consistent with the language of the Instrument viewed as a whole, and to strive to give meaning to every word.

    [17] at [46]

    [18] (1998) 194 CLR 355

14. When the relevant version of clause 485.212(a) is read with IMMI 15/062, the criterion in 485.212 requires that the applicant has undertaken a specified language test in the three years immediately before the day on which the application was made and has achieved a specified score or holds a passport of a specified type.

Ground 2

1. It was for Mr Rangasamy to make his case before the Tribunal.[19]  Mr Rangasamy was on notice of the dispositive issue before the Tribunal as it was the same issue before the delegate and it was also raised in the Tribunal's invitation to hearing dated 18 August 2016. 

   [19] Abebe v Commonwealth (1999) 197 CLR 510 at 576, at [187]

2. Mr Rangasamy has not provided any evidence or explanation as to why he considered he had 28 days to “obtain the required band”.  The visa application itself stated that:

   [t]o meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English language test within the last 36 months that demonstrates you have at least competent English.

3. The Tribunal did in fact consider the English language test result submitted by Mr Rangasamy with the review application.  The Tribunal found that the test was undertaken on 4 July 2016, after the visa application was lodged.[20] The test submitted by Mr Rangasamy therefore did not meet the requirement under clause 485.212(a)(ii) of the Regulations when read with IMMI 15/062.

   [20] CB 56 at [17]

Ground 3

1. Mr Rangasamy was required to have completed his English language test within three years before the day on which the application was made.  Accordingly, it was not open to Mr Rangasamy to provide this evidence after lodging his application and before a decision was made.

2. As stated above, the visa application itself stated that:

   [t]o meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English language test within the last 36 months that demonstrates you have at least competent English.

3. The Tribunal had no discretion with regard to the criteria. In the circumstances, the Tribunal was obliged to find that Mr Rangasamy did not satisfy clause 485.212(a) of the Regulations.

4. It is unfortunate that Mr Rangasamy was labouring under a misapprehension concerning the period within which he was required to comply with the English language criterion.  He was able to provide the required test results without difficulty, but he did so late.  Neither the Tribunal nor the Court can provide any remedy in these circumstances.  It is open to the Minister to make a more favourable decision, and Mr Rangasamy is entitled to ask for that ministerial consideration.

5. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 3 August 2017