RANI v Minister for Immigration

[2014] FCCA 536

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANI & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 536

Catchwords:
MIGRATION – Review of decision of the Migration Review Tribunal –
First Applicant failed to meet criteria in reg.1.15C of the Migration Regulations 1994 (Cth) – First Applicant submitted IELTS test results after decision made by the Migration Review Tribunal – IELTS test not conducted in the relevant period – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.15C

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501
Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25

SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189
SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980

First Applicant: RAJINDER RANI

Second Applicant: SURINDER KALIA

Third Applicant: ARYAN KALIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 833 of 2013

Judgment of: Judge Whelan

Hearing date: 4 March 2014

Date of Last Submission: 4 March 2014

Delivered at: Melbourne

Delivered on: 4 March 2014

REPRESENTATION

Counsel for the Applicants: First, Second and Third Applicants in person

Counsel for the First Respondent: Mr Wood

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application filed 12 June 2013 be dismissed.

3. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 833 of 2013

RAJINDER RANI

First Applicant

SURINDER KALIA

Second Applicant

ARYAN KALIA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) made on 27 May 2013 to affirm an earlier decision of a delegate of the Minister not to grant the First Applicant, RAJINDER RANI (“the First Applicant”), a

   
   

   Skilled (Provisional) (Class VC) visa. The First Applicant made the application for that visa on 24 August 2011. That application also included her Husband, SURINDER KALIA (“the Second Applicant”), and her son, ARYAN KALIA (“the Third Applicant”), as dependents.

Background

1. On 3 August 2012, a delegate of the Minister made a decision to refuse to grant the First Applicant the visa. The delegate found that the

   
   

   First Applicant had not satisfied the criteria for a subclass 485 visa because she had not demonstrated that she had competent English.

   
   

   On 23 August 2012, the First Applicant made an application for review to the Tribunal.

2. On 20 March 2013, the Tribunal wrote to the First Applicant and invited her to appear before it at a hearing scheduled for 15 April 2013. The Tribunal specifically noted, in relation to the competent English criteria, that it was necessary for the First Applicant to have achieved a specified score in a language test that was conducted in the two years immediately before the day on which the visa application was made, and the words “in the 2 years immediately before the day on which the visa application was made” were underlined.[1] The First Applicant did not appear at the hearing at the scheduled time, but later the same day, she contacted the Tribunal and requested an adjournment.

   [1] Court Book filed 6 December 2012, at p.151.

3. On 30 April 2013, the Tribunal wrote to the First Applicant and notified her that it had acceded to her request for an adjournment and that it had rescheduled the hearing for 23 May 2013. In that letter,[2] the Tribunal again specifically noted that the First Applicant would need to provide evidence that she had achieved a specified score in a language test conducted in the two years before the day on which the visa application was made, and requested that the First Applicant provide that evidence as soon as possible, but no later than the hearing date.

   [2] Ibid.

4. The First Applicant attended the hearing on 23 May 2013 but provided no evidence that she satisfied the competent English criteria. Rather, the First Applicant acknowledged that, despite sitting the

   
   

   International English Language Testing System (“IELTS”) test on numerous occasions, she had never achieved the requisite scores in a single test. The First Applicant also acknowledged that there was no evidence before the Tribunal that she had achieved the requisite score in a test conducted in the two years immediately before the day on which she made the visa application.

5. The First Applicant, however, requested more time to sit another IELTS test. In its decision, the Tribunal found that the First Applicant had not provided the requisite evidence to satisfy the competent English criteria for a subclass 485 visa and, therefore, affirmed the decision under review. With respect to the First Applicant’s previous unsatisfactory IELTS results, and her request for more time to sit another test, the Tribunal stated:

   The Tribunal acknowledges the applicant’s request for more time to sit an additional IELTS test. However, as flagged in the Tribunal’s hearing invitation and put to the applicant at the hearing, under the relevant definition of competent English that applies to this case it is now too late to sit a further IELTS test.  The Tribunal is therefore not prepared to delay the finalisation of this matter to enable the applicant to sit a further IELTS test.[3]

   [3] Court Book filed 6 December 2013, p.191 at para.12.

6. The Tribunal’s decision was faxed to the First Applicant’s migration agent at approximately 9.50 a.m. on 27 May 2013. Later that afternoon,

   
   

   the First Applicant faxed to the Tribunal a copy of the results of an IELTS test that she sat on 11 May 2013. The test results included scores of:

   ·6 for listening;

   ·6.5 for reading;

   ·6 for writing; and

   ·6 for speaking. 

   The same test results were later emailed to the Department of Immigration and Citizenship (“the Department”). The First Applicant then lodged this application for a judicial review.

The grounds of review

1. The First Applicant identifies only one ground of review, which is administrative error. In her statement in support of the application, and in oral submissions today, the First Applicant relies on the fact that the hearing in relation to her visa centred around her IELTS result.

   
   

   The First Applicant sat a new IELTS test on 11 May 2013. At the hearing on 23 May 2013, she was told, on more than one occasion, that the Tribunal member was not going to make a decision on that day.

   
   

   The First Applicant obtained the result of her IELTS test on

   
   

   24 May 2013 and forwarded this information to her migration agent that same day.

2. The test result was not faxed to the Tribunal that day, and was not received by the Tribunal until 27 May 2013. The First Applicant’s argument appears to be based on two things:

   ·That a decision was made by the Tribunal on 2 May 2013, contrary to what was put to her, and

   ·The failure of the Tribunal to consider the test results from the test that she sat on 11 May 2013 was somehow an error on behalf of the Tribunal.

The First Respondent’s submissions

1. The First Respondent, in submissions made to the Court both in writing[4] and orally, submitted that, even if the Court were to make findings of fact that the Tribunal member had indicated that a decision would not be made on that day, and that the First Applicant could submit further documents before the decision was made, and that she had obtained the results in an IELTS test that she sat on 11 May 2013, which was not forwarded to the Tribunal by her migration agent on the same day, that would not found a conclusion that the Tribunal’s decision was affected by jurisdictional error.

   [4] First Respondent’s Submissions filed 26 February 2014.

2. The First Respondent argued that the Tribunal had no jurisdiction to consider the First Applicant’s latest IELTS results. That is for two reasons:

   ·

   First, the evidence showed that the IELTS results were not provided to the Tribunal until after the Tribunal had made the decision and notified the First Applicant and the Secretary of the Department of its decision. Despite the fact that the decision itself has 23 May 2013 printed on the front sheet, it is clear that it was signed on 27 May 2013 and sent that morning shortly before

   
   

   10.00 a.m. It was at that point in time that the Tribunal had made a decision and notified it. Once the Tribunal had made its decision, it was not open to the Tribunal to consider any further evidence that was provided by the First Applicant.[5] The

   [5] Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 at 30-31.

   
   

   First Respondent points out a matter which I have also endeavoured to point out to the First Applicant today, and that is that it was not open to this Court to consider for itself whether, having regard to the First Applicant’s latest IELTS results,

   
   

   the First Applicant was entitled to the grant of a subclass 485 visa; and

   ·

   Second, the First Respondent submits that, insofar as the

   
   

   First Applicant contends that the Tribunal’s decision was somehow vitiated by reason of the failure of her migration agent to submit the First Applicant’s latest IELTS results before the Tribunal made its decision, that contention should also be rejected. The First Respondent refers the Court to the decision of the High Court in SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189 with respect to the conduct of an agent. In order to show the conduct is fraudulent, it is insufficient to show it was negligent.[6] It is also insufficient to show that it involved a breach of the statutory code governing agents.[7]

   [6] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at 509-510.

   [7] SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 at 33.

3. In this case, the First Respondent submits that there is no evidence that the migration agent’s failure to provide the First Applicant’s latest IELTS results to the Tribunal constituted fraud and, in particular, there is no evidence that the migration agent’s behaviour involved dishonesty. I note, in that regard, that it is clear, from the extract of the transcript provided to the Court, that the migration agent was well aware of the requirements, and that providing the Tribunal with an IELTS result at that stage for a test that was conducted after the period prescribed by the Migration Regulations 1994 (Cth)
   (“the Regulations”) would not assist the First Applicant’s case.

4. Further, it is clear that the First Applicant’s recent IELTS results had no relevance to whether the First Applicant met the competent English criteria. As the Tribunal correctly informed the First Applicant on three separate occasions, in order to satisfy the competent English criteria, she needed to provide evidence that she had achieved the requisite score in a test in the two years immediately before the day on which the visa application was made. The First Applicant’s latest IELTS results, being results for a test that she sat on 11 May 2013, were, therefore, incapable of satisfying that criteria.

Conclusions

1. The First Respondent has taken the Court to the relevant provisions of the legislation. In relation to this application, the key provisions are those contained in reg.1.15C of the Regulations which provide when an applicant has competent English. Regulation 1.15C of the Regulations states that the applicant has competent English if the applicant satisfies the Minister that:

   ·The applicant undertook a language test specified by the Minister in an instrument in writing for this paragraph – and I note that the IELTS test meets that criteria;  

   ·The test was conducted in the two years immediately before the day on which the application was made; and

   ·The applicant achieved a score specified in the instrument, and those scores are a score of at least six for each of the four test components of speaking, reading, writing and listening.

2. It is apparent, from the submissions of the First Applicant in this matter that, despite the Tribunal pointing out to her on several occasions the requirements of the Regulations, she has failed to understand what the Tribunal needed to be satisfied of in terms of meeting the requirements for a visa to be granted. The First Applicant also appears to misconstrue the role of this Court in relation to such an application.

3. At no time did the First Applicant provide to the Tribunal the results of an English language test which met the two criteria specified of:

   ·

   Having been conducted in the two years immediately before the day on which the visa application was made, that is, between

   
   

   23 August 2009 and 23 August 2011; and

   ·Showing that the First Applicant had achieved in that test a test score of at least six in each of the four test components of speaking, reading, writing and listening.

4. It was not relevant to the task before the Tribunal that the

   
   

   First Applicant had achieved such a score in a test she sat on

   
   

   11 May 2013. Even if the Tribunal had been given those results before it handed down its decision, the requirement that the results be achieved in a test sat between 23 August 2009 and 23 August 2011 would not have been met. If the Tribunal is not satisfied that the

   
   

   First Applicant has met the relevant criteria, the Tribunal is obliged to affirm the delegate’s decision to refuse to grant the visa.

5. On the material before the Tribunal, it could not have come to any other conclusion, and having considered that material, and having considered the submissions before me, it is clear to me that the Tribunal made no jurisdictional error. It applied the law, and it applied it consistently and appropriately with the evidence that was before it, and on that basis, this application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 19 March 2014