Sandhu v MIBP
[2013] FCCA 2285
•12 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2285 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – IELTS test not completed – no matter of principle. |
| Legislation: Migration Regulations 1994, reg.1.15C, cl.485 |
| Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559 |
| First Applicant: | BEANT KAUR SANDHU |
| Second Applicant: | SUKHDEV SINGH SRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 651 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | Thursday, 12 December 2013 |
| Date of Last Submission: | Thursday, 12 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2013 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 13 May 2013 be dismissed.
The Applicants pay the First Respondent’s actual costs in a sum no greater than the amount of $6,646.
DIRECTION
The solicitors for the First Respondent provide a copy of the Judgment and Court Book to the relevant authority for regulating the educational institutions and the relevant authority for regulating the registration of migration agents.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 651 of 2013
| BEANT KAUR SANDHU |
First Applicant
| SUKHDEV SINGH SRAN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal made on 12 April 2013, with respect to clause 485 of the regulations relating to Skilled (Provisional) (Class VC) Visas under s.55 of the Migration Act.
The first applicant and her husband came to Australia in September 2008. The first applicant studied at institutions in Australia: first at Ozford, earning a Diploma of Hospitality on 28 September 2010, and thereafter studying at the Technological Development Institute, earning from that institute a Certificate IV in Business awarded on 16 August 2012.
Despite these educational awards, the first applicant did not have sufficient English language skills to pass the IELTS – International English Language Test System – examination with a test score of at least 6 for each of the four components, being the occupational English test. It seems remarkable that a person could achieve the educational qualification of a Certificate IV in Business if they didn’t have sufficient English language skills to meet the relevant Visa requirements. However, that is not a matter for me to make a determination about and is an issue that more appropriately lies with the relevant regulator for such educational institutions.
The first applicant then applied online for the Visa that this case relates to. The online application stated:
You have up until the time of decision to provide evidence that you have competent English.
The form goes on to explain that one should not delay providing the evidence. When read with the actual wording of the regulations, it becomes apparent that this phrase is intended to convey only the procedural information that the “evidence” of the English language competency can be provided after the date of the application, not that the applicant could, after the date of the application, sit the IELTS test and rely upon the result.
The form is, at best, less than clear on this point, particularly when one looks at the following section, which says:
Have you undertaken an English test within the last 24 months?
Followed by a question:
If yes, provide details of the most recent English test.
For this category of Visa, the effect of reg.1.15C is that the application is doomed to fail if the test was not undertaken in the 24 months before the Visa application (unless the applicant was the holder of an eligible passport from five countries where English is the native language).
However, ultimately the determination that the Migration Review Tribunal must make is whether the applicant satisfies clause 485.215 of the Migration Regulations 1994.
That clause requires that the applicant have “competent English”. The term “competent English” is defined in reg.1.15C of the Regulations as follows:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister 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 person 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 first applicant, in this case, was pregnant in the time leading up to the Tribunal hearing. She had a tribunal hearing scheduled for 28 April and was due to give birth on 4 May, according to a medical certificate that she provided to the Tribunal on 17 March 2013 which appears at page 70 of the Court Book.
The first applicant nonetheless attended the Tribunal hearing and despite the request for the adjournment not having received any particular determination, the Tribunal proceeded to hear and determine the case. The Tribunal also had before it the document sent by AusIn Associates Propriety Limited, migration and education advisors of Melbourne, stating:
Respected Member,
The applicant has been allocated a hearing date on the 8th April 2013 (hearing advice attached). She has undergone numerous IELTS tests and has been unable to get the required band score. At the moment the applicant is due to have a baby on 4th May 2013 (medical letter attached). Could you please grant her some more time to get the desired result as she is unable to sit the tests now due to her medical situation.
It would be highly appreciated if you could please grant her some more time.
It seems remarkable to me that the person writing this letter, if they were in fact a registered migration agent, would not be aware of reg.1.15C and that therefore the first applicant’s application could not have possibly succeeded.
Nonetheless, the letter was written, presumably on the first applicant’s instructions. The Tribunal said in its decision:
8. The first named applicant gave evidence that she attempted to achieve the score of 6 on each of the 4 components on the IELTS test many times, that she is pregnant and that she is asking the Tribunal for one more chance to undertake the IELTS test.
9. The Tribunal explained to the first named applicant that it had no discretion to consider the circumstances she has spoken about in her oral evidence and added that these matters were irrelevant to its consideration of whether or not she meets the requirements of cl.485.215. The Tribunal asked the applicant to confirm whether or not she could produce evidence that she had undertaken an IELTS or OET test conducted in the 2 years immediately before the day on which she lodged the visa application and in which she had achieved the specified test score of at least 6 for each of the 4 test components of the IELTS test or test score of at least ‘B’ for each of the 4 test components of the OET test. She answered “No”.
10. The Tribunal put to the applicants that it had also considered whether the applicants satisfy the criteria of the grant of a Subclass 487 visa. In doing so, the Tribunal observed that it had looked to see if the applicants had paid the applicable fee for a subclass 487 visa application under Item 1229 or whether there is evidence that the applicants were nominated by a State or Territory government agency or sponsored by a relevant Australian relative, as required by cl.487.213. The Tribunal put to the applicants that it was unable to satisfy itself on the material before it that the applicants could meet the requirements of a Subclass 487 visa. The applicants made no further claims with respect to that issue.
Ultimately, the Tribunal concluded that as the first applicant did not hold a passport from one of the countries specified where an exemption from the test is granted under the regulations, the applicant would have had to have achieved the appropriate test score in the two years immediately before the day of the application.
For these reasons, the Tribunal, not surprisingly, concluded that the first applicant did not satisfy the Visa criteria and therefore the application must be rejected. The Tribunal member was able to have a hearing with the first applicant, and she was certainly able to participate in that hearing and put her case for an adjournment to allow her to undertake the test again and before the final hearing. In the circumstances of the case, it does not seem to me that her pregnancy affected her capacity to put her case before the Tribunal and implicitly the Tribunal determined not to grant the adjournment.
Even if I am wrong in this regard, it is clear from the regulations that an adjournment would have been futile. Even if one were to adopt the forward looking test as broadly as might be available (see: Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559), the effect of the regulations is that the first applicant would have had to have produced a test score that was satisfactory for a test conducted prior to the application that she lodged in December 2011. She is not able to do that and no amount of time will allow her to change the past.
In these circumstances, the application by the first applicant for remittal of the matter to the Tribunal would, in any event, be futile. I must therefore dismiss the applicant’s application.
The second applicant applies on the basis of being a spouse of the first applicant and therefore his application must fail with hers.
Given the matters that have become apparent in the course of the hearing, in this case, it seems to me to be appropriate to direct that the solicitors for the Minister provide a copy of the judgment and court book to the relevant authority for regulating the educational institutions and the relevant authority for regulating the registration of migration agents. I so direct.
[Further argument ensued]
In this application, the Minister seeks costs. The question of costs is a little more difficult than the usual case. Ordinarily costs would follow the event. However, in this case, arguably the nature of the application form may have misled the applicants with respect to their case. However, as counsel for the Minister properly points out, there was an initial refusal of the decision with written reasons in August 2012 which made plain that the reasons for the refusal were that the first applicant had not satisfied reg.1.15C (see p.52 of the court book).
Thereafter, the applicants did apply to the Migration Review Tribunal and the terms of its decision also make that point plain on the face of the reasons and include a quote of the relevant part of the regulations. It seems to me that, at least by that point, the applicants were given the appropriate information to make a rational decision about whether or not they believed they could satisfy that test and it is obvious that they were unable to do so.
In these circumstances, any conduct by the Department or the Minister with respect to the initial form was certainly clarified, at least to the extent necessary to stop it from being a factor that would, in my view, lead to an exercise of a discretion not to order costs and simply to follow the event.
I therefore make orders for costs in accordance with the costs scale.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 January 2014
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