SARANGAL v Minister for Immigration

[2014] FCCA 2324

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARANGAL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2324

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – skilled (residence) visa application – whether Tribunal erred in its consideration of the “points test” in the Migration Act and Regulations.

Legislation:  

Migration Act 1958 (Cth), ss.93, 350
Migration Regulations 1994 (Cth), reg.1.15

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35

Applicant: JYOTI SARANGAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2904 of 2013

Judgment of: Judge Barnes

Hearing date: 23 September 2014

Delivered at: Sydney

Delivered on: 23 September 2014

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent, including the costs thrown away on the last occasion, fixed in the sum of $5,300.   

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2904 of 2013

JYOTI SARANGAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 17 October 2013.  The Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a Skilled (Residence) (Class VB) visa. 

2. The Applicant, a citizen of India, arrived in Australia in 2007 as the holder of a student visa.  She undertook study in Australia and applied for the Class VB visa by application lodged on 19 July 2012.  The application was refused by the delegate of the First Respondent on 3 May 2013.  The Applicant sought review by the Tribunal.  She attended a Tribunal hearing.  The Tribunal affirmed the delegate’s decision. 

3. Relevantly, the issue before the Tribunal was whether the Applicant had the “qualifying score” assessed under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) (the Act). That subdivision provides for a “points” system under which an applicant is given a prescribed number of points for each relevant prescribed qualification.  The qualifications and available points are prescribed, in this instance, in Schedules 6B and 6C to the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal recorded that if the Applicant did not meet the pass mark in accordance with the points and qualifications in Schedule 6B, her visa history meant that regard could be had to Schedule 6C of the Regulations.

4. The Tribunal acknowledged that it had to consider the points to be awarded for each qualification and whether the total was equal to or more than the applicable “pass mark” set by the Minister from time to time.  It recognised that it had to have regard to the pass mark in force at the time of the delegate’s assessment and also as in force at the time of the Tribunal’s assessment and apply whichever was more favourable to the Applicant (ss.93 and 350 of the Act).  In its reasons for decision the Tribunal considered the various attributes for which the Applicant could be awarded points.  However it concluded that she did not meet the pass marks under Schedule 6B or Schedule 6C at either time.   

5. When this matter was first before the Court for hearing, the Applicant took issue with the Tribunal findings in relation to her English language and educational qualifications.  Relevantly, the Tribunal found that in relation to English language, points were available on the basis of the Applicant’s level of English language proficiency.  It referred to an IELTS test she had undertaken on 29 August 2009 for which she had achieved scores of at least six in each of the four test components.  It recognised that she had also provided the results of an IELTS test that she had undertaken on 7 September 2013 for which she had also achieved scores of at least six in each of the four test components.

6. The Tribunal recorded that at the hearing it had explained to the Applicant that the requirement was that she had to have achieved the relevant score in a test undertaken in the three years immediately before the date of her visa application and hence that it could not have regard to the test she undertook on 7 September 2013 which, in any event, did not achieve a score of at least seven in each of the four test components. 

7. The Tribunal had regard to the provisions of regs.1.15(c) and 1.15(d) in the Regulations. It found that the Applicant did not have proficient English within reg.1.15(d) (which would have entitled her to 25 points), but that she did have competent English within reg.1.15(c) as she had obtained a score of at least six in each of the four test components in an IELTS test undertaken in the three years immediately before the date of application. On that basis it found that under Schedule 6B the Applicant was eligible for 15 points in relation to her English language qualifications.

8. The other aspect of the Tribunal’s findings in relation to points with which the Applicant took issue, was the points allocated for her Australian educational qualifications.  The Tribunal recorded that the Applicant had undertaken a Master of Information Technology at the University of Central Queensland, but that she had not undertaken an undergraduate degree or a doctorate in Australia.  On that basis it found that at the time of the delegate’s assessment she satisfied the Australian study requirement and was entitled to five points under Part 6B(6) of Schedule 6B.

9. Having regard to all of the attributes for which the Applicant was entitled to points, the Tribunal concluded that she was entitled to 110 points under Schedule 6B. 

10. As the pass mark for Schedule 6B was 120 the Tribunal also assessed the Applicant against Schedule 6C, finding that as she had competent but not proficient English she was not entitled to points for English language but that she was entitled to 15 points for her educational qualifications, with a total of 50 points under Schedule 6C.  However the Tribunal found that at the date of the primary assessment the pass mark for Schedule 6C was 65 points. 

11. The Tribunal also considered the regulations in force at the time of the Tribunal’s assessment.  It found that there had not been any change to the relevant regulations and that the points assessment therefore remained unchanged.  The Tribunal concluded that the Applicant had not achieved the qualifying score to pass the points test when assessed against either Schedule 6B or Schedule 6C.  Therefore, it found that the Applicant did not meet an applicable criterion for the grant of the visa for which she had applied (in particular cl.885.221 in relation to Subclass 885 which was the only relevant subclass).  Hence the Tribunal affirmed the decision under review. 

This Application

1. The Applicant sought review by application filed in this Court on 22 November 2013.  In her application she claimed generally that the Tribunal decision was unreasonable.  That claim was not particularised and the Applicant did not file written submissions.

2. As indicated, at the hearing the Applicant took issue (for the first time) with the approach taken by the Tribunal to her English language and Australian educational qualifications.  She claimed that it was her understanding, from advice she had received from an unnamed lawyer who was not acting for her in these proceedings, that she should have been given more points (in particular for her Master’s degree).  She contended that if the points had been calculated correctly she would have obtained the requisite 120 or 65 points.

3. Because of the time at which this issue was raised, the hearing was adjourned to enable the parties to address in more detail the applicable provisions of the Migration Act and Regulations. The solicitors for the First Respondent filed supplementary submissions addressing the matters raised by the Applicant in oral submissions and provided the Court and the Applicant with an extract from applicable regulations.

4. After receipt of this information and having heard the oral and written submissions for the First Respondent, the Applicant indicated that she had nothing further to say and that she had “mixed” two regulations together.

5. Despite this retreat in relation to the issues the Applicant raised, I have considered whether there is any substance in the contention that the Tribunal fell into error in a manner constituting jurisdictional error in the manner it approached the two qualifications in question or more generally. 

6. I note generally that insofar as the Applicant maintained that the Tribunal decision was unreasonable, there is authority (in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ) that unreasonableness may be established in circumstances where a decision “lacks an evident and intelligible justification”.  This concept is not limited to a decision which is irrational, bizarre or so unreasonable that no reasonable decision-maker could have arrived at it.  However there is no basis for a contention of unreasonableness in this case, either generally or on the basis of the specific issues raised by the Applicant at the hearing.  As discussed below, the Tribunal simply applied the applicable criteria.  

7. As to the specific points test issues, there is nothing in the material before the Court to support any contention that the Tribunal erred in the application of the law or in its assessment of the points to be allocated to the Applicant under Schedule 6B or Schedule 6C in a manner constituting jurisdictional error.

8. In relation to the English language qualifications, as indicated, what was in issue was whether the Applicant had competent English under reg.1.15(c) or proficient English under reg.1.15(d) as in force at the relevant time. Each of those provisions refers to the person undertaking a language test specified by the Minister in an instrument in writing for the purpose of the respective paragraphs; to the test being conducted in the three years immediately before the date on which the application was made; and to the person achieving a score specified in the instrument.

9. The applicable instrument at all relevant times was IMMI12/018 which specified scores for the purposes of regs.1.15(c) and 1.15(d) among other provisions. In this case the Applicant’s application was lodged after 1 July 2012. Clause 3 of the instrument applied to applications lodged on and after 1 July 2012. It specified tests, including the IELTS test. Relevantly, for the purposes of reg.1.15(c) (which refers to “competent” English) an IELTS test score of at least six for each of the four test components is specified. For the purposes of reg.1.15(d) which relates to “proficient” English, an IELTS test score of at least seven for each of the four test components is specified. 

10. In this case, as the Tribunal recorded, the IELTS test that the Applicant undertook in the three years prior to her visa application, was such as to meet the requirement of competent English referred to in reg.1.15(c), in that she had achieved a test score of at least six for each of the four test components. However it was not such as to meet the requirements of reg.1.15(d). The Tribunal correctly allocated the Applicant the 15 points available for competent English, not the 25 points she would have attained had she provided IELTS results which showed that she had proficient English.

11. As the Applicant now appears to concede, no error, let alone a jurisdictional error, is apparent in the Tribunal’s approach to this issue. The applicable provisions in regs.1.15(c) and 1.15(d) came into effect on 1 July 2012. The instrument IMMI 12/018 remained in force throughout the relevant period. The applicable Schedules to the Regulations to be applied by the Tribunal at the time of initial assessment and at the time of the Tribunal decision remained in the same form. In fact Schedule 6B was repealed from 1 July 2013 (see Item 27 of Schedule 2 to Migration Amendment Regulation 2012 (No. 2) (SLI No. 82 of 2012) (Cth)), but the provisions that had been applicable prior to the time of repeal were properly applied by the Tribunal in relation to its assessment at the time of decision (see Item 102 of Schedule 13 to the Migration Regulations which was inserted by Item 29 of Schedule 2 to Migration Amendment Regulation 2012 (No. 2)). 

12. In relation to the Applicant’s educational qualifications, the Tribunal had regard to the applicable provisions of Schedules 6B and 6C, which were relevantly the same at the time of each assessment.  There is nothing to suggest that the Tribunal erred in awarding the Applicant points assessed on the basis of her having undertaken a Master’s degree but not having undertaken an additional form of study in Australia such as an undergraduate degree or a doctorate that would have justified the award of more points.

13. It has not been established that the Tribunal erred in its consideration of the points that it allocated for this or for the other qualification for which the Applicant was eligible for points.  Insofar as the Applicant’s complaint about unreasonableness was intended to relate to the Tribunal’s allocation of points, there is no warrant for any finding that the Tribunal decision lacked an evident and intelligible justification.  On the contrary.

14. For the sake of completeness I note that if the Applicant intended to raise a complaint of unreasonableness on the basis that she could have undertaken another English language test, there is nothing to suggest that she sought an adjournment for that purpose (cf. Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1). In any event, the applicable regulations in this case required that the English language test be conducted in the three years immediately before the date on which the visa application was made. Hence, as the Tribunal explained to the Applicant at the Tribunal hearing, there was no opportunity for the Applicant to undertake subsequent tests and to have those taken into account in determining her English language points. No unreasonableness is established on this basis.

15. Finally the Applicant indicated on the last occasion that she had obtained advice from a lawyer to the effect that the Tribunal fell into error (although that lawyer was not acting for her in these proceedings).  There is nothing in this claim to suggest any jurisdictional error on the part of the Tribunal.  The Applicant does not take issue with advice of a migration agent or lawyer who was acting for her at the time the matter was before the Tribunal such as to raise any concern about fraud on the Tribunal as considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35.

16. At its highest, the Applicant appears to be complaining that she was given advice which was contrary to the approach taken by the Tribunal in relation to the assessment of points.  The fact that she was given such advice is not such as to demonstrate jurisdictional error on the part of the Tribunal. 

17. In the absence of any jurisdictional error on the part of the Tribunal, the application must be dismissed. 

18. The Applicant has been unsuccessful.  There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  The amount sought is intended to include the costs thrown away by reason of the adjournment on the last occasion, in circumstances where, because of issues raised by the Applicant at the hearing, there was a necessity for supplementary submissions and a further hearing.  I am satisfied, having regard to the nature of this and other similar matters, that the amount sought by the First Respondent is reasonable and appropriate.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Associate: 

Date:  10 October 2014