Sebastian v Minister for Immigration
[2020] FCCA 2331
•24 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEBASTIAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2331 |
| 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: Migration Act 1958 (Cth), s.476 |
| Cases cited: Kaur v Minister for Immigration and Border Protection: (2015) 233 FCR 507; [2015] FCA 584 [41] |
| Applicant: | NIGEL JUDE SEBASTIAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3416 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2020 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms C. Juarez |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3416 of 2019
| NIGEL JUDE SEBASTIAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant, Mr Sebastian, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 December 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Sebastian a Skilled Provisional Class VC Visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 7 August 2020 which I adopt.
Mr Sebastian is a citizen of India. On 8 March 2019, he made an application for a graduate visa.[1] On 14 May 2018, a delegate refused to grant the visa.[2] The delegate found that Mr Sebastian had not provided any evidence to prove he satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).[3]
[1] Court Book (CB) 1
[2] CB 101
[3] CB 103
On 13 August 2019, Mr Sebastian sought review of the delegate's decision before the Tribunal.[4] Mr Sebastian appeared at a hearing before the Tribunal on 26 November 2019 to give evidence and present arguments.[5] On 9 December 2019, the Tribunal affirmed the decision under review.[6]
[4] CB 105
[5] CB 145
[6] CB 155
Tribunal decision
The Tribunal identified that the issue before it was whether Mr Sebastian satisfied clause 485.212. That clause provided:[7]
[7] CB 156 at [7]
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.
The Tribunal identified that the relevant instrument was IMMI 15/062—English Language Tests, Scores and Passports 2015.[8] IMMI 15/062 required that a specified English language test must have been undertaken within the three years before the day on which the application was made.
[8] CB 156 at [8]
The Tribunal noted Mr Sebastian's evidence that he had not undertaken a test within the 36 months prior to the application having been made, and that Mr Sebastian may have mistakenly believed that an ELICOS[9] course he had undertaken met the requirements.[10]
[9] English Language Intensive Courses Overseas
[10] CB 156 at [9]
Further, it noted that while Mr Sebastian had achieved the requisite scores in a PTE test, that test was undertaken on 27 May 2019 which was after the visa application was made.[11] Accordingly, the Tribunal was not satisfied that the application was accompanied by evidence that met clause 485.212(a).[12]
[11] CB 157 at [12]
[12] CB 157 at [13]
The Tribunal accepted that Mr Sebastian misunderstood the requirements and expressed its sympathy, but found it had no power to waive the requirements and no discretion in the matter[13] and affirmed the decision under review.[14]
[13] CB 157 at [14]
[14] CB 157 at [16]
The current proceedings
These proceedings began with a show cause application filed on 23 December 2019. Mr Sebastian continues to rely upon that application. The grounds in it are:
1. The member at the Tribunal did not taken into consideration the PTE examination which I have submitted to the department after I got the request from the department on 07/05/2019 for English examination, which I have subsequently submitted to the department. If I was not meeting the requirements the department should refuse me application at the first instance, however they have sent me the request for the English examination, and I had submitted and department refused the application.
2. The Tribunal even did not look into this matter properly and refused the review application.
The grounds are repeated in an affidavit filed with the application. I received that affidavit as a submission. I have before me as evidence the court book filed on 13 February 2020.
I invited oral submissions from Mr Sebastian this morning. He indicated some frustration in his experience of his visa application. In essence he considers that he has wasted his time and money in circumstances where it would have been better and more humane if the Minister’s Department had rejected his visa application much earlier or, indeed, had suggested to him that he withdraw it and resubmit it with his English language test then made a qualifying test. While I have sympathy with Mr Sebastian’s position, the Tribunal was not able to vary the visa criterion or exercise any other material discretion.
It is apparent that the Minister’s Department realised at an early stage that the 2019 test accompanying Mr Sebastian’s visa application was too late in time. Correspondence from the Minister’s Department dated 6 June 2019, commencing at page 87 of the court book, contained an invitation to Mr Sebastian to submit details of an OET English test taken on 21 April 2016. Mr Sebastian complied with that request but, as explained to me both by him and by the Minister’s solicitor, that was, in effect, a waste of time as that test was not a qualifying test. It appears that the Tribunal may have been on the brink of discussing that aspect of the matter in the last sentence of [9] of its reasons,[15] but in the end result nothing coherent appears in that sentence.
[15] CB 156
Notwithstanding that omission and the frustration felt by Mr Sebastian, he is unable to articulate an arguable case of jurisdictional error by the Tribunal. In short, the Tribunal took the only course that was available to it. The Minister’s submissions deal with the relevant legal issues. I agree with those submissions and adopt them.
Ground one
Ground 1 contends that the Tribunal failed to take the PTE exam into consideration, and that the Minister’s Department should have refused his application without requesting evidence of his English competency if he did not meet the requirements.
This ground is misconceived. The Tribunal had express regard to Mr Sebastian's PTE examination.[16] However, the Tribunal found that this examination was not evidence of competent English because it was not undertaken within three years before the date on which the visa application was made.[17]
[16] CB 156–157 at [10]–[12]
[17] CB 157 at [12]
The Tribunal was correct to identify that the relevant instrument for the purpose of clause 485.212 was IMMI 15/062. As noted at [5] above, IMMI 15/062 required that a specified language test “must have been undertaken within the three years before the day on which the application was made”. The Federal Court of Australia has recognised that the operation of this visa criterion is both inflexible and unambiguous.[18]
[18] see, for example, Kumar v Minister for Immigration [2018] FCA 140 at [24] per Robertson J; Thlork v Minister for Immigration [2019] FCA 333 at [12] per Bromwich J (Thlork)
As Mortimer J observed in Kaur v Minister for Immigration and Border Protection:[19]
I accept the Minister’s submissions that the text of reg 1.15C leaves no room for the approach adopted by the High Court in Berenguel. The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.
[19] (2015) 233 FCR 507; [2015] FCA 584 at 515 [41]
It has been accepted that there is no material difference between the language of regulation 1.15C and the language of IMMI 15/062.[20]
[20] Thlork at [10(3)] per Bromwich J
Unfortunately for Mr Sebastian, the historical facts set out in clause 485.212 and IMMI 15/062 did not exist in his matter. There is no evidence that he undertook a specified test in the three year period “immediately before” his visa application. The PTE examination undertaken on 27 May 2019 was taken over 2 months after the visa application was made on 8 March 2019. Accordingly, this examination did not meet the strict mandatory temporal requirements of subparagraph 485.212(a)(ii) and IMMI 15/062. Accordingly, the Tribunal was correct to find that Mr Sebastian did not satisfy the requirements of paragraph 485.212(a) of Schedule 2 to the Migration Regulations.
To the extent that Mr Sebastian contends that the delegate should have refused his application without requesting evidence of competent English, the Court has no jurisdiction to review the delegate's decision.[21]
[21] s.476(2)(a) of the Migration Act
Ground two
Ground two contends that the Tribunal did not look into the application properly. This ground is merely an expression of Mr Sebastian's disagreement with the outcome of the Tribunal's review and seeks impermissible merits review of the Tribunal's decision. The Tribunal plainly considered Mr Sebastian's application and evidence and made findings that were open to it on the material before it.
I conclude that Mr Sebastian is unable to establish an arguable case of jurisdictional error by the Tribunal.
I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court scale. Mr Sebastian claims impecuniosity. While that claim is probably true and gains some poignancy in the current economic conditions facing persons such as him, the issue for me is not his capacity to pay but whether the costs have been reasonably and properly incurred. I believe they have been.
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 $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 August 2020
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