SHAFI v Minister for Immigration
[2014] FCCA 577
•26 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAFI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 577 |
| Catchwords: MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – English language test – competency requirement – time frame within which to produce English language test results. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.65, 474, 476 Migration Amendment Regulations 2011 (No 3) (Cth), Explanatory Statement |
| Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8 Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 Minister for Immigration & Citizenship v Kamal & Anor (2009) 178 FCR 379; [2009] FCAFC 98 Sandhu & Anor v Minister for Immigration & Anor [2013] FCCA 2285 |
| Applicant: | MUBASHAR SHAFI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 176 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 March 2014 |
| Date of Last Submission: | 26 March 2014 |
| Delivered at: | Perth |
| Delivered on: | 26 March 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr B Dube |
| Solicitors for the First Respondent: | Sparke Helmore |
| For the Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Border Protection”.
The application be dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs in the sum of $3326 by 30 June 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 176 of 2013
| MUBASHAR SHAFI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
Introduction
By an application filed on 22 July 2013, the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal, (“Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 57-60) made on 16 June 2013. The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 23-26) of the first respondent, the then Minister for Immigration & Citizenship, (“Minister”, now the Minister for Immigration & Border Protection) dated 29 November 2012, to refuse to grant a Skilled (Provisional) (Class VC) visa (“Visa”) to the applicant.
Applicant’s claims
The applicant is a citizen of Pakistan.
On 25 June 2012 the applicant lodged an application for the Visa (CB 1-10). In his application form, the applicant indicated that he had not undertaken an English language test in the previous 24 months (CB 9).
Proceedings before the Delegate
The Delegate’s Decision refused to grant the applicant the Visa because the Delegate considered that the applicant did not satisfy cl.485.215 of Sch.2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”; CB 23-26). The Delegate determined that the applicant did not have “competent English” as defined by reg.1.15C of the Migration Regulations (CB 25).
Tribunal proceedings
On 6 December 2012 the applicant lodged an application for review to the Tribunal (CB 27-37). By letter dated 7 May 2013, the applicant was invited to attend a hearing via telephone scheduled for 14 June 2013 to give evidence and present arguments relating to the issues under review (CB 41-43).
The 7 May 2013 letter also relevantly provided as follows:
…
The tribunal will only change this hearing date for good reason. Please contact the tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the tribunal may make a decision without taking any further action to allow or enable you to appear before it.
Your application for a subclass 485 (Skilled – Graduate) visa was made on or after 1 July 2011. Your visa application was refused by the officer of DIAC because the officer was not satisfied that you have competent English.
For visa applications made on or after 1 July 2011 and before 1 July 2012, the definition of competent English provides that to show competent English, you must hold a passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issued to a citizen of that country or have achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made. The specified English language tests and scores are: an International English Language Testing System (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least ‘B’ in each of the four components.
If you have evidence of competent English, please provide it to the tribunal as soon as possible prior to the hearing but no later than the hearing date. If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time.
…
CB 42-43).
The applicant sought an adjournment of the Tribunal hearing on medical grounds (CB 45). Having reviewed medical records provided by the applicant (CB 50-52), the Tribunal refused the application for an adjournment on the basis that a medical certificate provided did not indicate unfitness to attend a Tribunal hearing via telephone, and determined that the hearing would proceed (CB 53). The applicant attended the hearing by telephone on 14 June 2013 (CB 54-55).
At the Tribunal hearing on 14 June 2013 the applicant conceded that he had not achieved a score of at least 6 in each of the 4 test components in an International English Language Test System (“IELTS”) test undertaken in the 2 years immediately before the day on which the application was made, and that he had never sat an Occupational English Test (CB 59 at para.10).
Tribunal Decision
The Tribunal identified that the relevant issue was whether the applicant had competent English as required by cl.485.215 of Sch.2 of the Migration Regulations, and as defined in reg.1.15C of the Migration Regulations (CB 58 at para.6).
The Tribunal noted that reg.1.15C of the Migration Regulations, read in conjunction with the relevant legislative instrument, IMMI 11/036, provided that a person demonstrates competent English if that person satisfies the Minister that:
a)the person undertook a specified language test conducted in the 2 years immediately before the day on which the application was made and achieved a specified score with the specified languages tests and scores being:
i)a test score of at least 6 for each of the 4 components of speaking, reading, writing and listening in an IELTS test; or
ii)a test score of at least ‘B’ for each of the 4 test components in an OET (CB 59 at paras.7 and 9); or
b)holds a specified passport, namely, a passport from the UK, USA, Canada, New Zealand or the Republic of Ireland (CB 58 at para.8).
In relation to the requirement that the applicant have competent English, the Tribunal summarised the applicant’s evidence, or lack thereof, as follows:
The applicant has not provided evidence to the Tribunal that he has competent English by way of satisfactory IELTS or OET scores or that he holds a passport of the specified countries. The visa application informs that he holds a passport from Pakistan. At the hearing he confirmed that he holds a passport only from Pakistan and that he does not have satisfactory IELTS result and that he never sat the OET. He sat the IELTS test once in May 2013 and once in October 2010. In both the tests he failed to achieve scores of at least 6 in each of the 4 test components. Although the test that he sat in October 2010 falls within the 2 year required period the result is unsatisfactory. The applicant expressed at the hearing that he understood that on the basis of the evidence before it, the Tribunal must affirm the decision under review.
(CB 59 at para.10)
The Tribunal found that the applicant did not have competent English, and therefore did not satisfy reg.1.15C(a) of the Migration Regulations, and could not satisfy cl.485.215 of Sch.2 of the Migration Regulations for the grant of the Visa, and that that was the only applicable visa subclass in the applicant’s circumstances (CB 59 at paras.11 and 12).
Application for judicial review by this Court
The applicant filed an application for judicial review in this Court on 22 July 2013.
The grounds of review in the application are as follows:
1.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral evidence in relation to my evidence of Competent English issue as per clause 485.215 and 1.15C of the Migration Regulations 1994.
2.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my IELTS Score. If I would be given the opportunity to explain that could have led to a different decision by the tribunal.
3.The tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.
Together with his application the applicant filed an affidavit affirmed 19 July 2013 (“Applicant’s Affidavit”). Although a mix of fact and submission, the Applicant’s Affidavit relevantly says as follows:
3.I first arrived in Australia on 22 February 2010
4.After that I applied for Skilled (Provisional) Class VC, Subclass 485 Visa on 25 June 2012.
5.I received the refusal letter of my visa application from the immigration on 29 November 2012. DIAC refused my visa application without giving me an opportunity to submit my IELTS Score.
6.I lodged my review application on Migration Review Tribunal and appeared before Tribunal on 14 June 2013 to give evidence and present argument
7.My Review application with Migration Review Tribunal refused on 16 June 2013
8.The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal’s authority
9.I apply this matter to the Honourable Courts to take into the consideration the errors made by the Migration Review Tribunal
10.I am entitled for a Subclass 485 Visa, Which I have applied after completing my course of study.
Orders were made on 21 August 2013 permitting the applicant to file and serve an amended application or any affidavit evidence by 23 October 2013, and legal submissions 14 days before the hearing listed for today. The applicant filed no amended application, no affidavit and no submissions, pursuant to those orders.
Even though the applicant did not file or serve an amended application or any affidavit evidence, or any legal submissions, pursuant to the 21 August 2013 orders, the Court considered it appropriate to treat paragraph 8 of the Applicant’s Affidavit as a further ground of review, namely, that the Tribunal Decision was not a good faith exercise of the Tribunal’s jurisdiction.
At hearing the applicant made submission in which he indicated that:
a)he had not passed an IELTS test with the requisite scores within the period of 2 years prior to making the Visa application;
b)all that he sought from the Tribunal was an opportunity to sit and pass an IELTS test in the future, and he indicated that he sought and was not given an explanation by the Tribunal as to why he could not be given an opportunity to sit the IELTS test in the future in order to pass it and seek to qualify for the Visa; and
c)he did not intend persisting with the allegations of bias, apprehended bias and want of good faith by the Tribunal, and confirmed that these grounds of review were abandoned.
It follows that ground 3 as filed, and the fourth ground identified by the Court, and referred to above, were abandoned by the applicant at hearing and therefore need not be addressed by the Court.
Consideration
The Visa requirements
Section 65 of the Migration Act requires that a decision-maker be satisfied that the criteria for the visa being applied for have been satisfied before granting that visa. If the decision-maker is not so satisfied then the visa must be refused. Section 65 does not confer a discretion as to the exercise of that power.
The Migration Amendment Regulations 2011 (No 3) (Cth) inserted a new reg.1.15C into the Migration Regulations which applies to all visa applications lodged on or after 1 July 2011 and before 1 July 2012. The new reg.1.15C of the Migration Regulations relevantly provides that:
(a) A person has competent English if:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; 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.
(b) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this sub-regulation.
Previously reg.1.15C of the Migration Regulations allowed for an English language test to be taken after a visa application had been lodged (see: Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8; Minister for Immigration & Citizenship v Kamal & Anor (2009) 178 FCR 379; [2009] FCAFC 98). This is no longer the case. The purpose of the new reg.1.15C of the Migration Regulations was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application, being at a time 2 years immediately before the day on which the visa application was made (Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) (Cth): Singh v Minister for Immigration & Border Protection [2014] FCA 185 at para.12 per Barker J, approving what was said by this Court in Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 at para.12 per Judge Lucev).
The Visa is a subclass 485 visa. The relevant criteria for a subclass 485 visa are set out in the Migration Regulations. At the relevant time, cl.485.215 of sch.2 of the Migration Regulations, read in conjunction with the relevant legislative instrument, IMMI 11/036, provided as mandatory criteria to be met at the time of application for the Visa that the applicant have competent English, defined as set out in paragraph 9 above.
Grounds for review
The two remaining grounds of review are dealt with hereunder.
Before examining each of the remaining two grounds of review, it is appropriate to note that:
a)in relation to the Delegate’s Decision, that the applicant did not have “competent English” as defined by reg.1.15C of the Migration Regulations, and did not provide evidence of having undertaken an English test within the 24 months preceding the lodgement of the Visa application (CB 24-25);
b)in relation to the Tribunal Decision, the applicant did not provide evidence to the Tribunal that he had competent English by way of a satisfactory IELTS or OET score (CB 59 at para.10); and
c)notwithstanding the Delegate’s Decision and the Tribunal Decision, when afforded the opportunity to file an affidavit in these proceedings, in circumstances where it was alleged that the Tribunal did not give the applicant an opportunity to submit his IELTS score (ground 2), no affidavit evidence in relation to the alleged failure to afford that opportunity, and no affidavit evidence as to the applicant’s IELTS score, have been filed with this Court. At hearing, the applicant conceded that he had not passed an IELTS test within 2 years of making the Visa application.
Ground 1
As outlined in paragraph 11 above, the applicant gave oral evidence to the Tribunal that he had not achieved the requisite score in an IELTS test conducted in October 2010, which was the only IELTS test conducted within the 2 years prior to the applicant making his Visa application. An opportunity to undertake a further IELTS test would not have assisted him in meeting the Visa requirements, as the score needed to be achieved in a test taken within the 2 years prior to the Visa application being lodged (Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 at paras.16-18 per Judge Hartnett; Sandhu & Anor v Minister for Immigration & Anor [2013] FCCA 2285 at paras.4, 15 and 16 per Judge Riethmuller). A further IELTS test conducted in May 2013 is irrelevant because it is not a test conducted in the 2 years immediately before the day on which the Visa application was made (Migration Regulations, reg.1.15C(a)(ii)), and even if there was evidence that the applicant had successfully passed that IELTS test in May 2013, which he did not according to his evidence, it was not a matter which the Tribunal was able to take into account.
The Tribunal did take into account the oral evidence given by the applicant, contrary to what is alleged in ground 1. That evidence did not establish that the applicant had successfully completed either an IELTS test, or and OET test, or that he had a passport from a requisite country (being UK, USA, Canada, New Zealand or Republic of Ireland). The Tribunal in taking into account that evidence acted within its jurisdiction to determine the Visa application, and made no factual or legal error in determining, on the basis of the evidence before it, that the applicant did not satisfy the criteria for the grant of the Visa.
Ground 1 is not made out.
Ground 2
By way of the 7 May 2013 letter the Tribunal invited the applicant to the Tribunal hearing to address issues relevant to the review, namely, whether the applicant had evidence of “competent English”. The 7 May 2013 letter requested that the applicant provide evidence of “competent English” prior to the hearing. The applicant did not produce that evidence, and conceded at the Tribunal hearing that it did not exist.
The 7 May 2013 letter makes plain what is required. There is no evidence that the applicant was able to submit an IELTS score meeting the requirements of the score specified, namely a score of at least 6 in each of the 4 test components in speaking, reading, writing and listening, at any time within a period of 2 years before the applicant made the Visa application. In the absence of such evidence, this ground cannot be made out.
There is no denial of procedural fairness as alleged in the Tribunal denying the applicant the opportunity to submit an IELTS score which did not go to satisfy one of the criteria for the Visa. The Tribunal was under no obligation to accept evidence of IELTS scores for any time outside of the period of 2 years immediately before the Visa application was made. Further, the Tribunal was under no obligation to consider such information even if it was put before the Tribunal, and to do so, would itself have been a jurisdictional error because the Tribunal would have, in those circumstances, had regard to an irrelevant consideration. The Tribunal was also under no obligation to allow the applicant to sit a further IELTS test, or to explain why he could not do so, in circumstances where the applicant did not meet the Visa criteria of having a satisfactory IELTS test score within a period of 2 years before he made the Visa application.
Ground 2 is not made out.
Grounds – conclusion
The grounds of review disclose no jurisdictional error in the Tribunal Decision. The Tribunal Decision is, therefore, a privative clause decision within the meaning of s.474 of the Migration Act, and not susceptible to judicial review by this Court.
Conclusions and orders
The Court has concluded that the Tribunal Decision was not affected by jurisdictional error, and was therefore a privative clause decision not susceptible to judicial review by this Court. It follows that there must be an order dismissing the application. As this was a show cause hearing the dismissal is under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
There will also be an order amending the name of the Minister to “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 March 2014
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