SHAIKH v Minister for Immigration

[2014] FCCA 878

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIKH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 878

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal not to grant the Applicant a Skilled (Provisional) (Class VC) visa – Applicant did not meet the requirements of reg.1.15C(a) or (b) of the Migration Regulations 1994 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.31

Migration Regulations 1994 (Cth), regs.1.15C, 2.01, 2.02, Item 1229 of Sch.1, cl.485.215 of Sch.2

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875

Applicant: ZAINUDDIN SHAIKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 633 of 2013

Judgment of: Judge Whelan

Hearing date: 7 April 2014

Date of Last Submission: 7 April 2014

Delivered at: Melbourne

Delivered on: 7 April 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The Application filed 9 May 2013 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 633 of 2013

ZAINUDDIN SHAIKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. I should begin by noting that the Applicant seems to have misunderstood the role of the Court in these proceedings. The Court cannot review the merits of the visa application; the Court can only decide whether the Tribunal made a jurisdictional error. To have made a jurisdictional error, the Tribunal would have had to have misapplied the statutory requirements that it was required to apply in this case.

Introduction

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

   
   

   Migration Review Tribunal (“the Tribunal”) made 10 April 2013.

   
   

   The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Skilled (Provisional) (Class VC) visa (“the visa”).

   
   

   The Applicant seeks an order that that decision of the Tribunal be quashed.

Background

1. The Applicant is a citizen of Pakistan. He applied to the Department of Immigration and Citizenship (“the Department”) for the visa on

   
   

   25 October 2011. In the application for the visa, the Applicant stated that he had obtained a skills assessment from the Australian Institute of Management on 14 September 2011 in respect of his occupation of Human Resources Manager and, in his application to the Court, he points out that he had completed a Masters of Management in Human Resources from Central Queensland University, a course which was conducted entirely in the English language.

2. In addition, the Applicant stated that he had undertaken an

   
   

   International English Language Testing System (“IELTS”) test on

   
   

   13 August 2011, for which he provided a test reference number, and in which he had been assessed as having competent English. On

   
   

   28 June 2012, an officer of the Department sent a letter to the Applicant in which he was requested to provide further evidence in support of his application for the visa.[1] In particular, the Applicant was requested to provide the IELTS test report. On 25 July 2012, the Applicant sent an email to the Department to which he attached various documents in support of his visa application.[2] Among these was a copy of the IELTS test referred to in his visa application.[3] The IELTS test results showed the Applicant had achieved a score of 6 for listening, 5.5 for reading,

   
   

   5.5 for writing and 7 for speaking.

   [1] Court Book filed 14 October 2013, at pp.12-16.

   [2] Ibid, at pp.19-32.

   [3] Ibid, at p.25.

3. On 16 August 2012, a delegate of the Minister refused to grant the visa as the Applicant did not satisfy the competent English criteria. On

   
   

   4 September 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision and the Tribunal sent him a letter in which, amongst other things, it noted that, if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.[4]

   [4] Ibid, at pp.86-87.

4. On 5 April 2013, the Applicant appeared before the Tribunal.

   
   

   The Tribunal requested that the Applicant provide evidence that he satisfied the competent English criteria. The Applicant conceded that he had previously undertaken an IELTS test but did not achieve the requisite score of 6 in all four components of the test.

5. On 10 April 2013, the Tribunal affirmed the decision of the delegate of the Minister not to grant the visa application. The Tribunal identified compliance with the competent English criteria as being the issue.

   
   

   The Tribunal found that the Applicant held a passport of India which is not of a type that is specified by the Minister for the purposes of reg.1.15C(b) of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”) and found that the Applicant, therefore, did not satisfy the competent English criteria as he did not satisfy cl.485.215 of Sch.2 of the Regulations.

6. On 9 May 2013, the Applicant lodged this application for review. In the meantime, the Tribunal had issued a corrigendum to its decision of

   
   

   10 April 2013 in which it sought to replace the word ‘India’ in paragraph 15 of its decision with the word ‘Pakistan’.

Grounds for review

1. The Applicant, in his grounds, stated that:

   1.  Application was unsuccessful because of competent English.

   2.  Given arguments to see my case further for positive response.[5]

   [5] Application filed 9 May 2013, at p.3.

2. As I have previously indicated, the Applicant has pointed out to the Court that he has qualifications from an Australian university and that those qualifications were obtained in a course that was conducted entirely in English. He submits that this indicates that he has competent English.

The First Respondent’s submissions

1. The First Respondent submits that the requirements for competent English are as set out in the Migration Act 1958 (Cth) (“the Act”) and the Regulations, and that the Tribunal was required to act in accordance with those regulations and there was no dispute that the Applicant had failed to produce any English language test results that satisfied reg.1.15C(a) of the Regulations. In addition, the Tribunal found that the Applicant did not meet the requirements of reg.1.15C(b) of the Regulations.

2. With respect to the fact that the Tribunal had issued an original judgment which referred to the Applicant having an Indian passport rather than one from Pakistan, the First Respondent refers to the case law to submit that the Tribunal may correct a slip or error of expression in a decision already made by way of a corrigendum. The First Respondent refers to the judgment of Marshal J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated that:

   Occasionally the RRT, like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited.[6]

   [6] [2001] FCA 1875 at para.48.

3. The First Respondent submits that, in this case, there was no material alteration to the substantial reasons and findings of fact and that the reference to India, rather than Pakistan, was a clerical error only.

Conclusions

1. The difficulty for the Applicant is that the Act and the Regulations set out what the Tribunal must apply in determining whether an applicant has competent English. Regulation 2.01 of the Regulations states that, for the purposes of s.31 of the Act, prescribed classes of visas are such classes as are set out in the respective Items in Sch.1 to the Regulations and the skilled class visa is set out in Item 1229 of Sch.1 to the Regulations.

2. Regulation 2.02 of the Regulations provides that, in respect of each class of visa, there may be one or more subclasses and these subclasses and their respective criteria are set out in Sch.2 to the Regulations.

   
   

   In these proceedings, the relevant criteria for the subcl.485 visa are set out in Part 485 of Sch.2 of the Regulations. Clause 485.215 of Sch.2 of the Regulations requires that the applicant have competent English. The expression ‘competent English’ is further defined in reg.1.15C of the Regulations. If an applicant is applying for a skilled migration visa, the applicant has competent English if he or she satisfies the Minister that they undertook a language test specified by the Minister in an instrument in writing, with such test 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, or satisfies the Minister that he or she holds a passport of a type specified by the Minister in an instrument in writing.

3. At the relevant time, the Minister had specified, for the purposes of reg.1.15C(a)(1) of the Regulations, an IELTS test or an occupational English test, and for the purposes of reg.1.15C(a)(3) of the Regulations, an IELTS score of at least 6 for each of the four test components of speaking, reading, writing and listening. For the purposes of reg.1.15C(b) of the Regulations, the Minister had specified a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.

   
   

   The material before the Tribunal did not establish that, at the relevant time, the Applicant had an IELTS score of at least 6 in each of the four test components of speaking, reading, writing and listening.

4. Further, there was no evidence that the Applicant held a valid passport issued by the United Kingdom, United States of America, Canada,

   
   

   New Zealand or the Republic of Ireland. There was, therefore, no basis for the Tribunal to determine that the Applicant had competent English, or to do other than affirm the decision of the delegate of the Minister not to grant the Applicant the visa.

5. With respect to the error in the decision which referred to the Applicant holding a passport of India rather than Pakistan, it is clear, from the decision, that this was a clerical error rather than one of substance.

   
   

   In any event, it made no difference to the outcome as neither a valid passport issued by India nor Pakistan could meet the criteria for reg.1.15C(b) of the Regulations.

6. For those reasons, the application in this matter must be dismissed.

I certify that the preceding nineteen (14) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 29 April 2014