Shubha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1106
•21 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Shubha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1106
File number(s): SYG 2487 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 21 May 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled residence visa – applicant not able to satisfy English language proficiency criterion. Legislation: Migration Regulations 1994 (Cth) Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Farook v Minister for Immigration and Border Protection [2014] FCA 1017
Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Number of paragraphs: 30 Date of hearing: 21 May 2021 Place: Sydney The First Applicant appeared in person Solicitors for the Respondents: Ms J Strugnell of Minter Ellison ORDERS
SYG 2487 of 2017 BETWEEN: MEHEDI HASAN SHUBHA
First Applicant
NOWRIN ZABIN TRESHA
Second Applicant
TAZRIAN HASAN ARIQ
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
21 MAY 2021
THE COURT ORDERS THAT:
1.The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The fourth applicant is removed as an applicant to the proceedings.
3.The amended application filed on 31 August 2017 is dismissed.
4.The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,600.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 July 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants a Skilled (Residence) visa.
The principal applicant is Mr Mehedi Hasan Shubha, who I will refer to in these reasons as "Mr Shubha". The second and third applicants before the Tribunal were Mr Shubha's wife and child. Another child was born in 2017, after the Tribunal decision, and was added to the application as a fourth applicant.
As was pointed out by the Minister's solicitor, the fourth applicant has no standing before the Court, as he was not a party before the Tribunal, and I removed the fourth applicant as a party.
Background facts relating to this matter are otherwise set out in the Minister's outline of submissions filed on 14 May 2021, which I adopt.
BACKGROUND
The applicants are citizens of Bangladesh. On 9 November 2011, Mr Shubha applied for a Skilled (Residence) (Class VB) visa[1]. The second applicant was included in this application as a member of the family unit. The third applicant was added to the application as a member of the family unit after his birth, in 2014. The fourth applicant is a newborn child who was added to this proceeding by way of amended application.
[1] Court Book (CB) 1–26
On 23 December 2015, the delegate refused to grant the visas because Mr Shubha had not provided evidence of Competent English (as defined by regulation 1.15C of the Migration Regulations 1994 (Cth) (Regulations))[2].
[2] CB 133–139
The applicants sought review of the delegate's decision before the Tribunal by application dated 8 April 2016[3].
[3] CB 146–148
Mr Shubha appeared at a hearing before the Tribunal on 20 April 2017 (the second and third applicants were invited but did not attend)[4].
[4] CB 173–176
The Tribunal made its decision on 3 July 2017, affirming the decision not to grant the applicants Skilled (Residence) (Class VB) visas[5].
[5] CB 182–184
Tribunal decision
The Tribunal identified that the issue before it was whether Mr Shubha had competent English as required by clause 866.213[6]. Regulation 1.15C provided that a person has “competent English” if the person:
(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.
[6] at [6]
The Tribunal identified that the relevant instrument was IMMI 15/005, but noted it appeared there was a mismatch between item 2 of IMMI 15/005 and the Regulations that actually applied to applications made before 1 July 2012. However, the Tribunal found that the incorrect references to the definitions should be taken to be references to the relevant version of those provisions[7].
[7] Farook v Minister for Immigration and Border Protection [2014] FCA 1017
The Tribunal found that Mr Shubha did not meet regulation 1.15C(b) because there was no evidence he had a passport of the type specified[8]. As a result, it found that Mr Shubha needed to meet regulation 1.15C(a) by achieving an International English Language Testing System (IELTS) test core of at least 6 in each of the four test components of speaking, reading, writing and listening[9].
[8] at [8]
[9] at [8]
The Tribunal noted that it discussed the requirements of clause 886.213 and regulation 1.15C with the applicant at hearing, and the applicant acknowledged that he did not have evidence of competent English[10]. Further, the applicant gave evidence that he had undertaken an IELTS test on 23 July 2009 but had scored only 5 for listening, 5.5 for reading, 5.5 for writing and 5.5 for speaking[11]. He further stated that he had been misled by his migration agent and had thought his 2009 results were sufficient[12].
[10] at [10]
[11] at [10]
[12] at [11]
On the evidence before it, the Tribunal was not satisfied that Mr Shubha had competent English as defined in regulation 1.15C(a)[13] and accordingly that he did not satisfy clause 886.213[14].
[13] at [12]
[14] at [13]
CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 4 August 2017. The applicants rely upon an amendment application filed on 31 August 2017. There are three grounds in that application (errors in original):
1.I was misleading by the migration agent
2.I have three different result with the same qualification
3.I do not this is a fair judgment to me and my family.
The applicants rely upon a short affidavit filed with the original application, which I received. I also have before me as evidence the court book filed on 21 September 2017, and an instrument titled IMMI 15/005, which I marked as exhibit “R1”, and which appears to have been the applicable language test score and passports instrument in force at the time of the Tribunal decision.
Only the Minister filed pre-hearing written submissions in this case. I invited oral submissions from Mr Shubha. He pointed out that he is a self-represented litigant and that he cannot afford a lawyer. He noted that he had applied for permanent residency, but received poor advice from his migration agent concerning the English language proficiency that he was required to demonstrate. Essentially, he did not know that he had to provide evidence of passing a test at level 6.
Mr Shubha had two proceedings before the Tribunal, and in the present case he requested the Tribunal to adjourn, pending the outcome of the other case. The Tribunal records[15] that it did this and the other matter was decided, apparently against Mr Shubha and his family, prior to the present Tribunal's decision.
[15] at [11], CB 184
Mr Shubha told me that he and his family have lived in Australia for an extended period of time and two children have been born here. The first child was born in 2013 and the second, as I have already observed, was born in 2017. Mr Shubha is working as a security officer in the hotel quarantine system, which is a significant contribution to biosecurity during the present COVID-19 pandemic.
Mr Shubha desires to remain in Australia permanently with his family. It would be open to the Minister to consider his circumstances. That is beyond the scope of this proceeding.
In terms of the legal issues, the application by Mr Shubha is unfortunately doomed to fail. While he was apparently poorly advised by his migration agent, there is nothing to indicate any agent fraud which might impact on the validity of the Tribunal decision. This is a simple case of Mr Shubha not understanding the visa requirements and suffering the consequences when decisions were made by the delegate and by the Tribunal.
I agree with the Minister's submissions concerning the grounds of review advanced.
Ground 1
The first ground contends Mr Shubha was misled by his migration agent.
To the extent this ground makes an allegation of migration agent fraud, it is well established that allegations of fraud, including migration agent fraud, are serious allegations that must be distinctly pleaded and proved[16]. Due to the seriousness of the an allegation of fraud, the Court must be satisfied that fraudulent conduct has been proved to the level of satisfaction required by Briginshaw v Briginshaw[17] at 363 and 368[18].
[16] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [15]
[17] (1938) 60 CLR 336
[18] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [33] per Tamberlin, Finn and Dowsett JJ
In this case, Mr Shubha has not asserted that his agent committed fraud. In any event, it is difficult to see how the agent's conduct could ever arise to the level of a “fraud “on” the Tribunal”[19], given that no agent acted for the applicants at any stage on the Tribunal review. Further, the Tribunal had regard to Mr Shubha 's explanation[20]. The Tribunal, however, was not satisfied Mr Shubha had evidence that he obtained an IELTS test score of at least 6 in each component in a test conducted in the two years immediately before the visa application[21]. This finding was open to the Tribunal on the evidence before it.
[19] SZFDE at [51]
[20] at [11]
[21] at [12]
Grounds 2 and 3
Ground 2 contends “I have three different results with the same qualification”. Ground 3 contends that the Tribunal's decision is not fair to the applicant or his family.
These grounds do not allege legal error on the part of the Tribunal. Moreover, it is unclear what Mr Shubha means by these grounds. In the absence of particulars to make them meaningful, these grounds will be dismissed.
Other issues
The Minister submits and I accept that the Tribunal's finding at [6] was open to it for the reasons that it gave. In particular, it was open to the Tribunal to find that the incorrect references should be taken to references to the correct provisions[22].
[22] Farook at [24]
CONCLUSION
I conclude that the applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,600. Mr Shubha referred to difficult financial circumstances, but indicated that he would do his best to attempt to meet the costs order. I order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,600.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 28 May 2021
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