Singh & Ors v Minister for Immigration & Anor
[2013] FCCA 1439
•23 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1439 |
| Catchwords: MIGRATION – Judicial review – skilled visa –English language test – competency requirement – time frame within which to produce English language test results. |
| Legislation: Migration Amendment Regulations 2011 (No.3) (Cth), Explanatory Statement |
| Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8 Mallik v Minister for Immigration & Anor [2013] FCCA 1134 Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379; [2009] FCAFC 98 SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189; [2007] HCA 35 SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 |
| First Applicant: Second Applicant: Third Applicant: | SANDEEP SINGH GURVIR KAUR NISHAAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 55 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 23 September 2013 |
| Date of Last Submission: | 23 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 23 September 2013 |
REPRESENTATION
| For the Applicant: | Mr S Singh |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration & Border Protection”.
That the application be dismissed.
That the first and second applicants pay and be jointly and severally liable for the first respondent’s costs in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
ADG 55 of 2013
| SANDEEP SINGH |
First Applicant
GURVIR KAUR
Second Applicant
NISHAAN SINGH
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
The visa application
The first applicant, a citizen of India, lodged an application for a Skilled (Provisional) (Class VC) visa on 19 October 2011.[1] The second and third applicants (his wife and son) applied for visas as members of the first applicant’s family unit.
[1] Court Book (“CB”) 1-26.
A Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily to obtain skills and qualifications required for permanent General Skilled Migration visas.
Delegate’s decision
On 7 November 2012, a delegate of the first respondent, the Minister, refused to grant the first applicant a subclass 485 visa.[2] The Delegate found that the first applicant did not satisfy cl.485.215 of Schedule 2 of the Migration Regulations1994 (Cth),[3] which required the first applicant to have “competent English” as defined in reg. 1.15C of the Migration Regulations. Because the first applicant did not achieve a score of at least 6 for the test component of “Writing” in the test results he had provided, the Delegate found that he did not satisfy reg.1.15C(a)(iii) of the Migration Regulations.[4] The first applicant was, therefore, refused a visa, as were the second and third applicants.[5]
[2] “Delegate” and “Delegate’s Decision”.
[3] “Migration Regulations”; CB 68-72.
[4] CB 70.
[5] CB 72.
The Tribunal proceedings
On 9 November 2012, the applicant lodged an application for review with the Migration Review Tribunal[6] to review the Delegate’s Decision.[7]
[6] “Tribunal”.
[7] CB 73-83.
The applicant attended the Tribunal hearing on 13 February 2013.[8] At the hearing, the applicant confirmed that he had not achieved a score of 6 in each component of any IELTS test he had undertaken.
[8] CB 92-94 and CB 98 at paras.15-20.
The applicant confirmed that he could not provide any evidence of having achieved the required scores in an IELTS test undertaken in the two years immediately prior to lodging the visa application.[9]
[9] CB 98 at para.18.
The Tribunal decision
The Tribunal considered the results of an IELTS test undertaken by the first applicant on 5 March 2011, and found that the first applicant had achieved a score of 6 in three of the four test components.[10] The Tribunal therefore found that the applicant had not met the requirement of “competent English” as defined in reg.1.15C of the Migration Regulations,[11] as amended on 1 July 2011, and therefore failed to satisfy cl.485.215 of the Migration Regulations.[12]
[10] CB 98 at para.14 and 99 at para.23.
[11] CB 99 at para.23.
[12] CB 97-98 at paras.7-9.
Because “competent English” thus defined was a prescribed criterion for the grant of the visa,[13] the Tribunal therefore affirmed the Delegate’s Decision not to grant the applicants visas.[14]
[13] CB 99 at para.24.
[14] CB 99 at para.26 (“Tribunal Decision”).
Application for judicial review
By an application filed on 14 March 2013, the applicants apply to this Court for judicial review of the Tribunal Decision, which was dated 13 February 2013.
The application for judicial review filed on 14 March 2013 simply states “IELTS report now available with the required score”. At hearing today the first applicant raised, for the first time, a submission that he had been misled or misguided by his migration agent into believing that he could make the application for a visa.
Consideration
The Migration Amendment Regulations 2011 (No. 3) (Cth)[15] inserted into the Migration Regulations a new reg.1.15C applying 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 said:
[15] “Migration Amendment Regulations”.
(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 subregulation.
The purpose of the amendment was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application,[16] and followed judgments in which it was held that the previous version of reg.1.15C of the Migration Regulations allowed for a test to be taken after a visa application had been lodged.[17]
[16] Migration Amendment Regulations, Explanatory Statement.
[17] See Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8; Minister for Immigration & Citizenship v Kamal (2009) 178 FCR 379; [2009] FCAFC 98.
The first applicant’s affidavit affirmed on 12 March 2013 annexes a copy of an IELTS test report form for a test undertaken on 23 February 2013, in which the first applicant achieved a score of six in all four of the test components. As this test was undertaken by the applicant after the Tribunal Decision dated 13 February 2013, it could not have been before the Tribunal at the time of the Tribunal Decision. It therefore cannot establish jurisdictional error on the part of the Tribunal. Further, reg.1.15C of the Migration Regulations as it applies in this case, makes it clear that the IELTS test result must have been achieved in a test taken “in the 2 years immediately before the day on which the application was made”. Only a test undertaken prior to 19 October 2011 could have been relied upon by the applicant to establish that he had “competent English”. The IELTS test of 23 February 2013 is therefore irrelevant for the purposes of this judicial review application and cannot be used to establish jurisdictional error.
As to whether or not the first applicant was misled or misguided by his migration agent, there was no evidence of this matter, raised today for the first time. Even so, nothing in what was said could possibly raise a case of jurisdictional error by reason of migration agent fraud, there being, in fact, no allegation of fraud by the migration agent, but rather merely a mistaken belief on the part of the first applicant arising from misinformation, and no basis for suggesting that the Tribunal Decision, or the Tribunal’s decision-making, had been subverted in any way.[18]
[18] SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980; SZFDE & Ors v Minister for Immigration & Citizenship & Anor (2007) 232 CLR 189 at 207 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; [2007] HCA 35 at para.53 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Mallik v Minister for Immigration & Anor [2013] FCCA 1134 at para.23 per Judge Lucev.
In all the circumstances, it is appropriate to order that the application be dismissed.
Conclusion and orders
The Court has concluded:
a)that the name of the first respondent be amended to: “Minister for Immigration & Border Protection”; and
b)that the application is to be dismissed.
The first and second applicants are to pay and be jointly and severally liable for the costs of the first respondent in the sum of $5,400.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 23 September 2013
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