Singh v MIBP
[2015] FCCA 1533
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1533 |
| Catchwords: MIGRATION – Skilled Independent (Class VB, subclass 885) visa – whether applicant had competent English for the purposes of cl.885.213 of the Migration Regulations 1994 (Cth) – where applicant’s last IELTS was undertaken more than 2 years prior to application for visa – where cl.885.213 not met – no jurisdictional error – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.474(2), 476 Migration Regulations 1994 (Cth), cll.885.213, 885.221, reg.1.15C, 1.15C(a) |
| Govind v Minister for Immigration & Border Protection [2014] FCA 864 Sandhu v Minister for Immigration, Multiculturalism & Citizenship [2014] FCA 486 Singh v Minister for Immigration & Border Protection [2014] FCA 185 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 947 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 March 2015 |
| Date of Last Submission: | 3 March 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 23 January, 2015 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 947 of 2014
| GAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse the applicant’s application for a Skilled Independent (Class VB, subclass 885) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
On 23 January, 2015 the applicant filed an amended application. At the commencement of the hearing before me, he handed up written submissions in support of his amended application. The first respondent had delivered, in accordance with the directions previously made by the Court, written submissions in opposition to the application.
Background
The applicant is a citizen of India. He first arrived in Australia in July, 2007 on a Student (Subclass 573) visa. On 3 August, 2009 he applied for a Subclass 485 (Skilled Graduate) visa which was granted on 16 April, 2010.
On 7 October, 2011 he applied for a Skilled Independent (Class VB subclass 885) visa. That is the visa application that has led to the present application.
On 21 February, 2014 a delegate of the first respondent considered the applicant’s visa application and rejected it. The delegate determined that the applicant failed to satisfy a required criterion so that the visa could be granted. To obtain a subclass 885 visa, the applicant needed to satisfy the visa criteria that was set out in clause 885 of Schedule 2 of the Migration Regulations1994 (Cth). Two of the criteria which needed to be met were that:
a)at the time of the application for the visa, the applicant had “competent English” (cl.885.213); and
b)at the time of the decision on the visa application, the applicant had achieved a “qualifying score” when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Migration Act (cl.885.221).
To determine whether the applicant met the qualifying score criterion, the decision maker was required to allocate points to certain attributes or accomplishments connected with an applicant (such as an applicant’s occupation, age, English language qualifications and studies). If the applicant, cumulatively, achieved over 120 points the applicant satisfied the qualifying score criterion.
The first respondent’s delegate determined that the applicant only achieved 95 points in relation to the qualifying score criterion and therefore, did not satisfy that criterion. His application was refused by the first respondent’s delegate on that basis.
On 12 March, 2014 the applicant lodged an application with a migration review tribunal seeking to review the delegate’s decision. The applicant provided further evidence to the tribunal. On 2 May, 2014, the tribunal determined the matter in the applicant’s favour. It found that the applicant had achieved the 120 points required to meet the qualifying score criterion. The tribunal ordered that the matter be remitted for determination on whether the remaining visa criteria, other than the qualifying score criterion, had been met.
On 5 June, 2014 a second delegate rejected the applicant’s visa application on the basis that no evidence had been provided by him to show that he had undertaken any form of English language testing. To satisfy the relevant language criterion he needed to demonstrate that he had achieved certain scores in an English language test which had been undertaken in the 2 years immediately before the day on which the application for the visa was made.
On 23 June, 2014 the applicant applied to a migration review tribunal for a review of that decision. For the purposes of that tribunal’s decision, reg.1.15C of the Migration Regulations set out the requirements necessary to demonstrate that a visa applicant had “competent English”. That regulation could only be satisfied if the applicant either:
a)held a UK, US, Canada, New Zealand or Irish passport; or
b)had obtained scores of at least a 6.0 in all four testing components of the International English Language Testing System (IELTS) test which had been conducted in the 2 years prior to the visa application being lodged.
The applicant did not hold a passport of the type specified in the regulation. As to the English language testing, the applicant’s visa application was made on 7 October, 2011 and the last IELTS test that he had sat prior to lodging his visa application was on 23 July, 2009. He received the results of that test on 4 August, 2009. Thus, the last IELTS test that he had sat prior to lodging his visa application was more than 2 years prior to the lodgement of that application.
Thus, the applicant could not demonstrate that he met criteria 885.213 set out in Schedule 2 to the Migration Regulations because he could not satisfy reg.1.15C of the Regulations concerning competent English. On 30 September, 2014 the second respondent affirmed the second delegate’s decision.
The Grounds of Review
In his amended application the applicant specified his grounds of review in the following terms:
1. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:
Particulars
a) The Tribunal failed to ask itself the question as to why the previous decision of the Tribunal in the applicant’s favour was rejected by the delegate who considered a matter that had been resolved.
b) The Tribunal failed to take into account that in reviewing the application it must look at all matters afresh while applying the same legislation as the delegate.
c) The Tribunal failed to take into account sections 51A to 64 inclusive of the Migration Act and in particular section 54.
2. The Tribunal engaged in conduct which amounted to jurisdictional error in that it looked at wrong matters and asked itself the wrong questions
Particulars
The Tribunal unreasonably or illogically:
a) failed to consider the applicant’s response regarding his International English Language Test System test (IELTS).
b) Failed to weigh two contradictory decisions, the DIBC’s first refusal letter and decision record and the DIBC’s second refusal letter and the decision record.
Consideration
The applicant accepts that he did not “strictly comply” with reg.1.15C of the Migration Regulations. He accepts that an IELTS test was not conducted in the 2 years before the day which the application was lodged. He argues, however, that there are circumstances specific to his case that “warrant consideration”. In particular, he says that the purpose of reg.1.15C is to ensure that applicants maintain a designated level of English competency and that he had placed evidence before the second tribunal that he had maintained competent English before, during and after the consideration of his visa application. He argues that he completed an IELTS test on 4 August, 2009 (when he received his results) in which he scored an overall score of 6.5 with scores of at least 6 in all score testing areas. He points out that he completed a further IELTS test on 12 July, 2014 in which he scored an overall score of 7.5 with scores of at least 6 in each of the 4 areas of testing. He provided evidence that he has completed vocational training in English in Australia – Certificate IV in Hospitality (Patisserie) and an Advance Diploma of Hospitality Management (Patisserie) at the Melbourne Institute of Tourism and Hospitality and he has worked as a baker/pastry cook at Woolworths Sunnybank since 7 August, 2010.
He points out that his successful IELTS test on 4 August, 2009 fell only 68 days outside of the 730 days allowed for the test to be completed by the regulation. Moreover, some 8 months after he lodged his visa application, reg.1.15C was amended by extending the validity period of an IELTS test from 2 years to 3 years. He argues that given that the amendment to reg.1.15C commenced on 1 July, 2012 and was in effect at the time the second tribunal considered the visa application the applicant’s first IELTS test results would have been valid.
However, the applicant’s arguments fail. The form of the regulation which applied at the time that the applicant made his visa application required him to have undertaken a language test that was conducted in the 2 years immediately before the day which his application for the visa was made.
As at 7 October, 2011 reg.1.15C was in the following form:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing, for this paragraph.
I accept the first respondent’s submission that, having regard to the terms of the regulation, the only relevant IELTS test was that conducted prior to 7 October, 2011. I accept the first respondent’s submissions that the fact that the applicant obtained the requisite IELTS test scores after 7 October, 2011 was irrelevant to whether the time of application criteria imposed by reg.1.15C(a) was met.
The requirement of the criterion is absolute. The applicant either meets the requirement or he does not. In the event that he does not, his visa application cannot succeed: Singh v Minister for Immigration & Border Protection [2014] FCA 185 at [11] – [13]; Govind v Minister for Immigration & Border Protection [2014] FCA 864 and Sandhu v Minister for Immigration, Multiculturalism & Citizenship[2014] FCA 486.
In my view, this ground of review reveals no jurisdictional error.
The applicant argues that because the tribunal did not take into account that he had been able to maintain his English competency level, the tribunal acted unreasonably in finding that he did not maintain competent English satisfactory for the granting of a subclass 885 visa. Alternatively, he submits that the second tribunal failed to appropriately consider, on balance, that the matters that he relies upon to demonstrate that he has maintained competent English.
However, once the tribunal came to the conclusion that he did not meet the relevant criterion because he had not undertaken an IELTS test within the period of 2 years immediately prior to the making of his application for the visa; the tribunal was bound to refuse the grant of the visa. No question of unreasonableness arises. As the first respondent points out:
a)the hardship caused to the applicant by the refusal of the visa application is not a relevant consideration and is not prescribed for the tribunal’s attention by the regulations; and
b)the tribunal was only required to consider matters which were relevant to whether or not the visa criterion outlined in cl.885 of Schedule 2 to the Regulations had been met.
In my view, the tribunal correctly applied the facts that were before it (and which were uncontroversial) to the regulations. As the first respondent points out, unreasonableness cannot arise in those circumstances.
I also accept the first respondent’s submissions that the tribunal’s finding that the competent English criterion was not met was a finding of fact and as such, is not capable of attracting the operation of the principles that relate to unreasonableness in the making of discretionary decisions.
In my view, the second ground of review relied upon by the applicant does not reveal jurisdictional error.
Conclusion
The applicant does not establish that the tribunal’s decision was attended by jurisdictional error. The decision is a privative clause decision as at phrases used in s.474(2) of the Migration Act1958 (Cth) and it is not reviewable under s.476 of the Act.
The amended application filed on 23 January, 2015 must be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 June, 2015.
Associate:
Date: 5 June 2015
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