Singh v Minister for Home Affairs
[2019] FCCA 2219
•25 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2219 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal not to grant temporary graduate visa – whether the applicant failed to provide evidence of language proficiency until after the application – whether evidence properly “accompanied” the application at time of application – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 Kaur v The Minister for Immigration and Border Protection [2018] FCA 1765 Khan v The Minister for Immigration and Border Protection [2018] FCAFC 85 |
| Applicant: | ATINDER SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 37 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 25 July 2019 |
| Date of Last Submission: | 25 July 2019 |
| Delivered at: | Darwin |
| Delivered on: | 25 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms Clarke |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 12 November 2018 be dismissed.
The Applicant pay the First Respondent’s costs in the sum of $7,467 including GST.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 37 of 2018
| ATINDER SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“AAT”) made on 12 November 2018 to affirm the decision of the Minister’s delegate made on 17 May 2018 to refuse the applicant a subclass 485 temporary graduate visa. The reason that the delegate and the Tribunal refused the application is that the applicant failed to provide evidence at the correct time that he had undertaken a language test specified by the Minister in a legislative instrument.
The language test specified in the legislative instrument IMMI 15/062 specifies, for the purpose of, relevantly, clause 385.212(a)(ii) of the Migration Regulations 1994 (“Regulations”), that the following English language tests must have been undertaken within the three years before the day on which the application was made. It specifies five tests including a “Pearson Test of English-Academic”.
The applicant lodged his application on 15 March 2018. He had, in fact, completed a relevant test in 2011, which appears in the court book at page 77, and as far as I can see, attained the necessary score in that test but, as the test was done in 2011, it did not satisfy the requirement in the legislative instrument 15/062 that it have been undertaken within the three years before the day on which the application was made in 2018.
On 17 May 2018 the delegate refused the application because the applicant had not satisfied the mandatory requirement under clause 485.212 of Schedule 2 of the Regulations. The applicant then undertook the test on 6 July 2018 and on 30 October 2018 provided his test results, which attained the necessary score, to the AAT before its decision on 12 November 2018.
The AAT took the view that the applicant had not satisfied criterion 485.212 in that the test result had not “accompanied” the application. I raised with counsel for the Minister, Ms. Clarke, during argument that the relevant criteria in clause 485.2 of the Regulations says that:
All criteria must be satisfied at the time the decision is made on the application, unless otherwise stated.
She submitted that it was so “otherwise stated” because clause 485.212 requires that:
The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister…
She relied on two cases in particular: Kaur v The Minister for Immigration and Border Protection [2018] FCA 1765 at [17] in particular, where Charlesworth J in construing clause 485.212 said that, properly construed, that clause required the relevant documentation to be provided “at the time of the visa application”. She went on to say:
This is not a case in which the required competency for English had been achieved before the visa application was made, but the evidence of that achievement provided afterward or even shortly afterward. It is not a case of asking whether or not there was such a short period of time between the visa application being made and the provision of evidence of the competency having been achieved that the application could be said to have “accompanied” the application: cf Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562.
Her Honour was exercising the appellate jurisdiction of the court at that time and the decision appears to be on all fours with the matter before me. I accept the submission of Ms Clarke that I am bound by that decision.
Ms Clarke also referred to Khan v The Minister for Immigration and Border Protection [2018] FCAFC 85, in particular [15]. In that decision of the Full Court of the Federal Court, there was some further discussion of that clause and it was held that where the court was considering clause 485.223, which is apparently substantially the same in its requirements as clause 485.212, that is, the meaning of “accompanied by evidence”, the Full Court observed at [15] that:
The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.
In this case, Mr Singh asserted that he had been given incorrect advice by his migration agent that, if the delegate required an English language test, it would be requested at the time, apparently having regard to the fact that he completed his undergraduate degree in nursing at Charles Darwin University in Darwin where the medium of instruction was English.
It is not necessary for me to enter into the question of whether or not the migration agent provided such advice, or indeed, whether or not the clear advice on the front of the application form saying that the visa requirements included are an English language test completed within the previous three years or 36 months, or indeed, the nature of advice from the migration agent included in the court book, which might be considered to be inconsistent with what Mr Singh has told me. Those are matters I do not need to consider and I do not take them into account.
It is clear that Mr Singh, objectively at least, has satisfied a recent test of English language proficiency, as required by the Regulations and legislative instruments, and it might be thought that the outcome is harsh given what appears to have been either poor advice or a foolish mistake. Nevertheless, I am satisfied that the mandatory requirements have not been met and it cannot be said that the provision of the test in October 2018, some seven months after the application was lodged and some five months after the delegate’s decision, in any sense “accompanied” the application.
I am satisfied that the application must be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 14 August 2019
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