Singh v Minister for Home Affairs

[2019] FCCA 249

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 249

Catchwords:

MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth):

Migration Regulations 1994 (Cth)

Applicant: GULSHAN SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 585 of 2018

Judgment of: Judge Vasta

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Brisbane

Delivered on: 31 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Bazalmo

Solicitors for the Applicant: Stephens & Tozer Solicitors

Counsel for the First Respondent: Mr Pslatis

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 18 June 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 585 of 2018

GULSHAN SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 16 May 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate of the Minister not to grant the Applicant, Gulshan Singh a student visa.  Having received that decision, on 18 June 2018, the Applicant filed an originating application asking this Court to review that decision. 

2. The facts of this matters are that the Applicant had applied for a student visa on 23 August 2017.  The criteria that the Applicant had to fulfil was to show that he had a sufficient proficiency in the English language which could be measured by an instrument that the Minister had proclaimed in the regulations. 

3. The regulations had that there were exceptions to the English language proficiency test and as the AAT said at paragraph 8:

   …. As the applicant is not within a class of applications specified in the instrument, cl.500.213(1) applies to the applicant”,

4. That is, that the Applicant did not come within the exceptions, so that in this case, the Applicant was required by the Minister to provide evidence of English language proficiency as specified in the schedules to the instrument.

5. The Applicant provided evidence that he was currently enrolled in a Certificate in Commercial Cookery at the Skills Institute Australia.  He had reported a course progress score of 40 per cent.  At the hearing, he submitted a PTE academic test-taker score report for a test on 8 May 2018 with an overall score of 40. 

6. The Tribunal outlined for the Applicant that the instrument specifies that a PTE test score of 40 means that a minimum of 10 weeks of ELICOS study, that is, English language proficiency study is required.  The Tribunal asked the Applicant whether he had packaged 10 weeks of ELICOS study on the basis of his 40 PTE score, and he replied that he had not. 

7. The Tribunal explained again that this was required, and the Applicant was asked if he understood that.  The Tribunal asked him whether he wished to say why he had not packaged the ELICOS study.  The Applicant said that he was not aware of that requirement, and that his education provider, that is the Skills Institute Australia, had accepted him without it and he was progressing in his cookery course.

8. He then asked the Tribunal whether he could take another PTE test in two or three weeks’ time to try and achieve a PTE test score, which would be high enough so that ELICOS study was not specified. 

9. The Tribunal said to him that he had known about the issue of English study for some time and, whilst he had taken a test, he had still not packaged the specified ELICOS study.  The Applicant told the Tribunal he was confident that if he took the PTE test again, it would be all right, and he would not need to do the English course.

10. The Tribunal said that he had had quite a bit of time to think about the issue, and whilst he had given a lot of reasons why he did not package his ELICOS study, he had not actually moved to meet the requirement that the course had for him to undertake. 

11. The Tribunal told the Applicant that the law was clear and the fact was that he did not have the required arrangements in place. The Applicant said he was confident that he would remedy the problem by sitting for another test, but the Tribunal found, as it had to on what it had seen was the evidence, that the Applicant did not satisfy the requirements of clause 500.213 of Schedule 2 of the Migration Regulations 1994 and, therefore affirmed the decision.

12. The grounds of this application are too lengthy for me to go through and record for the record, but they are contained in the originating application.  Counsel for the Applicant, Mr Bazalmo, has very helpfully summarised that the grounds really boil down to two issues. 

13. The first issue was whether the Tribunal ought to have considered whether the Applicant was one of a class of applicants to which subclause 500.213 did not apply.  The second issue was whether the Tribunal ought to have adjourned the hearing to allow the Applicant to obtain legal advice, or to obtain and adduce further evidence of English proficiency.

14. As to the first matter, the exceptions to the English test are very few.  The counsel for the Minister, Mr Psaltis has also quite helpfully put those before the Court.  They are whether the Applicant was a citizen of a country where English is the predominant language; that being the UK, the USA, Canada, New Zealand, or the Republic of Ireland; or was an Applicant who was involved in a principal course of study, that is registered to be delivered in a language other than English, that is a registered ELICOS course, that is a registered school course, or is a registered post-graduate course.

15. The other exception is that the Applicant had successfully completed the requirements for a senior secondary certificate of education in a course that was conducted in Australia in English, or completed a substantial component of the course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia in English while the Applicant was holding the student visa, or was an Applicant who had successfully completed a minimum of five years study in English undertaken in Australia, Canada, New Zealand South Africa, the Republic of Ireland, the UK or the USA.

16. The Applicant contends that he, the Applicant, had actually completed a substantial component of the course leading to a qualification from the Australian Qualifications Framework, because he had done 40 per cent of the cookery course at Certificate IV level.  However, there are problems with that, if one looks at the legislation. 

17. Firstly, it has to be a substantial component.  Arguably, 40 per cent is not a substantial component. 

18. But, secondly and more importantly, the Applicant himself was asked whether he was in the exemption to this, and one of the questions asked was had he completed a substantial component of a course.  His answer was no.

19. The way in which this legislation is framed, the exception in sub-clause (c)(ii) has as a cumulative aspect to it; that the Applicant had to successfully complete a minimum of five years of study in English undertaken in Australia, Canada, New Zealand, South Africa, the Republic of Ireland, the UK or the USA.  There is no evidence that the Applicant had successfully completed such a course of study.

20. What is argued here is that the Tribunal has given lip service to the requirement that it had to decide whether or not the Applicant was within a class of applicant specified in the instrument.  The submission is that the Tribunal has come to a conclusion that no decision-maker could have come to on the evidence before it. 

21. The corollary to that argument is that the Tribunal had not considered this point and, if it was to be found that they had considered the point because of the last sentence in paragraph 8, then the Tribunal had failed to substantiate its reasoning. 

22. To take that last point first, the Tribunal need not detail all of its reasons and concentrate on every little point in the legislation.  Yes, it is true that the Tribunal should do that if this were a matter that had been in issue or in doubt, but as was fairly conceded by Mr Balzamo, it was as if no one had looked at this particular aspect until Mr Balzamo looked at this particular aspect. 

23. It was not anything that had been brought up before the delegate, and it was not argued before the AAT that the Applicant actually fell within any of the exceptions.  In those circumstances, the Tribunal, failing to elucidate upon its reasons is understandable and certainly not unreasonable, but it cannot be said that the Tribunal did not consider this point. 

24. Paragraph 8 is very thorough as to what the Tribunal had to do and the Tribunal found the Applicant was not within a class of applicants. 

25. Looking at the evidence regarding whether the Applicant had completed a substantial part of the course, the evidence was quite clear. That was that the Applicant himself had said he had not completed a substantial component of the course, and certainly he had not completed the cumulative aspect of having completed five years of study in one of those English-speaking countries. 

26. It seems to me, then, that there has been no jurisdictional error established with regard to what I will call issue one in the application.

27. Issue two in the application stems from the Applicant’s request to the Tribunal that he be allowed to partake of another PTE test.  The Applicant argues that it could be seen from what the Tribunal said that firstly, the Applicant was not aware of the ELICOS requirement, that the Applicant thought he could take another PTE test and achieve a score above the level where ELICOS study was not required, and that he would was confident that it would be “all right”, and he would not need to do the English course. 

28. The submission is that the Tribunal ought to have taken those words to be an application for an adjournment and that the Tribunal had failed to allow the Applicant to be given a proper opportunity to present evidence and submissions in his case for an adjournment.  It was argued that no one would have been prejudiced by an adjournment, and, therefore, the decision not to grant the adjournment was unreasonable. 

29. If one looks at the chronology that the AAT spoke about, one sees this in its proper context.  The delegate had refused the visa because the Applicant did not satisfy the requirement for English language proficiency.  The Applicant wanted to review that matter before the AAT.  The Applicant went ahead and did another PTE, but still did not do anything about the English language proficiency. 

30. The Applicant was invited on 19 April 2018 to a hearing on 16 May 2018.  So he had just under four weeks to make sure that he had all of the material that he needed as well, yet he (he being the person who had to convince the AAT that he met the requirement for the visa) came to the Tribunal hearing and said that he was not aware of the ELICOS requirement. 

31. The Tribunal was quite right when it said that the Applicant had quite a bit of time to think about the issue, and while he had given lots of reasons why he did not package his ELICOS study, he had not actually done anything himself to meet the requirement. 

32. In those circumstances, it is very difficult to see how it is that the Tribunal’s decision to not give the Applicant even more time to take a third PTE test, was in any way unreasonable. 

33. Therefore, I do not find that there is a jurisdictional error with regard to the second issue of the application. 

34. That being my conclusion, it follows that I dismiss the application with costs fixed in the sum of $7,467.00.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:         18 April 2019