Singh v Minister for Immigration

[2018] FCCA 2357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2357

Catchwords:
MIGRATION – Skilled residence visa – subclass 885 – applicant did not have competent English – refusal – review of Migration Review Tribunal decision – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Migration Regulations 1994, reg.1.15C, cl.885.213 of sch.2

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417

Applicant: JASPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1998 of 2015

Judgment of: Judge Cameron

Hearing date: 4 July 2018

Date of Last Submission: 4 July 2018

Delivered at: Sydney

Delivered on: 4 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Weise of Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1998 of 2015

JASPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of India. On 29 June 2010 he applied to what is now the Department of Home Affairs (“Department”) for a Skilled (Residence) (Class VB) subclass 885 (Skilled – Independent) visa. On 19 September 2013 a delegate of the first respondent (“Minister”) refused the applicant’s application on the basis that he did not have competent English as required by cl.885.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant.  A previous Tribunal decision was quashed by an order of this Court on 21 October 2014.

3. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. The criteria for the grant of a subclass 885 visa were set out in pt.885 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.885.213, which required him to have “competent English”. At the time the applicant lodged his application, “competent English” was relevantly defined in reg.1.15C as follows:

   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; …

2. Reg1.15C(a) in the form that it applied to the applicant could be satisfied by an applicant who has achieved the specified scores in a test undertaken after the visa application was made: Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417.

BACKGROUND FACTS

1. As already noted, the applicant’s visa application was refused by a Ministerial delegate on the basis that the applicant had not provided at the time of the delegate’s decision evidence that he had achieved the necessary and specified scores in an International English Language Testing System (“IELTS”) test. The Tribunal as first constituted found that the applicant had not provided evidence of his English language competency in accordance with reg.1.15C.

2. The events following the remittal of the matter to the Tribunal were summarised by the Minister in his written submissions in the following terms which I adopt:

   10.By letter dated 17 November 2014 … the Tribunal invited the Applicant to a hearing scheduled for 19 December 2014.  The Tribunal’s letter included the following words:

   “The tribunal notes that to date you have not presented evidence that you meet the English language proficiency requirement for the visa (Competent English). Please provide evidence at or before the hearing that you have competent English or that you have booked … an IELTS test which is scheduled to take place no later than 17 December 2014.  If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time to obtain it.”

   11.On 11 December 2014, the Applicant sent an email to the Tribunal explaining that he had received the above correspondence only the day before, and he required additional time to prepare his case.  The Applicant also stated that he sat an IELTS test on 6 December 2014 and would receive the results on 19 December 2014.

   12.On 18 December 2014, the Tribunal wrote to the Applicant, granting a postponement of the hearing to 7 January 2015.  The Tribunal’s letter included the following words:

   “The Tribunal notes that to date you have not presented evidence that you meet the English language proficiency requirement for the visa (Competent English) but you advised that you sat an IELTS test on 6 December 2014.  Please provide evidence at or before the hearing that you have competent English. If you are unable to provide the relevant evidence, the Tribunal will require good reason to grant you additional time to obtain it.”

   13.At the hearing on 7 January 2015, the Applicant’s evidence was that he did not have evidence of competent English.  He requested additional time to sit another test.  However, he would only be able to do so after he received a new pass-port for which he had applied on 18 December 2014.  He expected to receive the passport 6 to 8 weeks after that date (i.e. by 12 February 2015).  The Tribunal granted the requested adjournment and told the Applicant that it would write to him in mid-February, inviting information to show that he had booked the first available IELTS test.

   14.On 19 February 2015, the Tribunal wrote to the Applicant inviting him to provide information that he had booked the first available IELTS test.  The Tribunal specified a deadline of 5 March 2015 to provide this information.

   15.On 3 March 2015, the Applicant sent an email to the Tribunal, forwarding confirmation that he was booked to sit an IELTS test on 28 March 2015.  The confirmation indicated that the results of the test would be available online 13 days after the test (i.e. on 10 April 2015) and would be posted to the Applicant as well.  It also indicated that the Applicant could request a ‘remark’ within 4 weeks of obtaining the results.  The results of a re-mark would be available between 4 and 6 weeks after the request.

   16.On 26 May 2015, the Tribunal wrote to the Applicant, inviting him to provide information that he satisfied the competent English criterion.  The Tribunal’s letter specified a deadline of 10 June 2015 to provide this information. …

   17.Later on the same day, 26 May 2015, the Applicant sent an email to the Tribunal, stating that he had not achieved the required scores in the test conducted on 28 March 2015.  The Applicant stated that he had applied for a remark 3 weeks prior, and had been told this would take 6 to 8 weeks (i.e. up to 30 June 2015). The Applicant then wrote … :

   “Im still waiting on that. Im requesting before you any decision. pls wait for my report as soon I will get I send u ...”

   …

   20.… on 5 June 2015, the Tribunal sent an email to <[email protected]>.  The Tribunal’s email referred to the Applicant’s request for a remark and stated: “It would be appreciated if you could confirm when the remark application was lodged?”

   21.On 9 June 2015, the Tribunal wrote to the Applicant granting an extension of time to provide evidence of competent English until 23 June 2015.  The Tribunal warned that if it did not receive the sought-after information by 23 June 2015 it “may make a decision on the review without taking any further action to obtain the information.” …

   22.On 12 June 2015, the Tribunal received a response to the enquiry referred to in paragraph 20, above … that: “the candidate paid for the EOR on the 23/04/15.  The EOR has now been finalised and [test centre] AU107 state that a new Test Report Form has been issued to Mr Singh as a result.” (References omitted)

3. On 30 June 2015 the Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 885 visa.  In making this decision the Tribunal noted as follows:

   Some 5 years have now passed since the visa application was made.  The Tribunal allowed the applicant time to sit an IELTS test and to have the test remarked, as the applicant advised the Tribunal that he had failed to achieve a score of 6 in one of the test components in the test he sat on 28 March 2015.  The Tribunal invited the applicant to provide information to show that he has competent English but he has not provided this information and has not made any further requests for time. (para.14)

4. In the circumstances, the Tribunal found that the applicant did not have competent English as defined in reg.1.15C(a). Consequently, he did not satisfy the criteria in cl.885.213 of sch.2 to the Regulations for the grant of the visa.

PROCEEDINGS IN THIS COURT

1. In his application commencing these proceedings the applicant alleged:

   1.DIBP made error in making a decision:  Case officer did not consider my request to provide additional time to provide IELTS results

   2.My appeal in MRT (now Administrative appeals tribunal) did not give me ample time to provide English Language ability.

   3.Administrative appeals tribunal should have considered my request and allow me reasonable time to provide IELTS results.

   4.Administrative appeals tribunal made an error by not exercising their power to give fresh look to my case.  Migration review tribunal just stamped the decision of DIBP.

   5.I applied to federal Circuit Court for review and Honourable court made decision in my favour.  Federal circuit Court remitted the application for review to the Administrative appeals tribunal for consideration on the basis that Tribunal had not properly considered the applicant’s request for an adjournment.

   6.Administrative appeals tribunal did not provide ample time for preparation of English Language ability test.

   7.     I have scored 6 in 3 components but IELTS testing bodies deliberately mark .5 less on one of the component.

   8.I have scored 6 in all components but in different tests, I request you to consider my competency as meeting the English requirements by taking this fact in to consideration.

2. The grounds pleaded include matters which are not capable of judicial review by the Court and are repetitive in substance.  The matters which the applicant would appear to have sought to raise were that:

   a)the Tribunal prejudged his case;

   b)he had not been given enough time to successfully sit an English language test;

   c)the IELTS testing bodies deliberately under-marked; and

   d)the Tribunal ought to have considered his IELTS tests as a group rather than individually because, if taken as a group, he had passed every category at least once to the necessary level.

Prejudgment

1. The decision of the Tribunal in this case does not suggest to me that the Tribunal simply rubberstamped the earlier decision of the delegate.  True it is that the Tribunal reached the same decision as the delegate and for basically the same reasons but it did so having given the applicant a very reasonable opportunity to demonstrate that he possessed the necessary English language skills to meet the relevant visa criterion. 

Tribunal did not give the applicant enough time

1. The substance of this allegation emerged with greater clarity during the course of the hearing when the applicant indicated to the Court that before the Tribunal’s decision he had sought a final extension of time so that he could sit a PTE test. The applicant’s evidence was to the effect that at some point prior to the Tribunal’s decision and after he had been given his final deadline, he spoke to his case officer at the Tribunal to ask for further time but was refused.  He conceded in cross-examination that he had simply requested further time for the PTE test and, in substance, nothing more.  The applicant said that the Tribunal officer told him that she could not give him more time and that the Tribunal had to respect the deadline it had set and then make a decision on the information in its possession.

2. It is to be noted that the Court Book, which was exhibit A, contains no case notes or other documents corroborating the applicant’s evidence on this issue. I also note that the Tribunal, as recorded in the passage quoted earlier at [9], recorded its understanding that it had not received any further requests from the applicant after the request for an extension which was granted on 9 June 2015.

3. I found the applicant a very persuasive witness and it seems quite plausible that some deficiency in record keeping may have meant that relevant documents were not available for inclusion in the Court Book.  Nevertheless, the fact is that the Tribunal clearly states in its decision record that no additional requests were made. If I was required to make a decision on this issue, I would be inclined to find that the applicant was mistaken in his recollection.    

4. However, I do not need to make a decision on that issue because even at its highest, the applicant’s case does not disclose jurisdictional error on the Tribunal’s part. 

5. The only jurisdictional error that could arise out of the case which the applicant made on this point was an unreasonable refusal of additional time to sit a further language test. The history of the applicant’s review before the Tribunal as constituted on the second occasion has been set out earlier in these reasons and it is apparent that he was given some latitude. Indeed, the Tribunal was quite accommodating of him.

6. The Tribunal had set a second deadline for provision of information in its letter of 9 June 2015. Any refusal of a request for further time to sit one more test would not have been unreasonable in the circumstances.  Nor could such a decision be said to have lacked an evident or intelligible justification. The review had to be concluded at some point and, given the accommodation which the applicant had already been given and, without adequate justification being provided for the grant of further time, there would have been no reason to extend the 23 June 2015 deadline. 

7. Consequently, any refusal to further extend time as alleged by the applicant would not, on the evidence, have been a decision affected by unreasonableness leading the overall decision being affected by jurisdictional error.    

Under marking

1. The contention that the IELTS testing bodies deliberately marked half a point less on one component was not substantiated by any evidence and so is not made out. 

Ground (d)

1. The relevant requirement is that an applicant achieves an overall score in a particular test, not an average score or a best score over a number of tests.  The final issue which the applicant raised does not indicate that the Tribunal approached his matter in an erroneous way. 

CONCLUSION

1. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.  

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  23 August 2018