Singh v Minister for Immigration
[2016] FCCA 2131
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2131 |
| Catchwords: DELEGATED LEGISLATION – Whether instrument made under reg.1.15C of the Regulations nominating a non-existent language test and score rendered invalid the regulation – regulation not invalid. |
| Legislation: Migration Amendment Regulation 2012 (No. 1) (Cth) |
| Cases cited: Farook v Minister for Immigration and Border Protection [2014] FCA 1017 Singh v Minister for Immigration & Anor [2016] FCCA 19 |
| Applicant: | GURNAM SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2554 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 13 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Lawyers |
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2554 of 2014
| GURNAM SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) (Subclass 885) visa (885 Visa).
Background
To have been entitled to an 885 Visa, the applicant was required to satisfy the criterion specified in cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). On 26 June 2011, when the applicant applied for the 885 visa, cl.885.213 of Schedule 2 to the Regulations required that the applicant have “competent English”.[1] “Competent English” was defined in reg.1.15C as follows:
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
[1] The regulations that apply to the applicant are those contained in the Regulations as in force immediately after the coming into effect of the Migration Amendment Regulations 2011 (No. 1) (Cth) and Migration Amendment Regulations 2011 (No. 2) (Cth).
(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.
Regulation 1.15C was subsequently amended, but this version continued to apply to the applicant because the application for the Skilled Visa was lodged before 1 July 2011. [2] For ease of expression, in the remainder of these reasons I will refer to the regulations that applied to the applicant in the present tense.
[2] Migration Amendment Regulations 2011 (No. 3) (Cth) and items 12 and 124 of Schedule 1 to the Migration Amendment Regulation 2012 (No. 2) (Cth). See also Singh v Minister for Immigration & Anor [2016] FCCA 19 at [6] (Judge Cameron).
A Legislative Instrument, being IMMI 09/073, was made on 25 June 2009 for the purposes of reg.1.15C(a)(ii)(A) of the Regulations. That instrument was revoked by IMMI 11/036 which commenced on 1 July 2011. IMMI 11/036 was in turn revoked by instrument IMMI 12/018, which took effect on 1 July 2012. IMMI 12/018 specified requirements for visa applications lodged before 1 July 2012, as well as for visa applications lodged on or after 1 July 2012.
IMMI 12/018 specified for applications lodged before 1 July 2012 the following matters:
A. For the purposes of subparagraph 1.15C(a)(i) the following language tests:
· an International English Language Test System (IELTS test); and
· an Occupational English Test (OET).
B. For the purposes of subparagraph 1.15C(a)(iii) the following scores:
· an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
· a score of at least “B” in each of the four components of an OET.
C.For the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
As I have discussed previously in Singh & Anor v Minister for Immigration & Anor[3] there are two errors in IMMI 12/018. First, it purports to specify language tests “for the purposes of subparagraph 1.15C(a)(i)”. That paragraph, however, does not require or refer to the specification by instrument of any score or English language test; the paragraph itself prescribes an English language test, namely the IELTS test, and the necessary score under that test. The paragraph for the purposes for which a language test and the score required to be achieved in that test could be specified by instrument is paragraph 1.15C(a)(ii). And this leads to the second error. IMMI 12/018 specifies “for the purposes of subparagraph 1.15C(a)(iii)”. There is no such paragraph.
[3] [2016] FCCA 387
Murphy J considered these errors in Farook v Minister for Immigration and Border Protection.[4] Applying what his Honour described as “[t]he “slip rule” of statutory interpretation”, his Honour held that IMMI 12/018 should be taken to refer to subparagraphs (a)(ii)(A) and (B) of reg.1.15C of the Regulations rather than to subparagraphs (a)(i) and (iii).[5]
[4] [2014] FCA 1017
[5] [2014] FCA 1017 at [24]
There is one other matter to note before I turn to what occurred before the Tribunal; and that relates to whether the Tribunal applied the correct instrument to the applicant’s visa application. Ms Blake, the Minister’s representative, in her written submissions, notes that the Tribunal considered, in error, IMMI 09/073 to be the applicable instrument.[6] There is no question that it is IMMI 12/018 that applies to the application. On its face, IMMI 12/018 stated it applied to applications lodged before 1 July 2012. That is what Murphy J found in Farook v Minister for Immigration and Border Protection.[7] In that case, the application for a Skilled Visa was lodged on 15 October 2009. Murphy J concluded that as the “later instrument [i.e., IMMI 12/018], and having expressly been given retrospective effect, it is clear that when the Tribunal determined the appellant’s visa application IMMI 12/018 was the applicable instrument and not IMMI 09/073”.[8]
[6] First Respondent’s Outline of Submissions, 9.10.2015, [6]
[7] [2014] FCA 1017
[8] [2014] FCA 1017 at [22]
Ms Blake submits, and I accept, that the Tribunal’s erroneous reference to IMMI 09/073 was an error within jurisdiction. As Gordon J found in Nayyar v Minister for Immigration and Border Protection,[9] such an error does not assist the applicant as the Tribunal, although it applied the incorrect Legislative Instrument, “nevertheless asked itself the correct question”.[10] That is so because, “the requirement for a visa applicant to have “competent English” (being whether the appellant had obtained the requisite score in either an OET or IELTS test) remained the same”.[11]
[9] [2015] FCA 119
[10] [2015] FCA 119 at [27]
[11] [2015] FCA 119 at [27]
Before the Tribunal
In a letter dated 12 May 2014 the Tribunal invited the applicant to attend a hearing before it on 6 June 2014 for the purpose of giving evidence and argument in support of his application. That letter also noted that the applicant had not provided evidence to date that he met the English language requirement and requested that he provide evidence of competent English or evidence that he had booked an OELT or IELTS test.
On 3 June 2014 the applicant provided to the Tribunal evidence of a booking for an IELTS test scheduled to take place on 21 June 2014 (21 June 2014 IELTS test).[12] The applicant also provided IELTS test results for tests conducted on 18 February 2012, 6 April 2013, 11 May 2013, 12 October 2013, 30 November 2013, 7 December 2013, 11 January 2014, and 18 January 2015 (prior IELTS test results).[13] None of the prior IELTS test results recorded the applicant as achieving a score of at least 6 in each test component in any one test.
[12] CB140
[13] CB141-148
At the Tribunal hearing of 6 June 2014 the applicant confirmed that he had not scored at least 6 in each test competent in any one IELTS test and that he was scheduled to sit the 21 June 2014 IELTS test. The Tribunal indicated that it would delay its decision until 8 July 2014 so as to allow the applicant sufficient time to provide the 21 June 2014 IELTS test results.
On 8 July 2014 the applicant provided to the Tribunal the 21 June 2014 IELTS test results.[14] Those results record the applicant achieved 6.5 for listening, 6 for reading, 5.5 for writing, and 6 for speaking.[15] The applicant provided evidence that on 7 July 2014 he had applied for a re-mark of the writing component of the 21 June 2014 IELTS test, and also included results of IELTS tests completed on 11 May 2013 and 7 December 2014 in which he achieved a score of 6 in the writing component. The information relating to the applicant’s request for a re-mark indicated that a re-mark would be completed within 6 weeks of receipt of the necessary material. By letter dated 22 July 2014, the Tribunal informed the applicant that it would postpone its decision until 18 August 2014, that is six weeks from the date on which the applicant applied for the re-mark.
[14] CB154-155
[15] CB155
On 18 August 2014 the applicant’s representative informed the Tribunal that the applicant was still awaiting the results of the re-mark, that the representative would provide the results to the Tribunal upon receipt, and requested that the Tribunal defer making its decision until after it had received the remark results. The representative did not provide an indicative timeframe in which the results would be provided, nor did he provide an explanation for the delay. The Tribunal declined the applicant’s request and on 20 August 2014 affirmed the delegate’s decision not the grant the applicant an 885 Visa on the basis that there is “no documentary evidence” before it that the applicant satisfies the equipment of “competent English” as defined in reg.1.15C(a) of the Regulations.
Grounds of application
The application for judicial review contains three grounds. The first is as follows:
The Tribunal erred in construing Regulation 1.15C of the Migration Regulations 1994 (“the Regulations”).
Particulars
a. The Tribunal interpreted the definition of the term “competent English” as it if were exhaustive, which it is not.
b. The Tribunal read the preliminary words of the regulation as though they read “if and only if” in circumstances where the statutory language does not import any exclusivity to the definition of “competent English”.
This ground is similar to the first of the two grounds I considered in Munir v Minister for Immigration & Anor.[16] As I there held, this ground is answered by the reasoning on which Katzmann J in Milanes v Minister for Immigration and Border Protection relied in rejecting the contention that the expression “competent English” given in reg.1.15C of the Regulations is not exhaustive.[17]
[16] [2016] FCCA 1450
[17] [2015] FCA 1105; (2015) 234 FCR 508
Ground 1, therefore fails.
The second and third grounds are as follows:
2.Regulation 1.15C is an invalid exercise of the power to make regulations under the Migration Act.
Particulars
The definition of “competent English” reg 1.15C is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
3.The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments under the Migration Act.
Particulars
The tests to which the instrument refers are described in a way that is ambiguous, uncertain, misleading and / or incapable of practical administration. This is the final paragraph of each judgment.
These are identical to the second and third grounds I considered in Singh & Anor v Minister for Immigration & Anor.[18] The reasons I gave in that case for not accepting the second and third grounds apply to the second and third grounds advanced in this proceeding. For those reasons, therefore, grounds 2 and 3 in these proceedings fail.
[18][2016] FCCA 387; (2016) 304 FLR 396
Disposition
I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 August 2016
0
6
6