Singh v Minister for Immigration
[2015] FCCA 3331
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3331 |
| Catchwords: MIGRATION – Migration review – date of completion of IELTS test – unreasonable submissions by Applicant’s lawyer – no jurisdictional error established. |
| Legislation: Migration Act 1958, s.353 Migration Regulations 1958, 1.15C, Schedule 2, cl.885.213 |
| Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 Palanisamy v Minister for Immigration [2013] FCCA 1779 Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186 Sidhu v Minister for Immigration and Border Protection [2014] FCA 935 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| Applicant: | GURTEJWAR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 75 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 15 April 2015 |
| Date of Last Submission: | 8 May 2015 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr H Ford |
| Solicitors for the Applicant: |
| Solicitor/Advocate for the Respondent: | Ms A Graham |
| Solicitors for the Respondent: | Clayton Utz, Canberra |
ORDERS
The Application for Review, filed 28 November 2014, be dismissed.
The Applicant pay the First Respondent’s costs in accordance with Schedule 1 Part 3 of the Federal Circuit Court Rules, 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 75 of 2014
| GURTEJWAR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter involves a challenge to a decision by the Migration Review Tribunal (“the Tribunal”), which was made on 6th November 2014. It concerns the Applicant’s competency in English and whether or not there has been compliance with and satisfaction of one particular part of the labyrinthine Migration Regulations 1994 (“the Regulations”).
As other judges have observed, to enter the world of the Regulations, as with much other federal legislation, is to enter a parallel universe. For lawyers to seek to comprehend them is a difficult enough exercise. How any Applicant has either the wherewithal and/or the capacity to wend through such a minefield, let alone remotely to comprehend them, could, in some respects, be regarded as cruel and unusual punishment.
Be that as it may, the matter before the Court specifically concerns, amongst other things, whether or not there has been compliance with Regulation 1.15C. More particularly, the issue for determination is whether there has been compliance with the requirement that there has been an IELTS (international English language test system) test done in the two years immediately before the day on which the Application was made.
The Applicant here claimed in his Application filed on 26th June 2012 that he had completed an IELTS test on 22nd June 2012 and was found to reach a level of being “competent”.
Although requested on a number of occasions to provide evidence of that test result, no evidence has ever been provided of that IELTS test dated 22nd June 2012. Indeed, on 3rd December 2012, the Applicant was requested by the Department to provide evidence of that test and given a further 28 days within which to provide it. This request has never been answered.
It is the case that at pages 113 - 118 of the Court Book (“CB”) there is evidence of the IELTS tests for the Applicant over a period of time in 2014. There is also the curious but still difficult document, being the General Skilled Migration Application Form, which contains the following “important note” at page 10.[1] The note says (emphasis added):
You have up until the time of decision to provide evidence that you have competent English. However, Applicants should not delay in providing their evidence of English language ability. The department will not delay finalising applications where English language test results have not been provided at time of application. Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at the time of application. At this point in time if evidence has not been provided the application may be refused.
[1] The skilled migration application form is at CB 1. The note referred to at p.10 of the Application Form is at CB 10.
I have highlighted a number of inconsistencies; the relevant forms, not to mention the Regulations themselves, could have been written by script-writers for the ABC TV series Utopia. To highlight the inconsistencies again: at the outset of the notation it refers to “up until the time of decision to provide evidence that you have competent English”. Later it refers to providing English language test results “at time of application.” Later still in the same notation it says that Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at the time of application. Respectfully, on many levels, this is a less than helpful and otherwise highly confusing notation.
In the course of the hearing on 15th April 2015, I pointed out to the lawyers acting for both parties (a) my concerns about the notation to which I have referred and (b) in my view, notwithstanding the obscure and confusing wording in the form, a number of Federal Court decisions (noted below) made it almost impossible for the Application to succeed.
The decisions which, in my view, stand in the way of the current Application succeeding are: Parmar v Minister for Immigration and Citizenship, Singh v Minister for Immigration and Border Protection, and Sidhu v Minister for Immigration and Border Protection.[2] The Minister submitted that the latter two decisions, by themselves, prevented the application from succeeding.
[2] Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186 (Perram J), Singh v Minister for Immigration and Border Protection [2014] FCA 185 (Barker J), and Sidhu v Minister for Immigration and Border Protection [2014] FCA 935 (Mansfield J).
The Applicant’s Submissions
In general terms, the Grounds of Review (which also contain abbreviated submissions) may be grouped into three parts:
(a)Excepting grounds 1 and 2 (noted further below), grounds 3 and 4 seek to rely upon s.353 of the Migration Act 1958 (“the Act”) regarding the requirement for the Tribunal to act without being bound by (among other things) technicalities and legal forms, which ought to result in a decision that is different from the Tribunal’s actual decision, otherwise the decision (it was said) is not “fair”.
(b)The ‘date of decision’ versus the ‘date of application’ “structure” in the Act “is unlawful and should be struck out”. It is “unworkable.”
(c)Grounds 6 and 7 contend that the IELTS score is discriminatory “against individuals from non-English speaking backgrounds”; and the decision of the High Court in Berenguel v Minister for Immigration and Citizenship “is good law”, and subsequent amendments to the Regulations “did not have the effect of rendering the decision void.”
The submissions in support of these grounds of review may be summarised as follows.
Firstly, the Applicant relied upon the High Court decision in Berenguel v Minister for Immigration and Citizenship, in which (so it was contended) the High Court described the application of the regulations then relevant as “capricious and unjust.”[3] This led the Applicant in this case to submit that even though the legislature has changed the Regulations to require the Applicant to have a satisfactory IELTS score as at the date of the application, this of itself does not mean that the High Court has changed its mind about the Regulations being inherently unjust.[4]
[3] Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417.
[4] The actual words used by the High Court, but which are not set out in the Applicant’s submissions, are relevantly set out at ALR [24] and [26]. Nowhere does the High Court in Berenguel refer to the Regulations as either “capricious” or “unjust”.
Further, the Applicant argued that on the basis of Berenguel an Applicant who provides evidence of having satisfied the IELTS requirements under the Migration Regulations, and notwithstanding that this occurs outside of the time prescribed, is entitled to have those IELTS results recognised and, therefore, the application granted.
In subsequent submissions, the principal point made by the Applicant was that:
While there may be a regulation which purports to prohibit the provision of IELTS results after the date of the application, the regulation itself cannot override the clear statutory intention of section 55 of the Migration Act to allow the later provision of such information.
The Applicant submitted that the Minister encourages the provision of information after the date of the application and before the date of decision. This then led to the submission that the Minister in this case should have allowed the Applicant to provide the IELTS test results even if they were lodged after the date of the application.
The Minister’s Submissions
The Minister submitted as follows in the original submissions.
Clause 885.213 of Schedule 2 of the Regulations requires that test results, to establish “competent English”, must be satisfied “at the time of the Application.”
This requirement is satisfied, pursuant to Regulation 1.15C, subparagraph (1), if the person satisfies the Minister that (a) the person undertook a language test specified by the Minister in an instrument in writing for this paragraph, (b) the test was conducted in the two years immediately before the day on which the application was made, and (c) the person achieved a score specified in the instrument.[5]
[5] The relevant instrument is IMMI 12/018.
The Applicant’s IELTS report forms are at CB 113-118.
The Minister noted that Ground 1 of the Application to Review simply restates the Tribunal’s decision. Accordingly, there is no relevant ground of review. I agree.
Ground 2 is the Applicant’s interpretation of s.353 of the Act (regarding the Tribunal’s way of operating). As such, it was submitted that it too was not an appropriate ground of review. Again I agree.
Grounds 3 and 4 of the Application contend that had proper regard been paid to s.353, and similarly to the High Court decision in Minister for Immigration and Border Protection v Li, a different result for the Applicant would have ensued.[6]
[6] Minister for Immigration and Border Protection v Li (2013) 249 CLR 332.
The Minister contended that there is no evidence that the Tribunal did not comply with s.353 of the Act. I accept this submission.
Moreover, unfortunately it has become something of a practice of the lawyer who acts for the Applicant (and who appears regularly in this Court) to make general and quite broad statements which are not supported by the actual rulings and comments, in this instance, by the High Court in Li’s case. The same is true in relation to the same lawyer’s consistent reference to the High Court’s comments in Berenguel. Broad, generalised statements, unsupported by the decisions cited, are at least unhelpful, at worst, they are potentially misleading. Such submissions should not be made.
The Minister also noted that recent authority confirmed that it is not possible to rely upon IELTS tests that were undertaken after the application was lodged.[7]
[7] See Palanisamy v Minister for Immigration [2013] FCCA 1779 at [20].
Further, in answer to a question put to the parties by the Court (and not formally raised by the Applicant) regarding whether the application form itself was or could be misleading, the Minister noted in later written submissions that such an issue was dealt with by Beach J in Kumar v Minister for Immigration and Border Protection.[8] I accept this submission. It is sufficient to note the following from his Honour’s decision, beginning at [40] (internal citations omitted):
[40] Mr Kumar asserts that he was misled by the form of the visa application into thinking that he could rely upon test results after the filing of the application. There are a number of answers to this.
[41] First, it is unclear as to whether evidence to this effect was led before the Tribunal. Moreover, there is no evidence to this effect which was led before the Federal Circuit Court or indeed myself.
[42] Second, the form was not misleading. It referred to evidence being filed later rather than a test being taken later. Moreover, there was a question specifically directed to prior tests which Mr Kumar answered.
[43] Third, even if he was misled, that does not alter the relevant criterion that had to be satisfied or the Tribunal’s task under s 65 of the Act. There was no dispute that the criterion had not been satisfied. Moreover, the form of the application could not rewrite the statutory criterion which the Tribunal was bound to consider and apply.
[44] Generally, the appellants’ arguments concerning the asserted misleading nature of the form of application and the assertion that the form may be used to support an argument to rewrite the criterion have been considered and rejected in other cases….
And, as I say, even if Mr Kumar was misled, nevertheless if the criterion was not satisfied, the Tribunal was bound to refuse the visa.
[8] Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 at [40] – [44].
Consideration & Disposition
Pursuant to the Regulations, an IELTS test must record a score of at least six for each of the four test components of speaking, reading, writing and listening, and an occupational English test (OET), with a score of at least B in each of the four components.
As already noted, on 26th June 2012, Mr Singh applied for a skilled visa. In his Application form, it was stated in relation to the provision of evidence of competent English, that he will:
Have up until the time of decision to provide evidence that you have competent English and that Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at time of application.
I have also previously noted that on 3rd December 2013, the Department wrote to Mr Singh requesting further information regarding evidence of his IELTS test certificate. He was given a further 28 days to respond to this request for further information. No response was provided.
On 31st March 2014, a delegate of the Minister refused to grant Mr Singh’s visa application. In doing so, the delegate found that Mr Singh did not satisfy the requirements of clause 885.213 of schedule 2 of the Migration Regulations - the requirement that Mr Singh have “competent English.”
On 6th November 2014, the Tribunal determined to affirm the decision not to grant Mr Singh a Skilled (Residence) (Class VB) visa. In its decision, the Tribunal noted Mr Singh’s evidence for the results of six IELTS tests. The Tribunal recorded that the only test which resulted in a score of at least six on all four components was a test result dated 19th July 2014.
Mr Singh claims that he has been in Australia for eight years and spoke English well, that he had successfully completed a number of courses in both Australia and India which were conducted in English, and that he had positive skills assessment from Trades Recognition Australia in respect of his work in Australia.
In the Court Book, there are a range of certificates provided by Mr Singh in relation to a range of courses that he has attended and passed successfully, namely, from the Technical Institute of Victoria.[9] The Tribunal noted that in accordance with the English proficiency definitions made on 1st July 2011, it was incumbent upon him to demonstrate competent English via an English test, which must be conducted in the two years immediately before the day on which the application is made, and that these amendments were in response to the Berenguel decision of the High Court, to which I have earlier referred.
[9] See CB p.14 ff.
At the relevant date, the Tribunal found that Mr Singh did not have competent English as defined in regulation 1.15C(a) of the Regulations. Accordingly, Mr Singh did not satisfy the requirements of clause 885.213 of schedule 2 to the Regulations and, therefore, did not satisfy the criteria for the grant of a subclass 885 visa. Other than submitting that grounds 1 and 2 in the Application should be dismissed because there is no relevant ground of review formally raised, as I read the Minister’s submissions, the principal matters that are dealt with relate to whether or not the High Court’s decision in Berenguel is still good law in the light of the amendments to the regulations, and more so in the light of various decisions of this Court and the Federal Court.
The submissions contend further that there are no grounds upon which the Applicant has relevantly satisfied the Regulations.
I have already commented that I accept the Minister’s submissions.
In my view, the decisions of the Federal Court in Parmar, Sidu and in Kumar all stand directly in the way of the success of the Application. For current purposes, I simply note the following from the decision of Perram J in Parmar. First, in relation to context, his Honour noted, at [1] – [2]:
[1] Until 1958 there remained on the statute books of Australia a law which prevented entry into the country of persons who ‘when an officer dictates to him not less than fifty words in any prescribed language, fails to write them out in that language in the presence of the officer’ (s 3(a) Immigration Restriction Act 1901 (Cth)). No languages were prescribed but another provision in the Act – s 5 – deemed any European language to be a prescribed language. Those administering that Act were equipped thereby with the discretion to ask any immigrant, regardless of origin or tongue, to take a dictation test in any European language whatsoever. The test concealed the unwholesome assumption that any potential immigrant needed to be able to speak every European language. In its practical operation, this law effectively provided for the exclusion from this country of any person whom an officer decided should be excluded for the class of person with a mastery of every European language is small, even in Australia. In practice, as Evatt J observed in The King v Davey; Ex parte Freer [1936] HCA 58; (1936) 56 CLR 381 at 386, the test had originally served as ‘a convenient and polite device (which had previously been used similarly in the Colony of Natal) for the purpose of enabling the Executive Government of Australia to prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race’. In time its utility expanded to include not just the administration of an overtly racist immigration policy but also to hinder the ingress of those thought politically undesirable. The well-known case of Egon Kisch, suspected by the Menzies government of being a communist sympathiser but fluent in many European languages, provides an example of the law in action albeit one where its limits were ultimately reached. Kisch was detained at Circular Quay on the steamship Strathaird following attempts by the Commonwealth to keep him on that vessel as a national security risk. In habeas corpus proceedings against the vessel’s captain Evatt J ordered Kisch’s release on the basis, in substance, that the national security risk was elusive (R v Carter; Ex parte Kisch [1934] HCA 50; (1934) 52 CLR 221. Upon his disembarkation from the S.S. Strathaird, Kisch, who was something of a polyglot, was taken to the Central Police Station where he was required to take the dictation test in Scottish Gaelic, a language which according to the report in the High Court was then exclusively spoken by only 6,000 people resident in the northern and western parts of Scotland as well as the western islands. The High Court concluded by majority that Scottish Gaelic was not a European language within the meaning of the Act: R v Wilson; Ex parte Kisch (1934) [1934] HCA 63; 52 CLR 234. Mr Kisch achieved entry.
[2] Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting. On the other hand, there is no doubt that proficiency in the predominant language of any country is a legitimate concern of those charged with the administration of its immigration system. I will record at the outset, therefore, that the language tests with which this appeal is concerned are neither capricious nor a discreet tool for the implementation of concealed policies. To the contrary, the test process under challenge is rational.
Then, in response to various arguments, which included (as in the current matter) reliance upon the High Court decision in Berenguel, Perram J said, at [18] and [19]:
[18] It is tolerably clear that the meaning of ‘competent English’ in reg 1.15C is the same as it is in the criteria set out for the visa in cll 485.215 and 485.222. As a matter of ordinary construction one would approach the interpretation of the Regulations on the basis that the expression ‘competent English’ has a uniform meaning throughout the Regulations unless the context otherwise demanded: Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532 at 540-541 per Black CJ applying the well-known statement of Hodges J in Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452. In this case, the context does not demand that it be given different meanings in those different places. To the contrary, it is clear that cll 485.215 and 485.222 and reg 1.15C travel together as a package of provisions dealing with the position of skilled occupation visas. As such, I do not accept that it is open to read ‘competent English’ in the criteria as meaning ‘competent English or competent English as defined’. Nor is it possible to approach the matter so as to say that the definition in reg 1.15C is not exhaustive. The opening words of the definition – ‘If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person [achieves certain results]’ – does not textually lend itself to a non-exhaustive interpretation. The provision is in a familiar form in which a state of affairs is made conditional on the state of mind of a Minister. If it is read non-exhaustively then its legal operation becomes radically different. No longer is the question whether the Minister is satisfied the criteria have been met. Instead, ‘competent English’ becomes a legal standard to be determined by a Court. I do not think that such a profoundly different operation of the regulation is a plausible interpretation of it.
[19] There is, therefore, lacking the grammatical foothold which permitted the High Court in Berenguel to approach the construction issue in the manner that it did. When dealing with the second issue below I conclude that the requirements of reg 1.15C are rational and proportionate. That conclusion provides an additional reason for distinguishing Berenguel in the construction of reg 1.15C which I favour does not promote, as the proposed construction in Berenguel did, the vice of absurdity. In those circumstances, I do not accept that reg 1.15C could be satisfied merely because this Court thought that Mr Parmar could speak competent English or through some other means outside those exhaustively stated in that regulation.
After discussing the “rationality” or otherwise of Regulation 1.15C, at [28], his Honour said:
There are additional, broader, issues too. The visas in question are high volume visas for which the number of applications is very large. There needs to be not only a way of testing the language skills of applicants which is suitable to be applied to the large number of applications made but, just as importantly, that system needs to be reliably uniform in its application. The imposition of precise score requirements rationally serves this end. In such a system there will always be those who fall close to the line but that is to be seen as the price to be paid for certainty, efficiency and the species of fairness constituted by consistency. In those circumstances, the challenge to reg 1.15C based on the IELTS website fails, however harsh or frustrating this appears in Mr Parmar’s case.
Respectfully, Perram J’s comments apply equally here. In addition to the Minister’s submissions (which I accept in their entirety), his Honour’s remarks are, in my view, also more than sufficient to require the Court to dismiss the current Application.
An order for costs in accordance with the schedule of this Court’s rules must follow. The Court so orders.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 18th December 2015
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