SINGH v Minister for Immigration

[2014] FCCA 2949

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2949

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) visa – where tribunal used a legislative instrument no longer in force to ascertain criteria for visa – where test under outdated instrument the same as the test under the instrument that ought to have been used by the tribunal – no error established.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, cl.457.223, 457.223(4), 457.223(4)(ea)(i), 457.223(4)(ea)(ii), , 457.223(4)(eb), 457.223(4)(eb)(v), 457/223(4)(ec), 457.223(6)(a), 457.223(11), reg.1.15B

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Farook v Minister for Immigration and Border Protection [2014] FCA 1017

Applicant: TARJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 759 of 2014

Judgment of: Judge Jarrett

Hearing date: 10 December 2014

Date of Last Submission: 10 December 2014

Delivered at: Brisbane

Delivered on: 19 December 2014

REPRESENTATION

The Applicant appeared in person.

Solicitor for the First Respondent: Mr Hawker

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 29 August, 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 759 of 2014

TARJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 29 August, 2014 the applicant seeks judicial review of a decision of a migration review tribunal made on 11 August, 2014.  That decision affirmed a decision of a delegate of the first respondent dated 2 May, 2013 to refuse to grant a Temporary Business Entry (Class UC) visa to the applicant.

2. Despite directions to do so, the applicant has not filed any submissions in support of his application.  At the commencement of the hearing, he said that he was suffering from stress and had been for some time.  He wanted the application adjourned.  For reasons that I gave on the day of the hearing, I refused his request for an adjournment.

3. Both the applicant and I have the benefit of written submissions filed on behalf of the first respondent.

Background

1. The applicant applied for a Temporary Business Entry (Class UC) visa on 14 March, 2013. At the time the visa application was lodged, two subclasses existed for a class UC visa. The applicant’s application was assessed against the criteria for a subclass 457 visa. Those criteria are set out in Part 457 of Schedule 2 to the Migration Regulations1994.

2. Clause 457.223 of Schedule 2 to the Regulations contained criteria that an applicant for a subclass 457 visa needed to meet both at the time of the visa application and at the time of the decision on that application. However, not all criteria specified in cl.457.223 needed to be satisfied. Clause 457.223 provided the applicant with some alternatives to secure his visa. One of the alternative criteria was that specified by cl.457.223(4). The applicant advanced his application before the first respondent’s delegate pursuant to that alternative. That clause imposed some English language requirements upon the applicant.

3. The applicant did not, according to the first respondent’s delegate, meet the English language requirements. On 2 May, 2013 the first respondent’s delegate refused to grant the visa on the basis that cl.457.223(4)(ec) of schedule 2 to the Regulations was not satisfied.

4. On 20 May, 2013 the applicant lodged an application for review by a migration review tribunal.  On 17 July, 2014 the tribunal invited the applicant to attend a hearing scheduled for 11 August, 2014 to give evidence and present arguments relating to his application.  The applicant attended the hearing on 11 August, 2014 and provided a number of further documents in support of his application.

The tribunal’s decision

1. The tribunal identified that the issue to be determined was whether the applicant met the requirements of cl.457.223(4)(eb) of schedule 2 to the Regulations. That clause contained time of decision criteria.

2. At the time the application was determined by the tribunal, clause cl.457.223(4) provided:

   Standard business sponsorship

   (4)  The applicant meets the requirements of this subclause if:

   …

   (ea)  if:

   (i)  the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

   (ii)  in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

   the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

   (eb)  if:

   (i)  the applicant is not an exempt applicant; and

   (ii)  subclause (6) does not apply to the applicant; and

   (iii)  at least 1 of subparagraphs (ea)(i) and (ii) does not apply;

   the applicant:

   (iv)  has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)  achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)  if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   …

1. Clause 457.223(11) is also relevant.  It provided:

   (11)  In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

2. The first matter for determination under cl.457.223(4)(eb) was whether the applicant was not an exempt applicant for the purposes of that clause.  As to that matter, the tribunal found that the applicant was not an exempt applicant as specified by the Minister in an instrument for the purposes of cl.457.223(4).  There have been a series of instruments that contain specifications by the Minister for the purposes of cl.457.223(4).  The tribunal referred to such an instrument.  It was described by the tribunal as “IMMI 13/099”.  But that was the wrong instrument.  At the time of the tribunal’s decision, it was no longer in force.  It had been replaced by a later instrument.  The first respondent concedes that the correct instrument was described as “IMMI 14/009”.

3. The tribunal also had regard to IMMI 13/099 for the purposes of determining whether cl.457.223(6) did not apply to the applicant.  It determined that the cl.457.223(6) did not apply to the applicant.

4. The tribunal’s reasons for decision demonstrate that it did not expressly consider whether at least one of cll.457.223(4)(ea)(i) and (ii) did not apply to the applicant.  That is not surprising because the applicant made no case, either before the first respondent’s delegate, or before the tribunal that he met the provisions of both cll.457.223(4)(ea)(i) and (ii).

5. The applicant had provided the tribunal with the results of two English language test results dated 18 January, 2014 and 19 July, 2014.  The tribunal assessed his results against the matters specified by the first respondent in IMMI 13/099.  According to that instrument he needed to demonstrate that he had achieved scores of at least 5.0 in four language areas of speaking, reading, writing and listening.  However, he could not demonstrate those results.   The applicant received a score of 4.5 for speaking in the earlier test, and 4.5 for writing in the later test.  In those circumstances, the tribunal determined that it could not be satisfied that the applicant had achieved scores of at least 5 in each of the 4 test components.

6. The applicant requested that the tribunal provide him with further time to make a booking to sit a further English language test.  However, for the reasons set out in the tribunal’s reasons for decision, the Tribunal declined to delay its decision.

7. The tribunal found that the applicant did not satisfy the requirements of cl.457.223(4)(eb) of Schedule 2 to the Regulations and the decision under review was affirmed.

The grounds of review

1. The applicant’s grounds of review are expressed as follows:

   1.  The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:

   a. That the Tribunal misinterpreted the legislation in respect of the requirement for International English Language Testing System, commonly known as IELTS.

   2. The Tribunal engaged in conduct which amounted to jurisdictional error in the following respects:

   a. The Tribunal misinterpreted the requirement for English language, as amended in the Legislative Instrument number IMMI 14/009.

   b. For the purposes of subparagraph 457.223(4)(eb)(v) the applicant need to demonstrate that he or she has following scores:

   i. a score of at least ‘B’ in each of the four components of an OET; or

   ii. an IELTS test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening.

   c. The legislation does not state that the scores must be obtained in one single test.

   d. In the two tests the applicant took he had obtained following scores:

   Date of test: 19/07/2014 - reading 5.0; listening 5.5; writing 4.5; speaking 5.5

   Date of test: 18/01/2014 - reading 5.0; listening 5.5; writing 5.0; speaking 4.5

Consideration

1. The first respondent concedes that the tribunal had regard to the wrong legislative instrument when it considered the applicant’s claims to have met cl.457.223(4)(eb).  IMMI 13/099 had been replaced by another legislative instrument when the tribunal made its decision.  The correct instrument was IMMI 14/009 which commenced on 19 March, 2014 and remained in operation at the time of the tribunal’s decision on 11 August, 2014.

2. However, the first respondent argues that while the tribunal applied an out-dated legislative instrument, the language requirements of the two tests were exactly the same and so, in practical terms, the tribunal’s error had no effect upon the outcome of the visa application.  Even if the tribunal had identified the correct legislative instrument, the first respondent says, the result of the visa application must have been the same as that arrived at by the tribunal in its decision. 

3. Clause 3(c) of IMMI 13/099 provided that an exempt applicant will include:

   Applicants who have:

   (1) Undertaken a language test specified by the Minister in an instrument in writing for the purposes of paragraph 1.15B(1)(a) of the Regulations; and

   (2) Undertaken that language test after the day that the application that this Instrument applies was made; and

   (3) Achieved the score specified in an instrument in writing for paragraph 1.15B(1)(c) of the Regulations;

4. At the relevant time cl.1.15B of the Regulations provided that:

   (1) A person has vocational English if:

   (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c) the person achieves a score specified in the instrument.

5. IMMI 13/099 referred to IMMI 12/018 for the purposes of specifying the relevant English test scores. IMMI 12/018 specified for the purposes of the Regulations that for applications lodged on or after 1 July, 2012 the applicant was required to achieve, for the purpose of clause l.15B of the Regulations:

   • An IELTS test score of at least 5 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.

6. However, cl.3 of IMMI 14/009 did not continue to refer to IMMI 12/018.  Relevantly, it provided that for the purposes of cl.457.223(4)(eb)(v) the following scores were required:

   (a) A score of at least ‘B’ in each of the four components of an OET; or

   (b) An IELTS test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening.

7. As the first respondent points out, although the tribunal had referred to the wrong instrument when it identified the results that the applicant had to demonstrate in his English test, the error was immaterial.  Whichever instrument applied, the results that the applicant had to demonstrate were the same.  He could satisfy the requirements of neither instrument.  The error made by the tribunal was not one that materially affected the tribunal’s decision.  “[A] decision does not ‘involve’ an error of law ... unless the error is material to the decision in the sense that but for the error the decision might have been different”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 353.

8. A similar (although not identical) situation occurred in Farook v Minister for Immigration and Border Protection [2014] FCA 1017. In that case, Murphy J said, at [57]:

   The tribunal did not identify the wrong issue or ask itself the wrong question. It correctly asked whether it was satisfied that the appellant had achieved either:

   (a) an IELTS test score of at least 6 for each of the four test components; or

   (b) a score of at least “B” in each of the four components of an OEL test.

   It erred only in identifying IMMI 09/173 as the source of the question. As I have said, the appellant failed on the first limb of this question and the appellant did not assert that he had ever sat an OEL test. In my view the tribunal’s error is immaterial and does not constitute jurisdictional error: see Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [7]- [14] per Jagot J.

9. With respect, I adopt the same approach.  This ground of the application must fail.

10. The tribunal’s reliance upon the wrong legislative instrument carries potential for other findings made by the tribunal to be erroneous.  But as the first respondent submits, to the extent that the tribunal made reference to IMMI 13/009, the erroneous reference was immaterial because the relevant requirements specified in it were identical to the requirements specified in the correct instrument, namely IMMI 14/009.  For example, both legislative instruments specified that the applicable base salary, for the purposes of cl.457.223(6)(a), was AU$96,400 per annum. 

11. As to the second identifiable ground of review raised by the applicant, his contention that the required scores do not have to be obtained in one single test is plainly wrong.  Clause 475.223(4)(eb)(v) specifically provides that the required score must be achieved in a single attempt at the test.  I accept the first respondent’s argument that it is not sufficient for the applicant to show that he had obtained the required scores in each component when several tests are combined.  The requisite test score must be obtained in one single test.

Conclusion

1. There is no jurisdictional error in the tribunal’s decision. It is a privative clause decision within the meaning of s.474 of the Migration Act1958.  The application must be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 December 2014.

Associate: 

Date:         19 December 2014