Singh v Minister for Immigration
[2014] FCCA 2588
•17 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2588 |
| Catchwords: MIGRATION – Skilled (Residence) (Class VB) visa–English language test – competency requirement – time frame within which to produce English language test results – whether review application ought to have been adjourned to allow for receipt of results of test undertaken after visa application – adjournment futile – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), regs.1.15C(1), 1.15C(2), Schedule 2, cl.885.215 |
| Govind v Minister for Immigration and Border Protection [2014] FCA 864 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| Applicant: | MANINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 460 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 September 2014 |
| Date of Last Submission: | 11 September 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Clayton Utz |
The Second Respondent entered a submitting appearance.
ORDERS
The application filed on 20 May, 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 460 of 2014
| MANINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 22 April, 2014 the second respondent affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act1958 (Cth).
By this application, the applicant seeks to have that decision set aside and the matter remitted to another tribunal for further hearing and determination according to law.
Despite directions to do so, the applicant did not file any written submissions in support of his application. I have the benefit of thorough written submissions from the first respondent, upon which I have drawn in the preparation of these reasons.
Background
On 28 December, 2012 the applicant applied for the visa set out above. The relevant visa subclass sought by the applicant was a subclass 885 (Skilled – Independent) visa. In order for the applicant to obtain a subclass 885 (Skilled – Independent) visa, a number of conditions set out in cl.885 of sch.2 of the Migration Regulations1994 (Cth) needed to be met.
One of the criteria that needed to be satisfied at the time the visa application was made was contained in cl.885.21which provided:
885.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 applicant. Other applicants who are members of the family unit of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.
885.21 Criteria to be satisfied at time of application
885.211 (1) The applicant meets the requirements of subclause (2), (3) or (4).
(2) The applicant met the requirements of subitem 1136 (4) of Schedule 1, and:
(a) the applicant satisfied the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made; and
(b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
(3) The applicant met the requirements of subitem 1136 (5) of Schedule 1, and:
(a) if the applicant holds a Subclass 476 (Skilled — Recognised Graduate) visa, the qualification used to obtain that visa is closely related to the applicant’s nominated skilled occupation; or
(b) if the applicant holds a Subclass 485 (Skilled — Graduate) visa, each degree, diploma or trade qualification used to satisfy the Australian study requirement to obtain that visa is closely related to the applicant’s nominated skilled occupation.
(4) The applicant met the requirements of subitem 1136 (6) of Schedule 1, and:
(a) the applicant must have completed the apprenticeship for which the Subclass 471 (Trade Skills Training) visa was granted; and
(b) the apprenticeship is closely related to the applicant’s nominated skilled occupation.
885.213 The applicant has competent English.
885.214 The application is accompanied by evidence that:
(a) the applicant; and
(b) each person included in the application who is at least 16;
has applied for an Australian Federal Police check during the 12 months immediately before the day when the application is made.
885.215 The application is accompanied by evidence that the applicant and each person included in the application has made arrangements to undergo a medical examination for the purpose of the application.
For the purposes of cl.885.213, reg.1.03 defined “competent English” as follows:
“competent English” has the meaning given in regulation 1.15C.
Regulation 1.15C defined “competent English” in the following way:
1.15C Competent English
(1) A person has competent 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 achieved a score specified in the instrument.
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
For the purposes of reg.1.15C(1)(a) and (c), by legislative instrument IMMI 12/018 the Minister had specified two language tests and scores, namely:
a)the International English Language Test System (IELTS) test (in which test scores of at least 6 for each of the 4 test components needed to be obtained); and
b)the Occupational English Test (OET) (in which test scores of at least B’s for each of the test components needed to be obtained).
The applicant’s visa application failed before the first respondent’s delegate because he was not able to demonstrate that at the time of the application for his visa he had “competent English”. In his application he claimed that he had sat an IELTS test on 1 December, 2012. He provided a test reference number (12AU007560TM105G). He provided what purported to be the results of that test which showed that he had obtained the requisite scores. However, when the first respondent’s delegate attempted to verify the test scores it was apparent that the results were not as reported in the applicant’s visa application and were insufficient for the applicant to satisfy reg.1.15C(1)(a) and (c) of the Regulations. The applicant had not obtained IELTS test scores of 6.0 or better in each of the four test components according to the IELTS test results verified by the delegate. He did not claim to be able to satisfy the relevant criterion by reference to the results of an Occupational English Test.
On 27 August, 2013 a representative for the applicant communicated with the first respondent’s delegate and asserted that there must have been some mistake because the test results provided by the applicant to the delegate in his visa application “were absolutely genuine”. The applicant’s agent provided the delegate with a further copy of a document which purported to be an IELTS test with scores that satisfied the relevant regulation.
On 9 September, 2013 the applicant sought review of the delegate’s decision by a migration review tribunal. A hearing was proposed by the tribunal for 29 November, 2013 but the applicant declined to attend so it was cancelled and the tribunal decided the application on the papers.
On 19 November, 2013 the tribunal decided to affirm the delegate’s decision. However on 10 February, 2014 and with the first respondent’s consent, the Federal Circuit Court quashed the tribunal’s decision and remitted it to the tribunal for reconsideration.
On remitter, the tribunal emailed the body responsible for maintaining records of IELTS test results about the applicant’s purported test results using the reference number that he supplied.
On 17 March, 2014 the IELTS test score verification body responded by email to the tribunal advising that, after a careful review of their internal records, the scores contained in the search originally conducted by the first respondent’s delegate matched their internal records and, accordingly, that the results contained on the test report relied upon by the applicant at the time of his application and again after the delegate’s decision were incorrect.
On 21 March, 2014 the tribunal wrote to the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on that material alone. The tribunal invited the applicant to attend on a hearing before it on 17 April, 2014.
On 25 March, 2014 the applicant’s migration agent wrote to the tribunal indicating the applicant’s intention to appear on the tribunal hearing on 17 April, 2014.
On 2 April, 2014 the applicant’s migration agent wrote to the tribunal. That letter stated:
We refer to the above matter and to your letter of 21 March 2014.
Our client has advised us that he has made a booking for an IELTS examination on 5 April 2014 to take place at the Queensland University of Technology (Kelvin Grove) and he expects to receipt [sic] the results of this examination on or about 18 April 2014 (please see attached IELTS examination booking confirmation).
As the hearing date is currently scheduled for 17 April 2014 at 9:30am, kindly advise if the tribunal is agreeable to the postponement of the hearing (likely the [sic] 18 April 2014) until the applicant receives the results of his examination…
On 4 April, 2014 the tribunal wrote back to the applicant’s migration agent refusing to grant the postponement sought.
On 17 April, 2014 the applicant attended on a hearing before the tribunal. At the hearing the applicant told the tribunal that:
a)he only held a passport from India;
b)he had never sat the OET test;
c)he had sat the IELTS test three times – once in 2013, once in early 2014 and once on 4 April, 2014; and
d)in relation to those IELTS tests which the applicant had sat:
i)he did not achieve scores of 6.0 or better in each of the four testing components in the first two IELTS tests he had sat; and
ii)he had not received his IELTS test scores for the test he sat on 4 April, 2014.
When the applicant was asked by the tribunal about the evidence he had provided that he sat another IELTS test on 1 December, 2012 and achieved scores of 6.0, 6.0, 6.0 and 7.5, the applicant responded by stating that that was not correct as he did not sit that test and it is likely that the evidence was provided by his previous representative in error.
The applicant then asked the tribunal to adjourn the review for a period of time so that he could provide the results of the IELTS test he sat on 4 April, 2014. The tribunal refused to grant the adjournment requested on the basis that, even if the applicant passed the IELTS test he sat on 4 April, 2014, the applicant would still not be able to satisfy the relevant visa criterion in cl.885.213 of sch.2 of the Regulations (which, when read together with reg.1.15C, required that the satisfactory IELTS test result must be obtained from an IELTS test sat in the period of three years prior to the date of the visa application – i.e. in the three years prior to 28 December, 2012).
On 22 April, 2014 the tribunal rejected the applicant’s visa application for the reason that, as he had not sat any IELTS test prior to the making of his visa application (or passed any such test), he did not have “competent English” and therefore failed to satisfy the relevant visa criterion (i.e. cl.885.213).
The grounds of review
By his application filed on 20 May, 2014, the applicant raises the following grounds of review to support his case that the tribunal’s decision should be set aside:
1. The Second Respondent failed to comply with s.357A(3) of the Migration Act 1958 in not granting the Applicant an extension of time before making a decision on review and as such made a jurisdictional error;
2. The Second Respondent failed to comply with s.353(a) of the Migration Act 1958 in not granting the Applicant an extension of time before making a decision on review and as such made a jurisdictional error;
3. The Second Respondent did not properly carry out its function of properly reviewing a decision under s.348 of the Migration Act 1958 in not granting the Applicant an extension of time before making a decision on review and as such made a jurisdictional error;
4. The Second Respondent breached the natural justice hearing rule contained in Division 5 of Part 5 of the Migration Act 1958 by not granting the Applicant an extension of time before making a decision on review and as such made a jurisdictional error;
5. The Second Respondent’s decision was unreasonable and/or irrational by not granting the Applicant an extension of time before making a decision on review and as such made a jurisdictional error;
6. Further and/or in the alternative, the Second Respondent failed to ask itself the correct question in making the decision of the First Respondent and this was an error of jurisdiction. That is, whether it should grant the Applicant an extension of time before making a decision.
It will be immediately observed that the applicant’s case focuses upon the tribunal’s failure to give him time to obtain the IELTS test results for the test that he sat on 4 April, 2014. Although it is put in six different ways, the argument is essentially the same – the tribunal ought to have adjourned the hearing and determination of his application until he had the most recent test results to hand.
There is a single answer to all six grounds of review. Put simply, it was futile for the tribunal to grant the adjournment or extension as the applicant sought because the results of his IELTS test undertaken on 4 April, 2014 would not have made any difference to the outcome of the tribunal’s review. That is so because cl.885.213 and reg1.15C required that the relevant IELTS test be sat in the three year period prior to the visa application being made. It is only if the relevant test was sat in the three year period prior to the visa application being made and the results were of the requisite standard that the criterion prescribed by cl.885.213 is met. Accordingly any adjournment to enable the applicant to obtain results for an IELTS test he sat on 4 April, 2014 (some four months after his visa application) was futile.
Such an approach is consistent with authority: Singh v Minister for Immigration and Border Protection [2014] FCA 185. In that case, Barker J explained:
[11] I consider that there is no real doubt that the relevant competent English test is that defined in reg 1.15C of the regulations which, as his Honour explained, was inserted by the Migration Amendment Regulations 2011 (No 3) (Cth) and applied to all visa applications lodged on or after 1 July 2011... It was this regulation that both the delegate and MRT applied.
[12] As his Honour noted, at [12], the purpose of the amendment to the regulations was to clarify the timeframe within which an English language test must have been conducted for the purpose of a visa application, following the decision of the High Court of Australia in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 ; (2010) 264 ALR 417 in which it was held that an earlier version of reg 1.15C allowed for a test to be taken after a visa application had been lodged.
[13] While, perhaps understandably, Mr Singh feels aggrieved that he was adjudged according a different test from that which earlier applied, the law plainly is that the new reg 1.15C as amended in 2011 was required to be applied in this case. Thus, the primary judge was correct to find that the MRT and the delegate had not committed any jurisdictional error in dismissing the application made by Mr Singh.
The same result was reached in Govind v Minister for Immigration and Border Protection [2014] FCA 864.
Whilst both Singh (above) and Govind (above) deal with an IELTS test sat in the two year period preceding the relevant visa application, the relevant regulations were amended in 2012 so that the relevant time frame for the present application is three years rather than two. In all other respects, Singh and Govind are indistinguishable from the present case and the ratio in each of those cases binds me in this case.
I accept the first respondent’s argument that having regard to those matters three things follow, namely:
a)the tribunal’s decision to refuse the grant of an adjournment cannot be said to be affected by any error;
b)even if error exists, any error on the tribunal’s part was immaterial as the application for the relevant visa could never succeed; and
c)even if any error exists, it would be futile to remit the matter back to the tribunal for re-determination given that the applicant can never succeed in obtaining the visa applied for on 28 December, 2012.
Conclusion
No jurisdictional error is established by the applicant. The decision is a privative clause decision under s.474(2) of the Act and is not reviewable under s.476 of the Act.
The application must be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November, 2014.
Deputy-Associate:
Date: 18 November 2014
0
3
3