Singh v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 267
•26 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 267
File number(s): SYG 2457 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 26 February 2025 Catchwords: MIGRATION – Judicial Review – Subclass 457 Visa – Where applicant did not meet English language requirement – Tribunal had no discretion to waive requirement – No procedural unfairness – Where applicant conceded the Tribunal made no error– Application dismissed – Costs awarded Legislation: Migration Act 1958 ss 65, 357, 357A, 360, 366
Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complimentary Reforms) Regulations 2018 sch 1
Migration Regulations 1994 Sch 2 cl 457.223(4)(eb)
Cases cited: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 12 February 2025 Place: Parramatta Counsel for the Applicants: In person Solicitor for the First Respondent: HWL Ebsworth Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs. ORDERS
SYG 2457 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SIKANDER SINGH
First Applicant
KULWINDER KAUR
Second Applicant
RANDEEP SINGH (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
26 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 29 October 2020 is dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the amount of $5,600.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
INTRODUCTION
By application, filed on 29 October 2020, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal[1] (the Tribunal) dated 5 October 2020. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (the Minister) in refusing to grant the applicants Temporary Business Entry (Class UC) (subclass 457) visa (the visas) under s 65 of the Migration Act 1958 (the Act).
[1] The Court notes that the Administrative Appeals Tribunal has been superseded by the Administrative Review Tribunal. Item 10, Part 2 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 provides that for any proceedings that were pending in any court or tribunal immediately before the transition time and to which the Administrative Appeals Tribunal was a party, the Administrative Review Tribunal is, after the transition time, substituted for the Tribunal as a party to the proceedings. Therefore, in these Reasons, reference to the Tribunal is a reference to the Administrative Review Tribunal.
BACKGROUND
The applicants are citizens of India. The first and second applicants are husband and wife respectively. The third and fourth applicants are their adult children.
On 10 March 2017, the first applicant (the applicant) applied for the visas. The second, third and fourth applicants were included in the visa applications as dependents of the applicant. In the visa applications, the applicants nominated a migration agent as their authorised recipient and provided their email address for correspondence. The visa applications provided that BK Singh & L Singh would be the nominating employer (proposed sponsor). The nominated position was listed as Crop Farmer.
In his visa application form, in response to questions about his English language ability, the applicant indicated that he did not hold a passport from one of the countries specified and that he had not undertaken an English test within the last 36 months: CB 11, 12.
On 11 April 2017, the Department of Immigration and Border Protection (the Department) requested the applicant to provide evidence of meeting the required level of English language proficiency by 20 October 2019. The applicant did not submit the requested evidence.
At the relevant time, a criterion to be met for the grant of the subject visa was contained in cl 457.223(4)(eb) of Sch 2 of the Migration Regulations 1994 (Regulations), which reads:
Regulation 457.223(4)
(4) The applicant meets the requirements of this subclause if:
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
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
On 17 January 2018, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of cl 457.223(4)(eb) of Schedule 2 of the Regulations. The secondary applicants were refused on the basis that they were not the members of a family unit of a person who held a visa.
On 6 February 2018, the applicants applied to the Tribunal for review of the delegate’s decision.
On 22 June 2020, the Tribunal wrote to the applicants’ representative, requesting the applicant provide evidence that, inter alia, he met the English language requirement under the Regulations or that the English language requirement did not apply to him: CB 129-130.
On 19 July 2020, the applicants' representative submitted to the Tribunal a screenshot of an email confirming that the applicant had booked an IELTS test scheduled on 14 September 2020: CB 131-134.
On 4 September 2020, the Tribunal invited the applicants (via their representative) to attend a hearing scheduled for 24 September 2020 to give evidence and present arguments. The hearing invitation requested the applicant provide evidence of the IELTS test result prior to the hearing: CB 145.
On 15 September 2020, the Tribunal informed the applicants that the in-person hearing had been changed to a telephone hearing on 30 September 2020 due to the Covid-19 pandemic. The applicants appeared before the Tribunal at the scheduled hearing and the employer, Labh Singh, was also present as a witness.
On 5 October 2020, the Tribunal affirmed the delegate’s decision not to grant the visas. The applicants were notified of the decision by letter dated 8 October 2020.
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue was whether the applicant satisfied the requirements of cl 457.223(4)(eb) of the Regulations. The Tribunal stated that this clause mandated that the applicant meet the English language requirements, unless an exemption applied.
The Tribunal stated that the applicant did not qualify for any of the exemptions described in IMMI 15/028, would not be paid the salary specified in that instrument and did not achieve the required English language test scores within the prescribed period.
The Tribunal noted that the applicant gave evidence at the hearing that he had not achieved the required test score on any International English Language Testing System (IELTS) exam: Tribunal’s decision [12].
Accordingly, having found that the applicant had not achieved the required test score and in the absence of any applicable exception, the Tribunal concluded that it must affirm the decision under review.
APPLICATION TO THIS COURT
On 29 October 2020, the applicants filed the originating application with this Court. The applicants also filed an affidavit, affirmed on 28 October 2020, which annexed the Tribunal’s decision. The contents of the affidavit included submissions that there was jurisdictional error in the Tribunal’s decision, and that the Tribunal ‘did not consider the evidence and information fairly’. The applicants also lodged a second affidavit on 13 November 2024, however it was substantially identical to the first affidavit.
On 7 December 2020, the Minister filed a Response pleading that the application failed to establish jurisdictional error and for costs.
On 20 March 2023, the Minister filed the Court Book. On 30 January 2025, the Minister also filed an outline of submissions. On 7 February 2025, the Minister also filed a list of authorities.
On 12 February 2025, the matter was heard at the Parramatta Registry of the Court. The applicants appeared in person with the assistance of an interpreter in the Punjabi and English languages. The applicants confirmed that the applicant would speak on their behalf. Ms Ren, a solicitor advocate appeared on behalf of the Minister.
The Minister sought to rely on the material in the Court Book. Accordingly, the Court Book was tendered into evidence and marked as Exhibit CB. The applicants’ affidavits were taken into account as submissions.
Being mindful that the applicants were unrepresented, the Court explained to them how the hearing would proceed and the role and powers of the Court in judicial review proceedings.
The applicant was invited to make oral submissions in support of the applicants’ grounds of review raised in their application.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT).
Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Grounds of Review
The originating application filed by the applicant on 29 October 2020, does not specify a ground of review. The ten paragraphs within the application relevantly provide the following (without alteration):
1. We applied for a Temporary Business Entry (Class UC) (Subclass 457) visa in 2017 where Sikander Singh was the main applicant and Kulwinder Kaur, Randeep Singh and Prabhdeep Kaur were dependents.
2. This visa application was refused on 10th March 2017 under s.65 of the Migration Act 1958 (the Act) because the delegate believed that we did not meet conditions under cl.457.223(4)(eb) of the Migration Regulations 1994 (the Regulations).
3. We appealed this decision to the Administrative Appeals Tribunal (AAT) and were invited to appear before the tribunal on 30th September 2020 for a hearing. On this hearing we tried to explain what happened and to present our arguments and give evidence as to why our visa should not be refused.
4. On 5th October 2020 the tribunal affirmed the decision to not grant us the Temporary Business Entry (Class UC) (Subclass 457) visa's.
5. We gave the department and the AAT good reasons for why our case should be considered and why we should be given some leniency but they did not consider the evidence and information fairly and refused our visa.
6. The unfair decision of the department and AAT will have a severely terrible impact on all of us and I would like the Federal Circuit Court to consider this when looking at our case.
7. We think that the AAT has made a jurisdictional e1rnr in deciding our application and we would like the Federal Circuit Court to review this.
8. We would like the court to find this jurisdictional error so that the decision made by the AA T can be quashed and our application can be returned to the AA T for further assessment.
9. We declare that we will follow all conditions and rules for this visa and respect all the laws of Australia like we have the whole time we have been here.
10. We can provide the court any information they need to help us in this situation and we thank the court for taking time to consider our application.
At the hearing, the applicant conceded that he did not satisfy the English language requirement within the specified three years of the application. He also understood that he was not an exempt applicant. He said he did not think the Tribunal did anything wrong when it made the decision.
The applicant’s 10 proposed grounds are a mixture of statements, submissions and unparticularised complaints about the Tribunal’s decisions. The Minister has helpfully grouped the proposed grounds into four categories. For ease of consideration, the Court adopts the Minister’s categorisation of the proposed grounds of judicial review.
Ground one to four
Grounds one to four set out the factual background to the proceedings before the Court and do not allege any jurisdictional error on the part of the Tribunal.
Grounds one to four do not establish jurisdictional error.
Ground five
By this ground the applicants contend that the Tribunal failed to consider the evidence and information fairly and refused their visas without taking into account their compelling reasons.
A fair reading of the Tribunal’s decisions discloses that it had regard to the evidence provided by the applicants. This was a case where the Tribunal had to be satisfied on the evidence before it that the applicant either satisfied the English language requirement, was an exempt applicant or would be paid the specified salary level as provided for in the Regulations.
The applicant acknowledged that he did not achieve the required test score in the English language test: CB 170 at [12]. The evidence before the Tribunal also indicated that the applicant would not be paid at least the salary level specified in the instrument ($96,000) and that he was not a person in respect of whom any of the exemptions applied.
The Tribunal plainly considered the evidence from the applicant's employer that the applicant was a good employee, and that English language proficiency was not necessary to perform the tasks of the nominated occupation. The Tribunal at [13] correctly concluded that it was not able to take into consideration the applicant's suitability as an employee for the purpose of determining whether he satisfied the requirement in cl 457.223(4)(eb).
The Court accepts the Minister submission that the Tribunal did not have any discretion to afford leniency or waive the requirement for English language in cl 457.223(4)(eb) of the Regulations which had to be satisfied at the time of the Tribunal's decision.
Ground five does not establish jurisdictional error.
Ground six
By this ground, the applicants contend that the Tribunal's decision was ‘unfair’.
As submitted by the Minister, Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted under Part 5 of the Act: s 357A. The applicants have not particularised a breach of any the procedural fairness obligations that arise under this division and none is apparent.
The Court accepts, as submitted by the Minister, that the Tribunal complied with s 360(1) of the Act by inviting the applicants to attend a hearing. The Tribunal hearing was conducted with the assistance of an interpreter. The Court accepts that s 360(1) did not require the hearing to take place in person and the Tribunal was entitled to allow the applicants to appear by telephone under s 366 of the Act: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157, at [26]-[28]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 713 at [43].
Further, the applicant had consented to the Tribunal conducting the hearing by telephone: CB 154.
The evidence before the Court does not disclose any failure on the part of the Tribunal to comply with its procedural fairness obligations.
Ground six does not establish jurisdictional error.
Ground seven to ten
As submitted by the Minister, grounds seven to ten merely state the outcome the applicants wish to attain from the judicial review proceedings. The applicants give an undertaking to comply with the visa conditions if they be granted 457 visas. These grounds do not allege any error on the part of the Tribunal.
Grounds seven to ten do not establish jurisdictional error.
Issue identified by the Minister – the Tribunal’s reliance on IMMI 15/028
As a model litigant, the Minister brought to the Court’s attention that the Tribunal had referred to the wrong instrument (IMMI 15/028) and that the correct instrument was IMMI 17/057. The Minister nevertheless contended that the error was not material because there is no realistic possibility that the Tribunal decision could have been different if the correct instrument had been referred to: LPDT at [7].
The Minister referenced the Migration Legislation Amendment (Temporary Skilled Shortage Visa and Complimentary Reforms) Regulations 2018 (the Amending Regulations), namely Schedule 1, Part 1, item 6702(2):
Despite the repeal of the following provisions by the amending regulations, those provisions (including any instruments made under them), as in force immediately before the commencement of Schedule 1 to the amending regulations, continue to apply in relation to an application for a visa made before the commencement day:
…
(c) Part 457 of Schedule 2;
It was submitted that since the visa applications were made on 10 March 2017, before the Amending Regulations commenced, the Tribunal was correct to apply cl 457.223 as it stood prior to the Amending Regulations.
It was noted that on 1 July 2017, IMMI 15/028 was replaced by IMMI 17/057: see cl 6 of IMMI 17/057. Therefore, the relevant instrument that applied immediately before the commencement of Schedule 1 to the Amending Regulations was IMMI 17/057 (and not IMMI 15/028).
The Minister contended that despite this, the Tribunal's reference to IMMI 15/028 could not have made any material difference to the final outcome given that the relevant provisions in IMMI 15/028 (cll 4, 6 and 7) were substantially the same as the equivalent provisions in IMMI 17/057 (cll 9, 10 and 11).
Furthermore, even if the Tribunal had applied IMMI 17/057, the applicant could not have met cl 457.223(4)(eb) at the time of the Tribunal's decision. This is because:
(1)The applicant conceded at the Tribunal hearing that he had not achieved the required test score on any English language tests within three years from the date of the visa application to satisfy cl 457.223(4)(eb)(v).
(2)Clause 457.223(6) did not apply to the applicant. Clause 457.223(6) applies if the base rate of pay for the applicant is at least the level of salary specified by the Minister under an instrument. Paragraph 10 of IMMI 17/057 specified, for the purpose of cl 457.223(6)(a), that the base rate of pay is at least $96,400. The applicant indicated in his 457 visa application that his "best rate of pay (per annum)" was $54,000 AUD: CB 13 and there was no evidence before the Tribunal to indicate that the applicant's salary had changed since the application was lodged. Therefore, cl 457.223(6) did not apply to the applicant at the time of the Tribunal's decision.
(3)The applicant was not an exempt applicant under cl 457.223(eb)(i). An exempt applicant was specified pursuant to cl 457.223(11) and by para 11 of IMMI 17/057. The applicant did not meet any of the classes specified in para 11 of IMMI 17/057 because:
(a)the applicant was not a citizen of any of the countries specified in para 11(a);
(b)as indicated in his visa application (CB 12), the applicant had not completed a minimum of 5 years of full-time study in a secondary or higher education institutions where the instruction was delivered in English: para 11(b);
(c)the applicant had not provided any evidence that he was nominated in relation to an activity or occupation that would be performed at a diplomatic level or consular mission of another country: para 11(c);
(d)the applicant had not provided evidence that he was nominated in an occupation that required registration, licence or membership by which he was required to demonstrate a level of English language competency that is equivalent to or better than the level of English language proficiency that is required to achieve a score specified in item 2 of IMMI 17/057 for a test specified in item 1 of the instrument: para 11(d);
(e)the applicant was not employed by a company operating an established business overseas: para 11(e).
Having regard to the above, the Court accepts that the Tribunal’s reference in its decision to IMMI 15/028 instead of IMMI 17/057 was not a material error. This is because the decision made by the Tribunal could not realistically have been different had it applied the correct instrument. It follows that the error made by the Tribunal was not jurisdictional.
As none of the grounds raised by the applicant or the Minister establish jurisdictional error, the application for judicial review must be dismissed.
COSTS
The Minister sought an order that the applicants (all of whom were over 18 years of age at the time of the judicial review application) pay the Minister’s costs fixed in the sum of $5,600. The applicants did not make any submissions in that regard.
There is no reason why costs should not follow the event. Accordingly, the Court will order that the applicants pay the Minister’s costs of the proceedings fixed in the sum of $5,600.
CONCLUSION
The Court will make orders dismissing the application for judicial review and that the applicants pay the Minister’s costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 26 February 2025
SCHEDULE OF PARTIES
SYG 2457 of 2020 Applicants
Fourth Applicant:
PRABHDEEP SINGH
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