Singh v Minister for Immigration & Anor
[2016] FCCA 19
•14 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 19 |
| Catchwords: ADMINISTRATIVE LAW – Whether reg.1.15C of the Migration Regulations 1994 invalid – whether invalidity of delegated instrument affects validity of empowering provision – whether Tribunal required to consider material of which the presiding member was unaware but which had been provided to the Tribunal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misunderstood reg.1.15C, failed to consider relevant material and erred in the exercise of a discretion to postpone its decision pending submission of further information. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, s.474 Acts Interpretation Act 1901, s.15AA |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71 Milanes v Minister for Immigration & Border Protection [2015] FCA 1105 Parmar v Minister for Immigration & Citizenship (2011) 195 FCR 186 Ghori v Minister for Immigration & Citizenship [2011] FCA 759 Sidhu v Minister for Immigration & Border Protection [2014] FCA 935 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 WAGJ v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25 |
| Applicant: | GURPREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2982 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 7 August 2015 |
| Date of Last Submission: | 7 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 January 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones of Parish Patience |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2982 of 2013
| GURPREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 21 June 2010. On 5 June 2012 the application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy cl.485.215 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.485.215 which, in the version of the clause which applied at the time he lodged his application and continued to apply to him, required that he have “competent English” at the time of making his application: item 9 of sch.2 and item 1 of sch.6 to the Migration Legislation Amendment Regulation 2013 (No.1).
“Competent English” has the meaning given to it by reg.1.15C. At the time the applicant lodged his application reg.1.15C provided:
1.15C Competent English
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
(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 the version set out above continued to apply to the applicant: reg.3 and item 2 of sch.1 to the Migration Amendment Regulations 2011 (No.3) and items 12 and 124 of sch.1 to the Migration Amendment Regulation 2012 (No.2).
At the time the applicant applied for the visa, reg.1.03 of the Regulations provided:
IELTS test means the International English Language Testing System test.
…
Occupational English Test means an Occupational English Test conducted by the National Language and Literacy Institute of Australia.
The instrument referred to in reg.1.15C was IMMI 09/073 (Legislative Instrument F2009L02575) which relevantly provided:
2.SPECIFY a score of at least ‘B’ in each of the four components of an Occupational English Language test is a score of competent English for the purposes of sub-paragraphs 1.15C(a)(ii)(A) and (B); AND
3.SPECIFY a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland, to a citizen of that country, as a passport for the purposes of paragraph 1.15C(b); ...
Background facts
In his application for a subclass 485 visa the applicant provided an IELTS test reference number and indicated that he had undertaken an IELTS test on 5 September 2009. He also indicated that his English language ability was “competent”.
On 26 September 2011 the delegate wrote to the applicant requesting the test report for the IELTS test referred to in his application. In an email response on 12 October 2011, the applicant’s migration agent advised that the applicant had booked another IELTS test on 22 October 2011. On 19 January 2012 the delegate again wrote to the applicant requiring him to provide an IELTS test report. In her decision, the delegate noted that the applicant had not provided any evidence that he had undertaken an IELTS test. In those circumstances, the delegate was not satisfied that the applicant had “competent English” as prescribed by reg.1.15C and therefore found that he did not meet cl.485.215 of sch.2 to the Regulations.
At a hearing before the Tribunal the applicant stated that he had previously undertaken IELTS tests but had not been able to achieve the necessary scores. He stated that he had undertaken a test on 12 October 2013 and was awaiting the results of that test. The Tribunal agreed to await the outcome of the results and requested they be provided by 30 October 2013.
In its decision, which was dated 31 October 2013, the Tribunal noted that it had not received any IELTS test results from the applicant. However, the Court Book which was exhibit 1 indicates that at 2.30pm on 31 October 2013 the applicant faxed to the Tribunal the results of his 12 October 2013 IELTS test. Those test results indicate that he failed to achieve the necessary scores in three of the four components of the test.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to not grant the applicant a Skilled (Provisional) (Class VC) visa. It noted that it had been more than three years since the applicant had lodged his application and considered that he had had ample opportunity to attempt the English language tests and to achieve the necessary scores. As it believed that the applicant had not provided evidence that he had achieved the specified scores in an IELTS test, the Tribunal was not satisfied that he had “competent English” as defined by reg.1.15C.
Proceedings in this Court
In his amended application the applicant alleged:
1.Regulation 1.15C is invalid and should not have been used by the Tribunal to determine whether the Applicant had competent English.
Particulars
Regulation 1.15C is not a lawful exercise of the regulation-making power in s 504 of the Migration Act 1958 because it is arbitrary, capricious and / or incapable of practical administration.
2.If reg 1.15C is valid, the Tribunal erred in its interpretation of the regulation.
Particulars
The Tribunal considered the definition of “competent English” in reg 1.15C to be exhaustive. The definition is not exhaustive and an applicant may be able to show other evidence of having competent English. The Tribunal did not turn its mind to whether such other evidence might exist.
3. The Tribunal erred in failing to take into account further information provided to it by the Applicant before its decision was finalised.
Particulars
On 31 October the Applicant advised the Tribunal of the outcome [sic] the language test of 12 October and the fact that he had applied for a re-mark and had booked to sit a new test. This information was not considered by the Tribunal, which made its decision on 31 October and finalised the decision by notice to the Applicant on 1 November 2013.
4. The Tribunal’s decision involved the unreasonable exercise of a discretion.
Particulars
The Applicant provided the Tribunal with evidence that he was seeking a re-mark of the English test results and that he had enrolled in a further test in the near future, and requested the Tribunal to await the outcome of the re-mark or further test. The Tribunal made its decision without reference to the Applicant’s request, and without providing any intelligible justification for so doing.
Ground 1
IELTS test
The applicant alleged that reg.1.15C was arbitrary, capricious and/or incapable of practical administration because, in combination with reg.1.03, reg.1.15C referred to “the IELTS test” in the singular when in fact, he submitted, there were two versions of the test. Even accepting for present purposes that the applicant’s submission is correct, the existence of two versions of the IELTS test would not make reg.1.15C unworkable. The Regulations are only concerned with an applicant submitting an IELTS test result and do not distinguish between either of the two test versions said to be available. This fact indicates that the Regulations are unconcerned with which version of the test an applicant might sit.
Occupational English test
The applicant pointed to the fact that reg.1.03 talked of an “Occupational English Test” whereas IMMI 09/073 spoke of an “Occupational English Language test” and argued that this discrepancy meant that the regulation and the instrument spoke of different things. He submitted that:
a)if the list in IMMI 09/073 was meant to be part of a comprehensive list of acceptable language tests specified by reg.1.15C, then the failure of one of those specifications meant that the regulation was invalid; and
b)“[t]he actual reference for this term” was ambiguous and incapable of practical administration.
The applicant did not attempt to show why, in circumstances such as the present, invalidity in an instrument subordinate to reg.1.15C would turn reg.1.15C into the sort of provision which the Parliament could not have intended be prescribed under the regulation-making power given by the Act: Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384, 399-401. Specifically, he did point to any authority for the proposition that, if an instrument made pursuant to a delegated power was invalid because of a drafting error, the provision which had empowered the making of the purported instrument would also be invalid. Subject to anything to the contrary in the legislation and regulations relevant to the power and the instrument, the erroneous exercise of a power invalidates the purported exercise of power, not the provision giving the power.
But, in any case, the discrepancy identified by the applicant was not a matter of substance and did not render IMMI 09/073 invalid. It is apparent that reg.1.03 was drawn on the basis that there were two acceptable testing English language methods, one was IELTS tests and the other was the “Occupational English [Language] Test”. When that regulation and IMMI 09/073 are read together there is no sensible reason to doubt that they referred to the same Occupational English tests albeit in slightly different terms. In such circumstances there is ample authority and statutory power to support a finding that they should be understood to refer to the same tests: e.g. New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71 at 76 [20]-[24]; s.15AA Acts Interpretation Act 1901; s.13(1)(a) Legislative Instruments Act 2003. I find that the instrument’s prescription of the “Occupational English Language test” was not invalid for inconsistency with reg.1.03. Further, even if IMMI 09/073 and reg.1.03 did speak of different things, what IMMI 09/073 actually referred to would then simply be a matter for evidence and not invalid simply on that account.
The applicant also submitted that the test to which the term “Occupational English Language test” referred was the one conducted by the National Language and Literacy Institute of Australia which had ceased to exist no later than 2005, several years before IMMI 09/073 was made. He submitted that if the list, presumably referring to tests mentioned or provided for by reg.1.15C(a)(i), was intended to be exhaustive and intended to have at least two alternatives, the failure of one meant that the drafters’ intention had not been achieved with the result that the whole regulation should be set aside as invalid. That proposition is incorrect: Milanes v Minister for Immigration & Border Protection [2015] FCA 1105 at [93]-[104].
Passport criterion
The applicant submitted that reg.1.15C(b)’s reference to competency being related to a visa applicant holding a particular passport was irrational, capricious and absurd. He submitted that a person might hold one of those passports without having any appreciable competence in English and that in at least one of the countries referred to in reg.1.15C(b), English was not the only national language. The applicant argued that even proof of a total lack of English language ability would not prevent a decision-maker from finding a holder of one of those passports to have competent English for immigration purposes.
The applicant’s argument implies that reg.1.15C(b) was not the sort of provision that Parliament could have intended could be prescribed. However, as held in Milanes v Minister for Immigration & Border Protection at [125]-[138], provisions such as reg.1.15C(b) have a direct and substantial connection with the objects of the Act and the fact that the object might have been achieved by a different means is not to the point.
It was additionally submitted that reg.1.15C(b) was inconsistent with s.10 of the Racial Discrimination Act 1975 which relevantly provides:
10 Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
....
Regulation 1.15C(b) makes no reference to any person’s race, colour or national or ethnic origin. It refers only to the possession of particular passports which is not a characteristic referred to in s.10 of the Racial Discrimination Act. The regulation is not inconsistent with the Racial Discrimination Act.
Ground 2
While acknowledging that the Court might be obliged to follow the statements of the law expressed in Parmar v Minister for Immigration & Citizenship (2011) 195 FCR 186, Ghori v Minister for Immigration & Citizenship [2011] FCA 759 and Sidhu v Minister for Immigration & Border Protection [2014] FCA 935 the applicant formally submitted that these cases wrongly decided the question whether the definition of competent English in reg.1.15C was an exhaustive one. He submitted that it was not and advanced arguments in support of that contention.
The version of reg.1.15C applicable in this case is the same version considered by Perram J in Parmar’s case. I am bound to follow the finding in that case, with which I respectfully agree, that the definition of competent English in that version of reg.1.15C is an exhaustive one: see also Milanes v Minister for Immigration & Border Protection at [67]-[82]. Consequently, the second ground of the application is not made out.
Grounds 3 and 4
The third and fourth grounds of the amended application concerned what the applicant described in his written submissions as:
… the manner in which the Tribunal finalised its decision without consideration of the Applicant’s request to be allowed further time to provide a re-mark result and sit for another test.
The Tribunal held its hearing on 18 October 2013 and, as noted earlier, gave the applicant until 30 October 2013 to provide further information. By letter dated 28 October 2013, sent by fax on 31 October 2013 and received at 2.30pm, the applicant’s advisers provided:
a)a copy of a document recording that the applicant had sought re-marks in respect of his results for the listening, reading and writing components of the IELTS test he had sat on 12 October 2013; and
b)a notice confirming that an unidentified person was registered to sit an IELTS test on 9 November 2013.
However, the letter which enclosed those documents was expressed to relate to a different visa applicant and cited an MRT case number which was not the applicant’s. The letter advised the Tribunal that the female applicant to which it referred had been unsuccessful in her most recent IELTS test on 12 October 2013 and requested “a further opportunity to undertake a further IELTS examination”. The letter continued:
Should the Tribunal disagree, please do contact us prior to making a decision, the review applicant can make arrangements to undertake a further English course to meet the visa requirement.
According to the Court Book, on 31 October 2013 someone at the Tribunal checked to see if the applicant had provided further information following the Tribunal’s hearing. The relevant record states “No results received at Tribunal” and on 1 November 2013 the Tribunal published its reasons for decision dated 31 October 2013.
The applicant submitted that the Tribunal should have delayed its decision on the review pending receipt of the results of the re-mark. He referred in that regard to Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at 451 [75]-[77]. However, the letter enclosing the applicant’s test results did not ask the Tribunal to delay its decision on his review and a request of that sort could not reasonably be inferred from the material provided to the Tribunal. What the letter requested was an opportunity for the female visa applicant to whom the letter related to sit a further IELTS test.
The Tribunal was not required to consider a request which had not been made and it is not apparent that it turned its mind to the possibility of delaying its decision on the applicant’s review in order to obtain revised IELTS test results. As the Tribunal was not required, on its own initiative, to consider exercising its discretion to delay its decision pending a re-mark (WAGJ v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 277; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594), the fact that it did not do so did not amount to error. Further, as I find that it did not exercise the discretion because it did not turn its mind to the question, no miscarriage of discretion can be demonstrated in that connection.
The same considerations also apply to the notice enclosed with the letter faxed on 31 October 2013, which indicated that an unidentified person was due to sit an IELTS test on 9 November 2013. Although in argument the applicant submitted that the Tribunal should have treated this document as relating to the applicant, there is no compelling reason why it should have, given that the document bore no one’s name and the letter faxed on 31 October 2013 referred to a different visa applicant who wanted the Tribunal’s agreement to her sitting a further IELTS test.
The fact that the letter apparently found its way onto the applicant’s file at the Tribunal is not evidence that the 9 November 2013 IELTS test notice related to the applicant. Given that there is no evidence from other sources that it did, and in light of the terms of the letter faxed on 31 October 2013, I am not persuaded that the correspondence should be understood to have asked the Tribunal to delay its decision so the applicant in this case could sit a further IELTS test on 9 November 2013. There is no reason to find jurisdictional error because the Tribunal did not consider a request which was not made of it.
Further, there is no evidence that the Tribunal nevertheless took the notice as relating to the applicant. Given the terms of the covering letter, I infer that it did not form that view, or consider whether to delay its decision on the applicant’s review because he proposed to sit a further IELTS test in November 2013. The Tribunal was not required to consider such a delay on its own motion (WAGJ v Minister for Immigration, Multicultural & Indigenous Affairs; Minister for Immigration & Citizenship v SZGUR) and because, as I find, the Tribunal did not turn its mind to that question, again no question of a miscarriage of discretion arises.
Finally, although the Tribunal did not become functus officio until it despatched its decision record on 1 November 2013 (Minister for Immigration & Citizenship v SZQOY (2012) 206 FCR 25) that is a matter of no consequence for the reasons set out above at [30] to [34].
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 14 January 2016
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