Thambawita v Minister for Immigration - [2020] FCCA 2552

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAMBAWITA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2552

Catchwords:
MIGRATION – Application for Skilled (Provisional) (Class VC) (Subclass 487) Visa – requirement for the applicant to satisfy Minister that competent English had been achieved – failure by applicant to achieve competent English as at the date of the making of the visa application – necessary pre-condition for the grant of the visa not satisfied – refusal of adjournment application immaterial even if procedurally unfair – refusal of adjournment could not have realistically resulted in a different decision being made – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), rr.1.15C, 1.03, Schedule 2, cl. 485.215,

487.215, 487.222.

Cases cited:

Singh v Minister for Immigration and Border Protection [2014] FCA 185.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Applicant:

MUDIYANSELAGE HERENDRA RASHMIKA THAMBAWITA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 57 of 2017

Judgment of:

Judge Egan

Hearing date:

9 September 2020

Date of Last Submission:

9 September 2020

Delivered at:

Brisbane

Delivered on:

11 September 2020

REPRESENTATION

Solicitor for the Applicant:

Mr Gordon

Solicitors for the Applicant:

PLS Lawyers

Counsel for the First Respondent:

Mr J Lipinski

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application for Review filed on 14 September 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 57 of 2017

MUDIYANSELAGE HERENDRA RASHMIKA THAMBAWITA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Sri Lanka who applied for a Skilled (Provisional) (Class VC) (Subclass 487) visa on 28 September 2011.
A delegate to the Minister refused to grant the visa on 9 September 2015 on the basis that the applicant did not satisfy cl. 487.215 in Part 487 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate found that the applicant had not provided evidence of his having ‘competent English’ at the time of the making of the visa application and, therefore, that he could not be granted the visa. The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.
Clause 487.215 of Schedule 2 to the Regulations provided as follows:
“487.215 The Applicant has competent English.”
The term ‘competent English’ was, by r. 1.03 of the Regulations, defined to have the meaning given by r. 1.15C.
Regulation 1.15C, as at the time of the making of the visa application, provided as follows:
“1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument; or
(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”
Ministerial Instrument IMMI 15/005 was dated 3 December 2014. It applied to visa applications lodged both before and after that date. For visa applications lodged before 1 July 2012, as was the case here, the relevant competent English requirement was as follows:
“2. SPECIFY, for applications lodged before 1 July 2012 tests, test scores and passports, as follows:
…
B. for subparagraph 1.15C(1)(c), the following scores:
i. an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing and listening; or
ii. a score of at least B in each of the four components of an OET.”
It was not in dispute that the applicant did not, at the time of the making of the visa application, satisfy the IELTS test score requirement because he had not achieved a score of at least 6 in each of the four test components of speaking, reading, writing and listening.
A hearing took place before the Tribunal on 27 September 2016. Prior to that hearing, the applicant’s migration agent had asked for an adjournment of the hearing on the basis that the agent had urgent family business to attend to overseas. At [5] – [12] inclusive of its reasons, the Tribunal recorded what had relevantly transpired in relation to the pre-hearing request for an adjournment, as well as what transpired at the hearing, as follows:
“[5] On 6 September 2016, the Tribunal wrote to the applicant via his agent to invite him to attend a Tribunal hearing on 27 September 2016. He was asked to confirm his attendance and provide any submissions and/or documents on which he wished to rely no later than 7 days prior to the hearing.
[6] On 12 September 2016, the Tribunal received advice that the applicant and his agent would attend the hearing. They also provided another copy of the applicant's IELTS test dated 11 June 2011.
[7] On 21 September 2016, the applicants agent asked for the hearing to be postponed as he had to travel overseas urgently for family reasons. The Tribunal responded by email on 22 September 2016 to acknowledge the request and to request the agent to provide evidence of his travel arrangements. The Tribunal noted the agent's view that the matter was complex and therefore the review applicant wished to be represented at the hearing, but further noted that the view of the Presiding Member was that the transitional provisions referred to by the agent in material previously provided to the Tribunal did not apply to c1.485.215, but only to the Schedule 6B Points Test. As such, the Tribunal's view was that the criterion in dispute was fairly clear and the Presiding Member preferred to have the applicant attend the scheduled hearing, with the proviso that the agent could make post-hearing submissions.
[8] On 26 September 2016, the applicant emailed the Tribunal to provide information about his application. He stated that he came to Australia in 2007 as a legitimate student, abided by his visa conditions and finished his studies in 2009. He then applied for the subclass 487 temporary visa (hoping in due course to apply for permanent residence) but for reasons which were not clear to him, his subclass 487 visa application took 6 years for the Department to process. The applicant noted that, as the Tribunal would appreciate, he had made his life in Australia and sacrificed life opportunities to do so. It was very frustrating for him to see that his application was now at the Tribunal yet still without a positive outcome. He said that his circumstances were very stressful and he asked the Tribunal to take a close and fair look at his case, bearing in mind his 9 years of residence in Australia and the fact that he had followed lawful processes to make his application. Attached to the applicant's email was some email correspondence between the Department and the applicant's former migration agent, and between the agent and the applicant. In summary, this indicates that the applicant's former agent emailed the Department on 10 September 2015 after having received the refusal decision. The agent asked the Department to reopen the decision as he asserted that the delegate had failed to assess the applicant's English proficiency under the transitional points test applicable at that time, and should not have simply found that the applicant did not have competent English. An officer of the Department sent an email in response on 18 September 2015 indicating that the matter would not be reopened as the applicant had been found not to meet the time of application English criteria in c1.487.215, which mean no points test assessment had taken place as the visa was refused solely on the basis of c1.487.215 and the applicant's eligibility for the transitional arrangements had no relevance to c1.487.215. The applicant's agent queried this outcome via email dated 18 September 2015 (on the basis that he believed the Department had made favourable decisions in other similar cases where applicants did not meet the r.1.15C definition of `competent English' at the time of application). On 31 October 2015, an officer of the Department advised that the matter was pending with the Tribunal and the Department would await the outcome of that review (and any associated direction to the Department). On 4 November 2015, the applicant's former agent forwarded this response to the applicant stating the Department had accepted that their decision was affected by jurisdictional error.
[9] On 26 September 2016, the applicant's current agent provided evidence of his overseas travel booking departing Australia on 21 September 2016 and returning 12 October 2016. He reiterated his request for the hearing on 27 September 2016 to be postponed. The Tribunal did not receive this request until 27 September 2016, at which time it was evident that the applicant had attended the Tribunal in person to participate in the hearing.
[10] At the hearing, the applicant provided some further documentary evidence to the Tribunal, consisting of:
·email correspondence from an internet forum on immigration laws, discussing transitional arrangements for subclass 487 and other visas.
[11] He confirmed the contents of his email to the Tribunal and further stated that after he had finished his studies, he applied for, and was granted, a subclass 485 (Graduate Skilled) visa which was valid for 2 years. During the time he held this visa, he undertook the IELTS test in June 2011, in which he obtained an overall band score of 6.0 but less than 6 in 2 out of the 4 test components. The applicant said that his former agent advised him at the time that he would still be eligible to apply for permanent residence, with his Australian uncle sponsoring him, with the overall IELTS band score of 6.0 (in fact, the agent told him that he could have an overall band score of 5.5 and satisfy the definition of concessional competent English because he was entitled to be assessed under the old version of the Schedule B Points Test.
[12] The Tribunal discussed with the applicant its preliminary view that the applicant appeared to be entitled, under the transitional arrangements, to be assessed against the old version of the Schedule 6B Points Test (which included points for having concessional competent English in Part 6B 3 of Schedule 6B) but that this was a legally separate requirement to the requirement in c1.487.215 to meet the definition of 'competent English' set out in r.1.15C at the time that he made his visa application. The Tribunal also noted that the version of r.1.15C in place as of 1 July 2011, which applied to all applications made on or after that date, and all pending applications at that date, confined the Tribunal to considering only IELTS (or other specified English tests) undertaken in the 2 years immediately before he made his visa application on 28 September 2011. The Tribunal further indicated that it did not agree with the interpretation of the transitional arrangements argued by the applicant's former agent, nor did it agree with the former agent that the Department had acknowledged any jurisdictional error in its refusal decision of 9 September 2015. The applicant said that he had been advised that he was able to apply with concessional competent English because he was had nominated a trade occupation (Chef) and was subject to the transitional arrangements. The Tribunal undertook to carefully review the transitional provisions before making its decision, and undertook to give additional time after the hearing for the applicant's current agent to make any additional legal submissions on this issue that he wished to.”
On 20 October 2016, the Tribunal affirmed the decision of the delegate.
The applicant filed an Originating Application for Review of the decision of the Tribunal on 11 January 2017. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 14 September 2017, the grounds of which were as follows:
“Grounds of Application
4. The Administrative Appeal Tribunal fell into jurisdictional error when it failed to interpret the migration act, regulations and failed apply the concessional competent English introduced by the department from 1 July 2011 in the transitional arrangements in the new point test.
5. The Administrative Appeal Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, failed to apply the current law, regulations, policy and guidelines in deciding that the Applicants application.
6. The Administrative Appeal Tribunal fell in to jurisdictional error by failing to identify that Migration Regulations Schedule 3, Subclass 487, the English requirement referred in the 487.215 and 487.222 (Schedule 6B Point Test) are deferent and inconsistent each other.
7. The Administrative Appeal Tribunal did not act in a way that was fair and just;
8. The Administrative Appeal Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question(s);
9. The Administrative Appeal Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case;
10. Such further and/or other and/or additional grounds as the Applicant may submit in due course upon receiving full and proper legal advice and opinion in the matter;”
At the hearing before the Court, Mr Gordon on behalf of the applicant submitted that the failure on the part of the Tribunal to grant the requested adjournment constituted procedural unfairness which was jurisdictional in nature. It was submitted on behalf of the applicant that had the adjournment application been granted, the applicant would have had the benefit of a migration agent able to make submissions on his behalf concerning a complex area of law regarding the operation of ‘transitional provisions’, in circumstances where such submissions could realistically have resulted in the Tribunal making a different decision.
The applicant’s submissions as to the effect of the transitional provisions were set out in paragraphs [17] – [30] inclusive of the applicant’s consolidated written submissions filed on 7 September 2020 as follows:
“17. On the issue of materiality, the Applicant submits that at the material time there was in place a transitional provision which included the Applicant's application favourably.
18. Had the Applicant's representative been present and because he was not able to be present and had the adjournment application ben properly considered, as it should have, and granted, as it should have, the Applicant's representative would have on the next hearing been able to put these submissions to the Tribunal which would have favoured the application being granted.
19. The transitional arrangements permitted and allowed the Applicant to have his application considered as against the points test in effect on the date his application was made.
20. The transitional arrangements stated that a person is eligible for transitional arrangements in relation to points tested skilled migration if:
a. As on 8 February 2010 you held a Skilled-Graduate (Subclass 485) visa; or
b. As on or before 8 February 2010 you made a valid application for a Skilled Graduate (Subclass 485) visa and the visa application has not been finally determined.
21. Under the transitional provisions an applicant had access to the points test in effect on 8 February 2010.
22. The transitional provisions apply to people who, on 8 February 2010, held or had applied for Temporary Skilled Graduate visa (subclass 485).
23. Until the end of 2012 this group was able to apply for permanent skilled visa under the points test in effect as at 8 February 2010.
24. The Applicant met the points test prevalent on 08/02/2010.
25. The Applicant had lodged a valid sub class 485 application on 04 March 2009.
26. The applicant was on a bridging visa on 08.02/2010 and hence eligible for the transitional arrangements.
27. The sub-class 485 was approved on 31/03/2010.
28. The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, failed to apply the current law, regulations, policy and guidelines in deciding that the Applicants application.
29. The Administrative Appeals Tribunal did not act in a way that was fair and just;
30. The Applicant therefore seeks the Orders and Relief as prayed for in his Application filed.”
It was also submitted on behalf of the applicant that there was an inconsistency between cl. 487.215 and cl. 487.222 of Schedule 2 to the Regulations.
It was submitted on behalf of the first respondent that there was no relevant distinction between the facts before the Court, and the facts in the case of Singh v Minister for Immigration and Border Protection [2014] FCA 185. Though Singh was concerned with a consideration of cl. 485.215 of Schedule 2 to the Regulations, it was submitted on behalf of the first respondent that the same competent English requirement applied for cl. 487.215 as it was held to apply to cl. 485.215. The Court accepts such submission. There was no submission to the contrary made on behalf of the applicant.
The Court respectfully adopts what was said by Barker J in Singh at [15] – [18] which was as follows:
“[15] The requirement under the current applicable Regulations is that an applicant for such a visa demonstrates he or she has competent English. To do this, the Regulations require an IELTS score of at least 6 for each of the four components of speaking, reading, writing and listening: reg 1.15C(a) and Legislative Instrument IMMI12/018. Unless that can be done a visa must be refused.
[16] The fact that Mr Singh may have since obtained an IELTS score that meets the regulatory requirements is irrelevant, in circumstances where the Regulations also require, as the primary judge in the Court below emphasised, that the score must have been achieved in a test taken “in the two years immediately before the day on which the application was made”.
[17] As the primary judge pointed out, only a test undertaken prior to 19 October 2011 could have been relied upon by Mr Singh to establish that he had “competent English”. His IELTS test of 23 February 2013, which he relied upon, therefore was irrelevant to the administration of the Act and Regulations in this instance.
[18] In these circumstances, there is no basis to any complaint that the primary judge erred when he dismissed the application for judicial review of the decision of the MRT.”
Because the applicant had not satisfied a necessary precondition relating to his having satisfied the Minister that he had competent English as at the time of the making by him of his visa application, the visa could not be granted to him. His argument concerning the operation of any transitional provision was misconceived, as was his argument as to the inconsistency between cl. 487.215 and cl. 487.222.
To the extent that the failure on the part of the Tribunal to grant to the applicant an adjournment may have been procedurally unfair to the applicant, any such unfairness was immaterial and not jurisdictional, because even if an adjournment had been granted, such adjournment decision could not have realistically resulted in a different decision being made by the Tribunal on the substantive issues before it. There would have been no utility in the Tribunal granting an adjournment to the applicant in circumstances where the substantive claims were without merit.

In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions arising out of the same facts. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 11 September 2020