Thiruvenkatasamy v Minister for Immigration - [2020] FCCA 2353

FEDERAL CIRCUIT COURT OF AUSTRALIA

THIRUVENKATASAMY v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2353

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a skilled work visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.357A, 360, 476

Migration Regulations 1994 (Cth)

Cases cited:

Baig v Minister for Immigration & Anor [2018] FCCA 2986

Baig v Minister for Immigration [2019] FCA 204

Berenguel v Minister for Immigration (2010) 84 ALJR 251

Milanes v Minister for Immigration (2015) 234 FCR 508

Minister for Immigration v Lay Lat (2006) 151 FCR 214

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant:

RISHI KRISHNA THIRUVENKATASAMY

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3397 of 2019

Judgment of:

Judge Driver

Hearing date:

25 August 2020

Delivered at:

Sydney

Delivered on:

25 August 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr A Bicknell of Minter Ellison by telephone

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3397 of 2019

RISHI KRISHNA THIRUVENKATASAMY

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Thiruvenkatasamy, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 November 2019. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant Mr Thiruvenkatasamy a Skilled (Provisional) Class VC visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 20 August 2020, which I adopt.
Mr Thiruvenkatasamy is a citizen of India. On 12 March 2019, he applied for the visa.[1] In his application, in response to the question, “… have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?”, Mr Thiruvenkatasamy answered, “Yes”.[2]
[1] Court Book (CB) 28–47
[2] CB 28
On 13 March 2019, Mr Thiruvenkatasamy notified the Minister’s Department that he had provided incorrect information on his application. Specifically, he indicated that he “replied incorrectly that I have undertaken the exam within 36 months”.[3] He clarified that his last English language requirement exam was undertaken on 27 February 2016, which was 36 months and 13 days prior to his visa application.[4] He stated that he had booked the “earliest exam date available”.[5]
[3] CB 51
[4] CB 51
[5] CB 51
On 15 March 2019, Mr Thiruvenkatasamy submitted to the Minister’s Department evidence that he had undertaken a Pearson Test of English Academic test (PTE Academic test) on 14 March 2019.[6]
[6] CB 43
On 16 May 2019, the delegate refused to grant the visa on the basis that Mr Thiruvenkatasamy did not meet the English language ability requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[7] Specifically, Mr Thiruvenkatasamy had not undertaken an approved English language test within the three years before the day on which the application was made.[8]
[7] CB 53–56
[8] CB 57–60
On 29 May 2019, Mr Thiruvenkatasamy lodged an application for review of the delegate's decision with the Tribunal.[9]
[9] CB 61–66
On 25 November 2019, the Tribunal received a submission from Mr Thiruvenkatasamy’s migration agent in support of the application for review.[10]
[10] CB 94–109
On 26 November 2019, Mr Thiruvenkatasamy and his migration agent attended a hearing before the Tribunal to give evidence and to present arguments.[11]
[11] CB 110–112
On 28 November 2019, the Tribunal notified Mr Thiruvenkatasamy of its decision, dated 27 November 2019, affirming the delegate's decision not to grant Mr Thiruvenkatasamy the visa.[12]
[12] CB 119–121

Tribunal decision

The Tribunal recorded that the issue before it was whether Mr Thiruvenkatasamy satisfied clause 485.212 of Schedule 2 to the Regulations, being whether he had undertaken the required language test within the period specified by the Minister in a legislative instrument (paragraph 485.212(a)), or if he held a passport of a type specified in the relevant instrument (paragraph 485.212(b)).[13]
[13] CB 120, [7]
The Tribunal identified the relevant instrument specifying language test, scores, relevant periods and passports was IMMI 15/062 (the instrument).[14]
[14] CB 120, [8]
The Tribunal noted that, as Mr Thiruvenkatasamy only held a passport of India, there was no evidence that he held a passport of the type specified in the instrument, and accordingly clause 485.212(b) was not met. The Tribunal identified that Mr Thiruvenkatasamy must therefore satisfy paragraph 485.212(a)).[15]
[15] CB120, [8]
The Tribunal recorded that Mr Thiruvenkatasamy confirmed at the hearing that he had not undertaken a test within the 36 months prior to his application having been made. Mr Thiruvenkatasamy confirmed that he had undertaken an IELTS[16] test three years and 13 days prior to the visa application was made and a PTE Academic test after the visa application was made.[17]
[16] International English Language Testing System
[17] at [9]
The Tribunal noted that Mr Thiruvenkatasamy's representative had made submissions suggesting that an alternative construction of clause 485.212 and the instrument should be preferred. Specifically, the representative referred to Berenguel v Minister for Immigration[18] which held that a purposive approach should be taken such that an English test result provided after the day on which the application was lodged was acceptable to meet the time of application criteria.[19]
[18] (2010) 84 ALJR 251
[19] CB 120-121, [10]
The Tribunal indicated that Berenguel preceded changes to the Regulations. With reference to the Federal Court case of Milanes v Minister for Immigration,[20] and the cases cited there at [56]–[57], the Tribunal considered that a test taken after an application was lodged could not meet the English language requirement as it could not be said to have accompanied the visa application if it did not exist at the time of the application.[21]
[20] (2015) 234 FCR 508
[21] CB 120-121, [10]
The Tribunal recorded that it had considered the written and oral evidence and submissions, but considered that the wording of clause 485.212 and the instrument made clear that the specified English language test must be taken within the three years before the day on which the visa application was made. Accordingly, the results of the PTE Academic test undertaken on 14 March 2019, and the earlier IELTS test, could not meet the requirement specified in the instrument.[22]
[22] CB 121, [11]
On the basis of the evidence before it, the Tribunal was not satisfied that Mr Thiruvenkatasamy was accompanied by evidence that met clause 485.212(a) and found that it had no power to waive the requirement, nor did it have any discretion in this matter.[23] As Mr Thiruvenkatasamy did not meet the requirements of clause 485.212, the Tribunal affirmed the decision under review.[24]
[23] CB 121, [12]–[13]
[24] CB 121, [14]–[15]

The current proceedings

These proceedings began with a show cause application filed on 20 December 2019. There is one ground in that application which is:
1. Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in the affidavit here with.
The issues are developed somewhat in an affidavit accompanying the application which I received as a submission. The Minister identifies three arguments from the submissions, which I adopt:
a)the “delegate” did not accept the English language test undertaken after the date of the visa application;
b)the “delegate” only made its decision based on evidence at the hearing and did not take into account the applicant's circumstances; and
c)the Tribunal's decision was unfair.
I have before me as evidence the court book filed on 24 March 2020.
I invited oral submissions from Mr Thiruvenkatasamy this morning. His concerns focus understandably on the inability or refusal of the Tribunal to accept the results of the two English language tests which he sat apparently successfully. The first test Mr Thiruvenkatasamy sat three years and 13 days before he lodged his visa application. The second he sat after he had lodged his visa application. Mr Thiruvenkatasamy was distressed to find that neither English language test was acceptable. This was because the visa criteria stipulate that the test must be sat in the period of three years immediately preceding the visa application. As I put to Mr Thiruvenkatasamy, the visa criterion is strict and neither the delegate nor the Tribunal could vary it. In essence, he should have applied earlier or later. He did not understand this until it was too late. He appears not to have understood the possibility of withdrawing his application and reapplying. At this point, only the Minister could solve Mr Thiruvenkatasamy’s predicament. That is beyond the scope of this proceeding.
I agree with and adopt the Minster’s submissions concerning the grounds of review advanced by Mr Thiruvenkatasamy.
Noting that, pursuant to s.476(2) of the Migration Act 1958 (Cth), (Migration Act), this Court does not have jurisdiction to review the delegate's decision as it is a primary decision, the Minister regards Mr Thiruvenkatasamy’s reference to the “delegate” in his affidavit to be a reference to the Tribunal. I agree.
The Tribunal complied with its procedural fairness obligations under Division 5 of Part 5 of the Migration Act, which is for most purposes an exhaustive statement of the natural justice hearing rule.[25]
[25] Migration Act, s.357A; Minister for Immigration v Lay Lat (2006) 151 FCR 214 at [66] per Heerey, Conti and Jacobson JJ
Under s.360 of the Migration Act, and by email dated 22 October 2019, Mr Thiruvenkatasamy was invited to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in his case.[26] Mr Thiruvenkatasamy attended the hearing with the assistance of his migration agent on 26 November 2019.[27] It is apparent from the Tribunal's reasons that Mr Thiruvenkatasamy had an opportunity to give evidence and to present arguments about the determinative issue on review, being whether he satisfied clause 485.212 of Schedule 2 to the Regulations.[28]
[26] CB 77–88
[27] CB 110–112
[28] CB 120–121, [8]–[11]: SZBEL v Minister for Immigration (2006) 228 CLR 152 at [47], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Contrary to Mr Thiruvenkatasamy's allegation, the Tribunal's decision record indicates that it did consider Mr Thiruvenkatasamy's circumstances, having referred to his evidence that confirmed that he had not undertaken an English test within the 36 months prior to his application being made.[29] The Tribunal also considered the migration agent's written submissions arguing that Berenguel should be applied such that Mr Thiruvenkatasamy's PTE Academic test should be accepted as meeting the requirements of clause 485.212 despite having been undertaken after the visa application was made.[30] The Tribunal was correct to find that there were “numerous Court cases in which [it was held that] the approach in Berenguel was not applicable” to visa applications made after the Regulations had been amended, and was therefore justified in relying on the findings in Milanes.[31]
[29] CB 120, [9]
[30] CB 120–121, [10]
[31] CB 120–121, [10]
The Tribunal correctly applied the findings in Milanes.[32] Although Milanes focused on the language in the definitions of regulations 1.15B and 1.15C of the Regulations as amended, the same language is used in the specification of tests undertaken under the instrument. The Minister refers the Court to Judge Dowdy's comments in Baig v Minister for Immigration & Anor[33] at [19] in which his Honour stated, in considering whether the comments in Milanes applied to legislative instrument IMMI 15/062:
… in my view there is no material difference between the language of reg.1.15C and the language of IMMI 15/062 … and there is no scope in this proceeding for the applicability of the reasoning and approach of the High Court in Berenguel…
[32] CB 120–121, [10]
[33] [2018] FCCA 2986
In my view, Judge Dowdy's finding in Baig was correct. His Honour's approach was upheld on appeal by Bromwich J in Baig v Minister for Immigration.[34]
[34] [2019] FCA 204 at [12(2)]
In the absence of any discernible procedural fairness issue, either as specified or implied by Mr Thiruvenkatasamy’s ground of review, this ground is not made out and must fail.
Further to the above, the criterion set out in clause 485.212(a) of Schedule 2 to the Regulations, when read in conjunction with s.4 of the instrument, is unambiguous. The instrument requires that the relevant English tests “must have been undertaken within the three years before the day on which the application is made”. A test undertaken outside of this period plainly does not satisfy the criterion, and the evidence before the Tribunal (including Mr Thiruvenkatasamy’s own evidence) confirmed that a test had not been undertaken in accordance with these requirements. The Tribunal was therefore correct in finding that it had no power to waive the requirements set out in the Regulations and the instrument, and that it had no discretion such that it was unable to find that Mr Thiruvenkatasamy met the requirements clause 485.212 of the Regulations.[35]
[35] CB 121, [12]–[14]
I conclude that Mr Thiruvenkatasamy is unable to establish an argument that the Tribunal made a jurisdictional error.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Thiruvenkatasamy queried whether the amount might be reduced. However, I see no reason to depart from the Court scale.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 27 August 2020