Thlork v Minister for Immigration

[2018] FCCA 2673

FEDERAL CIRCUIT COURT OF AUSTRALIA

THLORK & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2673

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Skilled (Provisional) (Class VC) visas – whether the applicant had a real and meaningful hearing – whether the Tribunal complied with its statutory obligations in the conduct of the review – whether the applicant met the mandatory requirements for the grant of the visa – invitation to engage in impermissible merits review – no jurisdictional error made out – application dismissed. 

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.476
Migration Regulations 1994 (Cth), pt.485

First Applicant: RUMDOH THLORK

Second Applicant: RATANA THAY

Third Applicant: KETHYAKAUL THLORK

Fourth Applicant: KETHYABOROMEY THLORK

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3263 of 2017

Judgment of: Judge Street

Hearing date: 11 September 2018

Date of Last Submission: 11 September 2018

Delivered at: Sydney

Delivered on: 11 September 2018

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Ms K Hooper
Minter Ellison

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 11 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3263 of 2017

RUMDOH THLORK

First Applicant

RATANA THAY

Second Applicant

KETHYAKAUL THLORK

Third Applicant

KETHYABOROMEY THLORK

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 September 2017 affirming a decision of the delegate not to grant the applicants Skilled (Provisional) (Class VC) visas.

2. The first applicant is the review applicant and the second to fourth applicants are members of the family unit. The applicants are citizens of Cambodia. The applicants applied for the visa on 14 January 2017. The criteria for the grant of the visa is specified in Part 485 of Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”). The primary criteria must be met by one of the applicants.

3. The delegate refused the grant of a visa on 6 March 2017 because the first applicant did not have the required English language proficiency.

4. The first applicant sought a review of the decision and the applicants were represented in review. By letter dated 22 August 2017, the applicants were invited to attend a hearing, which the first and second applicants and the applicants representative attended on 20 September 2017 to give evidence and present arguments.

5. The Tribunal identified the requirements of Part 485.212 of the Regulations which relevantly provides as follows:

   The application was accompanied by evidence that:

   (a) the applicant:

   (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

6. The Tribunal identified that there was no evidence that the first applicant holds a passport of a type specified under cl 485.212(b) of the Regulations and that, accordingly, the first applicant had to meet the criteria of cl 485.212(a) of the Regulations.

7. The Tribunal referred to the International English Language Testing System (“IELTS”) test provided by the applicant to the Department, one undertaken on 23 March 2013 and one undertaken on 3 December 2016. The Tribunal referred to a test undertaken in March 2013, being more than three years before the visa application was made and not within the relevant period, and that in the test taken on 3 December 2016 within the relevant period, the applicant only achieved 4.5 in one of the test components and did not achieve the minimum score required.

8. The applicant provided evidence that he had undertaken an IELTS test on 11 February 2017 and had achieved more than 5 in each test band. At the Tribunal hearing, the Tribunal explained to the applicant the requirements of cl 485.212 of the Regulations. The applicant explained that he had misunderstood what was required. The applicant indicated he had sat for a test and sought to explain why he had not provided a relevant test within the specified period. The applicant said he thought that the Tribunal could find in his favour.

9. There was a suggestion that there were cases that supported an ability to go outside mandatory requirements of cl 485.212 of the Regulations in terms of the language rest requirements. No such cases were provided to the Tribunal.

10. The Tribunal found that the test results on 11 February 2017 did not mean that the applicant had undertaken the relevant test within the requirements of the period identified in cl 485.212(a) of the Reuglations. The Tribunal found that the first applicant did not meet the requirements of cl 485.212 of Schedule 2 of the Regulations and affirmed the decision under review.

Before this Court

1. At the commencement of these proceedings the Court explained to the first applicant the nature of the hearing and the first applicant confirmed he understood the nature of the hearing as explained by the Court.

2. From the bar table the first applicant sought to put compassionate grounds as to why the Court should find that the Regulation was unfair to him. No case has been advanced that the regulation is not a valid Regulation. Rather, what the first applicant has asked is that the Court exercise a compassionate or discretionary power to depart from the plain language of the Regulation. The Court has no power to do so, nor did the Tribunal have any power to do so. The Tribunal could not decide the matter on compelling circumstances or on compassionate grounds. There was no provision within the Regulation that permitted the Tribunal to do so. There is no power given to this Court to do so. This Court, whilst impressed by the first applicant and accepts that he is clearly an intelligent tertiary graduate who has made significant contributions so far to the country, does not enliven any power of this Court to grant relief or find error by the Tribunal in its determination of the review.

3. The Court also understands the compassionate circumstances of the first applicant in relation to his family and children, but the Court does not have power to determine the matter as a merits review. This Court has no discretion that it can apply in determining whether or not there was the relevant jurisdictional error. The language in the Regulation is clear in terms of the mandatory requirements and in terms of the requirement for an achievement of the relevant requirement within the specified period. That did not occur in the present case.

4. Nothing said by the first applicant from the bar table identified any jurisdictional error. The first applicant’s submissions from the bar table invited this Court to engage in merits review. This Court does not have power to review the merits.

The grounds

1. The grounds in the application are as follows:

   1) The Tribunal denied me administrative justice in that it treated me unfairly by affirming the department's decision to refuse me the Skilled (Provisional) (Class VC) (Subclass 485) Visa to stay in Australia.

   2) The Tribunal ought to have taken into consideration that I passed the IELTS test undertaken in February 2017 and hence I should have been granted a visa to stay in Australia.

   3) The Tribunal ought to have given due consideration to the fact that my English language competence is not an issue. I have clearly demonstrated to the department at the time of their decision that my IELTS test results entitled me to obtain the visa under reference.

   4) I hold a Master of Education Studies degree from the University of Canberra at the time of application for the visa. The entire course was conducted in English as are all degrees in Australia, with the exception of foreign language studies. Prior to obtaining my master's degree from Canberra I was an English Language instructor for 5 (five) years at the Institute of Foreign Languages of the Royal University of Phnom Penh.

Ground 1

1. The first applicant’s assertion that the application of the Regulation is unfair does not identify any relevant error by the Tribunal. On the face of the Tribunal’s reasons, the first applicant had a real and meaningful hearing and the Tribunal complied with the statutory obligations in the conduct of the review. On the material before the Court, the Tribunal had no alternative in the circumstances of the present case but to find the applicant failed to meet the mandatory criteria. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, whilst the first applicant may be of the view that the law can be shifted simply to meet his circumstances, that is not the case. The law identified mandatory requirements which were requirements the first applicant did not meet. Nothing in ground 2 identifies any jurisdictional error by the Tribunal.

Ground 3

1. In relation to ground 3, I accept the first applicant has improved his knowledge and command of English. The first applicant represented himself before the Court and the Court considers him to be highly intelligent and articulate. Nonetheless that does not mean that the first applicant met the requirements that he had to meet for the grant of a visa. They were mandatory requirements that the Tribunal correctly applied. Nothing in ground 3 of the application identifies any jurisdictional error.

Ground 4

1. Ground 4 refers to the first applicant’s achievements, and again this invites merits review and does not invite any jurisdictional error. The Court has taken into account the content in the first applicant’s affidavit and the first applicant’s further submissions, all of which invite the Court to exercise a power it does not have. The Court does not have power to grant a visa or remit the matter on compassionate grounds. No jurisdictional error in ground 4 is made out.

Conclusion

1. This application is an application that should have been dealt with under r 44.12 of the Federal Circuit Court Rules2001 (Cth) as the application had no prospect of success.

2. Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.

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

Date: 16 November 2018