Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 274
•18 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274
File number(s): PEG 199 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 18 February 2021 Catchwords: MIGRATION – Temporary Graduate (Post-Study Work) visa – decision of the Administrative Appeals Tribunal – where the first applicant did not sit English Language test prior to lodging application – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cll 485.212, 485.311
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50
Craig v State of South Australia (1995) 184 CLR 163
Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Thlork v Minister for Immigration & Border Protection [2019] FCA 333
Number of paragraphs: 62 Date of hearing: 16 February 2021 Place: Perth Applicants: Appeared in person Counsel for the First Respondent: Mr J Papalia Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 199 of 2020 BETWEEN: UGYEN
First Applicant
CHIMI YANGZOM
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicants are citizens of the Kingdom of Bhutan. They are husband and wife respectively. Both applicants arrived in Australia on a student visa in 2017 (Court Book (“CB”) 12).
On 9 September 2019, the applicants applied for a Temporary Graduate (Post-Study Work) (subclass 485) (the “visa”) (CB 1-37). The first applicant was the primary applicant. The second applicant was a member of the family unit.
On 2 December 2019, the Department of Home Affairs asked the first applicant to provide evidence that he met the English Language requirements needed for the visa (CB 42-49). The first applicant responded that same date as follows (CB 50):
…I have an IELTS certificate which bears the date of test 14th March 2015 I did for the admission and also for the visa processing.
I am not sure is it still valid? If this can be accepted then I can attach on my immi account. If it is not valid then I have to book for the test and then results for IELTS will take at least 2 weeks
On 16 December 2019, the Department responded. It noted that the 2015 score could not be used and that a decision would be made in due course (CB 51).
The first applicant responded (on the same day) as follows (CB 53-56):
As requested. I have attached my IELTS new result appeared on 12/12/2019 on my immi account. I have also attached the same IELTS on this email as well.
The first applicant then sent another email to the Department on 15 January 2020 which states (CB 57-65):
I totally understand that the work load is too much and the amount of time that you all have to spend in verifying documents for granting the visa is beyond imagination, I totally respect that. I was having severe lumbar disc prolapse and I was not able to sit and stand for more than 15 mins to be precise, since March 2019. With that on-going health issues I was not able to attend any sort of gatherings, exams and tests. I had to do my surgery and I had my procedure done on 30th October 2019 at St John of God Murdoch Hospital Perth, WA.
Having applied for the visa for almost 4 months now the situation has become little difficult for our daily activities such as 1: Getting SIM cards renewed and other services related of such nature. 2: The real estate agent for our unit have been asking us to submit the visa copy for the lease renewal and there are also other circumstances where we needed the visa copy to avail the services. As requested by the team, I have also submitted my language proficiency proof by attending IELTS with great difficulties during my recovery period and I have managed to meet the criteria for language proficiency. I have uploaded the certificate dated 16/12/2019.
I would like to request the team if you all could grant my visa, I will be really thankful and appreciate the efforts that the team has put in grating the visa. To prove that my procedure was genuine if team wants me to provide with documents I can also send you all the attachment from the hospital.
On 16 January 2020, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 67-81). The delegate found that the first applicant did not satisfy cl 485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he had not provided evidence that he had achieved a successful English Language result in the three years prior to lodging his application. As the first applicant did not meet the criterion, the second applicant also did not meet the criteria for the visa.
On 28 January 2020, the applicants applied for review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 89-91).
The applicants provided supporting documents to the Tribunal. These included medical documents, educational certificates and an English Language test dated December 2019 (CB 104-120).
The first applicant attended a hearing before the Tribunal on 4 June 2020 (CB 121-124).
On 9 June 2020, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa (CB 130-134).
On 6 July 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance, the applicants must show jurisdictional error on the part of the Tribunal.
TRIBUNAL’S DECISION
The Tribunal’s decision is 5 pages long and spans 25 paragraphs.
The Tribunal began by identifying the type of visa the applicants had applied for, summarising the basis of the delegate’s decision and confirming that the first applicant appeared before the Tribunal at a hearing by telephone (at [1]-[6]).
The Tribunal explained that the issue in the present case was whether the first applicant met cl 485.212 of the Regulations (at [8]). It stated that the Ministerial Instrument relevant for the purposes of that criterion was IMMI 15/062 (at [9]).
The Tribunal then noted the first applicant’s responses to questions asked in the visa application form about the English Language requirements (at [10]).
The Tribunal explained that the delegate had found that the first applicant had not provided any evidence that he held a specified passport. The Tribunal referred to the first applicant’s evidence at the hearing that he did not hold a passport for any country specified in the IMMI 15/062 (at [11]). As there was no evidence that the first applicant has held a specified passport, the Tribunal found that the first applicant did not meet cl 485.212(b) (at [12]).
The Tribunal noted that the delegate’s decision recorded that when making the visa application the first applicant declared that he had undertaken a Cambridge English Test on 22 July 2017. However, no documentary evidence of that test was provided. The Tribunal then noted that the first applicant had indicated that he had undertaken an International English Language Test System test on 14 March 2015 and that he had later provided a test result from 12 December 2019. It also noted that the delegate had found that the first applicant had not provided evidence of having undertaken an English Language test in the 36 months prior to lodging his application on 9 September 2019 (at [13]).
The Tribunal then summarised the documentary materials that the applicants had provided to it (at [14]). It then summarised the evidence provided at the hearing, as follows:
15. At the hearing the applicant set out the circumstances which led to him not meeting the English language requirement. He said at the time the application was made he was in pain and was not in a position to undertake an English test. He had been in this condition since March 2019. He said his health condition was deteriorating until his surgery in October 2019. The Tribunal queried whether he had contacted the Department prior to submitting the application to discuss his medical condition and the fact he could not undertake an exam and he said he did not tell them prior to lodging the visa. He said his wife put the application in and she was nervous because the student visa was expiring. He said when she googled the visa and checked the basic eligibility requirements, she noticed the requirement for the English test and understood it was mandatory but thought the earlier test may be sufficient. Further he couldn’t take a test at that time. He said that they had advice they may have been able to resolve the problem better but they did the application on their own.
16. He said after the Department contacted him regarding the earlier test result he got nervous he would be rejected and booked the test which he took in December. He said he was able to organise special arrangements to allow him to take the test consistent with his medical requirements in recovery from surgery. He asked for discretion to be exercised on compassionate grounds because he is still undergoing treatment.
The Tribunal accepted that the first applicant was suffering from a medical condition at the time he made his application and that this may have impacted his capacity to sit an English test (at [17]).
The Tribunal then noted that it had explained to the first applicant that, to meet the English Language requirement, he had to provide evidence with the visa application that he had undertaken a language test specified in an instrument and had achieved the required score within three years before the day on which the visa application was made (at [18]).
The Tribunal then explained that it was not open to the Tribunal to find that the first applicant met the English Language requirement on some other basis (for example, on the basis of another test taken after the application was made or on the basis that he had studied in Australia for some time) (at [19]).
The Tribunal continued:
20. While the Tribunal has sympathy for the applicant and his wife, who have clearly been going through a stressful period dealing with the applicant’s medical condition and recovery from surgery, the Tribunal explained that regardless of the reasons for not meeting these criterion, they must be met for the visa to be granted. This includes the requirement the applicant has undertaken a specified English language test within the 36 months before submitting his visa application. The Tribunal explained that it does not have any discretion to waive this requirement on compassionate or any other grounds.
21. The Tribunal accepts that the applicant has now undertaken a specified English language test – an IELTS English language test – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument and has achieved, within the period specified in the instrument, the score specified.
The Tribunal was not satisfied that the first applicant met cl 485.212(a) of the Regulations (at [22]).
The Tribunal found that as the first applicant was not granted the visa, the second applicant could not meet cl 485.311 and the decision to refuse her the visa was also affirmed (at [24]).
PROCEEDINGS IN THIS COURT
In their application for judicial filed on 6 July 2020, the applicants outline four grounds of review, as follows:
1) Medical condition;
As per the decisions from AAT dated 9th of June 2020 which covers about my ongoing medical condition which could not get fixed at the first surgery and had been having ongoing pain. And now I have reached to a situations to have second surgery which is dated on 18th of July 2020 at St John of God Subiaco by Dr George Wong.
2) Border closed due to global pandemic;
The international flight has been put on halt due to global pandemic it is difficult for us to get back to home country before the international flight resumes regular.
3) Visa was lodged by the my wife and she did not get any assistance since she was also taking care of by day to day activities , she had no idea about the immigration law and also we were not in position to afford migration agent.
4) Required English score
I achieved the required English score after the surgery. The basis of the Tribunal’s decision was that I had not achieved the required English score. Additionally all my education in Bhutan from primary school to secondary school, in India at tertiary level, in Australia at tertiary level was completed conducted in the English language
The applicants were provided an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application filed 6 July 2020, a Court Book numbering 134 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 18 January 2021.
At the hearing, the applicants appeared before the Court without legal representation. The first applicant indicated that he would speak on his own behalf and, generally, on behalf of the second applicant but that the second applicant might also want to speak. The Court confirmed that the applicants had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant highlighted that he was suffering from quite serious health issues related to his lower back and that he was unable to sit for a period of three hours (which is why he could not take the test required for the visa). The first applicant also stated that his mental health “was not good” at the time of the application and through the visa process. The second applicant confirmed what was said and stressed that this had been an extraordinarily difficult period for the couple.
While quite sympathetic, for the reasons explained below the first applicant’s medical condition and his state of mind did not, legally, exempt him from having to comply with the requirement to sit an English Language test in the period prior to lodging his visa application.
The applicants’ oral submissions do not identify jurisdictional error.
CONSIDERATION
Ground 1
Ground 1 provides:
1) Medical condition;
As per the decisions from AAT dated 9th of June 2020 which covers about my ongoing medical condition which could not get fixed at the first surgery and had been having ongoing pain. And now I have reached to a situations to have second surgery which is dated on 18th of July 2020 at St John of God Subiaco by Dr George Wong.
As noted above, the first applicant also highlighted his serious medical condition when addressing the Court.
The Tribunal referred to the first applicant’s medical condition at [14]-[16]. At [17], the Tribunal accepted that the first applicant had a medical condition that may have impacted his ability to take an English Language test. The Tribunal was sympathetic to the concerns raised by the first applicant in this regard.
However, as the Tribunal rightly recognised (and as the Tribunal explained to the first applicant (see, [20])), there is no discretion to waive the English Language requirement. This is so regardless of how compelling an applicant’s circumstances may be.
Accordingly, no error arises in relation to the Tribunal’s consideration of the first applicant’s medical condition.
In relation to the statement that the first applicant is having further surgery for his medical condition, this is irrelevant to the Court’s task on judicial review. The Court is restricted to assessing whether there is legal error in the Tribunal’s decision. Developments that occurred after the Tribunal’s decision (such as further surgeries) have no bearing on that issue.
Ground 1 is dismissed.
Ground 2
Ground 2 states:
2) Border closed due to global pandemic;
The international flight has been put on halt due to global pandemic it is difficult for us to get back to home country before the international flight resumes regular.
When and how the applicants might return to their country was not a relevant consideration for the Tribunal. The Tribunal was concerned with, and only with, whether the applicants met the criterion for the visa. It was not concerned with the consequences of any refusal.
Further, this Court cannot concern itself on review with any difficulties an applicant may face when making arrangements to return to their country.
Ground 2 is dismissed.
Ground 3
Ground 3 states:
3) Visa was lodged by the my wife and she did not get any assistance since she was also taking care of by day to day activities , she had no idea about the immigration law and also we were not in position to afford migration agent.
At the hearing before this Court, the first applicant made reference to an “agent”. The Minister and the applicants clarified that while the applicants had some assistance from an agent when the matter came before the Tribunal, the applicants did not have the assistance of a migration agent when lodging the visa application.
The fact that the second applicant lodged the visa application without assistance in circumstances where she was unfamiliar with immigration law does not amount to jurisdictional error.
It is an all too common occurrence that applicants lodge visa applications without assistance and without familiarity with the law. Regrettably, errors inevitably occur. This is particularly the case when dealing with the particular regulation the subject of this review. Applicants often misunderstand the stringent and inflexible nature of the relevant visa requirements.
While sympathetic, there is no right to legal representation in migration proceedings: Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50. While it is indeed unfortunate that the applicants could not afford the services of a migration agent, the responsibility was placed on them to meet the requirements to be granted the visa. Again, the Tribunal could not waive compliance with the criteria on the basis that the applicants were self-represented.
Ground 3 is dismissed.
Ground 4
Ground 4 provides:
4) Required English score
I achieved the required English score after the surgery. The basis of the Tribunal’s decision was that I had not achieved the required English score. Additionally all my education in Bhutan from primary school to secondary school, in India at tertiary level, in Australia at tertiary level was completed conducted in the English language
The applicants misunderstand the requirements of cl 485.212(a) of the Regulations. These criterion have been considered “inflexible” but are without ambiguity as to their operation: Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140. That is, while “harsh”, there is no uncertainty as to what is required.
What is required is:
(a)an applicant must sit a specified English Language test. The specified tests are identified in IMMI 15/062. A test that is not one of the specified tests will not meet the criterion;
(b)the applicant must have sat that specified English Language test in the three years before the day that the applicant lodged the application for the visa. The applicant cannot sit the test on the day they apply for the visa or on the day after the applicant applied for the visa or in the month after the applicant applied for the visa. The “window of opportunity” to sit the test is strictly applied;
(c)if the applicant has sat a specified test in the “window of opportunity”, the applicant must achieve the minimum results in that test (which are specified in IMMI 15/062). If the applicant does not meet the minimum score, the applicant does not meet the criteria; and
(d)the visa application must be “accompanied by” the evidence demonstrating (a)-(c) above. While there is some flexibility in relation to the term “accompanied by” (i.e., the evidence can be provided in the days after lodging the visa application), this relates only to the evidence (i.e., the documents that demonstrate (a)-(c) above). It does not extend to the fact of taking the test itself in accordance with (a)-(c).
Accordingly, it does not matter if the first applicant passed an English Language test after he applied for the visa. The first applicant had to meet the requirement before he applied for the visa. This part of the criterion is strict.
Further, it also does not matter that the first applicant took the majority of his schooling in the English language. Unless the first applicant held a passport of a specified type (which he conceded he did not), then the first applicant had to meet cl 485.212(a) – notwithstanding the level of education or familiarity he already had with the English language.
Timing is critical in an application of this sort. Unfortunately, the applicants did not recognise this until it was too late.
The Tribunal was correct to find that the first applicant did not meet cl 485.212.
Ground 4 is dismissed.
CONCLUSION
The application for judicial review fails to identify any jurisdictional error in the Tribunal’s decision. The Court has otherwise been unable to identify any error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 February 2021
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