Wang v Minister for Home Affairs
[2018] FCCA 3416
•26 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3416 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of employer nomination visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.359A, 360 Migration Regulations 1994 (Cth) |
| Cases cited: Ghori v Minister for Immigration [2011] FCA 759 |
| First Applicant: | QING WANG |
| Second Applicant: | DECAI YANG |
| Third Applicant: | QINGYUE YANG |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPAELS TRIBUNAL |
| File Number: | SYG 3992 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2018 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3992 of 2017
| QING WANG |
First Applicant
DECAI YANG
Second Applicant
QINGYUE YANG
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPAELS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 24 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants permanent employer nomination visas. There are three applicants who are a mother (Ms Wang), her husband (Mr Yang) and their daughter. Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 19 November 2018.
Ms Wang is a citizen of China who applied for an Employer Nomination (Subclass 186) visa on 10 April 2016 on the basis of her nomination for the position of Program or Project Administrator with “Computeck Pty Ltd” under the Temporary Residence Transition stream.[1] Mr Yang and Miss Yang were included as dependants in the visa application.[2]
[1] Court Book (CB) 1-16
[2] CB 3-7
It was a time of application requirement, contained in clause 186.222(a) and (b) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), that the applicant have “vocational English” or be “a person in a class of persons specified by the Minister in writing for this paragraph”.
“Vocational English” was defined in regulation 1.15B and relevantly provided that a person will have vocational English if that person either undertook a specified language test in the three years preceding the visa application and achieved a specified score or held a specified passport. The relevant tests, scores and passports for the purposes of clause 186.222(a) were specified in the legislative instrument IMMI 15/005, and require an overall score of 5.0 in each of the four test components of listening, reading, writing and speaking in an International English Language Testing System (IELTS) test. Legislative Instrument IMMI 15/083 exempts classes of persons from English language criteria for the purposes of clause 186.222(b) by reference to an applicant’s earnings and study history.
In her visa application form, Ms Wang declared that she had undertaken an English language test in the last 36 months and achieved “functional” language ability.[3]
[3] CB 11-12
On 13 December 2016, Ms Wang was invited to provide more information in support of her visa application, including evidence that she had vocational English at the time she lodged her visa application with the Minister’s Department.[4]
[4] CB 19-33
On 9 January 2017, Ms Wang submitted an IELTS test result for a test undertaken on 29 October 2016 (after lodgement of her visa application) where she had failed to achieve the required specified score.[5]
[5] CB 85
On 1 February 2017, the delegate refused to grant the visas on the basis that Ms Wang failed to meet the English language criteria in clause 186.222 of Schedule 2 to the Regulations.[6] The delegate found that there was no evidence that Ms Wang had undertaken an IELTS test and achieved at least 5.0 in each of the four test components of listening, reading, writing and speaking in the three years immediately before the day on which the visa application was made as required by clause 186.222(a).[7] Further, the delegate found that there was no evidence that Ms Wang was a class of persons exempt from the English language criteria for the purposes of clause 186.222(b) of Schedule 2 to the Regulations.[8]
[6] CB 89-101
[7] CB 99
[8] CB 99
The Tribunal
On 21 February 2017, the applicants applied to the Tribunal for review of the delegate’s decision.[9] Ms Wang provided a number of IELTS test results forms for tests undertaken within the period 27 June 2015 to 7 January 2017 in which she had failed to achieve the required specified score.[10] In a statement accompanying her application for review, Ms Wang requested that the Tribunal “reconsider” her application on the basis that her English was “improving with time”.[11]
[9] CB 102-104
[10] CB 106-115
[11] CB 117
By letter dated 26 October 2017, the Tribunal invited Ms Wang to appear before it at a hearing scheduled on 24 November 2017 to give evidence and present arguments in relation to her review application.[12]
[12] CB 121-128
On 30 October 2017, Ms Wang requested that the hearing be rescheduled on the basis that she had planned to travel to China on 10 November 2017 to visit her sick father.[13] On 31 October 2017, the Tribunal declined to postpone the hearing but agreed to allow Ms Wang to appear by telephone.[14]
[13] CB 129-136
[14] CB 137
On 13 November 2017, Ms Wang requested that the Tribunal reconsider her request to postpone the hearing.[15]
[15] CB 138-139
On 24 November 2017, Ms Wang appeared at the scheduled hearing by telephone and the hearing was conducted with the assistance of an interpreter.[16]
[16] CB 149at [12]
The Tribunal’s decision
On 24 November 2017, the Tribunal affirmed the delegate’s decision on the same basis.[17]
[17] CB 145-153
The Tribunal considered a series of IELTS test results for tests undertaken in Australia and found that five of these were undertaken before the visa application was lodged but Ms Wang had not achieved the required score of at least five in each of the test components of listening, reading, writing and speaking in any of the tests.[18] Accordingly, she was unable to satisfy clause 186.222(a).
[18] CB 150 at [19]-[20]
The Tribunal found that Ms Wang did not hold a passport of a type specified by the Minister, her earnings for the nominated position would be $55,000 which was less than the Australian Tax Office’s “top individual income tax rate” and there was no other evidence to indicate that she would be exempt from the requirement to establish vocational English.[19] Accordingly, she did not satisfy clause 186.222(b).
[19] CB 150 at [21]
The Tribunal considered Ms Wang’s submissions but found they could not assist her in meeting the criteria for the grant of the visa.[20] The Tribunal concluded that Ms Wang did not meet clause 186.222[21] and affirmed the decision under review. The Tribunal also affirmed the decision to refuse subclass 186 visas to the secondary applicants as they did not meet the secondary visa criteria.[22]
[20] CB 150 at [22]
[21] CB 150 at [23]
[22] CB 150 at [24]
The present proceedings
These proceedings began with a show cause application filed on 21 December 2017. The applicants continue to rely upon that application. There are four grounds in it:
1. The Tribunal failed to give to me particulars of information, including my English language test result requirements, that the Tribunal considered or had used would be the reason or a part of the reason, for affirming the decision;
2. The Tribunal failed to ensure that I understand why the information is relevant to the review;
3. The Tribunal failed to grant me an extension of time. Instead, the Tribunal carried out an interview by telephone while I was in chia and under enormous stress due to my parents illness;
4. The Tribunal did not treated me fairly and did not taken into account of my family conditions at the time.
(errors in original)
The application is supported by a short affidavit filed with it which I received.
I also have before me as evidence the Court book filed on 14 March 2018.
Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from Ms Wang this morning. She made a number of points. She noted that she was not present in person for the Tribunal hearing and regarded the circumstances of the hearing as unfair. She told me that she was close to passing the English language test and considered it unfair that she was denied a visa on the basis of her inability to pass the test to the point of the Tribunal’s decision. Her other submissions went beyond the scope of these proceedings.
Ms Wang is concerned about the circumstances in which the family would find themselves should they be required to return to China. She is particularly concerned for her daughter who has undertaken all of her education in Australia and is about to complete grade 4. Her submissions were supported by Mr Yang. I discussed with them some alternative possibilities which are beyond the scope of this proceeding. For the purposes of today’s show cause hearing, however, Ms Wang and Mr Yang were not able to advance an arguable case of jurisdictional error by the Tribunal.
The Minister’s submissions respond to the grounds advanced in the application.
Grounds 1 and 2 contend that the Tribunal failed to provide her with “particulars of information” that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and failed to ensure that she understood why the information was relevant to the review. The relevant information identified is her “English language test result requirements”. These grounds appear to allege a breach of s.359A of the Migration Act 1958 (Cth) (Migration Act).
This complaint is misconceived as the specific requirements for the grant of the visa do not constitute “information” for the purposes of s.359A. “Information” relates to the existence of evidentiary material or documentation, or “knowledge communicated or received concerning some fact or circumstance”.[23] The Tribunal was also not required to put to Ms Wang pursuant to s.359A of the Migration Act, the fact that she had unsuccessful test results. These test results were provided by Ms Wang to the Minister’s Department and the Tribunal. The various IELTS test results provided to the Tribunal fell within the exception contained in s.359A(4)(b) of the Migration Act as it was information that Ms Wang gave for the purpose of the application for review. The IELTS test result dated 9 November 2016 provided to the Minister’s Department fell within the exception contained in s.359A(4)(ba) of the Migration Act as it was information that the applicant gave during the process that led to the decision under review.
[23] Patel & Anor v Minister for Immigration & Anor [2015] FCCA 1502 at [33]-[35]; SZBYR v Minister for Immigration [2007] HCA 26 at [18]; Tin v Minister for Immigration [2000] FCA 1109
To the extent that Ms Wang contends that she was not on notice of the determinative “issue” on the review, namely her ability to satisfy clause 186.222, such a complaint also cannot succeed. The relevant English language requirements were set out in the delegate’s decision, which was provided by Ms Wang to the Tribunal with her review application.[24] The Tribunal’s hearing invitation dated 26 October 2017 also invited Ms Wang to specifically provide “Information to demonstrate that you meet the English language proficiency requirement applicable to your Subclass 186 visa, or information that demonstrates that you are exempt from the English language criteria”.[25] Further, Ms Wang had an opportunity to attend the hearing on 24 November 2017 to give evidence and present arguments on the dispositive issue as required by s.360(1) of the Migration Act.
[24] CB 104
[25] CB 122-123
Grounds 3 and 4
Grounds 3 and 4 take issue with the Tribunal’s decision to refuse Ms Wang’s request for an adjournment and to proceed with a hearing by telephone. Ms Wang states that she was in China “under enormous stress” due to her father’s illness, and contends that the Tribunal did not treat her “fairly” or take into account her “family conditions” at the time.
Ms Wang wrote to the Tribunal on 30 October 2017 and requested an adjournment of her scheduled hearing on 24 November 2017 on the basis that she had a flight booked to China leaving on 10 November 2017 and returning on 22 December 2017 as her father was sick.[26] The Tribunal declined the request and informed Ms Wang that it would arrange for her to attend by telephone.[27]
[26] CB 129-136
[27] CB 137
The Tribunal is given the power and discretion to determine whether to adjourn proceedings and the law requires that such discretion be exercised reasonably.[28] There was nothing unreasonable in that decision. Ms Wang availed herself of the opportunity to attend by telephone and it is not apparent that she raised any complaint at the telephone hearing, nor did she submit that she was under “enormous stress” due to her “family conditions”. There was no evidence that Ms Wang was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing.[29] Significantly, there was a confined issue for consideration at the hearing, namely Ms Wang’s ability to satisfy a time of application criterion. In these circumstances, there was a “degree of futility” to the application for review.[30] This was not a case where a decision has been made that lacks an “evident and intelligible justification”.[31]
[28] Minister for Immigration v Li [2013] HCA 18 at [47] per Hayne, Kiefel and Bell JJ
[29] Minister for Immigration v SZNVW (2010) 183 FCR 575; Minister for Immigration v SZNCR [2011] FCA 369 at [30]-[33]; SZOVP v Minister for Immigration (No. 2) [2011] FMCA 442
[30] Ghori v Minister for Immigration [2011] FCA 759 at [22] per Perram J
[31] Minister for Immigration v Singh [2014] FCAFC 1 at [44]-[45]; and Minister for Immigration v Li (2013) 297 ALR 225; [2013] HCA 18 at [102]
Even if I were wrong and there was some identifiable jurisdictional error in the Tribunal’s approach or decision, it would be futile to remit the matter to the Tribunal.[32] Ms Wang is plainly unable to satisfy clause 186.222, which is a time of application criterion for the grant of a subclass 186 visa, as she did not have vocational English when she applied for the visa on 10 April 2016. Ms Wang cannot now satisfy clause 186.222 and the Tribunal has no discretion to waive this requirement. Accordingly, the Tribunal would be bound to affirm the decision under review.
[32] Kabir v Minister for Immigration [2010] FMCA 132
I conclude that the applicants are unable to demonstrate an arguable case that the decision of the Tribunal was affected by jurisdictional error. I will accordingly order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The scale amount at the time this application was filed was $3,667. Ms Wang sought a reduction of that amount, but I am satisfied that costs of at least that amount have been reasonably and properly incurred when assessed on a party and party basis.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 November 2018
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