WANG v Minister for Immigration

[2017] FCCA 590

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 590

Catchwords:
MIGRATION – Migration Regulations 1994 (Cth) – Skilled visa application – failure of primary applicant to satisfy criterion of “Competent English” – application for judicial review of Administrative Appeals Tribunal decision affirming Delegate’s refusal of visa – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth)

Cases cited:

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417

Kaur v Minister for Immigration and Border Protection (2015) 233 FCR 507

Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508

Applicant: MINGZHONG WANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3470 of 2015

Judgment of: Judge Dowdy

Hearing date: 3 August 2016

Date of Last Submission: 3 August 2016

Delivered at: Sydney

Delivered on: 30 March 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr A Keevers

Solicitors for the Respondents: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 22 December 2015 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3470 of 2015

MINGZHONG WANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of China aged 39 years, having been born on 23 August 1977.

2. By his Application filed in this Court on 22 December 2015, he seeks to quash and impliedly have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (the Tribunal), dated 8 December 2015, which affirmed a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 21 April 2015 refusing to grant to the Applicant and his wife, Ms Hongying He and their three children Shiyu, Shiyi and Shiya, Skilled (Residence) (Class VB) (Subclass 885) visas (Skilled visa).

3. The Applicant was the only member of his family seeking to satisfy the primary criteria for the grant of a Skilled visa. He and his wife applied for a Skilled visa on 5 December 2012 together with their children.

4. The Applicant’s wife and their children were secondary applicants and the outcome of their applications for a Skilled visa was dependent upon the outcome of his application, and whether he met the required primary criteria.

5. In his Application to this Court, the Applicant seeks to quash the decision of the Tribunal and seeks no other order, but I will assume in his favour that he seeks a writ of mandamus directed to the Tribunal requiring it to determine according to law the application of his wife, his children and himself.

6. As at the date of his application for a Skilled visa, the Applicant had to satisfy the criteria appearing in cl. 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria had to be satisfied by at least one applicant, in this case being himself, and the other members of his family unit needed only to satisfy the secondary criteria.

7. Clause 885.213 of Sch.2 to the Regulations required that Applicant had competent English at the time of his application for a Skilled visa. “Competent English” was not defined in cl.885 but rather was defined in reg.1.15C of the Regulations in the following terms as at 5 December 2012:

   1.15C  Competent English

   (1)  A person has competent English if:

   (a)  the person undertook a language test, specified by the  Minister in an instrument in writing for this paragraph; and

   (b)  the person is an applicant for a visa; and

   (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb)  for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)  the person achieved a score specified in the instrument.

   (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

8. I note at this point that the Applicant had not satisfied subparagraph (2) of reg.1.15C of the Regulations because he held a Chinese passport and not a passport from the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland which are the countries which had been specified by the Minister for the purposes of subparagraph (2).

9. At the date of the Tribunal decision, the relevant applicable specification by an instrument in writing for the purposes of reg.1.15C(1)(a) of the Regulations was IMMI 15/005 (Instrument) which commenced on 11 December 2014 and which relevantly prescribed, for the purposes of the Applicant’s application for a Skilled visa, as follows:

   1.     …

   2.     …

   3.SPECIFY for applications lodged on or after 1 July 2012, and before 23 November 2014 tests, test scores and passports as follows:

   A….

   B…

   C.for paragraph 1.15C(1)(a), the following language tests:

   i.     an IELTS test; or

   ii.     an OET.

   D.for paragraph 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.

   E.for subregulation 1.15C(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen  of that country.

   F.      …

10. In his Skilled visa application of 5 December 2012 the Applicant had asserted that his language ability in English was “Competent” and that on 28 May 2010, within the 24 months prior to his application, he had taken an International English Language Test System test (IELTS test).

Decision of Delegate

1. Relevantly for the Applicant, the combined effect of cl.885.213 and reg.1.15C of the Regulations and clause 3 of the Instrument accordingly was that he had to satisfy the Minister that within the period of three years immediately before 5 December 2012 he had achieved an IELTS test score of at least 6 in the four test components of speaking, reading, writing and listening.

2. However, the Delegate, in her Decision Record of 21 April 2015, made no reference to the alleged IELTS English language test of 28 May 2010 which apparently was not provided by the Applicant to her. The Delegate referred to IELTS Test Reports of 21 August 2010 and 5 March 2011 provided by the Applicant but neither of which indicated achievement by him in all the required four test components of a score of at least 6. Accordingly, the Delegate found that he had not satisfied the “Competent English” requirement of cl.885.213 of Sch.2 to the Regulations and refused to issue him with a Skilled visa, which meant that his secondary family applicants did not meet the criteria for the grant of the Skilled visas.

3. The Delegate also considered the Applicant’s Skilled visa application against the criteria for a grant of a subclass 886 and subclass 887 visa within the VB class of visa but found that for subclass 886 he did not have “Competent English” and for subclass 887 the Applicant made no claim to have satisfied the required criterion that he had worked full-time in a specified regional area for at least one year.

Tribunal Decision Record

1. The Applicant and his wife sought a merits review of the Delegate’s decision by application to the Tribunal made on 7 May 2015. In the result, the Tribunal affirmed the decisions not to grant Skilled visas to the Applicant or any members of his family.

2. At [9] of its Decision Record the Tribunal noted that the Applicant had said that he had undertaken an IELTS test on 28 May 2010 in his application for a Skilled visa and that his language ability was “Competent” but that he had not provided any evidence to confirm that assertion.

3. At [10] of its Decision Record the Tribunal recorded that the Applicant had said at the hearing before the Tribunal, which took place as a telephone conference on 8 December 2015, that he had not achieved the requisite result in any prescribed test undertaken during the relevant 3 year period prior to his Skilled visa application.

4. It was also recorded by the Tribunal that the Applicant had said that he was still undertaking tests in an attempt to achieve the requisite scores.

5. In these circumstances, the Tribunal found that the Applicant did not have Competent English as defined by reg.1.15C of the Regulations and did not meet the requirements of cl.885.213 of Sch.2 to the Regulations and it accordingly affirmed the Delegate’s refusal to grant a Skilled visa to the Applicant or any members of his family.

Proceeding in This Court

1. The Grounds of the Application are as follows:

   1.I am a Chinese citizen and applied for subclass 885 onshore. I failed my IELTS test due to situation beyond my control.

   2.I always obey my visa condition and never breached it. The member has prejudice to my review application and explanation at the hearing.

   3.It is not fair to refuse my application, and AAT member should give a good consideration of my special situation for failing the IELTS test.

2. The orders sought by the Applicant also argue grounds for review and were as follows:

   1.I disagree with Immigration and AAT’s decision. They did not consider that I have a genuine intention to apply for subclass 885. They did not consider the fact that I had compelling reasons for failing my IELTS test And I did tried my best to meet the requirement.

   2.AAT member did not give well consideration for my explanation at the hearing

   3.Immigration and AAT should granted my subclass 885 and allow me to live here permanently.

3. In support of his Application he read without objection his affidavit affirmed on 17 December 2015 which stated as follows:

   I am a Chinese citizen and applied for subclass 885 on shore. I failed my IELTS test due to situation beyond my control.

4. At the hearing the Applicant appeared in person with the assistance of a Mandarin interpreter and Mr Keevers appeared on behalf of the First Respondent.

5. I do not consider that there is any substance to any of the grounds relied upon by the Applicant in his Application. Whether or not in his view there were “compelling reasons for failing” his IELTS test or whether the failure was due to a situation beyond his control is irrelevant to the requirement by cl.885.213 of Sch.2 to the Regulations that he has “Competent English” in accordance with reg.1.15C.

6. Further, there is not a skerrick of evidence that the Tribunal member, Mr Bruce MacCarthy, was prejudiced in relation to his review of the Delegate’s decision and otherwise the grounds would seem to invoke a merits review which is not permissible in this Court.

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417

1. At the end of his submissions I raised with Mr Keevers whether the above decision of the High Court may be relevant or have some militating tendency in favour of the Applicant, notwithstanding that it seemed to be readily distinguishable on the basis of the rewriting, since the decision of Berenguel was handed down in March 2010, of the version of reg.1.15C of the Regulations and the material differences between the earlier version considered by the High Court in Berenguel and the version in its present form, together with the fact that unlike Mr Berenguel, the Applicant has never at any time, either before or after his Skilled visa application, achieved a level of “Competent English” as required by cl.885.213 to Sch.2 to the Regulations.

2. In response to my query Mr Keevers referred me to the decision of Katzmann J in Milanes v Minister of Immigrationand Border Protection (2015) 234 FCR 508 (Milanes) where her Honour considered in detail reg.1.15 of the Regulations in the version applicable to this case and the material differences between that version and the version considered by the High Court in Berenguel. It would be a supererogation for me to engage in a further consideration of the legal issues analysed thoroughly by Katzmann J in Milanes and I refrain from doing so and merely record that the decision of the High Court in Berenguel does not assist the Applicant in this case.  In  Milanes Katzmann J agreed at [59] with the statement of Mortimer J in Kaur v Minister for Immigration and Border Protection (2015) 233 FCR 507 by saying at 520 [58]:

   In Kaur at [41], after noting the differences between the form of reg 1.15C and the regulation considered in Berenguel, Mortimer J held that “the text of reg 1.15C leaves no room for the approach adopted by the High Court in Berenguel”. As her Honour went on to point out:

   The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.

Conclusion

1. In my view, the Applicant has not established any grounds for quashing the decision of the Tribunal. As a matter of law, the Tribunal could not be satisfied that he had achieved “Competent English” and it had no option but to affirm the Delegate’s decision to refuse to grant him a Skilled visa. The Applicant has not established that the decision is affected by any jurisdictional error or procedural unfairness and his Application must be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     30 March 2017