Weng v Minister for Immigration - [2010] FMCA 974

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WENG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 974

MIGRATION – Alleged error by Migration Review Tribunal – consideration of applicable regulations – applicant’s assertion Tribunal applied incorrect criteria – applicant’s assertion misconceived – application dismissed.

Migration Regulations 1994, reg.1.15B

Applicant:

PENG XIANG WENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 927 of 2010

Judgment of:

Burchardt FM

Hearing date:

6 December 2010

Date of Last Submission:

6 December 2010

Delivered at:

Melbourne

Delivered on:

21 December 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Mr B. Wee

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 927 of 2010

PENG XIANG WENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 31 May 2010 by which the Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Skilled (Provisional) Class VC subclass 485 (Skilled-Graduate) visa.
In his affidavit, filed 28 June 2010, the applicant says that the Tribunal misinterpreted reg.1.15B of the Migration Regulations 1994 (“the Regulations”) in relation to the definition of vocational English. He says that because he completed a trade certificate at Chisholm Institute in Melbourne between 1 February 2006 and 30 November 2007 where instruction for the program was conducted in English, he meets the statutory criteria.
For the reasons that follow, I think that the applicant’s submission is misconceived and it follows that the application must be dismissed.

The Facts

The facts in this matter are not controversial and what follows is a digest taken from a combination of the reasons for decision of the Tribunal and the written submissions of the first respondent.
The applicant is a citizen of the People’s Republic of China. He is a qualified motor mechanic.
On 11 March 2008, the applicant applied for a Skilled (Provisional) Class VC visa and on 29 May 2009 a delegate of the first respondent refused to grant it (CB 57 to 63).
On 27 May 2009, the applicant applied to the Tribunal for a review of the delegate’s decision and by letter dated 3 December 2009, the Tribunal invited the applicant to a hearing on 6 January 2010.
That hearing was rescheduled because of the applicant’s ill health to

1 April 2010.
The applicant’s agent informed the Tribunal on 27 January 2010 that the applicant had returned to China to seek alternative therapies on the advice of his treating doctor but he was nonetheless unable to attend the hearing on 1 April 2010. The representative did not attend but in written submissions, noted that the applicant had unsuccessfully sat 10 (ten) IELTS tests and asked the Tribunal not to make a decision for two weeks so that the results of those recent tests could be submitted

(CB 112 to 128).
The Tribunal did not receive the posited results of the most recent IELTS tests despite following up with the applicant’s representative. Accordingly, on 1 June 2010, the Tribunal handed down the decision from which this application derives.

The Tribunal’s Decision

The Tribunal found that at the time the visa application was lodged, the Skilled (Provisional) Class VC visa class contained only two subclasses, subclass 485 (Skilled-Graduate) and subclass 487 (Skilled-Regional Sponsored) (CB 135).
The Tribunal correctly indicated that the applicant had not suggested that he was either nominated by a State or Territory Government agency or sponsored by a relative and, therefore, did not come within subclass 487. The Tribunal approached the matter on the basis that the relevant subclass for consideration was subclass 485.
The Tribunal, at paragraph 9 of its reasons for decision, paraphrased the requirements of clause 485.215 (the time of application criterion) as:
· the applicant’s nominated skilled occupation is in the Australian Standard Classification of Occupations (ASCO) Major Group (IV), and the applicant has vocational English (clause 485.215(a)); or
(the Tribunal went on to consider two other hypotheses that did not arise).
The Tribunal went on, at paragraph 10, to refer to the time of decision criterion in clause 485.222, which was relevantly in the same terms.
The Tribunal noted that the definition of vocational English is defined in reg.1.15B of the Regulations, and set out the matter as follows:
“R.1.15B(5) relevantly provides that a person has ‘vocational English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day upon which the application was lodged:
(a) an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening or (irrelevant).
(b) (which is not relevant).
The Tribunal found, at paragraph 13:
“There is no other language test or score specified for the purposes of reg.1.15B(5)(b).”
The Tribunal went on to consider an alternative – namely, whether a person has competent English, but that does not arise in this case.
The Tribunal found in the applicant’s favour that he had nominated the occupation of motor mechanic (ASCO code 4211-11). The Tribunal went on to say, at paragraph 19 (CB137):
“As the occupation is in Major Group IV in the Australian Standard Classification of Occupation (ASCO), the applicant was required to demonstrate at the time of application that he had vocational English, or that he had made arrangements, and provided evidence therefore, to undergo a test in order that he could demonstrate that he had Vocational English at the time of decision by the Department.
To demonstrate Vocational English the applicant was required to achieve at least 5 for each of the 4 test components.
The applicant appears to have completed Certificate IV in Automotive Technology successfully. At hearing the applicant stated that he considered he had a vocation in this trade and expressed that he genuinely wanted to practise as a mechanic. In other words, he had not undertaken the diploma with the sole intent of gaining residency in Australia.
The Department wrote to the Tribunal on 27 March 2009 asking that the applicant produce his IELTS test results to demonstrate that he had Vocational English. At the time of writing the Departmental decision on 19 May 2009, the applicant had not submitted an IELTS test result showing that he had achieved a score consistent with demonstrating Vocational English.”
Having traversed a number of interim matters, the Tribunal noted that, on 1 April 2010, the applicant’s agent wrote to the Tribunal.
The Tribunal recorded at paragraph 28:
“The representative also attached copies of 8 test results which, on the whole, showed that the applicant had achieved an Overall Band Score of 5 or more, but that on one component he invariably seemed to achieve 4.5, missing out by half a point.”
The Tribunal went on to say, at paragraph 30:
“On 12 May 2010, some 7 weeks after the hearing held on 1 April 2010, the Tribunal had not heard from the visa applicant or his representative. The Tribunal had been prepared to give the applicant additional time in the event he could submit an IELTS test demonstrating he had achieved Vocational English. Hence on 12 May 2010, the Tribunal telephoned the representative, asking whether the applicant had received his IELTS test result, as it was now well overdue and given the time that had lapsed, the Tribunal would proceed to make a decision shortly based on previous results if there was no contact from the applicant or the representative in the next few days. The representative stated that he would contact the visa applicant and would find out where matters were at. At the time of writing this decision on 31 May 2010, almost two months after the hearing, and two weeks after the Tribunal’s call to the representative, the Tribunal is yet to receive any IELTS test result that would demonstrate that the visa applicant has achieved an IELTS test reflecting the attainment of Vocational English.”
The Tribunal went on to say, at paragraph 31:
“The issue in the present case is whether the applicant meets cl.485.222.
At paragraph 32 the Tribunal said:
“On the evidence before the Tribunal, at the time of application, the applicant held a passport of the Republic of China and nominated a skilled occupation of Motor Mechanic. This occupation is in the ASCO Major Group IV and therefore Vocational English is required, meaning that the applicant must retain 5 for each of the four components of the IELTS test, that is, for: Listening; Reading; Writing and Speaking.”
The Tribunal went on to find that on the evidence before it, it was not satisfied that the applicant had achieved such a score. It noted that despite the claims that further results would be submitted, they had not been. The Tribunal, therefore, found that the applicant did not have, at the time of decision, vocational English as defined in reg.1.15B(5).
The Tribunal went on to recommend that this case be brought to the first respondent’s attention relating to the exercise of his powers. This was because:
“The Tribunal has sympathy for the visa applicant. At hearing the applicant struck the Tribunal as an honest and earnest person who had invested a great deal both emotionally and financially in attempting to demonstrate that he had Vocational English. For some reason on each of the 8 times in the test results before the Tribunal, the apposite results eluded him by 0.5 on most occasions. The Tribunal also notes that the applicant has suffered some stress as a result of his inability to convert his Motor Mechanic qualifications into a skill he can apply in Australia due to the English language impediment. While the Tribunal understands that there has to be a threshold point at which applicants can no longer meet English language requirements, the Tribunal considers that it has not been for lack of trying on the part of the applicant and that consideration should be given to the applicant’s strong desire to work in a field in which there has been a skills shortage.”
The Tribunal, nonetheless of course, affirmed the decision under review and dismissed the application.

The Applicant’s Case

The applicant’s case, as I have already indicated, is that the Tribunal misinterpreted reg.1.15B. At paragraph 3 of his affidavit he asserted:
“The Migration Review Tribunal did not interpret the legislation correctly because under the department policy, IELTS testing is not necessary if the applicant has given evidence that they have an appropriate level of English. The type of evidence taken into account includes that the person (a number of matters are set out).”
And he went on, at paragraph 4:
“I hold a trade certificate that required at least two years’ fulltime study in Australia and all the instruction was conducted in English and I have been living, studying and in Australia for nearly seven years by now.”
He attached various documents, marked as attachment B. Attachment B is a series of papers from a proceeding conducted before Riley FM in which, on 6 November 2008, her Honour by consent made orders remitting the application to the Tribunal, and in which the Court noted that:
“The first respondent accepts that the second respondent failed to consider whether sub-regulation 1.15B(3) of the Migration Regulations 1994 applied in assessing the applicant’s vocational English.”
The affidavit of the applicant in that case is also part of annexure B, and it is clear that the applicant in this case has essentially copied, in large part, that affidavit.
Despite Registrar Caporale ordering, on 4 August 2010, that the applicant file and serve an amended application giving proper particulars of the grounds of the application, and written submissions, the applicant did not do so. He clearly relies solely on his affidavit.
When the matter came on before the Court and the applicant was invited to make any submissions that he might wish, he declined, at least initially, to do so. Following the submissions of counsel for the Minister, he made a few remarks, which were predominantly to the effect that the IELTS test was difficult to pass and was always different each time you sat it.

Submissions of the First Respondent

Putting the matter shortly, the first respondent submits that the Tribunal was correct to identify cl.485.222 as the appropriate part of the regulations pursuant to which the applicant’s application should be considered. It was further submitted that vocational English had the meaning given by reg.1.15B(5), which contained no discretion, as is the case with cl.485.222, to waive any failure to comply with the necessity to achieve the requisite IELTS test results.
The first respondent submitted that the case relied upon by the applicant involved reg.1.15B(3), as it then stood. That subregulation does contain a discretion, but it was submitted that:
“It is not applicable to the applicant because it deals with applications other than general skilled migration visa applications.”
In oral submissions, the Minister essentially emphasised these points.

Consideration

It is clear that the applicant did apply for a general skilled migration visa (see CB1 to 25).
Pursuant to reg.1.03 of the Migration Regulations 1994, a general skilled migration visa means a number of subclasses of visa, of which, as the Tribunal found, only subclasses 485 and 487 were capable of having any relevance. The Tribunal was correct to exclude the 487 subclass and, indeed, there is no suggestion that it applied.
I have been provided by counsel for the first respondent with a copy of the legislation as it stood at the relevant time when the applicant lodged his application on 11 March 2008.
Subclause 485.215, as it then stood, required the applicant’s nominated skilled occupation to be in Major Group IV in the Australian Standard Classification of Occupation, and that the applicant have vocational English or competent English (which is a higher standard than vocational English), or that he have made arrangements to undergo a language test specified by the Minister.
Vocational English was then defined in subreg.1.15B(5), which required, relevantly, an IELTS score of at least five for each of the four tests composed of speaking, reading, writing and listening.
The reference to subreg.1.15B(3) referred to in the case upon which the applicant relies only applies to applications other than general skilled migration visas and therefore never applied to the applicant in any event.
Furthermore, the subregulation, as I read it, contains the same essential requirements as that in subregulation (5) – namely, a score of at least five for each of the four test components.
The matters referred to in the applicant’s affidavit appear to derive (see annexure B, last page) from an extract of the 7th edition of an immigration kit, which relevantly asserts:
Department policy is that IELTS testing is not necessary if the applicant has given evidence that they have the appropriate level of English. The type of evidence taken into account includes that the person:
· holds an award (being a degree, a higher degree, a diploma or trade certificate) that required at least two years full time study and all instruction was in English;
· has studied and/or worked in an English speaking country for a considerable period.
The difficulty with this document is that I have only the last page of it and I do not know to what particular set of circumstances it applies.
On its face, it is clearly inconsistent with reg.1.15(B) and it seems clear to me that reg.1.15(B) did indeed apply, as the Tribunal found.
In the circumstances, the applicant’s submission is misconceived. Putting it at its highest, I am not satisfied that this policy has been proved to have any overarching effect such as to set aside the clear terms of reg.1.15(B).

Conclusion

For the above reasons, the application must be dismissed. Nonetheless, I share the sympathy that the Tribunal expressed for the applicant.
Although he only appeared before me for a brief period of time, the impressions he made upon me were exactly those that he apparently made upon the Tribunal. It is not necessary to repeat the Tribunal’s remarks earlier referred to above.
For the same reasons as the Tribunal, I would urge that consideration be given to bringing this matter to the Minister’s attention.
I will order that the application be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 21 December 2010