Zhou v Minister for Immigration
[2011] FMCA 607
•29 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHOU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 607 |
| MIGRATION – MRT decision – Subclass 485 onshore skilled temporary visa – requirement of competent English – failure to achieve sufficient IELTS test result – Tribunal allowed an additional opportunity to undertake test – no procedural unfairness or other jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.360 Migration Regulations 1994 (Cth), cll.485.215, 485.215(b), 485.215(c), 485.222 |
| Berenguel v Minister for Immigration & Citizenship [2010] HCA 8, (2010) 264 ALR 417 Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450 Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41 Parmar v Minister for Immigration & Citizenship [2011] FCA 760 SZNVW v Minister for Immigration & Citizenship & Anor [2011] HCASL 26 |
| Applicant: | TAORAN ZHOU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 991 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 29 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 991 of 2011
| TAORAN ZHOU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant studied in Australia, and on 24 October 2008 a migration agent acting for her lodged an internet application for a temporary residence visa subclass 485, which might lead to qualification for a permanent residence visa. She now seeks judicial review of a decision of the Tribunal, which affirmed a decision refusing that application.
The processing of the subclass 485 application followed a pattern with which the Court has become familiar, and concerned a visa criterion requiring ‘competent English’, which I addressed, for example, in Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450, and which was recently addressed by Perram J in Parmar v Minister for Immigration & Citizenship [2011] FCA 760 on appeal from one of my decisions. In short, despite repeated efforts to achieve an IELTS test outcome required under criterion 485.215(b) or (c), Ms Zhou was never able to achieve a sufficient result, notwithstanding repeated efforts during a protracted period of decision‑making at first instance and on appeal.
The criteria which were applicable were those which I set out in Habib:
The legislation
7.The relevant criteria for both subclasses adopt definitions of ‘vocational English’ and ‘competent English’, which were also inserted into the Migration Regulations as part of the 2007 amendments. Relevant to the present visa criteria are regs.1.15B(5) and 1.15C, whose terms have remained unchanged since 2007:
1.15B Vocational English
……….
(5)If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on 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
(b) a score:
(i)specified by the Minister in an instrument in writing for this subparagraph; and
(ii)in a language test specified by the Minister in the instrument.
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii)a score:
(A)specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B)in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
8.Clauses 485.215 and 485.222 in the terms introduced in 2007, and which were applicable to Mr Habib’s visa application, are:
485.21Criteria to be satisfied at time of application
…
485.215Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b)the applicant has competent English; or
(c)the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
…
485.22Criteria to be satisfied at time of decision
…
485.222If the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for paragraph 485.215 (c):
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b)the applicant has competent English.
In Habib, I took a beneficial construction of the criterion in 485.215(b), by following the High Court’s judgment in Berenguel v Minister for Immigration & Citizenship [2010] HCA 8, (2010) 264 ALR 417 in relation to another visa criterion which I considered was indistinguishable. The result was, that it was open to a subclass 485 visa applicant to establish competent English by presenting to a decision‑maker, including the Tribunal, a sufficient IELTS test outcome achieved at any time prior to the date of decision. The Minister appealed from my judgment in Habib, but withdrew the appeal on the eve of a hearing in the Full Court on 28 October 2010.
Another result of the construction which I took in Habib, was that the alternative pathway for establishing English competency provided under criteria 485.215(c) and 485.222 became redundant in most cases, since it was usually immaterial whether the application was “accompanied by evidence” showing arrangements for a future language test.
The present delegate addressed the criteria before my judgment in Habib was delivered, but after writing to Ms Zhou and drawing her attention to the fact that her visa application had not been accompanied by any evidence of competent English under either an “IELTS or OET test” and inviting her to submit that evidence. No evidence was forthcoming to establish English competence according to the required standard in a test undertaken at any time. The delegate made a decision on 30 September 2009 to refuse the visa application on that ground, that is, of not satisfying the requirements of criterion 485.215.
Ms Zhou appealed to the Migration Review Tribunal assisted by her agent. The Tribunal invited her to a hearing which was rescheduled at her request. The request was made “because she is sick”, and was supported by a medical certificate giving an opinion that she was suffering from a condition which appears to be “gastritis”. The Tribunal granted the requested postponement. The hearing was rescheduled for 17 March 2011, and Ms Zhou attended on that day.
According to the Tribunal’s description of the hearing:
22.The Tribunal explained the issue in the review was that the applicant had to demonstrate she had competent English, and that the Tribunal did not have evidence that she had achieved the required results in a specified language test (given that she did not hold a specified passport for the purposes of the definition). The applicant told the Tribunal that she had done IELTS tests in the past but had not achieved the required results. She had not been able to do an IELTS test recently because her passport had expired and she was waiting for a new one. The earliest test she could take was the one scheduled for 2 April 2011, but she had not yet booked a place in that test. She had sent her passport for renewal about 1.5 weeks ago.
23.The Tribunal asked the applicant why she thought the Tribunal should wait until she did another IELTS test, given she had applied for the visa about 2.5 years ago. She stated that she usually obtained an average or band score of 5.5 and just wanted some additional time to study for another test. The last test she did was in February 2010. After this test she was busy with work and study, but would now focus on the language test.
24.In relation to the issue raised by the Tribunal about criteria for a subclass 487 visa, the applicant stated that she had an uncle in Perth. The Tribunal indicated that a crucial requirement was that she had to have indicated in the application that she was nominated or sponsored by a relevant government agency or specified relative, and there was no information in or with the application to indicate this.
25.The Tribunal advised the applicant that it would consider her request to allow further time for her to sit an IELTS test. On 18 March 2011 the Tribunal advised the applicant that it would delay making a decision on the review until 21 April 2011, so the applicant had an opportunity to sit another IELTS test and provide evidence of the results to the Tribunal. The Tribunal stated in the letter that any further evidence should be received by the Tribunal by 20 April 2011.
26.On 18 April 2011 the applicant provided to the Tribunal the results of the IELTS test which she undertook on 2 April 2011 and in which she scored 5.5 for Listening, 5.0 for reading, 5.5 for Writing and 7.0 for Speaking.
A transcript has not been tendered before me and I have no reason not to accept the Tribunal’s description of the hearing. In particular, I note that Ms Zhou made no reference to a medical condition as either explaining her difficulties in achieving a sufficient result, nor as a ground for further adjournment of the matter. Ms Zhou today makes no claim that she presented any such evidence or claim to the Tribunal.
In response to the Tribunal’s agreement to defer the making of its decision for a short time, Ms Zhou’s agent wrote to the Tribunal on 18 April 2011 a letter which said:
I am migration agent acting on behalf of Miss Zhou. Thank you for your kindness for offering a waiting period until 21 April 2011 to make a decision on Ms. Zhou’s review application. Enclosed please find her current passport front page and Test Report Form for Ms. Zhou.
The attached IELTS test results for a test undertaken on 2 April 2011 showed again that she had been unable to achieve an outcome of six in each of the four components, although she had achieved an overall band score of six.
The Tribunal made a decision on 21 April 2011 which affirmed the delegate’s decision. The Tribunal referred to the history of the matter. It referred to the criteria and to my decision in Habib, and in my opinion applied the law correctly. In relation to criterion 485.215(b), it said:
31.The Tribunal has before it evidence that the applicant achieved scores of 5.5 for Listening, 5.0 for Reading, 5.5 for Writing and 7.0 for Speaking in an IELTS test dated 2 April 2011. Although the applicant indicated to the Tribunal that she had sat other IELTS tests in the past, her evidence was that she had not achieved the required results in those tests to satisfy the definition of competent English. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has achieved a score of at least 6 in each of the 4 test components in an IELTS test. The Tribunal does not have any other evidence before it to establish that the applicant has achieved a specified score in an Occupational English test. The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C. The Tribunal accordingly finds that the applicant does not satisfy cl.485.215(b).
The Tribunal also noted that Ms Zhou was unable to satisfy the alternative pathway through criteria 485.215(c) and 485.222, if only because she had not achieved competent English before the time of decision.
The Tribunal considered alternative criteria for acquiring a subclass 487 visa, which Ms Zhou had not sought to rely upon, and noted that there was no evidence showing that, in fact, she could satisfy an alternative pathway.
Ms Zhou applied to the Court on 17 May 2011, seeking orders setting aside the Tribunal’s decision and remitting the matter for further consideration. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether she satisfies the visa criteria, nor to order a further consideration of other rights she might have to obtain permission to stay in Australia.
The ground of her application said only: “there was a jurisdictional error made by MRT”, but provided no particulars, and none have subsequently been provided by way of amended application or submission.
After an adjournment of a hearing before me, which was obtained on a medical certificate presented by Ms Zhou that she was suffering from gastroenteritis, Ms Zhou’s case came on for hearing today.
She has tendered several documents which I have marked as evidence. These include a report from a clinical psychologist dated 28 July 2011, that is, after the date of the Tribunal’s decision, recounting a history given by Ms Zhou to the psychologist concerning mental health reasons for not achieving satisfactory IELTS results until very recently. A certificate of achieving six in each of the four components in a test undertaken on 9 July 2011 was also tendered.
As I understand Ms Zhou’s submissions to me, she accepted that none of this material was available to the Tribunal, and that no reference to her psychological condition was made to the Tribunal. In effect, she submitted that, if this evidence had been available, then the Tribunal might have granted a longer deferral of making a decision than it granted. She also, in effect, invited me to order the Tribunal to allow that further time, even if the Tribunal’s decision was unaffected by jurisdictional error. However, I do not have power to do that.
In my opinion, the evidence now submitted does not show that Ms Zhou was medically incapable of presenting her case to the Tribunal, including any evidence relevant to seeking a longer deferral of its decision, to such an extent as might raise a jurisdictional error vitiating the Tribunal’s decision (see Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41 per Keane CJ at [15], [20], [22], and [36]‑[37], Emmett J at [48]‑[49], and Perram J at [84] and [86]). Special leave refused: SZNVW v Minister for Immigration & Citizenship & Anor [2011] HCASL 26). In my opinion, she was afforded the opportunity required under s.360 of the Migration Act 1958 (Cth) to present all evidence and submissions in support of a longer adjournment.
Moreover, it is completely speculative whether the Tribunal would have allowed a longer time than it, in fact, allowed her, if she had submitted other evidence.
On the material which was in fact before the Tribunal, in my opinion, the period of deferral for the submission of an additional IELTS result which it granted her was reasonable.
I am unable to detect any failure of procedural fairness or other jurisdictional error vitiating the Tribunal’s decision to proceed to make a decision on 21 April 2011.
As I have indicated above, the Tribunal made no error in its application of the relevant migration regulations. Indeed, on the interpretation of the criteria which the Tribunal was bound to apply, the outcome arrived at by the Tribunal was probably the only outcome which was open to it as a matter of law as well as fact.
I am therefore unable to find grounds upon which I can set aside the Tribunal’s decision. I must find that the decision is a privative clause decision and I must dismiss the application.
As I have pointed out to the applicant, she should take further advice from her migration agent as to whether she can make further applications to the Minister for Immigration in relation to the exercise of discretionary or other powers based on the fresh evidence she has presented to the Court.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 10 August 2011
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