Singh v Minister for Immigration and Border Protection [2014] FCA 185
IN THE FEDERAL COURT OF AUSTRALIA | |
First Appellant GURVIR KAUR Second Appellant NISHAAN SINGH Third Appellant | |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The first and second appellants pay the respondents’ costs to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 368 of 2013 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | SANDEEP SINGH First Appellant GURVIR KAUR Second Appellant NISHAAN SINGH Third Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
JUDGE: | BARKER J |
DATE: | 6 MARCH 2014 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
1 Sandeep Singh (the first appellant) applied for Skilled (Provisional) (Class VC) visas for himself and family members (the second and third appellants) under the Migration Act 1958 (Cth) (the Act) in October 2011.
2 In November 2012, a delegate of the Minister for Immigration and Border Protection (the first respondent) refused to grant the visas on the basis that Mr Singh did not satisfy cl 485.215 in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) as it then provided because he was not satisfied Mr Singh had competent English.
3 Mr Singh then applied for merits review of the delegate’s decision in the Migration Review Tribunal (MRT). At the hearing in the MRT he confirmed he had not achieved a score of 6 in each component of any International English Language Testing System (IELTS) test that he had undertaken, as he was required to do under the Regulations. Accordingly, the MRT dismissed the review application.
4 Mr Singh then applied for judicial review of the MRT’s decision in the Federal Circuit Court of Australia. The only ground advanced was that:
IELTS REPORT NOW AVAILABLE WITH THE REQUIRED SCORE
At the hearing in the Court, however, it seems Mr Singh also claimed that he had been misled or misguided by his migration agent into believing that he could make the application for a visa.
5 The primary judge dismissed the judicial review application. See Singh v Minister for Immigration and Border Protection [2013] FCCA 1439.
6 As to the IELTS ground of review, his Honour dealt with this on the basis that the IELTS test that Mr Singh relied upon was dated 23 February 2013 and therefore irrelevant under the Regulations because under the Regulations the test result must have been achieved in the two years immediately before the day on which the visa application was made. Accordingly, his Honour considered no jurisdictional error could be established on the part of the MRT, or the delegate.
7 As to the fresh claim raised orally that Mr Singh had been misled or misguided by his migration agent, the primary judge said there was no evidence and, even so, nothing in what was said could possibly raise a case of jurisdictional error by reason of migration agent fraud there being, in fact, no allegation of fraud by the migration agent, but rather merely a mistaken belief on the part of Mr Singh arising from misinformation. There was nothing to suggest the decision-making process had been subverted in any way.
8 Mr Singh now appeals against the judgment of the Federal Circuit Court of Australia repeating the same ground of appeal that he took on the judicial review application, namely:
IELTS REPORT NOW AVAILABLE WITH THE REQUIRED SCORE
9 Mr Singh did not file any written submissions in support of the appeal. At the hearing, however, he said that he relied on the same points that he had raised before his Honour in the Court below.
10 In particular, Mr Singh repeated what he had said to his Honour to the effect that the migration agent he had dealt with at material times had indicated there would be no difficulties and further said that when he came to Australia the current competent English regulation and test did not apply.
11 I consider that there is no real doubt that the relevant competent English test is that defined in reg 1.15C of the Regulations which, as his Honour explained, was inserted by the Migration Amendment Regulations 2011 (No 3) (Cth) and applied to all visa applications lodged on or after 1 July 2011 and before 1 July 2012. It was this regulation that both the delegate and MRT applied.
12 As his Honour noted, at [12], the purpose of the amendment to the Regulations was to clarify the timeframe within which an English language test must have been conducted for the purpose of a visa application, following the decision of the High Court of Australia in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 in which it was held that an earlier version of reg 1.15C allowed for a test to be taken after a visa application had been lodged.
13 While, perhaps understandably, Mr Singh feels aggrieved that he was adjudged according a different test from that which earlier applied, the law plainly is that the new reg 1.15C as amended in 2011 was required to be applied in this case. Thus, the primary judge was correct to find that the MRT and the delegate had not committed any jurisdictional error in dismissing the application made by Mr Singh.
14 I also note comments from the bar table on the hearing of the appeal by counsel for the Minister that even under the earlier reg 1.15C, Mr Singh did not meet the relevant requirements.
15 The requirement under the current applicable Regulations is that an applicant for such a visa demonstrates he or she has competent English. To do this, the Regulations require an IELTS score of at least 6 for each of the four components of speaking, reading, writing and listening: reg 1.15C(a) and Legislative Instrument IMMI12/018. Unless that can be done a visa must be refused.
16 The fact that Mr Singh may have since obtained an IELTS score that meets the regulatory requirements is irrelevant, in circumstances where the Regulations also require, as the primary judge in the Court below emphasised, that the score must have been achieved in a test taken “in the two years immediately before the day on which the application was made”.
17 As the primary judge pointed out, only a test undertaken prior to 19 October 2011 could have been relied upon by Mr Singh to establish that he had “competent English”. His IELTS test of 23 February 2013, which he relied upon, therefore was irrelevant to the administration of the Act and Regulations in this instance.
18 In these circumstances, there is no basis to any complaint that the primary judge erred when he dismissed the application for judicial review of the decision of the MRT.
19 The Minister does not seek costs against the third appellant.
20 Accordingly, the appropriate order in this appeal is that:
1. The appeal be dismissed.
2. The first and second appellants pay the respondents’ costs to be taxed, if not agreed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
