FEDERAL COURT OF AUSTRALIA

Sidhu v Minister for Immigration and Border Protection [2014] FCA 935

THE COURT ORDERS THAT:

1.    Leave to appeal is refused.

2.    The appellant pay the first respondent’s costs to be taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant (I call him the appellant even though, strictly speaking, he should be an applicant) applied for a Skilled (Provisional) (Class BC) Subclass 485 visa (the visa) on 14 April 2012.

2    On 15 November 2012, a delegate of the first respondent (the Minister) decided to refuse the application as the appellant did not satisfy one of the statutory requirements for the grant of the visa, namely the requirement under cl 485.215 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) as then in force that an applicant for such a visa have “competent English”. I note that cl 485.212 has been changed to some degree by the Migration Legislation Amendment Regulations 2013 (No.1): Select Legislative Instrument No.33, 2013. At the time of the appellant’s application, it merely required that the applicant have “competent English”.

3    The appellant sought review of that decision by the Migration Review Tribunal. On 18 June 2013, it affirmed the decision of the delegate.

4    The appellant then applied to the Federal Circuit Court for an order setting aside the decision of the Tribunal. The Federal Circuit Court (Judge Simpson) dismissed that application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 on 28 March 2014. This is an appeal from that decision.

5    Strictly speaking, having regard to the basis upon which the application to the Federal Circuit Court was dismissed, its order was an interlocutory order, and leave to appeal from that decision is necessary. I propose to treat the notice of appeal as an application for leave to appeal, and then if leave to appeal were to be given, to consider the appeal on the same material.

6    It is convenient to refer briefly to the relevant legislative scheme. At the time of his application for the visa, cl 485.215 specified as I have noted: that he have competent English. Regulation 1.03 provided that competent English had the meaning given by Reg 1.15C. In turn Reg 1.15C provided relevantly:

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

(a)    satisfies the Minister that:

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

(ii)    the test was conducted in the two years immediately before the day on which the application was made; and

(iii)    the person achieved a score specified in the instrument; or

(b)    satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

7    Regulation 1.03 provided that using the term “General Skilled Migration visa” included a Subclass 485 visa. The instrument specified in Reg 1.15C(a)(iii) that applied at the time of the decision was IMMI 12/018. It is not necessary to refer to it in detail, but for the sake of completeness, I will include the relevant part of it. It is as follows:

… for applications lodged before 1 July 2012 tests, test scores and passports, as follows:

A    For the purposes of subparagraph 1.15C(a)(i) the following language tests:

       •    an International English Language Test System (IELTS test); and

       •    an Occupational English Test (OET).

B    For the purposes of subparagraph 1.15C(a)(iii) the following scores:

       •    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

       •    a score of at least ‘B’ in each of the four components of an OET.

C    For the purposes of paragraph 1.15C(b) 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.

8    The appellant’s case before the Tribunal was that he could demonstrate his English language ability without reference to either the International English Language Tester System (IELTS test) or an Occupational English Test (OET) independently of Reg 1.15C and IMMI 12/018. In other words, he could be taken to suggest that the Regulation and the Instrument did not exhaustively describe the way in which competent English is established for the purposes of cl 485.215. Again, I note simply for the sake of completeness that IMMI 12/018 came into effect from 1 July 2012 only, but in its terms it applied to applications that had not been determined prior to 1 July 2012, including the appellant’s application.

9    The contention that Reg 1.15C was not an exhausting definition of “competent English” was not apparently considered by the Tribunal in its brief reasons. It simply applied Reg 1.15C in its terms. There was no evidence, or indeed any suggestion, that the appellant had satisfied the requirements of Reg 1.15C through the IELTS test or the OET. Consequently, the Tribunal simply rejected his claim, thereby affirming the decision of the delegate.

10    In the Federal Circuit Court, that matter was apparently raised, but in rather oblique circumstances. It is not necessary to refer to them.

11    It is clear enough that the proposition that Reg 1.15C is not an exhaustive definition of competent English has been determined by this Court in Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186. In my view, the reasons of Perram J at [18] demonstrate that that matter has been decided. There was no submission that his Honour’s decision was plainly wrong. Indeed, I respectfully agree with the conclusion of his Honour and the reasons for that conclusion. Although his Honour was addressing a slightly different version of Reg 1.15C, it was not different in any material way.

12    The appellant by reference to the Federal Circuit Court may have been suggesting that the High Court decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 supported his proposition. I do not think it does as it concerned a version of Reg 1.15C which was in material respects different from the version which the Court now has to consider. In particular, the version considered by the High Court did not require that the relevant test to have been completed, or evidence provided of a successful completion, as at the date of the application. Because the relevant test could have been taken during consideration of the application, and indeed, up to the time of the decision by the delegate, or the Tribunal in that case, the circumstances were rather different. I adopt the distinction that Perram J in Parmar made from that decision, referred to at [22] of his Honour’s reasons.

13    The second matter that the appellant raised before the Federal Circuit Court was whether the Tribunal should have adjourned his application to give him the opportunity to adduce evidence that he had through an IELTS test or an OET test.

14    There are two answers to that proposition. They were identified by the Federal Circuit Court, and I agree with those reasons. Firstly, it was by then too late because the requirement is that that competency exists prior to that date and at the date of the application. Secondly, and equally important, there is no material to support the proposition that he asked for such an adjournment from the Tribunal.

15    His grounds of appeal in this Court, apart from identifying those two matters, suggest that the Federal Circuit Court itself erred in law by declining to grant him an adjournment of the hearing before the Federal Circuit Court. There was no basis upon which the Federal Circuit Court can be shown to have acted improperly in declining any suggestion that the matter should be adjourned in the hearing before it. That is again for the same reasons. His case to have the decision of the Tribunal set aside for jurisdictional error could not have been enhanced by anything he could have done by the adjournment of the Federal Circuit Court hearing.

16    For those reasons, in my view, it is plain that the decision of the Tribunal (and indeed of the delegate) was a correct one. I see nothing in the reasons of the Federal Circuit Court which might indicate any error on its part in reaching that same conclusion.

17    In the light of those matters, as I have said, as I am treating this application as an application for leave to appeal, I do not see any prospect of the application for leave to appeal being successful, and consequently, it is refused. The further consequence is that the order of the Federal Circuit Court stands, and in turn, the decision of the Tribunal itself stands. The appellant should pay the costs of the Minister of the application, or putative appeal, to be taxed.

Associate:

Dated:    27 August 2014