FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2014] FCA 1336

THE COURT ORDERS THAT:

1.    The appellants' appeal is dismissed.

2.    The appellants are to pay the first respondent's costs of and incidental to their appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal against a decision of the Federal Circuit Court made by his Honour Judge Turner on 23 June 2014, in which his Honour dismissed an application for review of a decision of the Migration Review Tribunal (Tribunal) affirming the refusal of Skilled (Provisional) (class VC) subclass 487 visas (the visas) by a delegate of the Minister. The application for review before the Federal Circuit Court was made under s 476 of the Migration Act 1958 (Cth) (the Act).

2    The appellants’ argument before the Federal Circuit Court was essentially that the first appellant (Mr Kumar) had been misled by the application form on which he applied for the visas for himself and the second appellant Ms Komal. Apparently, he believed that he had until the time of decision on the application for the visas to satisfy the requirement to have “competent English”. But the Federal Circuit Court found that the terms of the application form did not affect the operation of reg 1.15C of the Migration Regulations 1994 (Cth) (the Regulations), which provided the meaning of “competent English”. Moreover, ss 99-101 of the Act, which were concerned with how an application form was to be completed, did not have the effect that satisfactory completion of the form was the only requirement that had to be complied with to obtain the visas. No jurisdictional error was found to have been made by the Tribunal.

3    The appellants’ arguments on the present appeal are to similar effect as their arguments below. Further, the appellants claim a denial of procedural fairness before the Federal Circuit Court. They assert that they were not given an opportunity to make oral submissions. The appellants have filed an affidavit of Mr Kumar sworn on 30 June 2014 in support of their appeal. It sets out facts relevant to the procedural fairness ground.

4    On 17 July 2014, a Registrar of this Court made directions for the filing and service of submissions for this appeal. These were not complied with by the appellants.

5    The hearing of this appeal was originally listed for 7 November 2014. Prior to that time, the appellants sought an adjournment of the hearing so that Mr Kumar could visit his sick mother in India. I granted that adjournment until 19 November 2014. The appellants had sought an adjournment until a day after 13 November 2014, which was the date Mr Kumar returned from India (see his email to my executive assistant on 28 October 2014 at 5.09 pm with his return flight details attached). On 19 November 2014, the appellants sought a further adjournment, which I granted until today, to enable them to prepare and file written submissions. These were filed on 27 November 2014.

6    The first respondent, the Minister, was represented on this appeal. The second respondent, the Tribunal, has filed a submitting appearance.

7    Both Mr Kumar and Ms Komal, the spouse of Mr Kumar, apparently applied for visas. But no separate argument was advanced before any of the Tribunal, the Federal Circuit Court, or this Court on her behalf in terms of the visa that she had sought. The arguments centered on whether Mr Kumar had relevantly satisfied the “competent English” requirement. I should say for completeness that there is nothing to suggest that Ms Komal ever satisfied that requirement, notwithstanding that she had applied for a similar category of visa. Accordingly, it is convenient to consider the arguments advanced by Mr Kumar only. Ms Komal’s application for a visa was “related” to his application. The outcome of her appeal, in my view, is dependent upon the success or otherwise of Mr Kumar’s grounds of appeal.

The visa applications and their disposition

8    On 21 August 2012, both appellants applied for the relevant visa. The application form noted that:

You have up until the time of decision to provide evidence that you have competent English. However, applicants should not delay in providing their evidence of English language ability. The department will not delay finalising applications where English language test results have not been provided at time of application. Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at time of application. At this point in time, if evidence has not been provided the application may be refused.

9    In the application, Mr Kumar noted that he had undertaken an English test on 20 August 2012, and that his language ability was “competent”; this was in response to a question: “Have you undertaken an English test within the last 24 months?”. However, he provided no results of such a test.

10    On 21 February 2013, an officer of the relevant Department wrote to Mr Kumar and stated that he needed to provide certain evidence, including “[e]vidence of competent English”. He failed to respond to that letter.

11    On 3 April 2013, a delegate of the Minister made a decision refusing to grant the appellants’ visas. The delegate noted that because Mr Kumar had failed to provide evidence of his English language ability, the delegate was not satisfied that he had met the requirements of reg 1.15C(1). The delegate also noted that because Mr Kumar had failed to provide evidence that he held a valid passport issued by the United Kingdom, the USA, Canada, New Zealand, or the Republic of Ireland, that the delegate was not satisfied that he met the requirements of reg 1.15C(2). Accordingly, the delegate was not satisfied that Mr Kumar satisfied the criterion in cl 487.215 of Sch 2 to the Regulations. A similar position was apparently taken with Ms Komal’s application.

12    On 4 April 2013, the appellants made an application to the Tribunal for review of the delegate’s decision.

13    On 8 October 2013, the Tribunal wrote to the appellants and invited them to appear at a hearing scheduled for 12 November 2013. In that letter the Tribunal noted the following matters concerning the “competent English” criterion:

The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement ('competent English') for the visa. How you can show competent English is set out below.

How you can show 'competent English'

For visa applications made on or after 1 July 2011 and before 1 July 2012, to show competent English, you must hold a passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issued to a citizen of that country or have achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made.

The specified English language tests and scores are: an International English Language Testing System (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least "B" in each of the four components. The required scores must be achieved in the same test. For visa applications made on or after 1 July 2012, the definition of competent English is the same, save that the language test must be conducted in the 3 years immediately before the day on which the visa application was made.

14    On 11 October 2013, Mr Kumar provided the Tribunal with evidence that he had sat an IELTS test on 17 August 2013, and had obtained scores of 6.5 (listening), 7.0 (reading), 6.5 (writing) and 7.0 (speaking). Such results were attained, as is apparent, from a test conducted after the filing of the application for the visas.

15    The appellants appeared at the scheduled hearing on 12 November 2013. Mr Kumar gave evidence that he had, in both May and August 2012, sat an IELTS test in the preceding three years before the day on which he made his visa application, but that on neither occasion had he obtained the required results. The appellants were represented before the Tribunal by a migration agent.

16    The Tribunal was not satisfied that Mr Kumar had competent English. The Tribunal found that Mr Kumar achieved the requisite results in an IELTS test only after making the application for the relevant visa, and not during the relevant period of three years before the date of the visa application as required by reg 1.15C(1)(b). The Tribunal also noted that there was no evidence that Mr Kumar held a passport of the kind specified in reg 1.15C(2). The Tribunal seems to have implicitly dealt with Ms Komal’s position in a similar and derivative way, although the matter is not entirely clear to me.

17    In terms of the evidence before the Tribunal, the Tribunal recorded at [12]–[17] the following:

•    The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

•    The first named applicant appeared before the Tribunal on 12 November 2013 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

•    At the hearing the first named applicant confirmed that the application was lodged on 21 August 2012.

•    On the visa application form, the applicant indicated that he had undertaken an English test on 20 August 2012, that is, within the previous 36 months before the date of application. However, he did not achieve a score of 6 or more in each of the four bands.

•    The first named applicant advised the Tribunal that he also undertook a test in May 2012 and did not achieve the required score. He advised the Tribunal that he achieved a score of 6 or more in each bank in a test he undertook on 17 August 2013. Prior to the hearing the first named applicant had provided a copy of these IELTS results.

•    The Tribunal asked the applicant whether he understood the consequences of achieving a score of 6.0 or more in each band after lodging the application. He said that he did understand.

18    Further, the Tribunal’s findings and reasons were recorded at [19]-[23] in the following terms:

•    The Tribunal finds that the applicant does not hold a passport of a type specified in r.1.15C(2).

•    In the present case, there is no evidence that the has held a passport of a type specified in IMMI 12/018, and as such r.l.15C(2) is not met.

•    The evidence before the Tribunal is that the first named applicant achieved the relevant score in an IELTS test after lodging the application and therefore not during the relevant period of 3 years immediately before the date of application as required by r.l.l5C(l)(b).

•    The applicants applied for visa subclass 487 only. As this is the only relevant subclass, the Tribunal has not considered whether they satisfy the criteria for the grant of a visa of another subclass.

•    Given the findings above, the Tribunal affirms the decision under review.

19    Essentially, in terms of the English language requirement, the Tribunal considered that Mr Kumar had not satisfied reg 1.15C(1) even though more recent evidence before the Tribunal suggested that Mr Kumar had reached a level of proficiency. A similar position appears to have been taken as to non-compliance by Ms Komal in relation to reg 1.15C(1).

Proceedings in the Federal Circuit Court

20    On 4 December 2013, the appellants sought judicial review under s 476 of the Act of the Tribunal’s decision in the Federal Circuit Court. An amended application for review was filed on 15 April 2014.

21    The appellants relied on grounds of review which were expressed in the following terms:

The decision of the Tribunal was made without jurisdiction or is affected by error of jurisdiction;

The tribunal made a fundamental jurisdictional error, as it failed to consider the operation of sections 99-101 of the Migration Act (Cth) which requires a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given.

PARTICULARS

The applicant says that the form he filled out when making his application does not state that you need to have passed your English test at the time of lodging your application. The applicant proceeded with his application on this basis. The applicant now has that required level of English.

If the applicant had made an online application, you are asked if you have the requisite English and if you say no it does not allow you to proceed.

22    The appellants also submitted in their contentions of fact and law on 15 April 2014 the following matters:

The Applicant relies on the sentence [in the application form] that you have up until the time of decision to provide evidence that you have competent English. The Applicant's case is that he was misled by the information on the form into believing that he had until the time of the decision to satisfy the requirement, as opposed to providing evidence that he had already done so and that this misleading information either expressly or impliedly repeals the effect of the operative Regulation (Regulation 1.15C of the Regulations) to the extent that it is inconsistent with it.

23    The matter came on for hearing before Judge Turner on 23 June 2014. At the hearing his Honour asked the appellants whether they wished to make oral submissions in support of the application for review but, apparently, the appellants declined to do so. His Honour then obtained the consent of the Minister’s representative to proceed to make a decision without hearing further oral submissions on the Minister’s behalf.

24    His Honour determined the matter and dismissed the application for review. In his reasons, his Honour:

•    stated that the application form provided that an applicant had until the time of decision to provide proof that he or she had competent English;

•    set out the terms of reg.1.15C and stated that a person had competent English if the person undertook and achieved a score of six or more in a language test conducted in the three years before the day on which the application for a visa was made;

•    noted that the applicants had failed to provide the proof required of competent English, and that the delegate decided that the appellants did not satisfy cl.487.215;

•    referred to the Tribunal's finding that Mr Kumar had undertaken an English language test within 36 months before the date of the visa application, but had not achieved a score of six or more in each of the four bands;

•    noted the Tribunal's finding that Mr Kumar had achieved the relevant score after lodging his visa application, and not during the three years before the date of the application as required;

•    referred to the obligation under s 65 of the Act to refuse the grant of the visa where the required criteria had not been satisfied;

•    said that ss 100-101 of the Act do not have the effect that completion of a form is the only requirement that must be complied with to obtain a visa;

•    found that despite Mr Kumar's claim to having been misled by the application form, read in context the application form did not indicate that an applicant can satisfy the criterion by successfully undertaking an English test on a date after the visa application. Instead the application form simply indicated that the applicant can, on a date after the visa application, provide evidence that the criterion is satisfied by having undertaken an English language test during the requisite period. Further, in Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 the Court specifically rejected the contention that the visa application form effected an implied repeal of the visa criterion. Further, the application form was not inconsistent with reg 1.15C(l) of the Regulations; nothing in the form “repeals” reg. 1.15C.

25    Further, his Honour noted that Ms Komal did not provide proof of having met the requirements of reg 1.15C(l) and therefore the delegate held that she did not meet the requirements of that regulation.

26    Generally, his Honour found that no jurisdictional error had been established and, accordingly, dismissed the application.

Grounds of Appeal

27    The appellants rely on two grounds of appeal. The first ground is expressed in the following terms:

The decision of the Migration Review Tribunal and the Federal Circuit Court by affirming its decision, is affected by jurisdictional error.

PARTICULARS

The Tribunal made a fundamental jurisdictional error, as it failed to consider the operation of sections 99-101 of the Migration Act (Cth) which requires a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given.

28    The second ground of appeal is expressed in the following terms:

The decision of the Federal Circuit Court is affected by a denial of natural justice and procedural fairness.

29    It is convenient to first address the second ground.

(a) Lack of procedural fairness

30    The particulars to the second ground describe how Judge Turner asked the appellants, “[d]o you have any further submissions to make to the Court?”. Mr Kumar answered “no”, apparently on the belief that the question being asked of him was whether he had any further written submissions. The appellants claim that Mr Kumar sought an opportunity to say something at the conclusion of the hearing, but that his Honour refused to allow him to do so. His Honour, it is said, was in error by not specifically asking the appellants whether they wanted to make oral submissions and by not allowing the appellants to make oral submissions.

31    Mr Kumar has deposed to the following relevant facts in his affidavit:

The decision of the Federal Circuit Court is also affected by a denial of natural justice and procedural fairness, in that I appeared in person and was asked by His Honour whether I had further submissions. His exact words were "yes. all right. Now I have your written contentions. The applicant's contentions of fact filed on 15 April. Do you have any further submissions to make to the court?"

I said no.

I was of the belief that the question being asked of me was did I have any further written submissions. I am a layperson and with no legal training. His Honour in fairness to me should have said "do you have any oral submissions to make to the court?"

I did have oral submissions to make to the court and this is the reason why I attended Court with my wife. I was of the belief that His Honour would come back to me and being overwhelmed by the situation, I did not want to be rude and interject and stayed quiet, awaiting my turn. His Honour then addressed Mr. Wood, Counsel for the Respondent and inquired about proceeding without oral submissions.

His Honour then delivered his judgment and then inquired about costs and that is when I said "I want to say something here."

His Honour must have realized that I did not want to say something about costs, as His Honour says the following "Well I invited you to say that before I've reached the decision … I gave you a full opportunity to make submissions. I asked you specifically. I've now reached the decision. I'm not going through the decision - to make another decision. "

The situation and belief by myself is consistent in that I immediately said "I didn't know whether I had to submit it or whether I had to say it here." His Honour erred in that he did not ask me specifically to make oral submissions. His Honour should have taken all the circumstances into account and at least given me the benefit of the doubt that I had oral submissions to make and then given me the opportunity to address the court. His Honour had not left the bench or had gone on to another matter, the objection was raised during the course of the case and His Honour for the sake of according the principle of natural justice, should have erased the judgment and then heard from me and then proceed to deliver his judgment.

32    It would appear that his Honour gave Mr Kumar a chance to make oral submissions, but that through a misapprehension, Mr Kumar did not avail himself of the opportunity. No criticism can be made of his Honour, whose approach was impeccable to this point. But when this misapprehension became clear to his Honour, and Mr Kumar’s version of events before me as set out in his affidavit has not been challenged by the Minister, his Honour ought to have reopened the hearing and heard from Mr Kumar notwithstanding that he had orally delivered his decision; the decision and judgment had not been formally entered (see r 16.05(1) and 16.08(1) of the Federal Circuit Court Rules 2001 (Cth)). It was open to his Honour to reopen the hearing and set aside his decision and it would have been preferable to have done so.

33    In my view, there was a lack of procedural fairness. But having said that, I do not consider that this justifies setting aside the Federal Circuit Court’s decision.

34    The appellants have now put before me the points that they lost the opportunity to put below. I have considered them in determining whether the Tribunal made a jurisdictional error and whether the Federal Circuit Court erred in failing to so find. Given that an appeal under s 24 of the Federal Court of Australia Act 1976 (Cth) is in the nature of a rehearing, there was no impediment to me so proceeding. I have considered the additional points in the next section. But even if such arguments had been put to the Federal Circuit Court, there would have been no different result in my view. They do not establish any jurisdictional error on the Tribunal’s part or any error on the Federal Circuit Court’s part in failing to so find.

(b) Asserted jurisdictional errors

35    The Tribunal was bound to refuse to grant the visas if not satisfied that the relevant criteria had been met.

36    The criterion set out in cl 487.215, when read with the definition of “competent English” in reg 1.15C was unambiguous. The period within which an applicant must undertake an IELTS or OET test and obtain the requisite results is not in doubt. The applicant must do so “in the three years immediately before the day on which the application was made”. Sitting an English test and achieving the requisite results on a date after the making of an application for such a visa does not satisfy the criterion.

37    The legislative history to the present form of reg 1.15C is set out in Shafi v Minister for Immigration and Border Protection [2014] FCCA 577. Judge Lucev noted that the present form of reg 1.15C was inserted by the Migration Amendment Regulations 2011 (No 3) (Cth) and explained the following at [22]:

Previously reg 1.15C of the Migration Regulations allowed for an English language test to be taken after a visa application had been lodged (see: Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417; [2010] HCA 8; Minister for Immigration & Citizenship v Kamal & Anor (2009) 178 FCR 379; [2009] FCAFC 98). This is no longer the case. The purpose of the new reg 1.15C of the Migration Regulations was to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application, being at a time 2 years immediately before the day on which the visa application was made (Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) (Cth) … ).

38    Justice Barker in Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [12] - [13] also explained:

[T]he 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.

… [T]he 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.

39    The construction of reg 1.15C was not in doubt. Moreover, it was correctly applied by the Tribunal. Mr Kumar’s own evidence was that he had not, in the three years immediately before the date of his visa application, undertaken an English test in which he had obtained the requisite results. Accordingly, the Tribunal had no choice but to affirm the decision under review.

40    Mr Kumar asserts that he was misled by the form of the visa application into thinking that he could rely upon test results after the filing of the application. There are a number of answers to this.

41    First, it is unclear as to whether evidence to this effect was led before the Tribunal. Moreover, there is no evidence to this effect which was led before the Federal Circuit Court or indeed myself.

42    Second, the form was not misleading. It referred to evidence being filed later rather than a test being taken later. Moreover, there was a question specifically directed to prior tests which Mr Kumar answered.

43    Third, even if he was misled, that does not alter the relevant criterion that had to be satisfied or the Tribunal’s task under s 65 of the Act. There was no dispute that the criterion had not been satisfied. Moreover, the form of the application could not rewrite the statutory criterion which the Tribunal was bound to consider and apply.

44    Generally, the appellants’ arguments concerning the asserted misleading nature of the form of application and the assertion that the form may be used to support an argument to rewrite the criterion have been considered and rejected in other cases (see for example Datchinamurthy v Minister for Immigration and Border Protection [2014] FCCA 258 at [14]-[16] per Judge Hartnett and Katam v Minister for Immigration and Border Protection [2014] FCCA 633 at [10]-[13] per Judge Harland).

45    And, as I say, even if Mr Kumar was misled, nevertheless if the criterion was not satisfied, the Tribunal was bound to refuse the visa.

46    Further, the appellants’ argument that the Tribunal erred by not considering the operation of ss 99-101 of the Act is unclear. Those provisions appear in Subdivision C of Pt 2 Div 3 of the Act, which confers power on the Minister to cancel a visa that has been granted based on incorrect information. It is unclear what the argument based on ss 99-101 is. The Tribunal's decision was not a visa cancellation decision. Further, the Tribunal's decision was based on its acceptance of Mr Kumar’s own evidence that he had not, in the 3 years immediately before the date of his visa application, undertaken an English test in which he had obtained the required results. In my view, such provisions do not assist.

47    The appellants have put an argument that s 101 provided that all questions on the application form had to be answered and that no incorrect answers should be given. It was said by Mr Kumar that he had to answer the application form in the way that he did. So much may be accepted, but that does not deal with the central point that he had not satisfied reg 1.15C at the relevant time even on his own evidence.

48    The appellants have also asserted that “the Tribunal did not turn its mind to the inconsistency between the visa application form, the department’s correspondence, regulation 1.15C(a) [sic] of the Regulations and the obligation of the applicant to comply with sections 99-101 of the Migration Act”. From the Tribunal record and its decision, it is unclear to me to what extent these matters were raised in the Tribunal. Nevertheless, as the points are misconceived, any failure of the Tribunal to consider such misconceived arguments (if there was any such failure) does not constitute a jurisdictional error.

49    Further, Mr Kumar has put to me the additional submissions that he would have wished to put to the Federal Circuit Court in the following terms (see the final page of the appellants’ written submissions before me):

•    I wanted to have my say and tell His Honour that there was a similar case, namely the matter of Kartik Musatapala [sic] v Minister for Immigration, reference MLG 858/2013, which was a matter which was remitted back to the tribunal for further consideration. The facts of this case were exactly the same as my case and given I was friends with the applicant, I am well aware of the facts of his case and if his case was remitted back, then I ask the question why my case was not remitted to the MRT.

•    I also wanted to tell the Judge that I had the required IELTS score at the time of the MRT hearing and it has happened in the past that the decision is in the favour of the applicant, provided the applicant has the desired score which fortunately I had. This fact was not taken into consideration.

50    As to the first point, the application for judicial review in Karthik Musipatla v Minister for Immigration and Border Protection MLG 858/2013 was withdrawn by the applicant (see the orders of Judge Burchardt dated 19 March 2014). There was no such adjudication of the type described by the appellants. The withdrawal was done by the filing of consent orders; I have reviewed that court file and there is nothing in it that supports the appellants’ contention. In any event, if there had been such an adjudication, that would not have had relevance to or dictated the outcome in the present case.

51    As to the second point, there is little doubt that his Honour was aware of this contention. Moreover, reference to any alleged past practice would not have assisted the appellants. The Regulations have been changed since Berenguel v Minister for Immigration & Citizenship (2010) 114 ALD 1.

52    Finally, I have considered the point as to whether there is an argument that reg 1.15C is not exhaustive of the circumstances under which the “competent English” criterion can be satisfied. It is not expressed in the language of “if and only if”. If it was not exhaustive, such that relevant tests after the application for a visa was made could be relied upon, then in such circumstances Mr Kumar could be considered to have met the criterion. But regulation 1.15C was specifically introduced in its present form to make it clear that only test results before the making of the application could be used to satisfy the criterion. Moreover, the definition of “competent English” in reg 1.03 stipulates that it “has the meaning given by reg 1.15C”. Accordingly, in the light of reg 1.03, it seems to me that reg 1.15C is exhaustive of the possibilities. Finally, s 55 of the Act is of no assistance. Later information can be provided, but that general provision does not operate to rewrite the criterion if the criterion has a temporal limitation; any later information could only be considered in the context of determining whether the criterion (with its temporal limitation) had been satisfied.

Conclusion

53    In my view, no error has been established in relation to the decision of the Federal Circuit Court that warrants its setting aside.

54    Accordingly, the appellants’ appeal will be dismissed.

Associate:

Dated:        9 December 2014