FEDERAL COURT OF AUSTRALIA

Nayyar v Minister for Immigration and Border Protection [2015] FCA 119

THE COURT ORDERS THAT:

1.    The Appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs of the Appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from orders of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of a decision of the Migration Review Tribunal (MRT): Nayyar v Minister for Immigration [2014] FCCA 2162. The MRT affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa (visa), pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2    This matter was originally listed for hearing on 19 February 2015, but on 18 February the appellant sought an adjournment. He provided a medical certificate stating that he was suffering from a respiratory infection and would be unfit for work from 18 to 20 February 2015. The hearing was postponed until 24 February 2015 to allow the appellant to attend. The appellant attended the hearing.

BACKGROUND

3    The appellant applied for the visa on 9 June 2011. The appellant was required to meet certain criteria in order to be granted the visa: ss 31(3) and 65(1)(a) of the Act. One mandatory criterion for the grant of the visa was that the appellant had “competent English”: cl 485.215 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations).

4    At the time of the application, reg 1.15C defined “competent English” as follows:

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.

Relevantly, legislative instrument IMMI 09/073 specified a test score of at least “B” in each of the four components of an Occupational English Language test for the purposes of reg 1.15C(a)(ii)(A) and (B). Further, the passports specified for the purposes of reg 1.15C(b) were valid passports issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland, to a citizen of that country. The appellant is from India and did not hold one of those specified passports.

5    The appellant was therefore required to demonstrate that he had achieved one of the requisite language test scores under reg 1.15C(a). In his visa application, the appellant stated that he had not undertaken an English test within the last 24 months. On 11 April 2012, the Minister asked the appellant to provide evidence of his English language ability with 28 days (by 9 May 2012). The appellant was advised that this may include a certified copy of his International English Language Testing System (IELTS) certificate or Occupational English Test (OET) certificate. If the appellant was unable to provide the requested information within the specified timeframe, he was requested to send the Minister evidence of applications he had made. The appellant was advised that if the Minister did not receive any response from him within the specified timeframe, or if his response was unsatisfactory or incomplete, the Minister may decide his application based on the available information. The appellant did not provide evidence of his English ability.

6    On 25 May 2012, the Minister refused to grant the visa on the grounds that, relevantly, the appellant had not provided evidence that he had undertaken an IELTS test and he had not provided an OET result. As a result, the Minister was not satisfied that the appellant met the requirements of reg 1.15C and found that the appellant did not meet the requirements for the grant of the visa.

7    The appellant applied to the MRT for review of that decision. The application was accompanied by a statement signed by the appellant, which read:

I, [the appellant], was born in India, came to Australia for further education to study at MITH Melbourne. Since after I have joined in MITH, I had to face many problems, that is the reason I had to change the college to IHMA Melbourne for Diploma of Hospitality with Certificate III in patisserie, as it was two years package course. I was happy and I have finished my entire course in 2011, this was my life ambition to become cook in bakery or baker or Patisserie cook. However in last year, end of financial year, rules about be changed, there was lot of confusion and rumours were going on between in students regrading IELTS whether we have to submit 6 in each or overall 6, even some times when we ask the DIAC delegate officers have not been able to tell us right information regarding IELTS, be honest I spoke to DIAC officers regarding IELTS score about 485 subclass. Every one say “IELTS is not time of the application requirement this is Time of decision requirernent, and student can lodge the 485 visa application with put IELTS as well” on the basis DIAC officer decision I have booked my IELTS exam and for the time being I have submitted my IELTS which was over all 6 at time of the application. This was happened in my case, I have lodged my 485 visa subclass on 9 June 2011 and submitted all documents with IELTS score sheet as well ‘IELTS score with overall six’, I did not understand what was happened in my case I have tried to be honest in rny case that is all, otherwise I wouldn’t have submitted my IELTS score sheet which was overall 6. However, my case has been opened on 11th April 2012, and requested me to submit IELTS score sheet which was not available with me as I have tried many times and could not get IELTS score. I have been given 28 days time period to submit the IELTS but I was ended up with not submitting IELTS score sheet in timeframe as I was waiting for the result. On 25th June 2012, I have received letter from DIAC which was refusal contains that I did not satisfy English language criterion for 485 subclass. I have requested case officer regarding my IELTS booking and how many times I have tried to get IELTS score, every time I get 5.5 in one component.

Claims for mv review:

•    I am asking Natural justice in my case

•    I have requested to revaluation of my IELTS score sheet

•    Please give me some time until I get result

•    I have never involved in any crime

•    My behaviour is good in Australia

•    Never have intention to mislead the DIAC

•    I want to apply for work permit in the future

•    I do have sponsor in Australia

I am ready to submit all documents, please don’t hesitate to contact me if any documents are required. I am imploring the MRT look in to my situation and give me legitimate decision on my case.

8    On 19 June 2012, the MRT wrote to the appellant, care of his representative/migration agent, confirming receipt of the application. On 4 April 2013 and 17 May 2013, the MRT received a faxed change of contact details for the appellant’s representative. Both documents were signed by the appellant on 4 April 2013.

9    On 13 August 2013, the MRT wrote to the appellant, care of his representative/migration agent, and invited the appellant to appear before it to give evidence and present arguments at a hearing on 10 September 2013. The letter outlined what the appellant “should do within 7 days of receipt of this letter”. Those steps included completing and returning a “Response to hearing invitation” form, and providing all documents that the appellant intended to rely upon to establish that he met the criteria for the visa. The MRT noted that, to date, the appellant had not presented evidence that he met the English language proficiency requirement for the visa. If the appellant had booked an OET or IELTS test scheduled to take place before the hearing date or soon after, the appellant was requested to send evidence of the booking.

10    The MRT further noted that the appellant needed to advise it as soon as possible if he was unable to attend the hearing, and that the MRT would only change the date if it was satisfied that he had a very good reason for being granted an adjournment. The appellant was advised that if he did not attend the hearing, the MRT might make a decision without taking any further action to allow or enable him to appear before it.

11    On 9 September 2013, the appellant’s representative/migration agent sent an email to the MRT requesting an adjournment (with attached “Response to hearing invitation” form which recorded that neither the appellant nor his representative/migration agent would attend the hearing on 10 September 2013). The representative/migration agent advised:

I hope officer accept my sincere apology, honestly I have tried lot to contact him but there was no response. On Thursday 5th septemebr 2013, client called us and said that he is having some viral fever. Then I have requested the client to submit the evidence, medical certificate has been received by email on 8th September 2013. Hence I am requesting the officer to post phone the hearing or to member know to make a decision as client has submitted no documents. Because he has not submitted a single document to me for making further submission to the [MRT], I don’t have any hope on client.

The medical certificate recorded that the appellant would be “unfit for normal work” from 9 September to 11 September 2013 inclusive.

12    On that day, the MRT responded in writing to the appellant, care of his representative/migration agent, that it had agreed to the appellant’s request and the hearing had been postponed to 24 September 2013. The letter outlined what the appellant “should do within 7 days of receipt of this letter”. Those steps again included completing and returning a “Response to hearing invitation form”, and providing all documents that the appellant intended to rely upon to establish that he met the criteria for the visa. The MRT reiterated that, to date, the appellant had not presented evidence that he met the English language proficiency requirement for the visa. The MRT advised that if the appellant wished to sit an IELTS test, he should do so on 21 September 2013 “when there [was] ample availability for IELTS tests at various locations”. Further, if the appellant had booked an OET or IELTS test scheduled to take place before the hearing date, or soon after, he was requested to send evidence of the booking. The matters outlined in [10] above were repeated.

13    On 20 September 2013, the appellant’s representative emailed the MRT advising that his client “doesn’t have intention to attend the hearing”, and as such, “we are requesting the [MRT] to take the decision as no further documents submitted”. The email attached a letter signed by the appellant and dated that day, which stated:

After the discussion with my agent I have decided to come hearing as extra evidence can’t be provided to support my claims for [MRT] review. Hence, I am requesting the [MRT] to take the decision with available documents which have been provided with the application.

The email attached a “Response to hearing invitation” form indicating that neither the appellant nor his representative would attend the hearing.

14    On 24 September 2013, the MRT affirmed the decision not to grant the appellant the visa. The appellant was informed of the decision on 26 September 2013. The MRT found that the applicable legislative instrument was IMMI 09/073, there was no evidence that the appellant had achieved “the specified test score results”, and as a result found that the appellant did not have competent English as defined in the Regulations. It will be necessary to return to consider what in fact were “the specified test score results” that the appellant was required to achieve.

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

15    On 16 October 2013, the appellant filed an application for judicial review of the MRT’s decision with the FCC. His grounds of application were:

1.    S.477, Judicial review can be lodged within 35 days after [MRT] review has been finalised

2.     I am not happy with [MRT] decision, applying for judicial review for legitimate decision

3.     I do have similar case law which is under High court Jurisdiction

16    The application was accompanied by an affidavit in which the appellant stated:

1.     I am not happy with [MRT] Decision, Applying for Judicial review for legitimate Decision

2.    I do have exceptional circumstances beyond the application lodgement previously

17    On 24 October 2013, the Minister lodged a response opposing the application. On 18 December 2013, by consent of the parties, a show cause hearing was dispensed with and the matter was listed for final hearing on 11 August 2014. Also by consent, the appellant was ordered to file and serve any amended application, and both parties were ordered to file and serve written submissions. The appellant did not file either an amended application or any written submissions.

18    The matter was heard on 11 August 2014. The appellant made brief oral submissions to the FCC: reasons at [7]. On 6 October 2014, the FCC made orders dismissing the application and delivered reasons. The FCC found that the MRT had “well understood the task before it and did not … misconstrue it” and that the appellant was given every proper opportunity to attend and present his case: reasons at [24]. The FCC found that “in circumstances where the [appellant’s] own materials suggested that he had never passed an IELTS case and had always had a mark of 5.5 at least once (this being sufficient to establish a lack of competent English) the [MRT’s] decision was, to say the very least, open to it”: reasons at [24]. Finally, the FCC found that there was “no tenable proposition that the [MRT] fell into jurisdictional error”, and so dismissed the application with costs: reasons at [25].

APPEAL GROUNDS

19    The appellant filed a notice of appeal in this Court on 13 October 2014. The notice of appeal raises the following grounds:

1.     The applicant visa 485 subclass was REFUSED by DIBP on 25th May 2012 on the basis of applicant has not satisfied the clause 485.215, at the time of the application applicant has been misguided by bogus agent and lured that applicant will be given work permit by Immigration. He doesn’t know what is the work permit is, but he knew that agent has cheated him after he has got the refusal, he went to the office to speak with the agent but the agent has flee away and there was notice board sticked on the door on the name of immigration saying that to contact to Immigration if anybody victim of S& S Migration Services.

2.     Further applicant has been to Melbourne Immigration office, applicant has been advised to lodge the review at [MRT], and applicant has lodged the review by taking the assistance of Owlet Migration and Education consulting. Finally applicant hasn’t had control on his situation where he can attend the hearing at [MRT].

3.     There are compassionate and compelling reasons beyond his control all happening with him with immigration and [MRT], and at last he is ended up with loosing future in Australia merely and coming to Federal court has jurisdiction to review of [FCC] or else other apex courts have jurisdiction to give positive result to him as he is expecting to do further education in Australia before he leaves the country.

4.     He could not understand [MRT’s] or [FCC] decisions. And he is not able understand the situation of Immigration regulations in Australia, therefore applicant thinks that there is no mistake has been done Immigration and [MRT], but he was ruined by S& S Migration services, thus he is bring the [FCC] decision to Feral court by having hope of getting natural justice.

5.     Even applicant comes to [FCC] for legitimate decision but honourable judge Burchardt has been misguided by solicitors of DIBP, [FCC] application under the judicial Review has been made on 11th August 2014, decision has been ended up with same decision of [MRT] and immigration. He is not known any information that [FCC] has been requesting the further amended affidavits to be submitted to the court, actually he has not knowledge neither have an idea to send the submissions. However he is thanking the [FCC] has agreed his verbal submissions on Hearing date.

6.     The applicant has not had any control of his situations which became very bad in Australia to provide reasons at [MRT]. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

7.     The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at [MRT] if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection)

8.     Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made which has not been proved by applicant to make it Valid application”, but he has exceptional circumstance beyond his control.

20    The notice of appeal was accompanied by an affidavit affirmed by the appellant. In the affidavit, the appellant repeated the appeal grounds: see [18] above. He also stated the following “facts on which the application relies”:

1.     Application relies on [the Act], according to [the Regulations], For applications made on or after 1 January 2010 clause 485.215 require that at the time of visa application the applicant have to have IELTS test results.

2.     There is no clear information has been advertised that applicants cant apply for 485 Subclass by giving the IELTS test reference no, and other bogus Agent has lodge his 485 Subclass behalf of applicant by giving wrong advise insisted him to get work permit.

3.     Here applicant is innocent and finally he has been realised and looking for further education if he is permitted to go for further education which is useful for his return to home country.

21    Before turning to consider the appeal grounds, it is necessary to say something about the applicable legislative scheme.

LEGISLATIVE SCHEME AND ERROR

22    The appellant was required by cl 485.215 of Sch 2 to the Regulations to have “competent English”. “Competent English” is defined in reg 1.15C of the Regulations. When the appellant applied for the visa on 9 June 2011, reg 1.15C was in the form set out at [4] above.

23    Although the requirement for a visa applicant to have “competent English” appears under the heading “Criteria to be satisfied at time of application”, given the wording of reg 1.15C, the criteria may be satisfied at any time prior to the date on which the application is decided: Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; [2010] HCA 8 at [25].

24    A number of legislative instruments have been made by the Minister under reg 1.15C of the Regulations:

(1)    IMMI 09/073, which commenced on 1 July 2009;

(2)    IMMI 11/036, which commenced on 1 July 2011 and revoked IMMI 09/073; and

(3)    IMMI 12/018, which commenced on 1 July 2012, revoked IMMI 11/036 and specifies certain requirements for applications lodged before 1 July 2012, and another set of requirements for applications lodged on and after 1 July 2012.

25    Legislative instrument IMMI 09/073 specified scores in accordance with the version of reg 1.15C that applied to the appellant’s application for the visa: see [3] above. It specified a test score of at least “B” in each of the four components of an Occupational English Language test for the purposes of reg 1.15C(a)(ii)(A) and (B).

26    For visa applications lodged before 1 July 2012, both IMMI 11/036 and IMMI 12/018 relevantly specified 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 Occupational English Test.

27    The MRT did not identify the correct instrument, but instead found that IMMI 09/073 was the applicable instrument: see [13] and [14] of the MRT’s reasons, and [14] above. The primary judge in the FCC fell into error by adopting the MRT’s analysis of the relevant instrument: [21] to [25] of the FCC’s reasons, and [18] above. At the date of the MRT’s decision, 24 September 2012, IMMI 12/018 was in force, and IMMI 09/073 and IMMI 11/036 had both been revoked. IMMI 12/018 was and is the legislative instrument applicable to the appellant’s application for the visa at the time of the MRT’s decision. That error does not however assist the appellant. It does not assist the appellant because the erroneous reference to IMMI 09/073 was not an error that went to the MRT’s jurisdiction. The MRT nevertheless asked itself the correct question. It was the correct question because the requirement for a visa applicant to have “competent English” (being whether the appellant had obtained the requisite score in either an OET or IELTS test) remained the same: cf Farook v Minister for Immigration and Border Protection [2014] FCA 1017.

28    In the present case, the MRT’s decision was not affected by jurisdictional error and the FCC was correct to order that the review application be dismissed. The Federal Court can, on appeal, exercise its powers if it is satisfied that the orders the subject of the appeal are the result of some legal, factual or discretionary error on the part of the FCC. Where the Federal Court is satisfied that such error exists, it may give the judgment that, in its opinion, should have been given at first instance: cf s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). Here, despite the FCC’s reliance upon the wrong legislative instrument, the orders are not the result of some legal, factual or discretionary error on the part of the FCC that would provide any basis for this Court to interfere with those orders. The substance of the law applied was correct.

Appeal Grounds

29    The appellant’s notice of appeal and supporting affidavit each set out the same eight grounds: see [19]-[20] above. The grounds allege that the appellant was the victim of fraud or negligence in the course of his application before the Minister and the MRT. Those grounds may be summarised as follows:

(1)    the appellant was “misguided by [a] bogus agent” in relation to his original visa application, which he understood might result in a “work permit”; and

(2)    the appellant “hasn’t had control on his situation where he can attend the hearing” at the MRT.

30    As the Minister submitted, the allegations were highly imprecise. Although the appellant was ordered to file written submissions before the hearing, he did not comply. Taken as a whole, the notice of appeal appears to assert that the MRT’s process in reaching its decision was compromised by “third party fraud”. Fraud of that description was considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE). In that case, the conduct of a rogue masquerading as a solicitor and migration agent caused the processes of the Refugee Review Tribunal (RRT) to be “stultified”. There had been “fraud on the Tribunal” by the rogue fraudulently preventing the appellants from attending a hearing before the RRT. That “third party fraud” may cause a tribunal to commit a jurisdictional error even if, as in SZFDE, it may have acted blamelessly: see also SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 at [60]. Bad or negligent advice alone will not be sufficient to vitiate the decision made – the issue is the effect of the fraud on the tribunal’s decision making process: SZFDE at [53] approving Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [129]; SZOIN at [61].

31    The appellant’s claim that he was misled by a “bogus agent” in relation to his original visa application, which he understood might result in a “work permit”, was not raised before the MRT or the FCC. There is no evidence that the original visa application was made by or with the assistance of a third party. In fact, there is evidence to the contrary. The visa application form asks the question “Did you receive assistance in completing this form”, to which the appellant responded “No”. Further, in his statement to the MRT (at [7] above), the appellant indicated that he had asked “DIAC officers regarding IELTS score about 485 subclass” before he “lodged [his] 485 visa subclass on 9 June 2011”. He then stated that he wanted “to apply for work permit in the future”. These statements do not support the appellant’s contention that he thought he was applying for a work permit. There is no basis for a finding of fraud on the material before the Court. The claim in relation to a “bogus agent” fraudulently misleading the appellant at the time of the visa application is dismissed.

32    Next, the claim that the appellant “hasn’t had control on his situation where he can attend the hearing” at the MRT. This claim was not raised before the FCC. Again, there is no basis to conclude that the conduct of the representative or an earlier “bogus agent” constituted fraud on the MRT in the sense described in SZFDE. In the case of the earlier bogus agent, there is no evidence of him or her having acted in any capacity for the purpose of the review before the MRT. Further, the appellant described in his notice of appeal the “bogus agent” having fled. There is no basis to infer that an earlier agent had any ongoing influence over the appellant.

33    What about the later representative used by the appellant? It is apparent that the appellant sought and followed his advice: see [13] above. However there is no basis to conclude that representative acted fraudulently to prevent the appellant from attending the MRT hearing and thereby “stultifying the operation of the legislative scheme to afford natural justice ...”: cf SZFDE at [49].

34    No less importantly, the appellant knew from at least 11 April 2012 that he had to provide evidence of his English competency, and that one way of meeting this requirement was by providing evidence of an IELTS test in which he had achieved a score of 6 in each of the four components: see the appellant’s statement to the MRT at [7] above. The appellant had not met that requirement at the time of his application for review to the MRT and instead had sought “revaluation of my IELTS score sheet” and requested that the MRT “please give me some time until I get result”. The appellant had apparently been unable to meet the requirements of “competent English” from at least 24 months prior to his visa application on 9 June 2011 until at least 20 September 2013: see [3]-[13] above. In those circumstances, it would be unsurprising if the representative advised the appellant not to attend the hearing before the MRT: see [13]. There is no basis for a finding of “third party fraud”. No jurisdictional error arises.

35    Appeal grounds 5 and 8 appear to assert some unfairness in the procedures of the FCC. There is no basis for any such finding. The appellant consented to the procedural orders made in the proceeding: see [17] above. The procedural obligations of the MRT are in Div 5 of Pt 5 of the Act. There was no suggestion before the FCC that the MRT failed to comply with its procedural obligations. Indeed, the primary judge found (at [24] of the reasons) that the appellant was given every proper opportunity to attend and present his case. The FCC considered the appellant’s oral submissions before concluding that the MRT’s decision was “unimpeachable”.

36    There is no identifiable appellable error in the orders made or the approach adopted by the FCC.

CONCLUSION

37    The Appeal is dismissed with costs.

Associate:

Dated:    25 February 2015