FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 584

THE COURT ORDERS THAT:

1.    The time in which the applicant may apply for leave to appeal is extended to 19 March 2015.

2.    The application for leave to appeal is refused.

3.    The applicant pay the first respondent’s costs of and incidental to the application, fixed in the sum of $2,250.

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

REASONS FOR JUDGMENT

1    The applicant has sought leave to appeal from an interlocutory judgment of the Federal Circuit Court under s 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth): Kaur v Minister for Immigration and Border Protection [2015] FCCA 650. She also seeks an extension of time in which to apply for leave to appeal, since her application for leave is approximately 13 days late.

2    For the reasons set out below I consider it appropriate to grant an extension of time to the date on which she made her application, being 19 March 2015, however leave to appeal should be refused. This is, I accept, an unfortunate outcome for the applicant, who has now been through first and second tier administrative processes and two levels of judicial decision-making, all of which were always wholly futile for her, and have left her with considerable debt and nothing to show for it.

THE APPLICANT’S VISA APPLICATION

3    On 15 December 2012, the applicant applied as the primary visa applicant for a Skilled – Independent (Class VB, Subclass 885) visa. Her husband applied as a member of her family unit. The applicant listed “Cook” as her nominated occupation.

4    By an adverse delegate’s decision on 28 October 2013 and a favourable Migration Review Tribunal (MRT) decision on 15 January 2014 (neither of which is relevant to the subject matter of this proceeding), the applicant’s application ended up back before a delegate. The subject matter of the first round of primary and review decisions was only the question whether the applicant had been assessed as suitable by the relevant assessing authority for her nominated skilled occupation as “Cook”. By the time the matter reached the MRT, the applicant had, through a migration agent, provided the necessary skills assessment, which had been verified. The MRT therefore remitted the matter to the Minister to consider the remaining visa criteria.

5    At this point, it appears no one, including the applicant and her then migration agent, had turned their minds to whether it would ever be possible for the applicant to satisfy the English language requirement in the visa criteria, which is described as “competent English”. The applicant herself seems to have taken no responsibility for working through the visa criteria to see if she met them before she applied, nor does she seem to have examined what else she might need to do before she applied.

6    If some attention had been paid to this issue at this early stage, and before the applicant first applied to the MRT for review through a migration agent, it should have been obvious that there was no prospect the applicant could ever be granted this visa. She did not have a qualifying International English Language Testing System test result given between 15 December 2009 and 15 December 2012, being the relevant period under the Migration Regulations 1994 (Cth) (Regulations), which I extract below. Nor did she have a qualifying score in an Occupational English Test, which is the alternatively prescribed test. This was not, as the law currently stands, a matter that could be cured in the decision-making process before the delegate, nor on review before the MRT.

7    It does not appear the applicant retained a migration agent until after her first adverse delegate’s decision. By that stage it was already too late for the applicant to meet the competent English criterion. Nevertheless, for some reason the agent pressed on with an MRT review, and a remitter, and a further MRT review, all of which were inevitably going to be fruitless because the applicant’s lack of a successful English language test history in the three years before 15 December 2012 could not be rectified.

8    The failure to have a successful English language test from the appropriate time period was exposed when the applicant’s visa application was considered again by the Minister’s delegate and, inevitably, refused.

9    For some inexplicable reason, the migration agent continued to represent the applicant and her husband, and, I assume, advised them to apply for review to the MRT. Any competent migration agent would have seen that such a review was hopeless.

10    On 24 April 2014, the MRT sent the applicant information about what she needed to provide to demonstrate competent English. It said:

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) 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 was conducted in the 3 years immediately before the day on which the application was made.

11    Again, if this was beyond the comprehension of the applicant herself because of language difficulties, or other reasons, any competent migration agent would have seen from this information that the review was hopeless.

12    On 1 August 2014, the MRT affirmed the decision under review. Its findings (at [8]-[13]) were:

In the present case, there is no evidence that the applicant has held a passport of a type specified in IMMI 12/018, and as such r 1.15C(2) is not met.

For r 1.15C(1)(a) and (c), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components: Legislative Instrument IMMI 12/018.

As recorded in the delegate’s decision, a copy of which was provided with the application for review, the applicant did not provide any satisfactory evidence of having competent English.

At the hearing she told the Tribunal that she had lodged the visa application without any assistance and had not fully understood what was required. She said she had applied for another IELTS test but acknowledged that she did not have the required score in a specified test that was conducted in the 3 years immediately before the day on which the application was made. She provided three other IELTS test results, all undertaken in 2014 and none of which demonstrated she had achieved a score of at least 6 for each of the 4 test components.

The Tribunal allowed the applicant until 31 July 2014 for the provision of any further submissions in support of her application however none were received.

In the absence of any information establishing that the applicant has achieved the requisite scores in either an OET or IELTS test in the relevant period, the Tribunal finds that the applicant does not have competent English as defined in r. 1.15C(1) and accordingly does not satisfy the requirements of cl. 885.213.

THE FEDERAL CIRCUIT COURT APPEAL

13    The applicant filed a judicial review application within time. She was unrepresented at the Federal Circuit Court.

14    The Federal Circuit Court made its decision at a show cause hearing, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). By r 44.12(2), that dismissal is to be characterised as an interlocutory decision.

15    The Federal Circuit Court found at [17]-[19] of its decision:

The requirements of cl.885.213 of Sch.2 to the Regulations meant that the First Applicant had to have ‘competent English’ at the time of the visa application. ‘Competent English’ is defined by reg.1.15C of the Regulations which required that the person had undertaken an English language test as specified by the Minister. The test required by reg.1.15C(1)(a) of the Regulations had been specified by the Minister in June 2012.

The Regulations required that the test was conducted in the three years immediately before the day on which the application was made; that is a test which had been conducted prior to 15 December 2012, and further, that the person had achieved a score specified in the instrument. The score specified was a score of at least six for each of the four test components.

It is clear that the evidence before the Tribunal was that the First Applicant had not achieved such a score in a test conducted in the three years prior to 15 December 2012, and the Tribunal was therefore bound to find that the requirements of the Regulation had not been met. The Tribunal did not have any discretion to grant the visa if those requirements were not fulfilled.

16    The Federal Circuit Court also considered in those circumstances, and correctly in my opinion, that there could have been no utility in the MRT adjourning its review as the applicant had sought (and therefore no denial of procedural fairness, or legal unreasonableness).

THE APPEAL TO THIS COURT

17    The Federal Circuit Court decision and orders were made on 20 February 2015. The applicant needed to file her application for leave to appeal to this Court by 6 March 2015: r 35.13 of the Federal Court Rules 2011 (Cth).

18    The applicant did not file her application for leave to appeal until 19 March 2015.

19    The applicant’s arguments on the leave application are set out in an affidavit filed by her and sworn on 19 March 2015:

Applicants visa 885 subclass was REFUSED by DIBP on 12 March 2014 on the basis of applicant has not satisfied the clause 885.213, at the time of the application applicant has satisfied the two year study requirement in Australia which is Diploma of hospitality Management from Brighton Institute of Technology. Then after she has got her skill assessment as well, even only problem she has was IELTS test report, but booking reference no has been submitted at the time of the application.

Case officer has not assessed applicant application against the criteria for this subclass against BERENGUEL V MINISTER FOR IMMIGRATION AND CITIZENSHIP [2010] HCA 8 (5 MARCH 2010)

Applicant has been in Australia for five years and studied for three years, in Australia working for six years as part time and full time, on - off employee in English speaking atmosphere. Understanding the Australian culture and developed culture he could easily justify that One on other applicant is having situation where he could not understand tribunals or Federal circuit court decisions. However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent; according to that letter applicant has lodged the review at Migration review Tribunal. Even applicant is intent to do further submission in regarding Educational documents and other submissions. Here, there is no mistake has been found from Federal circuit court, here the only problem is “Migration Review Tribunal has taken the decision on the different aspect and DIBP has taken the decision on different aspect”

Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge Riley has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made, she is not known any information that Federal circuit court has been requesting the further amended affidavits to be submitted to the court.

In the Federal Circuit court decision showing that on 20 February 2015 Justice Whelan made a decision by relying on other case law regulations which are not relevant to my case, interestingly Decision has been made by Delegate had to be reviewed by Migration review tribunal.

20    As to her reason for delay specifically, the applicant deposed (omitting various pro forma paragraphs copied from other applications which say nothing about the particular decision in respect of the applicant):

1.    Case was dismissed on 20th Of February 2015, however, I have no idea to lodge further appeal in Federal court and even about time frame to lodge the notice of appeal application in the time frame of 14 days.

2.    Due to financial situation and lack of knowledge I have been scooped in to wrong hands and ended up with this situation where I have been roaming around with courts. Finally, I have spoken with lot of lawyers in this regard, everyone was asking AUD 5000.00 or more, that is the reason I was keep going to other lawyers to lodge the Federal court application for notice of appeal.

3.    Lack of knowledge and financial hard ship were mina factors behind my failure to lodge the application of notice of appeal.

21    The applicant also alleged:

1.    However, application was submitted without any hesitation. Without guidelines hearing, straight away on the date name of show cause by Australian Government solicitors, without hearing as I was sick and even no idea of the hearing at the hearing date.

2.    All of sudden, judge has taken the decision without my argument, with in hour without any arguments or oral statement for me case has been dismissed. Just lawyer from “Australian Government Solicitors” has been giving references that I was standing and listening them where I could not understand the law & Regulations of they are talking, however, my view was why I am allowed to lodge the visa and why there was service used to say from the Immigration Department that applicant can apply for the 885 subclass with two years study requirement and first delegate say Course has not been finished before the time of the visa lodgement and MRT saying my education is not relevant to nominated occupation. What is the use of I am coming to Federal circuit court to appeal the Migration Review tribunal decision, no time for submission and no time given for even thinking. Applicant should wait for call, but court could take on me any time Immigration Lawyers want to have. It was totally unjust and unfair as well.

3.    As I was having exceptional circumstances beyond my control to lodge the review application on the basis of lack of knowledge, financial hard ship and health issues encompassed me to this situation where I could not lodge the extension of time and leave to appeal application with in the time.

22    As an unrepresented litigant, the applicant was no doubt genuinely surprised at her entire case being dismissed at the first hearing, after what was a comparatively short argument which she did not, in any event, understand. After that experience, it is unsurprising that she then went searching for a lawyer to represent her. I accept she did this, and that it took some time. It appears she was unsuccessful in her attempts. The time limit for these applications is shorter than for appeals in general, and that is a factor I take into account. Recalling her unfamiliarity with the Australian legal system and her difficulties with English, I consider there is an adequate explanation for the delay in filing her application for leave to appeal to this Court. The delay is short – only 13 days – and there is no prejudice to the first respondent in an extension of time being granted as the matter needed to be prepared in any event for the leave application.

23    The applicant should be granted an extension of time in which to seek leave to appeal.

AN ADJOURNMENT APPLICATION

24    On the morning of the hearing of the application for leave to appeal, one Ms Groves attended court. She informed the Court she was attending on behalf of Ms Kaur, who was too unwell to attend. Ms Groves produced a medical certificate which, without opposition from the Minister, was received into evidence on the application. The Minister accepted it was appropriate to treat what Ms Groves had said on behalf of Ms Kaur as an application for an adjournment of the hearing listed for that day.

25    The medical certificate, which was dated 26 May 2015, stated in its substantive part that Ms Kaur was suffering from “stress & depression”, having recently gone through a divorce, and that she was not mentally fit enough to attend any hearing in relation to her visa application for the next month.

26    I refused the application for the adjournment, giving short oral reasons for doing so. I accepted the contents of the medical certificate, and I accepted that Ms Kaur had been assessed as mentally not well enough to attend the hearing. In my opinion, there was no utility in adjourning the hearing of the application. For reasons which I develop below, it is clear the Federal Circuit Court decision is correct, and it is correct because the law now requires a person in Ms Kaur’s position to have a qualifying English language test score prior to the lodging of a visa application. It is equally clear on the evidence that Ms Kaur did not have such a qualifying score. In that sense, there is nothing Ms Kaur could have advanced by way of argument which was capable of changing that position.

27    Although it is a significant step for a court to proceed in the absence of the moving party on an application such as this, in my opinion it would not have been in the interests of the administration of justice to adjourn the matter when the outcome of this application was inevitable. An adjournment would only have increased Ms Kaur’s costs exposure and delayed the decision. Further, the contents of the medical certificate and the nature of the condition it describes Ms Kaur as having did not suggest to me that there was any real prospect Ms Kaur would be well enough to attend a hearing in the near future, if the matter had been adjourned.

RESOLUTION OF THE APPLICATION FOR LEAVE TO APPEAL

28    In considering whether leave to appeal should be granted from an interlocutory decision, the Court examines whether the primary decision is attended with sufficient doubt to warrant reconsideration by the Full Court; and whether if leave were refused there would be substantial injustice to the applicant: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9.

29    In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious there will be substantial injustice to a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings.

30    The question is almost always whether there are arguable grounds of review, and whether it is arguable the decision of the Federal Circuit Court was incorrect.

31    In the present case, on the law as it stands, the decision of the Federal Circuit Court was plainly correct and is not attended by sufficient doubt to warrant the grant of leave to appeal.

The English language criterion and its construction

32    The relevant criterion for a Subclass 885 visa in Sch 2, cl 885.213 of the Regulations was:

The applicant has competent English.

33    By reg 1.15C, read with reg 1.03, the term “competent English” is defined. It is a definition which has undergone a number of amendments. At the time of the MRT’s decision in the applicant’s review, reg 1.15C provided:

(1)    A person has competent English if:

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

(b)    The test was conducted in the 3 years immediately before the day on which the application was made; and

(c)    The person achieved a score specified in the instrument.

(2)    A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

34    At the time of the High Court’s decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 the terms of the definition of competent English were relevantly identical to the terms of the then definition of vocational English, set out in reg 1.15B:

(1)     Vocational English, for a person, has the meanings given in subregulations (2), (3), (4) and (5).

...

(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; ...

35    Despite the presence of the words “in a test conducted not more than 2 years before the day on which the application was lodged”, the High Court held these words were capable of being, and should be, construed as permitting applicants to present qualifying IELTS scores to the delegate and on review to the MRT, even though the tests were taken after the visa application had been lodged.

36    At [21] of Berenguel, the High Court set out a passage from the explanatory statement which accompanied the introduction of reg 1.15B(5) (having noted at [20] the operative terms of regs 1.15B and 1.15C were relevantly identical):

The effect of this amendment is that applicants for a new General Skilled Migration visa may establish that they have vocational English, if required to do so to satisfy a criterion for grant of the relevant visa, on the basis of a test taken within the previous two years (rather than the previous 12 months for applicants required to have vocational English under other current regulations).

37    The Court found (at [21]):

The passage supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate standard of English competency.

38    Taking into account that intention, the Court held at [25]:

The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.

39    In the present proceeding, the Minister submitted the provision was materially different, and that the presently relevant form of reg 1.15C was enacted to overcome the High Court’s decision in Berenguel.

40    It is correct that there are material differences between the present form of reg 1.15C and the former equivalent provision considered in Berenguel. Regulation 1.15C was relevantly amended in June 2011, by the Migration Amendment Regulations 2011 (No 3) (Cth). The explanatory statement accompanying the introduction of the new form of the regulation stated (at p 1) the purpose of the amendment was “to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application” and in particular (at p 6):

New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.

These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.

41    I accept the Minister’s submissions that the text of reg 1.15C leaves no room for the approach adopted by the High Court in Berenguel. The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.

42    In the absence of a construction of the kind adopted by the High Court in Berenguel being available, the intent of the regulation is clearly that a person must have obtained a qualifying English language test score before lodging her or his visa application. The criterion renders all visa applications without such a qualifying score (where it is required) futile.

43    The focus of the regulation has shifted from a person being assessed as having competent English at the time a visa is granted, to a person having competent English at the time when her or his application is made. Thus, if it takes two years to grant a visa and during that time an applicant has not been speaking English and her or his English language skills have diminished, that is of no consequence in the grant of a visa.

44    Further, the irrational outcome foreshadowed in Berenguel has come to fruition. Aside from what one might expect to be the very unusual circumstance where an applicant discovers an historical and successful English language test score that she or he has omitted to submit before that stage, the operation of this criterion renders any merits review pointless, where there is no compliance with reg 1.15C. It defeats the nature and purpose of merits review.

45    The context of the amendment, to which the Minister referred in his submissions, confirms this is the appropriate construction.

46    There is no arguable case that the decision of the Federal Circuit Court is attended by sufficient doubt to warrant the grant of leave to appeal. Leave must be refused.

Other matters

47    There are a number of other matters to which it is appropriate to refer.

48    The presently relevant form of reg 1.15C was introduced in May 2012. As I have noted above, the significant textual change as a result of Berenguel had occurred in June 2011, with effect from 1 July 2011. In May 2012 the relevant period was changed from two to three years, with effect from 1 July 2012. Ms Kaur’s visa application was made in December 2012. A copy of her original application was in evidence before the Court.

49    The form commences, sensibly, with a statement that:

Skilled – Independent (Class VB, Subclass 885) application requirements

To be eligible to be granted a General Skilled Migration visa, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to be granted a visa.

50    This is intended to draw an applicant’s attention to matters they need to have satisfied prior to making this particular visa application.

51    The matters listed there – age, skills assessment, health and an Australian Federal Police check – do not include the English language test requirement in reg 1.15C. That is notwithstanding that, as the history of Ms Kaur’s own application demonstrates, the skills assessment can be satisfied at the time of decision by provision of a qualifying assessment made after lodgement of the visa application, unlike the English language test requirement.

52    On p 12 of the form, under the heading “Applicant language ability”, there appears the following statement:

IMPORTANT NOTE:

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.

If you are the holder of an eligible passport from either the:

•    United Kingdom (UK);

•    Canada;

•    New Zealand;

•    United States of America (USA); or

•    Republic of Ireland

you are considered to have met the threshold English language requirement (competent English) and are not required to sit an IELTS or OET test.

The recorded language ability will also be used to determine liability for the second instalment charge for each person aged 18 years or over included in this application.

Please provide details of the English language ability of ALL persons aged 18 years or over included in this application.

53    There then follows a question, clearly designed to elicit a response about whether reg 1.15C is capable of being met (albeit it refers to an earlier version of reg 1.15C where the period was two rather than three years):

Have you undertaken an English test within the last 24 months?

54    Ms Kaur answered “no” to this question. Notwithstanding that answer, the first delegate did not refuse the visa on this obvious and straightforward basis. The effect of the delegate’s failure to do this was that Ms Kaur went through an entire merits review process about her skills assessment in circumstances where satisfaction of the skills assessment criteria was irrelevant, given her non-satisfaction of the English language test criterion.

55    Further, the documents sent out prior to the first delegate’s decision by the Department requesting further “detailed information” from Ms Kaur simply stated:

Evidence of English Language Ability

Please provide evidence of your English language ability. This may include a certified copy of your International English Language Testing System (IELTS) Certificate or Occupational English Test Certificate (OETC).

More information regarding English Language Ability requirements is available on the department’s website at www.immi.gov.au.

56    The fact that the only satisfactory evidence would be of an historical qualifying English language test score in the three years prior to December 2012 is entirely opaque to any person reading this document, let alone a person for whom English is not a first language.

57    It is of some concern that the Department, in forms one assumes are regularly reviewed for compliance with the Migration Act 1958 (Cth) and the Regulations made under it, provided information to the applicant which was, in my opinion, insufficiently clear about the significance of the amended form of reg 1.15C for this class of visa application, which had been in effect since July 2011. Overall, in my opinion these forms do not make the position about this essential criterion as clear as they should. They are capable of encouraging visa applicants to spend their money and time on applications which may well be fruitless. Principles of good public administration should discourage, in the clearest terms (and taking into account the non-English speaking background of many of the visa applicants) people from making an application, and paying fees which are non-refundable, where the application is bound to fail.

58    A request in different terms was made of Ms Kaur by the Department on 30 January 2014, when her application was being considered again after remitter from the MRT. That request stated:

Evidence of English Language Ability

Please provide evidence of your English language ability. This may include a certified copy of your International English Language Testing System (IELTS) Certificate or Occupational English Test Certificate (OETC).

More information regarding English Language Ability requirements is available on the department’s website at www.immi.gov.au.

885.213

The applicant has competent English.

Reg 1.15C Competent English

[1.15C substituted by SLI 2012, 82 with effect from 01/07/2012 – LEGEND note]

(1)    A person has competent English if:

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

(b)    The test was conducted in the 3 years immediately before the day on which the application was made; and

(c)    The person achieved a score specified in the instrument.

(2)     A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

59    This, at least, gave the form of the applicable regulation. Ms Kaur was by this stage represented by a migration agent and on the evidence this communication was sent to Ms Kaur through her migration agent. This is one of the many points at which it seems Ms Kaur’s migration agent has failed to act in the way that might reasonably be expected of an accredited migration agent. Even if it is unreasonable to expect Ms Kaur to understand the effect of this regulation now extracted directly for her, it is quite reasonable to expect her migration agent to understand its significance for his client’s application.

60    I accept the Minister’s submissions at hearing that the Department, and Ministerial delegates, must tread a “fine line” between providing necessary information to applicants and recognising the role of migration agents who are representing visa applicants. On and from 30 January 2014, it could be fairly said the delegate, and the Department, acted as one might reasonably expect. Prior to this, and particularly with respect to the drafting of the visa application form, the initial request for documents and the approach taken by the Minister’s first delegate, who focused on the skills assessment criterion without even checking compliance with the English language test precondition, in my opinion there was a distinct lack of clarity which was capable of producing the kinds of effects one sees in the unfortunate history of Ms Kaur’s visa application.

61    The conduct of the applicant’s migration agent is inexplicable on the evidence I have seen. On that material, his conduct fails every test of professional competence and diligence. Indeed it could well be characterised more seriously, especially if Ms Kaur has paid for his services, a matter on which the evidence is insufficient for me to make a clear finding. Perhaps there is another side to what has occurred; perhaps her migration agent has in fact been completely diligent and competent in the way he has dealt with the applicant. Nevertheless I am sufficiently concerned that I have asked the District Registrar of this Court to refer the conduct of Ms Kaur’s migration agent to the Office of the Migration Agents Registration Authority for investigation.

Costs

62    I raised with the Minister’s legal representative the proposition that the concerns I have expressed about the early conduct of the Department, and the Minister’s delegate, may mean it is not appropriate that the applicant be ordered to pay the Minister’s legal costs, despite the application for leave to appeal being refused.

63    It was submitted that the Minister had done all that was possible to confine the legal costs of the judicial review proceedings, both in this Court and in the Federal Circuit Court, in particular by proceeding by way of a “show cause” process in the Federal Circuit Court, which minimised costs. The Minister undertook to tender, after the conclusion of the hearing, copies of “emails that we have sent to Ms Kaur in attempt to bring this issue to an early conclusion”.

64    Following the conclusion of the hearing on 27 May 2015, the Minister filed an affidavit affirmed by his solicitor annexing correspondence which she had sent to the applicant putting her on notice about the inevitability of the outcome of her judicial review, and the absolute nature of the English language test criterion in reg 1.15C. After reviewing this correspondence, it is clear that only one email, sent to the applicant on 20 May 2015 (one week before the hearing), sought to achieve this purpose. It stated:

To show ‘competent English’ by an IELTS test you needed to achieve a score of at least 6 in each of the 4 test components in a test undertaken in the 3 years before the day you lodged your visa application.

None of the test reports you have provided have a score of at least 6 in each of the 4 test components. Even if you were able to achieve that score in an upcoming test it would not help you to meet the English language requirement for the grant of the visa. This is because the test had to be undertaken before you lodged your visa application to meet the definition of 'competent English'.

We will explain this to you and to the Court at the hearing on Wednesday, 27 May 2015. We consider that your application cannot succeed in light of the visa requirements and because there is no error in the Tribunal’s decision or the Federal Circuit Court’s decision. If the Court agrees with us and you are not successful at the hearing, the Minister will seek costs against you including the costs associated with attending the hearing.

If you want to withdraw your application before the hearing, we can prepare consent orders finalising the matter. The consent orders would also provide for you to pay the Minister’s legal costs but the amount would be less because the costs of the hearing would be avoided.

Please let us know if you would like to withdraw your application before the hearing. Please note that we are not your lawyers and you may wish to seek legal advice about whether or not to continue with your application.

(Emphasis in original.)

65    The remainder of the correspondence annexed to the affidavit filed on 27 May 2015 related to the service of documentation, including the Minister’s submissions, upon the applicant, and providing the applicant with contact details for Legal Aid. I do not consider these letters relevant to the question of costs.

66    Having reviewed that correspondence, I accept the Minister’s submissions. Ms Kaur has pursued review in the Federal Circuit Court and in this Court without coming to terms with the lack of prospects of success of her proceeding. Perhaps, giving her the benefit of the doubt, she has continued to misunderstand the Court’s role in relation to her visa application. Nevertheless, and with some reluctance, I accept that the usual rule as to costs, which is compensatory in nature, should be applied. There has been no disentitling conduct on behalf of the Minister in the judicial review proceedings.

67    The Minister accepted it would be appropriate for the Court to fix costs, and submitted they should be fixed in the sum of $2,250. While I accept it will be a lot of money to Ms Kaur, it is a comparatively modest amount in terms of applications such as this in this Court.

68    I propose to make an order for costs in favour of the Minister, fixed in the sum of $2,250.

Associate:

Dated:    12 June 2015