FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2015] FCA 1189

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

Introduction

1    This is an appeal from the orders and judgment of the Federal Circuit Court of Australia (FCCA) delivered on 22 July 2015: Kumar v Minister for Immigration & Anor [2015] FCCA 2037. The FCCA dismissed an application for judicial review of a decision of the second respondent which affirmed an earlier decision of a delegate of the first respondent not to grant the appellant a Skilled (Residence) (Class VB), Subclass 885 visa (the visa).

2    The mandatory requirements to be satisfied at the time of the visa application were set out in cl 885.21 of Sch 2 to the Migration Regulations 1994 (the Regulations). One requirement was that the appellant have competent English: cl 885.213 (as to which see also reg 1.15C).

3    Regulation 1.15C, as in force at the time of the appellant's visa application, 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.

4    To satisfy reg 1.15C(1), an applicant must have undertaken the language test in the three years before lodging the visa application. By IMMI 12/018, the Minister specified the following language tests and scores for the purposes of reg 1.15C(1):

(a)    an International English Language Testing System (IELTS) test, with a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

(b)    an Occupational English Test (OET), with a score of at least 'B' in each of the four components.

Background facts and the Tribunal's decision

5    The appellant arrived in Australia on 30 June 2007 holding a student visa and an Indian passport. On 20 December 2012, he lodged electronically an application for the visa.

6    On 25 October 2013, the Minister's delegate refused the visa application on the basis that the appellant did not satisfy the requirement in cl 885.213 that he have "competent English".

7    On 13 November 2013, the appellant lodged with the Migration Review Tribunal (the Tribunal) an application for review of the delegate's decision.

8    By letter dated 7 January 2014, the appellant was invited to attend a Tribunal hearing. The Tribunal noted in that letter that the appellant had not presented evidence that he satisfied the "competent English" requirement. The ways in which that requirement could be satisfied were described in the letter.

9    On 30 January 2014, the appellant's representative provided submissions to the Tribunal, to the effect that the principles in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 114 ALD 1 (Berenguel) applied to the appellant, notwithstanding the changes to the Regulations which were made on 1 July 2011. It was submitted that Berenguel required that the Minister have regard to "up-to-date" information. The Tribunal was asked to process the appellant's application in the same manner as it did all pre-1 July 2011 cases.

10    On 3 February 2014, the appellant attended a Tribunal hearing, accompanied by his representative. The appellant provided to the Tribunal an IELTS test report form for a test undertaken by him on 22 June 2013, which showed that he had scored 6.0 or above for all but the speaking component of the test, where he scored 5.5. The appellant also provided a document showing that he had a further IELTS test scheduled for 15 February 2014.

11    On 3 February 2014, the Tribunal affirmed the delegate's decision.

12    The Tribunal, at [6], noted that the appellant had not achieved the required score of 6 in his last IELTS test on 22 June 2013 and that, in any event, that test did not meet the requirements of reg 1.15C as it was undertaken after the appellant had made his visa application. The Tribunal acknowledged that the appellant had a further IELTS test scheduled for 15 February 2014, but noted that that test would also be conducted after the application had been made. The Tribunal then considered the appellant's request for time to apply for State sponsorship, however, it found that this was not relevant to the issue before it, namely the requirements of reg 1.15C.

13    The Tribunal found that there was no evidence before it that the appellant had achieved the required score in an IELTS test undertaken during the relevant period. Thus the appellant did not meet the requirements of reg 1.15C(1) and, consequently, did not satisfy cl 885.213 of Sch 2 of the Regulations. The Tribunal further found that, since the appellant held an Indian passport, he did not satisfy reg 1.15C(2).

14    Accordingly, the Tribunal affirmed the delegate's decision.

FCCA's reasons summarised

15    The application for judicial review in the FCCA contained one ground of review. The appellant complained that he was "under this impression" that he could provide his IELTS test results after the appointment of a case officer. He referred to information which accompanied the visa application which stated that he could have up until the time of decision to provide evidence of competent English.

16    The primary judge reproduced the relevant information in the visa application form and found that any contention that the appellant was misled could not be sustained because:

(a)    the appellant did not provide the delegate or the Tribunal with any evidence that he had competent English;

(b)    the delegate requested evidence of competent English from the appellant on two occasions, and explained to him that the evidence had to be for a test undertaken prior to the lodgment of the visa application; and

(c)    his argument had been considered and rejected in Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258.

17    The primary judge found that the Tribunal correctly applied the version of reg 1.15C (introduced with effect from July 2012 by the Migration Amendment Regulation 2012 (No. 2) (Cth)). Her Honour noted the Tribunal's finding that the appellant did not meet reg 1.15C because he had not provided any evidence of a test conducted in the three years prior to making the visa application and, in any event, in the test results which were belatedly provided by him he did not achieve all the required scores.

18    The primary judge considered whether there was any legal error in the Tribunal's understanding of the relevant law and its application to the appellant's circumstances, relying on Berenguel, where 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. Her Honour referred to the existence of "consistent and clear" FCCA and Federal Court authority that the requirement in the applicable version of reg 1.15C could only be satisfied by evidence of a test conducted before the day on which the visa application was made and not by evidence of a language test undertaken after lodgement of the visa application. In particular, her Honour referred to Singh & Ors v Minister for Immigration and Border Protection [2013] FCCA 1439 (upheld on appeal in Singh v Minister for Immigration and Border Protection [2014] FCA 185), and stated at [24]:

Relevantly as both Judge Lucev at first instance and Barker J on appeal noted in Singh, the purpose of such amendment was to clarify the timeframe within which an English language test must be conducted following the decision of the High Court in Berenguel in which it had been held that an earlier version of regulation 1.15C allowed for a test to be taken after the visa application had been lodged. Regulation 1.15C was amended in 2012 to allow for the test to be conducted in the three year period before the visa application. This applies to any application for a visa made on or after 1 July 2012 (see Schedule 1, Item [124] to the Migration Amendment Regulation 2012 (No. 2) (Cth)).

19    The primary judge found that even if the argument based on Berenguel was correct, the appellant could not succeed on that basis because he failed to provide any IELTS test result with all the requisite scores.

20    The appellant's other complaints were considered and rejected by the FCCA. In particular, her Honour found the appellant's suggestion that he was misled by his solicitor or migration agent was unsubstantiated. Any suggestion of migration agent fraud was also rejected as groundless. Whilst her Honour empathised with the appellant's statements regarding his desire to stay in Australia and to the history of his past work and study here, she did not consider that those matters established error by the Tribunal.

21    The primary judge rejected the appellant's contentions at [27] and [28]:

In oral submissions the Applicant seemed to suggest that he was in some way misled by what he had been told by his solicitor or migration agent. There is no evidence in this respect. Nothing in what the Applicant has said raises even an arguable case of jurisdictional error by reason of migration agent fraud. There is no allegation of fraud. At most there is an allegation of a mistaken belief on the part of the Applicant (or perhaps of misinformation provided by a migration agent or solicitor in relation to the criteria for a visa and when they could be met). In any event, such complaints do not establish any basis for suggesting that there was any impact on the Tribunal decision, whether in the sense considered in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 or otherwise.

Insofar as the Applicant raised, more generally, his desire to stay in Australia; to work here; not to return to his home country; and referred to his past study and work in Australia, while I understand, on a personal level, the concerns expressed by the Applicant, they are not matters which establish jurisdictional error on the part of the Tribunal. As I tried to explain to him, the Court has no discretion on humanitarian grounds or otherwise to grant a visa. The matters that he raises do not establish a reviewable error on the part of the Tribunal.

22    Finally, the primary judge considered whether unreasonableness (in the sense considered in Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 or Minister for Immigration and Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 139 ALD 50) could be made out in light of the Tribunal's refusal to give the appellant further time to sit another IELTS test or to seek State sponsorship. Her Honour found there was evident and intelligible justification in the Tribunal's reasons for refusing further time hence unreasonableness in the legal sense was not made out.

23    The primary judge dismissed the application for judicial review with costs.

The appeal

24    The ground of appeal is (errors in original):

(1)    My lawyer misguided me. I was not know about the immigration law. I need some more time to clarify the things happened with me.

25    Under the heading 'Orders sought', the appellant stated:

(1)    I am living in Australia last 8 years. I studied here. I worked in hospitality industry five years. Please check my previous record. I wants to live in Australia.

26    The appellant did not file any written submissions, contrary to directions made on 13 August 2015. He represented himself at the appeal hearing and was assisted by an interpreter. He confirmed that he had not filed any written submissions. However, he did make oral submissions, which may broadly be summarised as follows:

(a)    he only failed to obtain the requisite score of 6 in one of the components of his English test;

(b)    he was told by his migration agent that he had more time to provide the required results after he had lodged his visa application;

(c)    it was also his understanding that the pro forma application in the visa form provided by the Department was to similar effect (it might be added that objectively that appears to be the case);

(d)    he also appreciated that the relevant rules had changed since he came to Australia in 2007 and he considered that it was harsh that other visitors whom he knew were being treated differently to himself; and

(e)    he emphasised that he had worked hard in the catering industry in Australia for the last eight years, he had been law-abiding and had studied conscientiously. He also said that he was suffering from severe depression as a result of his predicament. He emphasised that he wished to remain in Australia.

27    The appellant's complaint that he was misled by his solicitor or agent was unsupported by any evidence in the Court below or in the appeal. As the primary judge noted, that complaint was merely the appellant's own "mistaken belief" or "misinformation provided by the agent". I do not doubt the sincerity of his belief but that is insufficient. The matters which the appellant has raised do not establish jurisdictional error by the Tribunal nor appellable error by the FCCA. Such matters are the exclusive province of the Minister (not the Court) in the exercise of the Minister's relevant statutory discretion under s 351 of the current Migration Act 1958 (Cth), which empowers the Minister to substitute a more favourable decision. I indicated to the appellant that he might wish to give careful consideration to requesting the Minister to exercise this power having regard to the unusual circumstances of his case and the current outcome, which appears harsh.

Conclusion

28    The notice of appeal identifies no appellable error by the FCCA nor is any such error apparent. There is no apparent jurisdictional error in the Tribunal's decision.

29    The appeal should be dismissed with costs.

Associate:

Dated:    5 November 2015