FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellants are to 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.
1 This appeal was heard and determined in the appellants’ absence on 9 November 2018. Reasons for judgment were given orally on that day. This is a record of those reasons.
2 The two appellants are citizens of India. They are husband and wife. On 15 March 2017, the first appellant, Ms Hardepp Kaur, applied for a Temporary Graduate (Class VC) Temporary Graduate (Post-study Work) (subclass 485) visa under the Migration Act 1958 (Cth), naming the second appellant, Mr Raj Kumar, as a dependent. A delegate of the then-titled Minister for Immigration and Border Protection refused to grant the visas. That decision was affirmed on review by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia dismissed an application for judicial review of the delegate’s decision: Kaur & Anor v Minister for Immigration & Another  FCCA 1657. This is an appeal from that judgment.
3 Mr Kumar’s success on this appeal is wholly dependent on Ms Kaur succeeding. It is, therefore, appropriate to determine the appeal by reference to the merits of Ms Kaur’s position.
4 Section 31 of the Act provides that there are to be prescribed classes of visa and that the regulations may prescribe the criteria for a visa or visas of a particular class. Section 65 of the Act provides that if the Minister is satisfied that a visa applicant satisfies the criteria for the grant of a visa, the Minister must grant the visa.
5 Conversely if the Minister is not so satisfied, the application for the visa must be refused.
6 A criterion for the grant of the visa to Ms Kaur is that specified in cl 485.212 of Sch 2 to the Migration Regulations 1994 (Cth). At the relevant time, it provided:
The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
7 Ms Kaur does not hold a passport of a type specified by the Minister for the purposes of cl 485.212(b). Accordingly, the visa application turned on Ms Kaur’s satisfaction with the criteria specified in cl 485.212(a). The relevant instrument for the purposes of that clause was IMMI 15/062 titled “Specification of English Language Tests, Scores and Passports”. Paragraph 3 of the instrument specified a requirement that Ms Kaur achieve a minimum overall score of 50 in a test known as Pearson Test of English Academic (PTE Academic).
8 The collective effect of cl 485.212(a) and the instrument was that it was necessary that the visa application be “accompanied by” evidence that the applicant had passed the PTE Academic test in the period of 36 months prior to the visa application being made. The visa application in this case was made on 15 March 2017. Ms Kaur’s visa application was accompanied by evidence indicating that she had undertaken the PTE Academic test on 2 September 2016 with an overall score of 43. As the minimum overall score for the test specified in the instrument was 50, the delegate refused to grant either appellant a visa. The delegate was not satisfied that Ms Kaur satisfied the criterion prescribed in cl 485.212(a).
9 In the proceedings before the Tribunal, Ms Kaur provided evidence that she had undertaken a PTE Academic test on 23 August 2017 and that she had achieved an overall score of 58 on that occasion. The Tribunal concluded that although Ms Kaur had achieved a pass in that test, that circumstance did not meet the requirements of cl 485.212(a) because the test had not been undertaken within 36 months prior to the visa application being made. The Tribunal said that it had “no power to waive the requirement or any discretion in this matter”.
10 In the proceedings before the primary judge, the onus was on the appellants to show that the Tribunal’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at  (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
11 The appellant relied on five grounds of review, each of which was rejected by the primary judge. The asserted jurisdictional errors are now broadly repeated in the six grounds of appeal before this Court. For the reasons that follow, the Tribunal did not commit jurisdictional error in the manner contended for. The primary judge did not err in rejecting the same arguments and so, accordingly, this appeal must be dismissed.
GROUNDS 1 and 2
12 These grounds are expressed as follows:
1. The Second Respondent and the Primary Judge committed a legal error when they failed to follow the law settled in Berenguel v Minister for Immigration and Citizenship  HCA 8; (2010) 84 ALJR 251; (2010) 264 ALR 417, that a time of application criterion could be satisfied by providing an information after the lodgement of the application.
2. The refusal of the second respondent to accept the English language test result (PTE) of 23 August 2017, during its review of the first respondent’s delegate’s decision is plainly unfair, absurd and unreasonable.
(i) ‘ ... the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application ...’ Berenguel at .
(ii) Minister for Immigration and Citizenship v Li [2013) HCA 18.
13 In Khan v Minister for Immigration and Border Protection  FCAFC 85 the Full Court construed the criterion for the grant of a Skilled (Provisional) Temporary Graduate (Class VC, Subclass 485) visa, prescribed in cl 485.223 of Sch 2 to the Regulations. It was enacted as follows:
When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
14 In that case, the Tribunal had refused to have regard to evidence of the applicant having applied for the relevant assessment after the time of the visa application on the basis it had no discretion to do so. It was argued (as it is here) that the Tribunal failed to apply the reasoning of the High Court in Berenguel v Minister for Immigration and Citizenship  HCA 8; (2010) 264 ALR 417 and so failed to recognise that it had a discretion to receive and consider the evidence.
15 The Full Court in Khan rejected the argument on the basis that the provision considered and construed by the High Court in Berenguel was differently worded in a critical respect, and so the case was distinguishable. As the Court said (Charlesworth J, Derringer J agreeing):
29 The appellant relied on the decision of the High Court in the matter of Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417;  HCA 8. In that case, the High Court construed a regulation setting out the criteria for the grant of a Subclass 885 visa. The relevant regulation — which was premised with the heading ‘Time of Application Criteria’ — bore some similarity to the regulation in issue in the appellant’s case. At 421  of the judgment the High Court said:
Division 885.2 sets out primary criteria. Under the heading ‘885.21 Criteria to be satisfied at time of application’ there appears the following:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b) the applicant has competent English.
30 The High Court continued:
By way of relevant contrast, clauses 885.214 and 885.215 require the applicant to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant had made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.
31 The regulation at issue in the appellant’s case — that is, cl 485.223 — is not relevantly different from the two provisions that were contrasted by the High Court in that passage. The words ‘accompanied by’, the High Court found, at least implicitly, gave the necessary grammatical connection to the words ‘time of visa criterion’. It was that grammatical connection that was missing in relation to the regulation then under the Court’s consideration. It is for that reason that I consider the decision of the High Court in Berenguel affords no assistance to the appellant and, in fact, presents the appellant with some difficulty.
32 Nor does the decision in Berenguel set forth any principle to the effect that considerations of fairness or absurdity are to govern the assessment of whether or not a temporal requirement exists between the making of an application and the provision of evidence that a skills assessment had been applied for. …
16 An application for special leave to appeal from the Full Court’s judgment and orders in Khan was refused by the High Court on the basis that there was no reason to doubt the correctness of the decision: Khan v Minister for Immigration and Border Protection & Anor  HCASL 278 (Bell and Nettle JJ). In my view, for the same reasons expressed in Khan, the Tribunal in the present case did not commit jurisdictional error by failing to follow Berenguel. As the primary judge correctly stated at , the decision in Berenguel “is inapposite and is of no obvious assistance to the Applicants”. See also Kumar v Minister for Immigration and Border Protection  FCA 140 at , Robertson J.
17 Properly construed, cl 485.212 required that evidence of Ms Kaur’s English competency, as specified in cl 485.212(a), be provided at the time of the visa application. The test passed by Ms Kaur was undertaken after her visa application was made. This is not a case in which the required competency for English had been achieved before the visa application was made, but evidence of that achievement provided afterward or even shortly afterward. It is not a case of asking whether or not there was such a short period of time between the visa application being made and the provision of evidence of the competency having been achieved that the application could be said to have “accompanied” the application: cf Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562.
18 The Tribunal did not err in determining that it had no jurisdiction to have regard to the evidence of the more recently passed test.
GROUNDS 3 TO 5
19 Grounds 3 to 5 are expressed as follows:
3. The Second Respondent fell into a legal error by failing to exercise its discretion to receive and have regard to the relevant information i.e. the English language test result of 23 August 2017.
(i) Section 359(1) of the Migration Act 1958 ‘In conducting the review, the Tribunal may get any information that it considers relevant. .. ...’
4. The Second Respondent acted unreasonably by failing to act according to substantial justice and the merits of the case when it refused to receive and have regard to the English language test result of 23 August 2017.
(i) Section 353(b) of the Migration Act 1958, ‘the Tribunal in reviewing ... a decision shall act according to substantial justice and merits of the case.’
5. The Second Respondent’s refusal to accept and have regard to the English language test result of 23 August 2017 was unreasonable and constituted an improper exercise of its power which went to its jurisdiction.
(i) Section 353 of the Migration Act 1958, ‘the Tribunal in reviewing ... a decision is not bound by technicalities, legal forms or rules of evidence.
(ii) ‘… the Tribunal has no discretion in this matter and must apply the law’, at  of the decision of the second respondent.
20 Each of these grounds must be rejected. Nothing in s 359 of the Act mandated that the Tribunal “get” the information proffered by Ms Kaur in relation to her belated results under the PTE Academic test. The information was not relevant because it was not capable of establishing that Ms Kaur satisfied cl 485.212(a)(ii), properly construed and so could not assist the Tribunal in the performance of its task on review.
21 Similarly, the Tribunal’s refusal to consider the evidence of the belated test did not constitute a departure from the requirements of s 353(b) of the Act. The Tribunal was required, under s 65 of the Act, to refuse to grant the visa if not satisfied that the criteria prescribed for the grant of the visa were met. The “substantial justice and merits of the case” did not require the Tribunal to receive into evidence material that was not capable of showing that a criterion for the visa was satisfied.
22 The contention that cl 485.212 is inconsistent with ss 55, 56, 353, 357A and 359 of the Act should be rejected. The same argument was rejected by the Full Court in Khan in relation to a provision of the regulations that is not distinguishable.
23 The empowering provision in s 31 of the Act neither expressly nor impliedly prohibits the making of a regulation prescribing that a visa application be accompanied by evidence that an PTE Academic test has been passed in the 36 months prior to the visa application being made.
24 The requirement that the evidence be provided at that time is a substantive requirement, not a procedural one. It is not inconsistent with those provisions of the Act upon which the appellants rely, those provisions being concerned with the manner in which the Tribunal is to perform its statutory task and not with the substantive issue to be decided under s 65 of the Act. Nothing in ss 55, 56, 353, 357A or 359 mandates that the Tribunal have regard to evidence that could have no bearing on the performance of that task.