FEDERAL COURT OF AUSTRALIA

Baig v Minister for Immigration and Border Protection [2019] FCA 204

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of and incidental to the appeal, as assessed or agreed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 17 October 2018. His Honour dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse the grant of Skilled (Provisional) (Class VC) (Subclass 485) visas to the appellants.

2    The first appellant was the primary visa applicant. His wife and son, the second and third appellants, were the second and third applicants. Their visa applications were wholly dependent on the outcome of the first appellant’s visa application (although they also had to satisfy secondary criteria). Because the first appellant was from Pakistan, he could not meet the visa criterion of having a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland. He therefore had to satisfy certain English language test criteria. The reason why the delegate refused the grant of the visas, and the reason why the Tribunal affirmed that decision, is that he was unable to satisfy those criteria. The particular criteria, contained in a specific test instrument numbered IMMI 15/062, were that he had to have taken an English language test from an approved list of tests within three years before applying for the visa, and to have achieved the specified minimum scores for that test.

3    The Tribunal gave the first appellant multiple opportunities to provide proof that he had met this indispensable criterion. He was unable to do so. He did not reach the required score for the test that he sat within the required period. The test for which he did achieve the required score was only conducted after he had applied for the visa, so could not be taken into account. In those circumstances, the Tribunal had no alternative but to affirm the delegate’s decision. Specifically, the Tribunal found (at [17]-[21]):

The tribunal therefore finds that:

•    The [appellants] applied for this visa on 19 July 2016.

•    The [first appellant] provided evidence that he had undertaken two specified English language tests in the three years before the day on which the application was made however he did not achieve the specified score in either of them: (IMMI 15/062).

•    No evidence accompanied the visa application that the [first appellant] had achieved the specified score in a specified English test within three years before the day on which the visa application was made.

•    [The first appellant] does not, and did not at the time, hold a current passport for the USA, UK, Canada, New Zealand or the Republic of Ireland.

•    On 13 December 2016 the [first appellant] undertook a specified English language test in which he did achieve the specified score.

On this basis the tribunal is not satisfied that the application was accompanied by evidence that the [first appellant] held a specified passport (cl.485.212(b)) or that he had undertaken a specified English test and achieved the relevant score within the specified period (cl.485.212(a)).

While the tribunal has sympathy for the [appellants’] circumstances, notwithstanding the agent’s submissions, it has no discretion in this regard.

Therefore the tribunal is not satisfied that cl.485.212(a) or (b) is met.

CONCLUSION

On the basis of the above, the [first appellant] does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

4    The Tribunal necessarily reached the same conclusion for the second and third appellants.

5    On 20 January 2017, the appellants filed an application for judicial review of the Tribunal’s decision. That application was dismissed on the day of the Federal Circuit Court hearing, 17 October 2018, with detailed but concise ex tempore reasons being given. In the published reasons, the primary judge reproduced the grounds of review as follows (at [17], verbatim):

1.    The Second Respondent (the Tribunal) committed Jurisdictional error as

(i)    It failed to consider that exceptional reasons exists and it was beyond the control of the applicant for granting visa class 485 and applied the wrong interpretation of the regulation 485.212(a) and 485.212(b).

2.    The Second Respondent failed to ask itself the right question

The Tribunal asked,

(i)    Whether the result of the PTE score achieved on 13 December 2016 make him eligible to apply for the visa.

(ii)    Whether the Tribunal may consider the matter to be referred to the Minister as the Tribunal has acknowledged that exceptional circumstances does exist in the applicant’s case.

3.    Tribunal also took irrelevant consideration into account, ignoring the material provided by the applicant about death certificate and evidence of the accident and injury caused ad failed to consider relevant material provided to show that the applicant has meed the criteria for English requirement for 485 before the decision. Tribunal also fail to consider the series of circumstances surrounding applicant’s personal life and whether those circumstances were unusual and beyond applicant’s control.

4.    Tribunal also identified wrong issues about the applicant’s history about the Applicant’s Visa refusal and failed to consider as to whether the application should be return to the case officer with the correct PTE score for reconsideration of the eligibility to meet the conditions of 485 visa.

6    The primary judge concluded that no jurisdictional error was established, finding, in substance:

(1)    as to ground 1, that there was no scope for the Tribunal to take into account exceptional circumstances, even though they were considered in forming that view: at [18];

(2)    as to ground 2, the Tribunal did ask the right question and correctly construed and applied the relevant criteria: at [21];

(3)    as to ground 3, the Tribunal considered the submissions and evidence, but found that they did not overcome the problem in meeting the English language test criteria at [23];

(4)    as to ground 4, any complaint about what the Tribunal did in terms of making any sort of recommendation to the Minister was not something that was required of the Tribunal and there was no evidence that the Tribunal was ever asked to remit the matter to the Minister, delegate or any case officer: at [25].

7    At the hearing before the primary judge a submission marked “reply” was handed up, which contained the following further complaint (reproduced at [27]):

1.    This is totally liability of the registered Migration agent which in my case was ill-informed and misguided me to the wrong track.

2.    When Tribunal gave us one-week extension till 16th Dec 2016 but still refused my application even after the proof of meeting English requirement was met on 14th Dec 2016.

8    The primary judge treated [2] of this complaint as ground 5, but rejected it because the Tribunal did not give any extension to meet the English test requirement, but rather gave leave to furnish submissions as to the proper construction of the criterion concerning whether the test had to be taken in the three years prior to the visa application being made. His Honour refused leave to rely upon [1], stating (at [30]) that his Honour would not “allow him to argue at this late point that his migration agent was at fault in some way”. No ground of appeal challenges that refusal of leave.

9    The notice of appeal to this Court dated 18 October 2018 and filed on 30 October 2018 contains the following grounds (verbatim):

1.    I appeared before His Honour who verbally dismissed my application.

2.    The Administrative Appeals Tribunal as well as His Honour Judge Dowdy fell into jurisdictional error by not considering that the result for the English test was submitted before the decision was made by the Tribunal.

3.    My argument is that the Tribunal was given important information that I passed the PTE Academic Test which confirm that on 13 December 2016 I achieved the required scores even though the test was taken after the day on which the visa application was made.

4.    The Tribunal acknowledged that I undertook a specified English language test in which I did achieve the specified scores yet the Tribunal failed to grant me the visa without inviting me to comment on the provided English test or without inviting me to appear and present argument if the Tribunal had some difficulties in granting me the visa.

5.    It is my understanding that the Tribunal should consider my compelling reasons which were before the Member and should consider the English language result which occurred after the time of application.

6.    The Tribunal in my opinion had strong evidence supporting my case and while the Tribunal had sympathy for our circumstances the Tribunal failed to take into account our strongly compassionate circumstances and failed to even recommend my case to the Minister as a result of the compelling reasons and the undenial fact that I passed the English test before the Tribunal Member affirmed the decision not to grant me skilled provisional class VC visa.

7.    The Tribunal was aware of the technical issue that I do not hold a passport specified of United Kingdom, USA, Canada, New Zealand or the Republic of Ireland. This is in my view a discrimination and the law itself prevents public interest criteria and denies natural justice to people who do not hold those passports as myself. The Tribunal and the law is based on discrimination and both ignored that being from Pakistan should not prevent me even from exempt from English test because I completed my studies in Australia and I completed Bachelor of Business Accounting in Australia and in English language.

8.    The First Respondent and the Second Respondent relied on the law which is not law rather relied on regulations which I strongly hope that the honourable Federal Court will quash their decisions.

9.    I refute the decision of His Honour and the Tribunal and believe that the Tribunal did not act on my compelling reasons and did not consider my circumstances at or before the time of the decision.

10.    I am aware that the Tribunal in the past recommended the decision which was not in favour to ministerial intervention because there were reasons of a strongly compassionate nature and in my case the Tribunal only offered me sympathy. I believe that sympathy is not sufficient. I needed action and a strong recommendation which did not happen.

11.    I continue to rely on my Affidavit of 19 January 2017 and Application under Migration Act submitted on 19 January 2017 and strongly hope that my case before the Federal Court will be decided by Full Court in our favour.

10    The first appellant, appearing in person for himself and, at least in a practical sense, for his wife and son, made oral submissions (through an interpreter), reading from parts of a document. The Minister’s solicitor responded to what he had said. After hearing from the Minister’s solicitor, the first appellant handed up a copy of the document from which he had read, which states as follows (verbatim):

Applicant Submission

1.    I, Fasahat Adeel Baig, holding Pakistani Passport, came here in Australia in 2012 for studying the Bachelors Degree of Accounting and Elicos (English Course).

2.    After completing my degree I have contacted migration agent Mr. Tariq Dadu (Migration agent No. 1385166) after complete my bachelor degree I would like to apply for my Temporary Graduate visa post graduate visa. (Subclass 485)

3.    He submit my case and handed over the receipts of payment along with Bridging visa.

4.    On 1 August when immigration refused my case due to not fulfilling the requirement of English course, I ask him that what u done?

5.    He tell me that he have a proof of several cases before me and immigration ask about the English course.

6.    After long conversation, he insist me that he wants to submit my AAT (Administrative Appeal Tribunal) even I denied him that I don’t want to put AAT with you but he insist and offer me that I am not charging my fees only you have to pay legal fees and he submit my case. In the mean time I am giving my PTE test but due to stress I didn’t got the desire score (ONLY 1 Mark Less).

7.    I completed my degree in Melbourne but after accident I don’t have another option to move Sydney because I have some relatives in Sydney so I move in Sydney along with my family.

8.    We tell all circumstances to Tribunal member and after long conversation she gave us the time for 16 dec 2016 to provide English result.

9.    I am satisfied that I am providing english test the specific time frame so me and my family take some relaxation.

10.    As we already provided all the related documents to AAT except English test so our all the conversation regarding English test.

11.    I want to do my professional year and want to do the internal ship but due to these circumstances I can’t do anything due to these tensions.

12.    I am asking to the Tribunal when our hearing on 08 dec-16 and she gave me a time of 16-dec-16 and on 14 dec-16, I ill provide her the PTE test along with the desired score so why she not considered.

13.    On Paragraph No. 19 in Tribunal decision she Sympathy for the applicant circumstances, notwithstanding the agent submission, it has no discretion in this regard.

Ground No. 1

1.    This is totally liability of the Migration agent which informed us the mislenuos information.

2.    If the Trubinal gave us the time for one week and we will provide the related documents within the specific time why should she not considered.

3.    Me and My family depend on me, my son is doing schooling here in Shepperton.

4.    The PTE result submitted on 14 Dec-16 and the decision made by 23 Dec-16.

Orders:

1.    It is humbly requested to please review my application and my circumstances and give me a chance to allow my Post graudate visa

11    The first appellant additionally said that it was due to the migration agent’s mistake that the visa was refused and that he was suffering the consequences. I asked him whether it was correct that he had not passed any English language test within three years before applying for the visa. He confirmed that this was correct (through an interpreter). Prior to asking that question, the Minister’s solicitor had submitted that it was not apparent what the complaint was about the migration agent, but that it appeared to be a complaint about poor advice or negligence, and that if that is what is sought to be advanced, it could not constitute any jurisdictional error on the part of the Tribunal, noting (as summarised at [8] above) that leave to rely upon a ground concerning the migration agent, raised for the first time at the Federal Circuit Court hearing, was refused by the primary judge. The further observation may be made that if there was any wrongdoing by the migration agent, it went to the application for the visa in the first place in circumstances where the English language test criteria in the specific test instrument had not been satisfied. It could not have had any material bearing on the exercise of the Tribunal’s jurisdiction.

12    In relation to the grounds in the notice of appeal, which were not addressed by the first appellant except in the written submission reproduced above, the Minister submits the following:

(1)    Ground 1 is not a proper ground of appeal and simply states that the first appellant appeared before the primary judge who verbally dismissed the judicial review application, such that no appealable error is identified in the primary judge’s decision. That characterisation is correct. Ground 1 must fail.

(2)    Ground 2 contends that the primary judge and the Tribunal failed to consider that the result for the English test was submitted before the Tribunal’s decision. However, it was irrelevant whether the first appellant had achieved the desired results prior to the Tribunal’s decision. For the purposes of cl 485.212(a) of the Migration Regulations 1994 (Cth), the Tribunal was required to consider whether the appellant had achieved the required scores in an English language test within 36 months before the visa application was made. In any event, the Tribunal (at [16]) acknowledged the first appellant achieved the required scores in a test taken on 13 December 2016, but correctly found the scores were only achieved after the visa application was made and thus did not meet the visa criterion. Those submissions must be accepted and ground 2 must therefore fail.

(3)    Ground 3 states that the Tribunal was given “important information” that the first appellant passed the English test on 13 December 2016. As indicated in the preceding subparagraph, the Tribunal was plainly cognisant of this information but correctly found it was not sufficient to satisfy the requirements of cl 485.212(a) and the terms of the specific test instrument. These submissions must be accepted. Ground 3 must fail.

(4)    Ground 4 states that the Tribunal acknowledged that the first appellant had achieved the required scores but failed to grant the visa without inviting him to comment on the English test. As the Minister points out, the precise complaint is unclear, but the following observations made by the Minister are apposite and are accepted as, in combination, being fatal on the most beneficial reading of ground 4:

(a)    Insofar as the first appellant is contending that the Tribunal failed to comply with s 360 of the Migration Act 1958 (Cth), such complaint cannot succeed.

(b)    The Tribunal, on a number of occasions, informed the first appellant that he was required to have achieved the specified English language test results within three years prior to the day on which the visa application was made. It is also clear that this requirement was discussed with the appellant and his migration agent at the Tribunal hearing (as recorded in the Tribunal’s reasons at [15]). Accordingly, the first appellant was plainly on notice of the determinative “issue” on the review and the requirements of cl 485.212: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [38].

(c)    For these reasons, the Tribunal was not required to invite the appellant to “comment” on the English language test results he achieved after the Tribunal’s hearing.

(5)    Ground 5 argues that the Tribunal should consider the first appellant’s compelling reasons. As the primary judge correctly found (at [18]), there was no provision for the consideration of “compelling reasons” or the exercise of discretion by the Tribunal. Accordingly, the Tribunal was correct to find that these matters were not relevant for the purposes of applying the statutory test: see the Tribunal’s reasons at [15]-[16], [19]. Those submissions are undoubtedly correct, and ground 5 must fail.

(6)    Ground 6 states that the Tribunal had “strong evidence” in support of the first appellant’s case but failed to take into account “strongly compassionate circumstances” and failed to recommend his case to the Minister. However, as noted above, there was no scope for the Tribunal to consider any compassionate or compelling circumstances given the strict and mandatory visa criterion that the first appellant was unable to meet. If the first appellant seeks to contend that the Tribunal ought to have exercised its discretion to refer the matter to the Minister so that the Minister may substitute the Tribunal decision with a decision more favourable to the appellant in the public interest, under s 351 of the Migration Act, the Tribunal is under no statutory obligation to consider referring a matter to the Minister: see Gade v Minister for Immigration and Border Protection [2016] FCA 1006 at [32]. Moreover, there is no indication that the first appellant requested that the matter be referred. Those submissions must be accepted and ground 6 must therefore fail.

(7)    Ground 7 states that the fact that the first appellant did not hold a passport of the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland was “a discrimination” and the law denied natural justice to people who do not hold those passports. The first appellant contends that the fact that he was from Pakistan should not prevent him from being exempt from an English test because he completed his studies in Australia. The Tribunal’s task was to determine the application before it in accordance with the relevant legislative policy. The appellant’s disagreement with the terms of cl 485.212 or with the terms of the specific test instrument does not identify any appealable error in the primary judge’s decision, nor any jurisdictional error on the part of the Tribunal. Those submissions must be accepted and ground 7 must therefore fail.

(8)    Ground 8 contends that the Minister and the Tribunal relied on “the law which is not law”. Insofar as the first appellant seeks to take issue with the delegate’s decision, the primary judge had no jurisdiction in relation to that decision as it is a primary decision: see s 476(2) of the Migration Act. In any event, the complaint in ground 8 is entirely unclear and does not identify any appealable error in the primary judge’s decision. Those submissions must be accepted and ground 8 must therefore fail.

(9)    Ground 9 again complains that the Tribunal did not consider his compelling circumstances, but as noted above the Tribunal had no discretion in the matter. Those submissions must be accepted and ground 9 must therefore fail.

(10)    Ground 10 states that the first appellant is aware that the Tribunal has in the past referred decisions for ministerial intervention and he believed the Tribunal should have done so in his case. As noted above (at [12(6)]), there is no evidence to suggest the first appellant made a request that his matter be referred, but in any event, the Tribunal was under no statutory obligation to do so. Those submissions must be accepted and ground 10 must therefore fail.

(11)    Ground 11 is not a proper ground of appeal and states that the first appellant continues to rely on his judicial review application and affidavit filed on 19 January 2017 and that he hopes this Court will decide in his favour. Those submissions must be accepted and ground 11 must therefore fail.

13    As each ground of appeal must fail, the appeal must be dismissed. There is no reason why the first and second appellants, being the adult appellants, should not pay the Minister’s costs. Accordingly the orders of the Court are as follows:

(1)    The appeal be dismissed.

(2)    The first and second appellant pay the first respondent’s costs of and incidental to the appeal, as assessed or agreed.

Associate:

Dated:    14 February 2019