Federal Court of Australia

Shubha v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 115

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The first and second appellants pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the grant of Skilled (Residence) (Class VB) visas to the appellants.

2    The first appellant, Mr Mehedi Hasan Shubha, was the primary visa applicant. The second and third appellants are his wife and child, respectively. At first instance, the first and second appellants’ younger child was listed as a fourth applicant, however he was removed following observations the was not a party to the Tribunal’s decision.

3    The reason for the Tribunal’s affirmation of the delegate’s refusal of the visas was that an indispensable criterion for the grant of the visas, namely Mr Shubha passing an English language test to a stipulated level of proficiency in the two years before the visa application was made was not met, because the only identified test result identified by him was just outside of the necessary two-year period and below the required level in all four components of speaking, reading, writing and listening. Mr Shubha’s response was that he was misled by his migration agent and thought that his test results were sufficient. In these circumstances, it is obvious that the visas were never going to be granted, and that there was no error, let alone jurisdictional error in refusing to grant them.

4    The appellants are citizens of Bangladesh. On 9 November 2011, Mr Shubha applied for the visas. The second appellant was included in this application as a member of the family unit, and the third appellant was added to the application as a member of the family unit after his birth, in 2014. Mr Shubha is the only active participant in the proceeding.

5    The relevant visa requirements are set out in Pt 886 of Schedule 2 to the Migration Regulations 1994 (Cth). In particular, cl 886.213 required Mr Shubha to have competent English. Regulation 1.15C provided that a person has competent English if the person:

(a)    satisfies the Minister that:

(i)    the person undertook a language test, specified by the Minister in writing for this subparagraph; and

(ii)    the test was conducted in the 2 years immediately before the day on which the application was made; and

(iii)    the person achieved a score specified in the instrument; or

(b)    satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

6    Mr Shubha did not hold a specified type of passport, so had to meet the criteria in reg 1.15C(a). The relevant instrument was called IMMI 15.005. That instrument required Mr Shuba to achieve an International English Language Testing System (IELTS) score of at least 6 in each of the four test components of speaking, reading, writing and listening. The Tribunal at [10] of its reasons stated:

At the hearing the Tribunal discussed with the applicant the requirements of cl.886.213 and r.1.15C. The applicant acknowledged that he does not have evidence of competent English. He indicated that he had undertaken an IELTS test on 23 July 2009 but scored only 5 for listening, 5.5 for reading, 5.5 for writing and 5.5 for speaking. As IMMI 15/005 requires the applicant to score at least 6 in each of the test components of speaking, reading, writing and listening, the applicant’s IELTS test results do not meet the definition of competent English. He indicated he had no other evidence on which to rely.

7    The primary judge summarised what had taken place before the Tribunal at [10]-[14] of the primary judgement (PJ). I incorporate that summary by reference, without reproducing it, because only a portion is directly challenged on this appeal.

8    The chapeau to the grounds of appeal states:

1.    The Court below erred in finding that the Administrative Appeals Tribunal (AA T) failed in its duty to provide procedural fairness to the applicant.

2.    When we applied to the Federal Circuit Court, we did in a rush and could not provide sufficient details and particularised our grounds. I am an unrepresented applicant and request the honourable courts to grant leave to raise a news ground in the interest of justice. I respectfully request the honourable court to accept ground 4 and 5 which was not presented during the Federal Circuit Court.

9    Five grounds of appeal then follow:

Ground 1:    I was misled by the Migration Agent.

Ground 2:    I have three different results with the same qualification.

Ground 3:    I do not think this is a fair judgement to me and my family.

Ground 4:    The decision of the Tribunal is unreasonable.

Particulars

The Tribunal failed to grant me reasonable time to provide my English Exam Proficiency. I note that I need to satisfy the English Language Proficiency at the time of the decision and therefore, I requested the Tribunal to provide reasonable period. The Tribunal failed to provide reasonable period to provide my English result and decided the matter which I submit is not reasonable.

Ground 5:    The Tribunal failed to provide me adequate procedural fairness and natural justice opportunity.

Particulars

The tribunal failed to provide time frame to provide English result and failed to advise before it took the decision that it intended to take decision and to request the English result before a particular period of time.

The grounds of appeal raising issues not advanced before the primary judge

10    In order to raise new grounds of judicial review on appeal, an appellant must seek the leave of the Court: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [45] (Kiefel, Weinberg and Stone JJ). Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [2001] FCA 43; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[24] and [38]. The Court will consider the adequacy of the explanation for failure to take the point at trial, the merit of the point raised, the prejudice to the appellant in not allowing the ground of appeal to be raised and the prejudice to respondent in permitting it to be agitated: VUAX at [48].

11    The Minister submits that the appellants were afforded sufficient opportunity to raise these additional grounds before the primary judge. The Minister notes that a period of about four years elapsed between the appellants’ application for judicial review and the hearing, in which time the appellants could have amended their application to provide further details and particularised grounds of review.

12    The Minister also submits that grounds 5 and 6 have no merit, referring to the fact that Mr Shubha could not produce test results in the two years leading up to the making of the visa application proving that he had sufficient competency in English. The Minister submits that there is no arguable error in the Tribunal not providing Mr Shubha additional time to meet the requirements as, in substance, that would have been futile. Moreover, the Minister submits, Mr Shubha was on notice of the English language requirement, which was the dispositive issues in the review, being the same issue as before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). As such, Mr Shubha’s complaint that the Tribunal did not provide him an opportunity to give evidence in respect of its adverse findings cannot be sustained.

13    Mr Shubha was unable to counter the Minister’s submissions. The Minister is plainly correct. There is no proper basis to grant leave to rely upon grounds 5 and 6. Accordingly, leave is refused.

The remaining grounds of appeal

Ground 1

14    The first ground of appeal contends Mr Shubha was misled by his migration agent. Based on Mr Shubha’s evidence to the Tribunal this was a complaint that his migration agent misled him as to the English competency test requirements for his visa. The primary judge noted Mr Shubha did not assert fraud against his migration agent and, in any event, it was difficult to see how the agent’s conduct could ever arise to the level of being a “fraud on the Tribunal”, given that no agent acted for the appellants at any stage on the Tribunal review. Further, the primary judge recorded that the Tribunal had regard to his explanation 5.

15    It is well-established that allegations of fraud, including migration agent fraud, are serious allegations that must be distinctly pleaded and proved: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [15]. Due to the seriousness of allegations of fraud, the Court must be satisfied that fraudulent conduct has been proved to the level of satisfaction required by Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 363 and 368; see also Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; 245 ALR 501 at [33] (Tamberlin, Finn and Dowsett JJ).

16    The Minister submits the primary judge was correct to hold that Mr Shubha did not clearly plead that his agent committed fraud and that, in any event, the conduct could not give rise to fraud on the Tribunal in circumstances where he did not have an agent at any stage on the Tribunal review for the reasons set out in the primary judgment at [24]–[25]. I agree with that submission. It follows that this ground of appeal must fail.

Grounds 2 and 3

17    The primary judge considered grounds two and three together: PJ at [26]–[27]. The primary judge found that the grounds do not allege error on the part of the Tribunal and, in the absence of particulars to make them meaningful, these grounds had to be dismissed: PJ at [27]. That is undoubtedly correct. It follows that both of these grounds of appeal must fail.

Conclusion

18    The appeal must be dismissed with costs.

Associate:

Dated:    21 February 2024