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1209225 [2013] MRTA  1403  (24 June 2013)

Last Updated: 3 July 2013

1209225  [2013] MRTA 1403  (24 June 2013)

DECISION RECORD

APPLICANTS: Mr Chaminda Deepal Wagolle Watte Gedara
Mrs Sanjeewani Uthpala Kariyawasam Manage

MRT CASE NUMBER: 1209225

DIAC REFERENCE(S): BCC2011/383492

TRIBUNAL MEMBER: John Billings

DATE: 24 June 2013

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (“the Act”).
2. The applicants are the first named applicant (“the applicant”) and the second named applicant (“the applicant’s wife”) . The applicants applied for the visas on 26 August 2011. At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses: 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). Having regard to the visa application, the relevant subclass in this case is Subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
3. The delegate refused the visas on 12 June 2012 because the applicant did not give evidence of competent English. The applicants applied for review on 26 June 2012.
4. The applicants were represented in relation to the review by their registered migration agent, Ms Noeline Smart, solicitor.
5. On 15 February 2013 the Tribunal sent the applicants an invitation to appear before the Tribunal on the 18 March 2013 to give evidence and present arguments. The invitation was sent by prepaid post to the applicant’s representative and authorised recipient. Among other things the hearing invitation letter requested the applicant to provide evidence of competent English as soon as possible prior to the hearing but no later than the hearing date. The Tribunal received a response indicating that the applicants and their representative would attend. However, on 17 March the Tribunal received a fax from the applicant in which he said due to serious illness he would not be able to attend the hearing and that his representative would on 18 March provide the letter that his doctor had written. On 18 March the Tribunal received a further fax from the applicant. According to an accompanying medical certificate dated 18 March the applicant was “unfit to continue his usual occupation” from 17 to 18 March inclusive. According to a note on the Tribunal’s file an officer of the Tribunal contacted the medical practitioner who wrote the certificate. The practitioner indicated in effect that the certificate was for work purposes but that, as the applicant had not discussed the Tribunal hearing with him, the doctor could not say whether the certificate covered that. In the circumstances the Tribunal postponed the hearing.
6. On 28 March 2013 the Tribunal sent the applicants an invitation to appear before the Tribunal on the 22 April 2013 to give evidence and present arguments. The invitation was sent by prepaid post to the applicant’s representative and authorised recipient. The applicants and their representative did not attend the Tribunal on 22 April. The Tribunal has received no explanation for that, although in the meantime the Tribunal received a written submission dated 16 April: see below. In the circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
7. The applicants are nationals of Sri Lanka. The applicants first arrived in Australia on 28 December 2007 holding Sri Lankan passports and a Class TU Student visas. Copies of the relevant pages of their passports are held on the Tribunal’s file. The applicant has departed and re-entered Australia twice since he first arrived and his wife has departed and re-entered Australia once.
8. The visa application prompted the applicant to state whether he had undertaken an English test in the 24 months prior to the date of the application. He said “No”. There was the response in relation to the applicant’s wife. It was indicated, incidentally, that the applicant did not receive assistance in completing the application form.
9. Accompanying the written submission dated 16 April 2013 was a copy of an IELTS test report form dated 17 December 2012. According to that, in a test held on 8 December 2012 the applicant achieved the following score: Listening 6.0, Reading 6.0, Writing 6.0 and Speaking 6.0.
10. The submission noted the applicant’s successful IELTS result obtained since his visa application was refused.
11. The submission pointed to what were said to be inconsistencies in the online visa application form. It was submitted that the Department is estopped from relying on the provisions of cl.485.215 of the Regulations where the applicant can demonstrate that he or she has competent English at the time of decision. It was noted that this “of course does not follow the strict interpretation of the regulations” The following reasons were given as to why the strict interpretation of the Regulations should be “avoided” and a “more lenient approach” should be adopted.
12. The submission referred to the following text in the online application that was said to appear to address cl.485.215:

Applicant English Language Ability ...

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 the time of application. At this point in time, if evidence has not been provided the application may be refused.

13. The representative submitted that this information was “erroneous and ambiguous”. It was submitted that if English language competence was a time of application requirement then no representation should be made that “You have up until the time of decision to provide evidence that you have competent English.” It was submitted that “any reasonable applicant” reading the full paragraph was likely to conclude that while there was a requirement “to meet the English language standard at a recently concluded IELTS examination” it was in fact a time of decision requirement.
14. It was submitted that where an applicant who relied on the information to their detriment and subsequently undertook the IELTS examination, the applicant should be allowed an opportunity to provide the results obtained later. The representative stated that the “mistake” may be the result of “the Department’s failure to update their online form following changes to regulations” but submitted that this “should not be used to disadvantage applicants”. It was submitted that if the Tribunal accepted that there was a “mistake” then a later IELTS test should be accepted as sufficient evidence of an applicant’s English language ability.
15. The submission then pointed to what were said to be inconsistencies in the application of the law. The representative said that was inconsistency within the Department in relation to the acceptability of IELTS test results obtained after the making of a post 1 July 2011 Subclass 485 visa application. A “large number” of cases had been successful. In “some instances” case officers had “pro-actively requested IELTS test results” from applicants who had not yet submitted test scores. That “inconsistent approach” was “widely known” and caused expectations to rise on the part of other applicants that they would be given a similar opportunity. In essence it was submitted that this gave rise to a “legitimate expectation” and that the rules of natural justice were flexible. It was submitted that in this context the Department should be estopped from relying on the Regulations to reject an application by an applicant who was able to meet “the English language threshold requirement” at the time of decision.
16. In concluding the submission noted that the Tribunal was attempting to deal with similar applications expeditiously and “respectfully reminded the Tribunal that in an attempt to expedite matters and efficiently deal with the case load a miscarriage of justice should not be permitted”. The arguments set out in the submission were said to be “valid and substantive” and “in the event that the Tribunal chooses to ignore these arguments, judicial review may become the only recourse to those applicant (sic) who have to their detriment, relied on the misrepresentations of the Department.” The submission therefore “urge[d] that the Tribunal ... not act hastily ... but have due regard to the legal arguments raised” in the submission. It was proposed that the points of inconsistency be brought to the attention of the Department “for further verification”.
17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

18. The main issue in the present case is whether the applicant has competent English as required by cl.485.215. Regulation 1.15C provides 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.

19. According to the IELTS test report form that accompanied the written submission the applicant achieved the required score of at least six in each of the four IELTS test components. But he achieved that in a test conducted after the day on which the visa application was made.
20. It was not submitted in this case that the meaning of cl.485215 and r.1.15C is anything other than the ordinary meaning conveyed by the text. That is, it was not submitted that those provisions can be interpreted so as to allow successful IELTS test results to satisfy the criterion if the results were obtained in a test that was conducted on or after the day on which the application was made. The submissions were based instead on what were said to be inconsistencies in the information contained in the Department’s online visa application form, and inconsistencies in the decisions made by Departmental officers.
21. The general principle in Australian administrative law is that estoppel cannot be used to extend the authority of a decision-maker beyond the authority given to the decision-maker by law: Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687. Therefore in the present case estoppel could not be relied on so that the decision-maker would grant the visa on the basis of IELTS results achieved in a test conducted on or after the day on which the visa application was made when the Regulations require that the test be conducted prior to the day on which the application was made. It is not permissible for the “strict interpretation” of the Regulations to be “avoided” and a “more lenient approach” to be adopted, as the applicants’ representative submitted should happen.
22. In MILGEA v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 206-228 Gummow J noted the categories of estoppel and a range of contexts in which estoppel could be said to arise. In the administrative law context he noted that the generally accepted proposition is that estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public: at p. 208. His Honour noted some important principles concerning estoppel generally. Among them were that there needs to be a sufficiently clear and unambiguous representation to the effect contended for: at p. 207. Another is that the person to whom the representation is made must have relied on that to their detriment: at p. 217. Mindful that estoppel cannot be relied on in the present case, but noting those principles, the Tribunal addresses the submissions further.
23. The statement “You have up until the time of decision to provide evidence that you have competent English” does indeed have to be read in the context of the whole paragraph. That phraseology may have been retained from the time before 1 July 2011 when the relevant regulation was worded differently. Nevertheless, in the Tribunal’s view, the information appearing in the online visa application was not “erroneous” even if it may have been ambiguous and capable of unfairly confusing or misleading applicants – especially unrepresented applicants for whom English is not the first language. The information can be interpreted in more than one way. One way of interpreting the information is that an applicant who achieved the required results in a test conducted before the day on which the application was made could provide the evidence about that afterwards. That might be in a case where, for instance, the applicant had not received notification of the results at the time the visa application was made.
24. The submission invited the Tribunal to consider what “any reasonable applicant” would be likely to conclude. The applicant was given the opportunity to attend the hearing and give evidence but he did not. There is no evidence about what the applicant himself concluded. There is no evidence that the applicant was confused or misled by the information and that he relied upon it to his detriment. Similarly, while the principles of natural justice and estoppel appeared to be conflated in the latter part of the submission, there was no evidence before the Tribunal to warrant the conclusion that the applicant himself had any expectation that he could submit IELTS test results after he made the visa application. And any legitimate expectation would be relevant (at common law) to whether the applicant was entitled to a hearing: see MILGEA v Kurtovic at p.225. (The Tribunal invited the applicants to a hearing pursuant to s.360 of the Act).
25. Obviously, officers of the Department should avoid a decision that would be contrary to law, such as a decision founded on an incorrect interpretation of cl.485.215 and r.1.15C. The same must be said for the Tribunal. If there has been inconsistency in decision-making on the part of officers of the Department that would not permit the Tribunal now to make a decision that would be contrary to law.
26. In summary, the Tribunal rejects the submission that the doctrine of estoppel can and should be relied on or that the principles of natural justice relevantly apply.
27. In the present case, there is no evidence that the applicants have held a passport of a type specified in IMMI 12/018, and as such r.1.15C(b) is not met.
28. For r.1.15C(a)(i) and (iii), 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.
29. On the basis of the evidence before it, including the statements in the application that the applicant and his wife did not undertake an English test in the 24 months prior to the date of the application, the Tribunal is not satisfied that the applicants have competent English as defined in r.1.15C(a).
30. Therefore the requirements of cl.485.215 are not met by either applicant. The Tribunal further finds that the applicant’s wife is not a member of the family unit of a person who has satisfied the primary criteria.
31. As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

32. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
    

John Billings
Senior Member