Pakala v Minister for Immigration & Anor [2014] FCCA 145 (3 February 2014)

Last Updated: 7 February 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAKALA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 145

Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled visa – absence of evidence of English language proficiency – whether the Tribunal decision was unreasonable or unfair or based on the wrong legislative instrument considered.

Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.363 Migration Regulations 1994 (Cth)

A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872; (2005) 194 FLR 32 Dome Resources NL v Silver [2008] NSWCA 322; (2008) 72 NSWLR 693 Envy Trading v Queensland [1998] 1 Qd R 413 Giretti v Commissioner of Taxation (1996) 70 FCR 151 Ibrahim v Minister for Immigration (2009) FCA 1328 Kabir v Minister for Immigration [2010] FCA 1164 Kocakaya v Minister for Immigration & Anor [2012] FMCA 709 Lee v Minister for Immigration [2007] FCAFC 62; (2007) 159 FCR 181 Lindner v Wright (1976) 14 ALR 105 Minister for Immigration v Li [2013] HCA 18 SZJSP v Minister for Immigration [2007] FCA 1925 SZKGF v Minister for Immigration [2008] FCAFC 84 SZOOR v Minister for Immigration [2012] FCAFC 58; (2012) 202 FCR 1

Applicant:

VIJAY SHEKAR PAKALA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2031 of 2013

Judgment of:

Judge Driver

Hearing date:

3 February 2014

Delivered at:

Sydney

Delivered on:

3 February 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr D Hughes

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application filed on 29 August 2013 is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 2031 of 2013

VIJAY SHEKAR PAKALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 29 July 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant Mr Pakala a Provisional Skilled (Class VC) visa. The following statement of background facts relating to Mr Pakala’s visa application and the outcome of it is derived from the Minister’s outline of written submissions.
2. Mr Pakala is a citizen of India. He applied for the skilled visa on 4 January 2011^[1].
3. In order to be eligible for a skilled visa, clause 485.215 of Schedule 2 to the Migration Regulations 1994 (Regulations) required that the Minister must be satisfied that the applicant has “competent English”. That expression is defined in regulation 1.15C.
4. On 1 June 2012, Mr Pakala was informed that a delegate of the Minister (delegate) had decided that Mr Pakala did not meet the criteria for the grant of a skilled visa, and that his application was therefore refused^[2]. The delegate was not satisfied that Mr Pakala had “competent English”. The delegate gave as the reason for this decision that Mr Pakala did not provide evidence of competent English at the time he lodged the application, and despite a reminder e-mail being sent on 23 March 2012, no evidence had ever been received^[3].
5. On 22 June 2012, Mr Pakala applied to the Tribunal for review of the delegate's decision^[4].
6. On 11 March 2013 Mr Pakala was invited to appear before the Tribunal on 5 April 2013^[5]. In the invitation, the Tribunal noted:
   • ...to date you have not presented evidence that you meet the English language proficiency requirement for the visa (Competent English). Please provide evidence at or before the hearing that you have competent English or that you have booked an Occupational English Test or an IELTS test which is scheduled to take place no later than 6 April 2013. If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time to obtain it.
7. The Tribunal sets out^[6] the numerous requests for additional time sought and granted in relation to the provision by Mr Pakala of evidence of competent English. Ultimately, there were only two pieces of evidence placed before the Tribunal that related to this issue:
   1. the first is a “Test Report Form” given under the International English Language Testing System (IELTS), and records results including, critically, a grade of 5.5 for “writing”^[7]; and
   2. the second is a copy of the applicant's passport. The passport is issued by the Republic of India^[8].
8. Based on that information, the Tribunal held that Mr Pakala did not have “competent English”. It came to that conclusion because regulation 1.15 required that Mr Pakala score a “6” or higher in each component of the IELTS in order to meet the definition of “competent English”. He did not meet this requirement for the writing component. The Tribunal thus affirmed the decision of the delegate.
9. These proceedings began with a show cause application filed on 29 August 2013. Mr Pakala continues to rely upon that application.
10. The application contains three grounds:
    • 1. The Tribunal made a mistake that the Tribunal did not allow time. The Tribunal did not give any reason why the applicant is not entitled to get time. The score of the IELTS result was provided to the Tribunal by the applicant was 6 for listening, 6 for reading, 5.5 for writing, and 6.5 for speaking (paragraph 11 of MRT decision). The Tribunal wrongly mentioned in its decision, There is nothing before the Tribunal to indicate that giving him more time would result in the applicant providing evidence of competent English (paragraph 18 of MRT decision). The applicant provided his English language proficiency but one score was 5.5 writing and one score was 6.5 speaking, this is a very good ground for the Tribunal to issue time considering other circumstances but the Tribunal did not allow time hence the applicant was denied natural justice. The Tribunal was acting to reject the application but the Tribunal did not act fairly to substantial justice.
    • 2. The Tribunal made a procedural mistake that the Tribunal acted with using excessive jurisdiction. On 4 June 2013 the applicant provided a copy of the receipt for the remark of the 11 May 2013 IELTS test. He asked that the Tribunal wait until he received the results of that remark. (paragraph 12 of the MRT decision). On 4 June 2013 the applicant was informed that the Tribunal agreed to wait until close of business 24 July 2013 for the result of remark. The applicant was informed the Tribunal would not agree to wait for the results of any further IELTS tests or remarks after that date. (Paragraph 14 of MRT decision).
      • On 29 July the applicant attended the registry and provided a letter asking for further time. He advised that he had booked 2 more tests for 3 and 17 August 2013. He requested the Tribunal provide him with further time to sit those tests. On 29 July 2013 the Tribunal emailed the applicant to advise him it did not agree to provide him with any further time.
    • 3. The Tribunal was unfair and did not act to substantial justice. The Tribunal did not act independently. The Tribunal acted on an incomplete instrument. [The] Tribunal has no power to act on incomplete instrument and to reject the review application. The Tribunal mentioned in paragraph 6 of its decision that, ‘The current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C as in force before 1 July 2011 and there are no specifications for r.1.15C(a)(ii).’ So the Tribunal acted on incomplete structure of migration regulation. The rejection on the basis of the migration regulation was wrong. The relevant regulation does not allow the Tribunal to reject the review application. The Tribunal was acting on unspecified law. The Tribunal was acting to reject the review application. The Tribunal was acting against the review applicant’s interest and it was not practical and just. The Tribunal does not have power to reject the review application.
11. I dealt with the matter on an interlocutory basis on 24 September 2013. At that time, I listed the matter for a final hearing today, dispensing with the need for any further preliminary hearing, and provided the parties with the opportunity to file further evidence and submissions. Only the Minister has filed submissions.
12. I have before me as evidence the court book filed on 8 October 2013.
13. At the outset of the hearing today, Mr Pakala asked for an adjournment of approximately three weeks in order to give him the opportunity to sit a further IELTS test. He told me that if he was unsuccessful in that attempt, he would withdraw his application to the court and presumably not further pursue his visa application. I refused that application on the bases that; first the question of whether Mr Pakala is now able to demonstrate satisfaction of the relevant visa criteria is not relevant to my consideration of the validity of the Tribunal decision; secondly, if Mr Pakala’s intention is to make one further attempt to pass the IELTS test and, if he is unsuccessful, to take no further action, he will have that opportunity in the 21 days following from this judgment before his opportunity to appeal to the Federal Court expires, subject to any discretion the Federal Court may choose to exercise to grant an extension of time.
14. Mr Pakala made no submissions further elaborating upon the grounds of review he has advanced. The Minister’s submissions deal with those grounds for review.
15. On the basis of the material in the court book, I am satisfied that the decisions made by the Tribunal on Mr Pakala’s several requests for more time to demonstrate compliance with the English language requirement were both fair and reasonable. In that regard, I agree with the Minister’s submissions.
16. Grounds 1 and 2 take issue with the failure by the Tribunal to grant Mr Pakala further time to satisfy the competent English requirement. These grounds must fail. Section 363(1)(b) of the Migration Act 1958 (Cth) (Migration Act) gives to the Tribunal a broad discretionary power to adjourn a review from time to time. There is in my view no error in the decision of the Tribunal to exercise power in the way that it did.
17. The Tribunal invited Mr Pakala to attend a hearing on 5 April 2013^[9]. That letter was sent to the address nominated by Mr Pakala^[10]. Mr Pakala did not attend the hearing and the Tribunal's letter was "returned to sender"^[11]. On 24 April 2013, the Tribunal telephoned Mr Pakala, and agreed to wait until 3 May 2013 to allow him to provide further evidence^[12]. Mr Pakala again spoke with an officer of the Tribunal on 26 April 2013, and sought an extension of the time until 29 May 2013, because this was the date on which he would receive further IELTS results. He was granted that extension^[13]. On 27 May 2013 Mr Pakala again wrote to the Tribunal and sought a further extension. This is because he was not satisfied with the IELTS results and had requested a remark. This would take another six to eight weeks^[14]. The Tribunal agreed to extend the time until 24 July 2013 (ie. an extension of eight weeks and two days) so that he could obtain the re-mark^[15]. The re-mark did not result in an improved result for Mr Pakala^[16]. Mr Pakala then requested further time to undertake two more IELTS tests^[17]. The Tribunal refused that request and proceeded to make a decision^[18].
18. The Tribunal was correct to hold at [17]^[19] that it “gave the applicant ample time to provide evidence of competent English if he has it”. By that stage, it was two and a half years since Mr Pakala made his visa application.
19. The Tribunal’s decision was reasonable^[20]. No jurisdictional error has been shown.
20. The third ground appears to be an attack upon [6] of the Tribunal decision^[21]:
    • The current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C as in force before 1 July 2011 and there are no specifications for r.1.15C(a)(ii), although there are specified tests and scores for the equivalent provision as substituted on 1 July 2011. The Tribunal considers that this instrument should be construed as specifying scores, tests and passports for r.1.15C as in force on and after 1 July 2011, and that the applicable isntrucment in this case is IMMI 09/73, the instrument in force when the visa application was lodged. The Tribunal notes, however, that in both instruments the specified scores, tests, and passports are substantially the same.
21. To the extent that the ground asserts something else, in particular, bias, there is no substance to it. The Minister deals with Ground 3 in his submissions in the following terms:
    • Ground 3 appears to take issue with the manner in which the Tribunal applied the test of “competent English” in reg 1.15C. That regulation has undergone a number of amendments. The applicable version is the version inserted into the Regulations by the Migration Amendment Regulations 2007 (No 7). That version is expressed, by clause 3 of the amending regulation, to “apply in relation to an application for a Visa made on or after 1 September 2007”. The next amendment to reg 1.15C was expressed to apply to applications made after 1 July 2011 – ie, after the applicant’s visa application had been made.
    • The applicable form of the regulation was as follows:
    • 1.15C Competent English
    • If a person applies for a General Skilled Migration Visa, the person has competent English if the person satisfies the Minister that the person:
      • (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
        • (i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
        • (ii) a score:
        • (A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
        • (B) in a language test specified by the Minister in the instrument; or
      • (b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
    • The applicant plainly did not satisfy sub-paragraphs (a)(i) or (b). To succeed in this application, the applicant must demonstrate that on the evidence before the Tribunal, he could have satisfied sub-paragraph (a)(ii). That requires consideration of the applicable instruments by which the Minister has made specifications for the purpose of reg 1.15C. That is what the Tribunal did at [6]-[7] of its reasons.
    • Between the time that the application was made, and the time that it was decided, the Minister issued three relevant instruments. At the time the application was made, IMMI 09/073 specified tests and scores for r 1.15C(a), and passports for 1.15C(b). However, at the time that the Delegate and Tribunal made their decisions, IMMI 09/073 had been revoked. The instrument that revoked it, IMMI 11/036, made new specifications in accordance with the new structure of r 1.15C. This new instrument commenced on 1 July 2011. IMMI 11/036 was later revoked and replaced by IMMI 12/018 commencing on 1 July 2012. IMMI 12/018 made clear that it was intended to apply to applications lodged before and after it commenced.
    • The Tribunal considered (or assumed) at [6] that IMMI 09/073 was the applicable instrument. However, the Minister submits that IMMI 12/018 was in fact the applicable instrument, because it is a later instrument that prescribes relevant matters for visa applications lodged before 1 July 2012. It follows that there is a mismatch between the paragraph numbers for the version of reg 1.15C that applied to the applicant’s case. (IMMI 12/018 should refer to subparagraphs (a)(ii)(A) and (B), rather than subparagraphs (a)(i) and (iii).) The Minister submits that the “slip rule” of statutory interpretation is applicable in this context.^[22]
    • None of those instruments, however, would assist the applicant. He only had IELTS results, and one of those results was below 6, the score required by both IMMI 12/018 and IMMI 09/073. His application was always doomed to fail.
    • In this case, the Tribunal did not apply the incorrect test or ask itself the wrong question. It correctly asked whether it was satisfied that the applicant had achieved either: (a) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or (b) or a score of at least “B” in each of the four components of an Occupational English Language test. It erred only in identifying IMMI 09/173, rather than IMMI 12/018, as the source of that part of the question which related to the Occupational English Language test.^[23] That error is not jurisdictional.^[24]
    • Even if the Tribunal’s error was jurisdictional, the Minister submits that, because the error could have made no difference to the Tribunal’s decision, this is an appropriate case for the Court to exercise its discretion not to grant relief.^[25]
    • Ground 3 should be rejected.
22. Counsel for the Minister in oral argument took me through the various Regulations that have been made over time, as well as the various legislative instruments made or purportedly made under those Regulations. There is some force in the Minister’s submission that the better view is that instrument 12/018 was applicable in the case of Mr Pakala, but it is unnecessary for me to determine that issue. That is because the error by the Tribunal, if indeed there was one, does not go to jurisdiction. Of the potentially available forms of legislative instrument made by the Minister, each would have required Mr Pakala to achieve a score of at least 6 for the four test components of the IELTS test.
23. Even if no legislative instrument applied and the issue was governed solely by the Regulations, the requirement would have been the same. There is no suggestion that Mr Pakala was able to rely on a test other than the IELTS test, because he had not sat an alternative test. It follows, in my view, that consistently with the principles enunciated by the Federal Court in Ibrahim v Minister for Immigration^[26], any error by the Tribunal in the application of the relevant instrument was not material and did not go to jurisdiction.
24. I am not persuaded that the Tribunal committed any jurisdictional error in, or in relation to, its decision.
25. Accordingly, the decision is a privative clause decision and the application must be dismissed. I will so order.
26. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Pakala did not wish to be heard on that question. I will order that Mr Pakala is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 5 February 2014

---

^[1] see Court Book (CB) 1
^[2] CB 56
^[3] CB 62
^[4] CB 64
^[5] CB 77
^[6] at CB 101-102 [8]-[17]
^[7] CB 88
^[8] CB 30-31
^[9] CB 77
^[10] see CB 71
^[11] see CB 79, 81
^[12] CB 81
^[13] CB 82
^[14] CB 86
^[15] CB 92
^[16] CB 95
^[17] CB 94
^[18] CB 98
^[19] CB 102-103
^[20] cf Minister for Immigration v Li [2013] HCA 18
^[21] CB 101
^[22] Lindner v Wright (1976) 14 ALR 105 at 109-111; Envy Trading v Queensland [1998] 1 Qd R 413 at 417; A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872; (2005) 194 FLR 32 at 35 [13]- [17]; Dome Resources NL v Silver [2008] NSWCA 322; (2008) 72 NSWLR 693 at [31]- [32] (Basten and Bell JJA, Beazley JA agreeing). As is noted in Herzfeld et al, Interpretation and Use of Legal Sources (2013) at [25.1.1640], such mismatches “can easily creep in when amendments are made but cross-references are not updated”.
^[23] It is to be noted that the applicant provided no evidence that he had sat an Occupational English Language test. Rather, he provided evidence that he had sat an IELTS test.
^[24] Kocakaya v Minister for Immigration & Anor [2012] FMCA 709 at [32]. See also Ibrahim v Minister for Immigration [2009] FCA 1328 at [7]- [14], and the cases there cited.
^[25] Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164-166; SZJSP v Minister for Immigration [2007] FCA 1925 at [28]- [29]; SZKGF v Minister for Immigration [2008] FCAFC 84 at [15]; Kabir v Minister for Immigration [2010] FCA 1164 at [44]- [53]; SZOOR v Minister for Immigration [2012] FCAFC 58; (2012) 202 FCR 1 at 24-25 [95]- [96]. Cf. Lee v Minister for Immigration [2007] FCAFC 62; (2007) 159 FCR 181 at 194-195 [48]- [53].
^[26] (2009) FCA 1328