Singh v Minister for Immigration & Anor [2015] FCCA 2207 (20 August 2015)

Last Updated: 25 August 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2207

Catchwords: MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – whether Tribunal was correct in affirming the decision under review on the basis that in order to demonstrate that the applicant for a Skilled (Residence) Subclass 885 visa had competent English, the applicant had to demonstrate he undertook a language test that was conducted in the 2 years immediately before the day on which the applicant applied for the visa – no jurisdictional error.

Legislation: Migration Regulations 1994 (Cth), reg.1.15C Schedule 2, cl.885.213 Migration Amendment Regulations 2011 (No. 3) (Cth)

1413101 [2015] MRTA 365 Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 Singh v Minister for Immigration and Border Protection [2014] FCA 185

Applicant:

HARPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1510 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

4 June 2015

Date of Last Submission:

14 July 2014

Delivered at:

Sydney

Delivered on:

20 August 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents:

Mr S Speirs of Clayton Utz

ORDERS

(1) The application is dismissed.
(2) The applicant pay the first respondent’s costs.
(3) The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 1510 of 2014

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) Subclass 885 visa (885 visa).
2. To have been entitled to an 885 visa, the applicant was required to satisfy the Minister he was competent in English. That requirement was prescribed by cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). What constituted “competent English” was defined in reg.1.15C of the Regulations. As at 6 November 2011, when the applicant lodged his application for an 885 visa, reg.1.15C provided:

If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for the 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.

3. By Legislative Instrument IMMI 12/018 the Minister specified two language tests and scores for the purposes of reg.1.15C(a)(i) and (iii). One of these was the International English Language Test System (IELTS) test and, for that test, the Minister specified a test score of at least 6 for each of the 4 test components.
4. In support of his application for an 885 visa, the applicant submitted an “International English Language Testing System Test Report Form” (IELTS report) which records the following results:^[1]

Listening 7.5 Reading 5.5 Writing 5.0 Speaking 7.5
Overall Band Score 6.5

5. The IELTS report indicates the test was conducted on 4 July 2009, and was marked on 17 July 2009. This was more than two years before 6 November 2011, being the date on which the applicant applied for the 885 visa.
6. The Tribunal found the applicant did not satisfy the requirement that he demonstrate competent English because he had undertaken the language test on which he relied more than two years before he applied for a 885 visa.

Grounds of application

7. The applicant’s grounds of application contain the following statement:

I came to Australia in 2006, finished my course with excellents [sic] marks. Then I applied for 485 then 886 visa, but agent never advised me that I need 6 each I am working as customer service manager in retail and deal with more than 100 customer [sic] everyday I don’t understand why I am not competent for English, I can read, write speak [sic] very good English still can’t understand why its [sic] not getting spending too much money on every test.

8. This does not state any ground of jurisdictional error. Nor does it address the reason for which the Tribunal affirmed the delegate’s decision, namely, that the applicant did not undertake a language test in the 2 years immediately before the day on which the applicant made his application for the 885 visa. The ground, therefore, must fail.

Other matters

9. At the hearing before me on 4 June 2015 the applicant, who is not legally represented, said he believed he had requested the Tribunal grant him an adjournment to permit him an opportunity to sit for another IELTS test. I adjourned the hearing, and directed the Minister to provide to the Court and to the applicant an audio recording of the hearing before the Tribunal. I also directed the applicant to file and serve an affidavit in which he identifies where in the audio recording of the hearing before the Tribunal the applicant claims he requested the Tribunal give him more time to sit for an IELTS test.
10. The applicant, as directed, filed an affidavit. He deposed that he listened to the audio recording, but the recording does not indicate the applicant requested the Tribunal further time to sit for an IELTS test. The applicant, however, raised a fresh matter. He deposed that the reason he did not ask the Tribunal for additional time to sit for another IELTS test was that the Tribunal member informed the applicant that an IELTS test conducted after the applicant applied for the 885 visa would not be valid. The applicant referred the Court to a decision of the Tribunal – 1413101^[2]– which the applicant submitted indicated that the Tribunal could consider an IELTS test after an application for a 885 visa is lodged.
11. After I listened to the audio recording of the hearing before the Tribunal, it was apparent that the Tribunal member informed the applicant that the Tribunal could only take into account scores from IELTS tests undertaken in the two year period before the applicant applied for the 885 visa. I invited submissions from the parties about whether, having regard to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship,^[3] the Tribunal member was incorrect in so advising the applicant and, if so, whether that rendered the Tribunal’s decision liable to be set aside. I heard submissions on these issues on 14 July 2014.
12. The Minister submitted that the Tribunal member was not incorrect in informing the applicant that it could only take into account scores from IELTS tests undertaken in the two year period before the applicant applied for the 885 Visa. That statement would have been incorrect if, at the time of the hearing before the Tribunal, the Tribunal was bound to follow the form of reg.1.15C that was considered by the High Court in Berenguel. The Tribunal, however, was not so bound. It was bound to follow the form of reg.1.15C that was inserted into the Regulations by the Migration Amendment Regulations 2011 (No. 3) (Cth) (Amending Regulations). That regulation applied to applications lodged on or after 1 July 2011.^[4] It has been held that the form of reg.1.15C that was inserted into the Regulations by the Amending Regulations requires that an applicant must have undertaken a test specified in any legislative instrument the Minister may have issued under reg.1.15C in the two years immediately before the day on which the application for an 885 visa is made.^[5]
13. The 885 visa application that was before the Tribunal in 1413101 was made on 30 June 2010. The form of reg.1.15C that applied to that application was the form of the regulation that was considered by the High Court in Berenguel. That is to be distinguished from the applicant’s circumstances in the case before me; the applicant applied for the 885 visa on 6 November 2011. The relevant form of reg.1.15C that applied to that application was the form that was introduced by the Amending Regulations.

Conclusion and disposition

14. The Tribunal correctly concluded the applicant did not satisfy cl.885.213 because he did not undertake the IELTS test or any other English language test in the 2 years immediately before the day on which the applicant applied for the 885 visa. It follows, therefore, that the application must be dismissed with costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 20 August 2015

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^[1] CB15
^[2] [2015] MRTA 365
^[3] [2010] HCA 8; (2010) 264 ALR 417
^[4] Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439 at [11]
^[5] Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [11]- [13] (Barker J)