AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2010 >> [2010] FMCA 19

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Chidemo v Minister for Immigration & Anor [2010] FMCA 19 (27 January 2010)

[AustLII] Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

Chidemo v Minister for Immigration & Anor [2010] FMCA 19 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHIDEMO v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – review of decision of Migration Review Tribunal – competent English – IELTS test – where applicant made arrangements to undergo an IELTS test prior to making her application for a visa – where evidence of arrangements not submitted with application – where applicant successfully attained the required standard in the IELTS test – where evidence of arrangements not submitted to the delegate until after the application for the visa had been refused – no jurisdictional error.

Migration Act 1958 (Cth), ss.54, 55, 474, 476, 504
Migration Regulations 1994 (Cth) Regulations.1.15B, 1.15C, Schedule 2, Part 485, cl.485.215, cl. 485.222

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; 75 ALJR 889; [2001] HCA 22
The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225
Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31
Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 distinguished.

Applicant:
THENJIWE KAREN CHIDEMO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 431 of 2009

Judgment of:
Scarlett FM

Hearing date:
14 May 2009

Date of Last Submission:
22 October 2009

Delivered at:
Sydney

Delivered on:
27 January 2010

REPRESENTATION

Solicitor for the Applicant:
Mr Oliveri

Solicitors for the Applicant:
Phoenix Attorneys

Counsel for the Respondents:
Mr Kennett

Solicitors for the Respondents:
DLA Phillips Fox (Ms Hooper)

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 431 of 2009

THENJIWE KAREN CHIDEMO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Application

  1. The Applicant applies to the Court under s.476 of the Migration Act 1958 for review of a decision of the Migration Review Tribunal made on 3rd February 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
  2. In her amended application, the Applicant seeks the following:
    1. A declaration that the receipt accompanied the visa application lodged by the applicant.
    2. A declaration that the applicant meets the requirements of cl.485.215(c) of the Migration Regulations.
    3. A declaration that the applicant meets the requirements of cl.485.215(b) of the Migration Regulations.
    4. An order that the matter be remitted to the Tribunal to be dealt with according to law (i.e. an order in the nature of mandamus).
    5. Such declaration or order as the Court deems fit; and
    6. Costs.
  3. The Applicant relies on seven grounds of relief.

Background

  1. The Applicant is a citizen of Zimbabwe who applied for a Skilled (Provisional) (Class VC) visa on 16th October 2007.
  2. In her application, which was submitted by a migration agent on her behalf, the Applicant, in answer to the question “Have you undertaken an English test within the last 24 months?” replied “No”. In answer to the question “What is your language ability” she replied “Proficient”.[1]
  3. On 30th April 2008 the Applicant’s migration agent forwarded to the Department a copy of an IELTS[2] Test Report Form dated 15th November 2007, showing that the Applicant had obtained an Overall Band Score of 8.0, made up as follows:
    1. Listening 7.0
    2. Reading 7.5
    1. Writing 7.5
    1. Speaking 9.0[3]
  4. The form showed that the Applicant had sat for the test on 3rd November 2007.
  5. A delegate of the Minister for Immigration and Citizenship refused her application on 16th June 2008. The delegate’s reasons referred to the requirements for the grant of a Class VC, subclass 485 Skilled – Graduate (VC 485) visa:
  6. The delegate then went on to refer to Reg.1.15C, which defines “Competent English”:
  7. The delegate found that the Applicant had not provided evidence of Competent English at the time of application and therefore did not meet the requirements for a subclass 485 visa as specified in subclause 485.215. The delegate refused the grant of a subclass 485 visa to the Applicant.[6]
  8. The Applicant’s migration agent then wrote to the delegate on 19th June 2008, saying:
  9. There is nothing in the Court Book that shows any reply to that letter.

Application to the Migration Review Tribunal

  1. On 3rd July 2008 the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision.[10]
  2. The Tribunal wrote to the Applicant on 10th December 2008, inviting her to attend a hearing which was scheduled to take place at 11:30am on 28th January 2009.
  3. On 8th January 2009 the Applicant’s migration agent forwarded a written submission to the Tribunal.[11] The submission referred to the applicant’s English language ability, saying:
  4. The Applicant attended the Tribunal hearing on 28th January 2009, accompanied by her migration agent.[13]

The Migration Review Tribunal Decision

  1. The Tribunal made its decision on 3rd February 2009, affirming the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
  2. In the decision the Tribunal referred to the criteria for a Subclass 485 visa, which are set out in Part 485 of Schedule 2 to the Regulations. It referred specifically cl.485.215. and went on to say:
  3. The Tribunal went on to refer to the definitions of “vocational English” in Reg. 1.15B and “competent English” in reg.1.15C.
  4. The Tribunal set out a summary of the evidence taken at the hearing. Relevantly, the Tribunal stated;

The Tribunal’s Findings and Reasons

  1. The Tribunal found that:
    1. The Applicant had stated in her visa application that she had not undergone an English test in the preceding 24 months and no other evidence was submitted to show that she had taken either an IELTS test or an OELT test in that time.
    2. The Applicant did not meet the requirements of regulation 1.15C(a).
    1. The Applicant held a Zimbabwe passport, which is not a passport specified by the Minister for the purposes of regulation 1.15C(b)
    1. The Applicant did not have competent English as defined in regulation 1.15C.
    2. The Applicant did not meet cl.485.215(b).
    3. The receipt from the National Centre for English Language Teaching and Research dated 6 September 2007 satisfied that the Applicant had registered to sit for an IELTS test prior to lodging her visa application.
    4. However, the applicant’s own evidence, contained in her representative’s submissions, is that the representative omitted to include this evidence with the visa application. The Tribunal does not accept the submissions that it should decide the review in the applicant’s favour based on the fact that the applicant had registered to sit the test prior to lodging the application, and that the applicant subsequently provided evidence of the IELTS test results which establish she has at least competent English. The Tribunal considers the regulations clearly specify that cl. 485.215 is a criterion that must be met at the time of application.[17]
  2. The Tribunal found that the Applicant did not meet the requirements of cl.485.215.
  3. The Tribunal also considered the submission that evidence of the results of the IELTS test that the Applicant undertook on 3rd November 2007 was submitted during the processing of the application, including to the Tribunal, shows that the Applicant had at least competent English and that it should decide the review in the Applicant’s favour on that basis. The Tribunal found:
  4. The Tribunal affirmed the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa.

Application to the Federal Magistrates Court

  1. The Applicant, in her grounds of review, claims that the Tribunal erred in law and failed to exercise its jurisdiction by:
    1. applying a narrow and invalid interpretation of the requirement of cl.485.215(c) of the Migration Regulations with the effect that it excluded from the application a receipt indicating that the Applicant had registered to sit an IELTS test prior to the date of her Visa Application (Ground 1);
    2. applying a restrictive and inflexible interpretation to the requirement of cl.485215(c) with the effect that it excluded the receipt from the Applicant’s visa application (Ground 2);
    1. confining itself to the evidence before the delegate and refusing to consider, as part of the Visa Application, the receipt lodged with the Tribunal in support of the application (Ground 3);
    1. not having regard to sections 54 and 55 of the Migration Act 1958 in its evaluation of the receipt which was the additional evidence lodged with the Tribunal (Ground 4);
    2. by applying an invalid interpretation to cl.485.215(c) which is inconsistent with sections 54 and 55 of the Migration Act in relation to the receipt (Ground 5);
    3. in the alternative, by holding that it did not have any discretion to waive a timing provision in cl.485.215(c) in relation to the lodgement of the receipt (Ground 6); and
    4. in finding that the Applicant does not meet cl.485.215(b) (Ground 7).

The Applicant’s Submissions

  1. Mr Oliveri, who appeared for the Applicant, submitted that the applicant relied on clauses 485.215(b) and (c).
  2. Dealing with cl.485.215(c), first, he submitted that the Applicant must satisfy cl.485.222 at the time of the decision that the Applicant has competent English. There is no doubt that the Applicant has competent English and, indeed, proficient English.
  3. The only issue is whether the receipt for the IELTS test accompanied the application. In this case, the receipt was not provided until after the delegate made his decision. He relied on sections 54 and 55 of the Migration Act and submitted that they treat the application as being on foot until the decision is made. In that regard he relied on the decision of the High Court in Re Minister for immigration and Multicultural Affairs; Ex parte Miah[19], where McHugh J held:
  4. It was also submitted that, under s.504 of the Migration Act, regulations made should not be inconsistent with the Act.
  5. Mr Oliveri submitted that, even though the receipt was not given to the delegate but was given to the Tribunal and therefore the Tribunal must have regard to it. He referred the Court to The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services[20] at 234 and Minister for Immigration & Multicultural Affairs v Sharma[21] at [63].
  6. The submission is that the Tribunal was to have regard to the whole of the evidence before it and was not confined to the evidence that was before the delegate. Thus, the Tribunal should have had regard to the receipt, which was evidence that the Applicant had made arrangements to undertake the IELTS test before the application was made.
  7. The Applicant also relies on sub-clause 485.215(b), the only requirement of which is that the Applicant must have competent English. By virtue of the definition of competent English, the Applicant must have undertaken an IELTS test “not more than 2 years before the day on which the application was lodged” and achieved a score of at least 6 in each of the stated components.
  8. Mr Oliveri submitted that the issue is whether the IELTS test was conducted not more than 2 years before the day on which the application was lodged and that there is no requirement in the definition that the IELTS test should be conducted prior to the lodgement of the application. As the test was conducted on 3rd November 2007, it was conducted not more than 2 years before the day on which the application was lodged.

The First Respondent’s Submissions

  1. Mr Kennett of counsel, who appeared for the First Respondent, the Minister for Immigration and Citizenship, submitted that to meet the requirement of cl.485.215(b), the Applicant had to demonstrate that she had “competent English”, as defined, at the time she lodged her visa application. To come within reg.1.15C at the time of her application, she needed to have the requisite test result, but she did not.
  2. As to the cl.485.215 (c), whilst the Migration Act and the Regulations use the word “application” in two different senses, either the application form or the application process, a provision which refers to an application being accompanied by a document can only sensibly be read as referring to the application form.
  3. Whilst there is no doubt that the Minister’s delegate and the Tribunal were obliged to have regard to the applicant’s IELTS test result (ss.54, 55), this does not assist in understanding whether the test result was evidence which could be said to have accompanied the visa application. A document that is not in the Department’s possession at the time of application cannot be said to have accompanied the application at that time.
  4. Thus, at the time of her application, the Applicant did not provide evidence that she had made arrangements to sit an English language test, so the evidence did not accompany the application at that time.

Further Submissions

  1. Before this decision was handed down, the Full Court of the Federal Court handed down its decision in Minister for Immigration and Citizenship v Kamal[22]. Because this decision was seen to have relevance to the matter under review, it was agreed that the parties should have the opportunity to make further submissions.
  2. For the Minister, it was submitted that the issue before the Full Court in Kamal[23] was whether an IELTS test which the applicant had undergone after his visa application was ‘taken less than two years before the date of the application’ for these purposes. The Full Court concluded that it was and the Tribunal had therefore erred.[24]
  3. Counsel for the Minister submitted that Regulation 1.15C(a), which applies in this case, contains a form of words very similar to the provisions of Schedule 5 considered in Kamal. As to the construction of that form of words, they might literally encompass a test undergone after the lodgement of a visa application, and the result in Kamal supports that view.
  4. However, it is submitted that this conclusion does not assist the Applicant, because the clause which is in issue in the present case, cl.485.215 of Schedule 2, erected a criterion which had to be satisfied at the time of application. Clause 485.215 required the Applicant to provide evidence of an appropriate test result at the time she lodged her visa application. On any view of the case, Mr Kennett submits, she did not do that and it does not assist her to establish that she obtained an appropriate test result at some later time.
  5. Mr Oliveri, in a supplementary submission, submitted that the relevance of the decision in Kamal is that the only temporal requirement is that contained in the definition of competent English contained in regulation 1.15C(a)(i):
  6. He submitted that there is no room for the additional temporal constraint suggested by the First Respondent because that would be inconsistent with the definition. He submitted that, following the reasoning in Kamal, the test taken by the Applicant on 3rd November 2007 was taken within the required period and, as the Applicant achieved the required score, she has competent English and thus satisfies sub-clause 485.215(b).

Conclusions

  1. The facts are not in dispute. The Applicant made an application, through her migration agent, on 16th October 2007. At that time she had not undergone an IELTS test or other English language test within the pervious two years.
  2. The Applicant had, however, applied to undergo an IELTS test on 6th September 2007, which was scheduled to be conducted on 3rd November 2007.
  3. On 15th November 2007 the Applicant received an IELTS test result showing that she had obtained an overall band score of 8.0.
  4. The Applicant’s agent provided a copy of the IELTS test results to the delegate on 30th April 2008.
  5. The delegate refused the application for a visa on 16th June 2008.
  6. On 19th June 2008, after the application for a visa had been refused, the Applicant’s migration agent provided a copy of the receipt for the application for an IELTS test to the delegate.
  7. The failure to provide the receipt to the delegate was due to an omission on the part of the migration agent.
  8. To qualify for the visa, the Applicant had to show that she met the requirements of either cl.485.215(b) or (c).
  9. To meet the requirements of cl.485.215(b), the Applicant had to demonstrate that she had competent English within the meaning of regulation 1.15C. To do that, she had to have achieved, in a test conducted not more than 2 years before the application was lodged, an IELTS test score of at least 6.0 in each of the 4 test components.
  10. To meet the requirements of cl.485.215(c), the Applicant had to provide evidence, at the time of lodging the application, that she had made arrangements to undergo the necessary language test.
  11. If the Applicant met the requirements of cl.485.215(c), she then had to comply with clause 485.222(b) by showing that she had competent English. To do that, she had to produce the appropriate IELTS test result.

Cl. 485.215(b)

  1. In order to meet the requirements of cl.485.215(b), the Applicant had to show that, at the time she lodged her application for a visa, she had competent English, as evidenced by the possession of the appropriate IELTS test result. It is not the case that an applicant can meet this requirement by sitting for an IELTS test and obtaining the necessary score during the time that the application is being processed.
  2. It follows that the Applicant was not able to demonstrate that she had competent English at the time of application and thus could not meet the requirement of cl.485.215(b).

Cl. 485.215(c)

  1. In order to meet the requirement of cl.485.215(c), the Applicant had to provide evidence that she had made arrangements to undergo a language test, and this evidence had to accompany the application. Clearly, the Applicant had made those arrangements, but, unfortunately for her, the evidence was not provided to the delegate when the application was made to the Department. In fact, it was not provided until after the delegate had refused the application. Thus, the Applicant cannot have recourse to cl.485.222(b) to show that she has competent English, because the application was not accompanied by the evidence that the Applicant had made arrangements to undergo the language test.
  2. Whilst the receipt was provided to the Tribunal, it was too late. The failure by the Applicant’s migration agent to provide the necessary evidence when the application was lodged meant that the application was doomed to fail.
  3. The decision in Kamal does not assist the Applicant because the Court in that case was dealing with the criteria for a subclass 572 (Vocational Education and Training Sector) visa. As the Full Court (Finn, Emmett and Edmonds JJ) pointed out:
  4. The point of difference in this case, and it is a crucial point, is that the criteria that applied to the Applicant, being the criteria specified in clause 485.215, are criteria to be satisfied at time of application.
  5. Thus, the time of application for the visa, 16th October 2007, was vital for the Applicant. It was at that date that she had to provide evidence of either having competent English by producing a satisfactory IELTS result in order to comply with cl.485.215(b) or having made arrangements to undergo a language test in order to comply with cl.485.215(c). She did not provide evidence of either, although she had evidence of having made arrangements to undergo the necessary IELTS test, which she subsequently passed.
  6. There is no jurisdictional error. The Tribunal decision is a privative clause decision and, as such, is not subject to the remedies of declaration or mandamus that the Applicant seeks.
  7. It follows that the application must be dismissed with costs.
  8. There is one other matter that needs to be mentioned. The application of the law has worked harshly on the Applicant, who had dutifully applied to undergo an IELTS test before her application was lodged. Clearly, she had evidence of this, in the form of the receipt. There is no evidence as to when the migration agent received that document.
  9. The statement in the applicant that the Applicant’s language ability was “proficient”[27], unsupported by any evidence, suggests a lack of understanding by her migration agent of the requirements. It is surprising, to say the least, that the migration agent did not submit the receipt to the delegate until after the application for the visa had been refused. There was little point in submitting it to the delegate at that stage. As it was, the IELTS test dated 15th November 2007 was not submitted to the delegate until 30th April 2008. There is no explanation of that delay.
  10. The Tribunal, quite reasonably, described the Applicant’s circumstances as “unfortunate, given she had registered for an IELTS test on 6 September 2007”.[28] It is particularly unfortunate as it is quite clear from the IELTS test result that the Applicant achieved an overall band score of 8.0, which classifies her as a “very good user” of English[29]. The Applicant had achieved an IELTS test score which was greater than the required standard for competent English (reg. 1.15C(a)(i)).
  11. It is most regrettable that the Applicant has failed in her attempt to obtain a visa by what appears to be the omission of her migration agent. It may well be a situation, once the Applicant has completed whatever legal proceedings she wishes to undertake, to consider making an approach to the Minister for Immigration and Citizenship for the substitution of a more favourable decision under the provisions of s.351 of the Migration Act. That, of course, is not a matter for the Court but entirely a matter for the Minister.
  12. All that the Court can do is dismiss the application and make the costs order that flows from such dismissal.

I certify that the preceding 68Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixty-eightsixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM


Associate: V. Lee


Date: 12 January 2010

[1] See Court Book at 10
[2] International English Language Testing System
[3] Court Book 13
[4] Court Book 18
[5] Ibid
[6] Court Book 18
[7] sic
[8] sic
[9] Court Book 21
[10] Court Book 25-31
[11] Court Book 50-57
[12] Court Book 52-53
[13] Court Book 78
[14] Court Book 82-83
[15] Court Book 84 at [25]
[16] Court Book 85 at [26]-[28]
[17] Court Book 86 at [30]-[34]
[18] Court Book 87 at [37]
[19] (2001) 206 CLR 507; 179 ALR 238; 75 ALJR 889; [2001] HCA 22
[20] (1992) 39 FCR 225
[21] [1999] FCA 31
[22] [2009] FCAFC 98
[23] Supra
[24] [2009] FCAFC 98 at [19]
[25] Emphasis added
[26] [2009] FCAFC 98 at [5]
[27] Court Book 10
[28] Court Book 86 at [34]
[29] Court Book 13-14.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2010/19.html