Govind v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant, who is an Indian national, is an applicant for a Skilled (Provisional) (Class VC) visa, which is a class of visa that enables graduates of Australian educational institutions and people with certain temporary skilled visas to live in Australia while they acquire skills and qualifications which would make them eligible for permanent General Skilled Migration visas. At the time of the appellant's application there were two subclasses. One was a subclass 485 (Skilled - Graduate) visa. 2 The Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) impose criteria of which the Minister must be satisfied before he can grant any visa. The appellant purported to satisfy the criteria for a subclass 485 (Skilled - Graduate) visa. 3 The appellant lodged his visa application on 28 July 2011. At that time, cl 485.215 of Sch 2 of the Regulations provided as a criterion for the grant of a skilled graduate visa that the applicant have "competent English" at the time of application. The Regulations contained a definition of "competent English" for this purpose. The appellant did not satisfy this definition. Accordingly, the Minister (through his delegate) refused to grant him the visa and the Migration Review Tribunal affirmed the Minister's decision. The appellant sought judicial review in the Federal Circuit Court but the primary judge dismissed his application. In this appeal the appellant contends that in doing so her Honour fell into error. For the following reasons that contention must be rejected. 4 At the time that the appellant lodged his visa application, cl 1.15C of the Regulations 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 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. 5 The clause contained amendments which were introduced by the Migration Amendment Regulations 2011 (No 3) (Cth) and which came into effect on 1 July 2011 presumably in part to overcome the effect of the High Court's decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8. At least, they had this effect. 6 By Legislative Instrument IMMI 12/018, for applications lodged before 1 July 2012 the Minister specified: (a) for the purposes of subparagraph 1.15C(a)(i) an International English Language Test System (IELTS test) and an Occupational English Test (OET); (b) for the purposes of subparagraph 1.15C(a)(iii) an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening; or a score of at least "B" in each of the four components of an OET; and (c) for the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country. 7 The appellant only holds an Indian passport. So to satisfy the criterion in cl 485.215 of Sch 2 of the Regulations he had to have achieved an IELTS test score of at least six for each of the four test components or a score of at least B in each of the components of an OET in the two years before 28 July 2011. 8 In his visa application the appellant stated that his most recent English test was an IELTS test taken on 17 June 2010 and that his language ability was competent. But the delegate refused his application because the appellant had not provided evidence that he had competent English for the purposes of cl 1.15C. The appellant provided no such evidence with his review application either. The tribunal informed him that it was unable to make a decision in his favour on the material it had and invited him to attend a hearing. At that time, it also informed him that he needed to produce evidence of an IELTS score of at least six in each of the four test components in the two years immediately before the day on which his visa application was made. The appellant did not produce any such material. Instead, he produced a copy of results from an IELTS test taken on 21 February 2009. As the tribunal observed, that presented two problems for him. First, it showed results for a test conducted outside the two-year period. Second, it showed that the appellant did not achieve the score levels required. On this basis the tribunal concluded that the appellant did not meet the requirements of cl 1.15C. 9 In the Federal Circuit Court the appellant sought judicial review on two grounds: (1) that the tribunal failed to consider his IELTS test appointment; and (2) that the tribunal failed to take into account his IELTS test in India and failed to accept that his English was competent. 10 The reference in the first ground to an IELTS test appointment was a reference to a scheduled test on 27 April 2013. After the appellant received the letter from the tribunal advising him of the hearing date, he asked for the hearing to be postponed until after 27 April 2013 to allow him to "complete" the IELTS test, supported by documents that proved he was due to sit the test on that day and that he had paid the necessary fee. The tribunal refused the request. It did so, as it informed the appellant in its decision record, because the legislation required that the test be undertaken in the two years before the application was made. 11 The reference in the second ground to the appellant's English being competent was supported by a submission that he was denied the opportunity to have a face-to-face interview at which he could satisfy the tribunal that his English was competent because of his previous and current studies in the language. The IELTS test in India, also referred to in the second ground, was the test taken on 21 February 2009. 12 The primary judge rejected both these grounds and concluded that the tribunal's decision was not affected by jurisdictional error. She said that the tribunal's findings were based on the evidence and material before it and were open on that evidence and material. She also said that the tribunal applied the correct law and complied with its obligations under the statutory regime, including the conduct of its review. 13 There is no error in these reasons. The notice of appeal contains one ground expressed in narrative form. It reads (without alteration): While I respect the judgment of Her Honour Judge Emmett I do not accept such judgment to apply to me and to any other similar person as I believe that I am competent in English and have completed my studie in Australia as well as in India in English language and I hope that the Federal Court of Australia will make a decision in my favour as the Migration Act Regulations about language test, score and passports is based on discrimination and unfairness. I already completed my IELTS before and I spoke before Her Honour Emmett in English language and strongly believe that I have not been treated fairly and justly by the Migration Review Tribunal as well as by Her Honour Emmett's judgment. 14 At the hearing the appellant proffered the following written submissions, which he declined to speak to. 15 First, he said that he provided English test results of 17 June 2010 and had competent English and he did not know why the Department asked again for the English test on 1 May 2012. The difficulty with this submission is that there is no evidence to support it. The appeal book contains no test results for 17 June 2010. 16 Second, he said that the tribunal refused to postpone the hearing on 15 April 2013, although he had a booking for an IELTS test for 27 April 2013. He said he believed that the tribunal had evidence of his English at the time he lodged his application and denied him the chance to postpone his hearing. He submitted that the decision of the tribunal to refuse his request for review was "basically because there was no fresh English test". As I have already explained, that was not the basis of the tribunal's decision. I will deal shortly with the complaint about the tribunal's refusal to postpone the hearing. 17 Third, the appellant expressed the hope that I would accept that his English language is competent based on his notice of appeal, the written submission and the following information: I do believe that I am competent in English as I spoke before her Honour Emmett and I am speaking before you and I have completed English language test and I studied English in my country and since my arrival in Australia I worked with Australian company and worked with Australian speaking people and I have never had any problems with the English language. 18 The difficulty with these submissions is that they proceed on the false assumption that competence in English is for this Court to assess, based on a lay appreciation of the meaning of the expression and regardless of the statutory definition. It is simply not open to the Court to do this. 19 Fourth, the appellant submitted that the law as it obtained at the time of his application should not apply to him. He said he provided to the tribunal an explanation and a booking for the English test and that the English test was cancelled because he understood that the tribunal wanted the English test before lodging his application and not after. He submitted that there was something wrong with the law and this law should not be accepted by any court because it deprives the person of natural justice. The difficulty for the appellant, however, is that the Court is bound by the law. 20 The appellant ended his submission by pleading for the Court's assistance, and in the event that a decision could not be made in his favour, urging the Court to recommend to the Department and to the Minister that he be granted a visa because he was well-adjusted in Australia, he was a taxpayer, he had a very good position with an Australian company as a customer service manager, and he did his duties without any English language problems. 21 Once again, and no matter how much sympathy the Court might have for a person in the appellant's position, the Court is bound by the law, and so, too, the Minister. 22 Neither this Court nor the Federal Circuit Court has the power to remedy any discrimination or unfairness in the Regulations. These are matters exclusively for the Parliament and the Executive. As the tribunal's decision is a "privative clause decision" within the meaning of s 474 of the Migration Act, the only way it could be set aside is if the appellant can show that the tribunal fell into jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge made this clear in her reasons for judgment. It is not a jurisdictional error to apply the terms of the Regulations. Nor was it a jurisdictional error for the tribunal to decline to exercise its discretion to adjourn the hearing or defer its decision until the results of the scheduled test were known. While the tribunal must exercise reasonably its power to adjourn the hearing of a review, there is nothing unreasonable about its decision not to invoke it in this case. It was not a decision lacking "an evident and intelligible justification": Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ). Nor could it be said to have been a denial of procedural fairness. To the contrary, it would have been futile for the tribunal to defer the decision because the results of the scheduled test were irrelevant to its review. They were irrelevant because the definition of "competent English" which the appellant had to satisfy required that the prescribed test results be obtained in the two years before the application, not after the application had been made. In contrast to the situation which presented itself in Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1, the tribunal's decision record indicates that the appellant's request for an adjournment was considered by reference to the reason for the request. 23 As the Minister submitted, the appellant may reasonably believe his English is competent in the lay sense, but "competent English" is a defined term and the appellant does not satisfy the definition. 24 There is no reason to conclude that the appellant was treated unfairly or unjustly by either the tribunal or the court below. As the Minister submitted, it was not open to the tribunal or the court to engage in its own subjective assessment of the appellant's competence in English. If the appellant did not satisfy the statutory definition, he was bound to fail. 25 The orders of the Court will therefore be that the appeal be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.