Haroon v Minister for Immigration and Citizenship [2025] FedCFamC2G 983

1. This is an application for judicial review of a decision of the (then) Administrative Appeals Tribunal (the Tribunal) dated 15 March 2019, affirming a decision of a delegate of the First Respondent (the delegate) refusing to grant the applicant a Temporary Graduate (Class VC) (Subclass 485) visa (the visa).
2. For the reasons set out below, the applicant must be dismissed.

1. The applicant is a citizen of Pakistan.
2. On 28 December 2017, the applicant applied for the visa. The applicant submitted an International English Language Testing System (IELTS) test result from a test undertaken on 7 June 2014.
3. On 24 January 2018, the delegate refused to grant the applicant the visa as the delegate found that the applicant had not met cl 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). The applicant had not provided evidence of having undertaken an English language test within the period specified by the Minister in the instrument being within three years of the date of the application for the visa and was not the holder of a specified passport type.
4. On 5 February 2018, the applicant applied to the Tribunal for merits review. On 15 March 2019, the applicant attended a scheduled hearing without his representative. The Tribunal made an oral decision affirming the decision under review.

1. The written reasons of the Tribunal decision are found at page 71 of the Court Book. They comprise of 4 pages and 23 paragraphs.
2. The Tribunal noted that the issue before them was whether the applicant satisfied cl 485.212, which required the visa application to be accompanied by evidence that:
   • the applicant has undertaken a language test specified in an instrument, and has achieved within the period specified in the instrument, the score specified, in accordance with any specified requirements (see clause 485.212(a)); or
   • the applicant holds a passport of a type specified by the Minister in an instrument (see clause 485.212(b)).
3. At [8], the Tribunal found that cl 485.212(b) was not met as there was no evidence that the applicant held a passport of the specified type.
4. The relevant instrument to assess the currency of the English language test was IMMI 15/062. To be successful, the applicant had to meet the requirements of cl 485.212(a).
5. The applicant advised the Tribunal that he had not undertaken an English language test within the three years before the visa application was made.
6. The Tribunal invited the applicant to comment on a question in which he answered "No" on the visa application, which might suggest that he does not meet the visa requirements. The question read:

'Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland to demonstrate that you have met the English language requirement or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?'

1. The applicant explained that he applied to the Tribunal as he believed special circumstances may be taken into account. The applicant finished his master's degree studies on 17 November 2017, and his student visa expired on 31 December 2017. He further explained that:

At that time he was not aware of the three year situation with respect to the currency of the English language test. When lodging his Subclass 485 application he found out about the 36 month period with respect to the validity of the English language test and realised that an earlier test he had undertaken was out of time. He explained to the Tribunal that he had to lodge his Subclass 485 visa application prior to the expiry of his Student visa. Given the compressed timeframes in conjunction with the holiday period, the applicant was not able to book an IELTS test prior to receiving the visa refusal.

1. The applicant understood that his IELTS test was not undertaken within the period specified before the day on which the visa application was made. The applicant requested that any 'problems' with his visa history that might be caused by a visa refusal be removed, as he did not wish to remain in Australia.
2. After the Tribunal requested further evidence from the applicant regarding the Subclass 485 visa refusal decision, the applicant noted that his 'biggest mistake' was not being aware of the exact 36-month time period in which his English language test was valid. The applicant advised the Tribunal that his calculations were wrong, and by the time he realised the mistake, it was too late.
3. Although the applicant provided the delegate with a copy of the IELTS test result, which achieved a score specified in IMMI15/062, it was still invalid.
4. The Tribunal did not have evidence to suggest that the visa application was accompanied by evidence that satisfied cl 485.212(a). It noted that the applicant conceded in his oral evidence that he had not successfully undertaken the necessary English language test within the specified period [19].
5. The applicant did not meet the criteria for the grant of a Subclass 485 visa, and therefore, the decision under review was affirmed.

1. The applicant initially relied upon two grounds of judicial review contained in an Originating Application filed with the Court on 25 March 2019. They are as follows:
   1. The Tribunal failed to take provided evidence into consideration.
   2. The Tribunal failed to follow procedural fairness and decided the application unfairly.
2. In the Affidavit of Qasim Haroon, affirmed on 28 March 2019, which attaches the Tribunal's oral decision outcome, the applicant makes two further submissions. They are as follows:
   1. The application was not decided fairly and procedural fairness was not applied.
   2. The Tribunal failed to take circumstantial evidence and supporting documents provided with the application into consideration.
3. Two days prior to the hearing, and without leave of the Court, the applicant lodged a document which raised four new or amended grounds. The Court understood these new grounds to be those now relied upon by the applicant. The first respondent's legal representative raised no objection as to the applicant being able to rely upon these new grounds, on the basis that they were able to respond to them. Those new grounds are as follows (less particulars):

1. Substantive compliance and the purpose of Clause 485.212

2 . Natural justice and the right to be heard.

1. Disproportionate consequences and equity.
2. No risk to policy objectives or immigration policy.

1. The applicant appeared before the Court unrepresented. The applicant was not assisted by an interpreter. The Court assessed the applicant's English language skills as more than fluent. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and that the first respondent's written submissions had been provided to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing, should he wish to.
2. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken. In particular, the Court explained it was bound by the same law as the Tribunal, and did not have the power to grant the applicant a visa or find special circumstances to justify the granting of the visa sought.
3. In relation to ground one, the applicant told the Court that the issue was related to timing rather than English language competency on his part. The fault was an administrative misstep rather than a material defect, as he is fluent in English. Further, there had been no fraud or misrepresentation.
4. As to ground two, the applicant submitted that his visa refusal suggested procedural rigidity rather than a merits-based assessment. The applicant relied upon Kioa v West [1985] HCA 81; (1985) 159 CLR 550 to submit that the real issues in the matter needed to be addressed.
5. By ground three, the applicant submits that he made a good faith miscalculation, that has had disproportionate consequences, and that equity required a flexible application of technical requirements to prevent a defeat of the spirit of the law.
6. Ground four is a submission that granting the applicant his visa would not undermine the policy objectives or immigration integrity. The applicant had no history of non-compliance, and there was no indication that he did not meet the English language requirement.

1. None of the grounds identify any evidence in which the applicant alleges the Tribunal failed to take into consideration. The Tribunal considered the evidence before it at [9]-[18] of the decision record, applied the relevant statutory framework at [7]-[8] and [21] and made findings that were open to it.
2. The Tribunal complied with its procedural fairness obligations under Division 5, Part 5 of the Migration Act 1958 (Cth) ("the Act"). The Tribunal complied with s 360 and s 360A of the Act by inviting the applicant to attend a hearing and give evidence. The applicant was on notice, following the delegate's decision, of the issue on review. Thus, there is no breach of s 360 apparent in the Tribunal decision.
3. The Tribunal was not required to put any information to the applicant pursuant to s 359A of the Act. The Tribunal relied on written material in the Departmental file and the applicant's oral evidence, which fell within the exceptions at s 359A(4)(ba) and s 359A(4)(b) of the Act. There was no breach of s 359A.
4. As to the new grounds of judicial review, none of them identify any jurisdictional error, rather they seek the Court to undertake impermissible merits review.
5. Further, even if there was an error in the Tribunal decision (which is not admitted), such an error is immaterial. It would be futile to remit this matter in circumstances where the applicant did not meet the requirements of cl 485.212, by not completing the specified English language test in the three years before his visa application. The constituted Tribunal made the only decision open to it on the evidence before it. If the matter is remitted, the Tribunal would be bound to again affirm the delegate's decision for the same reason.

1. This matter involves the applicant's compliance with the English language test requirements in cl 485.212 of the Regulations. It is not disputed that as at the time of the submission of his application for his visa, the applicant did not provide an English language test that had been successfully completed within the last 36 months which that demonstrated the applicant met the English language requirement.
2. The applicant concedes that he was unable to arrange for a further English language test following the completion of his studies, and prior to his then current visa expiring. The Court has no doubt, based upon its assessment of the English language skills of the applicant demonstrated during the course of the hearing, that had the applicant undertaken such a test, he would have passed it quite easily.
3. Unfortunately for the applicant, he did not comply with the mandatory requirement for the grant of the visa he sought, and the delegate had no other option open rather than to refuse the visa.
4. For the same reasons, the Tribunal had no other option open to it other than to affirm the decision under review.
5. As to the four new grounds raised by the applicant in his very latest submissions to the Court, none of them raise any jurisdictional error, rather they simply seek to put forward merits based reasons as to why the applicant should be granted the visa he seeks. Regrettably, the Court is bound by the same law as both the delegate and the Tribunal. The Court cannot substitute its view as to whether or not a visa should have been granted, all the Court can do is to determine whether or not the decision of the Tribunal is lawful.
6. As to the two initial grounds contained within the initiating application, being that the Tribunal failed to take provided evidence into consideration and, failed to follow procedural fairness the underside of the application unfairly, there is no material before the Court which would indicate that the Tribunal failed to follow its own guidelines and the law, or that there was any unfairness in the manner in which it undertook its review. A perusal of the Court Book indicates that the Tribunal discussed with the applicant the issue in the matter, being that he had not complied with the English language test requirements. The Court is satisfied that the applicant was clearly on notice as to what the issue was based on the delegate's decision. The applicant was properly invited to attend a hearing, have the opportunity to give evidence and provide submissions and discuss with the Tribunal the reason why he felt he should be given a visa due to special circumstances. These two initial grounds do not reveal any jurisdictional error.
7. In the Court's view, the matters raised by the applicant in his Affidavit substantially replicate the substance of the grounds of judicial review contained within the initiating application. For the same reasons as set out above, they do not have any merit.
8. The Court also agrees with the submission of the first respondent, that even if jurisdictional error was present, it would be futile to remit the matter back to the Tribunal, as the Tribunal, in the circumstances of this case, would be bound to make the same decision on the basis that the applicant does not meet the requirements for the provision of the current English language test.
9. As the applicant is unrepresented, the court has perused the relevant Court book and the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error.
10. Notwithstanding the fact that the applicant has clear English language fluency, the Court has no option other than to dismiss the application on the basis that no jurisdictional error has been made out.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.