Mohamed Farook v Minister for Immigration and Border Protection

THE LEGISLATIVE FRAMEWORK 8 Section 45 of the Act provides that a non-citizen seeking a visa must apply for a visa of a particular "class". Section 31 authorises regulations to prescribe particular classes of visas. 9 Section 47 of the Act provides that the Minister is to consider a valid application for a visa but must not consider an application that is not a valid application. 10 Section 46(1) of the Act relevantly provides: Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it satisfies the criteria and requirements prescribed under this section; and (ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and (c) any fees payable in respect of it under the regulations have been paid; … (Emphasis added.) 11 Section 46(3) authorises regulations to prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Section 46(4) provides that, without limiting subs (3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application. 12 Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister must grant the visa if satisfied: (a) that the criteria for it have been satisfied and the grant of the visa is not otherwise prevented; and (b) any amount of visa application charge payable has been paid. If not so satisfied the Minister is to refuse to grant the visa. 13 The regulations (Item 1229 of Schedule 1) prescribe the SPVC visa as a class of visa. Item 1229(10) of Schedule 1 prescribes two subclasses, namely: (a) subclass 485 (Skilled - Graduate); and (b) subclass 487 (Skilled - Regional Sponsored). 14 Item 1229(2) of Schedule 1 of the regulations prescribes the following visa application charges for each subclass: (a) First instalment (payable at the time application is made): (i) In the case of an applicant seeking to satisfy the criteria for the grant of a [subclass 485 visa]: $230; (ii) In the case of an applicant seeking to satisfy the criteria for the grant of a [subclass 487 visa], and who is the holder of: (A) a Skilled-Independent Regional (Provisional) (Class UX) visa; or (B) a Skilled-Designated Area-sponsored (Provisional) (Class UZ) visa; or (C) a Subclass 475 (Skilled-Regional Sponsored) visa; or (D) a [subclass 487 visa]: $230 (iii) In any other case: $2,525. 15 The regulations prescribe different criteria for each subclass. Part 485 of Schedule 2 to the regulations sets out the criteria to be met for the grant of a subclass 485 visa. Clause 485.215 provides: Either: (a) the applicant's nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or (b) the applicant has competent English. 16 At the time of the appellant's application reg 1.15C of the regulations provided that a visa applicant has "competent English" if the visa applicant satisfies the Minister that he or she: … (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged: (i) an IELTS 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-paragraph; 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. 17 It is common ground that the appellant did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand or Ireland as specified by the Minister in instrument IMMI 09/073, under reg 1.15C(b). 18 There is an issue as to the operation of the instruments made by the Minister pursuant to reg 1.15C. I see the issue as academic because it is uncontentious that the only English proficiency tests which the appellant undertook were IELTS tests. Therefore, any other English proficiency tests (or scores in such tests) specified by the Minister are not relevant in the present case. However, because the appellant seems to raise this point it is necessary to set out the history in relation to the instruments. 19 The following instruments have been made by the Minister under reg 1.15C: (a) IMMI 09/073 which commenced on 1 July 2009; (b) IMMI 11/036 which commenced on 1 July 2011 and revoked IMMI 09/073; and (c) IMMI 12/018 which commenced on 1 July 2012, revoked IMMI 11/036 and specified requirements for visa applications lodged before that commencement date, as well as different requirements for visa applications lodged after that date. 20 Regulation 1.15C(a)(i) (see [16] above) did not require an instrument to specify the English proficiency standard as the regulation itself required that an applicant achieve a score of at least 6 in each of the four components of an IELTS test. IMMI 09/073 did though specify the required score under another test, the Occupational English Language Test ("OEL test"), and required a score of at least "B" in each of the four components of that test. 21 Regulation 1.15C was later amended. As at 26 March 2012 it did not specify the IELTS test and instead required that a visa applicant: … (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. … 22 IMMI 12/018 commenced on 1 July 2012, but it applies to visa applications lodged both before and after that date. It specifies two types of tests, namely the IELTS and OEL tests, under subparagraph (a)(i) of reg 1.15C. It also specifies the necessary scores under (a)(iii) of that regulation being: (a) an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening; or (b) an OEL test score of at least "B" in the four test components. As the later instrument, and having expressly been given retrospective effect, it is clear that when the Tribunal determined the appellant's visa application IMMI 12/018 was the applicable instrument and not IMMI 09/073. 23 However, there is a mismatch between the relevant paragraph numbers in the version of reg 1.15C in place when the Tribunal decided the appellant's case on 30 June 2011, and the relevant paragraph numbers in the version of reg 1.15C at the time the appellant made his application. This mismatch is apparent in the earlier version of the regulation because: (a) subparagraph (a) did not require the Minister to make an instrument to specify the applicable English proficiency test or the necessary score to be achieved. The regulation itself specified an IELTS test and specified a score of at least 6 in each of the four test components; (b) the earlier version of reg 1.15C did not contain a subparagraph (a)(iii). In my view the terms of IMMI 12/018 plainly refer to the version of reg 1.15C in place in July 2012, rather than the version in place when the appellant lodged his application. 24 I accept the Minister's contention that (insofar as it refers to the earlier version of reg 1.15C) IMMI 12/018 should be taken to be a reference to subparagraphs (a)(ii)(A) and (B), rather than subparagraphs (a)(i) and (iii). The "slip rule" of statutory interpretation is applicable: Lindner v Wright (1976) 14 ALR 105 at 109-111; Envy Trading v Queensland [1998] 1 Qd R 413 at 417 per Davies JA and Mackenzie J, McPherson JA agreeing; A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd (2005) 194 FLR 32 at [13]-[17]; Dome Resources NL and Another v Silver and Another (2008) 72 NSWLR 693 at [31]-[32] per Basten and Bell JJA, Beazley JA agreeing.

THE DELEGATE'S DECISION 25 On 21 December 2010 the Minister's delegate refused to grant the appellant a SPVC visa. In summary the delegate refused the visa because: (a) pursuant to cl 485.215(a) of Schedule 2 of the regulations, the appellant's nominated skilled occupation as a "Welfare Worker" did not fall within Major Group IV in the Australian Standard Classification of Occupations and he therefore needed a higher level of English proficiency than "vocational English"; and (b) pursuant to reg 1.15C, the appellant had not achieved an IELTS test score of at least 6 in each of the four test components. 26 Although the appellant made no application for a Skilled (Regional-Sponsored) subclass 487 visa the delegate also assessed a claim for that visa. The criteria to be met for a grant of a subclass 487 visa is found in cl 487.213 of Schedule 2 of the regulations which require that the applicant must be nominated by a State or Territory government agency, and be sponsored by an eligible Australian or New Zealand citizen resident in a designated area of Australia. The appellant did not put forward any information to indicate that he had been so nominated or sponsored. 27 Accordingly, the delegate found that the appellant did not meet the legal requirements for the grant of a visa in either of the relevant subclasses, and refused to grant him a SPVC visa.

THE MIGRATION REVIEW TRIBUNAL DECISION 28 On 23 December 2010 the appellant applied to the Tribunal to review the delegate's decision. On 30 June 2011 the Tribunal decided the application on the basis that there was no evidence that the appellant had achieved a rating of "competent English". However, on 19 April 2012 the Tribunal's decision was set aside by a consent order of this Court. The order was made on procedural fairness grounds centred on the asserted inability of the appellant to attend the hearing. The matter was remitted to the Tribunal to be reheard. 29 Accordingly, by letter dated 22 June 2012 the Tribunal invited the appellant to a hearing fixed for 17 July 2012 and invited him to provide evidence that he met the regulatory requirement for "competent English". 30 By letter dated 5 July 2012 the appellant advised that he would attend the hearing and that he had arranged for a further IELTS test on 21 July 2012, the results of which would be published on 6 August 2012. 31 In Berenguel the High Court, per French CJ, Gummow and Crennan JJ, held that the English language proficiency requirement in cl 885.213 of the regulations could be satisfied by a test taken after the visa application had been made. Clause 485.215 is expressed in identical terms to this provision and the same reasoning must apply. As a result it is sufficient for the appellant to meet the "competent English" standard at the time his visa application is determined. 32 The Tribunal hearing proceeded on 17 July 2012. The central issue was whether the appellant could satisfy the Tribunal that he had "competent English" as required. At the hearing the appellant requested the Tribunal to delay its decision until after the results from his forthcoming IELTS test were published. The Tribunal agreed to do so. 33 The Tribunal found (at [7]) that the appellant was making an application for the grant of a subclass 485 visa and, implicitly, that he was not making an application for a subclass 487 visa. 34 The Tribunal affirmed the delegate's decision to refuse a visa and noted that: (a) the appellant's nominated occupation of "Welfare Worker" was not in Major Group IV in the Australian Standard Classification of Occupations which meant that the lower "vocational English" standard in cl 485.215(a) did not apply; (b) there was no evidence that the appellant met the "competent English" standard under reg 1.15C. The Tribunal made this finding both in relation to the IELTS test and the OEL test; and (c) there was no evidence that the appellant held a passport from one of the English-speaking countries specified by the Minister for the purposes of reg 1.15C(b). 35 Although the appellant had not made an application for a subclass 487 visa the Tribunal noted the delegate's finding that the appellant did not satisfy cl 487.213 because he had not been nominated by a State or Territory government agency or sponsored by an eligible family member. 36 The Tribunal approached the issue of the subclass 487 visa on a different basis. It determined that the appellant had not made a valid application for a subclass 487 visa because he had not paid the requisite $2,525 visa application charge under Item 1229 of the regulations. 37 The Tribunal affirmed the delegate's refusal to grant the appellant a SPVC visa.

THE APPEAL TO THE FEDERAL CIRCUIT COURT 38 On 11 September 2012 the appellant sought judicial review of the Tribunal decision. The application only specified one ground: The Tribunal has denied the Applicant natural justice by its failure to give the Applicant further opportunity to obtain the requisite IELTS score. 39 However, it is apparent from the decision of the Federal Circuit Court that the appellant asserted two further grounds in contentions of fact and law, alleging that the Tribunal was in error: (a) in failing to consider the application for a subclass 487 visa; and (b) in finding that reg 1.15C applied and in its interpretation of Berenguel. 40 I will deal with the approach of the learned primary judge in setting out my view on the appeal to this Court. For present purposes it suffices to note that his Honour found no merit in any of the grounds and he dismissed the application for review.

THE APPEAL TO THIS COURT 41 On 11 June 2014 the appellant filed a Notice of Appeal to this Court, alleging three grounds: The Federal Circuit [sic] judge and the MRT made an error in assuming that the appellant applied for a subclass 485 visa and for no other type of visa, little realising that it was the duty of the MRT and the Federal Circuit judge to consider all subclasses of visas in that particular class of visas. The MRT and the Federal Circuit Court judge made an error in their interpretation of [the] "Berenguel" case. Both the MRT and the Federal Circuit [sic] judge erred in the interpretation of the relevant regulation applicable to the appellant at the time of the lodgement of the application which was in October 2009, [sic] Consequently the observations in paragraph 29 of the decision of the learned Judge is [sic] untenable, so [too are] his observations at paragraphs 30 to 33 of his judgment. I now turn to consider the merits of these grounds.

Ground 1 - Did the Tribunal fail to consider the appellant's application for a subclass 487 visa? 42 In my view it is clear that: (a) pursuant to s 45 of the Act, the appellant made an application for a subclass 485 visa; (b) by operation of s 46 of the Act, the appellant had not made a valid application for a subclass 487 visa because he had not paid the visa application charge for such a visa at the time; and (c) by operation of s 47 of the Act, the Tribunal was not to consider the application as an application for a subclass 487 visa. 43 The Tribunal found (at [7]) that the appellant only applied for a subclass 485 visa. There is no challenge to that finding. In my view whether or not a person applies for a particular class or subclass of visa is a question of fact and that is a matter for the Tribunal: see Huynh v Minister for Immigration and Citizenship (2013) 210 FCR 580 at [15] per Nicholas J. That may be said to be the end of the matter as there can be no requirement for the Tribunal to consider an application that has not been made. However, to fully deal with the appellant's contention it is appropriate to go further. 44 I respectfully agree with the learned primary judge when he said (at [16]): The applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa. He did not apply for a subclass 487 Skilled-Regional Sponsored visa. The form he filled in is entitled "General Skilled Migration Applicant Form" and has the further heading "Skilled Graduate (Temporary) (Class VC, subclass 485) at CB1. Further references at CB21, CB35, CB61, CB70, CB78, CB79, CB96 and CB112 make it clear beyond any doubt that what the applicant applied for was a subclass 485 visa and also that he unquestionably never applied for a subclass 487 visa. 45 Notwithstanding that the appellant had not applied for a subclass 487 visa the delegate assessed the application against the criteria for visas in that subclass. I respectfully agree with his Honour's remarks (at [18]-[19]) where he said: The delegate found that the applicant had not met the requirements of subclause 487.213 which effectively required the applicant either to be nominated by a State or Territory government agency and that the applicant meets certain other sponsorship requirements. The delegate's finding was in my view correct… The Tribunal did not however deal with the subclass 487 visa issue by reference to the fact that the appellant did not establish that he was nominated or sponsored as required by cl 487.213. It dealt with this issue by reference to whether the appellant had paid the requisite visa application charge at the time he made his application. 46 The Tribunal concluded that any application for a subclass 487 visa was invalid because the appellant had paid only the $230 subclass 485 visa fee (and not the $2,525 subclass 487 visa fee). I respectfully agree. As the learned primary judge said (at [20]-[21]): … subclass 487 visas attract a far higher lodgement fee. The fee for a subclass 485 visa is $230 and the fee for a subclass 487 such as that not applied for by the applicant is $2,525. It is a requirement of the Regulations that the fee must have been paid at the time of application. 47 In my view the appellant's contention that the Tribunal failed to consider his application for a subclass 487 visa is completely without merit. First, he did not make an application for such a visa. Second, had he made such an application he does not contend that he would have satisfied the requirements for nomination and sponsorship provided in cl 487.213. Third, by operation of ss 46 and 47 of the Act any application he made for a subclass 487 visa was invalid because he did not pay the requisite visa application charge. Further, in fact the Tribunal considered the subclass 487 visa issue, and determined that the appellant had not made a valid application because it not paid the requisite charge. 48 I respectfully agree with the learned primary judge's conclusion (at [23]) where he said: ...both the delegate and the Tribunal's decisions are unimpeachable. The applicant never suggested that his was a subclass 487 application and never addressed, scarcely surprisingly, both the requirement for a nomination from a government agency and/or for sponsorship. Likewise the applicant, who did not apply for a subclass 487 visa, never paid the prescribed fee for it.

Whether the Tribunal was obliged to give notice of the requisite charge payable 49 In a further submission, not made below, the appellant submitted that under s 64(2) of the Act the Tribunal was obliged to give him notice of the amount of the visa application charge payable. This submission is also misconceived. First, it may be doubted that the provision applies to the Tribunal. Section 64 falls within Subdivision AB of Division 3 of the Act and is titled "Code of procedure for dealing fairly, efficiently and quickly with visa applications". It relates to the Minister's obligations of procedural fairness rather than the Tribunal's obligations. Second, and more obviously, even if the provision applies its operation is predicated on the appellant satisfying the other criteria for the visa applied for. The appellant does not contend that he meets the criteria set out in cl 487.213 for a subclass 487 visa. It cannot reasonably be suggested that s 64 obligates either the Minister or the Tribunal to notify the appellant of the requisite fee for a subclass 487 visa when the appellant did not apply for it, and did not meet the criteria for such a visa. 50 This ground of appeal must fail.

Ground 2 - Did the Tribunal err in its "interpretation" of the decision in Berenguel and does reg 1.15C apply? 51 This ground of appeal is difficult to understand. The solicitor for the appellant was unable to offer any cogent explanation as to how the Tribunal erred in its application of Berenguel. His submission seemed to boil down to the argument that because the appellant had obtained an IELTS test score which was only slightly below the "competent English" standard, Berenguel required that the appellant be given time to again undergo the test. There is though nothing in Berenguel to support this proposition. 52 Further, as the learned primary judge said (at [26]-[27]): … the Tribunal did not fail to apply Berenguel. Berenguel is authority as I would understand it for the proposition that notwithstanding the terms of reg. 1.15C an applicant may rely upon an IELTS score achieved after the application is filed but before the decision is reached. In this instance what the Tribunal said was (CB255, paragraph 29): There is no evidence before the Tribunal that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of at least 'B' in each of the 4 test components in an Occupational English Language test, conducted not more than 2 years before the day on which the visa application was lodged (as interpreted in light of Berenguel). That assertion seems to me to be unchallengeable and nothing turns on Berenguel in the circumstances of this case. I respectfully agree. 53 The appellant also appears to contend that reg 1.15C did not apply to the appellant's visa application and that the Tribunal had erred in finding that it did. This contention is also misconceived. Regulation 1.15C was in force at the date of the appellant's visa application. It provides that a visa applicant has "competent English" if the person satisfies the Minister that he or she achieved either: (a) an IELTS score of at least 6 for each of the four components of the test; or (b) a score specified by the Minister under another language proficiency test specified by the Minister. The only language proficiency tests which the appellant undertook were IELTS tests. In four tests he never achieved a score of at least 6 in each of the four test components.

Ground 3 - Did the Tribunal and the primary judge err in relation to the regulation applicable to the appellant at the time his application was lodged? 54 In another variation of his argument the appellant contends that the "competent English" standard did not apply as there was nothing in the visa application form which indicated any requirement for the appellant to meet it. 55 While I accept that the application form is somewhat ambiguous in this regard it is clear from cl 485.215 and reg 1.15C that the criteria for a subclass 485 visa includes "competent English". The fact that the form is somewhat deficient cannot be determinative. Further, in the present case there can be no question that the appellant understood the requirement for "competent English". He stated (incorrectly) in his initial application that his English language ability was "competent" based on an IELTS test he undertook on 28 August 2009. Finally, I note that the delegate informed the appellant in writing on 1 November 2010 that his IELTS test did not meet the "competent English" criteria and invited him to submit a further test result. 56 Next, the appellant appears to submit that instrument IMMI 12/018 did not apply to a SPVC visa and there was therefore no requirement to meet the "competent English" criteria. This contention appears to be based in an argument that the Tribunal's error in referring to the instrument IMMI 09/073 rather than IMMI 12/018 constitutes jurisdictional error. 57 I do not accept this. The Tribunal did not identify the wrong issue or ask itself the wrong question. It correctly asked whether it was satisfied that the appellant had achieved either: (a) an IELTS test score of at least 6 for each of the four test components; or (b) a score of at least "B" in each of the four components of an OEL test. It erred only in identifying IMMI 09/173 as the source of the question. As I have said, the appellant failed on the first limb of this question and the appellant did not assert that he had ever sat an OEL test. In my view the Tribunal's error is immaterial and does not constitute jurisdictional error: see Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [7]-[14] per Jagot J. 58 This ground too must fail.

CONCLUSION 59 For the reasons I have set out the appeal must be dismissed. I will order that the appellant pay the first respondent's costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.