Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-11-21|Before: Mr J, Heerey JJ, Hespe J

Background 5 On 20 June 2017, the Applicant applied for the Visa, attaching a PTE (Pearson Test of English) Academic Test Taker Score Report (sat on 1 March 2017) with an overall score of 49. 6 On 4 August 2017, a delegate of the First Respondent notified the Applicant that the application for the Visa had been refused because the delegate was not satisfied that the Applicant met the English language requirement in cl 485.212 of Sch 2 to the Regulations. 7 On 24 August 2017, the Applicant lodged an application for review with the Tribunal. By letter dated 22 March 2018, the Tribunal invited the Applicant to appear before it to give evidence and present arguments and included information regarding the requirements for English language tests and scores. 8 On 4 April 2018, the Applicant provided the Tribunal with a completed "Response to hearing invitation" form, and an email confirming a PTE Academic appointment on 29 March 2018. 9 On 10 April 2018, the Applicant appeared before the Tribunal (with the assistance of a Punjabi interpreter). At the hearing: (a) the Applicant indicated that she sat another PTE test on 8 April 2018 but was yet to receive her result; (b) the Tribunal indicated that unless the Applicant could get a rescore on the PTE test sat on 1 March 2017, which reflected a mark of 50 or higher, the Tribunal would not be able to make a decision in the Applicant's favour; and (c) the Tribunal granted the Applicant until 12 April 2018 to provide information as to whether she was eligible to have her PTE test of 1 March 2017 remarked. 10 On 12 April 2018, the Tribunal received a letter from the Applicant in which she asserted that she was able to book a "rechecking / rescoring" of her PTE exam, and requesting that the Tribunal provide her with time to obtain that score. 11 On 17 April 2018, the Tribunal requested the Applicant provide it with evidence that the PTE test that was being rescored was the test which was sat on 1 March 2017. 12 On 27 April 2018, the Applicant emailed the Tribunal, confirming PTE could not proceed with reassessing the Applicant's 1 March 2017 test as it was conducted "a considerable amount of time before". 13 By decision dated 30 April 2018, the Tribunal affirmed the decision of the delegate, finding that the Applicant had not satisfied cl 485.212 of Sch 2 to the Regulations. 14 On 21 May 2018, the Applicant filed an application for judicial review with the Circuit Court. 15 On 19 May 2023, the application for judicial review was summarily dismissed by a Judicial Registrar on the basis that cl 485.212 of the Regulations required the Applicant to provide evidence that she achieved a minimum overall result of 50 in a PTE Academic test sat by the Applicant in the three years before the day that the Applicant lodged her application for a Visa. The documents accompanying the Applicant's Visa application evidenced that the Applicant had achieved an overall score of 49 on a PTE Academic test in the three years prior to the Applicant's application for the Visa. The Applicant had not obtained a rescoring of that test and even if she had been able to do so, the delay between the making of the Applicant's Visa application and the provision of the evidence would have meant that the application for the Visa would not have been "accompanied by" evidence of the rescored test. 16 On 9 June 2023, the Applicant filed an application for review of the Judicial Registrar's decision. The Applicant also applied for an extension of time in which to seek that review. 17 On 11 July 2023, the primary judge granted the application for an extension of time but dismissed the application for review of the Judicial Registrar's decision on the basis that the Applicant did not have reasonable prospects of successfully demonstrating that the Tribunal's decision was infected by jurisdictional error.

Proposed grounds of appeal 18 The Applicant's application for leave set out two proposed grounds of appeal: 1. The Federal Circuit and Family Court of Australia failed to find that the Tribunal fell into jurisdictional error in determining without a logical and probative basis that all the appellant's evidence upon which his claim was based was false. 2. The Federal Circuit and Family Court of Australia failed to find that the Tribunal fell into jurisdictional error in misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings. 19 It would not be in the interests of justice to grant leave to rely upon these proposed grounds of appeal. The proposed grounds of appeal do not reflect the reasons of the Tribunal and were not grounds agitated before the primary judge. The Tribunal did not find the Applicant's evidence to be false and did not make adverse credibility findings. 20 The Applicant was self-represented before this Court and appeared with the assistance of an interpreter. At the hearing, the Applicant admitted that she did not satisfy the requirements in the Regulations, but claimed it was the fault of her migration agent. She also requested an adjournment of the hearing to obtain legal advice. 21 The request for an adjournment was refused. This matter has been before the Courts for years and the Applicant has had a long period within which to seek legal advice. Having regard to the reasons why her Visa was refused, an appeal enjoys no reasonable prospects of success. It was not in the interests of the due administration of justice for the hearing to be adjourned.

Regulations 22 At the relevant time, cl 485.212 in Sch 2 of the Regulations set out the criteria for an application for a Subclass 485 Temporary Graduate Visa. That clause relevantly provided: The application was accompanied by evidence that: (a) the applicant: (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; … 23 The relevant instrument was entitled Assistant Minister for Immigration and Border Protection, Specification of English Language Tests, Scores and Passports 2015 (IMMI 15/062, 16 April 2015) (legislative instrument). 24 One of the tests specified for the purposes of cl 485.212(a)(i) was a PTE Academic test. The Tribunal found that the Applicant's application for a Visa was accompanied by evidence that she had undertaken a PTE Academic test. She therefore satisfied the requirement in cl 485.212(a)(i). 25 The scores specified in the instrument for a PTE Academic test for the purposes of cl 485.212(a)(ii) of the Regulations were: Minimum Overall Score Minimum Scores for English Components Listening Reading Speaking Writing 50 36 36 36 36

26 The Tribunal found that the Applicant did not satisfy the scores requirement in cl 485.212(a)(ii) because her application for a Visa was not accompanied by evidence that she had obtained a minimum overall score on a PTE Academic test of 50 even though she satisfied the minimum scores for each of the English Components. 27 The legislative instrument specified that a PTE Academic test must have been undertaken within the three years before the day on which the Visa application was made. As the Applicant made her Visa application on 20 June 2017, the relevant PTE Academic test was the one she sat on 1 March 2017. Any test sat by the Applicant after 19 June 2017 was not relevant. 28 The Applicant did not obtain a rescoring of the PTE Academic test she sat on 1 March 2017. It is unnecessary to decide for the purposes of this application whether evidence of a rescored test obtained at the time of the Tribunal's invitation at the hearing of 10 April 2018 could satisfy the temporal requirement in the Regulations that the application for a Visa be accompanied by evidence that the Applicant had achieved the requisite score. The observations of Katzmann J in Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562 at [27] that the words "accompanied by" may admit of "some flexibility or elasticity" but not be so elastic as to stretch the language "so far that it snaps" are noted, as are the observations of the Full Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [14] (Tracey J; Charlesworth and Derrington JJ agreeing) that the stretching of the concept embodied in the word "accompanied" "may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted".

Fault 29 The Applicant correctly conceded at the hearing that she did not satisfy the requirements in cl 485.212(a)(ii) but asserted that her failure to do was the fault of her migration agent. 30 Questions of fault are not relevant. As the Full Court observed in Khan at [15] (per Tracey J; Charlesworth and Derrington JJ concurring) in respect of "time of application" criteria conditioning the grant of a skills visa (and which are equally apposite to the criteria conditioning the grant of a graduate student visa) (emphasis added): The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not. 31 As I am satisfied that the Applicant has no reasonable prospects of establishing that her application for her Visa satisfied the requirements in cl 485.212 in Sch 2 of the Regulations, I am satisfied that leave to appeal should be refused. 32 The Applicant should pay the costs of the First Respondent, to be taxed if not agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.

Applicable principles 2 The principles applicable to an application for leave to appeal from an interlocutory decision are well established. In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-400 (Sheppard, Burchett and Heerey JJ). The discretion to grant leave to appeal is not constrained by rigid rules: Decor at 399 (Sheppard, Burchett and Heerey JJ). 3 Having regard to the consequences to the Applicant should the decision of the primary judge be wrong, the issue in this case is whether in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered. 4 For the reasons set out below, the interlocutory decision is not attended with sufficient doubt to warrant reconsideration and therefore leave to appeal should be refused.

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