Thlork v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The first and second appellants pay the costs of the first respondent of and incidental to the appeal, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 11 September 2018. His Honour dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had, on 27 September 2017, affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, made on 6 March 2017, to refuse the grant of Temporary Graduate (Class VC, subclass 485) Post-study work visas to the appellants. The Tribunal, and thus the primary judge, incorrectly referred to the visa in question as a Temporary Skilled (Provisional) (Class VC) subclass 485 visa, but nothing turns on that: the relevant criteria were those for subclass 485, specifically cl 485.212 of the Migration Regulations 1994 (Cth). The primary visa applicant was the first appellant, who will be referred to in these reasons as the appellant. 2 The primary judge summarised the salient facts as follows (at [2]-[10]): The first applicant is the review applicant and the second to fourth applicants are members of the family unit. The applicants are citizens of Cambodia. The applicants applied for the visa on 14 January 2017. The criteria for the grant of the visa is specified in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). The primary criteria must be met by one of the applicants. The delegate refused the grant of a visa on 6 March 2017 because the first applicant did not have the required English language proficiency. The first applicant sought a review of the decision and the applicants were represented in review. By letter dated 22 August 2017, the applicants were invited to attend a hearing, which the first and second applicants and the applicants' representative attended on 20 September 2017 to give evidence and present arguments. The Tribunal identified the requirements of Part 485.212 of the Regulations which relevantly provides as follows: 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; or (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph. The Tribunal identified that there was no evidence that the first applicant holds a passport of a type specified under cl 485.212(b) of the Regulations and that, accordingly, the first applicant had to meet the criteria of cl 485.212(a) of the Regulations. The Tribunal referred to the International English Language Testing System ("IELTS") test provided by the applicant to the Department, one undertaken on 23 March 2013 and one undertaken on 3 December 2016. The Tribunal referred to a test undertaken in March 2013, being more than three years before the visa application was made and not within the relevant period, and that in the test taken on 3 December 2016 within the relevant period, the applicant only achieved 4.5 in one of the test components and did not achieve the minimum score required. The applicant provided evidence that he had undertaken an IELTS test on 11 February 2017 and had achieved more than 5 in each test band. At the Tribunal hearing, the Tribunal explained to the applicant the requirements of cl 485.212 of the Regulations. The applicant explained that he had misunderstood what was required. The applicant indicated he had sat for a test and sought to explain why he had not provided a relevant test within the specified period. The applicant said he thought that the Tribunal could find in his favour. There was a suggestion that there were cases that supported an ability to go outside mandatory requirements of cl 485.212 of the Regulations in terms of the language [t]est requirements. No such cases were provided to the Tribunal. [This was apparently intended to be a reference to Berenguel v Minister of Immigration and Citizenship [2010] HCA 8; 264 ALR 417, discussed below]. The Tribunal found that the test results on 11 February 2017 did not mean that the applicant had undertaken the relevant test within the requirements of the period identified in cl 485.212(a) of the Reuglations [sic]. The Tribunal found that the first applicant did not meet the requirements of cl 485.212 of Schedule 2 of the Regulations and affirmed the decision under review. 3 The test period of three years before a visa application is made comes from Legislative Instrument IMMI 15/062 (Specification of English Language Tests, Scores and Passports 2015), which relevantly provided (at [4]) that a specified language test "must have been undertaken within the three years before the day on which the application was made". 4 As may be seen from the above narrative, it seems the appellant ultimately did achieve the necessary English language test score, but in a test taken on 11 February 2017, a month or so after the visa application was made on 14 January 2017, and not, as required, in the three-year period prior to that application being made. The appellant had failed the test taken in December 2016, which was within the required period. An earlier test taken in March 2013 was before that required period. The inability to meet this mandatory visa criterion was the reason why the delegate refused the grant of the visas, why the Tribunal affirmed the delegate's decision, and why the primary judge dismissed the application for judicial review. 5 The primary judge described the submissions made to his Honour as failing to identify any jurisdictional error on the part of the Tribunal, characterising them as seeking impermissible merits review in compassionate circumstances, but also in circumstances in which the mandatory requirements of the Regulations had not been met. His Honour then reproduced the grounds of review and addressed each in turn, albeit briefly. The Minister's written submissions conveniently and accurately summarise both those grounds, and his Honour's findings in relation to them as follows (omitting application book references): Ground one, by which the first appellant (the appellant) contended the Tribunal denied him administrative justice in affirming the delegate's decision, did not identify any relevant error by the Tribunal and the Tribunal had no alternative in the circumstances of the present case but to find that the appellant failed to meet the mandatory criteria for the grant of the visa. Ground two appeared to contend that the law could be shifted to meet the appellant's circumstances, which was simply not the case. The law identified mandatory requirements, which were requirements that the appellant did not meet. Ground three, which contended that the Tribunal ought to have given consideration to the appellant's English competence, did not identify any error. While the Federal Circuit Court accepted that the appellant had improved his knowledge and command of English and was highly intelligent and articulate, this did not mean that he met the mandatory requirements for the visa, and the Tribunal correctly applied those mandatory criteria. Ground four invited merits review by referring to the appellant's achievements. The Federal Circuit Court did not have the power to grant a visa or to remit a matter on compassionate grounds. 6 There is no apparent error in the primary judge's approach, or the conclusion that his Honour reached that the judicial review application had to fail upon the basis of the grounds and arguments that were before him. 7 On 2 October 2018, the appellants filed a notice of appeal dated 27 September 2018, containing the following grounds (verbatim, omitting paragraph numbers): Regulation 485.212 of the Migration Law is not reasonable as it lacks justice for my personal situation, and it is unfair for my extenuating circumstances. Regulation 485.212 lacks reasonable justice for my case. The Immigration Department has overlooked my medical condition. It is the matter of law that is "black and white" and unreasonably rigid rule, without taking into account my real English ability and my extenuating circumstances. Under the medical condition and due to a lot of stress after immediately completing my master's degree in December 2016, the English scores dated 15 December 2016, submitted on 14 January 2017, do not represent my real English ability. The fact is my real English proficiency is not the barrier for me the get the 485 visa. It is the matter of law that strictly and unreasonably bars me from being granted the 485 visa. I hold a Master of Education degree from the University of Canberra at the time of my application for 485 visa. The entire course was conducted in English as are all degrees. Prior to obtaining my master's degree from the University of Canberra, I was an English language instructor for 5 years at the Institute of Foreign Language of the Royal University of Phnom Penh. The AAT denied me administrative justice in that it treated me unfairly by affirming the Department's decision to refuse me the 485 visa. The AAT should have taken into consideration my real English ability, work experience and qualification. Therefore, the fact is my English competence is not an issue. Besides, the AAT should have taken into account that I passed the IELTS undertaken in February 2017 while suffering from the medical condition. When I had the new IELTS test score, dated 23 February 2017, I uploaded my 485 visa application onto my lmmiAccount and also sent through email to the Department. The case officer should have taken into account my circumstances with the new scores before a decision of refusal of my 485 visa application on 6 March 2017. Other than the provision of the review rights, the case officer failed to provide me other options in the refusal letter with the best of his knowledge about the Migration Law in relation to the 485 visa application. My family is now very disturbed. I was requested to pay full international school fees for my kids because we are holding the bridging visa. After the FCC hearing on 11 September 2018, my kids, Kethyakaul Thlork and Kethyaboromey Thlork are at risk of psychological distress. 8 The above grounds are notable in not asserting any error on the part of the primary judge. 9 The appellant filed written submissions in support of the appeal being upheld: (1) asserting medical and related compassionate grounds; (2) asserting that he had attained the necessary test score; and (3) relying upon Berenguel v Minister of Immigration and Citizenship [2010] HCA 8; 264 ALR 417, a case in which it was held that, under the applicable regulation then in force, a decision-maker could have regard to any test results submitted prior to the visa decision being made. 10 Unfortunately for the appellant: (1) the medical and related compassionate grounds cannot be any basis for this appeal succeeding; (2) the English language test that he relies upon was not taken within the time required (it was taken in the last three years, but not in the three years prior to making the visa application, as clearly required); and (3) cl 485.212 of the Regulations was amended following Berenguel, specifically to address the finding in that case by making it a mandatory requirement for the grant of the visa that the test be taken in the three years prior to the visa application being made: see the discussion of cl 485.212 by Judge Driver in Kumar v Minister for Immigration and Border Protection [2017] FCCA 2406 at [15] (and his Honour's observations at [16]-[17]), affirmed on appeal by Robertson J in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24]; see also Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [41], where Mortimer J reached the same conclusion about the test timing requirement in reg 1.15C of the Regulations, which is materially indistinguishable from IMMI 15/062. 11 The appellant made oral submissions at the hearing of the appeal. He said at the outset, and several times after that, that he understood that there was no hope for him in the appeal succeeding, but emphasised how unfair he considered the visa English language test criterion was due to its rigidity. He lamented not being told that his application could never succeed, and in sitting an English language test that could not be taken into account. He regretted taking the path of merits review in the Tribunal and judicial review in the Federal Circuit Court due to neither in fact, as he now understood, giving any prospect of a different result. He appealed to the Court to find some way to help him achieve a just result. He accepted the limitations in what this Court was able to do and repeatedly said that he respected the law and obeyed the law. He wished that the delegate had provided him with other options, such as seeking Ministerial intervention, or making a different or further visa application. 12 The original visa application before the delegate, the merits review application before the Tribunal, and the judicial review application before the primary judge were doomed from the outset due to the inability of the appellant to meet a fixed and inflexible mandatory visa criterion. This appeal therefore could never succeed and must be dismissed. 13 Upon being told that the appeal was to be dismissed, the appellant was asked whether there was any reason why he and his wife, the adult appellants, should not be ordered to pay the Minister's costs. He said that he did not have the money to meet a costs order. Unfortunately, that is not a sufficient reason why costs should not follow the event. The adult appellants must therefore pay the Minister's costs. 14 The orders of the Court are: (1) The appeal be dismissed. (2) The first and second appellants pay the costs of the first respondent of and incidental to the appeal, as agreed or assessed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.