FEDERAL CIRCUIT COURT OF AUSTRALIA
KHAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR	[2014] FCCA 2489	

Catchwords: 
MIGRATION – Skilled (Provisional) visa – application to review decision of Migration Review Tribunal – whether Tribunal erred in its consideration of whether the Applicant had competent English – no jurisdictional error.	

Legislation:
Migration Act 1958 (Cth), s.476
Migration Amendment Regulations 2012 (Cth)
Migration Amendment Regulations 2012 (No. 2) (Cth)
Migration Amendment Regulations 2011 (No. 3) (Cth)  
Migration Regulations 1994 (Cth), reg.1.15C	

Berenguel v Minister for Immigration and Citizenship (2010) 144 ALD 1; [2010] HCA 8
Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2014] FCA 486
Singh v Minister for Immigration and Border Protection [2014] FCA 185	

Applicant:	Majid Khan	

First Respondent:	Minister for Immigration AND BORDER PROTECTION	

Second Respondent:	Migration Review Tribunal	

File Number:	SYG 2246 of 2013	

Judgment of:	Judge Barnes	

Hearing date:	15 October 2014	

Delivered at:	Sydney	

Delivered on:	15 October 2014	

REPRESENTATION
Applicant:	In person	

Solicitors for the Respondents:	Clayton Utz, Lawyers	

ORDERS
(1)	The application is dismissed.
(2)	The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.  

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT Sydney	
SYG 2246 of 2013
Majid Khan	
Applicant

And

Minister for Immigration AND BORDER PROTECTION	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Revised from transcript)
1.	This is an application for review of a decision of the Migration Review Tribunal dated 29 August 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa.  
2.	The Applicant, a citizen of Pakistan, came to Australia to study.  On 28 September 2012 he lodged an application for a Class VC (Subclass 485) visa.  On 15 April 2013 a delegate of the Minister refused his application on the basis that he had not satisfied the criterion for competent English required under cl.485.215 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and as defined in reg.1.15C.  The delegate pointed out that the Applicant had not provided evidence that he had competent English with his visa application and had answered “no” to the question as to whether he had undertaken an English language test within the 36 months before his visa application.
3.	The Applicant sought review by application lodged with the Tribunal on 18 April 2013.  In an undated submission he provided evidence and information relating to his study and the assessment of his qualifications.  He explained that he completed his degree on 20 September 2012, that his visa was to expire on 20 September 2012 but that due to financial difficulties faced by his sponsor and a lack of funds he had been unable to apply for a new visa or an IELTS test immediately.  The Applicant said that he booked an IELTS test before applying for a new visa.  He expressed concern about the fact that the delegate had not asked him for any further documents before making a decision.  Included in the documents provided to the Tribunal was a copy of the Applicant’s IELTS test results for a test conducted on 8 December 2012 in which he achieved a score of six or more in each of the four test components.  The Applicant was invited to, and attended, a Tribunal hearing.  
4.	In its decision the Tribunal found on the information before it that the Applicant did not have competent English as he had not met the requirements of reg.1.15C and hence that he did not satisfy the criterion in cl.485.215.  In making this finding the Tribunal had regard to the fact that reg.1.15C provided that a person has competent English if he or she undertook a specified language test conducted in the three years immediately before the day on which the application was made and achieved a score identified in the instrument that the Minister specified for the purposes of reg.1.15C.  
5.	The Tribunal acknowledged that in legislative instrument IMMI12/018 the Minister specified two language tests and scores for reg.1.15C (including an IELTS test with a score of at least six for each of the four components).  However, it had regard to the fact that, as the Applicant had conceded in his visa application form, he had not undertaken an IELTS test in the 36 months before the visa application.  The Tribunal addressed the Applicant’s oral evidence at the hearing that he had undertaken a test in 2008, but found that as this was more than three years immediately before the visa application it did not meet the requirements of reg.1.15C(1).  The Tribunal also acknowledged that the Applicant had provided it with the results of an IELTS test conducted on 8 December 2012 in which he had achieved a score of six or more in each of the four test components, but found that as this test was conducted after the visa application was made the Applicant could not meet the requirements of reg.1.15C(1)(b) on the basis of this test.  
6.	The Tribunal concluded that the Applicant had not undertaken a language test in the relevant period and thus that he did not have competent English within reg.1.15C(1).  Nor did he meet the alternative definition of competent English in reg.1.15C(2).  
7.	The Tribunal summarised the issues that the Applicant had raised in submissions.  It recorded that he had asked the Tribunal to consider his circumstances.  However the Tribunal found that it did not have any power to exercise a discretion in relation to this requirement and that it could only find that the Applicant had competent English if he provided evidence that met the requirements of reg.1.15C.  The Tribunal affirmed the decision not to grant the Applicant a Class VC visa.
8.	The Applicant sought review by application filed in this Court on 23 September 2013.  There are three grounds in the application.  The Applicant did not file written submissions, but made oral submissions today.  It is convenient to deal first with his oral submissions.
9.	It emerged that in some respects the Applicant took issue with the decision and procedures of the delegate, rather than those of the Tribunal.  For example, the Applicant complained about the fact that the delegate did not ask him for further information or to attend an interview before making a decision in circumstances where he had obtained an IELTS test result some three months after he lodged his visa application (but before the delegate’s decision was made).  However, this Court has no jurisdiction in relation to the delegate’s decision (see s.476 of the Migration Act 1958 (Cth)) and this complaint does not establish jurisdictional error on the part of the Tribunal.  It is the Tribunal decision that is the subject of these proceedings.  Similarly, the Applicant’s concern that the delegate did not have regard to his circumstances does not establish jurisdictional error on the part of the Tribunal.  
10.	The Applicant also raised a more general concern, both in his application and in oral submissions, about his lack of knowledge and lack of legal assistance at the time that he applied for the visa.  He claimed that he did not have any “clear indication” about “the IELTS law”.  Insofar as this is intended to be a claim that the Applicant was not aware of the requirement in reg.1.15C that the test be conducted in the three years immediately before the date of the visa application, even if the Applicant did not understand or was not fully aware of this requirement, while his disappointment is understandable it does not establish jurisdictional error on the part of the Tribunal.  The requirements of reg.1.15C are expressed in mandatory terms and make no provision for the exercise of discretion on the part of the decision-maker.
11.	Insofar as the Applicant raised a concern about whether the Tribunal applied the correct law, in relation to the timing of the IELTS test and the relevance of his circumstances, the visa application in issue was lodged on 28 September 2012.  As the Tribunal found, IMMI 12/018 was the instrument applicable to applications made after 1 July 2012.  By that instrument the Minister specified two English language tests, including an IELTS test (with a score of at least six for each of the four test components) for the purposes of subparagraph (1) of reg.1.15C.  
12.	The Minister also specified for the purposes of reg.1.15C(2) various passports which if held by an applicant meant that that person satisfied the requirement of competent English.  However, the Tribunal found that the Applicant did not hold a passport of a type specified by the Minister in that instrument.  The only evidence before the Tribunal was that the Applicant held a Pakistani passport.  There is no suggestion that the Tribunal erred in its consideration of that criterion.  
13.	One of the criteria for the visa in question was that the Applicant have competent English.  That concept is defined in reg.1.15C.  Regulation 1.15C(1) in the form applicable at the time of the Applicant’s visa application required that the visa applicant had undertaken a language test conducted in the three years immediately before the date of the application and had achieved a score specified in the applicable instrument.  There was no evidence before the Tribunal of a test conducted in that period.  
14.	In written submissions, the First Respondent referred to the approach taken by the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (in relation to an earlier English language requirement).  I do not accept that the earlier requirement in question could be described as “similar” to the form of reg.1.15C in issue in this instance, as the Minister submitted.  As the High Court found, the requirement it considered was such that an applicant was entitled to obtain and submit evidence of competent English at any time after the time of the Tribunal decision.  However, reg.1.15C was amended in mid-2011 and then again in mid-2012.  The first of these amendments provided that an applicant must relevantly satisfy the Minister that he or she undertook a specified English language test conducted in the two years immediately before the day of the visa application (see Migration Amendment Regulations 2011 (No. 3) (Cth)).  Regulation 1.15C was amended again by Migration Amendment Regulations 2012 (No. 2) (Cth).  The amended regulation extended the application of reg.1.15C to all visa applicants (not only applicants for general skilled migration visas) and, relevantly, provided that the visa applicant must have achieved the specified score in a specified test in the three years before the time of application.  
15.	Insofar as the Applicant’s complaint is that the Tribunal erred in finding that he had to have undertaken an IELTS test in the three years immediately before the visa application was made to meet the competent English requirement in the applicable version of reg.1.15C, such contention is not made out.  As discussed below, the 2011 and 2012 amendments to reg.1.15C materially changed the operation of the provision considered in Berenguel.  
16.	I note first that while the Minister submitted that the contention that the “applicable” version of reg.1.15C could not be met by an IELTS test undertaken after the date on which the visa application was made was supported by “a wealth of judicial authority”, the three decisions of this Court cited in written submissions related to the 2011 version of reg.1.15C and the written submissions made no reference to decisions of the Federal Court, notwithstanding that at least one of the cited decisions  of this Court that had been the subject of appeal to the Federal Court (see Singh v Minister for Immigration and Border Protection (2014) FCA 185).  This Court is bound to follow the authority of the Federal Court.  It would be of more assistance if written submissions referred to such Federal Court authority (as was done in oral submissions).  
17.	In Singh at [11] Barker J expressed the view (albeit in relation to the 2011 version of reg.1.15C) that there was “no real doubt” that the relevant competent English test was that defined in reg.1.15C and that the purpose of the amendment was to clarify the timeframe within which an English language test must have been conducted.  His Honour acknowledged at [13] (as I acknowledge in relation to this Applicant) that perhaps understandably the applicant felt aggrieved that he was judged according to a different test from that which had applied at an earlier time under which a test result achieved after the visa application was lodged could have been taken into account.  However, as stated in Singh, the law plainly was that the new reg.1.15C had to be applied.  
18.	The same may be said in this case in relation to the version of regulation 1.15C introduced by the Migration Amendment Regulations 2012 (Cth).  Moreover, consistent with the approach taken in Singh in relation to the similarly worded 2011 version (except for the fact that it referred to two years before the application rather than three years), the fact that the Applicant “may have since obtained an IELTS test score that meets the regulatory requirements is irrelevant, in circumstances where the Regulations also require … that the score must have been achieved in a test taken “in the two years immediately before the day on which the application was made”” (see Singh at [16]).  
19.	Furthermore, as the solicitor appearing for the First Respondent pointed out in oral submissions, in Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2014] FCA 486 Davies J considered the situation of an applicant who had undertaken an IELTS test after the date of the visa application and had achieved the requisite score.  In effect, that applicant asked the Court to exercise some discretion to waive or modify the requirements in the 2011 version of reg.1.15C.  She explained why she had not undertaken an English test earlier by referring to various personal issues.  
20.	At first instance, this Court had held that “the regulations were clear” and did not “give scope for compassionate factors to be taken into account”, that “the requirement for competent English to be demonstrated in particular ways was mandatory” and that “neither the Court nor the Tribunal had any discretion to waive those requirements” (Sandhu at [6]).  In refusing an application for an extension of time within which to appeal, Davies J found that the Tribunal (and this Court) had been correct to hold that the Regulations required the applicant to have undertaken the English test before making her application and, therefore, that the fact that she had not done so meant she did not satisfy the relevant requirement for the grant of the visa in cl.485.215 of Schedule 2 to the Regulations.  As his Honour pointed out at [12], the applicant’s “reasons for not sitting the exam earlier were not a relevant consideration and the Tribunal did not err in not taking those reasons into account”.  Again, the same may be said in this case.  
21.	Ground one in the application repeats the Applicant’s oral claim that his circumstances and study visa duration were not taken into account by the Tribunal while making its decision.  However the criterion in reg.1.15C is mandatory and prescriptive.  The Tribunal does not have a discretion in relation to application of that criterion.  The Applicant’s circumstances, including the duration of his visa or his reasons for not sitting the IELTS test in the three year period before his visa application, are not relevant considerations in this context.  The Tribunal did not err in failing to take those matters into account in its decision.  The Tribunal was aware of the issues the Applicant raised in that respect, but correctly found that it did not have the power to exercise a discretion in relation to the requirements of reg.1.15C.  Ground one is not made out.  
22.	Ground two is a claim that the Applicant fulfilled all the visa requirements about five months before the “opening of his file” by the Department.  As explained in oral submissions, this ground takes issue with the fact that the Applicant had obtained his IELTS test result in December 2012 but the delegate did not ask for further information before making a decision in April 2013.  As indicated, those events do not establish jurisdictional error on the part of the Tribunal.  Insofar as the Applicant intended to suggest more generally that the Tribunal should have taken into account the IELTS test results from the test conducted on 8 December 2012, that test was conducted after the visa application made on 28 September 2012 and, under the applicable version of reg.1.15C the Tribunal could only take into account the results of an IELTS test undertaken in the three years immediately before the date of the visa application.  
23.	As indicated, consistent with the approach of the Federal Court to the earlier 2011 version of reg.1.15C (which referred to a test undertaken in the two years immediately before the day on which the visa application was made), such a requirement cannot be met by an IELTS test undertaken after the date on which a visa application is made.  There is no basis for a distinction to be drawn between the 2011 version and the 2012 version of reg.1.15C in this respect. No jurisdictional error is established on the basis contended for in ground two of the application.  
24.	Ground three claims the Applicant was representing himself and that he did not find any clear indication about the IELTS law made by the Parliament.  He explained that he was referring to the time he applied for a visa.  As indicated, even if the Applicant was not aware of or did not understand the requirement that he undertake an IELTS test prior to the time of his visa application, that does not establish jurisdictional error on the part of the Tribunal.  
25.	As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.  
26.	The Applicant has been unsuccessful.  There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent.  The First Respondent sought costs in the scale amount of $6,646.  The Applicant sought, appropriately in my view, a reduction of that amount.  This was not a matter of particular complexity.  It was not a matter in which the Applicant’s grounds, as expressed, raised legal issues of complexity.  The Applicant did not file any written submissions and nor did his oral submissions today raise issues of complexity.  Having regard to the nature of this and other similar matters, I am of the view that an appropriate and reasonable amount for costs in the present matter is the sum of $5,000.  
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Barnes 

Associate:  

Date:  29 October 2014