联邦地方法庭的判决:http://www.austlii.edu.au/au/cases/cth/FMCA/2011/304.html
Fu v Minister for Immigration & Anor [2011] FMCA 304 (28 April 2011)
Last Updated: 4 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
FU v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 304
MIGRATION – Categories of visas – skills based visas – criteria for grant – time of application criteria test – English language proficiency – arrangements to undergo language test – language test taken before time of application but results not received – visa criterion not satisfied.
Migration Act 1958 (Cth), s.65
Migration Regulations 1994, Sch. 2, cll.485.215(a), 485.215(b), 4895.215(c)
Minister for Immigration and Citizenship v Grant [2009] FCA 1059; (2009) 180 FCR 179
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251
Applicant: SHEN JIE FU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: BRG 962 of 2009
Judgment of: Jarrett FM
Hearing date: 10 June 2010
Date of Last Submission: 10 June 2010
Delivered at: Brisbane
Delivered on: 28 April 2011
REPRESENTATION
Counsel for the Applicant: Mr Boccabella
Solicitors for the Applicant: A J Torbey & Associates
Counsel for the Respondents: Mr Bickford
Solicitors for the Respondents: Clayton Utz
ORDERS
(1) The application filed on 16 December, 2009 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $5,865.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE
BRG 962 of 2009
SHEN JIE FU
Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
At the time that Mr Fu applied for a Class VC, sub-class 485 Skilled – Graduate visa cl.485.215 of the Migration Regulations 1994 specified certain criteria that needed to be satisfied at the time of making the application for the visa. Relevantly, Mr Fu’s application needed to be accompanied by evidence that he had made arrangements to undergo a certain language test as specified in the Regulations.
Mr Fu sat the relevant language test a few days before he lodged his visa application. He did not have the results of his test at that point, but his application was accompanied by evidence that he had sat the test and was awaiting the results.
Mr Fu’s visa was refused by the Minister’s delegate in the first instance for reasons that I have set out below. On review by a migration review tribunal, the delegate’s decision was affirmed, although for different reasons. The gravamen of the Tribunal’s decision was that the phrase “has made arrangements to undergo a language test” where it appears in the relevant criterion does not contemplate a situation where the visa applicant had sat the relevant test before the visa application was lodged but was awaiting the results at the time of making the application. According to the Tribunal’s reasons, the relevant criterion could only be satisfied if the application was accompanied by evidence that arrangements had been made to sit the test after the application was submitted.
In this application for the issue of constitutional writs, Mr Fu argues that the Tribunal’s interpretation of cl.485.215 of the Regulations is wrong and by misinterpreting the Regulations the Tribunal committed jurisdictional error. He concedes that unless he can demonstrate jurisdictional error by the Tribunal, this application must fail.
Although the outcome might be surprising, I am against Mr Fu’s argument. For the reasons set out below, in my view the Tribunal has made no error.
The Statutory Scheme
The Minister may grant a non-citizen permission (a visa) to travel to and enter Australia or to remain in Australia (or both): Division 3 of the Migration Act 1958 and particularly s.29 of the Act.
Classes of visa are prescribed by the Regulations and the criteria that must be satisfied for each class of visa are also specified. Some criteria must be satisfied at the time the application for the visa is made. Other criteria must be satisfied at the time the decision is made about the visa application. Section 65 of the Act provides, amongst other things, that if the prescribed criteria for the grant of a visa are satisfied, the Minister is to grant the visa.
For the visa applied for by Mr Fu, a number of criteria are prescribed for satisfaction at the time the application for the visa is made. They are to be found in cl.485.21. At the time that is material to this case, cl.485.215 required that either:
Mr Fu’s nominated skilled occupation was in Major Group IV in the Australian Standard Classification of Occupation, and Mr Fu had vocational English (cl.485.215(a)); or
Mr Fu had competent English (cl.485.215(b)); or
the application was accompanied by evidence that Mr Fu had made arrangements to undergo a language test specified by the Minister in an instrument in writing for the relevant regulation (cl.485.215(b)).
Where cl.485.215(c) applied because the visa application was accompanied by evidence that the visa applicant had made arrangements to undergo a specified language test, the visa applicant must also satisfy cl.485.222 at the time of the decision on the visa application. At the time that is material to this case that clause required that:
Mr Fu’s nominated skilled occupation was in Major Group IV in the Australian Standard Classification of Occupation, and Mr Fu had vocational English; or
Mr Fu had competent English.
Vocational English is defined in reg.1.15B of the Regulations. For sub-class 485 visa applications, reg.1.15B(5) relevantly provides that a person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged:
an International English Language Testing System (IELTS) test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or
a score:
specified by the Minister in an instrument in writing for sub-paragraph 1.15B(5); and
in a language test specified by the Minister in the instrument.
Competent English is dealt with in reg.1.15C. If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
has achieved, in a test conducted not more than two years before the day on which the application was lodged:
an IELTS test score of at least 6 for each of the 4 test components for speaking, reading, writing and listening; or
a score
A. specified by the Minister in an instrument in writing for sub-subparagraph 1.15C(a)(ii); and
B. in a language test specified by the Minister in the instrument; or
holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Thus, the scheme established by the Act at the relevant time required that Mr Fu show that:
he had competent English or vocational English (whichever was appropriate to his circumstances) at the time he applied for the visa; or
at the time he applied for the visa, arrangements were in place to sit the relevant test; and if so
at the time the application was determined, Mr Fu had either competent English or vocational English (whichever was appropriate to his circumstances).
The policy behind these regulations, as Mr Fu submits, seems to be to ensure that if visa applicants do not meet the relevant language requirements when the visa is applied for arrangements are in hand so that the language requirements might be met at the time a decision is made on the visa application.
Some Facts
Mr Fu is a Chinese National who holds a valid Chinese passport. He arrived in Australia in August, 2003 as the holder of a student visa. In November 2007 he completed a Certificate III in Hospitality (Patisserie) at an Institute of TAFE.
There is no dispute that to secure his sub-class 485 Skilled Graduate visa Mr Fu needed to satisfy the requirements of cl.485.215(c) of the regulations at the time of his visa application. At the time of his application he had neither vocational English nor competent English for the purposes of the Regulations and so neither ccl.485.215(a) or 485.215(b) applied to him.
On 23 February 2008 Mr Fu sat an IELTS test. Because his nominated skilled occupation fell in Major Group IV in the Australian Standard Classification of Occupation, Mr Fu needed results that qualified him as having vocational English.
On 4 March 2008, but before his language test results became available, he applied for a sub-class 485 Skilled Graduate visa.
The results of the IELTS test were available about eleven days later on 15 March 2008. Mr Fu’s overall score was lower than was necessary to qualify him as having vocational English. Thus, even if he had waited for his test results before making his visa application, he would not have satisfied cl.485.215(a) of the Regulations.
Mr Fu never provided the results of his 23 February test to the person delegated by the Minister to decide his visa application. Instead, he sat another test on 9 August 2008, but the results of that test were insufficient to meet the definition of vocational English.
On 6 October 2008, the delegate refused to grant Mr Fu his sub-class 485 Skilled Graduate visa on the basis that he did not satisfy cl.485.222 – that is, Mr Fu did not have vocational English. Mr Fu sought review of the Delegate’s decision on 30 October 2008.
On 8 November 2008, Mr Fu sat another IELTS test and on 15 January 2009 he was notified that he had scored sufficiently to satisfy the Regulations so that it could be said that he had vocational English.
On 7 October 2009, the Tribunal affirmed the delegate’s decision to refuse the visa.
The Tribunal’s decision
After setting out the relevant statutory requirements, the Tribunal identified that: “The issue in the present case is whether the applicant has provided evidence of the relevant level of English ability for the grant of the visa”.
The Tribunal found:
Mr Fu’s nominated skill occupation was in ASCO Major Group IV;
At the time of making his visa application there was no evidence that Mr Fu had achieved appropriate scores in either an IELTS test or another authorised test;
Mr Fu did not meet the requirements of cl.485.215(a) because he did not have vocational English at the time of his visa application;
Mr Fu did not satisfy cl.485.215(b) because he did not have competent English at the time of his visa application.
The Tribunal then turned attention to cl.485.215(c). Relying upon Minister for Immigration and Citizenship v Grant [2009] FCA 1059; (2009) 180 FCR 179 the Tribunal reject the proposition that Mr Fu could rely upon the IELTS test that he had completed before his visa application as evidence of arrangements to undergo the relevant test. According to the Tribunal at [37]:
“A test undertaken by the applicant prior to the application is not sufficient to meet the requirements in cl.485.215(c) because at the time of the application, there were no longer any arrangements to undergo a test.”
Consideration
Minister for Immigration and Citizenship v Grant presents as an insurmountable hurdle to the success of Mr Fu’s application. Grant is a decision of a single judge sitting as the Full Federal Court determining an appeal from the Federal Magistrates Court.
Grant concerned the proper construction of cl.485.215(c) of the Regulations. In that case, Mr Grant had applied for a skilled migration visa. Before doing so he had undertaken an IELTS test and had received the results. The results were insufficient for it to be said that he had either competent English or vocational English for the purposes of cll.485.215(a) or 485.1215(b) of the Regulations. But Mr Grant argued that he could demonstrate at the time of his visa application that he “has made arrangements to undergo a language test” for the purposes of cl.485.215(c) of the Regulations.
Three possible interpretations of cl.485.215(c) were identified in Grant. They are (as set out at [2] of the judgment in Grant):
(1) The words do not exclude a case where an applicant has arranged and undergone a language test before the making of the application. This is the meaning which Mr Grant advances and which the Federal Magistrates Court accepted. I refer to this as meaning 1.
(2) The words exclude a case where an applicant has arranged and undergone a language test before the making of the application as, in such a case, there is nothing left to “undergo”. This is the meaning which the Minister for Immigration and Citizenship advances. I refer to this as meaning 2.
(3) The words do not exclude a case where an applicant has arranged and undergone a language test before the making of the application provided the results of the test have not also been obtained by that time. This is a meaning which I identified during the course of argument. I refer to this as meaning 3.
The ratio in Grant is that meaning 1 is not the proper construction of cl.485.215(c). In that respect, Jagot J said:
25 When the scheme established by the relevant provisions is construed as a whole in accordance with these requirements, I am satisfied that the construction adopted by the Federal Magistrates Court (that is, meaning 1) cannot stand either as a matter of language or by reference to an inferred legislative intention to avoid consequences that appear irrational or unjust. My reasons are as follows.
26 It is apparent from the structure of cll 485.21 and 485.22 of Sch 2 to the Migration Regulations that they are dealing, respectively, with requirements that must be satisfied at the time of making and deciding an application for the relevant subclass of visa. Both are criteria that must be satisfied in order to empower the Minister to grant a visa in response to a valid application (s 65 of the Migration Act). Accordingly, I do not accept the submissions on behalf of Mr Grant that the criteria to be satisfied at the time of application are merely procedural. The requirements are substantive in the sense that, if not satisfied, the Minister (and thus the Tribunal) is bound to refuse the grant of a visa. Further, it is equally apparent that cll 485.215(c) and 485.222 are linked in the sense that an applicant who relies on cl 485.215(c) to satisfy the criteria at the time of application must also satisfy cl 485.222 to satisfy the criteria at the time of decision.
27 With these propositions in mind it is clear that, if an applicant could not satisfy cl 485.215(a) (as in the present case), the scheme permitted an applicant to satisfy the requirements at the time of application by one of two methods. First, the applicant could establish competent English at the time of application (cl 485.215(b)), in which event no further language requirement would apply at the time of decision. An applicant would do so by arranging to take, taking and obtaining the results of an IELTS test showing the required score for each component before the time of application. Second, the applicant could establish the making of arrangements to undergo a language test (cl 485.215(c)), in which event the applicant also would have to establish competent English at the time of decision (cl 485.222).
28 In this context the words “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test” are directed towards an outcome contemplated by cl 485.222, being proof that an applicant has “competent English”. The purpose of the provision, to enable an applicant to demonstrate competent English at the time of application or of decision, is best achieved by giving the words their ordinary meaning. The ordinary meaning of the phrase “has made arrangements to undergo” involves two key aspects. First, the arrangements must have been made, in the sense of being in place or in existence, when the application is made. Second, the arrangements must be to undergo, in the sense of to take or to sit for, a test.
29 Accordingly, I do not accept Mr Grant’s submission that the function of cl 485.215(c) is simply to define the category of persons to whom cl 485.22 applies. The function of cl 485.215(c) is to identify a requirement that must be satisfied at the time of application because the clause is one of the prescribed criteria for this class of visa.
30 In the present case, it may be accepted that Mr Grant had to make arrangements before he sat the IELTS test for which he received the result on 16 August 2007. The result of the test was that he did not have competent English when he made the application on 24 September 2007. I do not accept that these circumstances satisfied the criteria necessary at the time of application as set out in cl 485.215(c) of Sch 2 of the Migration Regulations. The circumstances do not establish “evidence that the applicant has made arrangements to undergo a language test”. Accordingly, I do not accept meaning 1.
It is immediately apparent that Grant is distinguishable on its facts from Mr Fu’s case. Whereas Mr Grant had sat his test and received the results before his visa application was made, Mr Fu had only sat the test – he had not received his results at the time of making his visa application. Thus, Mr Fu’s case requires a determination as to whether meaning 2 or meaning 3 identified in Grant is the proper construction of cl.485.215(c). As to that, Jagot J said in Grant:
42 In the present case it is not strictly necessary to decide whether meaning 2 or meaning 3 is to be preferred because Mr Grant is only entitled to a visa if meaning 1 is accepted. Nevertheless, I have concluded that the meaning advanced by the Minister in this appeal, being meaning 2, is to be preferred. That is, an applicant “has made arrangements to undergo a language test” within the meaning of cl 485.215(c) if an applicant has arranged to take, but has not yet taken, the test. This is the natural and ordinary meaning of the words of the provision. It is consistent with the wider context of the statutory scheme, specifically enabling an applicant to satisfy the criteria either by demonstrating competent English at the time of application or, provided the applicant has made the arrangement for a test, at the time of decision. The potential anomaly created by this construction (that an applicant would be better off taking a test after the time of application than before if there was any risk of not obtaining the required result before that time) is answered by the fact that demonstrating the making of the arrangement is not onerous and is largely within an applicant’s control.
I accept the Minister’s submission that the passage just cited is obiter but that I should follow it unless I am satisfied that it is clearly wrong. I am not so satisfied.
Mr Fu’s counsel argued that I should treat that passage and the earlier paragraph 26 (set out above) from Grant with considerable caution following the decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251. In particular my attention was drawn to paragraph 26 of the judgment:
26 Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
(Emphasis added.) Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgment of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
(My emphasis)
Mr Fu argued that the passage emphasised above meant that he could receive his results after making his application and provide them to the Minister who would be bound to take them into account. He further argued that the fact that he could do so demonstrated that Jagot J’s preference for meaning 2 (as identified in Grant) was erroneous because meaning 2 was inconsistent with the above passage from Berenguel. Meaning 3 was to be preferred.
I see no inconsistency however. Clauses 485.215(a) and 485.215(b) differ from cl.485.215(c) in that the relevant visa application does not have to be accompanied by evidence which demonstrates that the criteria are met. Clause 495.215(c) by its terms requires the application to be accompanied by evidence of the relevant arrangements. The relevant regulations considered in Berenguel had no equivalent to cl.485.215(c). Thus, having sat a test and confident of the outcome, an applicant might apply for a visa on the grounds that they meet the relevant English language competency requirements. No evidence of the relevant standard of competence in English need be provided at the time of application. As Berenguel demonstrates, that evidence might be provided after the application has been made – even to the extent of sitting the relevant English test after the day of the application.
The requirements of cl.485.215(c) are altogether different, however. First, cl.485.215(c) requires a visa applicant to submit evidence of the relevant arrangements with the visa application. Second, as Jagot J explains in Grant cl.485.215(c) requires that those arrangements be arrangements which are yet to be carried out. That is to say, the relevant testing is yet to be undertaken. The timing of the receipt of the results is not to the point because it is the performance in the testing that is important, not when the results are received by either the applicant or the Minister.
Conclusion
Mr Fu did not accompany his application for his visa with evidence that he had made arrangements to undertake a relevant English language test. He had already undertaken the relevant test at the time of his application. Unless he claimed that he had either vocational English or competent English for the purposes of cll.485.215(a) or 485.215(b), the test that he took before lodging his application was irrelevant for the purposes of cl.485.215(c). The application must be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 3 May 2011
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