FEDERAL COURT OF AUSTRALIA Nandyala v Minister for Immigration and Border Protection [2014] FCA 815 Citation: Nandyala v Minister for Immigration and Border Protection [2014] FCA 815 Appeal from: Nandyala v Minister for Immigration [2014] FCCA 729 Parties: KISHORE NANDYALA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 406 of 2014 Judge: ROBERTSON J Date of judgment: 5 August 2014 Catchwords: MIGRATION – application for Skilled (Provisional) (Class VC) visa – Requirement of competent English under Migration Regulations 1994 (Cth) – Time frame for English language test results for visa applications before 1 July 2011 Legislation: Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) rr 1.03, 1.15C, sch 2, cl 485.215 Date of hearing: 5 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms SA Given of Sparke Helmore Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 406 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: KISHORE NANDYALA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 5 AUGUST 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 406 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: KISHORE NANDYALA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE: 5 AUGUST 2014 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an appeal from the judgment and orders of the Federal Circuit Court made on 2 April 2014 dismissing, with costs, an application for judicial review of the decision of the Migration Review Tribunal (the Tribunal). 2 The decision of the Tribunal on 11 March 2013 was to affirm the decision not to grant the appellant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth). The grounds upon which that visa was refused were that the appellant did not satisfy cl 485.215 in Pt 485 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). 3 The appellant applied to the then Department of Immigration and Citizenship for the visa on 15 March 2011. The delegate decided to refuse to grant the visa on 26 April 2012. The Regulations 4 The Regulations relevantly provided as follows as at the date of the appellant's application for a visa, 15 March 2011. Clause 485.215 in Pt 485 of Sch 2: 485.215 The applicant has competent English. Regulation 1.15C: 1.15C Competent English If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person: (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged: (i) an IELTS test 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-subparagraph; 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. By r 1.03, "General Skilled Migration visa" included a subclass 485 visa. Although it is not relevant to the present appeal, which turns on r 1.15C(a)(i) and the IELTS test score there specified, the test specified in the instrument referred to in r 1.15C(a)(ii)(B) was an Occupational English Language test (OELT). The relevant instrument was Instrument IMMI 09/073, commencing on 1 July 2009 (see Federal Register of Legislative Instruments F2009L02575). The facts as found by the Tribunal 5 On his visa application, the appellant indicated that he had not sat an English test in the past 24 months. No results of any English tests were provided and the delegate refused to grant the appellant the visa on the basis that the appellant did not satisfy the criterion that he had competent English as no evidence had been provided that met the requirements of r 1.15C. 6 An application for review was made to the Tribunal on 15 May 2012. By letter dated 15 January 2013, the appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The letter stated, in part: The tribunal notes that your application for the visa was made in March 2011 visa application [sic] and to date you have not presented evidence that you meet the English language proficiency requirement for the visa. Please provide evidence of your English language proficiency or evidence that you have booked an Occupational English Test or an IELTS test (for a test no later than 2 February 2013) within 14 days from the date of this letter. If you are unable to provide this, the tribunal will require good reason to grant you additional time to obtain evidence of your English language proficiency. Please note that the tribunal may make a decision on your case at the conclusion of the hearing. 7 On 23 January 2013, the Tribunal received confirmation of attendance at the hearing and booking confirmations for IELTS tests on 2 February 2013 and 14 February 2013. 8 The appellant appeared before the Tribunal on 8 February 2013 and told the Tribunal that he had undertaken six or seven IELTS tests and had not achieved the necessary score in any of those tests and that he had not undertaken an OELT. He said that he had undertaken a test on 2 February 2013 and was awaiting the results. The Tribunal indicated that it would wait for a month after the test date before making a decision. 9 On 1 March 2013, the Tribunal received a fax from the appellant's legal representative stating that the appellant undertook the IELTS test and was still waiting for the results. It was further stated that the appellant completed another IELTS test on 23 February 2013 and was requesting an extension until 8 March 2013 to provide the results to the Tribunal. A copy of the IELTS receipt for that test was attached. 10 On 4 March 2013, an officer of the Tribunal attempted to contact the appellant's representative by phone regarding the request but was unsuccessful. The case note stated "I … left a message on his voicemail advising that the provisional IELTS score should be online, and the member will not extend if the results are less than 6." Further telephone messages were left on the same date, 4 March 2013, and on 6 March 2013. 11 The 6 March 2013 message advised that that day was the last day to provide IELTS results. In light of the fact that the Tribunal did not give its decision until some days later and no further material had by then been provided to it, nothing turns on this message, if indeed it was received by the appellant. 12 As I have said, the decision of the Tribunal was given on 11 March 2013. On the information before it, the Tribunal found that the appellant had not achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted not more than 2 years before the day on which the visa application was lodged. Nor was there any evidence that the appellant had undertaken an OELT and achieved the necessary score. The Tribunal therefore found that the appellant did not have competent English as defined in r 1.15C(a). Thus the Tribunal found the appellant did not satisfy cl 485.215. 13 The Tribunal then said: 24. Having regard to the visa application fee paid, the application for the visa was not a valid application for a Subclass 487 visa and the Tribunal has not considered whether the applicants meet the requirements for the grant of a visa of that subclass. The proceedings before the Federal Circuit Court 14 An application for judicial review was made to the Federal Circuit Court on 5 April 2013. That application sought an order that the decision of the Tribunal be quashed. The ground of the application was that the "Tribunal made an error while making decision on my review application (which I mentioned in affidavit attached here with)." 15 That affidavit stated relevantly as follows: Migration Review Tribunal had made error while considering my application and making decision. In its decision of on 11th March 2013, the Tribunal member … mentioned in paragraph 24 that "… application for a subclass 487 visa and the Tribunal has not considered whether the applicants meet the requirements for the grant of a visa of that subclass". I never applied for visa 487 and so I believe that tribunal has made an error while making a decision (MRT must have accessed some other person's application and made decision on my application – application mixed up and decision given incorrectly by MRT to my application). I lodged review application to MRT for review of 'refusal of visa subclass 485 and not 487 (that what MRT has mentioned in its decision – paragraph 24 and I never applied for visa subclass 487). This is not a fair work by Tribunal while making a decision as they made decision on my application but accessed some other person's application and not reviewed my application properly. Thus because of such reason … I believe that MRT has not acted in best interest of the applicant (myself) and so I would like to have review of my application made to MRT be reviewed again properly and fairly by relevant authority. 16 The Federal Circuit Court, in dismissing the application on 2 April 2014, said that the fact was that the appellant did not have evidence that he had passed an IELTS test at any time prior to the Tribunal's decision. The Tribunal had given the appellant until mid-March 2013 to provide the evidence, he having sat for an IELTS test in February. No such evidence was provided and the Tribunal came to the inevitable conclusion that the appellant did not have competent English as defined in r 1.15C and therefore did not satisfy cl 485.215. 17 The Court noted that by the time the matter came before the Federal Circuit Court for directions on 7 November 2013 the appellant had taken another IELTS test and had passed but that would not avail in the proceeding currently before it. The Court said at [3]: … He came to the Court today and whilst conceding that there was no error in law in the Tribunal's decision, requested that the Court adjourn the matter for six months so that, armed with his IELTS test, he could apply for a Skilled Nominated Visa (Subclass 190) through the New South Wales Trades and Investments Department. Those nominations are open for consideration in July 2014. [The appellant] produced to the Court the papers which he will be submitting to the New South Wales government. 18 The Federal Circuit Court said it was not appropriate for a court to adjourn a hearing so that an applicant can make an application for another visa in respect of which he may or may not be successful. The court must consider the case in hand and that is what had been done. The appellant's concession was well made. There was no jurisdictional error in the manner in which the Tribunal reached its decision. It was the only decision the Tribunal could reach in circumstances where no complying IELTS test was produced. The appeal to the Federal Court 19 By his notice of appeal, the appellant seeks an order that the decision of the Tribunal and/or Minister be quashed. The grounds of appeal are as follows: 1. Federal Circuit Court of Australia (FCC) and Migration Review Tribunal (MRT) both refused/dismissed my application. 2. FCC dismissed my application without considering the fact that I have obtained required IELTS score for migration purpose during the procedure of my application with FCC. I believe that FCC did not understand immigration legislation in this regard and made an error 3. Also MRT had refused my application for review without considering my request to extend further time extension to re-sit in IELTS examination as I was not satisfied by the way my exam papers was evaluated by IELTS department (and when I re-sit in exam I achieved required score in IELTS examination). I believe everyone should have fair go in this country but unfortunately neither from MRT nor from FCC I got justice. 4. Thus, I believe FCC and MRT had dismissed by application without considering facts of natural justice and without considering Migration Regulations 1958 (Cth) & Judiciary Act 1903 (Cth). The submissions of the parties 20 The appellant filed no written submissions. In oral submissions the appellant repeated what he had said to the Federal Circuit Court, namely, that he had taken a later IELTS test which he had passed, but after the Tribunal's decision on 11 March 2013. He referred also to later applications for a different visa he had made and one which he proposed to make in October 2014 for a Skilled Nominated Visa (subclass 190) through the New South Wales Trade and Investment Department. 21 The first respondent submitted that ground 1 did not purport to identify a legal error made by the Federal Circuit Court or Tribunal and could not succeed. 22 As to ground 2, the first respondent submitted that the Federal Circuit Court noted that the appellant had obtained the necessary IELTS score. However, since the IELTS test in which the appellant obtained the necessary score was undertaken after the Tribunal's decision, the Federal Circuit Court, on judicial review of the Tribunal's decision, could not rely on that score. 23 As to ground 3, the first respondent submitted that the Tribunal did consider and did grant the appellant extensions of time to provide IELTS results and there was nothing that suggested the appellant or his migration agent made other adjournment or extension of time requests that the Tribunal failed to consider. To the contrary, the Tribunal's reasons recorded that the appellant provided no further material by the extended time and did not make a further request for an adjournment or extension of time despite the Tribunal's attempts to contact the appellant's migration agent. 24 As to ground 4, the first respondent submitted that no particulars were given. In any event, there was no refusal of a request for an adjournment or extension of time that denied the appellant natural justice. Further, the appellant had not identified any provisions of the Regulations or of the Judiciary Act 1903 (Cth) that the Tribunal allegedly failed to consider. Consideration 25 In my opinion, ground 1 is merely prefatory and nothing more needs to be said about it. 26 Ground 2 cannot be sustained. It misunderstands the role of the Federal Circuit Court on judicial review. That Court was not conducting an appeal by way of rehearing but judicial review for jurisdictional error. The ground is also contrary to the concession, correctly made, by the appellant before the Federal Circuit Court. This ground establishes no error on the part of the judge of the Federal Circuit Court. 27 Ground 3 cannot, in my opinion, be sustained. It was not a ground argued before the Federal Circuit Court and would depend in the first place on new facts. I note that as the facts presently appear there was no material before the Tribunal to support the claim in this ground. The request I have referred to, made on 1 March 2013, was the only request for more time which the Tribunal had before it and that request was satisfied. 28 Ground 4 as written has no separate substance and is merely a summary of grounds 2 and 3. 29 In my opinion, none of the four grounds in the notice of appeal has been made out. 30 I note for completeness the ground contained in the appellant's affidavit dated 5 April 2013. It involves a misreading of the reasons of the Tribunal. A reference to subclass 487 does not suggest that the Tribunal was not dealing with the appellant's application. Rather, the Tribunal was referring to that subclass for completeness, in effect noting that subclass 487 was not the subject of the appellant's application. Orders 31 The appeal must be dismissed, with costs, as agreed or as taxed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 7 August 2014