FEDERAL COURT OF AUSTRALIA Khumalo v Minister for Immigration and Border Protection [2017] FCA 24 Appeal from: Khumalo & Ors v Minister for Immigration & Anor [2016] FCCA 1204 File number: NSD 925 of 2016 Judge: GLEESON J Date of judgment: 31 January 2017 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – no appellable error identified in decision below – appeal dismissed Legislation: Migration Regulations 1994 (Cth) Cases cited: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 Date of hearing: 2 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellants: The first appellant appeared in person on behalf of the appellants Solicitor for the Respondents: Ms AB Douglas-Baker of DLA Piper ORDERS NSD 925 of 2016 BETWEEN: NQOBILE REEVIS KHUMALO First Appellant XHOLANI CAROLINE KHUMALO Second Appellant GEORGEOUS NTOMBENHE KHUMALO Third Appellant CUTIE ZINHLE KHUMALO Fourth Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GLEESON J DATE OF ORDER: 31 January 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GLEESON J: 1 The appellants appeal from the decision of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing their application for judicial review of a decision of the Migration Review Tribunal ("Tribunal"): Khumalo v Minister for Immigration & Anor [2016] FCCA 1204. The Tribunal's decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection ("Minister") to refuse to grant the appellants subclass 457 visas. Background facts 2 The first appellant ("Mr Khumalo") is the primary visa applicant on an application for Temporary Business Entry (Class UC) (Sub-class 457 – Business Long Stay) visas. Mr Khumalo holds a South African passport. 3 The second appellant is Mr Khumalo's wife. The third and fourth appellants are Mr and Mrs Khumalo's children. The second, third and fourth appellants are secondary visa applicants on the visa application. 4 Mr Khumalo applied for the visa in order to work with Hurricanes Corporate Services Pty Limited in the occupation of cook. Criteria for the grant of visas 5 The primary criteria for the visas are set out in Pt 457 of Sch 2 to the Migration Regulations 1994 (Cth) ("Regulations"). 6 As the FCCA judge correctly summarised it, at [5], unless Mr Khumalo was an "exempt applicant", he would not qualify for a subclass 457 visa if he did not pass an English language skills test at a particular level, in this case being an International English Language Testing System ("IELTS") test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening. 7 Mr Khumalo was required to meet the requirements of various subclauses of cl 457.223 of Pt 457, including cl 457.223(4)(eb). Mr Khumalo would meet the requirements of cl 457.223(4)(eb) if, where: (1) he was not an exempt applicant; (2) sub-cl 457.223(6) did not apply to him; and (3) at least 1 of subparas (ea)(i) and (ii) did not apply to him, he had a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening. 8 As to (1), at all relevant times, "exempt applicant" was defined in cl 457.223(11) as: [A]n applicant who is in a class of applications specified by the Minister in an instrument in writing for this subclause. 9 At the time of the Tribunal's decision, the instrument in writing specified by the Minister for the purposes of cl 457.223 was IMMI 14/009, entitled Tests, Scores, Period, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas (Legislative Instrument F2014L00327), which came into effect on 22 March 2014. Relevantly, item 7(b)(2) of IMMI 14/009 specified the following class of applicants to be an "exempt applicant": (b) applicants who: … (ii) have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English … 10 The FCCA judge observed (at [6] of his Honour's reasons) that the provision was no different from the equivalent provision in the instrument which had been operative at the time of the Tribunal's hearing, namely, IMMI 13/009, Level of Salary and Exemptions to the English Language Requirement for Subclass 457 (Temporary Work (Skilled)) Visas (Legislative Instrument F2013L01462). 11 As to (2), sub-cl 457.223(6) stated: (6) This subclause applies to an applicant if: (a) the applicant will be paid, in connection with the occupation nominated in relation to the applicant, a level of salary that is at least the level of salary worked out in a way specified by the Minster in an instrument in writing for this paragraph; and (b) the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia. 12 As to (3), subparas 457.223(ea)(i) and (ii) relate to English language requirements for occupations requiring mandatory licence, registration or membership. Visa application 13 The visa application was made on 7 November 2012. In the application, Mr Khumalo said that English was not his first language. In answer to the question "If English is NOT your first language, have you studied in a secondary or tertiary institution where instruction was in English?". Mr Khumalo answered "No". 14 On 8 November 2012, the appellants wrote to the Minister's department and requested a waiver of "the requirement for [Mr Khumalo] to undergo an IELTS test" on the basis that he had worked in his nominated occupation for more than 10 years. The request was refused on the basis that the relevant decision maker had no discretion to waive the IELTS requirement. Refusal to grant visas by Minister's delegate 15 On 3 January 2013, a delegate of the Minister found that Mr Khumalo was required to meet, but did not meet, the requirements of cl 457.223(4)(eb) of Sch 2 to the Regulations. The delegate found that Mr Khumalo was not an "exempt applicant" because he had been nominated to the position of cook, which was not an exempt occupation. He also found that sub-cl 457.223(6) did not apply to him; and that subparas 457.223(ea)(i) and (ii) did not apply to him. Accordingly, the delegate found that Mr Khumalo was required to provide evidence of his English language proficiency. In the absence of that evidence, the delegate found that Mr Khumalo and the other appellants had not satisfied the prescribed requirements for the visas. Review of Delegate's decision by Migration Review Tribunal 16 On about 21 January 2013, the appellants applied to the Tribunal for a review of the delegate's decision. 17 On 28 February 2014, Mr Khumalo attended a hearing before the Tribunal with the assistance of a migration agent. 18 On 28 March 2014, the Tribunal made a decision affirming the decision of the delegate. In summary, the Tribunal reached its decision for the same reasons as the delegate: it concluded that Mr Khumalo was required to satisfy the English language requirement specified in cl 457.223(4)(eb) but failed to do so. 19 Concerning whether Mr Khumalo was an "exempt applicant", the Tribunal's decision record stated relevantly: [Mr Khumalo] confirmed that he had not completed at least 5 years consecutive study in English. He had studied up to year 7. … The Tribunal accepts, based on [Mr Khumalo's] evidence at the hearing, that he has not completed at least 5 consecutive years of full-time study at a secondary or higher education institution where the instruction was delivered in English. The Tribunal finds, on the basis of [Mr Khumalo's] evidence, that he is not a class of applicant specified in Item 7(b) of IMMI 14/009. 20 On 21 March 2014, Mr Khumalo's migration agent provided Mr Khumalo's IELTS results to the Tribunal. Unfortunately, Mr Khumalo achieved an overall result of 3.5 and failed to achieve a test score of at least 5.0 in each of the four test components. Review of Tribunal's decision by FCCA 21 On 23 April 2014 the appellants filed an application for judicial review in the FCCA. By amended application dated 18 August 2014, the appellants raised the four grounds of review, which stated relevantly: 1. The Tribunal failed to ask the right question or failed to complete its core function of review Particulars: (a) The Tribunal failed to ask the right question relating to whether the First Applicant was an exempt applicant for the purposes of subclause 457 .223(4)(eb)(i): … (iv) The Tribunal was required to ask whether the First Applicant's school, where he studied up to Year 7, was a secondary education institution. Its failure to ask that question was a jurisdictional error, as it could not determine whether the First Applicant's study was at a secondary institution…such that he might be an exempt applicant. (b) The Tribunal failed to conduct the review required by not asking whether the school where the First Applicant completed up to Year 7 was a secondary education institution before finding that the First Applicant was not an exempt applicant. (c) The Tribunal held a hearing with the First Applicant on 28 February 2014. On 21 March 2014, IMMI 14/009, F2014L00327 was introduced. It came into effect on 22 March 2014. That instrument made provision for who was an exempt applicant for the purposes of subclause 457.223(11), and therefore, for the purposes of determining whether the First Applicant satisfied subclause 457.223(4)(eb)(i). (i) Despite the introduction of that instrument, central to the review application before it, the Tribunal did not schedule a new hearing, or failed to invite the First Applicant to address it in writing, in relation to whether the First Applicant satisfied any of the items in the instrument. That failure constitutes jurisdictional error as the Tribunal did not carry out its core function of review. 2. The Tribunal failed to comply with s360 of the Act Particulars: (b) The Tribunal failed to comply with s360 of the Act by incorrectly stating to the First Applicant that the law required him to show that his study had to be in secondary or higher education, when there was no such requirement in law. The law merely required that he have the requisite period of five consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English … (ii) By having the First Applicant give evidence and present arguments in relation to that incorrect statement of law meant that the hearing required to be given pursuant to s360 was not given. That failure constitutes jurisdictional error. 3. The Tribunal failed to consider a claim made by the First Applicant Particulars: (c) The Tribunal failed to consider a claim made by the First Applicant. (i) The First Applicant claimed that he had studied in English at school in South Africa. The Tribunal failed to consider that claim. 4. The Tribunal based its decision on a fact that did not exist Particulars: (a) The Tribunal based its decision on a fact that did not exist. (i) The Tribunal found that the First Applicant had claimed at hearing that he had not completed at least 5 years consecutive study in English, when no such claim was made by the First Applicant. In fact his claim was to the contrary. 22 Each ground is concerned with the question of whether Mr Khumalo was an "exempt applicant" by reason of his study of English at school in South Africa. 23 The FCCA judge concluded that Mr Khumalo had no demonstrated any jurisdictional error on the part of the Tribunal. Accordingly, the application for judicial review was dismissed. 24 The FCCA judge dealt with each ground of review separately. 25 His Honour rejected the first ground of review for the following reasons: 21. In summary, the applicants' argument was that a secondary education institution could provide primary school tuition and still be a secondary education institution with the result that it did not matter what level of education the first applicant's school had provided to him as long as it had been in English and of at least five years' duration. In summary, the Minister's argument was that, in context, the term "secondary education institution" meant an institution which provided education only at a secondary level. 22. The context in which the expression "secondary education institution" appears is one concerned with exempting a visa applicant from having his or her English language skills tested. That is to say, if an applicant has "completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English" then he or she will not have to achieve, for instance, "an IELTS test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening". It cannot have been intended that primary level tuition in English would be sufficient to be exempted from the need to demonstrate adequate English language skills. That understanding is reinforced by the fact that the relevant expression is in fact "secondary and/or higher education institution", which points to the requirement being concerned with higher order English language skills. 23. In another context the expression in question might mean what the applicants posited in this case. However, in item 7(b)(ii) of IMMI 14/009 it refers to an institution which provides education only at a secondary level. Noting that some schools provide both primary and secondary education, the expression would also extend to a secondary institution within or part of a larger institution. 26 His Honour gave the following reasons for rejecting the second ground of review: 25. The applicants submitted in connection with this allegation that question 30 of the transcript revealed that the Tribunal had misled the first applicant by saying at its hearing that, relevantly, the issue he had to address was whether his English language education had been at secondary or higher level, rather than in a secondary or higher education institution. 26. Reading the passage in question fairly, I do not accept that interpretation. The first part of the passage set out the test and then the second set it out again in slightly different words. In context I do not read the second form of expression as being different in import from the first. It should also be noted that the applicants were assisted at the Tribunal hearing by their migration agent. If the Tribunal's meaning had not been clear the agent could have been expected to raise the matter. Further, it is apparent that the agent shared the Tribunal's correct understanding of the test because later in the hearing she stated: Basically we just want to take the opportunity for him to sit the IELTS test … 27. The agent appears to have been under no misapprehension that the first applicant was an exempt person or to have understood the Tribunal to have been saying what the applicants now contend. I am not of the view that the Tribunal breached s.360 as alleged. 27 As to the third ground of review, the FCCA judge said: 29. The applicants submitted in connection with the third ground of the amended application that the transcript of the Tribunal hearing recorded that the first applicant had claimed to have undertaken five continuous years of study in English in South Africa and that the Tribunal had not had regard to that claim, an omission which they said could be inferred from the Tribunal's statement at para.12 of its reasons: The applicant confirmed that he had not completed at least 5 years consecutive study in English. 30. Later, at para.17 of its reasons, the Tribunal also said: The Tribunal accepts, based on the applicant's evidence at the hearing, that he has not completed at least 5 consecutive years of full-time study at a secondary or higher education institution where the instruction was delivered in English. 28 Finally, the FCCA judge concluded, at [33], that, for the reasons given in relation to the third ground, the fourth ground of review failed. Grounds of appeal 29 The grounds stated in the notice of appeal are: 1. I have been working and living in Australia for 8 years and I want my family to come and live with me and if I go back to Africa I have no job. 2. I will like [sic] the Court give a visa because I live and work in Australia for long. 3. I think all my life is in Australia. I am trying to emprove [sic] my English language. Appellants' submissions 30 The appellants did not file written submissions in support of the appeal. 31 At the hearing of the appeal, Mr Khumalo appeared on his own behalf and on behalf of the other appellants. He made the following submission: I've been in Australia for a long time and I left my kids behind trying to get them a better life in Australia. Consideration 32 The task of this Court on appeal is to determine whether the judgment of the FCCA judge involved appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 33 The underlying difficulty for the appellants is that to be granted the visas Mr Khumalo was required to be an "exempt applicant", or alternatively, to satisfy the English language proficiency standard set by cl 457.223(4)(eb). At the appeal, Mr Khumalo did not put any argument to support a conclusion that he was an "exempt applicant" or to support a conclusion that he satisfies the relevant English language proficiency standard. He did not identify any error in the reasons of the FCCA judge. 34 The matters raised in the notice of appeal, and by Mr Khumalo in his oral submissions, explain clearly Mr Khumalo's desire to obtain a visa and his good intentions if a visa were to be granted, but they do not provide a legal basis for a conclusion that there was any appellable error on the part of the FCCA judge. 35 Accordingly, the appeal must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 31 January 2017