Australian Immigration Daily News

Here’s an unusual case that just showed up recently on Austlii: Guder v Minister for Immigration & Anor (2017) FCCA 2527 (7 November 2017)

I’m wondering whether you would agree with the way that the Federal Circuit Court interpreted the relevant legislative instrument, pertaining to the time frame within which an English language proficiency test must be taken by an applicant for a 457 visa. 

The legislative instrument of concern in this case was IMMI 15/028, which is no longer in force. 

Here was the story: 

The applicant is a citizen of Turkey. In December 2014, she applied for a 457 visa, with her nominated occupation being that of a chef. The legislative instrument, IMMI 15/028, provided that an overall band score of 5.0 was required on the IELTS test, and that minimum scores of 4.5 were needed on each of the components of the test. IMMI 15/028 also provided that the allowable time frame for meeting the English language proficiency requirement was “the period of three years from the date of the application”. 

The IELTS test results that were submitted in support of the application indicated that the applicant’s score on the reading component was only 3.0, below the required result of 4.5. 

The Department proceeded to refuse the visa application on the basis that the applicant did not satisfy the criterion for the grant of a 457 visa that mandated that the applicant demonstrate a sufficient level of proficiency in English. 

The hearing before the Tribunal took all of 6 minutes! 

During this time, the Tribunal member said to the applicant: 

“….it’s good that you came in today because then I got the opportunity to explain to you why the decision will be what it is.” 

Thereupon, the Tribunal proceeded to affirm the refusal of the application. 

What’s truly interesting here is that the Federal Circuit Court interpreted the wording in IMMI 15/028 to mean that the allowable time frame for satisfying the English language proficiency requirement was within 3 years after the date of the visa application, and not “within the 3 years prior to the lodgment of the application”.  Therefore, the Court (Judge Driver) found that since the application had been made in December 2014, the applicant had until December 2017 to satisfy the English language requirement. 

This interpretation led the Court to conclude that the Tribunal had committed jurisdictional error in affirming the visa refusal.  The Court held that the Tribunal had an obligation to ensure that the applicant was aware that there was an issue in the case concerning whether the applicant should be afforded more time within the 3 year period considered by the Court to be allowed under the Instrument to attempt to meet the requirement.  The Court concluded that the Tribunal’s failure to say anything about this issue had the consequence that the applicant had not been afforded a meaningful hearing. 

The Court also found that the hearing had been affected by bias, which consisted of a separate and independent ground of jurisdictional error.  The Court found that the Tribunal’s failure to say anything to the applicant about the fact that she had 2 more years in which to attempt to meet the English language requirement (as the Tribunal hearing was held 1 year after the application was made), taken together with the fact that when the Tribunal member was asked by the applicant “what else could she do” did nothing more than to refer the applicant to her migration agent, was sufficient to cause a fair-minded observed to apprehend that “the Tribunal member might not have brought an unprejudiced mind to bear upon the issue of the time within which the (applicant) should be given to attempt to comply with the English language criterion. 

What do you think about the Court’s approach to the interpretation of IMMI 15/028? 

Is it a reasonable alternative interpretation of that Instrument to read it as meaning that a successful IELTS test must be taken within the 3 year period before the making of the application, rather than within the 3 year period after the application? Wouldn’t such an interpretation advance the objective of ensuring that an applicant has adequate English skills at the time of the assessment of the application, and that the test results are recent enough to ensure that the applicant’s proficiency remains current? 

It appears that Judge Driver’s conclusion that jurisdictional error occurred in this case was predicated on His Honour’s finding that the Instrument allowed the English language criterion to be met at any time within the 3 year period after the application; perhaps the Court would not have reached the same conclusion had it adopted the alternative interpretation. 

What do you think about all of this?