Two recent decisions of the Federal Circuit Court have once again confirmed that regulations which specify the time when a test to demonstrate English language proficiency must be taken can be strictly enforced.
In each of these cases, Mundi v Minister for Immigration & Anor (2015) FCCA 1412 (26 May 2015) and Singh v Minister for Immigration & Anor(2015) FCCA 1533 (5 June 2015), the Court held that it did not amount to “jurisdictional error” for the Migration Review Tribunal to affirm Departmental refusals of visa applications even in circumstances where the applicant is able to produce test results at the time of the hearing before the MRT to demonstrate that she/he has, as a matter of fact, the level of English language proficiency that is required by the relevant regulations.
It may appear at first blush that these decisions are “unfair” and elevate “form over substance” and that a person who can show that she/he has the necessary level of competency in English at the time that a visa application is determined by the MRT should be able to qualify for the visa.
However, as these two cases show, the simple and perhaps unfortunate truth of the matter is that if a regulation specifies when an English language test must be taken, and that requirement is not complied with, the visa application will fail.
The circumstances in the first of these cases, Mundi, were that the visa applicant did not satisfy a “time of application” criterion for proving a satisfactory level of proficiency in English. The applicant in that case sought a “Skilled (Provisional) (subclass 485)” visa. The applicable criterion for this visa class required that an applicant show that he had taken an English language examination during the 3 year period immediately before the lodgment of the application. Although the applicant had stated on the electronic application form that he had taken the test within the relevant period before filing the application, he was not, in the event, able to produce evidence (in the form of a test report) when it was requested by the Department.
When the case came before the MRT, the applicant was only able to produce the results of an IELTS test that he had taken after the Department had refused his visa application. The applicant’s scores on this test were sufficient to establish that his English language ability was at the required level.
However, the Federal Circuit Court held that it was irrelevant whether the applicant had satisfactorily passed the IELTS test after he had lodged his application with the Department. Further, the Court held that it did not matter whatsoever that the applicant had been advised by a lawyer that he could “provide the test results “later””. In the view of the Court, neither of these facts was sufficient to establish that the MRT had committed a “jurisdictional error” in affirming the refusal of the visa application. The only thing that counted was that the applicant did not satisfy the “time of application” criterion. This default on the part of the applicant led the Court to conclude that the only decision that was open to the MRT was to affirm the Department’s refusal of the application.
The facts in the second recently decided case, Singh, were slightly different but led the Court to reach the same conclusion that the MRT had not been guilty of a jurisdictional error in affirming the refusal of the visa application. In Singh, the applicant also sought a 485 visa. There was a requirement that an English language test be taken and successfully passed no more than 2 years before the lodgment of the application. Unfortunately for the applicant, he had taken the test about 2 years and 2 months prior to the time he made his application – and thus “outside” the permissible time period.
Although the applicant in Singh had taken, and achieved a very high score on a second IELTS test after his application was refused by the Department – and thus argued that he had maintained his English competency before, during and after the consideration of his visa application – this evidence was not considered by the Court sufficient to salvage his application. As Judge Jarrett stated, quite pithily in his judgment in the case:
“The requirement of the criterion is absolute. The applicant either meets the requirement or he does not. In the event that he does not, his visa application cannot succeed”.
These two cases make it absolutely plain that there is no “wiggle room” when it comes to complying with regulations which specify when an English language proficiency test must be taken and successfully passed. It is really an issue that is “black and white”.
Therefore, RMAs who are advising clients in relation to applications that have English language competency requirements must be scrupulous to ensure that the test has been taken when the regulations say it must be taken. Otherwise, the application is going to be rejected by the Department, and the prospects for getting a refusal set aside either by going to the MRT or the courts will be virtually non-existent.