Summary
Majority: French CJ, Gummow and Crennan JJ (Unanimous).
Decision: Appeal allowed.
The appellant lodged an application for an Australian permanent residency visa. At the time of lodgement, the appellant had booked, but had not sat for a language test. The relevant regulations required the Minister to be satisfied of the appellant obtaining a particular grade on the language test. That requirement was under a heading entitled ‘Criteria to be satisfied at time of application’. The High Court found, notwithstanding the heading of that provision, that given the wording of that part and the operation of the Act, the regulations were not intended to prevent the Minister receiving test results subsequent to lodgement of the application. Certiorari ordered quashing the decision of the Minister.
Facts
The appellant was a Brazilian national who had been studying in Australia for several years on a student visa. He wanted to stay in Australia and so sought to obtain a skilled residence visa.
Division 885.213 of the Migration Regulations 1994 (Cth) required, under the heading ‘Criteria to be satisfied at time of application’, that the Minister be satisfied that the applicant has achieved a score of at least 'vocational English' in an International English Language Testing System (IELTS) test conducted 'not more than 2 years before the day on which the application was lodged'.
On 26 February 2008, four months prior to the expiration of his student visa, the appellant booked an IELTS test. However the earliest date for a test was not until 10 May 2008, one month prior to the expiration of his student visa.
Prior to the test, on 21 April 2008, the appellant lodged a formal application to the Minister for residence. On his application form he checked the box which said “You have booked an English language test – provide details”.
The appellant subsequently achieved (and exceeded) the necessary IELTS test score by achieving a grade of “competent English”.
The Minister refused the application for residence on the ground that the appellant had “not provided an IELTS test result [for a] test conducted not more than 2 years before the day on which the application was lodged”, because the test result had not been obtained at the “time of the application” (as required by the heading in Div 885.213).
The appellant sought certiorari of that decision in the High Court’s original jurisdiction.
Decision
The Court found that theoperation of the Regulations and the Migration Act 1958 (Cth) did not prevent the appellant from satisfying the language requirement by sitting the exam subsequent to the lodgement of the application for residency.
The Court had regard to s 55 of the Act which stated:
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
The Court found that, although the section was part of a group headed ‘Criteria to be satisfied at time of application’, “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”: (at [25], emphasis added).
Their Honours concluded (at [26]):
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 [appellant] contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement 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.
Comment
This is yet another case in which the French CJ High Court has found in favour of an argument that allows substance to prevail over form. The High Court appears to have considered, as indeed many readers may, that the rejection of the Appellant’s application was the result of bureaucracy in the extreme. However in order to remedy this injustice, the High Court was required to underplay the importance of the heading which was no doubt relevant for the purposes of interpretation of the regulation (see [15]). As I have said on other occasions, this Court does not appear to be afraid to dispense with a strict application of the black letter law in order to reach a more sensible outcome (touch wood).
Who needs a Bill of Rights when you've got this lot overturning legislative intent with rubber stamp unanimity? Shame on this French swill.
ReplyDeleteJusnonscriptum, a question.
ReplyDeleteIf the Minister had instead granted the visa on grounds every bit as technical as those on which he denied them here, and the High Court had reversed that decision by deferring to the statute's purpose, would you still be complaining?
I think you would instead be complaining about the Minister's original decision, categorising it as a "loophole".
You might want to consider that it was legislative intent itself which the High Court relied on in its ruling. They talk about the expansive right to up-to-date information that the legislature wanted to confer on the Minister.
I think your post is a pretty great example of how cries of "unelected, activist judges" have absolutely nothing to do with judicial methodology, but instead denote dissatisfaction with the result reached.
I thought it was a straight-forward conflict resolution - the heading in Schedule 2 requiring satisfaction of either of two definitions, at time of application, where the definitions allow for their satisfaction, no earlier than 2 years prior to the application, but at any time after application, up to decision point ?
ReplyDeleteAgainst a background of the explanatory, giving the purpose of the relevant criterion to ensure that the standard of English language competency be recently ascertained, to not consider a more recent sufficient IELTS score, could seem contrary to the statute's purpose ?
So Berenguel's visa application was refused as his English language competency evidence was too recent to meet the “recently ascertained” requirement - surely shome mishtake ?
So this “French swill” may turn out to be a fine red wine as this decision matures and analysis progresses beneath the sensational headlines of "French say time of decision criterion can be met at time of decision."
Correction to my last paragraph:
ReplyDeleteSo this “French swill” may turn out to be a fine red wine as this decision matures and analysis progresses beneath the sensational headlines of "French say time of APPLICATION criterion can be met at time of decision."