Abdulla v Minister for Immigration and Border Protection
[2014] FCA 1279
•25 November 2014
FEDERAL COURT OF AUSTRALIA
Abdulla v Minister for Immigration and Border Protection [2014] FCA 1279
Citation: Abdulla v Minister for Immigration and Border Protection [2014] FCA 1279 Appeal from: Abdulla & Anor v Minister for Immigration & Anor [2014] FCCA 1846 Parties: ABU JUBAER MOHAMMED ABDULLA and AFSANA BEGUM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File numbers: NSD 818 of 2014 Judges: BARKER J Date of judgment: 25 November 2014 Catchwords: MIGRATION – application for skilled (provisional) (class VC, subclass 485) visa – requirement of “competent English” under cl 485.215 of Sch 2 Migration Regulations 1994 (Cth) – where first appellant achieved satisfactory International English Language Testing System result prior to Tribunal’s decision, but did not communicate this to Tribunal – whether Tribunal applied law incorrectly – application for adjournment in appeal proceeding Legislation: Federal Court of Australia Act 1976 (Cth) s 43(3)(d)
Migration Regulations 1994 (Cth) reg 1.15C, reg 1.15C(a)(i), reg 1.15C(a)(ii), cl 485.215 of Sch 2
Cases cited: Abdulla v Minister for Immigration [2014] FCCA 1846
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123Date of hearing: 25 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Appellants: The Appellants appeared in person Counsel for the First Respondent: Ms N Blake Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 818 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ABU JUBAER MOHAMMED ABDULLA
First AppellantAFSANA BEGUM
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
25 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants to pay the first respondent’s costs of the appeal, fixed in the sum of $1520.
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 818 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ABU JUBAER MOHAMMED ABDULLA
First AppellantAFSANA BEGUM
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
25 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Mr Abu Jubaer Mohammed Abdulla and Ms Afsana Begum are citizens of Bangladesh, who applied for skilled (provisional) (class VC, subclass 485) visas on 30 June 2011. Mr Abdulla sought to satisfy the primary criteria for this visa and Ms Begum, his wife, sought to satisfy the secondary criteria as a member of the same family unit.
On 9 October 2012, a delegate for the Minister refused the visa application, on the basis that Mr Abdulla had failed to satisfy the requirement for competent English in cl 485.215 of Sch 2 of the Migration Regulations 1994 (Cth). As Mr Abdulla did not satisfy the primary criteria, the delegate found that Ms Begum did not satisfy the secondary criteria.
On 26 October 2012, Mr Abdulla and Ms Begum applied to the Migration Review Tribunal for a review of this decision. At the time of the first hearing in April 2013, Mr Abdulla failed to produce evidence of having competent English, but was granted an adjournment to 13 May 2013 to obtain the required evidence.
At 13 May 2013, the immigration lawyers then acting for Mr and Mrs Abdulla wrote to the Tribunal enclosing a copy of the IELTS Enquiry on Results Form, dated 13 May 2013, and advising that Mr Abdulla had requested a remark and a copy of the receipt was enclosed. The solicitors indicated that it would take about six weeks for the result to come through. They then said that until then they submitted there was no final IELTS result from the 27 April 2013 test. In those circumstances a request was made in the following terms:
We ask the Tribunal to defer making a decision in the meantime. Should you disagree to this request, please advise.
It is also an undisputed fact (referenced in a case note of the Tribunal), that Mr Abdulla’s representative telephoned the Tribunal on about 17 May 2013 and was advised that the review had been adjourned until 25 June 2013 to allow time for the IELTS remark.
In the circumstances, it is not reasonably in contest that Mr and Mrs Abdulla, through their immigration lawyers, understood that it was necessary for the remark information to be provided to the Tribunal by 25 June 2013, failing which a decision on the review application before the Tribunal would then be made.
At the date of the Tribunal’s decision, it had not received any evidence from Mr Abdulla that he had satisfied the English competence requirement or had any other contact from Mr Abdulla or his lawyers, and so his review application was dismissed. It subsequently transpired that Mr Abdulla had achieved the requisite test results three days before the Tribunal’s decision was made by resitting the test, but the Tribunal was unaware of this when, on 9 July 2013, it affirmed the delegate’s decision.
Mr Abdulla and Ms Begum applied to the Federal Circuit Court for judicial review on 6 August 2013, but their application was dismissed on 1 August 2014. See Abdulla v Minister for Immigration [2014] FCCA 1846.
By notice of appeal filed on 8 August 2014, the appellants appeal against the judgment of the Federal Circuit Court. In substance, the appellants contend that the Tribunal applied the law incorrectly and the appellants are entitled to a positive outcome because Mr Abdulla had passed the English competence requirement before the date of the Tribunal’s decision, and that the primary judge erred in not so finding.
RELEVANT LAW
The criteria for the grant of a skilled (provisional) (class VC, subclass 485) visa are set out in Pt 485 of Sch 2 of the Regulations. One of the criteria which must be satisfied is cl 485.215, which required Mr Abdulla to establish that he had “competent English”, a term defined in reg 1.15C. At the time the appellants lodged the visa application, this provision provided:
1.15CCompetent 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.
(Emphasis in original.)
THE TRIBUNAL’S DECISION
The Tribunal invited Mr Abdulla to attend a hearing on 8 April 2013 and requested that he provide evidence of having competent English before the hearing date, as he had not yet presented evidence that he satisfied this requirement.
On 8 April 2013, Mr Abdulla appeared before the Tribunal and was represented by his registered migration agent. He stated that he had not satisfied the competent English criterion, but he intended to do so by achieving a satisfactory International English Language Testing System (IELTS) score. Mr Abdulla indicated that he had sat an IELTS test on 6 April 2013 and booked a second test on 27 April 2013, in the event his first test was unsuccessful. As such, he requested an adjournment until 13 May 2013 and the Tribunal allowed this adjournment.
Mr Abdulla then requested that the decision be deferred for six weeks on the basis that he had requested a remark of the test conducted on 27 April 2013, and an adjournment was granted until 25 June 2013.
After 25 June 2013, on about 6 July 2013, and without the Tribunal’s knowledge, Mr Abdulla sat a new IELTS test and obtained the requisite scores. However, neither Mr Abdulla nor his lawyers ever communicated this information to the Tribunal and the deferral period expired without any further contact from him. At the date of the Tribunal’s decision on 9 July 2013, it had not received any evidence of Mr Abdulla having achieved the prescribed IELTS result or been told anything to suggest he was re-sitting the test.
The Tribunal considered that the applicable legislative instrument in respect of the visa application was IMMI 09/073, which was in force when the visa application was lodged. This instrument specified a test score of at least B in each of the four components of the Occupational English Test for the purposes of reg 1.15C(a)(ii) of the Regulations. The Tribunal considered that the scores, tests and passports specified in legislative instrument IMMI 09/073 and its replacement, IMMI 12/018, were substantially the same.
The Tribunal concluded that Mr Abdulla did not satisfy the competent English requirement pursuant to cl 485.215 of Sch 2 to the Regulations and it affirmed the delegate’s decision.
The Tribunal also held that there was nothing before it to indicate that Ms Begum had nominated or obtained a skilled occupation and it was not satisfied that she met the primary criteria for the grant of a skilled (provisional) (class VC) visa.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT
In Mr Abdulla’s application for judicial review in the Federal Circuit Court, he raised one ground of review: “The member applied the law incorrectly”.
The primary judge noted that the only test the appellants referred to was the IELTS test. Accordingly, although his Honour was not confident that the Tribunal had not erred in its application of legislative instrument IMMI 09/073, he held that this is of no significance, as implicitly, the only part of reg 1.15C which was engaged was reg 1.15C(a)(i), which did not depend on the Minister specifying a score in an immigration instrument.
The primary judge noted that the appellants referred to the fact that Mr Abdulla had sat an IELTS test and ultimately obtained the requisite scores three days before the Tribunal’s decision. However, his Honour also observed that the Tribunal was not aware of this and so could not have taken it into account. The appellants conceded at the hearing that they had not told the Tribunal that Mr Abdulla was to sit the further test.
The Court accepted that it was regrettable that the outcome of the judicial review application was unsuccessful for the appellants, given that Mr Abdulla had ultimately obtained the requisite IELTS score. Nonetheless, the primary judge held at [18]:
Given the nature of the review, which required the Tribunal to be satisfied that the applicants satisfied the criteria for the grant of the visas they sought, it is of no relevant significance that [Mr Abdulla] did pass the test before the Tribunal made its decision because the Tribunal was unaware before it made its decision either that [Mr Abdulla] was sitting the test or of the result he received.
In the circumstances, the primary judge concluded that there was no error in the Tribunal’s decision to proceed to make a decision and no error in the decision it ultimately made.
ADJOURNMENT APPLICATION
Several weeks before the present appeal in this Court was due to commence, on 6 November 2014, Ms Begum wrote to the Court requesting an adjournment in the following terms:
Can I please have my hearing after three or two months,my hearing date is 25 Nov,2014. My husband Abu Jubaer Mohammed Abdulla is main applicant .He is out of Australia now,because of his job and some family reasons,so he could not attand on that day.Please consider my request.
The solicitors for the Minister replied on 7 November 2014, advising that the Minister did not consent to an adjournment, as Ms Begum had not provided detailed reasons for the adjournment request. In circumstances where both appellants were aware of the scheduled hearing date, the Minister did not regard their explanation as satisfactory. Further, the Minister noted that Mr Abdulla's bridging visa would soon expire, meaning that if an adjournment is granted, he will not have a legal right to re-enter the country.
The parties were advised by the Court on 7 November 2014 that any application to adjourn the hearing would be heard at the scheduled date on 25 November 2014, and if the application was refused, the appeal would proceed as listed.
Mr Abdulla sent a further email on 12 November 2014 in the following terms:
It is very unfortunate but I didn't avoid the situation that my father who lives in Bangladesh is extremely sick for last couple of month as I am the only person to look after at this crucial stage. For this instances, I am unable to attend on 25th November 2014 hearing.
Please consider this unexpected situation as a point of humanity ground and possible to shift this hearing as your future convenience.
I have to pay my heartiest appeal to consider this issue, as I am waiting to hear from you.
The solicitors for the Minister replied to this email on 13 November 2014, advising that the Minister maintained his position and did not consent to the request for an adjournment.
The Court again advised the parties that the appellants’ adjournment application could be made at the hearing on 25 November 2014, although if this application were refused, the appeal would proceed on 25 November 2014.
On the hearing of the appeal, both Mr and Mrs Abdulla were in attendance. Mrs Abdulla spoke for the appellants (and an interpreter who was present was not required in that regard). Mrs Abdulla indicated that even though her husband had returned to Australia they would still like the matter adjourned so they could get further advice.
After hearing from the appellants, the Court indicated that it was reluctant to grant an adjournment given the factual circumstances of the case. The issue remained the same in this Court as it had been before the Federal Circuit Court, and before the Federal Circuit Court it was frankly acknowledged by Mr and Mrs Abdulla that they had not communicated the fact that Mr Abdulla had passed the test at any time before or after 25 June 2013, that being the date to which the Tribunal had in effect agreed to defer the making of a decision on the review application before it.
In the Court’s view there had been sufficient time for Mr and Mrs Abdulla to have obtained further legal advice in the matter. Given the nature of the issue before the Court, the fact that nothing of substance had changed between the time of the hearing in the Court below and in this Court, on balance there was no sufficient reason to grant a adjournment of the appeal hearing and the application in that regard was refused.
APPEAL TO THIS COURT
In the appellants’ notice of appeal, filed 8 August 2014, they identify one ground of appeal, namely that “[t]he member applied the law incorrectly”. As to the orders sought, the appellants state:
We want a positive outcome, because of the first applicant has already passed the IELTS examination and the examination date was before the [Tribunal] marking date.
The appellants did not file any written submissions or other supporting affidavit material.
The Minister submits that the ground of appeal is essentially the same ground as was ultimately pressed before the Federal Circuit Court. For the same reasons as his Honour found, the Minister contends that this ground is unable to succeed.
The Minister recognises that it is unfortunate that Mr Abdulla did not attain the requisite IELTS scores earlier or seek a further adjournment from the Tribunal in order to satisfy the language competency requirement. However, the Minister submits that ill fortune does not equate to legal error, whether on the part of the Tribunal or the Federal Circuit Court. The Minister says that the error in this case was regrettably made by Mr Abdulla and this error is not capable of correction by review in this Court.
For these reasons, the Minister contends that the appellants have failed to identify any appealable error in the Federal Circuit Court's decision and the appeal should be dismissed.
The Minister seeks an order for costs to be fixed, pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth).
As the primary judge and the Minister have each observed in their decision and submissions respectively, this is a regrettable and unfortunate case, in that if Mr Abdulla had advised the Tribunal before it made its decision on 9 July 2013 that he had passed the IELTS test, then it may be taken that his review application in the Tribunal would have been successful. Nonetheless that did not happen and so it is inevitable, as a matter of law, that the appellants’ appeal alleging legal error by the Tribunal and the primary judge must fail.
Because the Tribunal, at all material times, had deferred the making of a decision until 25 June 2013, to enable Mr Abdulla to obtain a remark of the May 2013 test results, Mr Abdulla needed to let the Tribunal know of the outcome of the remark by 25 June 2013. In the circumstances, there can be no weight to any submission that the Tribunal at that point was under any practical legal obligation to advise the appellants that a decision was then about to be taken. See Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123. Mr and Mrs Abdulla’s immigration lawyers were aware of that because they had requested that the decision be deferred until 25 June 2013. In such circumstances, the appellants carried the practical legal obligation of informing the Tribunal of any change to their circumstances, something that they did not do, as they frankly conceded in the Federal Circuit Court.
As noted above, it appears Mr Abdulla then took the further test, just three days before the Tribunal formally made its decision on 9 July 2013, without having any knowledge that Mr Abdulla was taking the further test or that he had just passed it.
As this Court can only cure legal error, and because there has been no legal error committed by the Tribunal, or by the Federal Circuit Court in its judicial review of the Tribunal’s decision, this appeal must necessarily be dismissed with costs.
On the question of costs, the Minister seeks an order fixing costs in the sum of $1754. The application is supported by the affidavit of Ms Natasha Simone Blake made 25 November 2014 and read at the hearing. I accept the matters set out in the affidavit as accurate. Ms Blake estimates that on taxation costs in the range of $1520 to $1754 would be recoverable. I accept that is so, and would fix costs in the sum of $1520.
CONCLUSION AND ORDERS
For the reasons give above, the appropriate orders are that:
(1)The appeal be dismissed.
(2)The appellants to pay the first respondent’s costs of the appeal, fixed in the sum of $1520.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 25 November 2014
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