Aktar v Minister for Immigration

[2016] FCCA 1052

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKTAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1052

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of skilled residence visas – whether the Tribunal’s refusal to allow more time for the principal applicant to sit an English language test was unreasonable considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.353, 363

Berenguel v Minister for Immigration (2010) 264 ALR 417
Minister for Immigration v Eden [2016] FCAFC 28
Minister for Immigration v Li (2013) 249 CLR 332
Minister for Immigration v Singh (2014) 308 ALR 280

First Applicant: TAHMINA AKTAR

Second Applicant: SARA MAISHAH KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL – MIGRATION AND REFUGEE DIVISION

File Number: SYG 2098 of 2015

Judgment of: Judge Driver

Hearing date: 4 May 2016

Delivered at: Sydney

Delivered on: 31 May 2016

REPRESENTATION

Solicitors for the Applicants: Mr M Jones of Parish Patience Immigration Law

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application filed on 28 July 2015 is dismissed.

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2098 of 2015

TAHMINA AKTAR

First Applicant

SARA MAISHAH KHAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL – MIGRATION AND REFUGEE DIVISION

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 30 June 2015[1].  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled residence visas.  There were originally three applicants, who are a mother, Ms Aktar, her husband, Mr Khan, and their child.  The principal applicant is the first applicant, Ms Aktar.  By order made by consent by me on 26 August 2015, Mr Khan was removed as a party to these proceedings.

   [1] This may be the final decision made by the Migration Review Tribunal prior to its amalgamation with the Administrative Appeals Tribunal the following day.  The final annual report of the Migration Review Tribunal records that the presiding member’s appointment expired at the end of the day on which this decision was made.

2. The following statement of background facts is derived from the submissions of the parties.

3. On 29 January 2010 Ms Aktar and Mr Khan applied for class VB Skilled Independent visas, Mr Khan using the name M Zahid Khan[2].

   [2] Court Book (CB) 1-18

4. On 9 November 2011 the applicants requested the inclusion in the application of the third (now second) applicant, and gave Mr Khan’s name as Md Gyied Hossain Khan[3].

   [3] CB 21-25

5. On 30 June 2013 in response to a request for comment from the Minister's Department, the applicants provided a statutory declaration concerning Mr Khan’s correct name[4].

   [4] CB 36-37

6. On 6 August 2013 a delegate of the Minister decided to refuse the visa applications based on a finding that the applicants did not satisfy the criterion referred to as PIC 4020[5].

   [5] CB 47-59

7. On 12 December 2013 the Tribunal remitted the decision to refuse Ms Aktar’s and her child’s visas to the Minister for reconsideration with the direction that they did satisfy criterion PIC 4020. The Tribunal affirmed the decision to refuse Mr Khan’s application[6].

   [6] CB 63-70

8. The applicants applied for the skilled visas currently in issue on 29 June 2010[7]. On 12 March 2015, the Delegate refused to grant the visas on the basis that Ms Aktar did not have the required English language proficiency. As such, the Delegate found that Ms Aktar did not satisfy clause 885.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations)[8].

   [7] CB 1

   [8] CB 114, 123

9. On 28 March 2015, the applicants applied to the Tribunal for review of the Delegate's decision[9]. 

   [9] CB 126

10. On 27 April 2015, the Tribunal invited Ms Aktar to attend a hearing on 26 May 2015[10]. 

    [10] CB 131

11. By letter dated 18 May 2015, Ms Aktar confirmed that she would attend the hearing.  In addition, she requested the Tribunal to adjourn its decision until 15 June 2015 so that she could first obtain the results for a further IELTS test that she had booked for 30 May 2015[11].

    [11] CB 135

12. On 26 May 2015, Ms Aktar appeared before the Tribunal to give evidence and present arguments[12].  At the hearing, Ms Aktar advised that she had sat the IELTS test more than 20 times but had not achieved the requisite score of at least 6 in each of the four test components.  The Tribunal noted that Ms Aktar initially had not scored well in the reading section.  After November 2014, her reading results improved but she was not getting a score of 6 for writing.  Since November 2014, she sat the test six to seven times.  Ms Aktar again asked the Tribunal to delay making a decision until she had obtained the results for a further IELTS test booked for 30 May 2015[13].

    [12] CB 148, Decision Record (DR) 4

    [13] CB 148, DR 9

13. The Tribunal adjourned the hearing to allow Ms Aktar to sit a further IELTS test on 30 May 2015.  The Tribunal advised Ms Aktar that it would not be adjourning the review any further after this and the Tribunal would proceed to a decision after she had provided results from the 30 May 2015 test[14].

    [14] CB 149, DR 10

14. By email dated 18 June 2015, Ms Aktar advised the Tribunal that she did not obtain the requisite scores in the 30 May 2015 test[15].  She had booked another IELTS test for 11 July 2015 and asked the Tribunal to delay making a decision until she had sat the test.  The Tribunal declined to grant the request. 

    [15] CB 141

15. On 30 June 2015, the Tribunal affirmed the Delegate's decision[16].  

    [16] CB 145

The Tribunal's decision

1. The Tribunal's reasons are set out at [6] to [16] of the Decision Record. The issue before the Tribunal rested solely on whether Ms Aktar could prove competent English, as defined by regulation 1.15C(a)(i), namely, by achieving an "IELTS score of at least 6 for each of the 4 test components" of speaking, reading, writing and listening[17].

   [17] CB 149, DR 6-8

2. At the date of the Tribunal's decision, Ms Aktar had not provided evidence of competent English[18]. 

   [18] CB 149, DR 8

3. Ms Aktar had already been granted an adjournment at the hearing so that she could obtain that evidence. By email dated 18 June 2015, Ms Aktar requested a second adjournment to sit a further IELTS test, which the Tribunal refused. The Tribunal expressed its conclusions with respect to its decision not to grant the second adjournment at [13] of the decision. 

4. The Tribunal therefore found that Ms Aktar did not have competent English as defined in regulation 1.15C[19]. Consequently, Ms Aktar did not meet the prescribed criteria for the grant of a skilled visa, pursuant to clause 885.213.

   [19] CB 149, DR 14

The present proceedings

1. These proceedings began with a judicial review application filed on 28 July 2015.  The applicants continue to rely upon that application.  The single ground of review in the application is:

   1. The Tribunal acted unreasonably in refusing to grant further time to let the Applicant sit the IELTS test.

   Particulars:

   The Tribunal declined the Applicant’s request for further time to submit [an] IELTS test result.

2. I have before me as evidence the court book filed on 17 September 2015.

3. The applicants and the Minister both made written and oral submissions.

Consideration

The legislation

1. Ms Aktar relied on satisfying the criteria for a subclass 885 visa set out in clause 885 of Schedule 2 to the Regulations. At the date of application, clause 885.213 stipulated: "The applicant has competent English". This term was defined in regulation 1.15C:

   1.15C Competent 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.

2. The term "General Skilled Migration visa" was defined in regulation 1.03 to include a subclass 885 visa.

3. In Berenguel v Minister for Immigration[20]  the High Court held that the expression "in a test conducted not more than 2 years before the day on which the application was lodged" in the equivalent regulation 1.15B defining "vocational English" meant that the English language requirement could be satisfied by achieving the required score in a test conducted after the application had been lodged. The Tribunal accepted this interpretation as applying to Ms Aktar’s case at [8][21].

   [20] (2010) 264 ALR 417

   [21] CB 148

Ms Aktar’s request for further time

1. The Tribunal notes at [9] that Ms Aktar had been held back from achieving the required score by her result of 5.5 in the writing component.  At [10] the Tribunal states[22]:

   The Tribunal agreed [at the hearing on 26 May 2015] to adjourn the matter to allow the applicant to sit a further IELTS test on 30 May 2015. The Tribunal advised the applicant that it would not be adjourning the review any further after this and the Tribunal would proceed to a decision after she had provided the results from the 30 May 2015 test.

   [22] CB 149

2. On 18 June Ms Aktar sent an email to the Tribunal[23] advising that she had not achieved the required score. She also advised that she was having professional tutoring twice a week and was making every attempt to improve the grammatical errors which caused her to fail to reach a score of 6.0 in the writing component. She also expressed concern for her four year old daughter who had been born in Australia and grown up here, and advised that she had booked for another test on 11 July 2015 the results of which would be published on 24 July 2015. She requested that the Tribunal extend time until 27 July 2015 for her to provide the results. Evidence of her enrolment for the test was also provided[24].

   [23] CB 141

   [24] CB 143

The Tribunal's decision

1. The Tribunal declined to grant the extra time. In its decision of 30 June 2015 it states at [13][25]:

   As discussed with the applicant at the hearing, the applicant had applied for the visa in June 2010. She had 5 years to provide evidence that she has competent English. The Tribunal has already adjourned the matter once to allow the applicant time to sit a further IELTS test. On her own evidence, the applicant has sat the IELTS test more than 20 time since the visa application was lodged, and he [sic] has yet to achieve a score of at least 6 in each of the 4 test components. She has sat the test 7 to 8 times since November 2014 and her results for writing not improved. The Tribunal does not accept that additional time would necessarily allow the applicant to achieve the required IELTS test results, given her previous history. The Tribunal will therefore proceed to decide this matter based on the evidence before it.  (emphasis added)

   [25] CB 149

Unreasonableness

1. The ground of review raises an allegation of legal unreasonableness. The relevant issue in this case is therefore whether or not it was legally unreasonable for the Tribunal to refuse to adjourn the decision under review pursuant to the discretionary adjournment power reposed in the Tribunal by s.363(1)(b) of the Migration Act 1958 (Cth) (Migration Act).

2. In Minister for Immigration v Li[26] the High Court held that the discretion to adjourn a review must be exercised reasonably. Gageler J at [123], in agreeing with the majority that the Minister's appeal should be dismissed, said that the applicant before the Tribunal was entitled not only to a decision according to law, but one according to reason. He also referred at [124] to the Tribunal's obligation under s.353 of the Migration Act to act in a way that is fair and just, and according to substantial justice and the merits of the case.

   [26] (2013) 249 CLR 332

3. The applicants assert (somewhat ambitiously) the relevant facts in this case are indistinguishable from those in Minister for Immigration v Singh[27]. The final comments of the Full Federal Court in that case were[28]:

   There was no objective or intelligible justification given by the Tribunal for refusing the adjournment. There were no grounds to believe the period required for the re-mark would be very long, given the frequency of the IELTS testing schedule. The first respondent had a basis in the marks he had received in the past to have a level of confidence that the re-mark might deliver a 6 or above in Listening. The whole exercise was aimed at producing for the Tribunal a verified and accurate mark of a test it had agreed to the first respondent taking and using as evidence in the review.

   There was no evidence about any factual reason why the Tribunal needed to make a decision in early January 2013. There was no prejudice to anyone from a short adjournment of the review, but there was significant and inevitable prejudice to the first respondent if the adjournment were refused. His application for review would be doomed to failure. The Minister accepted that the refusal by the Tribunal to adjourn was not legitimately affected by policies of which the Court has no experience.

   If a proportionality analysis were undertaken (cf Li 297 ALR 225; [2013] HCA 18 at [30], [74]), it could be said that the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal’s conduct of the review to that point, to what was at stake for the first respondent, and what he might reasonably have hoped to secure through a re-mark.

   [27] (2014) 308 ALR 280

   [28] at [75]-[77]

4. The applicants submit that the Tribunal's stated reasons in this case were unreasonable in the Li and Singh sense for the following reasons:

   a)the argument that Ms Aktar had had five years to provide evidence that she had competent English was “irrelevant” in light of the High Court's reasoning in Berenguel. At [26] the Court noted that "the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained";

   b)there was no stated reason or explanation as to why the relatively short adjournment would prejudice any person or that there was any policy or practice of not allowing for a further short adjournment in the circumstances;

   c)the Tribunal ignored Ms Aktar’s claim that she was undertaking regular professional tutoring to address the specific problem that had been causing her to fail to achieve the necessary score in the writing component;

   d)the Tribunal's explanation for the refusal took no account of the concerns expressed by Ms Aktar for her four year old child.

5. The Minister submits that the Court ought to reject Ms Aktar’s contention that the relevant facts of this case are indistinguishable from those in Singh.  In that case, the visa applicant requested an opportunity to confirm or verify the results of his IELTS test not an opportunity to sit another.  The Court found that:

   a)"the whole exercise was aimed at producing for the Tribunal a verified and accurate mark of a test it had agreed to the [visa applicant] taking and using as evidence in the review"[29];

   b)"there was, objectively, a reasonable basis to believe the mark…  may not have been an accurate reflection of the [visa applicant's] performance", namely that "he had passed that component on all three occasions when he sat the IELTS test previously"[30]; and

   c)"there was no objective or intelligible justification given by the Tribunal for refusing the adjournment".[31]

   [29] Singh at [75]

   [30] Singh at [73]

   [31] Singh at [75]

6. I accept the Minister’s submissions.  First, care should be taken in evoking the ground of unreasonableness, lest the Court stray into merits review.  The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory and "does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker"[32].

   [32] Minister for Immigration v Eden [2016] FCAFC 28 at [59]

7. Secondly, the Tribunal's determination not to grant a further extension was, in this case, entirely reasonable. This was not a case where the Tribunal had decided to bring the review to an end arbitrarily. Unlike Singh and Li, there was no evidence before the Tribunal that there was a marking or remarking process that was already underway.  Nor was it the case that the result was imminent.  Rather, the Tribunal had given Ms Aktar an extension of time to sit another test, Ms Aktar had obtained the test results and the Tribunal “did not accept that additional time would necessarily allow the applicant to achieve the required test results, given her previous history”[33].

   [33] CB 149, DR 13

8. Thirdly, in my opinion and contrary to Ms Aktar’s submission, the Tribunal did take into account her claim she was undertaking regular professional tutoring and the concerns expressed for her four year old child[34].  Put simply, the Tribunal was not persuaded by them.  The skilled visa application had been on foot for five years, during which time Ms Aktar was able to do all that she could to attain competent English.  As the Tribunal relevantly observed[35]:

   a)the matter had been ongoing for five years;

   b)the Tribunal had already adjourned the matter once to allow Ms Aktar time to sit a further IELTS test;

   c)Ms Aktar gave evidence at the hearing that she had already attempted the IELTS test more than 20 times and was unsuccessful in her most recent test in June 2015; and

   d)she sat the test seven to eight times since November 2014 and her results for writing did not improve.

   [34] CB 149, DR 11

   [35] CB 149, DR 13

9. For those reasons, the Tribunal's decision to refuse the adjournment was open to it. The Tribunal is under no obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence and “may decide, in an appropriate case, that ‘enough is enough’”[36].  Further, reasonableness, as French CJ observed in Li[37]:

   is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

   [36] Li at [82]

   [37] at 351 [30]

10. This is not a case where the Tribunal gave no reasons for its refusal to give the further opportunity sought.  Neither is it a case where the Tribunal adhered obdurately to its earlier warning that the final opportunity given would not be repeated.  The Tribunal considered the additional request made by Ms Aktar but, in essence, was not persuaded that a further opportunity would make any difference.  The relevant reasoning is set out at [13] of the Tribunal’s reasons[38].

    [38] quoted above at [28]

11. The final sentence of those reasons at [13] makes tolerably clear that the Tribunal was not persuaded by Ms Aktar’s claim that she was receiving professional tutoring twice a week in order to overcome her failure in previous tests.  The interests of Ms Aktar’s daughter would only be advanced if Ms Aktar’s passed the test and the Tribunal did not see a realistic prospect of that occurring. 

Conclusion

1. The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will award scale costs in favour of the Minister.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 31 May 2016