Alam v Minister for Immigration

Case •

[2011] FMCA 590

•

29 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 590
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal properly exercised its discretion to refuse the Applicant a further opportunity to undergo another IELTS test which, if successful, would have enabled the Applicant to have satisfied mandatory criteria of his visa to have competent English.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), pt.8 div.2
Migration Regulations 1994 (Cth), Clauses 485.215 and 485.222 of Part 485 of Schedule 2, Regulation 1.15C
Applicant: MOHAMMAD KAWSARUL ALAM
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 886 of 2011
Judgment of: Emmett FM
Hearing date: 29 July 2011
Date of Last Submission: 29 July 2011
Delivered at: Sydney
Delivered on: 29 July 2011

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondent: Matthew Alderton ( Sparke Helmore Lawyers)
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 886 of 2011

MOHAMMAD KAWSARUL ALAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Background

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 April 2011 and handed down on 18 April 2011.

  2. The applicant is a citizen of Bangladesh (“the Applicant”).

  3. The Applicant arrived in Australia on 19 June 2005 having departed legally from Bangladesh on a passport issued in his own name and a Subclass 573 Student visa and has subsequently held a number of visas in Australia.

  4. On 26 September 2008, the Applicant lodged an application for a Skilled (Provisional) (Class VC) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

  5. On 7 December 2009, the Delegate refused the Applicant’s application for a Skilled (Provisional) (Class VC) visa on the basis that the Applicant did not meet the requirements of Cl.485.222 of Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) in that he did not have competent English at the time of application or decision.

  6. On 30 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.

  7. On 15 April 2011, the Tribunal affirmed the decision of the Delegate not to grant his visa.

  8. On 5 May 2011, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal’s decision

  1. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

    “The Tribunal’s decision

    11. On 30 December 2009, the applicant lodged an application for review with the Tribunal to review the delegate’s decision: CB 91-97.

    12. By a letter dated 23 March 2011, the Tribunal validly invited the applicant to attend a hearing before the Tribunal scheduled for 15 April 2011: CB 99-101. The applicant accepted this invitation (CB 102-103) and appeared before the Tribunal to give evidence on 15 April 2011: CB 104. At the hearing, the applicant requested further time to be able to sit an IELTS test; however, the Tribunal told him that it was unwilling to accede to this request: CB 109, par 20.

    13. In a decision dated 15 April 2011, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for the visa: CB 105-111.

    14. The Tribunal found that the ‘main issue’ before it was whether the applicant met the requirements of cl.485.215 and cl.485.222 for the grant of the visa: CB 109, par 22. Significantly, the Tribunal was satisfied that the applicant did not have ‘competent English’ within the meaning of r.1.15C at the time of application (cl.485.215) or decision (cl.485.222).

    15. In reaching this decision, the Tribunal found that the applicant did not satisfy either cl.485.215(a) or cl.485.222(a), as his nominated skilled occupation was not in the Major Group IV in the Australian Standard Classification of Occupations: CB 110, par 24. The Tribunal proceeded to consider whether the applicant satisfied cl.428.215(b) and cl.485.222(b): CB 110, par 25. The Tribunal found there was no evidence before it that the applicant had ‘competent English’ as defined by r.1.15C. Firstly, the Tribunal found on the basis of the applicant’s own evidence that he had not achieved a score of six in each of the four test components of an IELTS as required by r.1.15C(a)(i): CB 110, par 26. Secondly, the applicant had not undertaken an Occupational English Language test, as provided for by r.1.15C(a)(ii): CB 110, par 27. Thirdly, as the applicant only held a Bangladeshi passport, the Tribunal was satisfied that he did not hold a passport of the type specified to meet the requirements of r.1.15C(b): CB 110, par 28. Accordingly, the Tribunal found that the applicant did not satisfy cl.485.215(b) and cl.485.222(b): CB 110, par 29.

    16. Finally, the Tribunal found that even if it did find that the application was accompanied by evidence that the applicant had made arrangements to undergo a language test as provided for by cl.485.215(c), it was not satisfied that ‘at the time of decision’ the applicant had competent English as required by cl.485.222: CB 110, par 30.”

The proceeding before this Court

  1. The Applicant was unrepresented before this Court. 

  2. On 25 May 2011, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.

  3. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

  4. The Applicant confirmed that he relied on the grounds contained in the application filed on 5 May 2011 as follows:

    “1. The Second Respondent made jurisdictional error in that it made an error of law in relation to the construction of clause 485.215(b) of Schedule 2 of the Migration Regulations 1994. Particulars:

    (i) The Second Respondent at [25] stated that while the applicant had not achieved an IELTS test result, this was after the date of application.

    (ii) The implicit findings (1) above was that to satisfy the requirements in clause 485.215(b) the relevant IELTS test (for the purpose of Registration 15C of when a person has competent English) must be undertake (sic) before the date of application.

    (iii): (i) and (ii) above constituted legal error in that 485.215(b) contemplates a test taken after the date of the application.

    2. The Second Respondent made jurisdiction error in relation to medical issues [23]. Particulars: the Second Respondent denied accepting any medical circumstances just because the applicant didn’t provide any medical evidence before the tribunal at the time of hearing.”

  5. The Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant declined to make nay submission in support of the grounds of his application or his application generally.

Ground 1

  1. The complaints made in ground 1 are unclear. As stated above, the Applicant declined to make any submission in support. Doing the best I can, I understand the Applicant’s complaint probably to be that the Tribunal considered only whether the Applicant had complied with the conditions of his visa at the time of his visa application, rather than also as at the time of the Tribunal’s decision. However, the Tribunal’s decision record does not bear out that assertion.

  2. Clause 485.222 of Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) is one of the mandatory requirements for the grant of a visa. Cl.485.222 relevantly states that at the time of decision, the applicant has competent English. Clause 485.215 of the Regulations provided that the Applicant may also have demonstrated competent English at the time of the application.

  3. Regulation 1.15C prescribes that an applicant has competent English if, relevantly, he has an International English Language Testing System (‘IELTS’) test score of at least 6 for each of the test components of speaking, reading, writing and listening. Such a test must be conducted not more than 2 years before the date on which the application for a visa was lodged.

  4. The Applicant may otherwise satisfy Regulation 1.15C if he holds a passport issued by the United Kingdom, the Unites States of America, Canada, New Zealand or Ireland (see Regulation 1.15C(b)). However, the Applicant is a citizen of Bangladesh and is the holder of a Bangladesh passport and therefore cannot satisfy Regulation 1.15(C)(b) of the Regulations. He must therefore demonstrate competent English by providing IELTS test results.

  5. The Tribunal correctly noted that the issue before it was whether the Applicant has provided evidence of competent English in order to satisfy this requirement of his visa.

  6. The Tribunal noted that at the hearing, it explained the requirements of Cl.485.215 of the Regulations which, together with Cl.485.222, had the effect that the Applicant must have competent English at the time of the visa application or relevantly, the time of the Tribunal’s decision. The Tribunal noted the Applicant’s evidence that he had done several IELTS tests but had failed to achieve the score of 6 in each component. He also said he had not completed an Occupational English Test. The Tribunal noted that the Applicant confirmed that he did not have competent English.

  7. The Tribunal noted the Applicant’s explanation for his failure to achieve competent English was because of personal problems and a phobia he had about doing another IELTS test. The Tribunal noted that the Applicant had said he had not done another test for a year, but, given another month or two, would undertake the test. The Tribunal noted that it put to the Applicant that there was no medical evidence about any medical issue that may have prevented the Applicant from undertaking the test in the past 12 months. The Tribunal informed the Applicant that it was unwilling to give him further time to undertake another test because he had made no effort to undertake or even enrol in the test in the past 12 months even though he was aware of the English competence requirement at the time he lodged his visa application some two and a half years ago.

  8. Ultimately, the Tribunal decided to make its decision without giving the Applicant any further opportunity to undertake another IELTS test.

  9. The Tribunal noted that Cl.485.215 required either that the Applicant’s skilled occupation is in a Major Group IV of the Australian Standard Classification of Occupations or that he must have competent English. The Applicant’s nominated occupation of Accountant was not in the Major Group IV Australian Standard Classification of Occupations and therefore the Tribunal found that the Applicant must have competent English to satisfy the mandatory criteria of his visa.

  10. The Tribunal found that “there is no evidence before the Tribunal that at the time of the application or at the time of decision, the applicant has achieved, in a test conducted not more than 2 years before the date on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening (emphasis added)”.

  11. In the circumstances, the Tribunal was not satisfied the Applicant had competent English as defined in Regulation 1.15C of the Regulations. Accordingly, the Tribunal found that the Applicant did not meet the mandatory criteria of his visa, relevantly, that he have competent English at the time of application or at the time of decision in accordance with Cl.485.215 and Cl.485.222.

  12. Those findings by the Tribunal were open to it on the evidence and material before it and for the reasons it gave. 

  13. Plainly, the Tribunal considered whether the Applicant had competent English at the time of his visa application and at the time of the Tribunal’s decision. The Tribunal did not find that the Applicant was required only to satisfy the criteria at the time of decision as asserted in ground 1.

  14. Accordingly, ground 1 is not made out.

Ground 2

  1. I understand ground 2 to be asserting that the Tribunal erred in the exercise of its discretion to refuse the Applicant any further time to undergo a further IELTS test by failing to accept his own oral evidence of his medical circumstances.

  2. As is clear from the Tribunal’s reasons above, the Tribunal acknowledged that the Applicant requested a further month or two to undertake the test and that the Applicant said he had been “disordered” in the past year because of personal problems and had a phobia about doing another IELTS test. The Tribunal also informed the Applicant that it was unwilling to give him further time to undertake another test given that he would have been aware of the visa requirement to have competent English at the time he made the application two and a half years ago and that he had made no effort to undertake the test or even enrol in the test in the past 12 months.

  3. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 25 May 2011 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

  4. In relation to the Applicant’s assertion of his personal issues and phobia, the Tribunal noted that he provided no medical evidence of any incapacity to undertake the test in the past 12 months and no explanation as to why he now believed he could register for a test and complete one if granted more time.

  5. For those reasons, the Tribunal proceeded to make its decision without giving the Applicant a further opportunity to undertake the mandatory test.

  6. There is no error in the manner in which the Tribunal exercised its discretion refusing the Applicant’s request for a further opportunity to undertake a further language test. The Tribunal’s decision record makes clear that it understood the request made by the Applicant and his explanation for his failure to have taken a further test in the past 12 months. The Tribunal considered the Applicant’s evidence and his submissions. However, those matters were not sufficient to persuade the Tribunal to exercise its discretion in favour of the Applicant’s request.

  7. In the circumstances, the Tribunal’s decision to refuse the Applicant’s request for a further opportunity to undertake another IELTS test was open to it on the evidence and material before it and for the reasons it gave.

  8. Accordingly ground 2 is not made out.

Conclusion

  1. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

  2. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

  3. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  29 July 2011

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