Alam v Minister for Immigration - [2010] FMCA 351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 351

MIGRATION – MRT decision – onshore skilled graduate visa – competent English test – no evidence of necessary IELTS results presented to Department or Tribunal – refusal by Tribunal to delay decision to allow further attempt at test – no jurisdictional error affecting procedures or decision of Tribunal – application dismissed.

Migration Act 1958 (Cth), ss.359A, 363(1)(b)

Migration Regulations 1994 (Cth), reg.1.15C, Sch.2 cll.485.215(c), 485.222

Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8
Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189
SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199, [2007] FCAFC 63
SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152, [2008] FCAFC 122

First Applicant:

MOHAMMAD MAHBUBUL ALAM

Second Applicant:

ROZALIN SALMA SADIQ

Third Applicant:

MD WAFI KARIB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 207 of 2010

Judgment of:

Smith FM

Hearing date:

14 May 2010

Delivered at:

Sydney

Delivered on:

14 May 2010

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 207 of 2010

MOHAMMAD MAHBUBUL ALAM

First Applicant

ROZALIN SALMA SADIQ

Second Applicant

MD WAFI KARIB

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Alam studied in Australia and then, on 11 September 2008, a migration agent lodged on his behalf an application for a class VC subclass 485 skilled graduate visa, to allow further residence in Australia by Mr Alam and his family.
One of the criteria which applied to his visa application arose under Sch.2 cl.485.222 of the Migration Regulations 1994 (Cth), in their terms at the relevant time. It applied to visa applicants who had not presented evidence that they had ‘competent English’ at the time of their visa application, and it required that they should establish ‘competent English’ at the time of decision. ‘Competent English’ was defined in reg.1.15C in relation to people such as Mr Alam, to require the achieving of “an IELTS score of at least 6 for each of the 4 test components of speaking, reading, writing and listening”.
Although there has been some uncertainty about the time when such a result was required to be achieved, as ultimately conceded by the Minister in the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417, [2010] HCA 8, the definition of ‘competent English’ allows a sufficient result to be achieved in a test conducted at any time before the date of decision, but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 351
Decision Date: 14 May 2010

CaseChat Overview and Summary

In the case of Alam v Minister for Immigration, the applicant, Mr Alam, sought judicial review of decisions made by the Migration Review Tribunal (MRT) regarding his visa application. The primary focus of the dispute was the Tribunal's handling of two IELTS test bookings provided by Mr Alam. The Federal Court was tasked with determining whether the Tribunal had correctly exercised its discretion under the Migration Act.

The central legal issue before the court was whether the MRT had properly considered the two IELTS test bookings provided by Mr Alam and if it had afforded him an opportunity to comment on the decision to not adjourn its consideration until the second test result was available. The court had to assess whether the Tribunal's actions constituted a breach of natural justice or a jurisdictional error under Section 359A of the Migration Act.

The court found that the MRT had not disregarded the two IELTS test bookings, as suggested by Mr Alam. The Tribunal had indeed considered the possibility of adjourning its decision to account for the second test but ultimately decided against it. The court held that the Tribunal had provided adequate particulars to Mr Alam and his agent regarding its decision-making process and had not breached any statutory obligations or principles of natural justice. Consequently, the court dismissed the application and ordered Mr Alam to pay the Minister's costs.

Orders

Orders of the court

The application is dismissed.

The first and second applicants must pay the first respondent’s costs in the sum of $5,400.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Alam’s grounds in his original application are essentially repeated and amplified in the grounds in his amended application. These state: 1.The Migration Review Tribunal (MRT) disregarded my receipts of booking for two IELTS. Particulars: A.I provided two booking receipt for IELTS test of two different date to the Tribunal. After receiving the two receipts the Tribunal did not inform me that they would not allow me to sit for other IELTS exams. Rather the Tribunal affirmed the decision just after the first booking date had elapsed. In its decision the Tribunal did not mention anything about second booking of which I provided receipt along with my first booking.2.The Migration Review Tribunal did not invite me to comment. Particulars: A.As I provided two booking receipts for IELTS test to the Tribunal, it didn’t say anything whether they would decide my case just after seeing the first test’s result. When the first booking date was elapsed, they wrote a letter to my agent which unfortunately I was not aware of. I failed to sit in my first IELTS which I was to take on 12 December 2009 out of the two tests due to sickness which I informed to my agent. The MRT did not invite me to comment whether they would accept my second booking or not in order to take the IELTS test by me or did not ask for any further clarification. The Tribunal breached Section 359A of Migration Act. Section 359A focuses the Tribunal’s obligation to give to the applicant particulars of any information that Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. And also the Tribunal should ensure the applicant that they understand why that information is relevant to the review and the applicant to comment on it. The Tribunal did not indicate me that they would only consider my first IELTS (as I provided two booking receipts) test. They did not tell me that they will not consider my second booking. They just asked for IELTS result that I was supposed to take on 12 December 2009 and did not invite me to comment regarding my second booking. 3.The Migration Review Tribunal failed to give me natural justice. Particulars: Due to sickness I was not able to sit on my IELTS test. I was preparing for my second test and booking receipts were provided to MRT. The MRT did not give me natural justice as it decided my case just after the first test and result time were elapsed. So the Tribunal breached Migration Act thus made jurisdictional error in deciding my case. (emphasis in original) In relation to the assertion that the Tribunal disregarded the bookings of tests in December 2009 and January 2010 which had been forwarded to the Tribunal by Mr Alam’s agent on 2 November 2009, I do not accept that they were “disregarded” by the Tribunal at any time. As the evidence indicates, the Tribunal considered the question of adjourning the making of a decision to allow time for both of those test results to become available, and it made a decision not to delay its decision beyond the December test.

Ratio Decidendi

Legal Principle Established

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