Alam v Minister for Immigration
[2010] FMCA 351
•14 May 2010
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 no earlier than two years before the date of visa application (see [19], [25] and the Court’s answer to Question 1 in Berenguel. The Minister’s concession is recorded in Berenguel v Minister for Immigration & Citizenship [2010] HCATrans 41 at [210], [250], and [410]). In the present case, the beneficial interpretation of the definition was adopted by both the delegate and the Tribunal, and no Berenguel issues arise.
Mr Alam’s visa application was not accompanied by evidence of his having achieved the necessary test results prior to visa application, and he endeavoured to achieve those results while the matter was pending before the delegate. He provided no evidence of competent English to the delegate, and the delegate refused the visa applications on 16 July 2009 on that ground.
On appeal, Mr Alam never achieved the necessary results before the Tribunal made a decision on 7 January 2010. It therefore affirmed the delegate’s decision on the same grounds that the delegate had decided on the matter, that is, that Mr Alam did not meet cl.485.222.
Mr Alam now asks the Court to set aside the Tribunal’s decision and to remit the matter for a further hearing by the Tribunal. I have power to make orders remitting the matter only if the Tribunal’s decision is affected by a jurisdictional error. I do not have power myself to decide whether general considerations of fairness should allow Mr Alam more opportunities to satisfy visa criteria, nor to assess for myself whether he satisfies visa criteria, or should be given permission to stay in Australia.
Essentially, Mr Alam’s application, amended application, and written submissions, argue that the Tribunal failed to follow fair or necessary procedures when declining to adjourn the making of its decision beyond 7 January 2010, in particular, to allow him to sit a further test on 23 January 2010.
The submissions for the Minister carefully summarise Mr Alam’s efforts to produce evidence of satisfactory test results, and I accept counsel’s narrative, omitting his citation of pages in the Court Book.
8.The Tribunal reached its decision in circumstances where the Applicant had asked it to delay making a decision, so that he could sit further IELTS tests in an attempt to obtain the necessary scores. The history is as follows:
(i)In his visa application the Applicant noted that he had not undertaken an English test. No evidence of arrangements to undertake the test was lodged with the form.
(ii)On 9 February 2009 the Department asked him to supply evidence of English language ability within 28 days.
(iii)On 26 May 2009 the Department asked the Applicant to supply evidence that he had passed a test, or made arrangements to undergo the test, before lodging his application.
(iv)On 19 June 2009 the Applicant’s adviser sent the Department a copy of a bank statement, showing payments made on 8 August 2008, which were said to be evidence of a test booking having been made. The adviser also reported that the Applicant ‘didn’t get a satisfactory marks (sic) in the test and he has booked another test’. Evidence of that booking was attached. The adviser asked the Department for an ‘extension’ – presumably to allow him to submit the results of that test.
(v)The Department refused that request and the delegate made a decision on 16 July. The delegate accepted the bank statement as evidence of arrangements having been made for the purposes of cl.485.215(c), but refused the visa on the basis that there was no evidence that the Applicant had ‘competent English’.
(vi)On 13 October 2009 the Tribunal invited the Applicant to provide, by 10 November, IELTS test results showing that he had ‘competent English’.
(vii)On 2 November the adviser responded that the Applicant had not ‘achieved Competent English so far’, but was awaiting the results of a test undertaken a few days earlier. The Tribunal was asked to wait for the results of that test, and if necessary for the results of two further tests which had been booked (on 12 December 2009 and 23 January 2009).
(viii)The Tribunal decided not to grant an extension of time and to schedule a hearing. The hearing took place on 2 December 2009.
(ix)During the hearing the Applicant conveyed the results of his last IELTS test (which were insufficient to establish ‘competent English’). The Tribunal informed the Applicant that it would await the results of the test on 12 December, but did not consider it appropriate to delay its decision pending any further tests.
(x)On the same day the Tribunal wrote to the Applicant, formally requesting in writing the results of the 12 December test. This information was required by 30 December 2009.
(xi)No response to this request, nor any further test result, was received by the time the Tribunal made its decision on 7 January 2010.
(xii)The Amended Application asserts that the Applicant did not sit the IELTS test which he had booked on 12 December because of illness, and that he told his agent about his. However, there is no admissible evidence to support this assertion; and in any event it is clear that the Tribunal was not informed of this development.
In relation to paragraph (vii), the agent’s letter to the Tribunal said:
I refer to your letter to the applicant of 13 October 2009.
The primary applicant advised that he has not achieved Competent English so far.
However he sat an IELTS exam on 31 October 2009 in Wollongong College IELTS examination centre and he will let you know if it has met the requirements. He request that you wait for the release of this IELTS result, which may be 2 weeks away.
He makes further requests that he can be allowed to do additional tests, which will take place on 12 December 2009 and 23 January 2009, if he is so unfortunate that he has failed again. These two booking receipts are enclosed.
Thank you for your attention.
In relation to paragraph (viii), a Tribunal file note records a conversation with the agent on 13 November 2009:
I called Mr Chaofeng Guan and advised that the member has decided not to grant the extension of time to provide information and will proceed to schedule a hearing. I advised we will write to him confirming the above.
The Tribunal included the following description of what happened at the hearing held on 2 December 2009 in its statement of reasons. No party has tendered a transcript to give better details as to what was said.
18.At the Tribunal hearing he said that he is constantly working with a group of friends to improve his English language competency. One of the things he is doing is sitting mock IELTS tests and those friends are coaching him to improve. At the date of the Tribunal hearing he was due to sit another IELTS test on 12 December 2009, the results of which were expected to be available two weeks after that date. He handed up to the Tribunal evidence of his booking for this test at ACL Sydney Test Centre.
19.The Tribunal indicated to him at the hearing that it was prepared to await the results of that test before making a decision but that it was not appropriate for the Tribunal to delay a decision pending any further IELTS test he might take.
20.After the hearing the Tribunal wrote to him, inviting him to provide by 30 December 2009 the results for the IELTS test he was to sit on 12 December 2009. The Tribunal received no response to that letter and had not, as at the date of this decision, received a copy of any test results.
The Tribunal’s hearing record has the annotation:
Tribunal will write to applicant after 12 Dec. to seek results of IELTS test on that day.
The Tribunal did write to Mr Alam’s agent, who was his authorised recipient for correspondence, on the day of the hearing:
I am writing about the applications for review made by you in relation to decisions to refuse to grant Skilled (Provisional) (Class VC) visas.
You are invited to provide the following information in writing:
·IELTS results for the test you are to sit at ACL Sydney Test Centre on 12 December 2009.
The information should be received at the Tribunal by 30 December 2009. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 30 December 2009, you may ask the Tribunal in writing for an extension of time in which to provide the information. If you make such a request, it must be received by the Tribunal before 30 December 2009 and the request must state the reason why the extension of time is required.
The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the Tribunal does not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.
If you have any questions, please contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 xxx xxx. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 xxx.
(emphasis in original)
Mr Alam has not presented evidence to the Court challenging the above events. He made statements in the course of today’s hearing suggesting that prior to the hearing, his agent probably communicated to him the gist of the conversation with the Tribunal officer on 13 November 2009. That is, that the Tribunal had decided not to grant an extension of time to allow the sitting of the January test. It appears to me highly likely that this was also confirmed orally in the course of the hearing.
I do not accept that anything was said by the Tribunal to mislead Mr Alam into believing that he would be given an opportunity to sit the January test. There is no evidence to support this assertion made in Mr Alam’s application. Rather, in my opinion, all the evidence points to Mr Alam and his agent being clearly told, prior to and at the hearing, that Mr Alam was being given one further and last opportunity to achieve a satisfactory result, being at the test to be conducted on 12 December 2009.
Mr Alam does not dispute that, in fact, no communication was made to the Tribunal by his agent or himself in response to the Tribunal’s letter of 2 December 2009, giving notice that it would proceed to make a decision in that event. However, Mr Alam’s documents and statements to me today claim that he was unable to attend that test due to an unspecified illness, and that his agent was at fault for not seeking further time from the Tribunal based on this information. These claims are not verified, nor corroborated by any documentary evidence, or evidence of a medical nature, or evidence from the agent. However, I shall assume their truth, since in my opinion they do not assist him to locate any jurisdictional error affecting the Tribunal’s 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.
As I have found above, this decision was communicated to Mr Alam’s agent prior to the hearing, and was probably confirmed to Mr Alam in the course of the hearing. It was again clearly conveyed in the letter sent to the agent dated 2 December 2009. I do not accept the contention that Mr Alam and his agent were not told that the Tribunal had declined the previous application to delay making a decision beyond December to allow the January test to be sat.
Nor do I accept that the Tribunal denied Mr Alam and his agent a reasonable opportunity to put forward all his submissions in support of a longer adjournment, and in particular an adjournment of the decision until after the appointed January test.
In my opinion, the Tribunal’s decision to proceed to make a final substantive decision was clearly within its procedural powers, which give it a general discretion in relation to adjourning a review from time to time (see s.363(1)(b) of the Migration Act 1958 (Cth)). I can detect no arguable basis for finding any failure to follow a procedure required to be followed under the Migration Act, including such procedures as may be perceived to be designed to give procedural fairness to an applicant.
In my opinion, Mr Alam’s invocation of s.359A of the Migration Act is misconceived. That section requires the Tribunal to invite written comment upon “information” which would provide the reason or part of the reasons for affirming a delegate’s decision. There was no information coming within this section in the present case. The Tribunal’s reasoning proceeded upon the absence of necessary information presented by the applicant to satisfy criteria for cl.485.222. No obligations under s.359A therefore arose.
Moreover, as I have found above, in my opinion the Tribunal clearly discussed with Mr Alam’s agent and Mr Alam the extent to which it was willing to delay the making of its decision.
Assuming the truth of Mr Alam’s assertions that his agent gave “poor immigration assistance” by not communicating to the Tribunal the claim that his sickness prevented his sitting the December test, and by not responding to the Tribunal’s letter by conveying this information and seeking a further delay, I do not consider that these facts would provide any ground of jurisdictional error. At most, Mr Alam asserts negligence or carelessness on the part of his agent, and his assertions fall far short of the fraudulent conduct which the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 found could give rise to jurisdictional error. Mr Alam had appointed his agent as the person to whom the Tribunal should address its correspondence, and the Tribunal was bound to follow his direction when sending its letters to the agent (see SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199, [2007] FCAFC 63 and SZIZO v Minister for Immigration & Citizenship (2008) 172 FCR 152, [2008] FCAFC 122 at [77]).
The Tribunal was bound to do no more than it did, when informing the agent that any further extension of time would need to be requested before 30 December 2009, and that in the absence thereof the Tribunal would make a decision. The fact that that letter might not have been communicated by the agent to Mr Alam does not, in my opinion, provide grounds for setting aside the Tribunal’s decision which affirmed the delegate’s decision.
For the above reasons, I am not satisfied that any ground of jurisdictional error arises allowing me to quash the decision of the Tribunal and to make an order compelling it to redetermine the matter.
I must therefore dismiss the application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 27 May 2010
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