Alam v Minister for Immigration - [2010] FMCA 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 215

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal was obliged to consider the applicant’s claim to the Department that he was entitled to 20 points in respect of his language skill qualifications – whether the Migration Review Tribunal gave proper consideration of regulation 2.26A(5) of the Migration Regulations 1994 (Cth), in determining that it was not satisfied that it was not reasonably practicable, or not necessary for the applicant to be tested using IELTS testing.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.368; 414; 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg.2.26(2)(a)(iv); 2.26A(5); sch.6A

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24
SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577
Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation v Director-General of the Department of Environmental and Climate Control Change (2008) 251 ALR 633

Applicant:

MD SARWAR E ALAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2926 of 2009

Judgment of:

Emmett FM

Hearing date:

22 March 2010

Date of Last Submission:

22 March 2010

Delivered at:

Sydney

Delivered on:

29 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Ms S. Gnanakaran, Fragomen

Counsel for the Respondent:

Mr G. Kennett

Solicitors for the Respondent:

Mr J. Pinder, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2926 of 2009

MD SARWAR E ALAM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 3 November 2009 and handed down the same day.
The applicant claims to be a citizen of Bangladesh and arrived in Australia on 30 May 2003 (‘the Applicant”).

Background

On 31 August 2006, the Applicant lodged an application for a class (DD), subclass 880 Skilled Independent Overseas Student (Residence) visa (“the Visa”), accompanied by supporting documentation, with the Department of Immigration and Multicultural Affairs under the Act.
Pursuant to reg.2.26(2)(a)(iv) of the Migration Regulations 1994 (Cth) (“the Regulations”) the Applicant is required to achieve a sufficient number of points in accordance with Schedule 6A of the Regulations.
The relevant part of Schedule 6A for this proceeding is “Part 3-Language Skill Qualifications”. In accordance with his results, the Applicant was awarded 15 points in respect of his language skill qualifications. Taken together with the other…

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 215
Decision Date: 29 March 2010

CaseChat Overview and Summary

In Alam v Minister for Immigration, the Federal Magistrates Court was asked to review a decision made by the Migration Review Tribunal (MRT) regarding the applicant's visa application. The applicant, MD Sarwar E Alam, sought to challenge the Tribunal's decision to not grant him 20 points for his English language skills as claimed, and instead awarded him only 15 points. This shortfall meant that the applicant did not meet the required points threshold for his visa application.

The primary legal issues in this case revolved around whether the MRT was obligated to consider the applicant's claim that he was entitled to 20 points for his language skills, and whether the Tribunal properly considered the regulation that allowed it to waive the requirement for the International English Language Testing System (IELTS) test under certain circumstances. The applicant argued that the Tribunal failed to genuinely consider his claim and the relevant regulation, resulting in jurisdictional error.

The Court found that the Tribunal was not required to consider the applicant's claim, as it had effectively been abandoned by the applicant himself, who instead focused on achieving a satisfactory IELTS score. The Court also found that the Tribunal had properly considered the regulation in question, and had determined that it was reasonably practicable and necessary for the applicant to be tested using the IELTS. As the Tribunal's decision was not affected by jurisdictional error, the Court dismissed the applicant's appeal and ruled that it had no jurisdiction to interfere with the Tribunal's decision. The Court further ordered that the proceeding be dismissed with costs.

Orders