Alam v Minister for Immigration
[2010] FMCA 215
•29 March 2010
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 points accumulated by the Applicant, that score was insufficient to enable the Applicant to satisfy the points required for his visa. Had the Applicant been awarded 20 points in respect of his language skill qualifications, the Applicant would have satisfied the criteria necessary for his visa.
Regulation 2.26A(5) states that the Minister may determine that the Applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A, if the Minister determines that it is not reasonably practicable, or not necessary, for the Applicant to be tested using the IELTS tests.
The application filed on 31 August 2006 was supported by a letter from the Applicant’s migration agent, dated 29 August 2006. In particular, the letter stated that the Applicant was claiming 20 points for English as evidenced by his studies in English in Australia. In July 2006, the Applicant had completed both a Graduate Diploma of Information Systems and a Master of Information Systems at the Central Queensland University.
The letter attached copies of the Applicant’s academic qualifications received in both Bangladesh and in Australia. Copies of those documents were provided in support of the Applicant’s claim to be entitled to 20 points for English.
Delegate’s decision
On 1 September 2008, a delegate of the First Respondent (“the Delegate”) determined that the Applicant was required to achieve a point score of 120 points under Schedule 6A point system and that the Applicant had achieved 115 points only. For that reason, the Delegate determined that the Applicant had not satisfied the requirements of sub-clause 880.222 in respect of the visa of which he was applying and accordingly refused the application.
The Delegate did not consider the claim made by the Applicant’s adviser in the letter, dated 29 August 2006, that the Applicant should be entitled 20 points for English as evidenced by his studies in English in Australia. Neither did the Delegate refer to the discretion it had in reg.2.26A(5) to determine that it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS test.
Review by MRT
On 17 September 2008, the Applicant lodged an application for review of the Delegate’s decision with the Tribunal. On 23 February 2008, the Applicant appointed his migration agent to be his representative and authorised recipient before the Tribunal. As is discussed more fully later in these reasons, neither in the application for review , nor in any subsequent submission, oral or written, did the Applicant or his adviser suggest that the Tribunal should determine that it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS tests; and, that, therefore, the Tribunal should exercise its discretion under reg.2.26A(5) of the Regulations to determine that the Applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A.
Following the lodging of the review application, there was correspondence between the Tribunal and the Applicant’s migration agent whereby the Applicant provided to the Tribunal IELTS test results dated 12 December 2007, 30 January 2008, 11 June 2008, 4 September 2008 and 23 October 2008. None of the test results satisfied the relevant criteria to enable the Applicant to achieve a test score of more than 15.
On 11 May 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone and invited the Applicant to appear before it on 22 May 2009.
On 18 May 2009, Parish Patience Immigration Lawyers wrote to the Tribunal confirming their recent instructions to act on behalf of the Applicant. The letter informed the Tribunal that the Applicant had booked IELTS tests on 22 August 2009 and 5 September 2009. The letter requested that the Tribunal defer making a decision until the result of one of the Applicant’s test became available. The letter also acknowledged that the Tribunal had already been advised by the Applicant’s former migration agent that the Applicant had booked for tests on 12 September 2009.
On 26 June 2009, Parish Patience Immigration Lawyers wrote to the Tribunal enclosing the Applicant’s IELTS test results, dated 30 May 2009. The letter informed the Tribunal the next occasion when the Applicant was scheduled to sit for the test was 22 August 2009 and requested the Tribunal give the Applicant “one last chance to achieve the required score”. Again, the letter requested the Tribunal defer making a final decision on the application for review until the result of the next test was made available.
Further correspondence followed between the Tribunal and Parish Patience Immigration Lawyers on behalf of the Applicant seeking further extensions of time having regard to further IELTS tests in which the Applicant had enrolled to sit. That correspondence is summarised in the Tribunal’s decision record and discloses that the Tribunal continued to give the Applicant an opportunity to provide to it IELTS test results that gave him a point score of 20.
It was not until 22 October 2009, that the Tribunal finally refused the Applicant’s most recent request for yet another extension of time to allow the Applicant to sit for yet another IELTS test. However, the letter informed the Applicant that the Tribunal would not make its decision prior to 30 October 2009.
The Tribunal had regard to the relevant law in considering the Applicant’s total point score under the Regulations enforced at the time of the primary assessment. Relevantly, the Tribunal found that it had given the Applicant every proper opportunity to provide evidence that he had the English language proficiency under the IELTS tests for the award of 20 points. It is common ground that the Applicant was unable to provide evidence to the Tribunal that any of his IELTS test results entitled him to a proficiency award of 20 points.
Critically, the Tribunal stated at the end of its consideration of the “Part 3-Language Skill Qualifications” section:
“The Tribunal is not satisfied that it is not reasonably practicable, or not necessary, for the applicant to be tested using IELTS . Accordingly, the Tribunal finds that the applicant is entitled to 15 points for Part 3 in accordance with item 6A33 of Schedule 6A.”
The Tribunal concluded that the Applicant was entitled to a total of 115 points under the points test as it applied under the Regulations as at the date of the primary assessment and at the time of its decision. The Tribunal found that, as at those times, the pass mark was 120 points. Accordingly, the Tribunal found that the Applicant had failed to achieve the qualifying score required to pass the points test. The Tribunal found that for those reasons the Applicant did not meet cl.880.222, being a prescribed criterion for the grant of a subclass 880 visa.
Accordingly, the Tribunal affirmed the decision under review.
Proceeding before this Court
On 30 November 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. On 10 February 2010, the Applicant filed an amended application.
The Applicant was represented by Mr Reynolds, of counsel, before this Court who confirmed that the Applicant relied on the following ground:
“1.The Second Respondent committed jurisdictional error by failing to give genuine or real consideration to the exercise of its discretion under regulation 2.26A(5) of the Migration Regulations 1994 (Cth) (“Regulations”), failing to consider matters relevant to the exercise of the said discretion, or otherwise misconstruing the provision.
Particulars
(a)the Tribunal had a discretion to ‘waive’ the International English Language Testing System (“”) requirements set out in Schedule 6A of the Regulations, pursuant to regulation 2.26A(5) of the Regulations;
(b) the Tribunal committed jurisdictional error in the exercise of its discretion is that it failed to give genuine or real consideration to the exercise of its discretion. The Tribunal expressed the bare conclusion that it refused to exercise its discretion (Tribunal Decision at [31]), whereas there is no evidence of it having given genuine or real consideration in this regard;
(c)further and in the alternative, the Tribunal did not engage in an active intellectual process when purporting to consider its discretion, as was required. This amounts to jurisdictional error;
(d)further and in the alternative, the Tribunal failed to have regard to a relevant consideration in the exercise of its discretion, being the Applicant’s obtaining of Australian educational qualifications (a Diploma and a Masters) in circumstances where English was the language of instruction.”
Essentially, Mr Reynolds raised 2 issues. The first related to whether the Tribunal was obliged to consider the Applicant’s claim to the Delegate that he was entitled to 20 points in respect of his language skill qualifications. The second related to whether the Tribunal gave proper consideration 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. These are dealt with below.
i) Failure to consider claim
At the heart of the Applicant’s submissions, is a contention that the Tribunal failed to have regard to the Applicant’s claim made to the Delegate by letter, dated 29 August 2006, that he was entitled 20 points for English as evidenced by his studies in English in Australia. Mr Reynolds also submitted that the Tribunal did not have regard to the documents provided by the Applicant in support of that claim in determining that it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS tests.
Mr Reynolds submitted that the Tribunal should have had regard to that claim by the Applicant in considering whether or not it should exercise its discretion under reg.2.26A(5) of the Regulations. Mr Reynolds contended that it was a claim that was clearly made by the Applicant before the Delegate and that s.414 of the Act required the Tribunal to consider the claims of the Applicant.
Mr Reynolds referred to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J in support of his submission that s.414 of the Act obliges the Tribunal to consider an applicant’s claims even if they are not specifically referred to by an applicant.
Mr Reynolds submitted that the Applicant’s claim had not been abandoned before the Tribunal and that it reasonably arose on the material and evidence before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 (“NABE”) at [63]).
However, in both Htun and NABE there was evidence and material placed before the Tribunal by the Applicant that gave rise to the Court’s enunciation of those principles.
Mr Reynolds submitted that, in the circumstances, the Tribunal had failed to take account of a relevant consideration and in so doing fell into jurisdictional error (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 at 39).
In the case before this Court, as stated above, the Delegate made no mention of the claim in its decision record and, thereafter, the Applicant made no further complaint, reference or submission in respect of that claim to the Tribunal.
A fair reading of the correspondence between the Applicant and his various advisers and the evidence given by the Applicant at the hearing makes clear that the Applicant’s entire focus was in gaining as many opportunities as he could to seek to achieve a satisfactory score in the IELTS tests to entitle him to a point score of 20. As stated above, at no stage during the conduct of the Tribunal’s review, including the hearing, was any submission or reference made by the Applicant or his advisers to the effect that the Applicant should be entitled to a point score of 20 because of his prior academic achievements. Certainly, there was no express submission made by the Applicant or his advisers, orally or in writing inviting the Tribunal to exercise its power under reg.2.26A(5).
In the circumstances, from the way in which the Applicant had conducted his review before the Tribunal, the tribunal was entitled to proceed on the basis that the Applicant no longer claimed to be entitled to 20 points for English as evidenced by his studies in English in Australia and must be taken to have abandoned that claim.
The exercise of the power in reg.2.26A(5) of the Regulations only arises if the Tribunal has determined that it was not reasonably practicable or not necessary for the Applicant to be tested using IELTS tests.
As stated above, the Tribunal was not satisfied that it is not reasonably practicable, or not necessary, for the Applicant to be tested using IELTS. Accordingly, the Tribunal found that the Applicant was entitled to no more than 15 points for Part 3 in accordance with item 6A33 of Schedule 6A.
“Proper consideration”
Counsel for the Applicant further contended that the Tribunal did not give proper consideration to the issue of whether or not it was satisfied that it was not reasonably practicable or not necessary for the Applicant to be tested using IELTS tests.
Counsel for the Applicant submitted that the Tribunal was required to give proper genuine and realistic consideration and engage in an active intellectual process in considering whether it was not practicable or not necessary for the Tribunal to be tested using IELTS tests. In particular, Mr Reynolds referred to Rares J in SZJSS v Minister for Immigration and Citizenship [2009] FCA 1577 where his Honour stated that “Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side”. Mr Reynolds submitted that the Tribunal had given only cursory consideration to whether it was not reasonably practicable or not necessary for the Applicant to undergo IELTS testing.
However, in the circumstances where the Applicant essentially abandoned his claim to be entitled to 20 points for English, there was no relevant evidence given to the Tribunal by the Applicant that could have satisfied the Tribunal that it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS tests. The only material and evidence upon which the Applicant relied before the Tribunal was the evidence of his unsuccessful IELTS test results following many extensions granted to him by the Tribunal at his request to enable him to sit for those tests.
True it is that the Tribunal had before it the Department’s file which contained the copies of the Applicant’s other academic qualifications. True it is that those other qualifications were evidence that the Tribunal could have referred to specifically in considering whether it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS tests.
However, the relevant statutory obligation of the Tribunal was to have regard to the question of whether it should make a determination under regulation 2.26A(5) of the regulations. The Tribunal correctly understood that the discretion only arose if it determined that it was not reasonably practicable or not necessary for the Applicant to be tested using the IELTS tests. Despite the copious correspondence between the Applicant’s representatives and the Tribunal prior to the Tribunal hearing and exchanges at the hearing, no submission was made at all by the Applicant to the Tribunal that the Tribunal should find that it was not reasonably practicable or necessary for the Applicant to be tested using the IELTS tests. Nor was there any suggestion that the Tribunal should therefore consider exercising its power under reg.2.26A(5).
Certainly the Tribunal would be obliged in accordance with its obligations of natural justice to attend to what was submitted by the Applicant and to consider any arguments or evidence in support of those submissions. However, as stated above, none was put to the Tribunal.
A relevant statutory obligation of the Tribunal, in relation to the claims before it, was to consider whether or not it was reasonably practicable or necessary for the Applicant to be tested using IELTS. The Tribunal stated that it determined that it was not. In those circumstances, exercise of the Tribunal’s power did not arise.
I accept the submission of counsel for the First Respondent, Mr Kennett, that whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision maker has said or written (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 at [57]). In the case before this Court, whether or not it was reasonably practicable or necessary for the Applicant to be tested using IELTS, was not a relevant consideration that was relied upon by the Applicant before the Tribunal.
Conclusion
In the circumstances, the Tribunal discharged its statutory obligation in accordance with the relevant law, including s.414 and s.368 of the Act.
The Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 March 2010
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