ALAM v Minister for Immigration

[2005] FMCA 1343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION [2005] FMCA 1343

MIGRATION – Review of decision by Migration Review Tribunal – refusal to grant a Class BN Skilled Independent (Migrant) visa – refusal by applicant to undertake IELTS testing – consideration of application of departmental policy in exercise of discretion.

Judiciary Act 1903 (Cth), s.39B

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Applicant: ALAM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2656 of 2004

Judgment of: Emmett FM

Hearing date: 30 August 2005

Date of Last Submission: 30 August 2005

Delivered at: Sydney

Delivered on: 15 September 2005

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Mr N. McNally, Parish Patience

Counsel for the Respondent: Ms V. Hartstein

Solicitors for the Respondent: Mr J. Bird, Phillips Fox

ORDERS

1. That the applications before this Court are dismissed.

2. That the Applicant pay the Respondent’s costs in an amount of $5000.00 together with $135.40 for disbursements.

3. That the Applicant pay the costs and disbursements in accordance with Order 2 within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2656 of 2004

ALAM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth). The application is for an order of review in respect of a decision handed down on 31 March 2004 by a delegate of the Minister of the Department of Immigration and Multicultural and Indigenous Affairs (“the Officer”) not to grant the Applicant a Class BN Skilled – Independent (Migrant) Visa.

2. The Applicant was born in Dhaka Bangladesh in 1 February 1977.

3. The Applicant is a citizen of Bangladesh and currently resides in Bangladesh.

4. Pursuant to conditions of a student visa, the Applicant has previously lived in Australia from June 1998 until June 2002.

5. On 29 November 2002, the Applicant applied for a class BN Skilled – Independent (Migrant) Visa.

6. On 31 March 2004, the Applicant’s application for this visa was refused by the Officer on the ground that the Applicant failed to satisfy sub regulation 136.224 of the Migration Regulations which requires that an applicant has vocational English.

7. On 26 August 2004, the Applicant filed an application for judicial review of the Officer’s decision in this Court.

8. On 30 August 2004, the Applicant filed an amended application  (“the Amended Application”) seeking relief on the following grounds:

   “1.    The delegate misconstrued Sub regulation 2.26A(5) in   finding that he could only determine that the applicant did                 not have vocational English in the absence of his sitting for                 and achieving the requisite results un an IELTS test.

   2.There was a complete absence of probative evidence to support the delegate’s conclusion that the applicant did not have vocational English.

   3.The decision that the applicant was required to sit for an IELTS test to demonstrate that he had vocational English was one that was so unreasonable that no reasonable person could have made it.

   4.The decision that the applicant did not have vocational English was so unreasonable that no reasonable person could have made it.”

9. The Applicant was represented at the hearing.

10. The Applicant acknowledged that his main language is Bangla.

11. It is common ground that the Applicant’s usual occupation requires vocational English and that the usual method of determining  if he has vocational English is by way of the International English Language Testing System (“IELTS”) ( See, Regulation 2.26A(5)).

12. Pursuant to regulation 2.26A (5), the Officer may determine that the Applicant is proficient in English, to a level equivalent to an IELTS test, if the Officer determines that it is not reasonably practicable, or not necessary, for the Applicant to be required to undertake an IELTS test.

13. The circumstances in which testing is “not necessary” is not defined in the Act or the Regulations. However, there is a Departmental policy that is contained in Regulation 3.2 schedule 6A – English Guidelines (“PAM 3”). The heading of PAM 3 is “Cases for which IELTS testing is ‘not necessary’”.

14. The relevant parts of PAM 3 are as follows:

    3.2.1

    Officers should use the relevant discretionary power to decide that the IELTS testing is “not necessary” only if the applicant has submitted evidence that they have the appropriate level of English, such that it would be unnecessary for the Applicant to sit an English test.

    3.2.2

    The type of evidence that s could take into account would include that the person;

    Ÿ an award (being a degree, a higher degree, a diploma or trade certificate) from an institution where all instruction has been conducted in English. (The duration of full time study for this award at least two years); or

    Ÿ has studied or worked in an English – speaking country for a considerable period.

15. It is common ground that the Applicant did not work in Australia for any of the period that he was here between 1998 and 2002.

16. It is common ground  that the Applicant engaged in the following study in Australia:

    a)The Applicant completed a certificate in General English (level 3) at the Canberra Institute of Technology dated 2 November 1998 (having arrived in Australia in June 1998).

    b)The Applicant attended semester 1 and 2 1999 at the Chalmers College of English completing one subject in each semester.

    c)The Applicant completed a one year course at the University of Ballarat for a Graduate Diploma of Computing in 2001-2.

17. It is common ground that PAM 3 is simply a policy guide to the application of legislation. (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).

18. PAM 3 is specifically related to providing assistance to the Officer in considering when it is “not necessary” for IELTS testing to be undertaken. PAM 3 provides that the Officer should decide that an IELTS test is “not necessary” only if an applicant has submitted evidence that they have the appropriate level of English, such that it would be unnecessary for the applicant to sit an English test.

19. The 2 relevant criteria case are referred to in 3.2.2 of PAM 3.

20. The first criteria relates to the holding of an award being a degree, a higher degree, a diploma or a trade certificate that has been achieved during full time study that would “normally” be at least two years. However, the Applicant’s course at the University of Ballarat, which is the only relevant study capable of satisfying 3.2.2, was a 1 year course, whereas, the full time study contemplated by PAM 3 is at least 2 years. There is nothing to suggest that accumulated study would satisfy the criteria where it did not translate to an award, being a degree, a higher degree, a diploma or a trade certificate.

21. Accordingly, the Applicant has not satisfied that requirement.

22. The second criteria relates to whether or not the Applicant has studied in Australia for a considerable period. The Applicant contended that he had. That is a question of fact to be decided by the Officer. The decision of the Officer was that the Applicant was required to undertake the IELTS test. That decision was open to the Officer on the material before him.

23. It was for the Applicant to satisfy the Officer that he has the appropriate level of English, such that it would be unnecessary for the Applicant to sit an English test. If the Applicant does not satisfy the Officer then, in accordance with PAM 3, the Officer is not to exercise his discretionary power to decide that IELTS testing is “not necessary”.

24. The Applicant contended that it was not apparent that the Officer, in his decision on 31 March 2004, was aware of his discretion not to require the Applicant to sit for the IELTS test because of the language used in his decision as follows:

    “As your usual occupation requires vocational English ability, in the absence of the formal test score I can only determine that you do not have the proficiency in English to meet the mandatory English requirements.”

25. The Officer’s decision refers to the correspondence conducted over some months between the Officer and the Applicant’s legal adviser in relation to PAM 3. The Officer’s letter, dated 21 November 2003, specifically stated:

    “I have considered evidence of English proficiency provided with your application and have determined that an IELTS test is required.”

    The words used by the Officer are consistent with the consideration by the Officer of the Applicant’s application and a decision, in the exercise of his discretion, that, having considered the Applicant’s material, the Applicant was required to undertake IELTS testing. Moreover, correspondence with the Department from the Applicant’s legal adviser, dated 19 February 2004, stated:

    “We note that your office forwarded your letter of 21 November 2003 to our client requesting that an IELTS test to establish that he has competent English. We request that you reconsider this request and note that your office has a discretion contained in Regulation 2.26A(5)to require the applicant to sit for such a test.”

26. There is otherwise no evidence before me to suggest that the Officer was not aware of his discretion under Regulation 2.26A(5).

27. The Officer properly had regard to the policy referred to as PAM 3. The policy makes it clear that it is for the Applicant to satisfy the Officer that he does have the appropriate level of English. He was unable to do so. In those circumstances, in accordance with PAM 3, the Officer should not use his discretion to decide that IELTS testing was “not necessary”.

28. Further, I accept the Respondent’s submission that in using the words, “I can only determine that you do not have the proficiency in English to meet the mandatory English requirements”, the Officer was referring to the failure of the Applicant to complete the IELTS test following the decision of the Officer to require that the test be conducted. The Officer was simply making it clear that, in the absence of undertaking such a test, having been required to do so, following the decision of the Officer, in the exercise of discretion to require testing, that the proper conclusion left for the Officer to draw was that the Applicant did not have the vocational English required for his visa.

29. For those reasons, I do not accept that the Officer was not aware of the discretion that he had under Regulation 2.26A (5). There was probative evidence to support his conclusion and his decision to require IELTS testing and his decision that the Applicant did not have vocational English are reasonable in the circumstances.

30. Accordingly, each of the grounds of review is rejected.

31. There is no error involved in the decision of the Officer to refuse to issue the relevant visa to the Applicant and accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

32. The applications before this Court are dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  15 September 2005