Alam v Minister for Immigration and Citizenship

[2011] FCA 1274

FEDERAL COURT OF AUSTRALIA

Alam v Minister for Immigration and Citizenship [2011] FCA 1274

Citation:		Alam v Minister for Immigration and Citizenship [2011] FCA 1274
Appeal from:		Mohammad Kawsarul Alam v Minister for Immigration & Anor [2011] FMCA 590
Parties:		MOHAMMAD KAWSARUL ALAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1356 of 2011
Judge:		COLLIER J
Date of judgment:		9 November 2011
Catchwords:		MIGRATION – appeal from Federal Magistrate – Skilled (Provisional) (Class VC) visa application – clause 485.215 and clause 485.222 of the Migration Regulations 1994 (Cth) – no evidence to demonstrate competent English skills – no evidence of arrangements to undergo language test – no medical evidence of incapacity to take test – no error in Tribunal’s decision to refuse further appellant opportunity to take language test – no error in the decision of Federal Magistrate
Legislation:		Migration Regulations1994 (Cth) Pt 485 of Sch 2
Date of hearing:	8 November 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First and Second Respondents:	Ms N Johnson of Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1356 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMAD KAWSARUL ALAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	9 NOVEMBER 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1356 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMAD KAWSARUL ALAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	9 NOVEMBER 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Emmett FM dated 29 July 2011 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”) handed down 15 April 2011. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant’s application for a Skilled (Provisional) (Class VC) visa.

   Background

2. The appellant is a citizen of Bangladesh who arrived in Australia on 19 June 2005. On 26 September 2008 the appellant lodged an application with the Department of Immigration and Citizenship for a Skilled (Provisional) (Class VC) visa pursuant to Pt 485 of Sch 2 to the Migration Regulations1994 (Cth) (“the Regulations”). A delegate of the first respondent refused the application for the visa on 7 December 2009. On 30 December 2009 the appellant applied to the Tribunal for a review of that decision.

3. The appellant holds a Bachelor of Commerce and a Master of Management from Bangladesh. He completed a Master of Accounting at Central Queensland University in July 2008 and nominated the occupation of Accountant in his application.

4. It is common ground that the appellant was required to satisfy the requirements of cl 485.215 of the Regulations at the time of application. Clause 485.15 requires that either:

   ·the visa applicant’s nominated skilled occupation is in the Australian Standard Classification of Occupations (ASCO) Major Group IV, and the applicant has vocational English (cl 485.215(a)); or

   ·the visa applicant has competent English (cl 485.215(b)); or

   ·the application is accompanied by evidence that the visa applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl 485.215(c)).

5. In the event that the appellant was required to rely on cl 485.215(c), he was also to required to meet cl 485.222 which provided:

   If the application is accompanied by evidence that the appellant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for paragraph 485.215(c):

   •The visa applicant’s nominated skilled occupation is in the Australian Standard Classification of Occupations (ASCO) Major Group IV, and the applicant has vocational English; or

   •The visa applicant has competent English.

6. The language tests specified by the Minister for these purposes are:

   ·International English Language Testing System (IELTS); and

   ·Occupation English Language test (OELT): Legislative Instrument IMM107/055, English Language Tests and level of English Ability for General skilled Migration (reg 1.15C and reg 1.15D, cl 485.215 and cl 487.215).

7. The delegate was not satisfied that the appellant met the requirements of either cl 485.215(b) or cl 485.222 of the Regulations as the delegate was not satisfied that the appellant had competent English at the relevant time. The delegate noted that the appellant was asked to provide the IELTS test results and that the appellant sought several extensions but had not provided any evidence to demonstrate that he had competent English.

   Migration Review Tribunal

8. At the hearing the Tribunal explained to the appellant the requirements of cl 485.215. The appellant confirmed that he did not have competent English, that he had been “disordered” in the past year because of personal problems and that he had a phobia about doing another IELTS test. He requested an additional few months to undertake the test. The Tribunal observed, inter alia, that there was no medical evidence about any medical issues which may have prevented the appellant from undertaking the test in the previous 12 months, and that it appeared that the appellant had made no effort to enrol in or undertake a test.

9. At the hearing the Tribunal informed the appellant that it was unwilling to give him further time to undertake another test. In its findings, the Tribunal further observed that the application for the visa had been made approximately two and a half years before, and that the appellant had had ample time to undertake the test.

10. The Tribunal noted that “competent English” for the purposes of cl 485.215(b) and cl 485.222(b) was defined by reg 1.15C as a score of at least six in each of the four test components in a test conducted not more than two years before the day when the visa application was lodged, or a score of at least “B” in each of the four components of an Occupational English Language test, or if the visa applicant holds a passport of a type specified by the Minister. The Tribunal found that the appellant met none of these criteria.

11. As the appellant did not have competent English within the meaning of reg 1.15C, he did not meet cl 485.215(b) or cl 485.222(b).

    Federal Magistrates Court

12. On 5 May 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application contained the following grounds:

    1. The Second Respondent made jurisdictional error in that it made an error of law in relation to the construction of clause 485.215(b) of Schedule 2 of the Migration Regulations 1994.
    Particulars:
    (i) The Second Respondent at [25] stated that while the applicant had not achieved an IELTS test result, this was after the date of application.
    (ii) The implicit findings above was that to satisfy the requirements in clause 485.215(b) the relevant IELTS test (for the purpose of Registration 15C of when a person has competent English) must be undertaken before the date of application
    (iii): (i) and (ii) above constituted legal error in that of 485.215(b) contemplates a test taken after the date of the application.
    2. The Second Respondent made jurisdictional error in relation to medical issues at [23]. Particulars: The second Respondent denied accepting any medical circumstances just because the applicant did not provide any medical evidence before the Tribunal at the time of hearing.
    (Reproduced as in original.)

13. At the hearing before her Honour the appellant relied on the grounds in the application, and declined to make any submissions.

14. In relation to ground 1 the Federal Magistrate considered that the complaints of the appellant were unclear. Her Honour considered that the Tribunal’s findings in relation to cl 485.215 and cl 485.222 were open to it on the evidence and material before it. The Tribunal had considered whether the appellant had competent English at the time of his visa application and at the time of the Tribunal’s decision. The Tribunal did not find that the appellant was required to only to satisfy the criteria at the time of the decision as was asserted in ground 1.

15. In relation to ground 2, the Federal Magistrate stated that there was no error in the manner in which the Tribunal exercised its discretion in refusing the appellant’s request for a further opportunity to undertake a further language test. The Tribunal considered the appellant’s evidence and his submissions but found the appellant’s explanations unconvincing to exercise its discretion in favour of the appellant’s request. No medical evidence of any incapacity to undertake the test in the previous twelve months had been provided by the appellant, nor any explanation as to why the appellant now believed that he could register for a test and complete one if granted one more time. The Federal Magistrate concluded that, in the circumstances, the Tribunal’s decision to refuse the appellant’s request for a further opportunity to undertake the test was open to it on the evidence before it.

    Appeal to this Court

16. On 15 August 2011 the appellant filed a notice of appeal. That appeal contained the following grounds:

    1. MRT made a jurisdictional error in relation to medical issues at [23]. MRT denied accepting any medical circumstances just because the applicant didn’t provide any medical evidence before the tribunal at the time of hearing. It was not a correct judgment against someone who got phobia and some personal issues of incapacity to undertake the IELTS test at the time of decision cl.485.222. MRT denied giving any further time to prove that the applicant is competent in English, which resulted in the applicant becoming more frustrated.

    2. FMC made a jurisdictional error at [25] in that it made an error of law in relation to the construction of cl.485.215 and cl.485.222 of schedule 2 of the Migration Regulation 1994. Here FMC only considered the decision of MRT, not the circumstances of the applicant.

17. At the hearing yesterday morning the appellant was unrepresented. As was the case before her Honour, the appellant declined to make any submissions. He only said that, yesterday, he had “mental” issues.

18. In substance the first ground of appeal repeats ground 2 of the application before her Honour. As her Honour noted, the Tribunal had regard to the appellant’s evidence and submissions in relation to his request for more time to sit an IELTS test. The Tribunal also had regard to the fact that the appellant had not provided any medical evidence of any incapacity to undertake the test in the previous twelve months, nor any explanation as to why he could complete a test now.

19. The Minister submits that the appellant does not identify how any jurisdictional error is established by the Tribunal’s treatment of his medical issue and the rejection of his application for more time to sit an IELTS test. I agree. I can identify no error in the decision of her Honour in respect of this ground.

20. In relation to the second ground of appeal I am not satisfied either the Tribunal or her Honour erred in respect of the construction of cl 485.215 and cl 485.222. No basis is advanced by the appellant for such a finding.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:       9 November 2011