ASHFAQ v Minister for Immigration

[2017] FCCA 2791

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHFAQ v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2791

Catchwords:
MIGRATION – Student visa – refusal – cl.573.223 of sch.2 to the Migration Regulations 1994 not satisfied – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal’s decision to refuse the applicant an adjournment of his review represented a miscarriage of discretion such that its ultimate decision on the review was made without power.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, regs.1.41, 1.42, cls.573.111, 573.112, 573.223 of sch.2 and cl.5A504 of sch.5A
‘Student Visa Assessment Levels’ IMMI 12/005 (legislative instrument F2012L00669)

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Applicant: NABEEL ASHFAQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3605 of 2014

Judgment of: Judge Cameron

Hearing date: 24 October 2017

Date of Last Submission: 24 October 2017

Delivered at: Sydney

Delivered on: 7 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr M. Nair of M S Nair & Co

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3605 of 2014

NABEEL ASHFAQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Pakistan who arrived in Australia on 3 December 2010.  On 30 September 2013 he applied for a Student (Temporary) (Class TU) subclass 573 visa, which was refused by a delegate of the first respondent (“Minister”) on 28 March 2014.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. The criteria for the grant of a subclass 573 were set out in pt.573 of sch.2 to the Migration Regulations 1994 (“Regulations”). One of the criteria which the applicant had to satisfy at the time a decision was made on his application was cl.573.223. The version of cl.573.223 which applied to the applicant’s application relevantly provided as follows:

   573.223

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: 

   (a) …

   (b) the applicant meets the requirements of subclause (1A) or (2).

   …

   (2) If [the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student]: 

   (a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; …

2. Regulation 1.42(1) provided that the assessment level which applied to an applicant was the highest assessment level at the time of application for the relevant course of study for the subclass of visa.  Regulation 1.41(1) required the Minister to specify in writing assessment levels for each student visa subclass by reference to the passport held by an applicant.  For an applicant for a subclass 573 visa who was the holder of a passport from Pakistan, the assessment level specified by instrument IMMI 12/005 (legislative instrument F2012L00669) was assessment level 4.

3. At the time the applicant lodged his application, the provisions of sch.5A which applied to subclass 573 visa applicants at assessment level 4 relevantly provided:

   5A504   English language proficiency

   (1) The applicant must give evidence that one of the following applies: 

   (a)     the applicant: 

   (i)      will not undertake an ELICOS before commencing his or her principal course; and  

   (ii)     achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102; …

4. At the time of application, cl.573.111 defined an “eligible higher degree student” as:

   … an applicant for a Subclass 573 visa in relation to whom the following apply: 

   (a) the applicant is enrolled in a principal course of study for the award of: 

   (i) a bachelor’s degree; or 

   (ii) a masters degree by coursework; 

   (b) the principal course of study is provided by an eligible education provider; 

   (c) if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study: 

   (i) the applicant is also enrolled in that course; and 

   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

5. Clause 573.111 defined an “eligible education provider” as an education provider specified as such in an instrument made under cl.573.112.  That clause provided as follows:

   573.112  

   For this Part, the Minister may, by instrument in writing: 

   (a) specify an education provider as an eligible education provider; and 

   (b) specify one or more other education providers as educational business partners of the education provider mentioned in paragraph (a).

BACKGROUND

1. The applicant’s visa application was made on the basis of his enrolment in a Master of Professional Accounting course at the King’s Own Institute.

2. In refusing his application on 28 March 2014, the Minister’s delegate stated that she was not satisfied that the applicant met the criteria for the grant of a subclass 573 visa, including the English language proficiency requirements set out in sch.5A to the Regulations.

3. On 17 April 2014 the applicant applied to the Tribunal for a review of the delegate’s decision.  He subsequently provided the Tribunal with various supporting documents, including an International English Language Testing System (“IELTS”) test report form which indicated that he had achieved an overall band score of 5.5 for a test which had been conducted on 25 June 2011.

4. On 26 November 2014, following his Tribunal hearing, the applicant provided the Tribunal with the results of a further IELTS test conducted on 8 November 2014 and for which he had achieved an overall band score of 5.5.  In accompanying submissions, the applicant stated that he had not been able to achieve the required score because, at the time, he had been in the middle of his exams and had not had enough time to prepare for the test.  He further stated:

   … if you believe that overall IELTS and progress report is not enough to prove my eligibility, then I can retake the IELTS exam, but I would request you to kindly give me a couple of months to prepare and sit in the IELTS exam.  Because I am already a full time student and have already enough burden of my studies.  (errors in original)

5. On 28 November 2014 the Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 573 visa. The Tribunal found, first, that the applicant was not an “eligible higher degree student” as defined in cl.573.111 because his education provider, King’s Own Institute, was not an “eligible education provider” as specified by the Minister in an instrument in writing. Consequently, in order to satisfy cl.573.223, the applicant had to provide evidence that he met the requirements set out in sch.5A to the Regulations.

6. In this regard, the Tribunal noted that the highest assessment level to which the applicant was subject was assessment level 4. Relevantly, cl.5A504 required the applicant to achieve an overall band score of at least 6.0 in an IELTS test taken within two years of the date of application. Given that the applicant had achieved an overall band score of 5.5 in his most recent test results, the Tribunal found that he did not meet the English language requirements set out in sch.5A. In making that finding, the Tribunal indicated that it had considered the applicant’s request for further time to prepare and undertake another test. However, noting that the applicant’s visa application had been made on 30 September 2013, the Tribunal found that he had already had sufficient time to meet the requirements set out in sch.5A. As the applicant had not provided evidence satisfying the requirements of sch.5A, the Tribunal concluded that he did not satisfy the cl.573.223 criterion for the grant of the visa.

PROCEEDINGS IN THIS COURT

1. The applicant’s amended application pleaded the following grounds:

   1.The Administrative Appeals Tribunal (second respondent) made a jurisdictional error by failing to take into consideration the evidence before it.

   Particulars

   a.At (14) of the DECISION RECORD of the Tribunal, it states: “...the Tribunal hearing was conducted on 26 September 2014 ...”

   b.The Tribunal granted the applicant eight weeks within which to complete his IELTS test.

   c.The tribunal also stated (transcript p.8, lines 37-38) at the hearing: “But if you (the applicant) have difficulty with that, let me know.”

   d.On 26 November 2014, the applicant sent an email to the Tribunal Officer stating: “... I would request you to kindly give me a couple of months to prepare and sit in the IELTS exam. Because I am already a full time student and have already enough burden of my studies.” (pp. 112-113 of the CB).

   e.On the following day: 27 November 2014, the Tribunal received the applicant’s email referred to at d. above.

   f. And then on the day following the receipt as stated at e. above, namely on 28 November 2014, the Tribunal made its decision.

   g. Those three (3) dates stated at d, e and f above, are significant.  Significant specifically in  the  sense  that  when  the  Tribunal  made  its  decision  on  28 November 2014, it had before it, the email of the applicant asking for “a couple of months …”

   h.The Tribunal failed to consider the evidence.  There is no mention of this email anywhere in the decision of the Tribunal made on 28 November 2014.

   i.The failure by the Tribunal as stated at h. is jurisdictional error.

   2.On the evidence before the Tribunal, it made a decision, which, in a legal sense, was an unreasonable decision.

   Particulars

   a.      The applicant repeats the particulars for ground 1.

Ground 1

1. The substance of the first ground of the amended application was the allegation that the Tribunal had erred when considering the applicant’s request for more time to submit evidence concerning his language abilities because it had failed have regard to his email to it dated 26 November 2014.

2. That allegation is not made out on the facts. The email in question, which was reproduced in the Court Book which was exhibit 1, is referred to above at [12]. At para.14 of its reasons the Tribunal made it plain that it had considered the contents of the email when it said:

   On 27 November 2014 the applicant submitted the results of an IELTS exam undertaken on 8 November 2014.  The overall band score was 5.5.  Unfortunately, the applicant has not provided evidence demonstrates [sic] he meets the English-language requirements.  In making this finding the Tribunal has considered the submission request made by the applicant, referring to the reasons for his inability to obtain the required results at [sic] his request for several months to prepare and undertake another exam.  However, … the Tribunal finds the applicant has had sufficient time to meet the requirements but has been unable to do so.

3. Clearly, the Tribunal did have regard to the email.  The error, as it was alleged in the amended application, has not been proved.

4. At the hearing of this application the applicant’s solicitor also argued that the Tribunal had not considered the attachments to the email.  Those attachments were said to be the applicant’s letter to the Tribunal dated 26 November 2014 and documents from his education provider confirming his enrolment and others setting out his academic record and his exam timetable for the second semester of 2014.  The applicant argued that he had submitted to the Tribunal that he had been overburdened by his end-of-year exams and so needed more time to sit an IELTS test. 

5. The email and letter of 26 November 2014 were in identical terms and relevantly said:

   As per your advice, I have attended IELTS exam on 8^th November 2014 and unfortunately got overall 5.5 score. (IELTS report attached)

   There was a genuine reason that why I could not get a good score.  As I enclosed [sic], I was in the middle of my academic studies so I waited for my exams which was ended in the third week on 24th October 2014 (Exam time-table attached).  After my exams I sit in my IELTS exam and could not get enough time to prepare.

   As my primary intention is to complete my studies, therefore, I was paying more attention in my academic exams; I have also attached the progress report of my studies for your reference, I will be grateful if you can consider the progress report as an additional evidence in my English abilities.

   However, if you believe that overall IELTS and progress report is not enough to prove my eligibility, then I can retake the IELTS exam, but I would request you to kindly give me a couple of months to prepare and sit in the IELTS exam.  Because I am already a full time student and have already enough burden of my studies. 

   I request you to kindly spend a few moments looking at the above explanations & facts.  I am seeking your advice to fulfill [sic] all the requirements which can help you to make the decision.

6. Although para.14 of the Tribunal’s reasons for decision does not expressly refer to the attachments to the correspondence of 26 November 2014, the only realistic inference from the terms of that paragraph is that the Tribunal did have regard to them.  However, even if it had not, those documents only served to substantiate the factual assertions made by the applicant in his correspondence, matters which the Tribunal appears to have accepted without demur.  Consequently, any failure to consider the documents themselves would not amount to practical unfairness to the applicant because such a failure could not have materially affected the Tribunal’s decision to refuse the request for an adjournment.

7. In those circumstances the applicant has not demonstrated that the Tribunal failed to consider material information and that for that reason its decision to proceed to a decision represented a miscarriage of discretion.  Therefore, it has also not been demonstrated that as a consequence of such a miscarriage of discretion the Tribunal’s decision on the review was erroneous for having been reached in excess of jurisdiction: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 369 [85].

Ground 2

1. The applicant alleged in the second ground of the amended application that the Tribunal’s decision to proceed to a decision on the review was unreasonable.  He argued in his written submissions that the facts of his case were similar to those considered in Li’s case.  Other than quoting large portions of French CJ’s reasons for judgment in Li’s case the applicant’s written submissions did not suggest in what way his case was analogous to Li’s case.  In his address to the Court the applicant’s solicitor also submitted that the applicant’s request was a reasonable one.  He further submitted that there would have been no prejudice to the Tribunal were additional time granted but the applicant would be greatly prejudiced if it were not granted.

2. It is true that in Li’s case the Tribunal’s attitude, as recorded by the Chief Justice (at 347 [21]), was to the effect that the applicant had been “provided with enough opportunities to present her case” and that the Tribunal’s attitude in this case was effectively the same.  It is also true that the Tribunal’s exercise of discretion in Li’s case was unreasonable. However, as both cases involved the exercise of a discretion, each turns on its own facts. 

3. In Li’s case Hayne, Kiefel and Bell JJ held that unreasonableness is a conclusion which may be applied to a decision which lacks and evident and intelligible justification (at 367 [76]). Their Honours held that it was not apparent how the Tribunal’s decision to refuse the adjournment in that case had been reached, having regard to the facts of the case and to the statutory purpose to which the discretion to adjourn was directed (at 368 [82]). Their Honours held that the decision itself bespoke error because, in the circumstances, the Tribunal could not have decided to bring the review to an end if all relevant and no irrelevant considerations had been taken into account and regard had to the scope and purpose of the Act (at 369 [85]).

4. In this case the Tribunal did give reasons for its decision to refuse the applicant more time to submit evidence concerning his language abilities and it is by reference to those reasons that the exercise of the relevant discretion should be considered: Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at 446 [47]. Although the Tribunal’s reasons for refusing the request in this case were not lengthy or detailed, that does not mean that they were insufficient. I have already found that the Tribunal considered the applicant’s correspondence of 26 November 2014 and thus his reasons for seeking a second additional opportunity to sit an IELTS test. It expressly found those reasons unpersuasive. The Tribunal also noted in this connection that the applicant had had over twelve months since making his visa application in which to demonstrate the necessary level of English language skills but had been unable to do so. Further, nothing in the applicant’s correspondence of 26 November 2014 suggested that other particular facts or circumstances existed, such as was the case in Singh’s case where the results of an IELTS re-mark were awaited, which might have needed to be accommodated in order for the applicant to be afforded a real and meaningful hearing.  It was open to the Tribunal to conclude in those circumstances that the better course was to finalise the review.

5. It is to be noted that although the applicant had sought “a couple of months” to sit the test again, the Tribunal referred to his request as being for additional time of “several months”.  This seems to have been no more than looseness in expression when dealing with a point of no determinative significance.  The Tribunal’s reasons for refusing the applicant’s request did not focus on the precise period of time he sought and its conclusion was not based on that detail.

6. Finally, the fact that the applicant’s request may have been a reasonable one is insufficient to show that its refusal was unreasonable.  Similarly, the fact that granting the applicant more time would not prejudice the Tribunal but might cause prejudice to the applicant does not necessarily mean that refusing the request for more time was unreasonable.  In particular, the applicant has not shown that it would have been apparent to the Tribunal that refusing him extra time would cause him “significant and inevitable prejudice”: Singh’s case at 451 [76]. The loss of a chance to sit a further IELTS test, in circumstances where there was no particular reason to anticipate a successful outcome, would not satisfy that test.  In this case, by reason of the matters referred to above at [26], I conclude that the Tribunal’s decision to refuse to delay deciding the review was not unreasonable.

1. The reasons expressed by the Tribunal were sufficient and sufficiently cogent to justify its decision to refuse the delay the applicant sought and for me to conclude that its discretion did not miscarry for unreasonableness when it made that decision.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 7 December 2017