Chowdhury v Minister for Immigration

[2015] FCCA 1295

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOWDHURY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1295

Catchwords:
MIGRATION – Application seeking review of decision of Migration Review Tribunal affirming decision of Minister for Immigration and Border Protection to refuse to grant applicant a Skilled visa – whether decision of Tribunal to refuse to grant applicant an adjournment to undertake further IELTS test was unreasonable – whether Tribunal displayed actual or apprehended bias in approach to applicant’s adjournment application – no error on part of Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.363(1)(b)

Migration Regulations 1994 (Cth), reg.1.15C, cl.885.213 of Schedule 2

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 217
Minister for Immigration and Border Protection v Pandey & Ors (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
SBBS v Minister for Immigration Multicultural and Indigenous Affairs (2002) 194 ALR 749

Applicant: MOHAMMAD BELAL HOSSEN CHOWDHURY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1307 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 13 February 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

The Applicant: The Applicant appeared in person with a Bengali interpreter.

Solicitor for the First Respondent: M Glavac of Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1307 of 2014

MOHAMMAD BELAL HOSSEN CHOWDHURY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 15 May 2014 by the applicant, Mohammad Belal Hossen Chowdhury, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member D. Connolly on 11 April 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Skilled (Residence) (Class VB) visa.

2. The representatives of the Minister filed on 20 August 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.

Background

1. In setting out the following background material I have quoted directly from the Court Book and Minister’s written submissions. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. On 29 June 2011 the applicant, a citizen of Bangladesh, applied for a skilled visa (CB 1-37).

3. At the relevant time, the criteria for a skilled visa were set out in Part 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”). Clause 885.213 required an applicant for a skilled visa to have “competent English”. At the time the applicant applied for the skilled visa, reg 1.15C of the Migration Regulations provided that:

   [a] person has competent English if the person satisfies the Minister that the person:

   (a)     has achieved, in a test conducted not more than 2 years before the day on which          the application was lodged:

   (i)      an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii)    a score:

   (A)     specified by the Minister in an instrument in writing for this sub-subparagraph; and

   (B)    in a language test specified by the Minister in the instrument; or

   (b)     holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

4. In Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 217 (“Berenguel”), the High Court interpreted the requirement that the test must have been conducted “not more than 2 years before the day on which the application was lodged” in such a way that an applicant was entitled to obtain evidence that they met the competent English requirement at any time prior to the Tribunal's decision.

5. In response to the decision in Berenguel, Parliament enacted the Migration Amendment Regulations 2011 (No.3) (Cth) which introduced a new reg.1.15C to define “competent English” for applications made on or after 1 July 2011.  Subsequently, by the Migration Amendment Regulations 2012 (No.2) (Cth) the validity period of test scores used by applicants under reg.1.15C was extended to three years for visa applications made after 1 July 2012.

6. As the applicant applied for the skilled visa on 29 June 2011, however, neither of these amendments referred to above apply.  Following Berenguel, and before the amendments, an applicant could satisfy reg.1.15C(a) by achieving the specified score in either an International English Language Testing System (“IELTS”) or Online English Level Test (“OELT”) test conducted up to the time of the Tribunal's decision, but not more than 2 years before the application for a skilled visa was made.

7. On 19 December 2013 the delegate refused to grant the applicant a protection visa on grounds that he did not have competent English (CB 106-109).  On 7 January 2014 the applicant made an application for review to the Tribunal (CB 110-120).

Current Proceedings

1. The application pleads the following grounds (verbatim):

   1.  The tribunal did not give me time to sit for another IELTS test.

   2.  The tribunal assumed that I could not achieve the required level of English based on my previous IELTS result.  The Tribunal can not make any such decision based on assumption, hence it is a jurisdictional error.

   3.  Mr hearing was on 21 March 2014, I was supposed to undertake a test on 15 March 2014 which the Tribunal was aware of.  Unfortunately I was sick and unable to sit the test which the Tribunal was informed.  Hence they did not consider this and did not give any chance to undertake another test.

   4.  The Tribunal gave additional time to other applicants same as me who also were unable to provide IELTS before the hearing but unfortunately I was not given time to sit for IELTS.

Applicant’s Submissions

1. The applicant appeared at the hearing with a Bengali interpreter.  He indicated he had not prepared an amended application or any written submissions, however, this was due to his father passing away.

2. In support of his application the applicant claimed that he could not attend one of his IELTS tests because of his father’s ill health.  After that, the Tribunal refused to give him another chance to successfully complete a test, even though other people were given such an opportunity.

3. The applicant also made oral submissions in respect of his more general circumstances in Australia and the difficulties he has experienced. 

Minister’s Submissions

1. On 5 February 2014 the Tribunal sent a letter to the applicant inviting him to appear before the Tribunal on 21 March 2014 (CB 124-126).  In the letter, the Tribunal noted that to date the applicant had not provided any evidence that he met the competent English requirement.  Accordingly, the Tribunal requested that the applicant provide such evidence at the hearing.  The Tribunal further requested that, if the applicant wished to undertake a further IELTS test, he should book a test no later than 15 March 2014.

2. The applicant booked an IELTS test for 15 March 2014, but did not attend the test due to a claimed illness (CB 170 at [13]).  At the hearing, he produced a medical certificate for 13 and 14 March 2014 indicating he was unfit on those days (CB 132, 170 at [15]). The applicant also explained that he had booked several IELTS tests in the recent past but due to his own illness and his concern at the illness suffered by his father, he had either been unable to attend the tests or had performed poorly in them (CB 170 at [16]).  As evidence of this, he provided medical certificates and other medical documents relating to himself and his father (CB 132, 135-153, 170 at [15]).

3. As he was now well and could “do his best” on the IELTS tests, the applicant requested more time to sit further IELTS tests (CB 153).  He produced an IELTS test request for refund, due to illness, for the test booked for 15 March 2014, indicating the applicant's preferred test date as 12 April 2014 (CB 134, 170 at [15]).  The Tribunal requested that the applicant provide to the Tribunal his previous IELTS test scores by 26 March 2014, so that it could assess the utility of providing the applicant with further time to attempt more tests (CB 170 at [16]).

4. On 26 March 2014 the applicant provided the Tribunal with results for IELTS tests attempted on 8 August 2009, 11 July 2009, 12 October 2013 and 26 October 2013 (CB 154-161, 171 at [17]).  In none of these four tests did the applicant achieve the required score of 6 for each of the test components.  On 7 April 2014, the Tribunal rejected the applicant's request for additional time to provide further evidence in relation to his English competence (CB 164-165).  In the Tribunal's opinion, the applicant's history of performance in IELTS tests meant that there would be no utility in acceding to such a request (CB 171 at [20]).

5. Accordingly, the Tribunal proceeded to a decision on 11 April 2014 (CB 168).  It affirmed the decision of the delegate on the basis that there was no evidence before the Tribunal that the applicant had met the requirement that he had competent English.

Grounds of review

1. In the Minister’s submission, the applicant's grounds of review can be distilled into two propositions:

   a)That the Tribunal made a jurisdictional error by not allowing the applicant more time to demonstrate that he had competent English before making its decision; and

   b)That the Tribunal was biased against the applicant, because the Tribunal gave additional time to other applicants, but not to him.

Refusal of adjournment request

1. In Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 (“Li”), the High Court held that the discretionary power in s.363(1)(b) of the Act for the Tribunal to adjourn its review from time to time must be exercised reasonably. A decision to refuse a request for an adjournment may be unreasonable, and give rise to a jurisdictional error, if it “lacks an evident and intelligible justification” (Li at [76]) or if “no reasonable Tribunal would have refused the request” (Li at [103]).

2. The Minister submits that the Tribunal's refusal to grant the applicant an adjournment does not offend the tests related above.  First, it is submitted that the Tribunal on any analysis gave an evident and intelligible justification for refusing the applicant's request for the adjournment, namely that the applicant's past performance on the IELTS test suggested that the applicant would not be likely to achieve the required score of at least 6 in each test component of an IELTS test conducted in the foreseeable future (CB 171 at [18]): see Minister for Immigration and Border Protection v Pandey & Ors (2014) 143 ALD 640.

3. Second, it is submitted that the Tribunal's decision was not unreasonable in the sense described in Li.  In the four IELTS tests which the applicant provided to the Tribunal by letter dated 26 March 2014, the applicant had never scored more than 5 for reading or 5.5 for writing (see CB 154-161), reasonably suggesting that he lacked the capacity to achieve the required score in those aspects of the test.  In the circumstances, the Minister submits that the Tribunal was entitled to say "enough is enough" and refuse to grant the applicant more time to present his case: see Li at [82]. In making this decision, the Tribunal considered the applicant's evidence about his and his father's illnesses, but noted that it did not consider that there was any utility in providing the applicant with more time to sit another IELTS test (CB 171 at [20]) and that it had no discretion to waive the requirement that the applicant must provide evidence of competent English (CB 171 at [19]). Even if this was not the preferable view, it is submitted that the standard of legal unreasonableness does not involve the court substituting its view as to how a discretion should be exercised for that of the primary decision-maker: Li at [66].

Bias

1. The Minister submits that an allegation of bias must be “clearly alleged and proved” and only in “rare and extreme” cases will bias be disclosed by the Tribunal's written reasons alone: SBBS v Minister for Immigration Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[44]. In the present case, the applicant has not identified any particular material or findings in support of the claim that he was particularly disfavoured by the Tribunal nor is there evidence of a state of mind which would constitute bias on the part of the Tribunal. The Minister submits that hearsay regarding the Tribunal's treatment of adjournment requests from other visa applicants cannot demonstrate bias on the part of the Tribunal. In any case, the applicant has provided no particulars of any allegedly similar cases which were treated differently.

2. For the reasons outlined above, the Minister submits Tribunal’s Decision discloses no jurisdictional error and the application for judicial review should be dismissed with costs

Consideration

Ground 1

1. The first ground of review simply restates what occurred before the Tribunal, namely that the Tribunal did not give the applicant a further adjournment after his hearing date so that he could sit a further IELTS test.  This ground does not plead any jurisdictional error on the part of the Tribunal.

Ground 2

1. The second ground of the application claims that the Tribunal assumed that because the applicant had previously not been able to be achieve the required scores on his previous IELTS tests he would not be able to achieve the required score thereafter, which is jurisdictional error.

2. The relevant paragraphs of the Tribunal’s Decision Record are [18]-[20] where it stated:

   18.    The Tribunal has considered the applicant’s previous IELTS test results and notes that he has not ever scored at least 6 in the reading and writing components.  On the basis of this evidence the Tribunal is not satisfied that the applicant is likely to achieve a score of at least 6 in each test component of an IELTS test conducted in the foreseeable future.

   …

   20.    Having considered his previous results, the Tribunal did not consider there was any utility in providing the applicant with more time to sit further English tests.  Accordingly, it wrote to him on 7 April 2014 to inform him that it had not agreed to provide him with more time to provide further evidence in relation to his English.

3. This statement made by the Tribunal related to the applicant’s request made at the hearing, and previously by his adviser, for more time in which to sit a further IELTS test.  The Decision Record demonstrates that the Tribunal, when asked to postpone the hearing, requested the applicant to provide it with evidence of his previous tests to determine whether there was any utility in providing the applicant a further adjournment (See Decision Record at [16]).  The applicant then provided the relevant test results, but found, based on his previous performance, there was no utility in granting the applicant further time in which to sit an IELTS test (see Decision Record at [20]).

4. As noted above at [5], cl.885.213 of Schedule 2 to the Migration Regulations required that the applicant demonstrated he had “competent English” not more than two years before the day on which the visa application was lodged. As noted above, the applicant had failed to demonstrate this to the delegate which led to the delegate’s decision not to grant him the visa.

5. In the Tribunal’s letter dated 5 February 2014 inviting the applicant to a hearing before it (CB 125), it stated:

   …

   The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa.  Please provide evidence that you meet competent English at (or before) the hearing.  If you wish to undertake a further IELTS test, please book a test for no later than 15 March 2014.

   …

   (Original emphasis)

6. The applicant was on notice of what was required of him, being evidence of competent English. However, he was unable to provide the relevant evidence of “competent English”, such as to satisfy the requirements of the Migration Regulations at the time of the hearing (or before). The Tribunal then asked him at the hearing to provide evidence of previous tests he had taken, in order to assist the Tribunal in making its decision as to whether it would be minded to grant him more time, as he was not, at the time of the hearing, able to satisfy the relevant criterion.

7. As correctly submitted by the Minister, it cannot be said the Tribunal’s decision was unreasonable in the sense described in Li.  Their Honours Hayne, Kiefel and Bell JJ stated in Li at [82]:

   82.    It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”, but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

8. In the current matter, the Tribunal had regard to the applicant’s previous IELTS test scores when considering whether to grant him further time in which to sit another IELTS test.  It gave clear reasons as to why it reached the conclusion that it would not afford the applicant further time, which were open to it on the material before.  There is nothing unreasonable in the Tribunal’s consideration of the applicant’s previous results when considering whether he was reasonably likely to achieve the required scores in a future test.  It cannot be said that this finding by the Tribunal lacked an evident and intelligible justification, or that no reasonable tribunal would have come to such a conclusion.  The Minister’s submissions (see [20]-[22] above) correctly address this issue.

9. Accordingly, this ground cannot be sustained and should be dismissed.

Ground 3

1. Ground 3 claims that the Tribunal failed to consider the applicant’s illness on 21 March 2014, when the applicant was due to undertake a further IELTS test, which the applicant claims the Tribunal was aware of.

2. Relevantly, the Tribunal stated at [13]-[19] of the Decision Record:

   13.    On 19 March 2014 the applicant attended the Tribunal registry and requested a postponement of hearing because his representative was overseas.  He said that he had booked to sit an IELTS test on 15 March 2014 but he was sick that day.  He was asked to put his request for a postponement of hearing in writing.

   …

   15.    At the hearing the applicant provided to the Tribunal various documents as follows:

   a.  A medical certificate for 13 and 14 March 2014 stating the applicant was unfit for his usual occupation or study.

   b.  An IELTS test booking receipt for a test to be conducted on 15 March 2014.

   …

   16.    … [The applicant] indicated he has booked to sit IELTS tests but he has been sick, as indicated by his medical certificates, and unable to sit them. … The Tribunal explained that, even if it accepts he has been sick, it has no discretion to waive the requirement that the applicant provides evidence of competent English and meets the criteria for the grant of the visa.

   …

   19.    The Tribunal has considered the applicant’s evidence about his and his father’s illnesses.  It has also considered his evidence regarding the time he has spent in Australia.  However as the Tribunal explained to the applicant at the hearing it does not have any discretion to waive the requirement that the applicant provides evidence of competent English in order to meet a criterion for the grant of the visa.

1. What falls from the above paragraph is that the Tribunal did in fact consider the applicant’s evidence relating to his illness and inability to sit his IELTS test booked on 15 March 2014.  As correctly stated by it (see [5] above), there was no discretion to waive the requirement that the applicant provide evidence of having “competent English”.  This aspect of the ground cannot be sustained.

2. Insofar as the applicant claims this alleged lack of consideration of his illness gave rise to the Tribunal’s decision not to grant him further time to sit an IELTS test, this submission cannot be sustained.  As noted above at [26]-[34], the Tribunal’s consideration of the applicant’s previous test scores and its finding as to the likelihood of his achieving the required scores in the future founded its decision not to grant him further time.  Accordingly, this aspect of the ground cannot be sustained,

3. The ground must, consequently, fail.

Ground 4

1. This ground, though not expressly pleaded, appears to be an allegation of apprehended or actual bias on the part of the Tribunal.  The applicant complains that he was not given further time to complete an IELTS test, but other applicants were.

2. An allegation of apprehended or actual bias is a serious one that must be distinctly made and completely proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; SBBS (supra); and Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425.

3. There is no evidence or material before the Court to support an allegation that the applicant was, as correctly submitted by the Minister, disfavoured by the Tribunal or that other prospective visa applicants received different treatment in the same set of circumstances.  Nor can the test of apprehended bias, that is, whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to its task, be made out on the basis of the Tribunal’s Decision Record.

4. Accordingly, this ground cannot be sustained.

Conclusion

1. None of the pleaded grounds in the application can be sustained.  Further, a fair reading of the Court Book and, particularly, the Decision Record, reveals no error on the part of the Tribunal.

2. Consequently, the application should be dismissed, with costs awarded to the Minister.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  27 May 2015