Dhali v Minister for Immigration

[2018] FCCA 374

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHALI & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 374

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal denied the applicant procedural fairness – whether the questions asked by the Administrative Appeals Tribunal at the hearing were misleading or confusing – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.474, 476
Migration Regulations 1994 (Cth), reg.1.15C
Migration Regulations 1994 (Cth), cl.886.213

First Applicant: ANWARUL HAQUE DHALI

Second Applicant: FERDOUSI SHILPI AKTER

Third Applicant: SUMAIYA HAQUE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1055 of 2016

Judgment of: Judge Emmett

Hearing date: 15 February 2018

Date of Last Submission: 15 February 2018

Delivered at: Sydney

Delivered on: 15 February 2018

REPRESENTATION

Counsel for the Applicant: Ahmad Moutasallem

Solicitors for the Applicant: MIC Lawyers

Solicitors for the Respondents: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1055 of 2016

ANWARUL HAQUE DHALI

First Applicant

FERDOUSI SHILPI AKTER

Second Applicant

SUMAIYA HAQUE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act for judicial review of a decision of the Administrative Appeals Tribunal, dated 5 April 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent made on 21 December 2015 (“the Delegate”), refusing the applicant a skilled residence visa.

2. The first named applicant is the primary applicant (“the Applicant”) and the second and third named applicants are the wife and child of the Applicant. The applications of the second and third named applicants depend on the outcome of the Applicant’s application for a skilled visa.

3. On 15 December 2010, the Applicant lodged an application for the skilled visa.

4. On 17 December 2010, the applicant lodged a form identifying a migration agent as his authorised recipient, that person being Mr Baha Mohammad. 

5. On 28 August 2015, the Department wrote to the applicant, enclosing a Request for Information. That form provided information in relation to English requirements relevant to visa applications. The visa for which the applicant applied required that the applicant have competent English. That requirement is identified in cl.886.213 of the Migration Regulations 1994 (Cth) (“the Regulations”). 

6. Competent English is defined in reg.1.15C of the Regulations as follows:

   “Competent English

   (1) A person has competent English if:

   (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b) the person is an applicant for a visa; and

   (ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa--the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb) for a person to whom paragraph (ba) does not apply--the test was conducted in the 3 years immediately before the day on which the application was made; and

(c) the person achieved a score specified in the instrument.

(2) A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.”

1. A document identified as IMMI15/005, being a legislative instrument, specifies that for applications lodged before 1 July 2012, and in order to meet the competent English requirement, an applicant would need to have a satisfactory International English Language Test System (“IELTS”) score or a satisfactory Occupational English Test (“OET”) score. 

2. The Request for Information attached to the letter to the Applicant, dated 28 August 2015, provided guidelines for competent English as including a satisfactory IELTS test and OET test score and also referred to a Pearson Test of English Academic (“PTE”) test.

3. By virtue of the instrument identified as IMMI15/05, the only test relevant to the Applicant for satisfying the requirements for competent English are the IELTS test or the OET test. 

4. On 21 December 2015, the Delegate considered the Applicant’s application for a visa and noted that in order to satisfy reg.1.15C of the Regulations, the Applicant was required to provide evidence of obtaining a specified score in either an IELTS test or OET test. The Delegate noted that to date no test result had been received by the Delegate from the Applicant.

5. Ultimately, the Delegate concluded that in circumstances where the Applicant had not provided evidence of competent English, he did not meet the requirement of cl.886.213 in Schedule 2 of the Regulations that he have competent English.

6. In the circumstances, the Delegate refused the Applicant the visa for which he had applied. 

7. On 4 January 2016, the Applicant lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal. That application contained the representative details of the Applicant’s migration agent, Mr Baha Mohammad, as the Applicant’s representative.

8. On 28 January 2016, the Tribunal wrote to the Applicant and informed the Applicant that to date he had not presented evidence that he met the English language proficiency requirement, being competent English, which was a mandatory requirement for his visa. The Tribunal informed the Applicant that if he had booked an IELTS test or an OET test which was scheduled to take place before the hearing date, or soon after, he should send evidence of that booking. 

9. On 5 April 2016, the Tribunal gave its decision in respect of the Applicant’s application for review, noting that the Applicant had appeared before the Tribunal on 16 February 2016 and was represented in relation to the review by his migration agent, including at the hearing.

10. The Tribunal noted that the relevant issue was whether or not the Applicant had competent English. The Tribunal identified the relevant instrument as IMMI15/005 and identified that for the purposes of reg.1.15C(1)(a) of the Regulations and pursuant to that instrument, a particular score in an IELTS test or an OET test was required.

11. The Tribunal noted that the Applicant had recently sat for a PTE. The Tribunal noted that this was a test which was specified for the purposes of applications lodged on or after 23 November 2014 but not for tests lodged in the present case prior to 1 July 2012 as provided for in IMMI15/005.

12. The Tribunal noted that, in any event, the Applicant said he did not achieve scores prescribed for the purposes of PTE tests. The Tribunal noted that the Applicant said that he had recently realised that he could not demonstrate competent English on the basis of a PTE Academic test and had booked to undertake an IELTS test on 19 March 2016 that he expected the results to be available on 1 April 2016. 

13. In the circumstances, the Tribunal said it would wait until 4 April 2016 to afford the Applicant an opportunity to submit the relevant test results. The Tribunal also noted that it said that if the Applicant failed to submit the results by 4 April 2016, the Tribunal would assume that he had not achieved results that would establish that he had competent English.

14. The Tribunal noted that on 18 March 2016, the applicant submitted results of a PTE Academic test undertaken by him on 16 March 2016 but made no reference to any IELTS test conducted on that date. The Tribunal found that any score on the PTE Academic test could not establish that the applicant had competent English as defined reg.1.15C(1)(a).

15. At the date of the Tribunal’s decision record, being 5 April 2016, the Tribunal noted that neither the Applicant nor his agent had submitted the results of the IELTS test that the Applicant said he would undertake on 16 March 2016.

16. The Tribunal further noted that neither the Applicant nor his agent had contacted the Tribunal to seek an extension of the 4 April 2016 deadline. In the absence of any other relevant evidence, the Tribunal found that the Applicant did not have competent English, as defined in reg.1.15C(1)(a), as required by cl.886.213 in Schedule 2 of the Regulations.

17. Accordingly, the Tribunal found that the Applicant did not satisfy the criteria required and affirmed the decision under review.

18. On 29 April 2016, the Applicant filed an application for judicial review of the Tribunal’s decision and on 19 July 2016 filed an Amended Application. 

19. The applicant was represented by Mr Moutasallem of counsel who confirmed that the Applicant relied only on Ground 2 of the Amended Application.  

20. Ground 2 is as follows:

    “The Applicants were not afforded procedural fairness, in that the Tribunal failed to or did not provide the applicants with required information as to statutory requirements and in considering the interests of and legitimate expectations of the applicants with regard to their application. This was particularly in relation to the validity of Pearson Test of English in relation to the grant of their visas;”

21. In support, Mr Moutasallem read an affidavit of the Applicant, affirmed 19 July 2016, annexing a transcript of the Tribunal hearing and stating that he was misguided as to the requirements of English for his visa. Paragraphs 3, 4 and 5 of that affidavit are as follows:

    “3. I state I was misguided as to the requirements of English for my visa. This is because in their communications with me, the Department of Immigration, required me to achieve a certain level of standard in a Pearson Test of English (PTE) which is not relevant to my visa application. Regardless of the score of a PTE test, I could not have established my English co1npetency because the said test was not specific to my application.

    4. I state I was misguided in this regard, and the Department nor the Tribunal made any efforts to explain to me the irrelevance of this achievement to my visa. I believe that procedural fairness was not afforded to me because neither the Department nor the Tribunal took my legitimate interests and expectations to be granted the visa into account by failing or omitting to specify and highlight the statutory requirements clearly.

    5. By erroneously stating a requirement that is inapplicable to me, I state the Respondents erred in interpreting cl. 886.213 read with Regulation 1.15C(a) of the Migration Regulations 1994.”

22. Mr Moutasallem also relied on the annexure to an affidavit read by the first respondent of  Lauren Ashworth, affirmed 5 February 2018, which annexed the Request for Information which was attached to the letter provided to the Applicant on 28 August 2015 prior to the Delegate’s decision.

23. The Applicant was cross-examined on the evidence in his affidavit and he agreed that he was represented throughout by his migration agent, Mr Baha Mohammad, who appeared with him at the Tribunal hearing. 

24. The Applicant agreed that he discussed the requirement to have competent English with his migration agent and that his migration agent told him that he could complete one or other of the PTE test or the IELTS test. In re-examination, Mr Moutasallem asked the Applicant where Mr Baha Mohammad is today and the Applicant responded that he had passed away last month.

25. Mr Moutasallem then took the Court through parts of the transcript of the hearing in support of his contention that the Applicant was misled or confused by his interactions with the Tribunal member as to what test was required for competent English. In particular, the counsel for the Applicant referred to the following exchanges: 

    “M DHALI: Yes.

    MEMBER: That's correct, okay. As with the other people to whom we've spoken today, you don't have competent English as defined in the second limb of the relevant evaluation. The decision that the delegate made says that you had a booking to undertake an IELTS test on 21 November last year, but you did not submit the results of that test. Can I assume from this that you did not get the requisite scores on that test?

    M DHALI: Yes, I didn't submit because that time I was very sick; I can't attend this test.

    MEMBER: You didn't do the test?

    …

    M DHALI: No, I didn't achieve my result that time.

    MEMBER: Okay. Now this is something obviously that's come in today about tests to be undertaken. Okay. So again, I suppose what I'm going to ask you now. You sat for an IELTS test on 8 February? Is that correct?

    M DHALI: It was PTE.

    MEMBER: A PTE test.

    M DHALI: Yes, I done.

    MEMBER: Okay. Which doesn't count. Did you get the requisite scores in that?

    M DHALI: No, it's--

    MEMBER: No, okay. So it's the wrong kind of test, and in any event if you applied for the visa today, a PTE test would be okay, but you didn't get the 45 right results. Okay. I'm understanding. So in other words, you thought you could do a PTE test, and then, realised that that was no good--

    M DHALI: Uh-huh.

    MEMBER: --so that's why this one is 19 March.

    M DHALI: Yes.

    MEMBER: All right. Again, that says that you will get your results on 1 April, 5 so I'll wait till Monday, 4 April for the results of that test. Okay?

    M DHALI: Yes, thanks.

    …

    MEMBER: Yes. All right, then, thank you for coming in. We will wait for that result. Are these - you won't need any of these back?

    M DHALI: Yes, I'd like my original here.

    MEMBER: Okay. Well they're the PTE results and I don't need them because you didn't get the requisite score and you only had the one test result to review.

    M DHALI: Is that the copy, Member? You don't have the copy?

    …

    MEMBER: I don't need them anyway because they're the wrong test.

    …

    M DHALI: So my test why-test 19th of March, so I have to provide the 4th of April my result, isn't it?”

26. In particular, counsel for the Applicant contended that a question by the Tribunal member was misleading and confusing because it was irrelevant. That question followed an exchange with the Applicant that he had sat for a PTE test on 8 February. The Tribunal member then said, “Which doesn’t count,”; however, went on to ask the Applicant, “Did you get the requisite scores in that?”

27. In my view, nothing turns on the Tribunal member asking a question about a matter that may be irrelevant to the determination. It is the only question asked in relation to that issue. I do agree, however, with counsel for the Applicant’s submission that it was an irrelevant question. In any event, the Tribunal member went on to say that it is the wrong kind of test. The Tribunal noted that even if the Applicant applied for that visa today, whilst a PTE test may be acceptable, the Applicant’s results were inadequate.

28. The Tribunal member appears to be seeking to understand what the Applicant was saying as to how he came to do a PTE test and then went on to say:

    “So in other words, you thought you could do a PTE test, and then, realised that that was no good-”

29. The Applicant answered, “Uh-huh.” 

30. What is clear from the transcript is the number of times that the member consistently told the Applicant that the PTE test was irrelevant to his application. 

31. The Applicant, as stated above, was represented throughout his visa application, his interview with the Delegate and his review application by the same migration agent. The Applicant gave evidence before me this morning that his migration agent told him that he could do an IELTS test or a PTE test.

32. Moreover, the Delegate’s decision clearly stated the correct requirements for competent English, being a satisfactory IELTS score or a satisfactory OET score. The Applicant, and his migration agent, must have had a copy of that decision in order to lodge an application for review. The Tribunal’s letter, dated 28 January 2016, made clear that the Applicant was required to satisfy an IELTS test or an OET test in order to meet the English language proficiency requirement. 

33. I do not accept the Applicant’s contention that he was not afforded procedural fairness because of the confusing nature of the discussions that he had with the Tribunal; or, because the Request for Information document sent to him on 28 August 2015, prior to the Delegate’s decision referred to a PTE test.

34. Further, the Applicant was clearly on notice of the issue arising from the Delegate’s decision, namely, whether he was able to satisfy competent English by providing either an IELTS test or an OET test. 

35. Moreover, and in any event, the Tribunal provided a further opportunity to the Applicant to complete an IELTS test that the Applicant said that he had booked for 19 March 2016, the results of which were expected on 1 April 2016. The Tribunal noted that there was no request for any extension of further time for an IELTS test and that the only results provided to the Tribunal after the hearing and before its decision was a PTE Academic test.

36. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, there was no failure by the Tribunal to afford the Applicant procedural fairness in the conduct of its review.

37. Accordingly, the ground of the application is not made out. 

38. 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 power to interfere.

39. The proceeding before this Court commenced by way of application filed on 29 April 2016 should be dismissed with costs.

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

Deputy Associate: 

Date:  21 February 2018