Din, Fazal v Minister for Immigration and Multicultural Affairs

[1998] FCA 961

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Immigration – Refusal of visa applications by Immigration Review Tribunal because of applicants’ failure to successfully undertake a test of English language proficiency – Representative proceeding – Competence of group members whose applications were refused more than 28 days before institution of proceeding – Exercise of Court’s discretion – Whether discretion should be exercised adversely to applicant on basis that applicant and group members could not have been prejudiced by omission to submit proposed test schedule and papers to Minister for approval – Distinction between effect of failure to obtain approval of test arrangements and failure to obtain approval of papers.

Migration Act 1958 ss 478, 481(1).
Federal Court of Australia Act 1976 s 33C

FAZAL DIN  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 132 OF 1997

JUDGE:         WILCOX J
PLACE:         SYDNEY
DATED:        14 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 132 of 1997

BETWEEN:	FAZAL DIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		WILCOX J
DATE OF ORDER:		14 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decisions of the Immigration Review Tribunal in respect of the applications for Class 816 entry permits of the 16 persons listed in the Schedule to this Order be set aside and each of those applications be remitted to the said Tribunal for further hearing and determination according to law; and

1. The respondent, the Minister for Immigration and Multicultural Affairs, pay the costs of the applicant incurred in connection with this proceeding, including the costs of the hearing of the preliminary issue on 17 July 1997.

The Schedule

Mohammed Shah Alam

Mohammed Abdul Bashar

Bing Hua Chen

Fazal Din

Li Ding

Jian Jun Gao

Janardan

Jian Ye Li

Yan Ling Lin

Yun Hua Mu

Zheng Pei

Su Ning Shi

Yu Lin Wu

Shan Ju Xie

Jin Hui Ye

Shang Fu Zhou

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 132 of 1997

BETWEEN:	FAZAL DIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	14 AUGUST 1998
PLACE:	SYDNEY

SUPPLEMENTARY REASONS FOR JUDGMENT

WILCOX J: On 19 August 1997 I published Reasons for Judgment (now reported at 147 ALR 673) concerning a preliminary question in this case. At that time I did not make any formal orders. I stood the matter over until 11 September in order to allow the parties to consider the future course of the proceeding.

On 11 September the respondent sought leave to appeal against my decision on the preliminary point.  I granted leave and directed the appeal index be settled as soon as possible and, if possible, the appeal be listed for hearing in the November Full Court sittings.  For some reason that did not occur.  The appeal was listed for hearing in March 1998.

Shortly before the appeal was to be heard, the parties agreed upon the terms of orders suitable to give effect to my decision on the preliminary point.  They submitted them to me in chambers.  I thought the orders appropriate and, on 12 March 1998, made orders declaring that:

“1.none of the versions of the English proficiency tests administered from January 1995 to October 1995, except the versions of the test of English proficiency nominated by the Minister on 1 November 1994, was a test nominated by the Minister within the meaning of clause 816.732(3) of the Migration Regulations;

2.none of the times and places at which the versions of the English proficiency tests were administered from January 1995 to October 1995 were times or places nominated by the Minister within the meaning of clause 816.732(3) of the Migration Regulations.”

The members of the Full Court thought it was undesirable for them to determine the appeal on the preliminary point.  They referred the matter back to me.  The parties then joined in asking me to set aside the declarations I had made on 12 March.  I understand their motive was to avoid any future procedural complication; Mr M Jones, solicitor for the applicant, said his client was entitled to such declarations and would seek them at the final hearing of the matter.  On 23 March I acceded to the joint application and set aside the declarations.

Further affidavits were filed on behalf of the respondent and the matter came on for final hearing on 5 August 1998.  Argument on that day proceeded on the basis that my decision on the preliminary question was correct; but the respondent contended that, as a matter of discretion, the proceeding should nonetheless be dismissed.

Analysis of the group members

Before putting submissions relating to the exercise of discretion, counsel for the respondent, Mr A Robertson SC, undertook an analysis of the position of the persons referred to as group members in the proceeding.  Mr Jones accepted the accuracy of Mr Robertson’s analysis.

The relevant group was defined in the Further Amended Application as being the 29 people (including the applicant Fazal Din) listed in a Schedule to that document. The Further Amended Application claimed all those people had been refused Class 816 entry permits by the Immigration Review Tribunal because of their failure to pass tests purportedly administered pursuant to clause 816.732 of the Migration (1993) Regulations.  These were the tests discussed in my earlier Reasons.  However, at the hearing, an amended list of group members was tendered, containing only 27 names.  Moreover, of these 27 persons, it appears that one, M R Bhuyan, never applied for a class 816 visa, three others Zhi Bin Cai, Tang Wei Liang and Bing Xia Wang, made no application to the Immigration Review Tribunal and another, Jun Peng, withdrew his application.  The Tribunal has not yet determined the applications of Abul Kashem and Mohammed G Mollah.  These seven people clearly fall outside the group defined in the Further Amended Application, reducing it to 20 people.

The effect of s 478(2)

In the cases of four of the remaining group members, Hai Xin Deng, Cheng Jian Ding, Zhi Jun Huang and Pei Oi Lin, a period of more than 28 days elapsed between the date of notification to them of the Immigration Review Tribunal’s decision in their case and the institution of this proceeding on 25 February 1997. Section 475 of the Migration Act 1958 makes decisions of the Immigration Review Tribunal judicially-reviewable but, in this Court, only on the grounds specified in s 476 and provided the application for review is lodged in the Registry of the Court within 28 days of the applicant being notified of the decision: see s 478(1). Importantly, s 478(2) forbids the Court making an order allowing, or having the effect of allowing, an applicant to lodge an application outside the 28 day period. Mr Robertson argues this provision precludes the inclusion of any such person as a member of a group of people challenging the Tribunal’s decision. I think this is correct. Section 33C(1) of the Federal Court of Australia Act 1976 allows the institution of a representative proceeding where seven or more persons “have claims” against the same person, in respect of, or arising out of, the same, similar or related circumstances that give rise to a substantial common issue of law or fact. In that event, “a proceeding may be commenced by one or more of those persons, as representing some or all of them”, that is, some or all of the persons who “have claims” against the same person. An applicant who is unsuccessful before the Immigration Review Tribunal has a “claim” for judicial review of the Tribunal’s decision by this Court, but only on the grounds specified in s 476 and pursuant to an application filed within 28 days. After the expiration of the 28 day period, there is no surviving “claim” for review; accordingly, the relevant applicant is not a competent group member. It follows that the four persons named above must be excluded from the group. It reduces to 16 members.

Analysis of the test papers

Mr Robertson tendered a table identifying the tests undertaken by the surviving group members.  Each of these persons sat for at least one test after the end of 1994, and so sat a test at a time not nominated by the Minister.  Each of the test locations was at a place, and a time of day, that had been authorised by the Minister in relation to the four day program of tests that commenced on 1 November 1994 but that location and time had not been approved by the Minister in respect of later tests.  In relation to the papers, it seems twelve of the remaining 16 group members failed, at a post-1994 sitting, at least one test constituted by a test paper that had been authorised by the Minister in relation to November 1994.  For example, on 1 November 1994 the applicant, Fazal Din, failed all three sections (listening, reading and writing) of Paper B, a test paper that had been authorised by the Minister.  He was entitled to a second chance and presented on 3 May 1995 but some misadventure occurred.  He sat again on 9 August 1995.  On this occasion he was presented with Paper I, which had been approved by the Minister, in relation to listening and reading and Paper M, which had not been approved by the Minister, in relation to writing.  He failed the listening component of Paper I and the writing subtest in Paper M.  Mr Robertson makes the point that, on his second attempt, Mr Din repeated his failure of one subtest (the listening element of Paper I) by failing a paper that had been approved by the Minister.  As he was required to pass all three subtests in no more than two attempts, in order to qualify for a Class 816 entry permit, Mr Robertson argues he was not prejudiced by being asked to undertake a test (Paper M) not authorised by the Minister; he would, in any event, have failed to qualify for the entry permit.

A similar point may be made about eleven other group members.  Only four group members, Mohammed Shah Alam, Li Ding, Janardan and Zhong Zei were ultimately undone only by papers that had not been approved by the Minister.

In an attempt to procure the favourable exercise of the Court’s discretion, even in relation to these four cases, Mr Robertson read an affidavit made by Geoffrey Brindley, Senior Lecturer in Linguistics at Macquarie University.  Mr Brindley was one of four people responsible for the development of the STEP tests.  He was personally involved in the construction of the listening and reading subtests, but not the writing subtests.  In relation to listening and reading, Mr Brindley said all papers devised after the date of the Minister’s approval, and therefore not specifically approved by him, contained items – and, I understand, only items – that had been included in the approved papers.  He went on:

“The tests were thus on the same scale and a candidate’s results would not have been affected by which versions he or she took.  Candidates who undertook a later test would therefore have had the same chances of passing as they would an earlier one.”

The writing tests were devised by Tom Lumley, formerly of the University of Melbourne but now at Hong Kong Polytechnic University. Pursuant to a notice under s 67 of the Evidence Act 1995 given by the Minister to the applicant, Mr Brindley gave hearsay evidence about the writing test:

“In relation to the writing test, I am informed by Tom Lumley, who was responsible for the construction of those tests and verily believe that the initial set of 20 writing tasks was combined to produce 10 versions of the test (A to J).  The test specifications explicitly allowed for this procedure of combining of any task A with any task B to produce a new test version.  It is the statistical treatment, called ‘common item equating’ which allows the test versions to be equated, and the test developers to be confident that all test takers are being presented with an equal challenge.  It became apparent in early 1995 that further versions of the test would be needed.  Because of concerns about possible disclosure of test tasks, a new set of writing test tasks was trialed.  Included in these trials was a task from one of the earlier tests (from version H), which provided the common link between those new tasks and the existing set of test versions A to J.  The versions used in the next set of test versions (K to P) were composed of one new task and one task from the set already trialed and used, from the set A to J.  The link between the new versions and the old ones was thus strong for every version.  A similar procedure was carried out in 1996, to cope with the need for still further versions of the test.  The trials included a task common to the original set of test versions (from version I), and versions Q, R and S were made up of a new task from these trials plus one of the earlier tasks.  Mr Lumley currently resides in Hong Kong.”

As I understand the effect of this evidence, in each of the unapproved writing papers, one of the two required tasks was taken from an approved paper.  The other was not.

The contentions regarding exercise of discretion

Relying on this evidence, Mr Robertson submits the failure of those responsible for the tests to procure the Minister’s approval of the times and places of the post-1994 tests, and of some of the papers administered at those tests, occasioned no prejudice to any applicant; the times and places selected for the tests were both objectively reasonable and consistent with the Minister’s decision in relation to the November 1994 tests; and the papers presented to the applicants were composed substantially or entirely of tasks included in the approved papers.  Mr Robertson does not advance any argument of substantial compliance.  He accepts the mandatory/directory dichotomy is now obsolete: see the judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Incv Australian Broadcasting Authority [1998] HCA 28 at paras [92] – [93]. Mr Robertson puts his case entirely on the basis of the Court’s discretion. Referring to s 481(1) of the Migration Act, Mr Robertson says the Court has a discretion whether or not to grant relief to the applicant and it should refuse to do so in a case where it is satisfied the relevant irregularity did not prejudice the applicant or any group member.

Section 481(1) of the Migration Act reads:

“(1)On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a)an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.”

I accept this subsection gives to the Court a discretion to withhold relief, in an appropriate case, notwithstanding it is satisfied that the judicially-reviewable decision is tainted with irregularity. Section 481(1) of the Migration Act is framed in language almost identical to that used in s 16(1) of the Administrative Decisions (Judicial Review) Act 1977. It has long been accepted that the latter section confers on the Court a wide discretion as to the granting or withholding of relief to an applicant: see Lamb v Moss (1983) 49 ALR 533 at 549-550.

In responding to Mr Robertson, Mr Jones reminded me of a passage towards the end of my earlier Reasons in this case (at 147 ALR 683) in which I emphasised the importance, in terms of accountability, of the courts insisting that any decision required to be made by a Minister be actually made by him. I adhere to what I then said; if there were no Ministerial approval in the present case, it would be quite wrong to regard it as sufficient that the times and places of tests, and the contents of papers, had been approved by a Departmental officer. The strength of Mr Robertson’s argument is that, in this case, there was a Ministerial approval; not of the precise arrangements adopted for the post-1994 tests but of locations and hours of the day identical to those later used and of papers containing identical or substantially similar tasks.

Conclusions regarding discretion

Mr Jones submits that the fact the Minister approved the 1994 arrangements and papers does not establish he would have done the same thing in relation to later tests; they may have proved unsatisfactory or unreasonably onerous.  Mr Robertson points out there is no evidence that anybody complained about the arrangements for the later tests or the standard of the papers administered at them; he seeks comfort from that fact.  However, I do not think mere absence of complaint establishes absence of difficulty or unreasonableness.  People in the position of these examinees might well feel inhibited about complaining at the time of the test.  Having said that, if there had been a problem, I would have expected the applicant to tender evidence about it when he came before the Court, particularly as he is legally represented.  No such evidence has been presented.  In the circumstances, there is no reason for me to think that either the post-1994 test arrangements or the difficulty of the papers were unduly onerous or departed from the standards set by the Minister in his decision of 1 November 1994.  Is this a sufficient reason for exercising the Court’s discretion in a manner adverse to the applicant?

In their commentary on s 16 of the Administrative Decisions (Judicial Review) Act, the authors of Butterworths’ “Administrative Law Service” divide into three categories the decided cases in which relief has been withheld on discretionary grounds: cases turning on the nature of the challenged decision – for example, a committal decision in a criminal case; cases where the applicant has acted improperly or unduly delayed; and cases where the grant of a remedy will be futile.  The present case does not fall within any of these categories; in relation to the last mentioned, it cannot be assumed that none of the group members would be successful at a future test based on Ministerially approved arrangements and papers.  However, the fact that a particular case does not fall within the same category as any previous case is not a reason for refusing to exercise the Court’s discretion adversely to an applicant; the categories of discretion can never be closed.  Mr Robertson puts his case squarely on absence of prejudice; he says the Court can and should be satisfied that the absence of Ministerial approvals made no difference to any of the group members.

My mind has fluctuated about that proposition.  As I said in my earlier Reasons, there is much force in the view that the Minister would probably have approved the later test papers and schedules, if asked to do so.  If the only irregularity in this case was the absence of Ministerial approval of the arrangements for the post-1994 tests, I would be disposed to accept Mr Robertson’s submission.  The times and places selected for the post-1994 tests were both objectively reasonable and consistent with those approved by the Minister in relation to the November 1994 tests.  I cannot see how any Ministerial reconsideration of times and places could have improved any group member’s prospect of passing a test.

However, I cannot come to the same conclusion about the test papers.  I think it is probable that, if asked, the Minister would have approved papers for post-1994 tests that were pitched at the same level of difficulty as those approved on 1 November 1994; on that basis, he would almost certainly have approved the new listening and reading papers and would probably have approved the new writing papers.  But I cannot be certain about this.  I do not know whether any representations were made to the Minister about the standard required of examinees in November 1994; there may have been a view it was too high.  It is also possible that, if he had been asked to approve new papers, the Minister would have decided of his own volition to drop the required standard, if only to expedite the processing of all outstanding Class 816 applications.  I do not suggest this would have been the case or there is evidence to that effect; my point, simply, is that I do not know one way or the other.  And, not knowing, I cannot say the maintenance of the November 1994 standard for subsequently devised papers did not disadvantage applicants undone by those papers, compared with the situation in which they would have been placed if the Minister had been asked to approve those papers.  For this reason, I think it would be wrong to exercise the Court’s discretion adversely to the four group members who failed to satisfy the entry permit requirements only because of failure in papers not approved by the Minister.  Especially is this true in relation to the three group members, Li Ding, Janardan and Zhou Zei, who ultimately failed only a writing paper that consisted, as to one half, of a task that had never been approved by the Minister.  Although I do not doubt Mr Lumley set out to make the newly-devised tasks equivalent in difficulty to those contained in the approved papers, it was for the Minister to determine their appropriateness.

The question whether the other 12 group members are in the same position depends on whether or not Ministerial approval of a paper applies for all time, so the paper may be used at any subsequent test, or whether approval of a paper is tied to its use at a particular time and place.  It will be recalled these 12 people ultimately failed, or also failed, one or more papers that had been approved by the Minister on 1 November 1994.  If the Regulation permits an untied approval, given my view about the lack of prejudice flowing from the absence of Ministerial approval of the post-1994 test arrangements, it would have to be concluded these 12 people were not disadvantaged by the irregularity.  However, if approval is tied to use on a particular occasion, it is not possible to say there was no disadvantage; the Minister may have decided not to re-use the old papers for later tests, but to require the use of papers that set a lower level of difficulty.

Regulation 816.732(3) requires that “the applicant has … successfully undertaken … at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister”.  It will be seen the nomination of the test is specific to the time and place; the applicant must undertake at a particular time and place a test nominated by the Minister; not merely a test that has been approved by him at an earlier time.  It follows that the 12 remaining group members should be regarded as being in the same position as the four; discretion should not be exercised adversely to any of them.

Orders

I see no advantage in making formal declarations in this case.  I will simply order that the Immigration Review Tribunal’s decisions in relation to the applications of each of the group members (including the applicant Fazal Din) be set aside and those applications be remitted to the Tribunal for determination according to law.  The Minister must pay the applicants’ costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:             

Solicitor for the Applicant:	M Jones of Parish Patience
Counsel for the Respondent:	A Robertson SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 1998