Ghori v Minister for Immigration - [2010] FMCA 794

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GHORI v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 794

MIGRATION – Application to review decision of Migration Review Tribunal – criteria for grant of Skilled visa Subclass 485 – English language proficiency – whether Tribunal erred in its consideration of applicable criteria having regard to Berenguel v Minister for Immigration and Citizenship – whether failure to have regard to relevant considerations – whether Tribunal erred in failing to grant the applicant additional time to provide evidence of competent English.

Migration Act 1958 (Cth), ss.54, 353
Migration Amendment Regulations 2008 (No. 7) (SLI No 205 of 2008) (Cth), reg.7
Migration Regulations 1994 (Cth), regs.1.15B, 1.15C, cll.485.215, 485.222 of Schedule 2

Alam & Ors v Minister for Immigration & Anor [2010] FMCA 351
Banala v Minister for Immigration and Citizenship and Another (2010) 240 FLR 238; [2010] FMCA 570
Bandi v Minister for Immigration & Anor [2010] FMCA 365
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Habib & Ors v Minister of Immigration & Anor [2010] FMCA 450
Mevada v Minister for Immigration & Anor [2010] FMCA 616
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Nayeem v Minister for Immigration & Anor [2010] FMCA 618

Applicant:

SARDAR KHAN GHORI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG707 of 2010

Judgment of:

Barnes FM

Hearing date:

15 September 2010

Delivered at:

Sydney

Delivered on:

13 October 2010

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr Kennett with Ms Ramsay

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG707 of 2010

SARDAR KHAN GHORI

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal dated 10 March 2010 affirming a decision of a delegate of the first respondent not to grant the applicant, Mr Ghori, a Skilled (Provisional) (Class VC) Visa.
On 30 May 2008 Mr Ghori, a citizen of India, lodged an internet application for a Class VC, Subclass 485 visa. On 2 June 2008 the applicant’s advisor emailed to the Department of Immigration a number of documents in relation to the visa application, including a tax invoice dated 14 May 2008 from Wollongong College Australia for an English language test (an IELTS test) to be conducted on 11 October 2008. On 13 February 2009 the Department asked the applicant to provide his IELTS test results, however no IELTS test results were provided to the Department.
Mr Ghori’s application was refused on 1 April 2009 on the basis that he had not provided evidence of the requisite level of English language proficiency for a Subclass 485 visa and did not meet cl.485.222 in Schedule 2 to the Migration Regulations1994 (Cth). He sought review by the Tribunal on 21 April 2009.
Relevantly, the Tribunal decision turned on whether the applicant met the criteria in Part 485 of Schedule 2 to the Migration Regulations relating to English language skills.
At the time of Mr Ghori’s visa application, under the heading “Criteria to be satisfied at the time of application” cl.485.215 provided as follows:
Either:
(a)    the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b)    the applicant has competent English; or
(c)     the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
Clause 485.215 was subsequently amended to delete paragraph (c) (see reg.7 and Schedule 2 to Migration Amendment Regulations 2008 (No. 7) (SLI No 205 of 2008) (Cth)). However the version applicable in this instance is as set out above (see Nayeem v Minister for Immigration & Anor [2010] FMCA 618 at [9] and Habib & Ors v Minister of Immigration & Anor [2010] FMCA 450 at [4]).
A visa applicant who satisfied paragraph (c) of cl.485.215 was also required to satisfy cl.485.222 which appeared under the heading “Criteria to be satisfied at time of decision” and was in the same terms as paragraphs (a) and (b) of cl.485.215. If the visa applicant fell within a certain category of “nominated skilled occupation” under the Australian Standard Classification of Occupations he or she was required to have “vocational English”. In other cases the requirement was that the applicant have “competent English”. Mr Ghori’s nominated occupation (computing professional) was outside the stipulated categories, so that the applicable English language requirement was that he have “competent English”.
“Vocational English” and “competent English” are defined in reg.1.15B and 1.15C of the Migration Regulations respectively. Relevantly, except for holders of passports from a range of specified countries (which do not include India), “competent English” is shown if the applicant has achieved an “IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening” in a “test conducted not more than 2 years before the day on which the application was lodged”.

The Tribunal review

On 20 October 2009 the Tribunal invited Mr Ghori to provide evidence that he had “competent English” under reg.1.15C of the Migration Regulations by 17 November 2009. On 17 November 2009 Mr Ghori’s agent provided a receipt for an IELTS test booked for 6 February 2010. He claimed that when the applicant had done an earlier IELTS test he was under “family pressure” (his father having died and mother being ill), and that he did not achieve the necessary results. The applicant sought an extension of time until the results of the test he was scheduled to do on 6 February 2010 were available.
The Tribunal invited the applicant to a hearing on 23 February 2010 and asked that the results of the scheduled IELTS test be provided before that date.
According to the Tribunal reasons for decision, at the hearing the applicant confirmed that he had “not achieved the required score in an IELTS test”. The results of the 6 February 2010 IELTS test had been withheld but were to be issued in late February 2010. The Tribunal told Mr Ghori that it would wait until 9 March 2010 for him to provide the results of the 6 February 2010 IELTS test.
Mr Ghori asked the Tribunal to let him sit a further test he had booked for 27 March 2010, claiming that he had “family problems … with his mother being ill”, that “he had now sent his brother home to look after [her] and that it was only now [that] he felt that he could perform at his best in an IELTS test”. However the Tribunal told Mr Ghori it would only wait for the results of the IELTS test of 6 February 2010. The Tribunal noted that Mr Ghori’s visa application had been made on 30 May 2008, the review application had been made on 21 April 2009 and that in November 2009 it had allowed him to sit a further test on 6 February 2010. The Tribunal advised the applicant that “in [those] circumstances it was only prepared to wait until 9 March 2010 for [him] to provide the results of the 6 February 2010 IELTS test.”
Mr Ghori submitted the results from IELTS tests he had sat on 11 October 2008, 15 November 2008, 11 July 2009 and 23 January 2010 to the Tribunal. However he did not achieve the score required under reg.1.15C in any of those tests. On 8 March 2010 the applicant’s representative provided the Tribunal with the results from the IELTS test of 6 February 2010. Again, the applicant did not achieve the required result. The agent requested a further six weeks to allow the processing of an appeal. The Tribunal recorded that the applicant’s representative was informed that it would make a decision on the available evidence.

The Tribunal Decision

In its findings and reasons the Tribunal stated that it was “satisfied that the [visa] application was accompanied by evidence that the applicant had made arrangements to undergo an IELTS test on 11 October 2008” and hence that he satisfied cl.485.215.
It is apparent that this conclusion related to the requirements of cl.485.215(c), as the Tribunal went on to consider whether the applicant had satisfied cl.485.222 at the time of its decision. The Tribunal found that the applicant was required to have “competent English” but that he had not achieved an IELTS test score of at least six for each of the four test components or a score specified by the Minister in a specified language test in a test conducted not more than two years before the day on which the application was lodged. The Tribunal also found that the applicant was not the holder of a passport from a country specified by the Minister for the purposes of the requirement of evidence of “competent English” in reg.1.15C.
The Tribunal concluded that it was not satisfied that the applicant had “competent English” and found that he did not satisfy cl.485.222.
As the applicant did not satisfy the criteria for any of the other subclasses within the class of visa for which he had applied, the Tribunal affirmed the delegate’s decision not to grant him a Class VC visa.

This application

The applicant sought review by application filed in this court on 31 March 2010. The ground relied on is as follows:
The Second Respondent made a jurisdictional error by ignoring the applicant’s then present situation on 9 March 2010. Refer to paragraph 25 of page 4 of the second respondent (sic) decision.
The applicants (sic) had sent his brother back in (sic) India to look after his sick mother. The applicant had booked for IELTS on 27 March 2010. The applicant believes he could perform at his best in an IELTS test. But the Second respondent did not allow him any chance to sit for an IELTS test.
This ground was elaborated on and extended in written submissions handed up at the hearing. The applicant contended that in light of the High Court decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8, the Tribunal had “incorrectly applied the law” in that it “should have given consideration to the difficult emotional traumas and circumstances” he was suffering. It was submitted that the Tribunal had erred in proceeding on the basis that because the applicant’s circumstances “presented themselves after the application was lodged” they were not relevant to cl.485.215 which the Tribunal had regarded as a criterion “at the time of application”. It was submitted that having regard to the approach taken in Berenguel, the applicant’s personal circumstances were a material consideration in relation to a “Time of Application” criterion.
These submissions appear to involve a contention that the Tribunal made a jurisdictional error of law in its application of the criteria applicable to a Subclass 485 visa. It was also contended that the applicant should have been given more time by the Tribunal to submit his “best” IELTS result, especially as his results were not far from the necessary standard and in light of the “devastating effect that a visa rejection would have on his personal circumstances”.
The applicant contended that under s.54 of the Migration Act 1958 (Cth) (the Act), in deciding whether to grant or refuse a visa the Minister was obliged to have regard to all of the information in the application, but that the Tribunal had “failed to give any regard to [his] personal circumstances and [his] request for an extension of time” as these circumstances were erroneously considered to be irrelevant. On this basis it was submitted that the Tribunal made an error of law.
It was submitted that it was the “usual practice” for the Tribunal to provide three or four weeks for post-hearing submissions, that it was rare for decisions to be “given from the bench” and that it was “normal for their (sic) to be a delay in the handing down of decisions” to provide the “best possible case for a visa applicant”. The applicant contended that there would have been no burden on the Tribunal to wait “a further 3 weeks to receive the outcome of the requested 2nd IELTS test” (this is apparently a reference to the proposed test of 27 March 2010), given that the request was said to be for “valid reasons”.
The applicant indicated that as appeals from decisions of the Federal Magistrates Court in Habib and in Banala v Minister for Immigration and Citizenship and Another (2010) 240 FLR 238; [2010] FMCA 570 were pending he would agree to an adjournment to await the outcome of those appeals. It was suggested that this had been proposed by the first respondent. However while counsel for the first respondent had stated in written submissions that if the court considered that the issues to be resolved in Habib and Banala on appeal were to be determinative it would be appropriate to adjourn these proceedings pending determination of the appeals, it was submitted that the present case did not turn on the reasoning in those cases, as whether or not the approach taken in those cases was correct, no jurisdictional error was established in this case. For reasons given below, I agree with the submissions of the first respondent in this respect.
In order to consider whether the Tribunal erred in its application of the applicable criteria in a manner constituting jurisdictional error it is nonetheless necessary to refer to the cases addressed in detail in the first respondent’s submissions.
In Berenguel the High Court considered the construction of cl.885.213 in Schedule 2 to the Migration Regulations. This is a criterion applicable to Subclass 885 visas that appears under the heading “Criteria to be satisfied at the time of application”. Clause 885.213 contains provisions in the same terms as paragraphs (a) and (b) of cl.485.215, but does not include any provision akin to cl.485.215(c). In other words it requires an applicant with a specified skilled occupation to have “vocational English” or otherwise to have “competent English”.
In Berenguel an applicant for a Subclass 885 visa had made arrangements for an IELTS test before he lodged his visa application that was booked for a date after the visa application lodgement date. He provided details of this booking with his visa application. Subsequently he achieved the level required for “competent English” (and hence necessarily for the lower standard of “vocational English”) in that IELTS test. However a delegate of the Minister refused his visa application on the basis that the IELTS test had to be conducted prior to lodgement of the visa application.
The High Court found (at [25]) that the requirement in reg.1.15B (which contains the definition of “vocational English”) that the test had to be “conducted not more than 2 years before the day on which the application was lodged” was:
… susceptible to the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged.
The court rejected any contention that such a requirement arose from the heading “Criteria to be satisfied at time of application” under which cl.885.213 appeared. Their Honours concluded that such a construction would lead to “plain unfairness and absurdity” and that the heading did not give rise to a requirement that the test had to be conducted before the application was lodged (see Berenguel at [26]). Hence a test result achieved in a test conducted after the lodgement of the visa application could be relied on as evidence of “vocational English” in reg.1.15B for the purposes of cl.885.213 of Schedule 2.
Regulation 1.15C and paragraphs (a) and (b) of cl.485.215 are (relevantly) in the same terms as the provisions considered in Berenguel. Clause 485.215 also appears as part of a group of clauses headed “Criteria to be satisfied at time of application”. If the same approach were to be taken to cl.485.215 an applicant could demonstrate “vocational English” or “competent English” in a test conducted after a visa application was lodged.
However, as it stood at the time of Mr Ghori’s visa application, cl.485.215 also contained paragraph (c). There is no equivalent in cl.885.213. This distinction has given rise to an issue as to the applicability of the reasoning in Berenguel to the criteria for a Subclass 485 visa. The Minister is of the view that Berenguel can be distinguished and that the criterion in cl.485.215 (as the clause stood at the relevant time) could only be met by evidence of an English test conducted before the visa application was lodged, unless the circumstances were within paragraph (c) of cl.485.215 (that is, the results were achieved in a test that was arranged before the visa application was lodged, but was conducted thereafter).
Several decisions of this court have considered cl.485.215 in light of Berenguel, but for the most part these decisions have turned on cl.485.215(b) (which simply requires that the applicant have “competent English”) not cl.485.215(c). Thus, in Habib, Banala, and also in Nayeem, the view was expressed that, consistent with the approach taken in Berenguel to Part 885 of Schedule 2 to the Migration Regulations, decision makers should take account of IELTS test results achieved between the dates of the visa application and the Tribunal decision when applying paragraph (a) or paragraph (b) of cl.485.215 (see Habib at [17]), notwithstanding that cl.485.215 is expressed as a “time of application” criterion and notwithstanding the presence of paragraph (c) in that clause.
The Minister has appealed in two of these cases (Habib and Banala) and maintains the contention that the Federal Magistrates erred in their interpretation of cl.485.215 in Schedule 2 to the Migration Regulations. However it was submitted that in this case nothing turned on that issue, as the same result would follow whether the Minister’s view of cl.485.215 or the approach taken in Habib and Banala was followed. In essence that is because Mr Ghori did not achieve the necessary IELTS test results at any time prior to the Tribunal decision. It was submitted that the Tribunal did not make any error going to jurisdiction in its application of the criteria in Part 485 of Schedule 2 to the Migration Regulations to the material before it.
There is one significant factual distinction between the circumstances considered in Habib, Banala and Nayeem and the circumstances of this case. In each of those cases a visa applicant achieved the requisite score in an IELTS test conducted after the visa application was lodged, but before the Tribunal decision. That did not occur in this case. However in the course of determining whether cl.485.215(b) was satisfied their Honours each expressed views in relation to the construction of cl.485.215(c) in addressing the contention by the Minister that the presence of cl.485.215(c) in Part 485 of Schedule 2 to the Migration Regulations pointed towards a restricted operation for paragraphs (a) and (b) of cl.485.215.
In Habib, Smith FM did not accept the argument for the Minister that paragraph (c) of cl.485.215 was intended to provide the only permissible pathway by which a decision maker such as the Tribunal could take into account a visa applicant’s results in an IELTS test undertaken after the date of the visa application (at [21]). His Honour found that the literal meaning and intended operation of this provision was to provide the applicant with the option of notifying a decision maker at the time of visa application that he had made an appointment to sit a future IELTS test. Smith FM stated at [23] that:
The conferral by the Regulations of this option then gives rise, if it is exercised at the time of visa application, to an expectation that the decision-maker will defer making a decision until the results of the notified test become available.

His Honour was of the view that, in contrast to cl.485.215(a) and (b), paragraph (c) of cl.485.215 and cl.485.222 together gave rise to a “binding obligation on the Minister” to give such a deferral, or at least to a duty after receiving notification under paragraph (c) not to make a decision before the date of the appointed test without giving the visa applicant an opportunity to be heard on whether this should happen (at [23]). The obligation to have regard to up-to-date evidence available at the time of decision was said to carry with it the “added obligation… to defer making a decision to await the tender of additional evidence which is not yet in existence” (at [25]).
However Smith FM pointed out (at [24]) that if evidence of the appointment for a language test did not accompany the visa application:
… decision-makers might have a discretion to allow time for further testing to occur, but they would be under no obligations or expectations to exercise their discretion favourably.
In Habib the applicant had achieved the requisite score of at least six in each of the four test components in an IELTS test conducted while his review application was before the Tribunal. However the Tribunal had found that he did not satisfy cl.485.215 on the basis that paragraph (a) was inapplicable, that he did not satisfy paragraph (b) because he had not obtained the results not more than two years before the date of the visa application, and because he had provided no evidence with the application that he had made arrangements to sit a language test as required in paragraph (c).
Consistent with the reasoning in Berenguel, Smith FM found that the Tribunal had made a jurisdictional error in its interpretation of cl.485.215(b) in refusing to take into account the applicant’s IELTS test results.
In Banala Raphael FM also concluded that the Tribunal had erred in failing to take into account under cl.485.215(b) a satisfactory IELTS test result in a test undertaken after the visa application had been lodged. His Honour found that the relevant facts in Habib were identical to those before him (at [10]) and that cl.485.215(c) did not apply. The Minister had sought to reagitate what he saw as the distinguishing feature between the circumstances in Banala and Habib and those in Berenguel (that cl.885.213 did not contain an equivalent provision to cl.485.215(c)). Raphael FM found that he was unable to say that the decision in Habib was clearly wrong, but that even if Smith FM was wrong in his construction of cl.485.215(c), paragraph (c) should be disregarded as being redundant, either because it was superfluous if the Berenguel interpretation of cl.485.215(b) was accepted, or more generally because (as the Minister contended and contrary to the view expressed by Smith FM) there was no implied requirement that a delegate (or the Tribunal) await the outcome of a test booked at the time of the visa application (at [13]).
In Nayeem an applicant had achieved satisfactory test results in an IELTS test conducted after his visa application was lodged. The results were not taken into account by the Tribunal. Cameron FM considered the construction of cl.485.215(b) in light of Berenguel. The Minister again contended that the distinguishing feature for Subclass 485 was the presence of cl.485.215(c) and that the criteria in cl.485.215 had to be satisfied at the time of application. The Minister submitted that cl.485.215(c) contained two elements: a “procedural requirement that the visa application…be accompanied by evidence of arrangements to undertake an IELTS test” and an “underlying substantive requirement that those arrangements actually be in place at the time of application” (at [26]) and that while the reasoning in Berenguel applied to the procedural requirement in cl.485.215(c) and meant that the evidence of arrangements to undertake an IELTS test could be submitted after the application, the arrangements had to be in place at the time of application (at [28]).
Cameron FM rejected the contention that an applicant would fail to satisfy cl.485.215 if he or she did not have the necessary IELTS test results at the time of application and had not at the time of application made arrangements to sit such a test. His Honour found no relevant difference between the provisions considered in Berenguel and cl.485.215(a) and (b) (or between reg.1.15B and reg.1.15C). Hence his Honour found that the Tribunal had fallen into error in failing to have regard to a test result achieved in an IELTS test arranged and conducted after the visa application was lodged under cl.485.215(b).
However, relevantly for present purposes, Cameron FM concluded that far from imposing a procedural requirement that could be satisfied at a date later than the time of application, it was clear from the reasoning in Berenguel in relation to the criteria applicable to a Subclass 885 visa that referred to an application being “accompanied by evidence” of other things (such as arrangements to undergo a medical examination) (see Berenguel at [24]), that a clause such as cl.485.215(c) imposed a substantive requirement to be satisfied at the time of application, if at all. On this basis Cameron FM expressed the view that an applicant could not satisfy paragraph 485.215(c) by submitting evidence of prior arrangements for a language test after the time of application (at [36]). On this basis paragraph (c) was said not to be redundant. His Honour was of the view that if cl.485.215(c) was met, the necessary implication of cl.485.222 was that (at [37]):
… a decision on the application will not be made until the applicant has had an opportunity to sit the test which he or she has arranged, the arrangements for which were demonstrated by evidence which accompanied the visa application.
This was said to provide a degree of certainty for both the applicant and the decision maker, as a decision would not be made until the test was undertaken on the date notified at the time of the application. Cameron FM described the alternatives open to an applicant as follows (at [41]):
An applicant who has not passed an IELTS test in the two years before the visa application may either give evidence of arrangements for a future test when making the visa application or may continue to sit tests and obtain results up to the date of decision but run the risk of a decision on the visa application being made before a test is sat or results advised.
It is notable that the one consistent thread that emerges from these cases is that unless the requirements of cl.485.215(c) are met (whether those requirements are as construed in any of the above cases or as contended for by the Minister) the Tribunal is not under an obligation to defer making a decision to allow time for further testing. Such reasoning is directly relevant to the present case.
Before turning to the circumstances of the present case, I note three other decisions referred to in the submissions for the first respondent.
In Mevada v Minister for Immigration & Anor [2010] FMCA 616 Turner FM expressly stated that he followed Habib and did not reach a different view from Smith FM in Habib (at [42] and [43]). His Honour found a jurisdictional error in that the Tribunal erred by failing to take into account under cl.485.215(b) an IELTS test result achieved after the date of application. While it appears that at one point in the decision a submission of the Minister was accepted to the effect that the applicant had failed to comply with cl.485.215(c) because arrangements for an IELTS test were not in place as at the date of visa application of 26 March 2008 (at [58]), subsequently his Honour found that the Tribunal erred in finding that an IELTS test receipt dated 1 April 2008 for a test to be conducted in September 2008 that was sent to the Department on 3 April 2008 did not accompany the online visa application within cl.485.215(c) (at [65]).
In my view the discussion of cl.485.215(c) in Mevada was obiter as his Honour had held that the Tribunal misapplied cl.485.215(b). However as counsel for the Minister pointed out, his Honour’s conclusion (in relation to whether evidence accompanied a visa application), would support the approach taken by the Tribunal in this case to the effect that the applicant satisfied cl.485.215(c), given that the applicant had made arrangements to sit an IELTS test before lodging his visa application although the relevant evidence was not lodged until some days later. On that basis the issue for determination was, as the Tribunal saw it, whether the applicant also satisfied cl.485.222 (cf Nayeem).
Two earlier cases in which an applicant did not achieve the requisite English language test results were also referred to in the first respondent’s submissions. In Alam & Ors v Minister for Immigration & Anor [2010] FMCA 351 (a case decided before Habib but after Berenguel) Mr Alam’s visa application was not accompanied by evidence of an IELTS test result or arrangements for such a test. Subsequently he advised the Department of arrangements made before his visa application for a test to be sat at a later date. He did not provide any evidence of satisfactory results in that test. After his application was refused and he sought review he sought an extension of time to provide the Tribunal with the results of two further tests. The Tribunal advised that it would make its decision after the date of the first of those tests. It decided not to grant a further extension of time. In the absence of evidence of satisfactory test results the Tribunal found that Mr Alam did not meet cl.485.222.
Smith FM found no jurisdictional error in the Tribunal’s exercise of its discretion not to allow a longer adjournment. No issue was raised about the construction of the criteria for a Subclass 485 visa.
Finally, in Bandi v Minister for Immigration & Anor [2010] FMCA 365 (another cased decided before Habib but after Berenguel) Smith FM considered circumstances similar to those of the present case. Mr Bandi lodged an online visa application on 7 August 2008. Various supporting documents (apparently including evidence of arrangements for an IELTS test to be conducted on 13 December 2008) were provided to the Department. However no satisfactory test results were provided to the Department. The Tribunal postponed its hearing once to allow Mr Bandi to provide results from a further IELTS test he had booked after his visa application was made. It then refused a further extension of time to allow him to sit another IELTS test in circumstances where he claimed to be anxious and depressed about family illness. The applicant in Bandi did not, either before the visa application or while the matter was before the delegate or the Tribunal, achieve the necessary results in an IELTS test.
In that case the Tribunal found that the applicant did not meet cl.485.215(a) or (b). However it was of the view that his visa application was accompanied by evidence that he had made arrangements to undergo a language test specified for the purposes of cl.485.215(c). It appears that no issue was taken about the fact that the application was lodged online and various supporting documents were forwarded separately to the Department. The Tribunal in Bandi found that the applicant did not satisfy cl.485.222. A similar approach was taken by the Tribunal in the present case.
In Bandi Smith FM found no error in the Tribunal’s understanding of cl.485.215(b), even on the construction that his Honour suggested had been confirmed by the approach taken in Berenguel. In any event, Smith FM accepted a submission of the Minister’s to the same effect as the submission in this case, that if an error did appear in the Tribunal’s application of cl.485.215 it would not be a material error vitiating its decision on the review. It was said to have “inevitably followed” from the Tribunal’s refusal of an adjournment and the absence of any evidence of Mr Bandi “ever achieving” the necessary test results, that the Tribunal was unable to be satisfied of the requirements of cl.485.222 at the date of decision (at [24]). Smith FM found no jurisdictional error of law in the Tribunal’s reasons in relation to the criteria in question in Bandi.
As the first respondent submitted, Bandi demonstrates that whether the Tribunal in that case had chosen the right route or the wrong route, its findings were such as to preclude any possibility that the applicant could have succeeded and hence there could not be said to be any error going to jurisdiction in the Tribunal decision.
Smith FM also acknowledged in Bandi that the Tribunal had a discretion to adjourn the review that must be exercised consistently with the terms and objects of the Migration Act (at [32]), but found no error in the Tribunal’s exercise of its discretion not to further delay the making of its decision.
In order to explain why I accept that, whether one takes the approach in Habib or that preferred by the Minister in relation to the construction of the criteria applicable to Mr Ghori’s visa application, the Tribunal did not make an error that went to jurisdiction, it is necessary to consider the implications of the various views expressed about the construction of cl.485.215 in the circumstances of the present case.
If, as the Minister submitted, on the correct construction of cl.485.215(c) as a visa criterion, its presence in cl.485.215 having regard to the presence of the time of the decision criterion in cl.485.222 is to be taken as indicating a legislative intention that the criteria in cl.485.215 applicable at the time of Mr Ghori’s visa application were intended to operate at the time of application so that the provisions considered in Berenguel were distinguishable, the only available pathway through cl.485.215 would have been via cl.485.215(c) as the applicant had not achieved a satisfactory IELTS test result prior to his visa application.
The Minister’s view is that insofar as cl.485.215(c) operated procedurally to require particular material to be lodged, there was no reason why the reasoning in Berenguel should not apply so that evidence could be lodged after the date of the visa application. On this view, the applicant met cl.485.215(c) as arrangements for an IELTS test were in place at the time of his visa application. If that is so, then, as the first respondent submitted, the Tribunal was correct in finding that the applicant met cl.485.215(c).
According to Habib there would be an obligation on the delegate and the Tribunal to defer making a decision, but that obligation would relate only to the time for the test which the applicant had arranged at the time of application (in this case the October 2008 test). Neither the delegate nor the Tribunal in this case made its decision before October 2008.
On this basis the only issue would be whether the applicant met cl.485.222 at the time of the decision. The Tribunal’s analysis of the material before it in that respect was clearly correct and does not reveal any error of law, as the applicant did not achieve the requisite IELTS test results before the Tribunal decision.
However in Nayeem a more restrictive approach was taken to the concept of evidence accompanying a visa application in cl.485.215(c) than that now contended for by the Minister. Hence on the reasoning in Nayeem the applicant would not have satisfied cl.485.215(c) because he did not, strictly speaking, provide evidence of arrangements to sit a language test with his visa application (as distinct from by separate email three days later) (cf Habib at [41]).
On that basis (even if there was an obligation on the decision maker to defer making a decision where the cl.485.215(c) option was exercised as suggested in Habib) neither the delegate nor the Tribunal would have been under any obligation to wait until the applicant had undertaken a language test before making a decision.
Thus on the Nayeem approach, whether the applicant met the language test requirements would in fact have turned on whether he met cl.485.215(a) or (b). Habib would suggest that these criteria could be met by satisfactory results in an IELTS test conducted at any time before the Tribunal decision. However, critically, on the findings made by the Tribunal and the evidence before it, the applicant could not possibly have met either of those criteria (which in substance are the same as cl.485.222(a) and (b)). The Tribunal did not err in finding that Mr Ghori had not achieved a satisfactory IELTS test result (within reg.1.15C) prior to the Tribunal decision as would be required under cl.485.215(b) if the view taken of cl.485.215(b) in Habib and Banala is correct.
It is not necessary to determine whether Habib or Banala are clearly wrong (which I would consider necessary to depart from the approach taken in those cases) or to await the determination of the appeals in those cases. While on the approach taken in Habib (and Banala), the Tribunal would have been required to have regard to any IELTS test in which the applicant had obtained satisfactory results prior to the time of its decision under cl.485.215(a) or (b), the same requirements are to be found in cl.485.222 (a time of decision criterion). On the evidence before the Tribunal and its findings the applicant could not possibly have met either criterion as he did not achieve an IELTS score of at least six in each of the four test components in any IELTS test as required under reg.1.15C. On this basis, if there was any error in the Tribunal’s approach it was not jurisdictional.
In other words, there was no error going to jurisdiction in the Tribunal’s application of the criteria to the material before it because, on any view, the critical issue was whether the applicant had achieved the necessary IELTS test scores by the time of the Tribunal’s decision. The Tribunal’s finding that he had not done so was, as counsel for the first respondent submitted, manifestly correct. Hence, whether it followed the correct path or not, the Tribunal’s reasoning and conclusion does not involve any error going to jurisdiction (see Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).
The applicant also submitted that the Tribunal was under an obligation to defer making its decision until he had undertaken a further proposed IELTS test on 27 March 2010. Any obligation under cl.485.215(c) to defer making a decision (or at least not to do so without giving the visa applicant the opportunity to be heard on whether this should happen as discussed in Habib) would only apply to the results of the October 2008 test that had been arranged at the time of the visa application (whatever view is taken of the time at which evidence is to be provided to the Department). Beyond this, while the Tribunal has a discretion to allow a further adjournment or to defer making its decision it is under no obligation to do so. No jurisdictional error is established on this basis.
Insofar as the contention by the applicant that the Tribunal fell into jurisdictional error in ignoring his personal situation is put on the basis that in light of such factors the Tribunal should have exercised its discretion to delay making a decision to enable him to sit for the further IELTS test booked for 27 March 2010, no error going to jurisdiction is apparent in the Tribunal’s exercise of its discretion (see Bandi at [32]).
It is clear from the Tribunal’s reasons for decision that it did not fail to consider the claimed position of the applicant and his family situation when deciding whether or not to accede to his request for such a further delay. He sought such additional time at the hearing. According to the Tribunal reasons for decision (the only evidence before the court of what occurred at the hearing), when the applicant raised his personal circumstances it discussed with him its concern about the time that had elapsed since his visa application was lodged and the number of attempts he had made to obtain the necessary test scores. It told him that “in these circumstances” it was only prepared to wait until 9 March 2010. The course which the Tribunal took in refusing any further deferral of the decision until after 27 March 2010 was clearly open to it.

On 10 March 2010 the Tribunal (through an officer) advised the applicant’s agent (who had requested a further extension of time) that the decision would be made on the available evidence. This was consistent with the Tribunal’s advice to the applicant at the hearing.
Reading the Tribunal reasons for decision fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6), while the Tribunal did not reiterate its reasons for not granting a further adjournment, having regard to its acknowledgement of the “personal” issues raised by the applicant at the hearing and the views that it expressed in relation to the time that had passed, the previous test opportunities afforded to the applicant and its clear indication at the hearing that it would only wait for the results of the IELTS test of 6 February 2010, it has not been established that the Tribunal failed to have regard to the applicant’s personal circumstances or erred the exercise of its discretion as to whether to delay making a decision in a manner constituting jurisdictional error. There is nothing to indicate that the Tribunal made such a decision unreasonably. It was not under any statutory obligation to give reasons to the applicant for its decision not to depart from the view it had expressed at the hearing. The timing of the Tribunal’s decision was a matter for it, subject to the direction in s.353 of the Migration Act that it was to deal with reviews quickly. It is clear from the reasons for decision that the Tribunal did not fail to consider the applicant’s claimed circumstances when deciding whether to accede to his request for a further delay.
The applicant’s written submissions also seem to suggest that the Tribunal erred in giving a decision “from the bench”. However it did not do so. On the contrary, the Tribunal hearing was on 23 February 2010, but the Tribunal did not make a decision on that day. Instead it allowed the applicant time to provide the results of the IELTS test of 6 February 2010. It did not make its decision until 10 March 2010. No jurisdictional error is apparent in this respect.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 13 October 2010