Gowda & Ors v Minister for Immigration & Anor - [2016] FCCA 3491

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOWDA & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3491

Catchwords:
MIGRATION – application for judicial review – no matters of principle – application granted.

Legislation:

Migration Act 1958 (Cth).

First Applicant:

SHIVANANJE GOWDA

Second Applicant:

MAMATHA BYALADAKERE EREGOWDA

Third Applicant:

CHANDANA SHIVANANJE GOWDA

Fourth Applicant:

ANAND SHIVANANJE GOWDA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2859 of 2015

Judgment of:

Judge Riethmuller

Hearing date:

31 August 2016

Date of Last Submission:

31 August 2016

Delivered at:

Melbourne

Delivered on:

31 August 2016

REPRESENTATION

The First Applicant appeared In Person

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

DLA Piper

ORDERS

A writ of certiorari issue directed to the Second Respondent quashing its decision dated 15 December 2015 (AAT case number 1316250)
A writ of mandamus issue directed to the Second Respondent requiring it to reconsider and re-determine the application according to law.
There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2859 of 2015

SHIVANANJE GOWDA

First Applicant

MAMATHA BYALADAKERE EREGOWDA

Second Applicant

CHANDANA SHIVANANJE GOWDA

Third Applicant

ANAND SHIVANANJE GOWDA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) with respect to a Temporary Business Entry (Class UC) visa. The applicant is seeking a 457 visa to enter and remain and work in Australia which is a visa step on the pathway to residency in Australia.
The applicant had come to Australia to undertake courses of study which he successfully completed at Australian institutions, and has since then fulfilled all of the requirements necessary to obtain the particular visa for which he has applied.
The difficulty that confronts the applicant is that one of the visa requirements is that of a minimal level of English language skills. This particular case is governed by the provisions in IMMI 15/028 which, for this category, requires an overall score in an IELTS of 5.0, and appears to require a minimum score for each of the four components of 4.5. The relevant regulation sets out that the applicant needs to have achieved “the score specified by the Minister” in a single attempt at the test.
The applicant in this case is not an academic man and he has undertaken courses in commercial cookery and similar endeavours. The applicant has also undertaken courses for basic first aid and the like. The applicant had significant difficulties passing his English test. He says he sat the test on numerous occasions. The applicant had, through the period, sought and obtained a number of adjournments in order to enable him to attempt the test again.
The Tribunal decision was made on 15 December 2015 denying the applicant the visa. In March 2016 the applicant sat the test and obtained scores that would clearly entitle him to the visa. The results of that test are annexed to an affidavit that he has filed. The applicant is, therefore, in the most unfortunate position that had that test been completed prior to the Tribunal’s decision being handed down, it appears he would have obtained his visa and remained on the pathway to residence.
A schedule of test attempts is set out at p.156 of the court book and it appears that in various tests the applicant has obtained a score of 5.0 for each of the four different components of listening, reading, writing and speaking on various occasions. The applicant had not obtained that score for all four, nor has he obtained a minimum of 4.5 across each of the four bands within the one single test prior to the decision of the Tribunal.
The applicant did obtain a score with an overall band score of 5.0 in November 2015. Unfortunately, on that occasion his reading score fell to 3.5 and it was the strength of his other scores that gave him the overall band score of 5.0. It does not appear that that particular test was specifically considered by the Tribunal in their decision. Therefore, there is not a formal finding as to whether or not the Tribunal accepted that that particular test result was a valid test result. This is of some importance, given that in a number of cases that come before this Court it has been apparent that sometimes there are questions as to whether or not the person sat the test, and there does need to be a formal finding that the test result does, in fact, relate to the applicant.
There would potentially be some foundation for an argument that whether or not the use of the word “score” in the singular in the regulation and the use of the word “scores” and a complex table at paragraph [3] of the IMMI can easily be read together or, arguably, whether the overall band score is the relevant part that is referred to in the regulation rather than each of the component parts. In the absence of formal findings on the evidence about that particular score, it is appropriate for me to make a determination of that question.
The other issue that arises is that the applicant had sought an adjournment, and he says that he had sought an adjournment specifically to undertake the test on 19 March 2016. The applicant supported his adjournment application with a document confirming from the testing authority that he had paid $330 for the test and the date of the test was given in that document as 19 March 2016. The request for the adjournment pointed out that it was unfortunate that he had missed out on only one or other test parameter, but on various occasions succeeded on each of the parameters, and sought time for him to be able to undertake this particular test that was specified in the documents.
The Tribunal member, quite understandably, was concerned about the amount of the adjourned time of some 14 months that had elapsed overall in this case, and the large number of tests that had passed. The Tribunal member stated that they considered the request and gave as the reasons for not granting the applicant the time to sit this additional test as being that the Tribunal was unable to indefinitely postpone the finalisation of the case. Those reasons were repeated again at paragraph [17] of the Tribunal’s decision.
One cannot cavil with the proposition that the Tribunal cannot indefinitely postpone making decisions: is absolutely correct. In the context of most cases, such reasoning would be sufficient. I am mindful of the need not to look through a Tribunal’s decision or reasons with a fine tooth comb attuned to finding error. However, in this case the individual circumstances of the applicant also needed to be considered in addition to the general proposition that cases can’t be postponed forever.
In this particular case the applicant had on previous occasions, albeit in different tests, actually achieved the score in each of the various bands, and had been actively pursuing his English language test and, no doubt, studies to assist him in doing that, and had specifically booked and paid for a test.
This was somewhat different to many cases that we see in the court where the applicant constantly seeks an adjournment to undertake some further step but never actually does anything about it and then appeals, and appeals to the higher courts on a similar basis.
Here the applicant had actively been working on the issue and had a specific test booked and sought a relatively modest further adjournment. The overall adjournments, it seems, are somewhat less than some of the cases that are in the reports.
The other factor in this case is that the applicant came here to study. The applicant is working. He is on a pathway that leads to a residence visa. Therefore, unlike, for example, a student who would not be on a pathway to remain and would simply have to finish their studies elsewhere, or a business person who is here only to try and pursue business before returning, much of the applicant’s life path depends upon the outcome in this proceeding and the proceeding before the Tribunal.
I have considerable sympathy for the Tribunal member in confronting the difficulties that these cases present under the time pressures of the Tribunal in discharging their important functions under the Act. I also note that there has been structural changes to the Act which, effectively, removes the difficulties created by these types of cases because in most situations now one must have the appropriate score prior to making the application for the visa and, therefore, the Tribunal will not be confronted with the difficult questions of adjournments in cases where people are coming close to having their scores but not quite getting the score, and needing another test to be undertaken, in future cases.
I am acutely aware that the test scores obtained after the decision are not relevant considerations at law and thus I am required to ignore them in the reasoning process. The case is finely balanced and should not be seen any criticism of the hardworking Tribunal member.
It seems to me that, on balance, in the most unusual circumstances in this case (which I do not recall having seen in similar form in any other case that has come before me), I am ultimately persuaded that the applicant should succeed and that the decision of the Tribunal formally set aside, and the matter be determined again by the Migration Review Tribunal.
In this matter the circumstances are such that I would not be inclined to make any order as to costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 June 2017