Hadiuzzaman v Minister for Immigration
[2007] FMCA 1266
•3 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADIUZZAMAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1266 |
| MIGRATION – Skilled visa – whether Tribunal misinterpreted regulations – whether Tribunal can rely upon failed English tests to determine whether further test ‘not necessary’ – meaning of ‘in a test’ – no jurisdictional error – application dismissed. |
| Migration Regulations 1994, cl.880.222, reg.2.26A Migration Act 1958, ss.92, 93, 94, 95, 96, 359 |
| NAMS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 189 Drake v Minister for Immigration & Ethnic Affairs (No2) (1979) 2 ALD 434 Foroghi v MIMA [2001] FCA 1875 |
| Applicant: | MD HADIUZZAMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1633 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 June 2007 |
| Date of last submission: | 6 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 3 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the First Respondent: | Mr B. Wee |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1633 of 2006
| MD HADIUZZAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 3 November 2006.
The Tribunal affirmed a decision of a delegate of the First Respondent who had found that the Applicant was not entitled to the grant of a skilled-independent overseas student (residence) (class DD) visa (the skilled visa).
The Applicant is a national of Bangladesh who was born on
1 September 1978. He arrived in Australia on 28 October 2000 on a student visa. He was subsequently granted other student visas. On
11 March 2004 he applied for the skilled visa and this was refused by a delegate of the First Respondent on 19 May 2005.
On 1 June 2005 the Applicant applied to the Migration Review Tribunal (the First Tribunal) for review of the delegate’s decision. After conducting a hearing on 15 March 2006 the First Tribunal affirmed the delegate’s decision. The First Tribunal’s decision was set aside by consent orders dated 4 August 2006 in the Federal Magistrates Court.
The matter was then considered by another Migration Review Tribunal (the Second Tribunal) which conducted a hearing on 3 November 2006. The Second Tribunal again affirmed the delegate’s decision and did so by a decision dated 3 November 2006 (the Second Tribunal decision).
The Applicant relies upon an Amended Application filed 8 March 2007 seeking review of the Second Tribunal decision.
Statutory Framework
Clause 880.222 of the Migration Regulations 1994 (the Regulations) provides that an Applicant for a skilled visa must meet “the qualifying score” for the “points system” described in ss.92-96 of the Migration Act 1958 (the Migration Act).
As submitted by the First Respondent the points system awards “an applicant points for prescribed ‘qualifications’”.
In the present case the Applicant is required to meet a prescribed qualifying score referred to as the “pass mark” in order to receive the qualifying score. It is common ground that at the relevant time the pass mark was 115.
Regulation 2.26A and sch.6A of the Regulations relevantly provide:
“2.26A
(1) This regulation applies to an applicant for any of the following visas:
…
(d)a Skilled – Independent Overseas Student (Residence) (Class DD) visa;
…
(3)The number of points prescribed for a qualification specified in column 2 in an item in Schedule 6A is specified in column 3 in the item.
(4) For subsection 93(1) of the Act, the Minister:
(a)must not give the applicant a prescribed number of points for more than 1 prescribed qualification in each Part of Schedule 6A; and
(b)must give the applicant only the number of points applicable to the prescribed qualification that meets the applicant’s circumstances and for which the prescribed number of points is the highest for any such prescribed qualification; and
(c)must not give the applicant a prescribed number of points for item 6A12 or 6A13 in Part 1 of Schedule 6A unless:
(i) in the case of item 6A12 – the applicant is assessed by the relevant assessing authority as holding a degree that is equivalent to a degree of an Australian tertiary education institution; and
(ii) in the case of item 6A13 – the applicant is assessed by the relevant assessing authority as holding a diploma or advanced diploma that is equivalent to a diploma or advanced diploma of an Australian educational institution.
(5) The Minister may determine that the applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A, if the Minister determines that it is not reasonable practicable, or not necessary, for the applicant to be tested using the IELTS test.
…
SCHEDULE 6A – GENERAL POINTS TEST –
QUALIFICATIONS AND POINTS
…
PART 3 – LANGUAGE SKILL QUALIFICATIONS
Column 1 Item
Column 2 Qualification
Column 3 Number of points
6A31
The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening conducted:
(a) not more than 12 months before the day on which the application was made; or
(b) during processing of the application
20
6A32
The applicant provides evidence of having passed the Occupational English Test:
(a) not more than 12 months before the day on which the application was lodged; or
(b) during processing of the application.
20
6A33
The applicant provides evidence of having achieved an IELTS test score of at least 5 on each of the 4 test components of speaking, reading, writing and listening in a test conducted:
(a) not more than 12 months before the day on which the application was made; or
(b) during processing of the application
15”
It is noted from the above that there are 12 qualification categories where the Applicant can receive scores set out in Parts 1-10 of sch.6A of the Regulations.
The only issue in dispute in the present application is the score awarded for language by the Second Tribunal.
It is noted that in Part 3 of schedule 6A reference is made to the points awarded for language. There are 3 items, including item 6A31 of sch.6A which relevantly provides:
“6A31The applicant provides evidence having 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:
(a)not more than 12 months before the day on which the application was made; or
(b)during the processing of the application.”
It is noted that item 6A33 appears to be similar to item 6A31 except that it provides that where the Applicant achieves a test score of at least 5 for each component, he is awarded 15 points.
The Applicant’s Claim
In support of the application for the skilled visa the Applicant relied upon documents including results of International English Language Testing System (IELTS) tests undertaken on the following dates:
·An IELTS test score for a test undertaken on 12 June 2004, in which the Applicant obtained 5.5 for Listening, 5.5 for Reading, 6.0 for Writing, 6.0 for Speaking and 6.0 Overall.
·AN IELTS test score for a test undertaken on 25 September 2004, in which the Applicant obtained 5.5 for Listening, 6.0 for Reading, 6.0 for Writing, 5.0 for Speaking and 5.5 Overall.
The IELTS results referred to above appear in the Court Book (pp.68 and 71).
In response to a s.359A letter from the First Tribunal to the Applicant dated 5 December 2005, the Applicant’s lawyers, by letter dated 10 January 2006, provided a comment on the information referred to by the Second Tribunal in the following terms:
“18.At the time of the initial application for review on 1 June 2005, the review applicant provided a copy of the delegate’s decision but did not at that time give reasons for disagreeing with it. By letter of 10 January 2006 the visa applicant’s agent provided a submission addressing the matters raised in relation to ‘vocational English’ in clause 880.223 and regulation 1.15B; the visa applicant’s English language ability pursuant to Schedule 6A; the exercise of the Tribunal’s discretion in relation to International English Language Testing System (IELTS) test requirements; and the points to be awarded to the visa applicant under Schedule 6A of the regulations.
19.The submission states that the visa applicant was employed at the Mecure Hotel Melbourne from February 2004 to June 2005 as ‘Housekeeper’, and at the Grand Hyatt Melbourne from September 2005.
20.An essential point addressed by the visa applicant’s agent was the visa applicant’s claim to be entitled to 20 points under Part 3 of Schedule 6A, under which circumstances his score under Schedule 6A overall would be 115 points and sufficient to meet regulation 880.222.
21.The submission provide the following supporting documents:
An IELTS test score for a test undertaken on 23 July 2005, in which the visa applicant obtained 6.5 for Listening, 5.0 for Reading, 6.0 for Writing, 6.0 for Speaking and 6.0 Overall;
An IELTS test score for a test undertaken on 29 October 2005, in which the visa applicant obtained 6.5 for Listening, 5.5 for Reading, 6.0 for Writing, 7.0 for Speaking and 6.5 Overall;
An IELTS test score for a test undertaken on 16 April 2005, in which the visa applicant obtained 6.5 for Listening, 5.0 for Reading, 6.0 for Writing, 8.0 for Speaking and 6.5 Overall;
A curriculum vitae of the visa applicant;
A reference for the visa applicant dated 5 January 2006 from International Hotel Services Pty Ltd;
A reference for the visa applicant dated 20 December 2005 from International Islamic Practices and Dawah Circle;
A reference for the visa applicant dated 19 December 2005 from Ausba Pty Ltd;”
(Court Book pp.184-185)
The Second Tribunal then refers to further correspondence received after the hearing and details provided by the Applicant at the hearing in the following terms:
“22.By letter of 31 March 2006, following the hearing before the first Tribunal, the visa applicant’s agent drew attention to, among other things:
An IELTS test score for a test undertaken on 15 January 2005, in which the visa applicant obtained 5.5 for Listening, 5.5 for Reading, 7.0 for Writing, 6.0 for Speaking and 6.0 Overall;
An IELTS test score for a test undertaken on 11 March 2006, in which the visa applicant obtained 6.0 for Listening, 5.5 for Reading, 5.0 for Writing, 7.0 for Speaking and 6.0 Overall;
23.At the hearing the visa applicant corroborated his nominated occupation, age, marital status, education, where had been living since he came to Australia as a student. He agreed that the occupation was not on the list of Migration Occupations in Demand, that he had not made a claim for Bonus points and that the only allocation of points in contention was in regard to the English language requirement. He confirmed that he had sat for the IELTS test for the first time on 12 June 2004 and most recently on 11 March 2006; he had achieved a score of 6.0 on each Item of the test taken at different times. He said he had been living in Australia for 6 years and was ‘doing small business’, which he elaborated on as involved in buying computers at auction and re-selling them in the last year. He said he had been to some interviews for positions in the IT industry and had permission to work. He wants to stay in Australia because Bangladesh is not politically stable and the job market is not so good.”
(Court Book p.185)
It will be noted that in total the Applicant appears to have submitted test results of seven IELTS tests undertaken between 12 June 2004 and
11 March 2006. It should further be observed that the Applicant has sought to annex to contentions before this Court a further IELTS test undertaken on 10 March 2007. That clearly post-dates the date of the decision and is clearly irrelevant. I do not take it into account and otherwise accept the submission by the First Respondent that it would be irrelevant to the present application.
An analysis of the seven IELTS results reveals that the Applicant did not achieve over 6 points in the 4 test components in any 1 IELTS test. He achieved over 5 points in some of the tests.
The Tribunal Decision
Following an analysis of the IELTS test results the Second Tribunal awarded the Applicant 15 points for language. It is relevant to set out the Tribunal’s reference to the points system as follows:
“26.The subdivision B referred to in clause 880.222 is a reference to the points system set out in sections 92 to 96 of the Act. These sections provide for the assessment of an applicant’s score for a number of qualifications or factors against a pool mark and a pass mark, known as the qualifying marks. The facts are prescribed in regulation 2.26A and are set out in Schedule 6A to the regulations. Regulation 2.26A(2) provides that, in the case of a subclass 880 application, an applicant must be considered for points in respect of Parts 1, 2, 3, 4, 5, 6, 7, 8, and 10 of Schedule 6A. The pool or pass mark, and the points scores available under Schedule 6A, may vary from time to time. In assessing an applicant’s points scores for the prescribed qualifications and the applicable qualifying mark, Section 350 of the Act requires that the Tribunal must use either the regulations that were in force at the time of the primary assessment or those that applied at the time of the Tribunal’s decision, whichever are more favourable to the applicant.”
(Court Book pp.185-186)
The Tribunal relevantly states:
“27.In this case, the delegate refused to grant the visa applicant a subclass 880 visa, as his total points score under the general points test was 110 points, which was below the applicable pass mark of 115 points. In arriving at that score, the delegate awarded 15 points under Part 3 of Schedule 6A, which refers to the language factor. This is the criteria in dispute. The visa applicant has not disputed the scores awarded to him for the other qualifications under Schedule 6A and agreed at the hearing that these were not in dispute.”
(Court Book p.186)
The Tribunal then correctly embarks upon the task of considering the points to be awarded to the Applicant under each of the relevant factors. After completing that task, the Tribunal, as indicated, relevantly found the Applicant was entitled to 15 points for the language factor. The Tribunal when considering the issue of the ‘language factor’ relevantly finds:-
“31.Language factor: At the time of the delegate’s decision the visa applicant was allotted 15 points for this factor. Part 3 of Schedule 6A refers to the language skills of the visa applicant and relevantly provides for a score of 20 points or 15 points as follows:
6A31The applicant provides evidence of 20
having 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:
(a)not more than 12 months before the day on which the application was made; or
(b) during processing of the application ….
6A33The applicant provides evidence of 15
having achieved an IELTS test score of at least 5 on each of the 4 test components of speaking, reading, writing and listening in a test conducted:
(a)not more than 12 months before the day on which the application was made; or
(b) during processing of the application
32.The visa applicant provided evidence of having undertaken the IELTS test on seven occasions, most recently on 11 March 2006. In every case the visa applicant achieved an IELTS score of at least 5 on each of the 4 test components of speaking, reading, writing and listening. In no case did he achieve a test score of at least 6 on each of the 4 test components of speaking, reading, writing and listening. Hence, the visa applicant gave evidence of meeting Item 6A33 and is entitled to 15 points.”
The Tribunal then refers to Regulation 2.26A(5) set out earlier in this judgment and then relevantly states the following:-
“34.While the Tribunal is not bound by Departmental policy, the Tribunal will have regard to policy and apply it unless there are cogent reasons for departing from it. Procedures Advice Manual (PAM) 3 – ‘Schedule 6A General Points Test – Use of the Discretionary Power’ makes the following reference to the exercise of discretionary powers for cases where IELTS test may be considered ‘not necessary’:
3.2 Cases for which IELTS testing is ‘not necessary’
3.2.1
Officers should use the relevant discretionary power to decided that IELTS testing is ‘not necessary’ only if the applicant has submitted evidence that they have the appropriate level of English, such that it would be unnecessary for the applicant to sit an English test.
3.2.2
The type of evidence that officers could take into account would include that the person:
·has passed the OET in relation to their nominated skilled occupation; or
·is a native English speaker;
·has sat an IELTS test more than 12 months before applying for their visa but officers are satisfied the applicant’s English has not deteriorated since sitting this test;
·holds an award (being a degree, a higher degree, a diploma or trade certificate) from an institution where all instruction has been conducted in English. (The duration of full-time study for this award would normally be at least two years) ; or
·holds NAATI accreditation; or
·has a recent English test score, being a test that, under policy, is considered acceptable for the purpose of establishing English proficiency (see section 2.4 above) and which equates to an applicable score on the IELTS test; or
·has studied and/or worked in an English-speaking country for a considerable period. (This would therefore apply to main applicants for the onshore skilled student visas 880-882).
3.2.3
Officers who are not satisfied with the evidence presented to then should not award points (or decide that the person has vocational English) under the discretionary power. Such applicants should be asked instead to sit an IELTS English test, if available.
3.3Cases for which testing is ‘not reasonably practicable’
3.3.1
If officers use the relevant discretionary power to decide that IELTS testing is ‘not reasonably practicable’, and no other form of testing is available, it is policy that the applicant’s English proficiency be assessed at interview. Given, however, the work-wide availability of IELTS, it is expected that interviewing would be rare.
3.3.2
Situations in which sitting a test is ‘not reasonably practicable’ are those where sitting a test is impossible or is not practically feasible. That is, there must be something that physically prevents the sitting of a test.
3.3.3
Instances where this provision should be used are where
· the test is not available; or
· the test is available only in a place that is not reasonably accessible to the applicant; or
· the physical condition of the applicant would make it impossible to sit an otherwise readily available test. (Persons in these circumstances may have difficulty meeting the health requirement for visa grant.)
3.3.4
This provision should not be used for reasons of the cost of the test.
35. Considering that the visa applicant has sat the test on seven different occasions and not attained the requisite result to qualify for 20points, the Tribunal is not satisfied that the testing is not necessary and, given the general availability of the test, it cannot be said that testing was not reasonably practicable.”
The Tribunal considered the further claim made by the Applicant’s former agent and by the Applicant at the hearing relating to the results from the multiple IELTS tests and relevantly stated:-
“36.The claim was also made by the visa applicant’s former agent and by the visa applicant at the hearing, that the results of the IELTS test undertaken by the visa applicant not more than 12 months before the day on which the application was made or during the processing of the application demonstrate that he had attained at least 6 on each of the test items on test taken at different times. The claim is correct, but regulation 1.15B(3)(a) explicitly refers to the scores being attained ‘in a test’, where the expression means a single test, not a combination of tests, and in any case the IELTS test is itself a single test with multiple components to measure the various elements of English language proficiency at a specific time. The Tribunal does not accept that the visa applicant can ‘mix and match’ the scores from different components of IELTS tests taken at different times.”
In general terms it is noted that the Tribunal had refused to accept that the Applicant can “mix and match” the scores from different components of the tests taken at different times. It otherwise found the Applicant was entitled to 15 points for the language factor. It is further noted that the Tribunal in its decision set out the relevant policy in the Procedures Advice Manual (PAM3) for when testing is not necessary and had regard to that policy concerning the discretion. It is evident from the extracts set out earlier in this judgment that the Tribunal declined to exercise a discretion in the Applicant’s favour and did not agree that testing was “not necessary” in circumstances where the Applicant had not obtained the requisite result in the IELTS tests on seven occasions. It further concluded that in the extract set out earlier that testing was reasonably practicable given the general availability of the test.
The Amended Application
The grounds relied upon in the Amended Application have been accurately summarised in the First Respondent’s contentions as follows:-
·The MRT concluded that the applicant can not achieve multiple components of the various elements of English language proficiency at a combination of tests
·The MRT incorrectly interpreted regulation 2.26A(5) when it considered the test results of the applicant subsequent to the date of application
·The MRT wrongly interpreted the phrases ‘not necessary’ and ‘not reasonably practicable’
·The MRT misinterpreted Ministerial policy as exhaustive and failed to consider other relevant matters
·The MRT misapplied regulation 1.15B(3)
·The MRT did not exercise the discretion in the applicant’s favour having regard to the effect of the Regulations as a whole
The Applicant’s contentions of fact and law I accept as submitted by the First Respondent expand on the grounds and essentially agitate additional grounds accurately identified by the First Respondent as follows:-
·The MRT proceeded to give a finding that the applicant may be entitled under item 6A33 of schedule 6A even before it considered regulation 2.26A(5)
·The MRT failed to give the applicant a section 359A notice about the IELTS tests that the applicant sat
Submissions
Applicant’s submissions
The Applicant’s contentions are relatively brief and it is appropriate to set out those contentions as follows:-
“3.The applicant further contends that the Tribunal has erred in its interpretation of the relevant regulation in that it proceeds to give a finding that the applicant may be entitled under item 6A 33 of schedule 6A even before it considered regulation 2.26A(5)..
4.The Tribunal erred in its interpretation of Departmental Policy in relation to the phrase ‘not necessary’. The Type of evidence as found in 3.22 of the policy is not an exhaustive list but particularly it includes a situation where an applicant has studied in an English speaking country for a considerable period. Instead of interpreting Departmental Policy, the Tribunal uses an incorrect premise to found its conclusion that it cannot be said that the test is not necessary or not reasonably practicable for the sole reason that the applicant sat the IELTS on no less than seven different occasions. The Tribunal therefore failed to interpret the regulation and departmental policy given the circumstances of the case.
5.The Tribunal has also failed to consider the broader interpretation of the class DD visa that enables applicant who has studied in Australia for a period of more than two years (the medium of instruction being in the English language) applying for permanent residence in the skilled migration category. To give an erroneous and inflexible interpretation to factors to which points are allocated is to negate the very purpose of the visa.
6.The Tribunal erred in firstly invoking regulation 1.15B(3)(a) and then further erred in its interpretation of that regulation. The applicant was not seeking the awarding of points in the language factor for occupational English for the Tribunal to give its interpretation of ‘in a test’. The applicant submits that this was a mistake on the part of the Tribunal amounting to a jurisdictional error. Regulation 1.15B(3)(a) does not appear to be linked in any way to the award of points under part 3 of schedule 6A. Secondly given the applicant’s skilled occupation namely that of a System Programmer (ASCO 2231-19) the Tribunal has failed to exercise its discretionary powers in considering a combination of the applicant’s qualifications, his study in Australia in the English language and his skilled occupation. Instead the Tribunal in adopting an inflexible and erroneous interpretation to the rules has jurisdictionally erred.
7.If the Tribunal intended to act on the applicant’s IELTS results which was given by the applicant and which formed the reason or part of the reason for the Tribunal decision, then the Tribunal erred jurisdictionally by failing to give notice under section 259A of the Migration Act as contemplated in SZEEU -v- MIMA and SAAP -v- MIMA.
8.The applicant encloses the result of an IELTS examination that he undertook recently. The result speaks for it self, and reiterates the applicant’s contention that the Tribunal approach to the allocation of points for the English language has been in error.”
In submissions before the Court it was argued that the Tribunal by finding that it was not satisfied that the testing is not necessary, the Tribunal had relied upon tests undertaken by the Applicant rather than considering the guidance provided by PAM3 which in the present case relevantly includes as the type of evidence which officers could take into account the fact that the Applicant “holds an award (being a degree, a higher degree, a diploma or trade certificate) from an institution where all instruction has been conducted in English (the duration of full time study for this award would normally be at least two years)” or “has studied and/or worked in an English speaking country for a considerable period”.
The complaint in the present case was that the Tribunal in determining whether a test was necessary in fact relied upon test results already obtained in the exercise of its discretion when it determined that it was not satisfied that the testing was not necessary for the Applicant.
It was further submitted that the failure to properly consider Regulation 2.26A(5) set out earlier in this judgment and in particular by applying the guidance in PAM3 is not simply a discretionary matter but a failure to properly interpret and/or apply the relevant regulation. Accordingly, the Tribunal it is submitted has committed jurisdictional error.
It should be noted in passing that the reference by the Applicant to the error of the Tribunal by invoking Regulation 1.15B(3) appears to have been conceded by the First Respondent and it is noted the Tribunal should have referred to Item 6A31(b) of Schedule 6A and that the items listed in the correct reference are in fact identical to those in Regulation 1.15B(3). As I understood the Applicant’s submissions the complaint was made that the Tribunal adopted an inflexible and erroneous interpretation of the Rules and failed to consider in the exercise of discretionary powers the combination of the Applicant’s qualifications.
First Respondent’s Submissions
The First Respondent submitted that the interpretation of “in a test” should be given its ordinary meaning and suggests that the results have to be “achieved in a single test’. It was argued there is no error in the Tribunal’s interpretation of the relevant phrase.
It was further argued that the Tribunal did not err in considering tests which were conducted after the date of application. It was submitted that the Tribunal is specifically empowered by Item 6A31(b) in Schedule 6A to consider “tests (conducted) during the processing of the application”.
It was argued when considering the Applicant’s claim that the Tribunal misinterpreted the phrase ‘not necessary’ and ‘not reasonably practicable’ that the Tribunal made its decision free of error. It was argued that the Court “cannot compel a decision-maker on remittal or review to exercise discretion” (see NAMS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 189. It was argued the Tribunal in making its decision in relation to whether or not the test was “not necessary” or “not reasonably practicable” was embarking upon a finding of fact based on “the ordinary meaning of those words”. It was submitted that in “making this finding of fact, the MRT can rely upon policy as long as reliance on policy does not constrain the MRT in interpreting the legislation”.
It was submitted that there is no jurisdictional error where the Tribunal fails to apply policy (see Drake v Minister for Immigration & Ethnic Affairs (No2) (1979) 2 ALD 434).
The First Respondent argued that it was open to the Tribunal to find the test was necessary after considering the Applicant could not meet the required standard after numerous attempts and also open to the Tribunal to reach a conclusion the test was reasonably practicable in circumstances where the Applicant had no difficulty undertaking the test on prior occasions.
As indicated earlier in this judgment, the First Respondent conceded the Tribunal had incorrectly referred to Regulation 1.15B(3) in [36] of its decision set out earlier in this judgment and that it should have referred to item 6A31(b) in Schedule 6A. It was argued that no error arises because that is merely a typographical error on the part of the Tribunal (see Foroghi v MIMA [2001] FCA 1875 at [48]). It was noted that in any event the regulation cited by the Tribunal is in identical terms to Item 6A31(b) in Schedule 6A and that accordingly any error would not affect the decision or amount to jurisdictional error.
In relation to the issue of whether there had been a failure by the Tribunal to consider the exercise of its discretion by first having regard to scores obtained in tests, it was submitted that the regulations do not compel the Tribunal to consider the discretion or visa criteria in any particular order. It is a matter of discretion for the Tribunal and there is no error revealed.
In relation to any claim of a breach of s.359A which although set out in the contentions was not vigorously pursued by the Applicant, it was argued that it was the Applicant who provided the results of the seven tests and accordingly the information about those tests was information provided to the Tribunal for the purpose of s.359A(4)(b) of the Migration Act and the Tribunal was not then required to give a written invitation pursuant to s.359A.
Reasoning
I am not satisfied that the expression ‘in a test’ can be interpreted in the manner suggested by the Applicant and accept the First Respondent’s submissions that the phrase should be considered in its ordinary meaning. There is clearly a logical reason why the phrase refers to a singular test and I do not accept that it is appropriate nor consistent with the regulation to suggest that a combination of tests or a ‘mix and match’ approach is appropriate.
I accept that the Tribunal when considering the question of whether it is not satisfied that testing is not necessary that in doing so it is exercising its discretion. The regulations do not provide for the order in which material should be considered.
In my view it is somewhat ironic that the Tribunal in the exercise of its discretion when considering the question of whether testing is ‘not necessary’ has used as part of its reasoning the seven tests undertaken by the Applicant where the Applicant did not attain the requisite result to qualify for 20 points. However, the irony of using that material does not of itself provide a basis for jurisdictional error in the sense that I accept as submitted by the First Respondent that the Tribunal is not prevented from taking that material into account. In circumstances where unsatisfactory results of tests have been obtained after the application is filed then it would be somewhat artificial for the Tribunal to ignore the fact that those tests were undertaken unsuccessfully when considering whether to exercise a discretion in favour of an Applicant and decide that testing was “not necessary”. Whilst reliance upon the seven tests may appear to the Applicant to be unfair, I do not for the reasons advanced for and on behalf of the First Respondent see any jurisdictional error in the manner in which the Tribunal has exercised its discretion. It has clearly relied upon the fact that tests were undertaken to then determine that it could not be said that “testing was not reasonably practicable” and that decision in my view is free of error. Likewise, having regard to the outcome of the tests I can see no reason why the Tribunal should not then conclude that it was not satisfied “that the testing is not necessary”.
I do not see anything in the Regulations which would prevent the Tribunal from exercising its discretion in this manner nor does there appear to be any requirement that the Tribunal should follow a somewhat artificial procedural process ignoring what are clearly relevant factors namely in this case the unsuccessful attempt on seven occasions to complete satisfactorily the language test.
I also accept as submitted by the First Respondent for the reasons advanced that there is no breach of s.359A of the Migration Act.
Conclusion
It follows for the reasons given that the Application should be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 August 2007
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