Hadiuzzaman v Minister for Immigration and Citizenship
[2008] FCA 1015
•4 July 2008
FEDERAL COURT OF AUSTRALIA
Hadiuzzaman v Minister for Immigration and Citizenship [2008] FCA 1015
MOHAMMED HADIUZZAMAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
VID768 OF 2007
RYAN J
4 JULY 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 768 OF 2007
BETWEEN:
MOHAMMED HADIUZZAMAN
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second RespondentJUDGE:
RYAN J
DATE OF ORDER:
4 JULY 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal including any reserved costs, such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 768 OF 2007
BETWEEN:
MOHAMMED HADIUZZAMAN
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
RYAN J
DATE:
4 JULY 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By notice of appeal filed in this Court on 22 August 2007, the appellant appeals from a decision of McInnis FM delivered on 3 August 2007: see Hadiuzzaman v Minister for Immigration [2007] FMCA 1266. His Honour dismissed an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 November 2006. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, as she then was (“the Minister”), who had found that the appellant was not entitled to the grant of a skilled-independent overseas student (residence) (class DD) visa (“the skilled visa”).
The appellant is a citizen of Bangladesh, born on 1 September 1978, who arrived in Australia on 28 October 2000 on a student visa. The appellant was subsequently granted other student visas. On 11 March 2004, the appellant applied for a skilled visa. That application was accompanied by a submission from his migration agent in relation to the appellant’s qualifications and points allocation.
On 20 May 2004, the Minister sent a letter to the appellant, advising that an assessment had been made on the basis of the information provided with his application and supporting documents, and that he would be required to sit an English language test. The appellant replied by letter dated 26 July 2004, including the result from an International English Language Testing System test (“IELTS test”) dated 12 June 2004. On 5 October 2004 the appellant’s migration agent forwarded to the Minister the result of an IELTS test undertaken by the appellant on 25 September 2004. On 19 May 2005 the appellant’s application was refused by a delegate of the Minister, for failing the points assessment.
Proceedings in the Tribunal
On 1 June 2005, the appellant filed an application for review with the Tribunal for review of the delegate’s decision. In response to a letter from the Tribunal dated 5 December 2005, the appellant’s migration agent informed the Tribunal, by letter dated 10 January 2006, that the appellant had sat three further IELTS tests, on 16 April 2005, 23 July 2005 and 29 October 2005. After conducting a hearing on 15 March 2006, the Tribunal affirmed the decision of the delegate on 26 May 2006 (“the first Tribunal decision”). On 4 August 2006, the Federal Magistrates Court, by consent, set aside that decision and remitted the matter to the Tribunal for reconsideration.
On 3 November 2006, a differently constituted Tribunal conducted a hearing. By that date the appellant had sat a further IELTS test on 11 March 2006. In a decision dated 3 November 2006, and delivered on 24 November 2006, the Tribunal again affirmed the decision of the delegate of the Minister to refuse to grant the appellant a skilled visa (“the second Tribunal decision”).
In the second Tribunal decision, the Tribunal made express findings in relation to all factors relevant to the application of the points system, including skills, age and language proficiency. In respect of the “Language factor”, the Tribunal in its reasons stated, at [31]–[32]:
‘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:
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 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 …
20 points 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 the processing of the application.
15 points
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 test 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 considered whether it had a discretion not to consider the IELTS scores under reg 2.26A(5) of the Migration Regulations 1994 (“the Regulations”) which provides:
‘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 reasonably practicable, or not necessary, for the applicant to be tested using the IELTS test.’
The Tribunal referred to the Procedures Advice Manual 3 (PAM3) ‘Schedule 6A General Points Test – Use of the Discretionary Power’ (“the Policy”), noting that, although it was not bound by departmental policy, it would have regard to it and apply it unless there were cogent reasons for departing from it. Sections 3.2 and 3.3 of the Policy deal with cases for which IELTS testing is ‘not necessary’ and cases for which testing is ‘not reasonably practicable.’ However, the Tribunal held at [35] of its reasons:
‘Considering that the visa applicant has sat the test on seven different occasions and not attained the requisite result to qualify for 20 points, the Tribunal is not satisfied that the test is not necessary and, given the general availability of the test, it cannot be said that testing was not reasonably practicable.’
The Tribunal rejected the argument that the appellant had attained at least 6 on each of the test items on the tests taken at different times. At [36] of its reasons, the Tribunal referred to regulation 1.15B(3)(a) of the Regulations, which, it said;
‘… 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 the IELTS tests taken at different times.’
The Tribunal held that the appellant was only entitled to 15 points for the language factor.
The Tribunal at [46] concluded that the appellant had achieved a total of 110 points for all of the factors. Pursuant to s 96 of the Migration Act 1958 (Cth) (‘the Act’), Gazette Notice 15 of 14 April 2004, the qualifying score for the grant of a skilled visa was 115 points. Accordingly, the Tribunal held that the appellant had not attained a qualifying score, and affirmed the decision under review.
Proceedings in the Federal Magistrates Court
On 8 March 2007, the appellant filed in the Federal Magistrates Court an amended application for judicial review of the Tribunal’s decision dated 3 November 2006. In his reasons for decision, McInnis FM summarised as follows the grounds relied upon by the appellant in the amended application:
‘-The Tribunal concluded that the applicant can not achieve multiple components of the various elements of English language proficiency at a combination of tests.
-The Tribunal incorrectly interpreted regulation 2.26A(5) of the Regulations when it considered the test results of the appellant subsequent to the date of application.
-The Tribunal wrongly interpreted the phrases ‘not necessary’ and ‘not reasonably practicable’.
-The Tribunal misinterpreted Ministerial policy as exhaustive and failed to consider other relevant matters.
-The Tribunal misapplied regulation 1.15B(3).
-The Tribunal did not exercise the discretion in the applicant’s favour having regard to the effect of the Regulations as a whole.’
The appellant’s contentions of fact and law were then summarised by his Honour in these terms;
‘-The Tribunal proceeded to give a finding that the appellant may be entitled under item 6A33 of schedule 6A even before it considered regulation 2.26A(5).
-The Tribunal failed to give the appellant a s 359A notice about the IELTS tests that the appellant sat.’
The learned Federal Magistrate at [42] of his reasons, rejected the appellant’s contention that the expression “in a test” should be interpreted as submitted by the appellant, and accepted the Minister’s submission that the phrase should be given its ordinary meaning. Therefore, he accepted that the results required for the application of the language component must be achieved in a single test. In his Honour’s view, the appellant’s submission that the results could be taken from a combination of tests was both inappropriate and inconsistent with the Regulations.
McInnis FM accepted that the Tribunal had been exercising a discretion when considering whether it was satisfied that the testing was not necessary. He also noted that the Regulations do not provide for the order in which materials are to be considered.
At [44]–[45] of his reasons, his Honour observed;
’44. 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”.
45. 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.’
His Honour also rejected the appellant’s contention that there had been a breach of s 359A of the Act.
Accordingly, on 3 August 2007, the learned Federal Magistrate ordered that the application be dismissed, and that the appellant pay the Minister’s costs fixed in the sum of $5,000.00.
The appellant’s submissions on the appeal
The grounds of appeal set out in the notice of appeal dated 22 August 2007 are as follows:
‘1.The learned magistrate erred in saying that the English language test result that the appellant provided to the Tribunal was information provided to the Tribunal and it fell within the exception of sect. 359A(4)(b) and therefore the Tribunal was not required to give the appellant a notice pursuant to sect. 359A.
2.The learned magistrate has failed to consider whether the Tribunal failed to interpret departmental policy and the particular class of visa applied for in concluding that the test was not necessary or no [sic], and that there was no jurisdictional error in the Tribunal taking the results of all the tests into account. The learned magistrate has failed to see the erroneous approach of the Tribunal’s decision as seen in para 35 of the decision.
3.The learned magistrate erred in saying “in circumstances when 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 the tests were undertaken unsuccessfully.” (the results of two tests were submitted before the delegate could make his decision, whereas the Tribunal considered the results of seven tests). Although the learned magistrate says that a consideration of the seven tests may appear to the applicant to be unfair, the learned magistrate in saying that there was no jurisdictional error was in error.
4.The learned magistrate erred in his conclusion that the outcome of the tests did not stop the Tribunal from concluding that it was satisfied that the testing was not necessary although the learned magistrate says that the regulations do not provide for the order in which the material should be considered.
5.The learned magistrate erred in saying that the tests (all seven of them) results of the applicant were clearly relevant factors which the Tribunal could not ignore.’
And the orders sought by the appellant are:
‘1.The appeal be allowed.
2.In lieu thereof order that the application by the appellant for an order of review against the decision of the MRT be allowed.
3.An order that the decision of the MRT be quashed.
4.An order that the application by the appellant for a class DD visa be remitted to the MRT to be heard and determined according to law.
5.An order that the respondents pay the costs of the appellant of the proceedings below and these proceedings.
6.Such further or other orders as the Court may deem just.’
Counsel for the appellant contended that the Tribunal and the learned Magistrate had erred in taking into account the appellant’s IELTS results of tests taken after he had lodged his application for review and even after the decision by the delegate to allow him 15 points on the language test.
For the appellant it was submitted that the learned Magistrate had erred when he said, at [44] of his reasons:
‘… in circumstances where unsatisfactory results or tests have been obtained after the application is filed it would be somewhat artificial for the Tribunal to ignore the fact that these test results were undertaken unsuccessfully when considering whether to exercise a discretion in favour of the applicant and decide that testing was not necessary…it has clearly relied upon the fact that tests were undertaken …’
In relation to grounds 2 and 3 of the notice of appeal, the appellant submitted that McInnis FM had erred in his interpretation of Schedule 6A of the Regulations which pertains to the allocation of points for language skills.
In relation to grounds 4 and 5 in the notice of appeal, Counsel for the appellant argued that, if the Regulations do not provide for the order in which material should be considered, and given the sequence of events in relation to the letter from the Minister to the appellant dated 25 May 2004, no discretion was invoked at that time as to the consideration of the material. The appellant therefore submitted that [43] of his Honour’s reasons contradicts [44] of his reasons. In the appellant’s submission, an incorrect interpretation of regulation 2.26A(5) amounts to a jurisdictional error.
Before this Court, the appellant contended that the Minister had failed to make an assessment of the appellant’s request to waive the requirement for English language testing. The Minister, it was submitted, should not have required the appellant to undergo any English language testing because he had made the request for waiver in his original application and there was evidence that he had satisfied the requirement by other means (eg, his education and work experience). Further, the appellant argued that the Minister had erred in first allocating points to the appellant and then considering the exercise of discretion. It was submitted that the Minister should have first exercised her discretion not to consider the IELTS test results and then, based on the other evidence before her, awarded the appellant 20 points.
The appellant also argued that the Tribunal had erred in misinterpreting Schedule 6A by considering the English language test results obtained after the application had been processed. The appellant submitted that the processing of the application ceased once the Minister had made a decision and not upon the making of a final determination by the Tribunal. Accordingly, by considering the results from the IELTS tests taken after the date of the decision, the Tribunal had committed a jurisdictional error.
As well, Counsel for the appellant made submissions in relation to folio 2 which the respondent produced and requested that McInnis FM read. His Honour determined that folio 2 was not relevant and that it was not necessary for the appellant to see it. Counsel for the appellant contended that he should have been given access to the document to determine whether it assisted the appellant’s case.
The Minister’s submissions on the appeal
Ms Symons of Counsel for the Minister contended that the first ground of the appellant’s notice of appeal cannot succeed because the results of the seven tests had been provided by the appellant to the Tribunal, and fell within the exception in s 359A(4)(b) of the Act. Thus, according to the Minister, the Tribunal was relieved of its obligation to comply with s 359A(1) of the Act because, once the information was before the Tribunal, it was entitled to make use of the information as it considered appropriate without further reference to the appellant or his advisers.
In relation to grounds 2, 3, 4 and 5 of the notice of appeal, the Minister submitted, first, that the Tribunal was clearly aware, when it referred at [34]-[35] of its reasons to PAM3, of the relevant policy governing the exercise of the discretion arising under regulation 2.26A(5). Although the Tribunal did not refer expressly to the matters set out in PAM3, it indicated a preparedness to have regard to, and to apply, the Policy unless there were cogent reason for departing from it.
In the Minister’s submission, the Tribunal’s finding that it was necessary for the appellant to undertake the IELTS test was due, in the final analysis, to his having failed to achieve maximum points on any of the seven previous occasions on which he had sat the tests. The appellant had not made good his contention that his results on those seven previous occasions were an irrelevant consideration; see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 575 [512].
Counsel for the Minister contended that there is nothing in the language of reg 2.26A(5) or the legislative scheme of which it forms a part, which expressly or impliedly prohibits consideration of previous IELTS tests. As reg 2.26A is designed to give primacy to IELTS tests as the principal means of assessing English language ability, McInnis FM was correct in concluding that the appellant’s IELTS test results were not irrelevant considerations but were highly persuasive in the exercise of the discretion conferred by regulation 2.26A(5).
Although the Tribunal was aware of other factors, such as the appellant’s education and work experience, which were relevant to the exercise of discretion, ultimately, it was submitted, the IELTS test results were a compelling factor.
It was next contended on behalf of the Minister that his Honour was correct in observing at [44] of his reasons, that it would have been artificial for the Tribunal, when considering whether to exercise a discretion in favour of the appellant, to have ignored his failure to obtain maximum points on any of his previous attempts at the IELTS tests.
In the same context, it was noted that the appellant had sought unsuccessfully to have admitted into evidence in the Federal Magistrates Court the results of the tests dated 10 March 2007. The observations at [43] of his Honour’s reasons were explained by Ms Symons as responding to the appellant’s contention that the Tribunal had erred in proceeding to make a finding that the appellant may have been entitled under item 6A33 of Schedule 6A before it considered regulation 2.26A(5). Those observations were said to be independent of, and unrelated to, the findings at [44] of his Honour’s reasons.
Before this Court, Counsel for the Minister submitted that the Tribunal had correctly decided not to exercise its discretion in the appellant’s favour and had then turned its mind to whether or not the appellant was entitled to 15 or 20 points.
Counsel for the Minister observed that the appellant’s argument in relation to the interpretation of the words “during processing of the application” was a new submission. In the Minister’s submission, the phrase appears in items 6A31, 6A32 and 6A33 of the Regulations and bears on the manner in which the Minister or Tribunal is to take into account the IELTS test results for the purpose of assessing whether or not an applicant is entitled to a score of 15 or 20 points. However, the phrase does not appear in regulation 2.26A(5), on which the appellant relied in his submissions regarding the manner in which the Minister or the Tribunal had taken the IELTS test results into account for the purpose of assessing whether to exercise its discretion. Therefore, it was submitted, the words “during the processing of the application” do not bear on the exercise of discretion and the Tribunal was permitted to take into account the IELTS test results, whether or not those tests had been carried out during the processing of the application.
In response to the appellant’s submissions on folio 2, it was submitted on behalf of the Minister that McInnis FM had examined the document and satisfied himself that it was not relevant to the proceedings. Further, there was a suggestion that folio 2 was subject to a claim of privilege on the basis that it reproduced advice contained in another document from DLA Phillips Fox to the Tribunal.
Accordingly, it was submitted, no error attended either the decision of the Tribunal or the reasons of the Federal Magistrates Court, so that the appeal should be dismissed with costs.
Disposition of the appeal
(a) Section 359A
In my view, the IELTS results were clearly information provided to the Tribunal by the appellant within the meaning of s 359A(4)(b) of the Act. Four of the test results were referred to in a letter dated 10 January 2006 from the appellant’s then migration agent to the Tribunal. That information was not only supplied by the appellant, but it was supplied in response to an invitation from the Tribunal by letter dated 5 December 2005 pursuant to s 359A itself, inviting comment on information to the effect that “there is no evidence that you have vocational English as defined in regulation 1.15B.”
The appellant’s migration agent responded to that letter by asserting, so far as is relevant;
‘We submit pursuant to subregulation 1.15B(3)(a) that our client has vocational English on the basis he achieved IELTS test scores of at least 5 for each of the 4 test components of speaking, reading, writing and listening in tests conducted on 12 June 2004 and 25 September 2004. As the DIMIA did not make a decision in relation to our client’s application until 19 May 2005, these tests were conducted during processing of our client’s application in compliance with subregulation 1.15B(4)(a)(ii). These results appear on his DIMIA file at folios 75 and 88. We enclose copies of these results for your reference.
On this basis alone, our client clearly has vocational English and thereby complies with criteria 880.223. However, our client has also sat two (2) further IELTS tests conducted on 15 January 2005 and 16 April 2005. In these tests, he achieved an overall band score of 6.0 and 6.5, respectively. These results were gained before a decision was made by the DIMIA.
If one again considers regulation 1.15B(3)(a), it allows that a person has vocational English if they receive IELTS test scores in each of the 4 components of a test conducted in a defined period, either being not more than 12 months before lodgement of the person’s application or during processing of the application itself. In our client’s case, we submit test results from 11 March 2003 until 19 May 2005 are relevant to establishing whether criteria 880.223 and regulation 1.15B(3)(a) have been complied with.’
In these circumstances, it is clear beyond argument that the information comprised in the IELTS test results was within s 359A(4) of the Act which creates an exception to the obligation imposed by s 359A(1) by providing;
‘(4) This section does not apply to information:
… …
(b) that the applicant gave for the purpose of the application.’
Ground 1 of the grounds of appeal has, therefore, not been made out.
(b) Was there jurisdictional error by the Tribunal in declining to find that testing of the appellant’s proficiency in English was not necessary?
Schedule 6A of the Regulations was reproduced by the Tribunal in its reasons as set out at [6] above. That Schedule makes clear that attainment of 20 points or 15 points for the “language factor” is dependent on an applicant providing evidence of the achievement of the specified minimum IELTS test scores. It is true that reg 2.26A(5) of the Regulations stipulates another basis on which an applicant may be determined to be proficient in English, but that depends on a determination by the Minister that “it is not reasonably practicable or not necessary for the applicant to be tested using the IELTS test.” In the present case, as described at [36] above, the appellant himself “provided” evidence of having achieved certain IELTS test scores. It would, therefore, have been perverse for the Minister (or the Tribunal standing in the Minister’s shoes), to have determined that it was not reasonably practicable for the appellant to be tested using the IELTS test. The Minister’s discretion to determine that it was “not necessary” for the appellant to be tested using the IELTS test was unfettered by anything to be found within the four corners of reg 2.26A(5). The matters available to be taken into account in the exercise of that discretion must, therefore, “be determined by implication from the subject-matter, scope and purpose of the regulation conferring the discretion”; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at 39-40. In the present case, as reg 2.26A(5) expressly refers to the IELTS test, it cannot be said that the fact that an appellant has undertaken the test and attained a score specified in Sch 6A made applicable by reg 2.26A(3) is irrelevant to the exercise of the discretion conferred by reg 2.26A(5).
The Tribunal did have regard to the results of the IELTS tests when it concluded, at [35] of its reasons, that “the Tribunal is not satisfied that the testing is not necessary.” The test results were a matter open to be taken into account in coming to that conclusion. Indeed, as I understand it, the appellant and his advisers have not, at any stage, pointed unequivocally to any other matter as a basis on which the Tribunal could have concluded that testing was not necessary to demonstrate the appellant’s proficiency in English. It follows that there was no jurisdictional error in the Tribunal’s declining to conclude that testing was not necessary. The second ground of appeal therefore cannot avail the appellant.
(c) Was there jurisdictional error by the Tribunal in taking into account the results of IELTS tests undertaken after the filing of the application to the Tribunal?
The Tribunal was entitled to take into account any relevant evidence coming to its notice before it made the second Tribunal decision; see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 where a Full Court of this Court, at 442 referred to the observation of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589 that;
‘The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’(emphasis added by the Full Court in Anthonypillai).
The Full Court in Anthonypillai went on, at 443, to conclude that a review by the Refugee Review Tribunal is by way of rehearing de novo.
As already pointed out at [36] of these reasons, the appellant’s migration agent had drawn the Tribunal’s attention to the four IELTS tests which he had undertaken up to 16 April 2005. Consistently with Anthonypillai the Tribunal, in coming to the second Tribunal decision of 3 November 2006, had regard to the results of a further IELTS test conducted on 11 March 2006. I regard the suggestion by the learned Federal Magistrate in the passage reproduced at [13] above that “reliance upon the seven tests may appear to the Applicant to be unfair” as confined to the use of a large body of unsuccessful tests results as precluding a conclusion that testing was not necessary for regarding the appellant as proficient in English. That interpretation is borne out by his Honour’s observation that “it would be somewhat artificial for the Tribunal to ignore the fact that the tests were undertaken unsuccessfully.” That observation was consistent with my conclusion at [39] above that it was open to the Tribunal, if not obligatory for it, to have regard to the whole body of the IELTS tests results in coming to a conclusion as to whether, in terms of reg 2.26A(5), that testing was not necessary for a determination that the appellant was proficient in English to a relevant level. (It has to be remembered in this case that, for the appellant to have succeeded, the Tribunal would have been required to determine that testing was not necessary for a determination that he was proficient in English to a level equivalent to that attracting 20 points). The use of the seventh or any other test result considered in isolation was not unfair or indicative of jurisdictional error because, as I understand it, all the test results were more or less uniform and supported an allowance of 15 points upon the application of Item 6A33 of Sch 6A to the Regulations. For these reasons, the learned Federal Magistrate did not err in declining to impute jurisdictional error to the Tribunal in taking into account the results of IELTS tests undertaken up to the time of the second Tribunal decision.
(d) Must a determination be made as to whether IELTS testing is reasonably practicable or necessary before regard can be had to IELTS test results which are actually available?
The appellant’s fourth ground of appeal appears to rest upon the proposition that a decision that it is not necessary for an applicant to be tested using the IELTS test must be made before any regard can be had to the results of an IELTS test actually undertaken. I agree that the language of reg 2.26A(5) and the position which that sub-regulation occupies in reg 2.26A read as a whole, contemplates that the decision-maker will proceed in that way, but that is because it has been assumed by the framer of the regulation that, at the time of either of the determinations there described, the applicant will not have undergone any IELTS test at all.
As indicated at [38] of these reasons, there is nothing in the language of the regulation to suggest, if that assumption be unfounded, that available IELTS scores are to be excluded from consideration until the decision-maker determines whether or not it is reasonably practicable or necessary for the applicant to be tested using the IELTS test. The contrary interpretation could give rise to the absurdity that the decision-maker would have to consider the questions of reasonable practicability and necessity, before taking account of the result of an IELTS test which indisputably entitled an applicant to the maximum 20 points. On the other hand, the construction of reg 26A(5) which I favour, would permit a decision-maker to have regard to the results of an IELTS score obtained 12 months before the visa application and to evidence indicating improved proficiency in English since that date. On that basis, the decision-maker could determine that it was not necessary for the applicant to undergo a further IELTS test before allocating him or her a score of 15 points or 20 points as the case may be. For these reasons, there was no incorrect interpretation of reg 2.26A(5) to found an imputation of jurisdictional error.
(e) Did the Federal Magistrate err in holding that all seven IELTS test results were clearly relevant factors which the Tribunal could not ignore?
This question which is raised by Ground 5 of the notice of appeal is answered in the negative by the analysis undertaken at [38] of these reasons. Accordingly, Ground 5 cannot be sustained.
(f) Effect of non-production to Counsel for the appellant of “Folio 2”.
In the course of the hearing of the appeal, I invited Counsel for the Minister to seek instructions as to whether the document described as “Folio 2” which, as recounted at [23] above, had been produced to McInnis FM but had not been seen by Counsel for the appellant, could now be supplied to Counsel for the appellant so that he could, if thought fit, make submissions on the effect which it should have on the resolution of the appeal. A copy of Folios 2 and 3 was later furnished to Mr Fernandez for the appellant, under cover of a letter from the Minister’s solicitors dated 29 November 2007. However, Mr Fernandez made no supplementary submissions in relation to the document beyond drawing its contents to the attention of the Court.
A perusal of those documents reveals that “Folio 2” was an internal minute of the Tribunal requesting that certain machinery steps be taken to enable the appellant’s application to be reconsidered after the remitter by consent in the Federal Magistrates Court on 4 August 2006 which is noted at [4] of these reasons. “Folio 3” was an internal memorandum from the Litigation Administrative Officer within the Department of Immigration, Multicultural and Indigenous Affairs explaining why the Department’s solicitors had advised the Minister to consent to the setting aside of the first Tribunal decision of 26 May 2006. That advice focused on the indication by the first Tribunal in its reasons that it had “no alternative but to affirm the decision under review.”
Having carefully perused “Folios 2 and 3”, I agree with the learned Federal Magistrate when he observed, as recounted by Mr Fernandez, who appeared on the hearing below, that “it was not necessary for him (Mr Fernandez) to see that particular folio.” It follows that Folios 2 and 3 can have no bearing on the resolution of this appeal.
Conclusion
As each of the attacks mounted by the appellant on the orders of the learned Federal Magistrate has failed, the appeal must be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate:
Dated: 4 July 2008
Counsel for the Appellant: T A Fernandez Solicitor for the Appellant: T A Fernandez Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 29 October 2007 Date of Judgment: 4 July 2008
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