Hossain v Minister for Immigration
[2009] FMCA 405
•30 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 405 |
| MIGRATION – Application to review decision of Migration Review Tribunal – Skilled–Independent Overseas Student visa – points test – language skill qualification – proficiency in English – whether Tribunal considered whether it was not necessary for the applicant to be tested using the IELTS test – Migration Regulation 2.26A. |
| Migration Act 1958 (Cth), ss.65, 92, 93, 94, 95, 96, 350, 353A, 359, 359A Migration Regulations, regs.1.15B, 2.26A, Schedule 6A |
| Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 142 FCR 43 Hadiuzzaman v Minister for Immigration & Anor [2007] FMCA 1266 Lobo and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1997) 33 FCR 87 |
| Applicant: | MOHAMMAD IKBAL HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1170 of 2008 |
| Judgment of: | Barnes FM |
| Hearing dates: | 6 November 2008, 4 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Knackstredt |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That a writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the Migration Review Tribunal made 9 April 2008 in Tribunal case file number 071251297.
That a writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 14 February 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1170 of 2008
| MOHAMMAD IKBAL HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & 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 signed on 9 April 2008 and handed down on 21 April 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
The applicant sought a Class DD visa as an overseas student who had been studying in Australia (see item 1128CA in Schedule 1 to the Migration Regulations). The only subclass of visa in Class DD is Subclass 880. One criterion for such a visa is that at the time of decision the applicant has a “qualifying score” when assessed under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) (cl.880.222 of Schedule 2 to the Migration Regulations). That Subdivision of the Act establishes a “points” system under which a visa applicant may be given a “score” based on points for prescribed qualifications or attributes (see ss.92 – 96, reg.2.26A and Schedule 6A to the Migration Regulations). This “score” is then compared to “pool” and “pass” marks set by the Minister from time to time by notice in the Gazette.
Regulation 2.26A prescribes various qualifications (such as educational qualifications, employment experience and language skill) and the manner of allocation of points for each level of qualification specified in Schedule 6A to the Regulations. It includes a requirement that for the purposes of the points system the decision-maker “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” (reg.2.26A(4)(b)).
In this instance the Tribunal found that on the number of points it awarded to Mr Hossain he failed to achieve the qualifying score and hence did not meet the criterion in cl.880.222 of Schedule 2 to the Regulations. In these proceedings Mr Hossain took issue with the Tribunal’s approach to the points to be awarded for his language skills qualifications which resulted in the award of 15 points rather than 20 points. Had he received 20 points for language skills he would have received the qualifying score.
Part 3 of Schedule 6A to the Regulations specifies the number of points to be awarded for language skill qualifications. Item 6A31 at all relevant times provided that an applicant would be allocated 20 points in the following circumstances:
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.
Item 6A32 is not in issue. It applies where the applicant provides evidence of having passed an Occupational English Test conducted by the National Language and Literacy Institute of Australia. Under item 6A33 15 points would be allocated if:
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.
The “IELTS test” referred to in these provisions means the International English Language Testing System test (reg.1.03).
Regulation 2.26A(5) 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.
In reviewing a points score assessment under s.93 of the Act, the Migration Review Tribunal is to have regard to whichever of the regulations is in force at the time the assessment was made by the Minister, or those in force at the time of the Tribunal decision, whichever is more favourable to the applicant (s.350).
It is also relevant to note that Departmental policy in the Procedures Advice Manual 3 (PAM3) provides guidance to decision-makers about evidence of English proficiency, English testing and the discretionary powers to “waive” English testing, under reg.2.26A(5) or other discretionary waiver power (such as reg.1.15B which deals with “vocational English”) on the basis that IELTS testing is “not necessary” or “not reasonably practicable”. The policy explains that the effect of such a “waiver” is that if a decision-maker decides that it is “not necessary” or “not reasonably practicable” for an applicant to sit a test, the decision-maker may make his or her own assessment of the applicant’s English proficiency (PAM3: English, section 69). It then provides for the manner in which such cases should be assessed in practice. Relevantly, that part of the policy that relates to when IELTS testing is “not necessary” (PAM3: English, section 70) provides that “Officers should use the relevant discretionary power to decide 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”. PAM3 then lists certain types of evidence. At the time of the applicant’s visa application this list “included” in the list of the type of evidence that could be taken into account to demonstrate that an applicant had the appropriate level of English, the fact that the applicant held an award from an institution where instruction had been conducted in English and the fact that the applicant had studied and/or worked in an English speaking country for a considerable period. These factors were deleted from the policy from November 2005 (see PAM3: Schedule 6A, 9/4/2008 – 25/4/2008).
The visa application
Mr Hossain lodged his application for a Class DD visa on 25 November 2004. In support of the application his then migration agent claimed, among other things, that Mr Hossain had completed all his tertiary education in Australia in the English language, that he had lived and studied in Australia for more than five years and that he used English as his main language.
On 16 December 2004 the delegate of the first respondent wrote to the applicant's agent advising that the evidence of English proficiency provided with the application had been considered and that an IELTS test of Mr Hossain’s English language proficiency was required.
Mr Hossain changed migration agents. On 19 August 2005 his new migration agent provided the Department with a copy of an IELTS test result dated 25 June 2005 in which Mr Hossain scored 6 in three of the 4 test components (but not in four components as required for the award of 20 points under item 6A31 of Schedule 6A to the Migration Regulations). He scored 4 points in one of the 4 test components. The agent submitted a medical certificate dated 24 June 2005 stating that Mr Hossain was, in the opinion of the doctor, medically unfit to attend work/school from 25 June 2005 to 27 June 2005 and a referral from that doctor dated 19 August 2005 in which Mr Hossain was said to be suffering from recurrent migraine attacks.
The agent submitted that the applicant's poor performance in one component of the test could be attributed to his medical condition, referred to Departmental policy then in force in relation to when IELTS testing was not necessary and advised that the applicant had been attending Australian colleges and universities since his arrival in 1999 and had (in July 2005) completed a Master's Degree from Central Queensland University conducted in English. The delegate was asked to consider granting the applicant a “waiver” of the English test or the opportunity to sit another IELTS test.
By letter of 4 September 2005 the delegate advised that he had considered the matter and would allow the applicant to sit one more IELTS test before the end of the year. It appears that the applicant registered for another IELTS test scheduled for 10 December 2005 but did not provide further test results to the Department before it made a decision in February 2006.
On 10 February 2006 the delegate refused the application for a Class DD Subclass 880 visa. The delegate did not address the requirements of cl.880.222. Rather, he found that Mr Hossain did not meet the requirement of cl.880.223 of Schedule 2 to the Migration Regulations that he have “vocational English” within reg.1.15B as he had not achieved the requisite score of 5 for each component of the IELTS test conducted on 25 June 2005.
The applicant sought review by the Tribunal. On 20 July 2006 the Tribunal as originally constituted remitted the matter to the delegate for reconsideration with a direction that the applicant met the criterion in cl.880.223 of Schedule 2 of the Migration Regulations. The Tribunal had regard to the fact that the applicant sat a further IELTS test on 17 June 2006 in which he scored 6 in 3 components and 5 in the other, thus achieving a score of at least 5 for each of the 4 test components. Hence the Tribunal found that Mr Hossain had “vocational English” as defined in reg.1.15B of the Migration Regulations.
After the matter was remitted to the Department, the delegate of the Minister made a points score assessment. In a decision dated 14 February 2007 the delegate awarded the applicant 15 points for English language ability. The delegate found that under the points test in force at the time of the visa application the applicant had not attained the pass mark.
Tribunal review
The applicant sought review of that decision by the Migration Review Tribunal. Under s.359A of the Migration Act, by letter dated 23 August 2007 the Tribunal invited Mr Hossain to comment on information consisting of information from the Department's file relating to the assessment of his total points score which suggested that he would not be entitled to the qualifying score. One of the items of information was the result of the IELTS test Mr Hossain had undertaken on 17 June 2006, which showed that he had achieved a test score of at least 5 on each of the 4 test components, but that he had not achieved a test score of at least 6 on each of the 4 test components. The Tribunal put to the applicant that the on this basis he would be entitled to 15 points for language skills qualifications under item 6A33 of Schedule 6A to the Regulations.
In a response of 14 September 2007 the applicant's agent advised that the applicant had sat another IELTS test on 21 July 2007 and had achieved a score of 6 in each component, except for the writing component in which he had achieved a score of 5. On 25 August 2007 he again sat an IELTS test, achieving 6 for listening, 5.5 for reading, 6.5 for writing and 7.5 for speaking.
The agent submitted that by applying the results the applicant had achieved from both of these tests the Tribunal could accept that he had competent English and that he should be allocated 20 points for the language factor. It was contended that previous Tribunals had accepted this approach. In the alternative it was submitted that the Tribunal should apply the policy that had been in effect at the time of the visa application and accept that Mr Hossain had competent English as he had undertaken extended studies in Australia. The response also addressed the issue of whether the Tribunal should have allocated
5 bonus points for the applicant’s overseas qualification (see Part 8 of Schedule 6A). On this basis it was submitted that the applicant should be allocated a total of 115 points (which would meet the qualifying score requirement).
In a subsequent letter of 21 November 2007 responding to a hearing invitation, the agent reiterated the submission that the applicant had achieved a score of 6 or better in each of the four IELTS test components if regard was had to the combination of the two tests. It was submitted that at the time of the visa application the Tribunal had accepted that it was possible to aggregate IELTS tests. The agent requested that the Tribunal take this approach.
The applicant attended a Tribunal hearing on 27 November 2007. A transcript of the hearing is in evidence before the Court. The issue of aggregation of IELTS test results and the fact that Hadiuzzaman v Minister for Immigration & Anor [2007] FMCA 1266 indicated that this approach was not available under Schedule 6A was discussed. The applicant’s adviser pointed out that at the time of the visa application the policy in PAM3 in relation to evidence of English was much more flexible in relation to people who had completed several years of full-time study in Australia (compared with the policy after November 2005 in which the reference to study in Australia no longer appeared). The agent asked the Tribunal to adopt the approach taken at the time of the visa application. He also advised that the applicant had registered for two further IELTS tests in February 2008 but was hopeful that the Tribunal would be prepared to aggregate the results of the most recent two tests. The Tribunal member indicated that he would let them know whether he was prepared to wait or not (transcript p 5). The Tribunal member also referred to the fact that he had to decide whether to "waive" or perhaps wait for a further IELTS assessment (transcript p 10). The applicant claimed that friends of his with the same qualifications in Australia had not been required to sit for IELTS tests and had received visas. He suggested that in his case the delay was the responsibility of the Department and stated that he did not think that it was fair that he had to sit for another IELTS test (transcript p 10).
On 12 December 2007 a Tribunal officer wrote to the applicant’s adviser stating “Having considered your request to await the outcome of a further IELTS assessment to be undertaken by you in February 2008, the Presiding Member has determined that he will await the outcome of the assessment.” The Tribunal asked to receive the results as soon as they were available.
On 18 March 2008 the Tribunal wrote to the applicant's adviser under s.359 of the Act requesting the results of the IELTS tests which the applicant had undertaken in February 2008 by 1 April 2008. On 4 April 2008 the applicant's adviser responded enclosing a copy of the test results (a score of 6 in two components and a score of 5.5 in the other two). The adviser indicated that the applicant had requested a remark of the test result and that he had also registered for two further IELTS tests in May and June 2008 and asked the Tribunal to defer making a decision on the application until the results of the review and additional tests were available. On 8 April 2008 the Tribunal responded that it was of the view that the applicant had been given sufficient opportunity to prepare and present material relevant to the review.
On 9 April 2008 the Tribunal affirmed the decision not to grant the applicant a Class DD visa.
The Tribunal decision
In its reasons for decision the Tribunal outlined the relevant law and the applicant’s claims and evidence. It referred to the evidence of IELTS tests undertaken by the applicant and the adviser’s submissions that test results should be aggregated or that the law and policy applicable at the time of the application that was said to be more flexible in respect of assessment of language skills should be applied. The Tribunal also referred to the applicant’s request that the decision be further deferred, but found that he had been given adequate opportunity and time to prepare and present material relevant to the case and that it was appropriate to make a decision.
The Tribunal had regard to s.350 of the Act and assessed the applicant's points score on the basis of the Regulations and pool and pass marks in force at the time of both of the delegates’ assessments and also at the time of the review assessment. It found that the applicant should be awarded 5 points for bonus points qualifications (as he sought), but only 15 points for language skills qualifications (not the 20 points he sought and needed to achieve the qualifying score). As no issue arises in these proceedings in relation to other qualification factors it is not necessary to set out those findings.
In relation to his language skills qualification the Tribunal noted that the applicant had been awarded 15 points in respect of this criterion by the delegate following the earlier determination by the Tribunal. As to aggregation of IELTS test results, the Tribunal found that in Hadiuzzaman the Federal Magistrates Court had made it clear that in assessing the language skill qualification a “singular test” was referred to in Part 3 of Schedule 6A and that aggregation of testing components was not possible. The Tribunal stated that it was bound by that decision, even if a more liberal position had been taken in the past by the Tribunal or the Department.
The Tribunal found:
In the Tribunal’s view, the applicant has not achieved scores of at least 6 in the relevant components of an IELTS test and has been able to undertake such tests in the past. Despite wishing time to undertake a further assessment, the applicant has not provided evidence of this assessment indicating that he has achieved the relevant scores.
The Tribunal has previously determined that the applicant was entitled to 15 points in respect of this criterion and this was the view of the delegate on the strength of an IELTS assessment on 17 June 2006. No other assessment undertaken by the applicant has achieved the necessary scores for an award of 20 points in accordance with item 6A31, and therefore, the Tribunal finds that the applicant should be awarded 15 points in respect of this part in accordance with item 6A33 of Schedule 6A.
After consideration of other elements, the Tribunal concluded that the applicant was entitled to 110 points under the points test as it applied at the dates of both primary assessments by the Department (10 February 2006 and 14 February 2009) and also at the time of the Tribunal’s decision. As the pool and pass marks at those times were 115 points it found that that he had failed to achieve the qualifying score and hence failed to meet the criterion in cl.880.222 in Schedule 2 to the Regulations.
The Tribunal found that as subclass 880 was the only subclass of the Class DD visa and the applicant had not met an essential prescribed criterion he must be refused the grant of a visa under s.65 of the Act. Hence the Tribunal affirmed the decision of the delegate not to grant the applicant a Class DD visa.
Procedural fairness
The applicant sought review of the Tribunal decision by application filed in this Court on 9 May 2008. He relies on an amended application filed on 17 July 2008.
The first ground in the amended application is that the applicant was denied procedural fairness at the time of the hearing, although the applicant’s concern was not limited to the conduct of the hearing. The particulars to this ground are as follows:
Most recently there is a Direction made under sections 353A and 420A of the Migration Act 1958 (the Act) to provide guidance on the implementation of the Migration Amendment (Review Provisions) Act 200[6] (sic).
The Tribunal did not give the opportunity to applicant to submit the further IELTS test results. The Tribunal is bound to follow procedural (sic) in reaching its decisions and a failure to accord procedural fairness will lead to jurisdictional error, which is not protected from review by the privative clause’. The tribunal member did not grant me extension time to provide further IELTS tests results. The Tribunals (sic) letter of invitation to comment on information was affected by jurisdictional error because there was a reasonable apprehension that the Tribunal member had made up mind to affirm the decision of the delegate at the time when the Tribunal sought to comply with its obligation under S 424A (sic) of the ACT.
As drafted, these particulars appear to assert that a reasonable apprehension of bias was apparent from the objective perspective of the fair-minded and appropriately informed lay observer, having regard to whether such a person may reasonably apprehend that the Tribunal may not have brought an impartial mind to bear on its decision in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 and discussed in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14].
In its pre-hearing s.359A letter the Tribunal invited the applicant to comment on information from the Department’s file in relation to assessment of his qualifications for the purpose of the points test. It referred to available evidence in relation to each qualification and explained on the basis of that information the points the applicant would be entitled to in each category (including 15 points for language skill under item 6A33). It advised that on that basis, even if he was awarded 5 bonus points in respect of holding a relevant qualification, the applicant would fail to achieve the pass or pool mark or to meet cl.880.222. The Tribunal pointed out that if it found this, it would affirm the decision under review.
As Sundberg J pointed out in Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312, bearing in mind the perspective of the observer informed as to the nature of the Tribunal’s review functions and its proceedings, the expression of a preliminary view by the Tribunal, even on a critical matter, is not such as to establish bias (at [13] – [20]).
The Tribunal's invitation to comment on the material before the Department does not demonstrate prejudgment or show a mind so prejudiced in favour of a conclusion already formed that it would not be altered irrespective of the evidence or arguments presented, or a reasonable apprehension of bias. As Finn J stated in relation to s.424A (the equivalent of s.359A in relation to the Refugee Review Tribunal) in SZDTU v Minister for Immigration and Citizenship [2007] FCA 1135 at [8], it is not bias for a Tribunal "conscientiously to follow and apply procedures prescribed in the statute under which it is acting," including a procedure such as that provided for in s.424A or in s.359A.
The s.359A letter is not such as to indicate a reasonable apprehension of bias. It does not suggest that the Tribunal member had already made up his mind to affirm the decision of the delegate at that time (see SZKBE v Minister for Immigration and Citizenship and Another (2008) 101 ALD 61).
Nor, more generally, is bias apparent having regard to the conduct of the hearing and the review. The applicant did not identify any other aspect of the conduct of the hearing or review such as to give rise to an apprehension of bias, except the Tribunal's failure to give him the opportunity to submit a further IELTS test result as his adviser sought in the letter to the Tribunal of 4 April 2008.
It is relevant to have regard to the conduct of the review. In response to the s.359A letter the adviser informed the Tribunal that the applicant had sat two IELTS tests and submitted that if the results were aggregated he could be allocated 20 points or, in effect, that the requirement should be waived. The issue of aggregation (and the effect of Hadiuzzaman) was discussed at the hearing of 27 November 2007. The adviser indicated that the applicant had registered for two further IELTS tests in February 2008. The Tribunal member indicated he would let the adviser know whether he would wait for the results of those tests. In fact the Tribunal did wait.
After February 2008 (on 18 March 2008) the Tribunal sought the results of the foreshadowed tests by 1 April 2008. On 4 April 2008 the adviser provided the February 2008 test results but sought a further deferral of the decision as the applicant had requested a remark of his test results and had registered for further IELTS tests in May and June 2008. The Tribunal considered but refused this request for additional time (while indicating that any information received before the handing down would be considered).
As the first respondent submitted, to the extent the contention of bias relates to the request for an extension of time in the applicant's adviser's letter of 4 April 2008, the Tribunal validly considered its discretion to allow a further extension of time. It has not been established that the approach which it took in consideration of that request indicates either a failure to comply with any of the procedural requirements of the Act or a denial of procedural fairness, whether consisting of actual or apprehended bias or otherwise. Having regard to the period of time the matter had been before the Tribunal, the number of tests undertaken and the Tribunal's attitude to the earlier request in the hearing for time to undergo further IELTS testing, the fact that it did not grant the applicant further time to undertake another IELTS tests (or to seek a remark of the latest test result) is not such as to establish a reasonable apprehension from the perspective of the appropriately informed lay observer that the Tribunal member had made up his mind to affirm the decision of the delegate and that his mind was not open to change. No lack of procedural fairness in the form of actual bias or apprehended bias is apparent by reason of the fact that this request was refused. This aspect of ground one is not made out.
The applicant was not able to explain the relevance of the reference to a direction under s.353A or s.420A of the Migration Act. No jurisdictional error is established on this basis. Section 353A provides that the Principal Member of the MRT may give written directions not inconsistent with the Act or the Regulations as to the operation of the Tribunal and the conduct of reviews by the Tribunal. Section 420A contains a similar provision in relation to the Refugee Review Tribunal. It is not applicable in this case. The applicant did not identify any relevant direction. I note that in any event s.353A(3) is as follows: “The Tribunal should, as far as practicable, comply with the directions. However, non‑compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.” Ground one is not made out.
“Waiver” of IELTS testing: the issues
Ground two in the amended application is that “The Tribunal did not consider that it was appropriate in the circumstances to be guided by policy.” The particulars to this ground refer to the Departmental policy (PAM3) on the use of the discretion in reg.2.26A(5) at the time of the visa application.
This amounts to a contention that the Tribunal should have “waived” the need for an IELTS test in which the applicant achieved a score of
6 in each component by determining under reg.2.26A(5) that it was “not necessary” or “not reasonably practicable” for the applicant to sit a test making its own assessment of the applicant’s English proficiency (having regard to his study and time in Australia and the fact that these matters were relevant under policy at the time of his visa application). In particular the applicant claimed that he had been studying in Australia for nearly five years and had completed several awards here, including a Master of Information Systems from Central Queensland University and that the Tribunal should have taken this into account.
By the time of the Tribunal decision the PAM3 non-exhaustive list of factors a decision-maker “could” take into account in determining IELTS testing was not necessary had been replaced by a provision that stated that “the type of evidence that officers can take into account in relation to particular level of English language ability can be seen from the table below ….” The table referred to situations where an applicant had undertaken specified other English language testing, was a “native” English speaker or held NAATI accreditation as an interpreter, etc. It did not refer to an applicant holding an award such as a degree from an institution where instruction was in English. Nor did it refer to work or study in an English-speaking country.
The applicant acknowledged that it could not be argued that it was “not reasonably practicable” for him to sit an IELTS test, but submitted that the Tribunal should have determined that it was “not necessary” for him to do so. He submitted that given the length of time he spent in Australia and the fact that he had completed three qualifications in Australia, the Tribunal should have exercised its discretion to find that English language testing was not necessary for him on the basis of his studies in Australia.
He referred to several Tribunal decisions in which Tribunal members had exercised the discretion to find that IELTS testing was not necessary, having regard to a combination of factors such as an applicant’s educational history, work experience and extraneous factors impacting upon performance in sitting an IELTS test. He submitted that his case was equally deserving of the exercise of the Tribunal's discretion in this regard. He took issue generally with the law and policy applied by the Tribunal.
The essence of the applicant's argument was that although the policy in relation to when IELTS testing was “not necessary” had changed, the Tribunal should, in the exercise of its discretion under reg.2.26A(5), have had regard to the fact that he had studied and lived in Australia. Although he made this argument on the basis that the Tribunal should have applied the law and policy in existence at the time of the visa application, a broader issue arises as to whether the Tribunal erred in relation to the exercise of the reg.2.26A discretion. The applicant submitted that the requirement that he achieve the necessary results in an IELTS test in order to be awarded 20 points for his language skill qualification should have been "waived" by the Tribunal in the exercise of its discretion under reg.2.26A(5) and that it should have made a determination that the applicant was proficient in English to the level equivalent to that mentioned in item 6A31 of Schedule 6A to the Migration Regulations. He also took issue with the Tribunal’s failure to aggregate the results of IELTS tests.
The issues raised by the applicant involve a consideration of whether the Tribunal applied the correct provisions of the Migration Act and Regulations in allocating points to him, the availability of aggregation of IELTS test results, the relevance of policy and whether the Tribunal appreciated that it had a discretion under reg.2.26A(5), whether it considered whether the discretion ought to be exercised and, if so, whether it erred in the exercise of such discretion.
The correct law
The applicant submitted generally that the Tribunal did not apply the correct law. Subdivision 3 of Part 2 of the Act contains the relevant provisions governing the assessment of the applicant's eligibility for the class of visa for which he applied. Section 92 of the Act provides that that Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives a qualifying score when assessed as provided by this subdivision. Such a criterion appears in cl.880.222 of Schedule 2 to the Regulations and is applicable to a Class DD Subclass 880 visa.
Section 93 provides for the Minister to make an assessment by giving the applicant "the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant". By subsection 2 “prescribed” means prescribed by the Regulations in force at the time the assessment is made. Both cl.880.222 and s.93 relate to the time of the assessment or decision and not the time of the visa application.
Section 350(1) of the Act provides:
In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
In other words, the Tribunal is to have regard to the regulatory provisions in effect at the time of the delegate's decision and at the time of the Tribunal's decision and to apply whichever are more favourable to the applicant. At all material times ss.93 and 350 and cl.880.222 of Schedule 2 to the Regulations were in the form described. If the applicant was suggesting that the Tribunal should have had regard to the provisions in effect at the time of his visa application, that is not in accordance with the requirements of s.350.
The applicant also seemed to contend that there had been some change in the law during the time his application was under consideration by the delegate and by the Minister. No relevant change was identified. I note that there was a change to the meaning of “Vocational English”. Regulation 1.15B was amended in 2006 and 2007. However its application is not in issue in these proceedings.
Delegates of the Minister made two assessments as set out above, the first on 10 February 2006 and the second, after remittal by the Tribunal, on 14 February 2007. The Tribunal made the decision in issue in these proceedings on 9 April 2008. The Tribunal considered the applicant’s point score as at each of those dates. At each of those times reg.2.26A(2) relevantly provided that for s.93(1) certain qualifications specified in Schedule 6A to the Regulations were prescribed as qualifications in relation to the grant to the applicant of certain classes of visa, including a subclass 880 visa. Schedule 6A to the Regulations relevantly provided at these times the qualifications which had to be established for attribution of a particular number of points to an applicant. Items 6A31 and 6A33 in relation to language skill qualifications were in the same form at each of those times.
The Tribunal calculated that the applicant was entitled to a point score of 15 for his English language qualification under item 6A33 on the basis that he had scored at least 5 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted during the processing of the application.
Insofar as the applicant contended that there were relevant changes in the law which were not taken into account by the Tribunal, this is not made out. In particular, the Tribunal properly understood and considered the requirements of s.350 of the Migration Act.
The aggregation issue
One of the arguments raised by the applicant echoed the contentions made to the Tribunal to the effect that the scores from two IELTS tests could be aggregated and that on this basis he had achieved scores of at least 6 in the separate components of speaking, reading, writing and listening assessed by IELTS tests.
Item 6A31 of Schedule 6A to the Migration Regulations refers to the applicant providing evidence of "having achieved an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening in a test conducted: (a) not more than 12 months before the date on which the application was made; or (b) during processing of the application”. It appears to be submitted that this provision allows for aggregation of the components of the testing undertaken at various times within the times specified in paras. (a) and (b).
The Tribunal addressed this submission but stated that the decision of this Court in Hadiuzzaman made it clear that in assessing the language skill qualification the reference in item 6A31 to "in a test" was a reference to a singular test. Hence it proceeded on the basis that aggregation was not possible. In Hadiuzzaman v Minister for Immigration & Anor [2007] FMCA 1266 McInnis FM stated at [42]):
I … accept the first Respondent’s submissions that the phrase [“in a test”] 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.
In Hadiuzzaman v Minister for Immigration and Citizenship [2008] FCA 1015 Ryan J dismissed an appeal from the decision of McInnis FM. No issue was taken on appeal with this aspect of reasoning of McInnis FM (at [16]). I agree with the approach taken by McInnis FM in relation to the meaning of the expression “in a test” in Schedule 6A to the Migration Regulations.
Moreover, in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 the High Court considered the requirements of cl.880.222 of Schedule 2 to the Migration Regulations and whether the decision-maker had erred in construing item 6A31 of Schedule 6A as requiring that the score of at least 6 for each of the 4 test components be obtained in the one IELTS test, rather than in one or more tests undertaken within the qualifying period. While Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Haydon and Crennan JJ expressed doubt about whether if the interpretation given to item.6A31 was erroneous that necessarily vitiated the decision for jurisdictional error rather than representing an error within jurisdiction (at [70]), their Honours found in any event that the delegate had not erred. Their Honours stated (at [73] – [74]):
Item 6A31 fixes upon what transpired “in a test”. That test must have been conducted not more than 12 months before the day on which the application is made or during the process of the application. From that test the applicant must be able to provide evidence of having achieved a score of at least six for each of the four components of that test, namely, speaking, reading, writing and listening.
The Minister correctly submits that the apparent objective of requiring a particular level of overall competence in the English language would not be achieved if Item 6A31 were to be satisfied by sitting the test on several occasions, concentrating on different components, until there was accumulated a sufficient collection of scores.
The Tribunal did not fall into jurisdictional error in requiring that scores of at least 6 in each component be achieved in a single IELTS test or in finding that aggregation of IELTS tests results was not possible under item 6A31 of Schedule 6A to the Migration Regulations. The fact that prior to Hadiuzzaman regard had been had to aggregated test results in Tribunal decisions does not mean that the Tribunal erred in finding that it could not take that approach under item 6A31 of Schedule 6A after the decision in Hadiuzzaman.
The relevance of policy
Insofar as the applicant contended that the Tribunal was bound to apply policy, in particular the policy applicable at the time of his visa application, such a contention is not made out. Policy such as that contained in PAM3 is simply a guide to the application of legislation (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). Although it could provide guidance in the exercise of the discretion, it does not have any legally binding status. As Gray J stated in El Ess and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 142 FCR 43 at [45]:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
Regulation 2.26A(5) discretion
The main issue in this case is whether the Tribunal appreciated that it had a discretion under reg.2.26A(5), considered whether or not it ought to be exercised and if it did so whether it erred in its consideration of such discretion.
Regulation 2.26A(5) at all material times was as follows:
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 applicant (who was self-represented) contended that the Tribunal should have had regard to the policy applicable at the time of his visa application, should have considered his study and work in Australia and on this basis determined a further IELTS test was not necessary and that he could be awarded 20 points for his language skill on this basis.
It is clear that the applicant, through his adviser, relied on his tertiary education in English and residence in Australia in connection with his initial application for a Class DD visa. The delegate determined that an IELTS test was required and, as set out above, the applicant undertook such testing but did not achieve the results required for the award of
20 points. By letter of 19 August 2005 the applicant’s adviser then expressly asked the delegate to consider granting the applicant a waiver of the IELTS test requirement (having regard to the factors referred to in PAM3 as it stood at the time of the request such as the applicant's study and work in an English-speaking country) as well as his medical condition at the time of the test.
The Tribunal as reconstituted put to the applicant under s.359A that he was entitled to 15 points for the language skill qualification. In response, by letter dated 14 September 2007, although the adviser did not refer to reg.2.26A(5), it was suggested not only that the Tribunal should aggregate the results achieved by the applicant in more than one test, but also in the alternative that "the Tribunal should apply the policy in effect at the time of the application which in effect accepted that applicants had competent English where they had extended studies in Australia, as was the case with Mr Hossain. On this basis we asked the Tribunal to allocate the applicant 20 points for the language factor." Counsel for the Minister conceded that this response appeared to involve a request that the Tribunal exercise the reg.2.26A(5) discretion. I am satisfied that this is the case.
The applicant clearly sought the exercise of the Tribunal's discretion to determine that it was not necessary for him to be tested (again) using the IELTS test and that the Tribunal should determine that he was proficient in English to a level equivalent to that mentioned in item 6A31 in Part 3 of Schedule 6A (and hence should be allocated 20 points for language skill) notwithstanding his failure to achieve a score of 6 in each component of the test in a single IELTS test.
In the Tribunal hearing the applicant's adviser again submitted not only that the Tribunal should consider aggregation but also asked the Tribunal to apply the policy that existed at the time of the application in assessing the applicant's English language qualification. Such policy is the policy relevant to the exercise of the reg.2.26A(5) discretion. The adviser indicated that if the Tribunal member was not prepared to accept either of those submissions, the applicant was registered for further tests in February 2008. The Tribunal member indicated that he would consider these issues and that his decision would become apparent in the next communication and also referred to the fact that he had to decide whether to “waive.” As indicated above, the Tribunal agreed to the applicant's “request” that it await the outcome of a further IELTS assessment to be undertaken in February 2008, but did not address reg.2.26A(5).
In its reasons for decision the Tribunal made no reference to reg.2.26A(5). In describing the points system it stated: “The prescribed attributes or ‘qualifications’ and points for each are set out in the Regulations: see r.2.26A and Schedule 6A to the Regulations.” The Tribunal referred to item 6A31 in Schedule 6A in relation to when 20 points were available.
In its description of the applicant’s claims and evidence the Tribunal noted the applicant’s written submissions in relation to aggregation of IELTS test results and recorded that at the hearing the applicant indicated he had registered for a further IELTS test and had requested that the Tribunal delay making a decision prior to that test being undertaken. The Tribunal continued:
The applicant and his adviser submitted that the requirement for IELTS assessment had not been necessary at the time when the applicant made his application. It was submitted that the applicant's IELTS assessments over time had seen him achieve the relevant score. It was further submitted that although the decision of Hadiuzzaman indicated that scores could not be aggregated, that in the past aggregation was undertaken in earlier Tribunal decisions and these should be followed. It was argued alternatively, that the law and policy applicable at the time of the application should be applied, and this was more flexible in respect of the assessment of the applicant's language skill and this should be applied.
The Tribunal also recorded that after the hearing it had indicated it would await the outcome of a February 2008 IELTS assessment before proceeding to make a decision.
In its findings and reasons the Tribunal stated that while the applicant had requested that a decision be further deferred, it was not prepared to defer the matter further as the applicant had been given adequate opportunity and time to prepare and present material relevant to the case.
In its consideration of the points to be awarded for language skill qualifications the Tribunal referred to the applicant's contentions that he should be awarded 20 points by reason of having achieved scores of at least 6 in each of the areas of assessment, but found that the decision in Hadiuzzaman had made it clear that a “singular test” was referred to in Part 3 of Schedule 6A and that aggregation of testing components was not possible and that it was bound by this decision notwithstanding any earlier more liberal approach. The Tribunal continued:
In the Tribunal's view, the applicant has not achieved scores of at least 6 in the relevant components of an IELTS test and has been able to undertake such tests in the past. Despite wishing time to undertake a further assessment, the applicant has not provided evidence of this assessment indicating that he has achieved the relevant scores.
The Tribunal has previously determined that the applicant was entitled to 15 points in respect of this criterion and this was the view of the delegate on the strength of an IELTS assessment on 17 June 2006. No other assessment undertaken by the applicant has achieved the necessary scores for an award of 20 points in accordance with item 6A31, and therefore, the Tribunal finds that the applicant should be awarded 15 points in respect of this Part in accordance with item 6A33 of Schedule 6A.
The first respondent accepted that the Tribunal had to consider the exercise of its discretion and in doing so had to consider all the material before it, including the fact that the applicant had completed an Australian degree in which the instruction had been in English.
However the first respondent submitted that the Tribunal set out the action it had taken in response to the applicant’s request about applying policy in relation to whether further testing was “not necessary” in its indication after the hearing that it would await the outcome of a further IELTS assessment before proceeding to make a decision and that it could be inferred from a fair reading of the Tribunal decision as a whole that the Tribunal had considered its reg.2.26A(5) discretion.
The first respondent argued that read in context it was clear that the Tribunal had exercised its discretion under reg.2.26A(5) in finding “the applicant has not achieved scores of at least 6 in the relevant components of an IELTS test and has been able to undertake such tests in the past. Despite wishing time to undertake a further assessment, the applicant has not provided evidence of this assessment indicating that he has achieved the relevant scores.”
While counsel for the first respondent accepted that in exercising its discretion under reg.2.26A(5) the Tribunal was required to consider, inter alia, the fact that the applicant had been awarded an Australian degree in respect of which the language of instruction had been English it was submitted that the Tribunal had taken into account all of the material before it, including the fact that the applicant had been awarded such an Australian degree.
In this respect reference was made to the fact that at the start of the “Claims and Evidence” part of the decision the Tribunal stated that it had had regard to documents on the Tribunal and Departmental files. It was submitted that these documents included information about the qualifications the applicant had obtained in Australia (a Diploma, Graduate Diploma and Masters Degree) and the results of the various IELTS tests he undertook. While there was no specific reference to these matters in the Tribunal decision, the first respondent contended that these matters were taken into account, suggesting that the inference that the Tribunal had not dealt with these matters in exercising its discretion should not be too readily drawn, as the reasons were otherwise comprehensive and the issue had been identified at some point (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]).
Resolution
Regulation 2.26A(5) provides that the Minister “may” determine the matters therein. When the discretion is exercised the IELTS test requirement in Schedule 6A is, in effect, “waived”. In this case the applicant asked the Tribunal to exercise this discretion. The first respondent did not dispute that the Tribunal was under an obligation to consider the exercise of its discretion in this case.
What is in issue is whether, notwithstanding that there was no specific reference to reg.2.26A(5) or to the concepts “not reasonably practicable” or “not necessary” in the Tribunal reasons for decision, it can be inferred that the Tribunal considered the exercise of its discretion under reg.2.26A(5) as requested by the applicant and in doing so had regard to his Australian Masters degree.
I note first that as the first respondent submitted, it would not have been open to the Tribunal to find that it was not reasonably practicable for the applicant to be tested using the IELTS test, in circumstances where the applicant himself had provided evidence of having achieved certain IELTS test results. As Ryan J stated in Hadiuzzaman at [38], in such circumstances it would be “perverse for the Minister (or the Tribunal standing in the Minister’s shoes), to have determined that it was what not reasonably practicable” for the applicant to be tested using the IELTS test.
The applicant’s argument addresses the second limb of reg.2.26A(5), in relation to which Ryan J stated in Hadiuzzaman at [38]:
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] HCA 40; (1986) 162 CLR 24, per Mason J at 39-40.
As indicated, there is no express reference in the Tribunal decision to reg.2.26A(5), to either of the concepts of “not reasonably practicable” or “not necessary” or the particular circumstances of the applicant before the Tribunal, such as his work and study in Australia, in particular the fact that he had attained three qualifications here including a Master of Information Systems in which the instruction was in English.
The fact that during the review process the Tribunal acceded to requests from the applicant to await the results of further IELTS tests does not of itself establish that in so doing the Tribunal considered the exercise of its discretion under reg.2.26A(5). Nor does the fact that it stated in its findings and reasons that it was of the view that the applicant had been given “adequate opportunity and time to prepare and present material relevant to the case” and that it was now appropriate to make a decision in respect of the application. As Ryan J stated in Hadiuzzaman at [38]:
Schedule 6A of the Regulations … 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.
As his Honour went on to recognise (at [38]):
… 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.”
Regulation 2.26A(5) allows the Minister (or Tribunal) to “determine that the applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A.” Such a determination is a determination that is to be made at the time of decision. It is not necessary for a determination to be made as to whether IELTS testing is reasonably practicable or necessary before regard can be had to available IELTS test results (Hadiuzzaman at [42] – [43] per Ryan J). This means that the decision-maker can have regard to the results of past IELTS tests as well as to other evidence in relation to proficiency in English in determining that it is not necessary for the applicant to undergo a further IELTS test before allocating him a score of 15 or 20 points. As Ryan J stated at [38]:
… 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 first respondent submitted that read in context, it could be inferred from the Tribunal decision that the Tribunal had exercised its discretion under reg.2.26A(5) in considering the applicant’s failure to achieve scores of at least 6 in the relevant components of an IELTS test in the past, his past ability to undertake such tests and the fact that he had not provided evidence of achieving the relevant scores, despite the time allowed.
It cannot be said that the applicant’s past IELTS testing and results (to which the Tribunal did refer) would be irrelevant to the exercise of discretion under reg.2.26A(5). In Hadiuzzaman Ryan J concluded that it could not be said that the fact that the applicant had undertaken 7 IELTS tests and had not attained the result required to qualify for 20 points (see reg.2.26.A(3)) was irrelevant to the exercise of the discretion conferred by reg.2.26A(5). However in that case the Tribunal had considered such tests in the context of an express finding as to whether an IELTS test was not necessary (see Hadiuzzaman at [7]). In this case the Tribunal reference to the past tests and scores achieved by the applicant was not in the context of any such express consideration of the discretion in reg.2.26.A(5). Rather, such results were considered in the context of an assessment of the marks that the applicant achieved and a reference to the opportunity the applicant had to undertake a further IELTS assessment. The Tribunal expressed its conclusion on the points to be allocated for language competency by reference to the IELTS test results and Schedule 6A as follows:
The Tribunal has previously determined that the applicant was entitled to 15 points in respect of this criterion and this was the view of the delegate on the strength of an IELTS assessment on 17 June 2006. No other assessment undertaken by the applicant has achieved the necessary scores for an award of 20 points in accordance with item 6A31, and therefore, the Tribunal finds that the applicant should be awarded 15 points in respect of this Part in accordance with item 6A33 of Schedule 6A.
The Tribunal’s reasons leading up to its conclusion on the basis of the IELTS assessments undertaken by the applicant that he “therefore” should be awarded 15 points in respect of the language skill qualification in accordance with item 6A33 of Schedule 6A do not indicate that any consideration at all was given to the operation of the discretion in reg.2.26.A(5) in the Tribunal’s findings and reasons. The fact that matters such as IELTS testing and results could have been taken into account in a consideration of the exercise of the reg.2.26A(5) discretion does not in these circumstances establish that the Tribunal did consider the exercise of its discretion.
While the Tribunal referred to the applicant’s submission in relation to aggregation, it rejected this approach on the basis of the decision of McInnis FM in Hadiuzzaman, finding that “a singular test as referred to in Part 3 of Schedule 6A and that aggregation of testing components is not possible”. This clearly related to the application of Schedule 6A and did not address reg.2.26A(5) discretionary factors or the claims of the applicant about the absence of the necessity for IELTS assessment to establish his English language competence.
It is apparent from the Tribunal hearing that the Tribunal was aware that it could “waive” the requirement of an IELTS assessment as “not necessary” to establish the suggested level of English language competence. In contrast to the Tribunal decision in Hadiuzzaman the Tribunal in this case did not address this issue in its findings and reasons. While it referred to the applicant’s argument that the “more flexible” law and policy at the time of application should be applied in its description of the claims and evidence, the only reference to this contention in its findings and reasons was in the context of its finding that it was bound by Hadiuzzaman “even if, as has been submitted, more liberal positions have been taken in the past in respect of this issue by the Tribunal or the Department before that decision of the Federal Magistrates Court”.
There is no express reference in the Tribunal’s findings and reasons to policy in respect of the discretion in reg.2.26A(5) or to the notion of "not necessary." While the Tribunal is not bound to follow policy if it departs from the law, the absence of any reference whatsoever to policy is consistent with the view that the Tribunal failed to consider its discretion under reg.2.26.A(5) of the Migration Regulations (and see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1997) 33 FCR 87).
I am not persuaded on a fair reading of the Tribunal decision that the Tribunal considered the discretion afforded by reg.2.26A(5) to determine whether it was not necessary for the applicant to be tested using the IELTS test.
Moreover, even if it can be inferred that the Tribunal did consider the exercise of this discretion, I am not satisfied that it considered those matters raised by the applicant in that respect, in particular the fact that he had worked and studied in Australia since 1999 and had been awarded three qualifications, including a Master in Information Systems from the University of Central Queensland in which the language of instruction was English.
In determining whether IELTS testing is “not necessary” a Tribunal is not confined to the matters contained in the current then PAM3 in determining whether to exercise its discretion under reg.2.26A(5). In this case, as conceded by the first respondent, the Tribunal was required to consider, inter alia, the fact that the applicant had been awarded an Australian degree in respect of which the language of instruction had been English.
Insofar as the Tribunal referred to the fact that the applicant had undertaken IELTS tests, while this would be relevant to the exercise of the discretion to waive the necessity for IELTS testing, it would not be conclusive. This is in contrast to the position in relation to the “vocational English” criterion in cl.880.223. Vocational English is defined in reg.1.15B. This definition was amended in 2006 and 2007 so that the “waiver” in relation to vocational English in reg.1.15B could only be exercised if the applicant did not have an IELTS test score in a test conducted in the 12 months preceding or during the processing of the visa application. Thus an applicant who had recently failed an IELTS test could not access the discretion in relation to the vocational English requirement.
No such amendments were made to reg.2.26A(5). There is no such restriction on the exercise of the discretion in reg.2.26A(5) for Schedule 6A cases. PAM3 appears to have been altered to reflect the amendments to reg.1.15B. It states generally (in relation both to the “waiver” power in reg.1.15B and that contained in reg.2.26A(5)) that “From 1 October 2006, a decision-maker will not have the discretion to decide that an applicant has vocational English and that an IELTS test is not necessary or not reasonably practicable, if the applicant has an IELTS test result conducted in the 12 months before the application was made or during the processing of the application”. If this is intended to suggest that such a restriction applies to reg.2.26A(5) as well as to reg.1.15B, it is not consistent with the absence of such a restriction in reg.2.26A(5).
If the Tribunal considered the exercise of its discretion and in that context could be seen as referring to the policy in relation to waiver in a very general way in in its reference to the fact that the applicant had undergone recent IELTS testing, that would not be consistent with the unrestrained discretion in reg.2.26A(5) in relation to the attainment of a particular level of competency in English under cl.880.222 (as distinct from the situation where what is in issue is waiver of the requirement to sit a test in relation to vocational English to meet cl.880.223 of Schedule 2 to the Regulations). Indeed, if the Tribunal proceeded on the basis that the exercise of the discretion under reg.2.26A(5) was not available in relation to the applicant because he had a recent IELTS test it may have fallen into error. As stated in Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429 if the policy required more than the legislation stated the policy would be unlawful and it would be an error on the part of the Tribunal to apply it. (Also see Lobo and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93). This possibility was not addressed in this case and need not be considered further in light of the findings below.
What is relevant for present purposes is that even if the Tribunal considered the availability of IELTS testing and the applicant’s test results in the exercise of its reg.2.26A(5) discretion, it did not have regard to his Australian Master of Information Systems.
In Hadiuzzaman Ryan J accepted that IELTS test results were relevant to the exercise of discretion conferred by reg.2.26A(5) and continued (at [39]):
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.
Importantly, in this case in contrast to the position in Hadiuzzaman (see Ryan J at [39]), the applicant and his adviser clearly “pointed to” his successful study and the award of a Master’s degree in Australia as a basis on which the Tribunal could have concluded that testing was not necessary to demonstrate his proficiency in English.
There is no reference in the Tribunal decision to this aspect of the applicant’s claims, except in the general description of a Class DD visa as a visa for students who have been recently studying in Australia and have recently completed an Australian degree, diploma or trade qualification and insofar as the Tribunal stated that it had regard to documents on the files. The applicant had not been awarded the Master’s degree at the time of the visa application. There is no reference to the three qualifications obtained by the applicant in Australia, including the Master of Information Systems from Central Queensland University involving two years of full-time study in English and completed after he applied for the visa. It cannot be said that the issue of the award of such an Australian degree was identified in the WAEE sense by the Tribunal’s reference to having regard to the material on the Department and Tribunal files and the reference to submissions about the application of the “more flexible” law and policy at the time of the visa application.
As the Full Court stated in WAEE at [47]:
The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The first respondent relied on this statement of principle. The context in which those issues were canvassed in WAEE related to whether the Refugee Review Tribunal had failed to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a reason within the Refugees Convention. Here the issue is wether the Tribunal failed to address material that was put forward as a basis on which its discretion to find IELTS testing was not necessary and to award 20 points for English language proficiency might be exercised. The material was before the Tribunal, but the Tribunal did not refer to the applicant’s Australian Masters degree in its findings and reasons or elsewhere in its reasons. It cannot be said that this issue was subsumed in its findings about IELTS test results. The Tribunal did not reject any factual premise on which the applicant’s contentions in this respect rested. I am satisfied that in this case the inference can be drawn that the Tribunal failed to consider this issue.
Hence, even if the Tribunal considered the exercise of its discretion and in that context had regard to prior IELTS testing, it did not have regard to matters the first respondent conceded were relevant to the exercise of the discretion, in particular the fact that the applicant had been awarded an Australian degree in respect of which the language of instruction had been English. The first respondent did not suggest that if such failure was established it would not constitute jurisdictional error.
In these circumstances, whether the Tribunal’s failure is characterised asking the wrong question, failing to consider the correct question, failing to apply the law to the facts as found or failing to have regard to relevant considerations, I am satisfied that the Tribunal fell into jurisdictional error and that the matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 30 April 2009
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