Hossain v Minister for Immigration

[2007] FMCA 1351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1351

MIGRATION – Skilled Independent Overseas Student Visa – review of Migration Review Tribunal decision – applicant required to achieve a result of at least 5 for each of the 4 IELTS test components in one test – composite test results not sufficient – no jurisdictional error – application dismissed.

Migration Act 1958, ss.359A, 359(2), 359C, 360
Migration Regulations 1994, regs.1.15B(3), 1.03, 1.15B(3)(a), 1.15B(3)(b)

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114

Applicant: MD KABIR HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1274 of 2006

Judgment of: Nicholls FM

Hearing date: 2 August 2007

Date of Last Submission: 2 August 2007

Delivered at: Sydney

Delivered on: 2 August 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Solicitor for the Respondents: Ms S. Hanstein

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $3,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1274 of 2006

MD KABIR HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore: Revised from Transcript)

1. I have before me an application filed on 3 May 2006 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 5 April 2006 which affirmed a decision of a delegate of the first respondent to refuse to grant a Skilled – Independent Overseas (Residence) (Class DD) visa to the applicant.

Background

1. The applicant is a national of Bangladesh who applied for a Skilled Independent Overseas Student (Residence) (Class DD) visa on

   
   

   30 October 2003. Clause 880.223 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) relevant to this class of visa requires, amongst other things, that the applicant must have what is termed “vocational English”. This term is defined in reg.1.15B(3) of the Regulations.

2. The applicant’s application for a visa is reproduced in the Court Book (“CB”) at CB 89 to CB 108. On 10 June 2005, a delegate of the first respondent’s Department refused to grant a Skilled – Independent Overseas Residence (Class DD) visa on the grounds that he was unable to meet the threshold English language requirements under reg.1.15B. As a result, the applicant did not meet Clause 880.223 of Schedule 2 of the Regulations (CB 153 to CB 154). On 6 July 2005, the applicant sought review of this decision by the Tribunal. This application, including a covering letter from the applicant’s Migration agents and lawyers, Parish Patience Immigration is reproduced at CB 157 to CB 164.

3. The relevant regulatory requirements, including reg.1.15 of the Regulations are helpfully reproduced in the first respondent’s written submissions at para.5. I further note that the IELTS test is defined in reg.1.03 of the Regulations as the “International English Language Testing System”.

4. The material before the Court reveals that the applicant’s representatives (“Parish Patience Immigration Lawyers”) were also nominated as the recipients authorised to receive correspondence on behalf of the applicant from the Tribunal.

5. By letter dated 6 October 2005 (reproduced at CB 167 to CB 169), the Tribunal wrote to the applicant’s authorised recipient pursuant to s.359A of the Migration Act 1958 (“the Act”), inviting the applicant’s comments on information which the Tribunal had obtained from the first respondent’s Department concerning the applicant’s results of an IELTS test taken on 26 February 2005. It also provided the applicant with an opportunity pursuant to s.359(2) of the Act to provide any further information relevant to his meeting the vocational English requirement attaching to the visa class for which he had applied.

6. A response was received by the Tribunal (CB 170). This was a response from the applicant’s migration agents and lawyers, advising that the applicant had been booked for a relevant IELTS test on

   
   

   17 December 2005.

7. On 19 December 2005, the Tribunal again wrote to the applicant by way of his authorised recipient, pursuant to s.359(2) of the Act, inviting the applicant to provide information, in effect, being the results of the test for which he had been scheduled on 17 December 2005. The letter put the applicant on notice that the information was to be provided within 28 days, that is, 28 calendar days after notification (after the receipt of the Tribunal’s letter) and that again, as consistent with the Regulations required, that a response was to be received within 28 days from the end of the 7 days.

8. The Tribunal’s decision record is reproduced at CB 180 to CB 184. What is evident from both the Tribunal’s decision record and from other material before the Court is that neither the applicant nor the applicant’s adviser responded. Therefore, the Tribunal, with reference to s.359C and s.360 of the Act, proceeded to make a decision on the review.

9. In its “Findings and Reasons” (CB 183.2 to CB 184.10), the Tribunal found:

10. The most recent IELTS test provided by the visa applicant indicated that the visa applicant did not achieve a score of at least 5 for each of the

    
    

    4 test components of reading, writing, speaking or listening (CB 183.4).

11. In considering para.1.15B(3)(b), the Tribunal noted it must have regard to policy but recognised that it was not bound by policy (CB 183.5). Further, it noted PAM 3, which is as I understand the third version of the Procedures Advice Manual, which states:

    “Officers should use the relevant discretionary power to decide that IELTS training 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”

12. It considered the visa applicant’s Australian qualifications but was not satisfied that it was not necessary to undergo IELTS testing. As the applicant provided results of a recent IELTS test in which he did not achieve a result of at least 5 for each of the 4 test components, the Tribunal found it could not be satisfied that the visa applicant was proficient in English to a standard that is not less than the standard required under para.1.15B(3)(a), despite his studies in Australia (CB 184.4 to CB 184.7).

13. Further, it followed that the visa applicant did not possess vocational English as defined in reg.1.15B and therefore failed to meet clause 880.223 and therefore affirmed the decision under review (CB 184.7 to CB 184.8).

Application

1. On 3 May 2006, the applicant, who continued to be represented by solicitors, Parish Patience, who had represented him before the Tribunal, made an application to this Court. The application sought review on the following grounds:

   “1. The second respondent (“the Tribunal”) failed or constructively failed to exercise its jurisdiction under the Act.”

   2. The Tribunal misunderstood the applicable law, or misapplied the law to the facts in application of sub-regulation 1.15B(3)(a) dealing with “vocational English”. Sub-regulation 1.15B(3)(a) provides:

   ‘(a) the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:

   (i) not more than 12 months before the day on which the application was lodged; or

   (ii) during the processing of the application…’

   The respondents had in their possession three IELTS test results in relation to tests conducted within the period required. Whilst neither of those results had a score of at least 5 across the board for all components, when viewed collectively, the applicant had achieved a test score of at least 5 for each of the 4 test components in a test conducted in the relevant period. The Tribunal erroneously construed sub-regulation 1.15B(3)(a) to require a single test result certificate with a result of at least 5 in each component in that single test. This is a jurisdictional error of law.”

At the Hearing

1. Before me today, the applicant appeared unrepresented. A notice of ceasing to act from Parish Patience Immigration Lawyers was filed in this Court on 16 July 2007.

2. Relevantly, also filed on that day was the affidavit of David Lee Patel, a solicitor who affirmed in that affidavit, which was affirmed on

   
   

   16 July 2007, that he was the solicitor instructed by the applicant in relation to the matter before this Court and that on or about 8 June 2007 he sent a notice of ceasing to act to the applicant at his last notified residential address. 

3. Mr Patel also states in his affidavit that the applicant had confirmed receipt of the notice, and attached to the affidavit is a letter which is said to be the notice of ceasing to act that was provided to the applicant. I note in particular, as was referred to the Court by Ms Hanstein, that the notice states, amongst other things,

   “We note that you are aware that the test case in relation to the IELTS test has been unsuccessful.  This means that your application has no chance of success in the Federal Magistrates' Court.”

4. The applicant before me today stated that he had not received this notice.  Nonetheless, the applicant, at the beginning of the hearing, confirmed that he wished to proceed with the matter this morning. 

5. While the applicant stated that he wished to proceed without the assistance of an interpreter in the Bengali language who was present in Court, both the Court and Ms Hanstein had some difficulty in understanding the applicant.  This was not a difficulty that necessarily went to the applicant's lack of English, but was a difficulty arising in the Court's view, from accent and the speed with which the applicant spoke. Nonetheless, for the Court's benefit the interpreter assisted in part at the hearing this morning, and the Court made the interpreter available to the applicant to use if the applicant wished to do so.  The Court noted that the applicant made little or no use of the interpreter for his own purposes, and confirmed that he was for the most part content to proceed without the assistance of the interpreter.

6. I should also just note that the affidavit and notice provided by solicitors, Parish Patience Immigration Lawyers, does comply with the Federal Magistrates Court Rules 2001 relating to notification of ceasing to act for applicants in matters of this type.

7. The applicant was concerned to ensure that the Court understood that he could speak English, and for obvious reasons felt that this was relevant to his application, but as I explained to the applicant, the issue relevant for the Court today was not for the Court to determine whether the applicant was proficient in English or otherwise, but whether the decision made by the Tribunal was a decision that was made according to law.

8. In that regard, and bearing in mind the sole ground put before the Court, which the applicant, himself, initially pressed before the Court, I agree with the Minister's submissions that this ground must fail. I say this with reference to the High Court decision in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 234 ALR 114, particularly at [66] to [74] of the Court’s judgment.

9. Relevantly, the High Court in that matter found that with reference to the language skills qualification under Pt.III of Sch.6A to the Regulations, which was the regulation relevant to the visa class applied for in that case, that item 6A(3)(i) provided as follows:

   “6A31 The applicant provides evidence of having…achieved an [International English Language Testing System] 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…”

10. The High Court found that the requirement for the applicant was to have achieved a relevant score for each of the test components in any one test within the relevant period rather than a composite over a number of tests, albeit also conducted within the relevant period. The reading of reg.1.15B(3) of the Regulations in the critical aspect is, in my view, indistinguishable from the regulatory language before the High Court.

11. In the current case, therefore, I cannot see error in the Tribunal proceeding to make its decision pursuant to s.359C of the Act.

12. Further, nor can I see error in its understanding of the application of reg.1.15B(3) of the Regulations. There was no evidence before it that the applicant met the requirement of reg.1.15B(3)(a), nor can I see error in its analysis pursuant to reg.1.15B(3)(b)(i) of the Regulations. On the evidence before it, it was open to the Tribunal to find that it could not be satisfied that it was not necessary for the applicant to undergo IELTS testing. Having reached this view, it was not necessary to further consider whether the applicant was proficient in English under reg 1.15B(3)(b)(ii), as this is conjunctive with reg.1.15B(3)(b)(i) of the Regulations.

13. In all, there was no evidence, therefore, that the applicant met the required IELTS test standard, and on this basis the applicant did not meet the requirement of cl 880.223. The decision of the Delegate on that basis was affirmed in circumstances where I cannot see that jurisdictional error was revealed.

14. The Tribunal was entitled to proceed pursuant to s.359C of the Act. The Tribunal put the applicant on notice by way of its letter of

    
    

    19 December 2005, that if it did not receive any additional information within the period allowed, it may then proceed to make a decision on the review without taking any further action to obtain the information or to invite the applicant to appear before the Tribunal. As I stated earlier, no response was received by the Tribunal from the applicant, either by way of the applicant personally or through his representative.

15. So in all, the Tribunal was entitled, on what was before it, to proceed in the way that it did. Nor can I see error, let alone jurisdictional error, in light of the High Court's judgment, in the way that the Tribunal, in the way that it dealt with what were the requirements of reg.1.15B(3)(a) of the Regulations. Nor can I see error in relation to reg.1.15B(3)(b) of the Regulations, which was not an issue pressed in the application before the Court, but nonetheless I did also consider that aspect as the applicant is unrepresented today.

16. No jurisdictional error is revealed in the Tribunal's decision, and the application before the Court is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date: 10 August 2007