Hossain v Minister for Immigration

[2015] FCCA 413

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSAIN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 413

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal exercised discretion unreasonably – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth) reg.1.15C, Schedule 2

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh  [2014] FCAFC 1; (2014) 308 ALR 280

Applicant: GAZI AZMOL HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 80 of 2014

Judgment of: Judge Nicholls

Hearing date: 11 August 2014

Date of Last Submission: 11 August 2014

Delivered at: Sydney

Delivered on: 27 February 2015

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 13 January 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 80 of 2014

GAZI AZMOL HOSSAIN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 January 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 17 December 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Skilled (Residence) (Class VB) visa (“the visa”) to the applicant.

2. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister. The following is relevant background derived from those documents.

Background

1. The applicant is a citizen of Bangladesh. He applied for the visa on 20 June 2010 (CB 1 to CB 29). He was assisted by a registered migration agent in this application.

2. Amongst other matters, to be granted the visa the applicant was required to meet the requirements of cl.885.213 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). That is, he was required to show that he had “competent English”. That term is defined at reg.1.15C of the Regulations. For current purposes, the applicant was required to show that he achieved certain scores in an English language test (here, relevantly, an IELTS test).

3. The delegate found that while the applicant had submitted five “IELTS” test booking receipts, nothing further had been submitted by the applicant. In the absence of any evidence that he had achieved the requisite scores in any of these tests, or indeed any other test, the delegate found the applicant did not have competent English and refused the grant of the visa on 13 September 2013.

The Tribunal

1. The applicant applied for review to the Tribunal on 30 September 2013 (CB 205 to CB 216). The Tribunal wrote to the applicant by letter dated 14 November 2013 (CB 226 to CB 227). Two things are of relevant note.

2. First, the letter invited the applicant to a hearing. Second, the letter also stated (CB 226 to CB 227):

   “The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa. If you have booked an IELTS test or an Occupational English Test scheduled to take place before the hearing date, or soon after, please send evidence of the booking.”

3. On 21 November 2013 the applicant sent to the Tribunal a “booking confirmation slip” for an English language test (CB 235 to CB 237). What is of note from this document, is that the test was set for 15 February 2014. The applicant was required to complete registration for the test by 7 February 2014.

4. The applicant appeared at a hearing before the Tribunal on 13 December 2013 (CB 238 to CB 239). The Tribunal affirmed the delegate’s decision. The issue determinative of the review was that there was no evidence before it that the applicant had competent English.

Application to the Court:

1. The sole ground of the application is in the following terms:

   “Has not given time was asked for”

Before the Court

1. At the hearing before the Court of this matter the applicant appeared in person. The applicant ultimately explained that his complaint was that the Tribunal refused to give him the time necessary to sit for his English test.

2. It is the case that the Court made orders at the first Court date in this matter, on 19 February 2014, which gave the applicant the opportunity to file, amongst other things, any evidence by way of affidavit in support of the ground of his application. I note, further, that at the first Court date, I asked the applicant to consider obtaining legal advice. The intervening period was a reasonable time in which the applicant could have pursued this, if he so chose.

3. At the hearing, the applicant stated that he had brought an “IELTS test report” or “reports”. He explained that he had not been able to achieve satisfactory test results because, although he achieved the requisite pass score in some of the different parts of the IELTS test, he was unable to pass each, and all, of the different parts of the test, at any one time.

4. As I explained to the applicant, the Court was unable to grant him the visa. The “test reports” were plainly directed to that matter, not whether the Tribunal’s decision revealed some error at law. The applicant did not tender these documents to the Court, he merely said that he had them.

5. In any event, although not articulated as such, the applicant’s complaint may be understood as being that the Tribunal fell into jurisdictional error because it unreasonably failed to exercise its discretion to adjourn the review, to enable him to sit for the IELTS test in February 2014.

Consideration

1. There is no dispute that the Tribunal has the power to adjourn the review. In considering, and exercising, that discretion the Tribunal must act reasonably (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [89] per Gageler J). As the High Court found in Li, the Tribunal’s decision on any request to adjourn the review must be reached by reasoning which is intelligible and reasonable. The reasoning must be directed to, and relate intelligibly to, the purposes of the power it is purporting to exercise (Li at [25] per French CJ).

2. In further explanation, the Minister has referred the Court to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”) for the proposition that to determine whether there has been a legally unreasonable power, the analysis is “invariably fact dependent”, and will require “careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence” (Singh at [42]).

3. The Minister’s submissions pressed three other elements relevant to the current disposition of the question raised by the application.

4. First, that, with reference to Singh, it is to the reasons given by the Tribunal that the Court should look to, in order to understand why the power was exercised in the way that it was (Singh at [47]).

5. Second, that the Full Court in Singh rejected any attempt to seek justification of the Tribunal’s decision by having regard to matters not referred to in the Tribunal’s reasons. That is, for example, that the Court separately seeks such justification from the materials before the Tribunal. However, the Minister submitted there is nothing in the reasoning of Singh which prevents proper, and well-founded, inferences being drawn from the Tribunal’s reasons.

6. I respectfully understand the authorities to require the Court’s consideration to focus on the Tribunal’s actual reasoning. While I agree with the Minister’s submissions that the Full Court in Singh did not express any prohibition on the Court drawing well-founded inferences from the Tribunal’s reasoning, I note the distinction between drawing such inferences, and the Court providing its own reasoning to the circumstances presented, to explain, or to substitute for gaps in the Tribunal’s chain of reasoning. Any such gaps could well form the basis of a finding of unreasonableness, as explained by the authorities.

7. Third, to take relevantly into account what was said by Gageler J in Li (at [113]):

   “Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.”

8. The Tribunal’s relevant reasoning is set out at [11] – [12] (at CB 246):

   “[11] At the hearing, the applicant stated that he had no evidence of competent English. He requested that he be given further time to do an IELTS tests on 7 February 2014. The Tribunal noted that visa application was lodged on 29 June 2010 and the applicant had had 3 ½ years in which to obtain evidence of competent English and had not done so. The Tribunal is of the view that this is a more than reasonable amount of time.

   [12] The Tribunal also wrote to the applicant on 14 November 2013 and noted that he had not provided evidence that he met the English language proficiency requirement. The Tribunal requested that, if he had booked an IELTS test or an Occupational English Test scheduled to take place before the hearing date or soon after, he provide evidence of that booking. The applicant provided the Tribunal with evidence that he had booked an IELTS test on 7 February 2013 [in context this was a mistaken reference to “2014”]. The Tribunal is of the view that this is not before the hearing date or soon after. The Tribunal was not prepared to give the applicant any further time as it is satisfied that the applicant has had a more than reasonable amount of time in which to obtain and provide evidence in relation to a time of application criterion. In the circumstances, the Tribunal has decided to proceed to make a decision on the review.”  

9. Two things must be said. First, to the extent that the Tribunal’s reasoning refers to what the applicant said at the hearing before it, the applicant has not provided evidence, for example, of a transcript of the Tribunal hearing, despite opportunity to do so, to contradict the Tribunal’s report. The Court, therefore, can only proceed on the basis of the evidence before it, in regard to the Tribunal hearing.

10. Second, the Tribunal refers in both [11] and [12] (at CB 246), to the date of the IELTS test being 7 February 2014. As the Minister notes in his submissions, the copy of the “booking notice” provided to the Tribunal by the applicant (see CB 235 to CB 237), shows that the date of the test was given as 15 February 2014. The date of 7 February 2014, presented in bold type, was said to be the date by which the applicant was required to complete his registration for the test.

11. The Minister submitted that, although the Tribunal incorrectly identified the date of the test as being 7 February 2014, nothing turned on this error, as the question of whether the Tribunal’s actions were unreasonable is not materially affected by whether the date of the test was 7, or 15, February 2014.

12. There is plainly a discrepancy between the date of the test, as set out in the notice, and the date as referred to by the Tribunal in its decision record. It is here, however, where the absence of any other evidence as to what may otherwise have occurred at the hearing, assumes some particular importance.

13. At [11] (at CB 246) the Tribunal reports that at the hearing the applicant “…requested that he be given further time to do an IELTS test on 7 February 2014”. There is no evidence before the Court to contradict the Tribunal’s report that that is what the applicant actually said at the hearing, notwithstanding what may otherwise have been written in the notice. That is, that the applicant may have been mistaken as to the relevant date, and the Tribunal reported, and relied, on the applicant’s “mistake” in this regard.

14. It may be that whether the applicant was mistaken in what he told the Tribunal, or not, is of lesser significance where the applicant provided the actual notice to the Tribunal, with the actual date of the test. The opportunity was there for the Tribunal to identify the “correct” date had it properly read the notice.

15. However, I agree with the Minister that nothing turns on this “error” (irrespective of how it was made), in relation to the question of whether the Tribunal’s reasoning, in not adjourning the review, was reasonable.

16. The date of the Tribunal’s consideration (the making of its decision on the review) was 17 December 2013. The Tribunal hearing was on 13 December 2013. The Tribunal’s reasoning was focussed on the applicant providing evidence of having booked an IELTS test before the hearing, or evidence of a booking “soon after”, as he had been previously notified by letter dated 14 November 2013. Neither 7, nor 15, February 2014 can be said to be “soon after”. However, even if that were not the case, the difference in the timing of the test was one week at a time approximately three months after the applicant was first put on notice of the requirement to provide evidence of a booking.

17. The elements in the Tribunal’s reasoning, refusing the applicant further time are as follows:

    1)The applicant gave evidence that he had no evidence of competent English.

    2)On 13 December 2013, at the hearing, he requested further time to do an IELTS test scheduled for 7 February 2014 [or 15 February 2014].

    3)The applicant had lodged his visa application on 29 June 2010 which meant that the applicant had had three and a half years to obtain evidence of competent English.

    4)He had not done so in that time.

    5)The Tribunal wrote to the applicant on 14 November 2013 putting the applicant on notice that he had not provided relevant evidence.

    6)The Tribunal referred to its letter of 14 November 2013, where it requested the applicant to provide evidence that he had booked a date for a relevant test before the hearing (13 December 2013) or “soon after”.

    7)The Tribunal took the view that a test booked for “7 February” 2014 was not before the hearing, or “soon after”.

    8)The Tribunal found that the applicant had had more than a reasonable amount of time in which to obtain, and provide, the relevant evidence.

    9)In these circumstances the Tribunal was not prepared to give him more time.

18. In my view, the Tribunal’s refusal, having regard to the Tribunal’s reasoning, was not unreasonable.

19. First, the Tribunal turned its mind to the applicant’s request. This is not a case where the Tribunal overlooked the request, refused it with no reasons given, acted in an arbitrary or capricious way (see further below), or did not expose its reasoning process in its decision record.

20. Second, while I have set out above the various elements of the Tribunal’s relevant reasoning, it is the relationship between those elements, the emphasis on, or primacy of, some of the elements over others, which on, at least a fair reading, provide a proper understanding of the Tribunal’s reasoning, such that it can be appropriately assessed as to its reasonableness.

21. The Minister submitted that it is proper to infer that the Tribunal’s difficulty with the applicant’s request for an extension of time was the apparent repeated failure of the applicant to take any steps to address the matter of providing evidence of competent English. Further, that this formed the basis of the Tribunal’s reasoning to refuse to adjourn the review.

22. I agree with the latter proposition as to the lack of evidence of competent English (distinguished from the matter of the apparent “repeated failure”). However. I would arrive at that conclusion in a somewhat different way to the Minister. The following matters require attention.

23. One, without delving deeply into the semantic differences between “inference” (as the Minister used in submissions) and “implication”, the following may be said. To draw an inference places the onus on the reader to form a conclusion, either by induction, or even deduction, from premises, relevantly, in the Tribunal’s reasoning.

24. This runs the risk of the Court becoming involved in the Tribunal’s reasoning process. This would transgress against what is made plain in the authorities. That is, what is critical, is the Tribunal’s reasoning as to why the discretion was not exercised to adjourn the review.

25. By contrast, matters which are said to be implicit in the Tribunal’s reasoning retain that necessary focus on that reasoning. That is, that matters that the Tribunal did not expressly refer to, but were necessarily involved in, what is expressed, or necessarily, or naturally, intended, are part of the Tribunal’s reasoning process.

26. Two, even if the concept of “imply” were to be substituted for the Minister’s use of the word “infer”, in his submissions, I do not agree that the Tribunal’s difficulty was the apparent repeated failure of the applicant to take “any steps” to address the matter of providing evidence as to competent English.

27. Such a proposition would not have been available to the Tribunal on the evidence before it. The applicant had taken some “steps” to address the matter of providing evidence as to competent English. That is, he had provided evidence of six notices (including the February 2014 notice) of booking English language tests. These were plainly “steps” in the process of providing the relevant evidence.

28. In my view, the Tribunal’s reasoning was not focussed on the steps taken, or not taken, by the applicant antecedent to the provision of any evidence of competent English. Rather, the Tribunal’s reasoning was simply as follows. The applicant had had three and a half years to actually provide evidence of competent English. In all that time, and despite the great length of time, he had not done so. The Tribunal described this period as “a more than reasonable amount of time” for him to have done so.

29. Within that context, the Tribunal noted that it had written to the applicant on 14 November 2013. The thrust of the Tribunal’s letter, in relation to the matter of English language proficiency, was, as the Tribunal expressly stated in its reasoning in the decision record, to put the applicant on notice that he had not provided evidence that he met the English language proficiency requirement. In context, this plainly meant he had not done so implicitly in the time that had been available to him to do so (three and a half years).

30. The Tribunal further reasoned that in relation to the applicant’s request for further time to do an IELTS test on “7 February 2014”, it was not prepared to give him such time, in circumstances where had he already had more than a reasonable amount of time to provide evidence of competent English, by way of sitting for the appropriate test.

31. At least implicit, if not explicit, in this reasoning was that, in the circumstances, it would have been reasonable for the Tribunal to give the applicant the opportunity (as at 14 November 2013) to sit for a test scheduled to take place “before the hearing date” (13 December 2013) “or soon after”.

32. It did give him that opportunity. Instead of taking that opportunity, the applicant asked for even more time, a further period of two months from the date of the hearing, and about three months from the date of the Tribunal’s letter.

33. In my view the Tribunal’s reasoning in refusing to adjourn the review was reasonable. Ultimately, as the Minister submits, whatever the Tribunal’s statutory duty in the conduct of the review, it was incumbent on the applicant to make out his case before the Tribunal. Only he could provide the relevant material that would have allowed the Tribunal to make a decision in his favour, in relation to the grant of the visa.

1. The characterisation of the Tribunal’s refusal as reasonable can be illustrated when the factual circumstances before the Tribunal are contrasted with the factual circumstances in both Li and Singh. Noting that in both those cases, the respective Court had found that the Tribunal in each had acted unreasonably.

2. The circumstances in both those cases were that the respective applicants had taken the relevant tests. What was asked of the respective Tribunals was further time to establish relevant consequences flowing from each test.

3. In Li, for example, while the applicant had failed the test (a test which, unlike the present case, had already been taken) further time was required in circumstances where evidence had been presented that explained why the test had miscarried. In Singh, the applicant had failed the test but sought extra time to obtain the result of a re-marking of the same test, in circumstances where he had failed only one element of the test.

4. The contrast with the present case is plain. The applicant was not seeking further time to address any outstanding matter consequential on having actually sat for a test which could, or would, be resolved in a relatively short period. In my respectful view this was one of the elements that led Gageler J to note that Li was a “rare case” (at [113]).

5. I should note that in Singh the Full Court said (at [42]) “it is wrong to see Li as creating some kind of factual checklist”. What is set out above is put for the purpose of understanding what was said in Li and Singh, not for the purpose of comparing the factual matrices, with a view to basing the Court’s finding on any such differences. Simply, what is reasonable arises from what the Tribunal reasoned in the circumstances presented.

6. I do not apply any such comparative element in the current case. In short, the Tribunal reasoned that the applicant had had more than a reasonable amount of time to provide evidence of competent English. It was not unreasonable of the Tribunal, in all the circumstances to say that, in effect, “enough was enough” and not exercise its discretion to adjourn the review.

Conclusion

1. The applicant’s “ground” as understood in its “expanded” form does not reveal jurisdictional error on the part of the Tribunal. The applicant makes no complaint about any other aspect of the Tribunal’s decision. The applicant told the Tribunal he had no evidence of competent English. Without such evidence, the visa could not be granted to him. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 27 February 2015