Hossain v Minister for Immigration
[2010] FMCA 436
•10 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 436 |
| MIGRATION – MRT decision – skilled independent overseas student visa – points for English language skills – discretion to waive IELTS – applicant unsuccessful in IELTS over many years – Tribunal did not fail to consider a legally relevant matter – no obligation to warn before refusing request to waive IELTS – application dismissed. |
| Migration Act 1958 (Cth), ss.348, 360(1) Migration Regulations 1994 (Cth), reg.2.26A(5), Sch.2 cll.880.222, 880.223, Sch.6A Pt.3 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hadiuzzaman v Minister for Immigration & Citizenship [2008] FCA 1015, (2008) 102 ALD 628 Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | MOHAMMED ARIF HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 102 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 10 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 102 of 2010
| MOHAMMED ARIF HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Hossain is a national of Bangladesh who came to Australia in 2003 to engage in further tertiary studies. He completed these in July 2005, after gaining a Graduate Diploma of Information Systems Professional at the Central Queensland University, and then completing a Master of Information Systems at the same university.
On about 31 August 2005 a solicitor, Mr Bitel, lodged an application on his behalf for a subclass 880 permanent residence visa, which is available for “skilled independent overseas students”. A covering submission from Mr Bitel addressed all of the time of lodgement and time of application criteria. It is only necessary for me to refer to the parts of his visa application and decision‑making upon it, which addressed his English language proficiency.
A decision to refuse the visa application was last made by a delegate on 18 June 2008, and was affirmed by the Tribunal on 23 December 2009. I am now asked to set aside the Tribunal’s decision, and remit the matter for further consideration.
The critical issue concerned whether Mr Hossain’s level of English proficiency would achieve 20 points rather than 15 points, for the purposes of a ‘time of decision’ criterion in reg.880.222 that:
880.222The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.
It is unnecessary to identify the legislation pathway by which this ‘points’ test arose. In relation to language skill, the available points were found in Pt.3 of Sch.6A to the Migration Regulations 1994 (Cth). At the relevant times, it provided:
Part 3 Language skill qualifications
| Column 1 Item | Column 2 Qualification | Column 3 Number of points |
| 6A31 | The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in a test conducted: | 20 |
| (a) not more than 12 months before the day on which the application was made; or | ||
| (b) during processing of the application | ||
| 6A32 | The applicant provides evidence of having passed the Occupational English Test: | 20 |
| (a) not more than 12 months before the day on which the application was lodged; or | ||
| (b) during processing of the application | ||
| 6A33 | The applicant provides evidence of having achieved an IELTS test score of at least 5 on each of the 4 test components of speaking, reading, writing and listening in a test conducted: | 15 |
| (a) not more than 12 months before the day on which the application was made; or | ||
| (b) during processing of the application |
This part of the schedule was subject to adjustment under reg.2.26A(5):
(5)The Minister may determine that the applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A, if the Minister determines that it is not reasonably practicable, or not necessary, for the applicant to be tested using the IELTS test.
Mr Bitel should be understood to have referred to reg.2.26A(5) in his covering letter to Mr Hossain’s visa application, when he said:
Schedule 2
(a) English language ability
The applicants [sic] requests for a waiver of the IELTS test.
The application for a ‘waiver’ of the IELTS test was explained later in the letter:
3.The applicant claims 20 points for his English Language Ability. We note from PAM3:Schedule 6A/English, para 69 & 70 on the use of the Discretionary Powers and in cases for which IELTS testing is ‘not necessary’.
“holds an award (being a degree, a higher degree, a diploma or trade certificate) from an institution where all instruction has been conducted in English. The duration of full‑time study for this award would normally be at least two years; or
has studied and/or worked in an English‑speaking country for a considerable period.”
The applicant completed a Bachelor’s degree from an Indian University where the medium of instruction is English. He also completed a Master’s degree from an Australian University where the medium of instruction is English. He applies for a wavier for the English test.
Among the documents lodged with the visa application in 2005 was a ‘provisional certificate’ from the University of Madras, which certified that Mr Hossain had qualified for the degree of Bachelor of Science on the basis that:
he having passed the above Degree Examination held
in APR–2001 as follows:
LANGUAGE
:
ARABIC
THIRD
CLASS
ENGLISH
:
THIRD
CLASS
CORE COURSE
:
COMPUTER SCIENCE
SECOND
CLASS
No other evidence as to the manner in which English might have been taught or used as a medium of education at the University of Madras was forwarded to the Department at the time of visa application, nor subsequently in the protracted proceedings before the Department and Tribunal.
Instead, in correspondence which has not been fully reproduced in the Court Book, Mr Bitel and his client sought to present an alternative basis for achieving 20 points for language ability under Sch.6A. This was by way of Mr Hossain sitting for the IELTS tests, and also attempting a ‘NAATI test’, which appears to be ‘the Occupational English test’ for the purposes of item 6A32 in the above table. I need not further address that pathway, since no evidence that Mr Hossain had passed such a test was ever presented to the Department or the Tribunal.
In relation to IELTS tests, on 16 November 2005 Mr Bitel wrote to the Department:
We refer to your letter dated 1 November 2005. We have been instructed to enclose the following documents for your attention.
1.Receipt for the IELTS test to be held on 24 & 26 November 2005.
2.Receipt for the NAATI test (date to be advised).
A further letter was sent on 21 December 2005 enclosing the outcome of the November 2005 test. This showed that Mr Hossain had not achieved results which would have given him either 20 or 15 points. Importantly, he achieved only 4.5 in the component of reading. The outcomes of a NAATI test were not forwarded.
Further time was sought by Mr Bitel before the delegate made a decision. On 20 January 2006, he wrote to the Department:
We refer to our letter of 21 December and subsequent telephone discussion between our Mr Bitel and Ms Deegan. We confirm that our client is currently undertaking an assessment to determine if he suffers from dyslexia. If this is established then he will be seeking the opportunity to re–do the IELTS test on this basis. We will advise you when the report has been obtained.
Another letter was sent on 3 April 2006, which said:
We enclose form 929 and ask you to amend your records accordingly. Our client has been diagnosed with reading disabilities as foreshadowed in previous correspondence and on the basis of this has now registered for a further IELTS test as a person with special needs. We enclose a receipt for this and will advise the result of the test when it has been received.
Should there be any queries please advise.
These requests for further time were successful. However, by June 2007, it seems that the delegate had reached a position where he felt a decision needed to be made. A decision was made on 27 June 2007, which refused the visa on the ground that Mr Hossain had not presented evidence of a basic level of English test proficiency sufficient to achieve ‘vocational English’, which was required under cl.880.223, as well as to achieve 15 points under the points test applied by cl.880.222.
Mr Hossain appealed to the Tribunal, assisted by Mr Bitel. During the period that the matter was pending before the Tribunal, he did achieve vocational English in a test conducted on 29 March 2008. These results caused the Tribunal, in a decision on 17 April 2008, to remit the matter for further consideration by a delegate. It did so because, even with the vocational English result, Mr Hossain might still have been unable to achieve sufficient points to satisfy cl.880.222.
The Tribunal’s 2008 decision referred in its narration of the background, to Mr Bitel’s reference in the 2005 submission with the visa application to a ‘waiver’ of testing using the IELTS test, but it did not further address that matter. There is no evidence that at any time subsequent to visa application, Mr Hossain had asked the delegate or the Tribunal to address that power, and the pursuit of a series of IELTS tests suggests that this was no longer sought. However, there is no evidence showing an express withdrawal of the 2005 request for the exercise of the ‘waiver’ power under reg.2.26A(5).
After the remitter, a second delegate made a decision on 18 June 2008, to refuse the visa application again. He awarded 15 points for English Language Ability, based on Mr Hossain’s IELTS test result achieved in March 2008. He gave Mr Hossain a total of 110 points under all the items in Sch.6A. This was 10 points below the 120 points needed to achieve either the gazetted pool level or the pass level, and required the refusal of the visa application.
Mr Hossain then appealed, still assisted by Mr Bitel. Again his efforts were directed at obtaining more time to achieve better results in further IELTS tests, hoping to gain 20 points for English language skills. He also sought to improve his points tally by lodging security for $100,000, to achieve 5 bonus points for capital investment.
The second application to the Tribunal was made on 16 July 2008. On 8 January 2009, Mr Bitel wrote to the Tribunal:
We advise the applicant returned to Australia on 9 November. He is sitting for the IELTS test on 17 January. We will advise the outcome of the test when received.
When invited to provide the results of that test, he wrote to the Tribunal on 27 May 2009:
We refer to the Tribunal’s letter of 6 May and enclose the result of the applicant’s test on 17 January. We also advise the applicant has registered for a further test on 26 September and enclose a certified copy of the booking. The applicant is also attempting to register for an earlier test. He is also engaged in a private coaching course to enable him to achieve the required IELTS score. We request the Tribunal to defer taking a decision on the application until the result of the next test has been published. If the Tribunal is not agreeable to this request then the applicant would request a hearing.
We await the Tribunal’s advice.
The enclosed results show that Mr Hossain’s reading ability had been assessed again at 4.5, thereby making him unable to achieve even 15 points for language ability under Sch.6A.
The Tribunal then invited Mr Hossain to a hearing, which was held on 21 August 2009. He attended the hearing with Mr Bitel, and a transcript is in evidence before me. Several documents were tendered at the hearing, including the outcome of a further IELTS test conducted on 11 July 2009, in which Mr Hossain had achieved 5 in reading and writing. He therefore achieved 15 points under item 6A33 but had not yet achieved the required 20 points.
Reports were also tendered from a registered psychologist and an education expert. The psychologist’s report dated 23 January 2005 confirmed that Mr Hossain’s “reading fluency and comprehension are seriously delayed”. The education expert confirmed in a report dated 22 June 2009, that he had been retained by Mr Hossain in May 2009 “to privately coach him. I have worked with Mr Md Arif Hossain in several sessions in preparation for the IELTS test. This coaching programme is ongoing”.
At the hearing, the case put to the Tribunal was, in effect, that it should allow more time so that a ‘special IELTS test’ could be undertaken. As Mr Bitel explained at page 6 of the transcript:
MR BITEL: And it’s my understanding that if he does – if he is able to sit the special test then there is every expectation that he should be able to achieve the required score. Now, I mean, it’s not as if he is seeking a favour – just like a person who has got dyslexia, if you ask them to do an ordinary test they obviously will fail. If they do a special test then they will be successful and it’s in the same category that I’m asking that he be given this opportunity and the first available test that we have been advised by the IELTS people is 21 November.
TRIBUNAL: Okay, so you’re basically asking me to wait until you’ve obtained the results from that test before making my decision.
There was then some discussion about the difficulties Mr Hossain had faced in past IELTS tests, and it was suggested that the extra 30 minutes given in ‘special tests’ was expected to be sufficient, with the benefit of his coaching, to allow him to pass yet a further test appointed for November 2009.
Later in the hearing the Tribunal asked about his attempts at the NAATI test, and Mr Hossain told the Tribunal: “I did not finish it properly for that reason, probably, that dyslexia”.
There was then the following exchange at page 9 of the transcript:
TRIBUNAL: And your degree in India, that was in English, was it?
MR HOSSAIN: It was in English, yes.
TRIBUNAL: All right. Now in terms of the other points, we will just quickly go through them and make sure you don’t dispute those. So you were given 60 points for your skills – skilled qualifications, 30 points for your age – being under 30 years of age, and zero for employment, no spouse, five for Australian education. You’re not claiming occupation in demand, skill targeting field – well, your occupation is not on that list, so – and nothing for regional – studying in a regional area or low population area. All right. Look I’m prepared – you know, given all the efforts that you are going to, to try and improve your score – I’m prepared to wait until you do this testing. I mean, see how, obviously, in the test in September, but I’m prepared to wait until – if that’s not successful then there is the test in November. But after that, I really – I will need to make a decision. So I’m not prepared to wait beyond the testing November. All right.
MR HOSSAIN: Yes, I understand. I understand that.
The procedure whereby the Tribunal would discover the results of the November test was discussed. Neither Mr Hossain nor his solicitor disputed the suggestion of the Tribunal member that a favourable decision in his case would turn upon the outcome of that test.
Four months after the hearing, Mr Bitel wrote to the Tribunal on 15 December 2009:
We refer to the abovementioned and enclose copy of our client’s most recent IELTS test result. We are instructed he has applied for a remark and enclose receipt. He also registered for a further IELTS special disability test on 11 & 13 February 2010.
We request the Tribunal not to make a decision until the outcome of his review request or the next test result is published.
If the Tribunal will not agree to this request, please list the matter for further hearing.
We thank you for your assistance in this matter.
The accompanying test results from 21 November 2009 showed that Mr Hossain had achieved 5.5 in listening and reading, 6.5 in writing and 7 in speaking. His failure to achieve 6 in all subjects, meant that he still was unable to achieve the necessary extra 5 points to gain 20 points for language ability under Sch.6A.
The Tribunal then proceeded to make a decision on 23 December 2009, which affirmed the second delegate’s decision to refuse the visa application. In its statement of reasons, it explained why it had refused Mr Bitel’s request for a further hearing or for more time for further tests. That part of its decision is not under challenge in the present proceedings.
Nor, apart from the Tribunal’s consideration of Pt.3 of Sch.6A, is any challenge made to its reasons for finding that Mr Hossain had not achieved the gazetted pool or pass marks, and had not achieved the qualifying score required for the purposes of cl.880.222.
The present application for review seeks to identify jurisdictional error in relation to the Tribunal’s consideration of the power in reg.2.26A(5). Its discussion about this power to ‘waive’ the need for an applicant to be “tested using the IELTS test” was:
42.Based on the results of the IELTS tests the applicant undertook during the processing of the application, the Tribunal finds that the applicant has scored at least 5 for each of the 4 IELTS test components. The Tribunal therefore finds that the applicant is entitled to 15 points for Part 3 in accordance with item 6A31 [sic: 6A33] of Schedule 6A.
43.The Tribunal finds that the applicant is not entitled to 20 points under items 6A31 or 6A32 as he did not achieve an IELTS test score of at least 6 for each of the four test components and he has not provided evidence of having passed the Occupational English Test.
44.Despite this, under subregulation 2.26A(5), the Tribunal 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 Tribunal determines that it is not reasonably practicable, or not necessary, for the applicant to be tested using the IELTS test.
45.However, in Hadiuzzaman v MIAC [2008] FCA 1015 (4 July 2008), Ryan J considered the situation where an applicant had undertaken several IELTS tests, but claimed that it was not reasonably practicable or not necessary to be tested for the award of the highest points available in Part 3. His Honour held that it was open for the Tribunal to have regard to the results of tests previously undertaken, in the exercise of the discretion contained in r.2.26A(5). It would have been artificial for the Tribunal to ignore the fact that those tests were undertaken unsuccessfully when considering whether to exercise a discretion in favour of the applicant and decide that testing was not necessary or practicable.
46.The Tribunal has taken into account the applicant’s circumstances of having resided and studied in Australia. The Tribunal has also taken into account the evidence of the 5 IELTS tests previously undertaken by the applicant. The Tribunal considers in the circumstances that it is reasonably practicable and necessary for the applicant to be tested using IELTS.
47.Accordingly, the Tribunal finds on the basis of the applicant’s IELTS test scores that the applicant is entitled to 15 points for Part 3 in accordance with item 6A33 of Schedule 6A.
Two grounds of review were argued before me today by reference to a further amended application filed at the hearing. The grounds are:
1.The Migration Review Tribunal failed to review the delegate’s decision as required by section 348 of the Migration Act.
Particulars
Failure to consider the claims made on behalf of the applicant as to why it should be found that an IELTS test was not necessary in his case.
2.The Migration Review Tribunal breached s 360(1) Migration Act in failing to give the applicant an opportunity to present evidence and present arguments as to whether the Tribunal should exercise its discretion pursuant to Migration Regulation 2.26A(5).
As explained in written and oral submissions, the first ground argued that a jurisdictional error had occurred of the type described by Allsop J in Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 at [42]. That case concerned a refugee matter, in which his Honour concluded that one element in a refugee claim had not been addressed by the Refugee Review Tribunal. His Honour’s discussion drew the distinction between a failure “merely to attend to evidence, even probative evidence, and by such route commit a factual error” and a “failure to deal with one part of the claim for asylum” so that it “failed to address and deal with how the claim was put to it”.
Jurisdictional error of the type identified by his Honour was further explained by a Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR, and is well understood in the context of refugee matters. A clear distinction has been drawn between a failure to refer to pieces of evidence supporting a claim, and a failure to address a refugee claim which jurisdiction required a finding to be made upon (see recently: Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [34], and Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [28]).
In the present case, counsel for Mr Hossain accepted that the Tribunal had not failed to address the original request made by Mr Bitel in the covering letter to the protection visa application that there should be “a waiver of the IELTS test”. Plainly it did address whether it should exercise the power of ‘waiver’ under reg.2.26A(5). It might have been open to the Tribunal to have concluded from the previous exchanges between Mr Bitel and the Department and the Tribunal over many years, that the 2005 request for exercise of the ‘waiver power’ was no longer pressed. However, the Tribunal clearly considered that it should address that issue and did so, and I would not hold that as a matter of law it was not obliged to.
Counsel contended that a Htun error occurred in paragraph 46 of the Tribunal’s above reasoning, and was evidenced by the failure of the Tribunal to discuss the asserted fact that Mr Hossain’s study at the University of Madras had used English as a ‘medium of instruction’. As I have noted above, the only evidence of this was Mr Bitel’s assertion in his 2005 visa letter, the enclosed certificate from that university, and the statement by Mr Hossain at the hearing extracted above.
I was invited to infer that this evidence had been overlooked by the Tribunal, and that it totally failed to take it into account when considering the application of reg.2.26A(5). It was then submitted that this failure amounted to jurisdictional error.
I have difficulty drawing both of these conclusions.
On one view of the regulation, the occasion for considering under reg.2.26A(5) whether a visa applicant should be “tested using the IELTS test”, and for deciding that this would not be “necessary”, would cease to be available once an applicant in fact presented IELTS test results. However, the Minister does not contend that as a matter of law the ‘waiver’ power is so confined, and this has not previously been held in a Court.
In Hadiuzzaman v Minister for Immigration & Citizenship [2008] FCA 1015, (2008) 102 ALD 628 cited by the Tribunal, Ryan J did not suggest that interpretation, although it was not necessary for him to do more than reject the applicant’s contention that it was irrelevant to the exercise of the power, to consider evidence of IELTS tests undertaken by the applicant. The relevant part of his Honour’s reasoning was:
(b)Was there jurisdictional error by the Tribunal in declining to find that testing of the appellant’s proficiency in English was not necessary?
38Schedule 6A of the Regulations was reproduced by the Tribunal in its reasons as set out at [6] above. That Schedule makes clear that attainment of 20 points or 15 points for the “language factor” is dependent on an applicant providing evidence of the achievement of the specified minimum IELTS test scores. It is true that reg 2.26A(5) of the Regulations stipulates another basis on which an applicant may be determined to be proficient in English, but that depends on a determination by the Minister that “it is not reasonably practicable or not necessary for the applicant to be tested using the IELTS test.” In the present case, as described at [36] above, the appellant himself “provided” evidence of having achieved certain IELTS test scores. It would, therefore, have been perverse for the Minister (or the Tribunal standing in the Minister’s shoes), to have determined that it was not reasonably practicable for the appellant to be tested using the IELTS test. The Minister’s discretion to determine that it was “not necessary” for the appellant to be tested using the IELTS test was unfettered by anything to be found within the four corners of reg 2.26A(5). The matters available to be taken into account in the exercise of that discretion must, therefore, “be determined by implication from the subject‑matter, scope and purpose of the regulation conferring the discretion”; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at 39‑40. In the present case, as reg 2.26A(5) expressly refers to the IELTS test, it cannot be said that the fact that an appellant has undertaken the test and attained a score specified in Sch 6A made applicable by reg 2.26A(3) is irrelevant to the exercise of the discretion conferred by reg 2.26A(5).
39The Tribunal did have regard to the results of the IELTS tests when it concluded, at [35] of its reasons, that “the Tribunal is not satisfied that the testing is not necessary.” The test results were a matter open to be taken into account in coming to that conclusion. Indeed, as I understand it, the appellant and his advisers have not, at any stage, pointed unequivocally to any other matter as a basis on which the Tribunal could have concluded that testing was not necessary to demonstrate the appellant’s proficiency in English. It follows that there was no jurisdictional error in the Tribunal’s declining to conclude that testing was not necessary. The second ground of appeal therefore cannot avail the appellant.
(emphasis in original)
Counsel for Mr Hossain eschewed an interpretation of the regulation which, in effect, would make it an unconfined excepting power or a broad discretion to dispense from use of the IELTS test, which was available in circumstances where there was no evidence pointing to an ability to achieve comparable levels of English proficiency. In my opinion, that concession was correctly made. The object of the waiving discretion is to allow a decision‑maker to be satisfied, other than by IELTS results, that an applicant has same language proficiencies as are reflected by the IELTS results described in Sch.6A. Only with satisfaction that comparable evidence had been or would be offered, could a decision‑maker conclude that IELTS testing was not ‘necessary’ even though it was manifestly ‘practicable’.
Once that construction of the objects of the regulation is accepted, it becomes very difficult to conceive how a Tribunal, as a matter of fact, could arrive at satisfaction that the reg.2.26A(5) power could appropriately be exercised in circumstances such as the present. They included Mr Hossain’s history described by the Tribunal:
38.The Tribunal has carefully considered the applicant’s request. The Tribunal has had regard to the fact that the applicant has sat 5 IELTS tests since the application was lodged on 31 August 2005. He has not achieved the required score in any of those tests. The applicant claims he has a reading disability and has been receiving private coaching since May 2009. He has already sat two tests where he was granted extra time due to his disability. He has sat at least two tests since he started private coaching.
39.The applicant has been on notice since the delegate’s decision was made in June 2008, and at least since the Tribunal wrote to him on 6 May 2009, that the results of his IELTS test was an issue in the review. Importantly, at the hearing on 21 August 2009, the Tribunal made it clear to the applicant that it would not grant him extra time to sit another test after the IELTS test in November 2009. The Tribunal told the applicant that it would proceed to make [a] decision once he provided the November test results by 19 December 2009. The applicant was therefore on notice that the Tribunal would proceed to make a decision once he submitted the results of the IELTS test he sat in November 2009.
This history must have informed the Tribunal’s conclusion in paragraph 45, that: “it would have been artificial for the Tribunal to ignore the fact that those tests were undertaken unsuccessfully”.
In my opinion, the history of Mr Hossain’s lack of success in IELTS tests over many years explains why the Tribunal might not have felt it necessary to engage in a detailed examination of other evidence of his exposure to the English language. The Tribunal referred shortly to his exposure during his residence in Australia, when noting “the applicant’s circumstances of having resided and studied in Australia” over a lengthy period as one of the circumstances it had taken into account.
His exposure to English prior to coming to Australia could have been of even less significance, and I am not persuaded that the Tribunal’s omission to refer to Mr Hossain’s having studied at the University of Madras using the English language in at least one of his courses shows a failure to take that fact into account. The Tribunal had touched upon his Indian education during the hearing, but no additional evidence was presented to it. The skimpy evidence of his Indian education in English was of such dubious relevance and weight, that I would not infer that it was overlooked entirely. I therefore would not draw the inference allowed by Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]‑[35], [68]‑[69], [75] that it was ignored.
When assessing the Tribunal’s discussion of reg.2.26A(5), it is also significant that any claim to waive IELTS testing based upon Mr Hossain’s Indian education had not been given any mention, let alone emphasis, over the many years since August 2005. Moreover, neither he nor his solicitor at the hearing before the Tribunal had demurred from the Tribunal’s view of the case, as essentially turning upon whether he could achieve better results in further IELTS tests.
In all the circumstances, I would not draw the factual conclusions that underlie Ground 1.
I also do not accept that the asserted fact that Mr Hossain had studied in India using the English language was itself a relevant consideration which the Tribunal was bound at law to take into account. I consider that it was, at best, a ‘piece of evidence’ relevant to the Tribunal’s consideration of the issue of whether to ‘waive’ the IELTS test under reg.2.26A(5). As the Full Court has recently confirmed in Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51:
28However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
For all of these reasons, I do not accept the arguments presented in support of Ground 1.
Ground 2 was presented by counsel for Mr Hossain with reference to the principle of procedural fairness formulated in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which was confirmed in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152. This requires the Tribunal to ensure that an applicant is on notice that it might decide the case by reference to a substantial legal or factual issue “which is not apparent from its nature or the terms of the statute under which it is made” or “would not obviously be open on the known material”.
I had difficulty with this ground, because the ‘issue’, which Mr Hossain complained he had been denied a reasonable opportunity to address, was the very issue which Mr Bitel had presented in his August 2005 covering letter to the visa application, that is, that the decision‑maker should apply the discretion in reg.2.26A(5).
However, in effect, counsel’s argument was that the long lapse of time, and the very absence from Mr Bitel and Mr Hossain’s exchanges with the Department and the Tribunal over those years of any reference to his having a case for consideration under that regulation, meant that the Tribunal should not have addressed the regulation without reminding him that it was an issue which the Tribunal intended to address.
In my opinion, this argument pushes SZBEL beyond the recognised limits of principle. As the High Court said in Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [51], the principle in SZBEL does not require a Tribunal to invite additional evidence about an ‘extant issue’. The same proposition, in my opinion, applies to inviting further submissions about an issue which the applicant had himself raised in the visa application under review. Assessing the circumstances through the prism of procedural fairness, I can identify no unfairness attending the Tribunal’s consideration of the discretion under reg.2.26A(5), without reminding the applicant and his solicitor that it would be doing so. In my opinion, they had ample opportunity to make submissions and put forward further evidence addressing that issue, including his exposure to English language in India before coming to Australia and in Australia subsequently, if indeed this remained part of his case.
I am not persuaded that jurisdictional error coming within the second ground of review has been established.
I must therefore dismiss the application because it has not established jurisdictional error affecting the Tribunal’s decision.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 2 July 2010
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