Hossain v Minister for Immigration and Border Protection

[2015] FCA 1292

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration and Border Protection [2015] FCA 1292

Citation:	Hossain v Minister for Immigration and Border Protection [2015] FCA 1292
Appeal from:	Hossain v Minister for Immigration & Anor [2015] FCCA 413
Parties:	GAZI AZMOL HOSSAIN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	NSD 282 of 2015
Judge:	BEACH J
Date of judgment:	18 November 2015
Catchwords:	MIGRATION – judicial review – Migration Review Tribunal – Skilled (Residence) (Class VB) visa – requirement of competent English under Migration Regulations 1994 (Cth) – failure to adjourn – unreasonableness – no jurisdictional error – appeal dismissed
Legislation:	Migration Regulations 1994 (Cth) cl 885.213 of sch 2
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50
Date of hearing:	18 November 2015
Place:	Sydney (delivered in Melbourne)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	32
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr J K Hoyle
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 282 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

GAZI AZMOL HOSSAIN
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BEACH J
DATE OF ORDER:	18 NOVEMBER 2015
WHERE MADE:	SYDNEY (DELIVERED IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the Minister’s costs of and incidental to the appeal and the application for an extension of time within which to appeal, such costs to be fixed in the sum of $5,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 282 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

GAZI AZMOL HOSSAIN
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	BEACH J
DATE:	18 NOVEMBER 2015
PLACE:	SYDNEY (DELIVERED IN MELBOURNE)

REASONS FOR JUDGMENT

1. The appellant has appealed the orders and judgment of Judge Nicholls of the Federal Circuit Court of Australia. 

2. On 27 February 2015, the primary judge dismissed the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).  On 17 December 2013 the Tribunal affirmed the decision of the Minister’s delegate to refuse the grant of a Skilled (Residence) (Class VB) visa (the visa) to the appellant. 

3. On 24 March 2015, the appellant filed an application in this Court seeking an extension of time within which to appeal.  He had been out of time by three days.  The Minister did not object to the extension of time being granted, and accordingly on 3 August 2015 I granted that extension.  The appellant filed a notice of appeal and his appeal was subsequently then heard by me.

4. For the reasons that follow, I have determined to dismiss the appeal.  But before elaborating on those reasons it is appropriate to deal with one preliminary matter.

   Adjournment

5. The appellant has applied for an adjournment of today’s hearing, which application has been opposed by the Minister.

6. The appellant has had two adjournments of this matter.  On 3 August 2015 the matter was adjourned to enable the appellant to file written submissions and because the appellant had not been given adequate notice that his appeal would be heard and determined instanter if the extension of time was granted.  On 25 August 2015 the matter was further adjourned to enable the appellant to visit his sick wife overseas. 

7. Yesterday, in a letter sent to my chambers, the appellant requested a further adjournment on the basis of “homesickness” and a “fever”.  There was no material properly put before me to substantiate the appellant’s incapacity to attend the hearing.  The adjournment application was accordingly refused.  In any event, the appellant has appeared before me this morning and not further pursued that adjournment application.

   Background

8. The appellant is a citizen of Bangladesh. On 29 June 2010, the appellant applied for the visa. The Minister’s delegate refused that application on the basis that the appellant did not have the required competence in English by reference to an appropriate score in an IELTS language test. Accordingly, the delegate found that the appellant had failed to satisfy cl 885.213 of sch 2 to the Migration Regulations 1994 (Cth).

9. On 30 September 2013, the appellant applied to the Tribunal for a review of that decision.  In a letter dated 14 November 2013, the Tribunal invited the appellant to attend a hearing on 13 December 2013.  In that letter the Tribunal noted that the appellant had not presented any evidence regarding his meeting the English language proficiency requirements.  The Tribunal said in the letter that:

   “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.”  

10. On 13 December 2013, the appellant appeared before the Tribunal and a hearing was held.  On 17 December 2013, the Tribunal affirmed the delegate’s decision. 

11. As I have said, the Tribunal in its invitation letter requested that the appellant provide the Tribunal with any evidence that he had booked an applicable English language test that was scheduled to take place “before or soon after the hearing date”.  The appellant provided a copy of a booking confirmation slip to the Tribunal on 21 November 2013.  But the date on which the appellant had booked the test was 15 February 2014, some eight weeks after the hearing date. 

12. The appellant had previously provided evidence to the delegate of booking receipts for an IELTS test on five separate occasions (11 May 2013, 16 May 2013, 25 May 2013, 8 June 2013 and 27 July 2013).  However, no evidence was provided to the delegate or the Tribunal of any test that had been taken by the appellant.  The appellant accepted that there was no such evidence. 

13. The Tribunal found that the appellant had not provided any evidence of competent English.  The appellant had lodged his application for the visa on 29 June 2010 and had had three and a half years in which to obtain such evidence but had not done so.  The Tribunal took the view that this was “more than a reasonable amount of time”.  The appellant, as I said, had provided evidence that he had booked an IELTS test on 7 February 2014.  But according to the Tribunal, this did not constitute a time that was “before the hearing date or soon after” (as identified in the Tribunal’s letter to the appellant dated 14 November 2013).  The Tribunal at [12] of its reasons went on to note that:

    “The Tribunal was not prepared to give the applicant any further time, as it is satisfied that the applicant has had more than [a] 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.”

14. In summary, there was no evidence that the appellant had competent English.  Accordingly the Tribunal affirmed the decision of the delegate.

    Federal Circuit Court

15. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.  The appellant did not challenge the Tribunal’s finding that there was no evidence that the appellant had competent English.  Rather, the sole ground relied on was that the Tribunal failed to exercise its discretion reasonably to grant him further time in which to take an IELTS test.  His Honour found that the decision made by the Tribunal did not disclose any jurisdictional error, let alone of the type identified by the appellant. 

16. His Honour identified the appellant’s claim as being one that the Tribunal had fallen into jurisdictional error because “it unreasonably failed to exercise its discretion to adjourn the review, to enable him to sit for an IELTS test in February 2014” (at [15]). 

17. His Honour noted that in considering the exercise of that discretion the Tribunal had to act reasonably.  His Honour considered the applicable principles at [16] to [23] of his reasons. 

18. His Honour noted two other matters.  First, the appellant had not provided evidence to his Honour as to what was actually said before the Tribunal, despite being given an opportunity to do so.  Second, the Tribunal misidentified the date of the appellant’s proposed test as 7 February 2014 when the date was 15 February 2014.  But his Honour found that nothing turned on that error (at [30] and [31]). 

19. In summary, his Honour found that the Tribunal’s refusal to adjourn the hearing was not unreasonable (see his Honour’s reasons at [31] to [48] and [54]).  Accordingly, his Honour held that no jurisdictional error had been disclosed. 

    Present appeal

20. In the appellant’s draft notice of appeal, the appellant stated that “extendent time was not given to me by both decission to get IELTS score.  I don’t feel I was given judgment by Federal Circuit Court”.  In effect, it is asserted that his Honour erred in finding that the Tribunal did not exercise its discretion unreasonably in refusing to adjourn the review to allow the appellant to get an IELTS score by taking the proposed test in February 2014.  But it must be said that in the draft notice of appeal the precise basis for the asserted error was not identified. 

21. Upon my granting an extension of time within which to appeal, the appellant subsequently filed a notice of appeal, which notice attached a letter setting out the appellant’s grounds of appeal in the following terms:

    “In referred to Court book reason for judgment page 7 paragraph 6, The tribunal referred to its latter of 14 November 2013, where it requested me (applicant) to provide evidence that I had booked a date for a relevant test before the hearing (13 December 2013) or “soon after” to refer to that gave booking receipt which was 7 February 2014 but Tribunal took the view that a test for 7 February 2014 was not before the hearing or soon after however that was Christmas time with work load and I had problem to get booking during that time.

    I meet all criteria to get visa except IELTS but time of application it was not required to submit IELTS with application.  I had no idea what is the time limit to submit test report.

    Tribunal noted that visa application was lodged on 29 June 2010 and the applicant had 3.5 years in which to obtain evidence of competent English and had not done so that Tribunal in of the view that this is a more than reasonable amount of time.  If they could gave such time why not I would get time which had asked for.

    I would ask you to grant me some time at least six months to sit for IELTS.”

22. In my view, his Honour applied the correct principles. 

23. The standard of legal reasonableness applicable to the exercise of a statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general discretionary power is being exercised (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

24. As Li indicates, the exercise of power must be “legal and regular, not arbitrary, vague and fanciful” (at [65] per Hayne, Kiefel and Bell JJ). A lack of legal reasonableness may be concluded from an exercise of power “which lacks an evident and intelligible justification” (at [76]). It may also be concluded from “an obviously disproportionate” response or exercise of power in the particular circumstances (at [74]). Relatedly, French CJ stated that it may also be concluded from “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut … it exceeds what, on any view, is necessary for the purpose it serves” (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an “evident and intelligible justification” or “an obviously disproportionate” exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness.

25. This Court in Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 has emphasised two points. First, it is not appropriate merely to take the facts in Li and address factual similarities or differences (at [41] and [42] per Allsop CJ, Robertson and Mortimer JJ). Li is not some factual checklist against which other factual scenarios are merely to be either analogised or distinguished. In each context in which it is to be assessed “legal unreasonableness is invariably fact dependent” (Singh at [42] and [48]). Whether a particular exercise of power descends into legal unreasonableness requires “careful evaluation” of the evidence in the particular application for judicial review (at [42]). I interpolate at this point that I am satisfied that the primary judge made a careful evaluation of the evidence that had been before the Tribunal, the Tribunal’s conduct and the Tribunal’s reasons. Second, if the Tribunal has given reasons for the relevant exercise of power under challenge, then it is in those reasons “to which a supervising court should look in order to understand why the power was exercised as it was” (at [47]). Again, I am satisfied that the primary judge carefully scrutinised the reasons of the Tribunal to understand why the relevant power was exercised the way that it was. The “intelligible justification” is to be found within the reasons explicitly or implicitly. There is little doubt that on a perusal of the Tribunal’s reasons, which the primary judge undertook, there was such an intelligible justification on the face of those reasons (see [10] to [16] of the Tribunal’s reasons).

26. Finally, applying a standard of legal reasonableness does not involve substituting the court’s view as to how a discretion should be exercised for that of the decision maker (Li at [66]).

27. In my opinion, his Honour applied these principles.

28. First, his Honour rightly noted that the appellant’s case turned on a very narrow factual foundation.  There was no dispute that over a period of three and a half years the appellant had failed to secure evidence of competent English.  There was also no dispute that the Tribunal had identified this in its invitation letter and had invited the appellant to provide evidence that he had taken a test before the hearing or would be doing so a short time after the hearing.  Accordingly, the only issue was whether in those circumstances the Tribunal acted unreasonably in not allowing the appellant a further period to take the test in February 2014.

29. Second, his Honour’s findings as to what had occurred below were correct.  It is apparent from the Tribunal’s decision that the Tribunal was concerned about the length of time that the appellant had already had to obtain evidence of competent English.  That period was extensive.  It supported his Honour’s conclusion that the Tribunal considered that the appellant had had more than “a reasonable amount of time” to secure the evidence.  It was this period which underpinned the Tribunal’s conclusion (at [12] of its reasons).  In the invitation letter, the Tribunal had invited the appellant to provide evidence of any test to be taken within a particular period before the hearing, or in the Tribunal’s words “soon after”.  The Tribunal did not consider that a delay of a further period of two months before the test could be taken was warranted given the already lengthy delay.  His Honour’s analysis at [43] to [47] properly reflected what had occurred below. 

30. Third, his Honour’s conclusion that the Tribunal’s refusal to adjourn was not unreasonable discloses no error.  His Honour undertook the fact specific analysis required of him, based on the evidence properly before him (including the absence of any transcript relied upon by the appellant).  His Honour considered that the Tribunal’s approach was intelligible for the reasons that I have earlier indicated.  In those circumstances, as his Honour rightly concluded, it was open to the Tribunal to conclude that further time could not be justified.  As was said by French CJ in Li, the Tribunal’s approach was clearly within its “decisional freedom” (at [28]). The primary judge so held and I agree.

31. In summary, no error has been demonstrated in his Honour’s approach.  Moreover, I have independently looked at the Tribunal’s reasons and in my view no jurisdictional error has been demonstrated in the Tribunal’s approach or its decision.

    Conclusion

32. The appeal is dismissed with costs. 

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.

Associate:

Dated:       20 November 2015