Hossain v Minister for Immigration and Citizenship
[2010] FCA 1338
•8 December 2010
FEDERAL COURT OF AUSTRALIA
Hossain v Minister for Immigration and Citizenship [2010] FCA 1338
Citation: Hossain v Minister for Immigration and Citizenship
[2010] FCA 1338Appeal from: Hossain v Minister for Immigration & Anor
[2010] FMCA 436Parties: MOHAMMED ARIF HOSSAIN v MINISTER FOR IMMIGRATON AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 803 of 2010 Judge: LANDER J Date of judgment: 8 December 2010 Catchwords: MIGRATION – judicial review – appeal from Federal Magistrate – whether Federal Magistrate erred in finding that the Migration Review Tribunal had reviewed the delegate’s decision – whether the Tribunal erred in upholding the delegate’s decision under reg 2.26A(5) that an IELTS test was reasonable and necessary in the appellant’s case – whether the Tribunal had overlooked the appellant’s obtaining of a degree by English language instruction – whether the Tribunal had overlooked the appellant’s learning difficulties.
Held: Appeal dismissed – the Tribunal had not overlooked obtaining of degree – the appellant’s learning difficulty was not a reason for making the test unnecessary.Legislation: Migration Act 1958 (Cth) ss 92, 93, 94, 95, 96, 348, 360
Migration Regulations 1994 (Cth) reg 2.26A Sch 2 cl 880.222; Sch 1 Item 1128CACases cited: Hadiuzzaman v Minister for Indigenous Affairs and Citizenship (2008) 102 ALD 628 cited Date of hearing: 1 November 2010 Place: Adelaide (heard in Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Appellant: Mr L Karp Solicitor for the Appellant: Parish Patience Immigration Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 803 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MOHAMMED ARIF HOSSAIN
AppellantAND: MINISTER FOR IMMIGRATON AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
8 DECEMBER 2010
WHERE MADE:
ADELAIDE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 803 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MOHAMMED ARIF HOSSAIN
AppellantAND: MINISTER FOR IMMIGRATON AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
8 DECEMBER 2010
PLACE:
ADELAIDE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal from an order of a Federal Magistrate made on 10 June 2010 dismissing the appellant’s application for the judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 23 December 2009 affirming a decision of a delegate of the Minister to refuse to grant the appellant a visa.
The appellant was born on 28 January 1979 in Bangladesh and is a citizen of that country. The appellant was educated to the equivalent of Year 12 in Bangladesh. He graduated with a Bachelor of Science-Computer Science at Madras University in India in 2001. The appellant first entered Australia in July 2002 as the holder of a Student visa for the purpose of his further education and was subsequently granted a number of further Student visas. He attended the Meridian International School for English tuition from July to December 2002. From July 2003 until July 2005 he undertook studies at the Sydney Campus of Central Queensland University, first gaining a Graduate Diploma and then a Masters in Information Systems.
On 31 August 2005 the Department of Immigration and Citizenship received his application for a Skilled-Independent Overseas Student (Residence) (Class DD) visa. On 18 June 2008 a delegate of the Minister made a decision to refuse to grant the visa and notified the appellant of that decision on the same day. The delegate refused to grant the visa because the appellant did not satisfy clause 880.222 of Schedule 2 of the Migration Regulations 1994 (the Regulations) because he did not have the qualifying score when assessed under the “points” system provided for under Subdivision B of Division 3 of Part 2 of the Act.
On 16 July 2008 the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal accepted that the delegate’s decision was an MRT-reviewable decision under s 338(2) of the Migration Act 1958 (Cth) (the Act). The Tribunal found that the appellant had made a valid application for review under s 347 of the Act.
The visa for which application was made is a permanent visa for eligible overseas students who have studied in Australia and have recently completed an Australian degree, diploma or trade qualifications. It contains one Sub-class (Skilled-Independent Overseas Student), being Item 1128CA(4) of Schedule 1 to the Regulations. The visa allows tertiary qualified overseas students to apply to have their visas granted whilst in Australia.
Item 1128CA of Schedule 1 to the Regulations sets out the requirements for making a valid application for a Class DD visa. The applicant must nominate a “skilled occupation” in his or her application and include with the application a declaration from the applicant that he or she has applied for an assessment of his or her skills for the nominated skilled occupation by a relevant assessing authority.
“Skilled occupation” is defined in reg 1.03 of the Regulations and relevantly means an occupation that is specified in an instrument in writing as a skilled occupation for which a number of points specified in the instrument are available. Regulation 1.03 also defines “relevant assessing authority” to mean a person or body specified under reg 2.26B. That regulation relevantly provides that the Minister may specify by an instrument in writing a person or body as the relevant assessing authority for the purpose of an application for a skills assessment.
A primary criterion to be met at the time of the decision is clause 880.222 which requires an applicant to have a “qualifying score” when assessed under Subdivision B of Division 3 of Part 2 of the Act. Sections 92 to 96 of the Act set out a points system by which applicants for particular kinds of visas may be given a score based on points for particular attributes. This is then compared to an application pass mark or an application pool mark which are set by the Minister from time to time: s 96. The qualifications and points prescribed for attributes are set out in the Regulations: see reg 2.26A and Sch 6A to the Regulations.
Regulation 2.26A(2) provides that Parts 1 to 8 and 10 of Schedule 6A are relevant to Subclass 880. These are as follows:
Skill qualifications 0-60 points
Age qualifications 0-30 points
Language skill qualifications 0-20 points
Employment experience qualifications 0-10 points
Spouse skill qualifications 0-5 points
Australian educational qualification 0-15 points
Skills targeting qualifications 0-20 points
Bonus points qualification 0-5 points
Additional points for regional Australia and
low-population growth metropolitan areas 0-5 pointsIf an applicant’s score is more than or equal to the pass mark, the applicant is deemed to have received the “qualifying score”: s 94(1). If the applicant’s score is less than the pass mark, but more than or equal to the pool mark, the applicant remains in a pool for a period up to 24 months in case during that period the Minister varies the applicable pass mark in which case if the applicant’s score is greater than the new pass mark the applicant is deemed to have received the qualifying score: s 95(2).
Section 350 of the Act requires the Tribunal considering a points assessment to consider the regulations and the pool and pass marks in force at the time of the delegate’s assessment (primary assessment), and as in force at the time of the Tribunal’s assessment (review assessment), and apply whichever are more favourable to the applicant.
In his visa application the appellant identified his skilled occupation as “Systems Programmer”. The Australian Standard Classification of Occupations (ASCO) code for this occupation is 2231-19. The relevant assessing authority is the Australian Computer Society (ACS). The appellant submitted a skills assessment from the ACS dated 15 February 2005.
The language of instruction for the degree to which he was admitted at the Madras University was English.
The appellant was awarded a Masters of Information Systems at Central Queensland University. He commenced the course in March 2003 and completed it in July 2005. The language of instruction was English. The appellant did not indicate that he had any employment history in his application.
The appellant provided the Department with copies of an IELTS test result for a test undertaken on 24 November 2005 at which he scored 6.0 for listening, 4.5 for reading, 5.0 for writing and 5.0 for speaking. His overall band score was 5.0.
On 3 April 2006 the appellant’s representative advised the Department that the appellant had been found to have reading disabilities and the appellant had registered for a further IELTS test as a person with special needs.
On 22 June 2007 a delegate of the Minister refused the appellant’s application for a Subclass 880 visa on the ground that the appellant did not have vocational English and could not meet the requirements of clause 880.223. The delegate found that the appellant had failed to achieve at least a score of 5.0 for each for the five IELTS test components.
On 16 June 2007 the appellant applied for a review of the decision with the Tribunal. On 14 April 2008 the Tribunal received an IELTS test report for a test undertaken by the application on 29 March 2008 in which the appellant achieved a score of 5.5, 5.5, 5.0 and 6.5 for listening, reading, writing and speaking.
On 17 April 2008 the Tribunal remitted the application to the Department for reconsideration after finding that the appellant had vocational English and therefore met clause 880.223.
On the remitter the delegate of the Minister again refused to grant the visa, this time on the basis that the appellant did not satisfy clause 880.222 because the appellant did not have the qualifying score when assessed in relation to the visa under the points system.
The delegate awarded the following points:
Skill 60 points
Age 30 points
English Language Ability 15 points
Specific Work Experience 0 points
Australian Qualification 5 points
Occupation in demand/Job Offer 0 points
Bonus Points 0 points
Regional Australia 0 points
Total points 110 points
The total of 110 points was not sufficient for the appellant to achieve the gazetted pool or pass mark. In those circumstances, the delegate refused to grant the visa. Again the appellant sought a review by the Tribunal of the delegate’s decision.
The appellant applied to have the Tribunal’s review adjourned so that he might sit again for an IELTS test, notwithstanding that he had qualified in respect of that aspect of the criteria in the test he sat on 11 July 2009. He wished to sit a further test because if he could obtain a score of 6.0 for each of the four IELTS test components he would be entitled to a further 5.0 points in the points test assessment. The appellant contended before the Tribunal that he ought to be allowed to sit a special test because there was evidence which was supported by a psychologist, Mr Meyer, that he had substantial learning difficulties. It was contended that an assessment of his IQ showed him to have a verbal IQ and a full scale IQ in the low-average range and that he had difficulties with short term visual memory and his spelling was seriously delayed. On 21 August 2009 the Tribunal told him they would not grant him extra time to sit another test after the IELTS test scheduled for November 2009, and that it would proceed to make a decision once he provided the November test results by 19 December 2009.
After receipt of the further IELTS test results in December 2009, the Tribunal carried out its assessment of each of the components and arrived at the same scores for each of those components as the delegate had, except in relation to the bonus points qualification. It awarded the appellant 5.0 points in recognition of the appellant having paid the sum of $100,000 into a designated security with the South Australian Governing Financing Authority on 16 October 2009 for a term of 12 months. That payment entitled the appellant to a further 5.0 points and a total of 115 points.
The Tribunal found, however, that at the time of the assessment made by the delegate the pool mark and the pass mark were both 120 points and the appellant therefore failed to achieve the pool mark or the qualifying score to pass the points test at that date.
The Tribunal considered whether the appellant had passed the pool mark or the pass test as at the date of its own assessment, but found that the points to be awarded at that date were the same as those at the earlier date and therefore the Tribunal found that he failed to meet the necessary points assessment as at that later date.
The Tribunal gave reasons for refusing the appellant’s further request for more time to sit yet another test, noting that the appellant had sat five IELTS tests already and had received extra coaching in respect of those tests. It also dealt with a claim that the Tribunal should proceed in accordance with reg 2.26A(5) because it was not necessary for the appellant to sit the IELTS test.
Regulation 2.26A(5) reads:
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.
After noting the provisions of that regulation and the reasons of Ryan J in Hadiuzzaman v Minister for Indigenous Affairs and Citizenship (2008) 102 ALD 628, where his Honour said that it was permissible to have regard to the results of tests previously undertaken in the exercise of the discretion contained in reg 2.26A(5), the Tribunal concluded that it was reasonably practicable and necessary for the appellant to be tested using IELTS.
For those reasons, the Tribunal affirmed the decision of the delegate.
The appellant applied in the Federal Magistrates Court for the judicial review of the Tribunal’s decision. At the hearing the appellant amended his application substituting as grounds:
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).
The Federal Magistrate was asked to consider by ground 1 whether the Tribunal had failed to review the delegate’s decision as required by s 348 of the Act by failing to find why the IELTS test was necessary in the appellant’s case.
The Federal Magistrate referred to Ryan J’s decision mentioned above and said at [44]-[45]:
44.... 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’.
45.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.
Specifically his Honour found that he was not prepared to infer that the Tribunal had overlooked the fact that the appellant had obtained his degree at the Madras University in the English language.
It is not necessary to discuss his Honour’s reasons in relation to the second ground because that ground is not pursued on this appeal.
The notice of appeal complains that the Federal Magistrate erred in finding that the second respondent did not breach s 348 of the Act by failing to consider the whole of the case advanced by the appellant.
The purpose of reg 2.26A(5) is to provide the Minister with an alternative method of determining that an applicant is proficient in English, but only if the Minister determines that it is not reasonably practicable or not necessary for the applicant to be tested using the IELTS test.
In this case it was not contended, nor could it have been, in circumstances where the appellant had in fact undertaken five tests, that it was not reasonably practicable for the appellant to undergo the IELTS test.
It was however contended that the Minister’s delegate should have found that it was not necessary for the appellant to undergo the IELTS test in circumstances where first, the appellant had obtained a degree from the Madras University by way of English instruction; and secondly, where the appellant had learning difficulties as described by Mr Myer, the psychologist.
In support of the first contention it was put that the Tribunal had not taken into account the fact of the appellant obtaining his degree in English language instruction.
The Tribunal specifically considered the application of reg 2.26A(5) having earlier noted that the appellant had obtained a Masters Degree from the Central Queensland University in which the language of instruction was English.
The degree which the appellant had obtained from the Madras University was prior to the appellant’s arrival into Australia and provided, as the first respondent contended, little probative value of the appellant’s proficiency in the English language.
The undisputed evidence before the Tribunal was that despite the appellant having been in Australia for a lengthy period of time and having obtained a Masters Degree from the Central University of Queensland by way of English instruction the appellant had failed to obtain any score of 6 on any of the five IELTS tests he had undertaken. His inability to achieve a score of that kind on any of the five tests indicated that any exposure to the English language prior to 2002 was of little probative value.
In any event, for the reasons which I have set out above, the Federal Magistrate concluded factually that the Tribunal did not overlook the appellant’s claim to have studied at an Indian University in English which is a finding which is entitled to respect on appeal.
The second reason advanced for finding that an IELTS test was not necessary was rested upon the appellant’s learning difficulties. In my opinion, that could never be a reason for making the IELTS test unnecessary. Indeed, it would be a reason why the test was necessary.
If the appellant’s learning difficulties have been the reason why he has not been able to achieve a score of 6 on each of the IELTS tests on the five occasions that he sat the test, that does not render the test unnecessary. It is simply an explanation for why he is not able to achieve the test. It does not make the test unnecessary because his proficiency in English can not be otherwise addressed. It merely shows that he is not proficient in English to the level of the test score, perhaps because of his learning difficulties.
In my opinion, the appeal should be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 8 December 2010
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