Hussain, Abid v Minister for Immigration and Multicultural Affairs

[1997] FCA 1452

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 60 of 1997

BETWEEN:	ABID HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		19 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 60 of 1997

BETWEEN:	ABID HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	19 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review a decision of the Immigration Review Tribunal (“the Tribunal”).  The background to that decision may be briefly outlined.

The applicant is a citizen of Pakistan.  He arrived in Australia on 23 January 1990 with a student visa and was permitted to remain until 13 March 1991.  The day before that permission expired, on 12 March 1991, he applied for a determination that he was a refugee. Eventually that application was decided adversely to the applicant by the Refugee Review Tribunal on 22 February 1994.

On 24 March 1994 he applied for a Class 816 entry permit. This case concerns the criteria for such a permit set out in clause 816.732 of Chapter 1.2 of Schedule 2 of the Migration (1993) Regulations, which provided:

“816.732 (1)   If the applicant is a principal person, he or she has the ability to communicate in English in a mix of social and work situations, demonstrated by evidence of the kind set out in:

(a)subclause (2); or

(b)subclause (3).

(2)      The evidence mentioned in paragraph (1)(a) is evidence that the applicant:

(a)has successfully met the academic progress requirements in the institution at which the applicant was enrolled for:

(i)at least 1 year of full-time study; or

(ii)part-time study equivalent to at least 1 year of full-time study;

in an accredited course leading to a post-secondary qualification where the primary language of instruction was English; or

(b)holds an overseas qualification:

(i)that is accessed by NOOSR as comparable to an Australian associate diploma, diploma, degree or higher degree; and

(ii)for which the primary language of instruction was English; or

(c)has passed, within the period of 2 years before the date of the application, at a level that satisfies the Minister that the applicant has the ability to communicate in English in a mix of social and work situations, one of the following English proficiency tests:

(i)the Occupational English Test conducted by the National Language and Literacy Institute of Australia;

(ii)the Australian Assessment of Communicative English Skills Test;

(iii)the International English Language Testing System test.

(3)       The evidence referred to in paragraph (1)(b) is evidence that the applicant has successfully undertaken, at the first or second attempt, and at a time and place nominated by the Minister, a test of proficiency in English nominated by the Minister.

(4)       If under subclause (3) the Minister has nominated a test to be undertaken by an applicant, and the applicant has failed to undertake that test for a reason acceptable to the Minister, the Minister may nominate a further test to be undertaken by the applicant at a time and place nominated by the Minister.”

(NOOSR, referred to in subparagraph (2)(b)(i), is the National Office of Overseas Skills Recognition within the Department of Employment, Education and Training.)

The approved form of application was lodged by a migration agent together with a letter dated 16 March 1994 from the applicant’s then employer.  This letter stated the applicant was employed as a tandoori chef, having started his employment as a kitchen hand in November 1990 and becoming trained as a tandoori chef “due to his ability and skills”.  His employer also stated that the applicant’s command of English was satisfactory.  The migration agent submitted that the “three years training of the applicant is equivalent to a trade apprenticeship that would qualify him to practise his trade in Australia.”  The applicant did not claim to be qualified under subclause (2).

Since the application for the entry permit had not been determined before 1 September 1994 (when major amendments to the Migration Act 1958 (“the Act”) came into effect), it was taken from that date to be an application for a transitional visa: Migration Reform (Transitional Provisions) Regulations, reg 23(2). However, the application remained to be decided according to the criteria that applied to the entry permit.

On 9 August 1995 the primary decision maker refused the application on the basis that the applicant did not meet the criteria in clause 816.732. The decision record noted that on two occasions the applicant had attempted a test of English proficiency nominated by the Minister but that he had been unsuccessful on both occasions.

The applicant applied for internal review of that decision.  In his application form, which was completed with the assistance of a migration agent, the applicant gave his reasons for wanting the decision reviewed as follows:

“I consider myself a highly skilled person as I applied for assessment of my trade as “tandoori cook”.  I will sit for the test in October 1995.  As to my English skills I feel that I am able to pass the test and I seek another chance as I was not feeling well during my English test and was nervous.  Also I have had a solid and firm employment as a chef and my employer needs my services on a continuous basis.  My employer made numerous efforts through the CES and labour market was tested and was unable to replace me.  My departure would prejudice his restaurant.”

On 3 November 1995 a review officer affirmed the primary decision to refuse the application.  In his reasons for decision the review officer said that, in order to meet the requirements of subclause 816.732(1), the applicant must satisfy either subclause 816.732(2) or (3).  He noted that the applicant did not claim to fall within subclause 816.732(2).  In respect of subclause 816.732(3), the review officer stated:

“The applicant has twice attempted and failed the English proficiency test nominated by the Minister, namely the Special Test of English Proficiency (STEP), held by the National Centre for English Language Teaching & Research (NCELTR) at Macquarie University.

The applicant requests that he be given a third opportunity to sit this test.  There is no legislative provision for a third opportunity to sit the Special Test of English Proficiency (STEP).  I conclude therefore that the applicant does not meet the requirements of this subclause.“

On 9 November 1995 the Migration Internal Review Office received a letter from the applicant’s migration agent, enclosing a certificate of proficiency dated 28 April 1995 from the Director of Studies at the NSW English College and a craft certificate dated 28 October 1995 from the NSW Commissioner for Vocational Training.

The applicant applied to the Tribunal for review of the review officer’s decision.  The application form was again completed by the applicant’s migration agent.  In that form the applicant requested an Urdu interpreter, but stated “my language is reasonable”.

In July 1996 the Tribunal received from the migration agent a document signed by the managing director of the NSW Technical and Further Education Commission certifying that the applicant had that month completed the requirements for a “Statement of Attainment in Access ESOL” at the Sydney Institute of Technology. (ESOL is apparently an acronym for English for Speakers of Other Languages.) This certificate was supplemented in September 1996 by an unsigned letter on the letterhead of the same Institute certifying that the applicant had successfully completed a full-time ESOL course of nine weeks duration at the Ultimo campus “in Semester 2, 1996”. The applicant appeared before the Tribunal on 23 October 1996. An Urdu interpreter was present. A transcript of the hearing is in evidence before me. The applicant gave evidence that he was enrolled in a full-time ESOL course finishing in December 1996, and the Tribunal explained the requirements of paragraph (2) (a) in clause 816.732. On 12 December 1996 the Tribunal received a copy of an unsigned letter dated November 1996 on the letterhead of the Institute’s Ultimo campus congratulating the applicant “for successfully completing the ESOL Certificate”. On 3 January 1997 the Tribunal affirmed the decision under review.

The Tribunal referred to material that I have described relating to the courses taken by the applicant and found that none of them was an “accredited course” as defined for the purposes of clause 816.732. The Tribunal also found that the applicant had failed the test nominated by the Minister at the second attempt. The Tribunal cited with evident approval the conclusion reached in another decision by a differently constituted tribunal that: “The evidence of proficiency in English outlined in 816.732(2) and 816.732(3) is the only evidence that can satisfy 816.732(1).” (Emphasis in original.) Consistently with that view, the Tribunal found that the applicant did not meet the requirements of clause 816.732.

It is convenient now to turn to the application before the Court. It relies on the grounds specified in pars (a), (e) and (g) of s 476(1) of the Act.

The applicant’s first ground of challenge rests on the submission that the statement of reasons prepared by the Tribunal does not comply with s 368(1) of the Act and that, therefore, a procedure required by the Act to be observed in connection with making of the Tribunal’s decision was not observed. Specifically, it is said that the Tribunal did not explain its own understanding of clause 816.732 but merely applied the earlier decision of the other tribunal and that, in that respect, it failed to give “reasons for the decision” within the meaning of
s 368(1)(b) of the Act. The statutory duty to give reasons is explained by Sackville J in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-416. Adapting what his Honour said there, in the present case I find it easy to ascertain from its statement what process of reasoning was adopted by the Tribunal. The technique of applying to the facts as found the interpretation of a statute formulated by another body is both familiar and useful. Wordiness is not a virtue. This submission is rejected.

With unconscious irony, the applicant next challenges the interpretation of clause 816.732 applied by the Tribunal. The applicant submits that evidence “sufficiently similar” to that set out in subclauses (2) and (3) must be taken into account in assessing the applicant’s English proficiency. This is said to follow from the use of the expression “evidence of the kind” in subclause (1). (A more arguable submission might have been that, whilst subclauses (2) and (3) provided a definitive way of demonstrating “the ability to communicate in English in a mix of social and work situations” required by subclause (1), subclause (1) still permits such ability to be proved in any other way.) Put as it is, however, the submission must be rejected. Subclauses (2) and (3) are highly prescriptive. Nothing in their language requires the gloss contended for by the applicant. The question will always be whether the evidence adduced by the applicant satisfies the requirements of subclause (2) or subclause (3), not whether it is “sufficiently similar” to the evidence prescribed in those subclauses. It should be remebered, of course, that the applicant does not contend that his ESOL course was an “accredited course”.

For the sake of completeness, I should perhaps also say that, although it was not pressed in terms by the applicant, I do not consider that what I described as a “more agruable” construction would be correct.  As a matter of grammar, the use of the participle “demonstrated” limits the “ability” that the applicant must possess in order to satisfy subclause (1) and thus indicates the relevant evidence on the topic.  The degree of specification in subclauses (2) and (3), and most importantly in subclause (4), would be rendered useless in a practical sense by a construction contrary to that adopted by the Tribunal.

The applicant’s third submission is based on the Tribunal’s omitting to record whether or not it accepted the statement in his application for internal review back in 1995 that he “was not feeling well during my English test”.  The Tribunal did refer to this assertion in its reasons, although the claim was not repeated in the applicant’s evidence before the Tribunal.  The way in which the Tribunal states the matter rather suggests that it was content to proceed on the basis that the statement was true, though it does not expressly say so.  In any event, the applicant submits that the Tribunal’s omission means that it must have erred in considering whether illness prevented the applicant making a genuine attempt at the test on the second occasion nominated by the Minister.  It was, in fact, not contended before the Tribunal that the applicant had in that sense not “undertaken” the test on the second occasion.  Yet the Tribunal plainly turned its mind to this question and made an express finding that the applicant failed the test “at the second attempt”.  The respondent’s counsel correctly argues that the Tribunal’s reasons are not to be subjected to over-zealous scrutiny, and this submission is also rejected.

The final submission on behalf of the applicant, which was but faintly developed orally, is that the Tribunal misled the applicant by giving him to understand that his ESOL course was irrelevant. To a large extent this submission falls with the second submission. In fact, as I have mentioned, the Tribunal merely explained to the applicant the requirements of paragraph (2)(a) in clause 816.732. It is true that the Tribunal does not refer in its reasons to the letter received on 12 December 1996, but there is no obligation upon the Tribunal to refer specifically to every piece of evidence before it. It seems that the applicant frames this submission in reliance on the ground in s 476(1)(g) of the Act. But the matter to be established was whether the applicant’s course was “accredited”, and the Tribunal’s finding on this question was, as counsel for the respondent again correctly contends, open to it on the evidence.

The application is dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            19 December 1997

Mr Simon Diab of Johnston Vaughan, solicitors, appeared for the applicant.

R M Henderson of counsel, instructed by the Australian Government Solicitor,
appeared for the respondent.

Date of hearing:	21 July 1997
Date of judgment:	19 December 1997