Islam v Minister for Immigration and Border Protection
[2016] FCA 839
•1 September 2016
FEDERAL COURT OF AUSTRALIA
Islam v Minister for Immigration and Border Protection [2016] FCA 839
Appeal from: Islam v Minister for Immigration & Anor [2015] FCCA 1280 File number: NSD 572 of 2015 Judge: GLEESON J Date of judgment: 1 September 2016 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – jurisdictional error in context of adjournment applications – was appellant given a reasonable opportunity to present his case – did refusal to grant six month adjournment lack justification – appeal dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Court Rules 2011
Cases cited: Dunsmuir v New Brunswick [2008] 1 SCR 190
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Date of hearing: 1 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 58 Counsel for the Appellant: Mr SEJ Prince (pro bono) Counsel for the Respondents: Mr P Knowles Solicitor for the Respondents: DLA Piper Australia ORDERS
NSD 572 of 2015 BETWEEN: KABIRUL ISLAM
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
1 SEPTEMBER 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
The appellant (or “Mr Islam”) appeals from the decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing his application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”): Islam v Minister for Immigration & Anor [2015] FCCA 1280. The Tribunal’s decision, made on 3 December 2013 (“Tribunal’s decision”), was to affirm the decision by a delegate of the first respondent (“Minister”) not to grant Mr Islam a Skilled (Residence) (Class VB) Subclass 866 visa (“visa”).
The Tribunal’s decision was made on the basis that Mr Islam had failed to produce evidence capable of satisfying the visa criterion for proficiency in the English language. The criterion was that Mr Islam have “competent English”: see cl 886.213 of Sch 2 to the Migration Regulations 1994 (Cth) (“Regulations”).
“Competent English” is defined by reg 1.15C of the Regulations. In short, to demonstrate “competent English”, Mr Islam was required to satisfy the Minister that he:
(1)had, in a test conducted not more than two years prior to the day of the visa application, achieved a score of at least six in each of the four components of an IELTS test; or
(2)had achieved a specified score in a language test specified by the Minister in an instrument in writing – at the time of the delegate’s decision the Minister had, in an instrument in writing, specified a score of at least “B” in the Occupational English Language Test; or
(3)held a passport of a nationality specified by an instrument in writing – at the time of the delegate’s decision, the passports specified by the Minister were those of the United Kingdom, United States, Canada, New Zealand and Ireland.
The single issue on the appeal is whether the Tribunal’s decision, to refuse to adjourn its review on 18 October 2013 for a period of six months, involved jurisdictional error in that it denied Mr Islam procedural fairness, or was infected by legal unreasonableness of the kind identified by the High Court in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”).
Although the Tribunal refused to adjourn the review, it allowed a period of six weeks (from the date of its hearing on 18 October 2013 until 30 November 2013) for Mr Islam to provide evidence that he met the competent English requirement. This allowance was granted after the Tribunal found that Mr Islam was in a position to undertake any test that he wished to take. Mr Islam did not provide any further evidence to the Tribunal, with the result that he was found not to meet the “competent English” requirement.
BACKGROUND FACTS
Mr Islam is a male citizen of Bangladesh, aged 34 years. He came to Australia to study, and completed a Masters of Professional Accounting at Central Queensland University in 2010. Before coming to Australia, Mr Islam had obtained a Bachelor of Business Administration from the University of Rajshahi in Bangladesh, which was assessed as comparable to an Australian Bachelor degree by the National Institute of Accountants.
Mr Islam applied for the visa on 2 March 2011. In his visa application, he stated that his English language ability was “competent”.
Mr Islam has sat the IELTS English test on several occasions including on 15 January 2011, 5 March 2011, 24 September 2011 and 3 December 2011. On each of those four tests, he achieved an “overall band score” of 6.0 or 6.5. Mr Islam has achieved a mark of six or more in each of the four components of the test on more than one occasion, but on no occasion did he achieve a score of at least six in all four components. Mr Islam’s lowest score, on the test results identified by the Minister’s delegate, was 5.0 for reading, but he also achieved a score of 6.0 for reading on three occasions.
On 17 August 2012, a medical doctor, Dr Verma, certified that Mr Islam was suffering from depression and needed treatment and specialist care. Dr Verma stated that Mr Islam wished to go to Bangladesh for treatment because he was unable to afford the cost of treatment locally.
On 12 September 2012, the Minister’s delegate refused to grant the visa because Mr Islam did not provide evidence that he had the relevant level of English ability. According to a letter written by Mr Islam to the Tribunal dated 30 September 2013, the delegate’s decision was made shortly after he had informed the Department that he needed to return to Bangladesh to improve his mental situation.
On 17 September 2012, Mr Islam applied to the Tribunal for a review of the delegate’s decision.
On 24 September 2012, Dr Michael Guirguis wrote a referral to Dr Anthony McCarron, a psychiatrist (“psychiatrist”), stating that Mr Islam presented with a history of many paranoid thoughts and some delusional visions with occasional hearing of voices over the previous two months.
Mr Islam travelled from Australia to Bangladesh on 25 September 2012. On 2 July 2013, a Dr Mustafizur Rahman, Associate Professor (Psychiatrist) practising at the National Mental Health Institute in Dhaka, Bangladesh, certified that Mr Islam had been under his treatment from 29 September 2012 to 2 July 2013 and that “at present he is mentally alright in all respects”.
On 7 July 2013, Mr Islam returned from Bangladesh “with a fresh mind”. By letter dated 20 September 2013, he was invited to appear before the Tribunal on 18 October 2013. The letter contained the following paragraph:
The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa. Please provide evidence at or before the hearing that you have competent English. If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time to obtain it.
On 25 September 2013, Dr Naim Samaan wrote a further referral for Mr Islam to the psychiatrist stating that he presented with a history of auditory hallucinations for one year with some delusional visions and responded well to counselling in his country of origin.
On 30 September 2013, Mr Islam obtained employment with Australia Post as a mail contractor for a term of five years.
Also on 30 September 2013, Mr Islam called the Tribunal and requested a hearing postponement as he required more time to prepare for the IELTS exam. He was told to make his request in writing with reasons and any supporting documents. The same day, Mr Islam applied in writing for an adjournment of the Tribunal hearing “for at least two years and give additional time to obtain English proficiency requirement”. In his letter, the appellant drew attention to the fact that he had been suffering from mental illness and had been referred to a psychiatrist, but had returned to Bangladesh to improve his mental situation because the waiting period to see the psychiatrist was two months. He also said that he was currently working part-time as well as preparing for his IELTS test and had decided to see the psychiatrist “to make sure that I do not suffer from mental illness again”. The letter enclosed Dr Verma’s 17 August 2012 certificate, and referrals to the psychiatrist dated 24 September 2012 and 25 September 2013.
The Tribunal responded promptly, by letter dated 1 October 2013, informing Mr Islam that the 18 October 2013 hearing had not been postponed. The letter gave no reasons for this decision. However, in its decision record dated 3 December 2013 (“Tribunal’s decision record”), the Tribunal recorded the following:
7.Prior to the hearing, the applicant requested an adjournment of the hearing for at least two years to give him additional time to obtain the English language proficiency requirement. The applicant indicated that he had sat for the IELTs test several times but was not able to get a 6 in each of the bands at the same time. As a result, he was mentally shocked and suffered from a mental illness. He explained that he had seen a doctor in August 2012 and was advised to go to Bangladesh to be with his family and friends and then return to Australia. The applicant said he was also referred to a psychiatrist in September 2012 but was unable to wait the two months to see the psychiatrist and returned to Bangladesh to improve his mental situation. The applicant explained that he returned from Bangladesh with a fresh mind on 7 July 2013 and recently started a part time job and has begun preparing for his IELTS test again. He is planning to see a psychiatrist to ensure that he does not suffer from a mental illness again, and provided evidence that he had obtained a referral from Dr Samaan. He added that he has been in Australia for almost six years and lives with his brother, who has a daughter who he is very close to and it would be difficult to be apart from her. He will not be able to find a decent job back in Bangladesh because he is over 30 now. He is confident that he can achieve 6 in each component but needs time to prepare.
8.The Tribunal considered his request but declined to adjourn the hearing. The Tribunal noted the applicant had sought review of the delegate’s decision over a year ago and considered he had sufficient time to prepare for the hearing in this case. There was nothing in the material presented to indicate that he was unfit to appear before the Tribunal on the date and at the time scheduled.
It is not clear what the Tribunal considered to be Mr Islam’s “sufficient time to prepare for the hearing”. Having regard to the reference to when the applicant had sought review of the delegate’s decision, the “sufficient time” probably included the period from the date of Mr Islam’s application to the Tribunal on 17 September 2012. The reasons do not indicate an acceptance by the Tribunal that the applicant’s circumstances had significantly affected his ability to prepare for the hearing.
At the Tribunal hearing on 18 October 2013, Mr Islam made another request for an adjournment. The Tribunal’s decision record addresses this request as follows:
9.The applicant told the Tribunal at the hearing on 18 October 2013 that he had undertaken 8 to 10 IELTS tests, with the most recent undertaken in September 2011, although it appears that he also undertook a test on 3 December 2011 as the results of that test were submitted to the department. The applicant advised that he had not undertaken any since that time because he had been unwell and he requested further time to prepare for the test. The Tribunal indicated that it would not be waiting for two years for the applicant to achieve the necessary scores. The applicant and his brother then requested a further six months. The Tribunal considered this request and advised that it would not agree to a further six month period. The Tribunal does not consider that it should delay its decision until the applicant achieves the necessary score, and it considers that the period requested is excessive. The applicant made his visa application in March 2011, more than two and a half years prior and he has already attempted the IELTS test for the purpose of this visa up to 10 times. The Tribunal has taken into account that the applicant had experienced a period of mental anguish which he claimed was in relation to the IELTS test, and that he had sought medical treatment in August and September 2012 in relation to his mental state and decided to return to Bangladesh for a period to improve his mental situation. The Tribunal further notes that the applicant indicated that when he returned in July 2013 from Bangladesh he had a fresh mind and is currently undertaking part time work. It thus appears that he is in a better mental state than a year ago and it considers that he is in a position to undertake any tests that he wishes to, although it accepts that since his return to Australia he had visited another doctor in September 2013 and has a referral to a psychiatrist, which he indicated was to avoid any relapse. However, the medical evidence presented does not support a further delay in attempting an IELTS test. He indicated that he has not undertaken any English language tests since his return from Bangladesh, despite knowing that this was the reason why his visa was refused by the delegate over a year ago. The length of time he has been in Australia and the presence of his brother and niece are not relevant reasons for adjourning the review. Nor is the study completed in Australia and any perceived difficult[y] in finding a job if he was required to return to Bangladesh.
10.As the last test he claims to have undertaken was in December 2011, and taking into account his circumstances, the Tribunal indicated it would allow until 30 November 2013, a period of six weeks, for the applicant to provide any evidence that he now met the competent English requirement. No further evidence has been received to date.
The applicant’s affidavit evidence, before the FCCA but not provided to the Tribunal, was that:
(1)on the day of the Tribunal hearing, the appellant booked an IELTS test to be undertaken on 9 November 2013;
(2)the appellant could not attend the 9 November 2013 test because of his “mental problem”;
(3)on 25 November 2013, the psychiatrist prescribed the appellant with a medication, Abilify.
On 3 December 2013, the Tribunal affirmed the delegate’s decision to refuse the visa application, having found that Mr Islam did not have competent English within the meaning of reg 1.15C of the Regulations.
On 17 February 2014, the psychiatrist signed a certificate which was also annexed to Mr Islam’s affidavit filed in the FCCA. The certificate stated:
Kabirul Islam has been under my care since September 2013 for treatment of serious mental illness which may have been present for several years before coming to treatment. The illness could well have caused concentration and memory impairment sufficient to adversely affect his ability to undertake written testing associated with his application for migration status.
On 28 July 2014, the psychiatrist made a certificate which was received in evidence for the FCCA. He certified:
I have been treating Kabirul Islam for a mental health disorder from November 2013 and he has recovered and continues to take Abilify 10 mgm per day. He is able to function at work full time and the prognosis for complete recovery is very good and I do not believe that this disorder will have significant effect on his citizenship capability.
FCCA
On 31 December 2013, the appellant applied to the FCCA for judicial review of the Tribunal’s decision. On 25 June 2014, the appellant filed a further amended application in the FCCA containing the following grounds:
1.I sat for IELTS examination for several time. But I am unable to get 6 in all component at the same time. I got 8 in speaking at one time and the next time I got 5.5 but, my English competency has not gone down.
2.Obtaining 6 in all band at one time is not a reasonable criteria to judge English competency. I just get behind 0.5 in one component out of four. That is why I was mentally shocked and unable to do so.
3.I live with my brother and he has a daughter. I have strong bondage with her and is very hard to go away from her.
4.Currently I am working with Australia post as a mail contractor. If I go back to my country, I will not be able to find a decent job because of my age.
5.MRT did not consider my surcomstancess [sic].
6. MRT did not follow Guidance of Vulnerable person.
Reasons of the FCCA judge
The FCCA judge dismissed the application, concluding that the grounds stated in the further amended application failed to identify any jurisdictional error. The FCCA judge considered the 30 September 2013 request for an adjournment at [2] to [6] of his Honour’s reasons. It is unnecessary to address that part of his Honour’s reasons, except to the extent that it may be relevant to his consideration of the adjournment application on 18 October 2013. Concerning the latter application, the FCCA judge said:
7.At the hearing, the applicant asked for a further opportunity to undertake a further test, and the Tribunal allowed that opportunity by providing that it would permit the applicant up until 30 November 2013, being a period of six weeks, to provide evidence that he now met the competent English requirement. At the time of the Tribunal delivering its reasons, on 3 December 2013, the Tribunal noted that no further evidence had been received from the applicant after the hearing on 18 October 2013.
8.In this Court, the applicant tendered evidence in relation to his medical condition and also tendered a booking receipt made on 18 October 2013 for the purpose of attending an IELTS test on 9 November 2013, which he failed to attend. The applicant failed to provide any detail relating to that failure to attend, or explain the same, or to provide any further medical evidence that he was unable to attend that IELTS test on 9 November 2013. It was in those circumstances that the Tribunal proceeded to deal with the application for the visa, and found that the applicant did not have competent English, and thus did not satisfy clause 885.213 in respect of the visa requirement, and did not hold a visa of a kind that would not require the applicant to have competent English [sic].
9.Those findings of the Tribunal were clearly ope[n] and cannot be said to be unreasonable. There was no jurisdictional error by the Tribunal in this case in saying that the further six weeks was enough time, and that having received no further evidence it was clearly open to the Tribunal to proceed to determine the matter on the evidence before it. The decision by the Tribunal to proceed to determine the matter cannot be said to lack an evident and intelligible justification, and was proportionate in the circumstances identified.
…
12.… Ground 5 is without substance as it is clear the Tribunal carefully identified the evidence before it, and properly addressed the request for an adjournment, and considered the circumstances of the applicant in relation to that request, and the decision of the Tribunal to proceed with the hearing was open, and the decision of the Tribunal to allow only six weeks further opportunity after that hearing on 18 October 2013 cannot be said to be the subject of any jurisdictional error.
As appears from the Tribunal’s reasons set out earlier, and as discussed below, contrary to [7] of the reasons of the FCCA judge, Mr Islam did not merely ask for a further opportunity to take a further test. Further, contrary to [8] of the FCCA judge’s reasons for decision, the appellant gave unchallenged evidence explaining his failure to attend the IELTS test on 9 November 2013 being the evidence referred to at [21] above.
JURISDICTIONAL ERROR IN THE CONTEXT OF ADJOURNMENT APPLICATIONS
Section 360(1) of the Migration Act 1958 (Cth) (“Act”) requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the decision under review. The obligation is s 360(1) is to give a visa applicant a “meaningful opportunity” to present his or her case: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) at [36] and [51]. “Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [61] (Hayne, Kiefel and Bell JJ).
The Tribunal has a discretion to grant an adjournment of a review of a decision under s 363(1)(b) of the Act. “In exercising its discretion for the purposes of the review the Tribunal must be cognisant of the requirements of provisions such as s 360 and of its function under ss 348 and 349 to make the correct or preferable decision on the review”: Singh at [52].
Where the matter in issue is the Tribunal’s exercise of its power to grant an adjournment, questions of procedural fairness and legal unreasonableness overlap: Singh at [50]-[51]; Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 (“Kaur”) at [142] and [148].
A failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ), cited in Li at [19] (French CJ). At [20], the Chief Justice said:
A reasonable opportunity to present an applicant’s case with respect to a time of decision criterion will extend to the opportunity to obtain evidence of the necessary fact or to obtain the necessary opinion or assessment.
A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102] (Gageler J).
If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62] (Hayne, Kiefel and Bell JJ); Singh at [51]-[52].
Properly applied, the standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30] (French CJ), [66] (Hayne, Kiefel and Bell JJ); Singh at [47]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [12].
It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
Where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and “intelligible justification” within the decision-making process: Li at [105]; Singh at [44]-[45]. In Singh at [47], the Court explained:
The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.
Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44]. Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221); Singh at [44]-[45]. In Li, at [74], the plurality stated that, in the case before them:
… regard might be had to the scope and purpose of the power to adjourn in s 363(l)(b), as connected to the purpose of s 360(1) ... consideration could be given to whether the Tribunal gave excessive weight, more than was reasonably necessary to the fact that the applicant had had an opportunity to present her case. An obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached.
The approach to unreasonableness taken by the High Court in Li was recently considered by a Full Court of this Court in Stretton. In the judgment of the Chief Justice, his Honour said, at [7]:
There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness.
The Chief Justice noted (at [9] and [10]):
[9] Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision. The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will then form the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
[10] This concept of legal unreasonableness is not amenable to minute and rigidly defined categorisation or a precise textual formulary.
WAS MR ISLAM GIVEN A REASONABLE OPPORTUNITY TO PRESENT HIS CASE?
Mr Prince argued that the six week period allowed to Mr Islam to present evidence of his competency in English was arbitrary and had no logical connection with the purposes of the power under s 363 to enable the appellant a reasonable opportunity to obtain an assessment in light of the mental health issues he had outlined in his application. The period of six weeks was selected by the Tribunal on its own without any reasons or justification why that period was an appropriate period in circumstances where there appeared to be no dispute that the appellant was recovering from mental illness, that his recovery had already taken in excess of six months and that he did not believe that he would be fit to sit another IELTS exam for at least another six months.
Mr Prince noted that the Tribunal’s selection of six weeks as a time period for an adjournment demonstrated that it was appropriate in the circumstances to grant an adjournment.
It is true that the Tribunal did not explain why it had selected the six week timeframe. However, I am not convinced that the timeframe was arbitrary. Rather, in my view, it reflected the robust assessment of the Tribunal that Mr Islam was fit to sit any test he wished. There is nothing to suggest that this time period was not sufficient to allow Mr Islam to sit the test, on the basis that he was fit to sit any test he wished.
Whether or not the Tribunal’s decision was reasonable must be assessed by reference to the evidence before the Tribunal at the time of the decision: Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]-[132] per Crennan and Bell JJ. Sadly, the evidence presented to the FCCA (but not available to the Tribunal) did not bear out the Tribunal’s robust assessment of Mr Islam’s fitness. Had the Tribunal received evidence that Mr Islam was prescribed medication by the psychiatrist who saw him on 25 November 2013 and that the psychiatrist held the view, expressed in his 17 February 2014 certificate, that Mr Islam’s mental health could have adversely affected his performance on IELTS testing, it is reasonable to think that the Tribunal may well have provided Mr Islam with a longer time in which to demonstrate his English competency.
The Tribunal’s robust assessment also did not allow Mr Islam the benefit of any doubt as to his fitness. On the evidence available to the Tribunal, Mr Islam had experienced severe mental health problems. Having regard to his history, there was good reason to think that he might experience difficulties in obtaining evidence of his English competency but that, given a sufficient opportunity, in the light of his previous results and his educational background, he could pass the IELTS test.
However, in my view, it was open to the Tribunal on the (apparently incomplete) material available to it, to conclude that Mr Islam was fit to sit any test he wished. That material included the facts that Mr Islam had undertaken a significant period of rehabilitation and treatment in Bangladesh, that he had returned to Australia with a “fresh mind”, that he was undertaking part-time work and that his purpose in obtaining a referral to a psychiatrist was to avoid a relapse. It was also relevant that there was no medical opinion that Mr Islam was not presently fit to sit the IELTS test.
Once it is accepted that the Tribunal was entitled to conclude that Mr Islam was presently fit to sit the IELTS test then, in my view, in the absence of any evidence that Mr Islam could not readily arrange to sit the test, six weeks was a reasonable timeframe in which to permit him to do so. Accordingly, I am satisfied that Mr Islam was given a reasonable opportunity to present his case to the Tribunal and was not denied procedural fairness by the Tribunal.
DID THE REFUSAL OF THE SIX MONTH ADJOURNMENT REQUEST LACK A JUSTIFICATION?
Tribunal’s reasons
The Tribunal refused Mr Islam’s request for an adjournment of six months because:
(1)it did not consider that it should delay its decision until Mr Islam achieved the necessary score;
(2)more than two and a half years had passed since the visa application was made, and Mr Islam had already attempted the IELTS test for the purpose of the visa up to ten times;
(3)Mr Islam himself said that, when he returned to Australia in July 2013 he had a fresh mind and was currently undertaking part time work. On the basis of what Mr Islam himself said, it appeared that he was in a better mental state than a year ago and was in a position to undertake any tests that he wished to take. The medical evidence did not support a further delay in attempting an IELTS test;
(4)Mr Islam had not taken any English language tests since his return from Bangladesh despite knowing that this was the reason why his visa was refused by the delegate.
Appellant’s submissions
On behalf of Mr Islam, Mr Prince submitted that the foundation for the request for an adjournment of six months was that:
(1)Mr Islam had previously sat the IELTS exams on many occasions and had achieved the requisite results in each band (but not in a single exam) and that this experience had left him unwell and that he was suffering from a mental illness;
(2)he was clearly suggesting that the stress and pressure of the exams for the IELTS was something with which he could not cope in light of his mental illness;
(3)he had undertaken treatment and taken steps to rehabilitate his mental illness over the course of a year and was continuing with that treatment with a view to having the capacity to sit the IELTS exams as soon as possible;
(4)the medical treatment which he had received and the measures he had been taking to improve his mental health had seen an improvement over time and he felt that he would be capable of successfully sitting the exam within a six month period in light of those developments.
Mr Prince contended that the Tribunal did not deal with the substance of this request anywhere in the Tribunal’s reasons for refusing to grant an adjournment of six months. Mr Prince argued that the approach of the Tribunal (repeated by the FCCA judge) involved the same flawed reasoning adopted by the Tribunal in Li’s case that “the applicant has been provided with enough opportunities to present her [Ms Li’s] case”.
Mr Prince made the following additional criticisms of the Tribunal’s reasons:
(1)As in Li’s case, the Tribunal made no reference to the probability that the appellant would be able, within a reasonable time, to secure the requisite IELTS assessment. There were two important (and accepted) factors which pointed to the probability that the appellant could with a “reasonable opportunity” acquire the requisite IELTS test and which were not addressed by the Tribunal in its reasons to this end. First, in the many IELTS exams which the appellant had sat prior to 2011, he had met the score six requirement on each of the bands of the test on numerous occasions (but not all at the same time). Further, when he failed to secure a score of six on a component it was only ever by a small margin. Second, the Tribunal accepted that the appellant’s mental illness had been subject of improvement in the preceding 12 months and that he was receiving ongoing treatment and assessment.
(2)The Tribunal incorrectly used the information concerning the improvement in Mr Islam’s mental condition to suggest that the appellant had had enough time, however, there was no evidence before the Tribunal that the mental illness had resolved and was no longer affecting the appellant to prevent him from undertaking the exams. The accepted trajectory of the condition, however, was consistent with the proposition that if the Tribunal had given the appellant a reasonable opportunity by way of adjournment to sit for his IELTS test once his condition had improved, there would be a probability that he could secure the requisite IELTS test result.
(3)Further relevant to the finding of a denial of procedural fairness in refusing to grant a reasonable adjournment in Li’s case was that there was “no practical countervailing consideration disclosed in the [Tribunal’s] reasons for refusing to defer its decision”. That same factor applies with equal force in the present case and was not acknowledged or dealt with by the Tribunal.
(4)In the present case, the refusal to grant an adjournment referable to a period which allowed the appellant’s medical condition to resolve so as to allow him a reasonable opportunity to obtain the necessary assessment with respect to a time of decision criterion involved a denial of procedural fairness.
Consideration
The Tribunal’s first reason for refusing Mr Islam’s request for further time was a straw man. Mr Islam did not ask the Tribunal to delay its decision until he achieved the necessary score.
The Tribunal’s second reason, that the appellant had already had “more than two and a half years to obtain the required result and had taken the test up to ten times”, suggests a view that the appellant had had ample opportunity to provide evidence of his competency in English. I accept that it was open to the Tribunal to form that view, and that the extent of the opportunity that the appellant had already had was relevant to whether he should be granted a six month adjournment.
I accept that the Tribunal’s third reason provided a justification for refusing the application for a six month adjournment. The finding that the appellant was in a better mental state than a year ago, without more, would not be sufficient. But the Tribunal went further and found that the appellant was fit to sit any tests he wished. Implicit in that finding was a rejection of any suggestion that the appellant’s mental state warranted allowing him time to prepare for the IELTS test. The appellant’s need for time to prepare for the test was a factual matter and it was open to the Tribunal to conclude that he did not need preparation time.
Finally, I accept that the Tribunal’s fourth reason provided some support for its decision to refuse a six month adjournment. Once it was found that the appellant was fit to sit the test, it was open to the Tribunal to conclude that Mr Islam had been fit to undertake the test since his return to Australia in July 2013.
Mr Prince noted that the Tribunal did not identify any reason why the review needed to be concluded without giving the appellant the time that he requested. As Mr Prince observed, there was no history of delay on the part of the appellant. On the other hand, the consequences for the appellant if he were unable to provide the necessary evidence of English competency within the six weeks allowed, were very significant. Accepting these submissions, I do not consider that they demonstrate that the Tribunal’s decision lacks an evident and intelligible justification, particularly bearing in mind the Tribunal’s duty to review decisions within a reasonable time.
CONCLUSION
On the material available to the Tribunal, it was open to it to refuse the appellant’s application for a six month adjournment and to conclude that six weeks would provide the appellant with sufficient opportunity to present its case. The FCCA judge did not make an appellable error in dismissing the appellant’s application for judicial review.
Accordingly, the appeal must be dismissed.
The Court gratefully acknowledges the assistance of counsel for the appellant, Mr Prince, who appeared pro bono following the Court’s referral pursuant to r 4.12 of the Federal Court Rules 2011.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 1 September 2016
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