Jahan v Minister for Immigration - [2010] FMCA 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JAHAN v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 101

MIGRATION – Visa – Student (Temporary) (Class TU) visa – review of Migration Review Tribunal decision – IELTS test result – where applicant claims to have submitted IELTS test result to the Department of Immigration and Citizenship – where IELTS test result not considered by Minister’s delegate – where Tribunal did not receive IELTS test result – where Tribunal did not receive IELTS test result – where applicant erroneously believed that the Tribunal had the IELTS test result in its possession and would consider it when making its decision – whether Tribunal’s letters to applicant amounted to misrepresentation – where applicant was aware of the contents of the Department of Immigration and Citizenship file and the Migration Review Tribunal files prior to the Tribunal hearing – where applicant did not attend Tribunal hearing – no jurisdictional error.

Migration Act 1958 (Cth), ss.357A, 360, 362B, 476
Migration Regulations 1994 (Cth), Sch. 2 Part 572; Sch. 5A, Division 3, Part 4

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
Muin v Refugee Review Tribunal (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZGTD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 95
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
SZCGM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1196
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811

Applicant:

SAHARIAR JAHAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2592 of 2008

Judgment of:

Scarlett FM

Hearing dates:

15 December 2009 & 28 January 2010

Date of Last Submission:

28 January 2010

Delivered at:

Sydney

Delivered on:

12 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr Reynolds

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Mr Kennett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs as agreed or assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2592 of 2008

SAHARIAR JAHAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Migration Review Tribunal that affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Student (Temporary) (Class TU) visa.
By his Further Amended Application filed on 15^th November 2009, the Applicant seeks writs of:
a)Certiorari;
b)Mandamus; and
c)Prohibition.
The Applicant claims that the Tribunal fell into jurisdictional error by:
a)Failing to take into account a relevant consideration;
b)Failing to understand or otherwise deal with a claim made by the Applicant;
c)Failing to comply with Migration Act 1958 s.360;
d)Failing to comply with Division 4 of Part 5 of the Act; or
e)Not conducting a review under the Act.

Background

The Applicant, who is a citizen of Bangladesh, applied for a Student (Temporary) (Class TU) visa on 19^th May 2006. At that time he was represented by a migration agent, Mr Carl Konrad. On 6^th October 2007 a delegate of the Minister refused the application. In the Decision Record, the delegate stated that the Applicant did not satisfy Regulation 572.223(2)(a)(i)(A) for this reason:
Applicant has not provided evidence that he meets the English requirements of the legislation, as required under schedule A507, for the assessment level to which he is subject.[1]
[1] Court Book at page 31

Application to the Migration Review Tribunal

The Applicant applied to the Migration Review Tribunal for review of the delegate’s decision on 23^rd October 2007. He appointed a migration agent, Mr Ofeina Sikhele, as his representative and authorised recipient.
On 25^th July 2008, the Tribunal wrote to the Applicant’s migration agent, inviting the Applicant to attend a hearing of the Tribunal to take place on 21^st August 2008. Shortly after that, on 31^st July 2008, the Applicant transferred his instructions to Mr Nigel Dobbie, of Visa Immigration Specialists Australia Pty Ltd.[2]
[2] Court Book at page 56
On 21^st August 2008, the Applicant’s new representative, Mr Dobbie, advised the Tribunal that his client did not wish to attend the hearing, saying:
I am instructed to notify the MRT that Mr Jahan does not wish to attend the hearing before the MRT today and that a decision can be made on the papers.[3]
[3] Court Book 61
The Applicant did not attend the hearing. The Tribunal exercised its power under s.362B of the Migration Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.

The Migration Review Tribunal Decision

The Tribunal signed its decision on 29^th August 2008 and handed the decision down on 10^th September, affirming the decision not to grant the Applicant a Student (Temporary) (Class TU) visa.
In its decision, the Tribunal noted that the Applicant had applied for a Subclass 572 Vocational Education and Training Sector visa, the criteria for which are set out in Part 572 of Schedule 2 to the Migration Regulations. It stated that the issue in the case was whether the Applicant met the criterion in cl.572.223, which requires that, at the time of the decision, the Minister must be satisfied that the Applicant is a genuine applicant for entry and stay as a student having regard to the factors set out at cl.572.223(2).
The Tribunal noted that cl.572.223(2) required the Applicant to satisfy the Minister about the Applicant’s English language proficiency and financial capacity to undertake the proposed courses of study. The Tribunal said:
Pursuant to 572.223(2)(a) the applicant must provide evidence in accordance with the requirements in Schedule 5A to the Regulations. The relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject.[4]
[4] Court Book 74 at paragraph [8]
The Tribunal went on to note that the Gazette notice in force at the time of the application specified that the relevant assessment level for an applicant who had applied for a Subclass 572 visa and held an eligible passport from Bangladesh was Assessment Level 3.
The Tribunal stated that the requirements for Assessment Level 3 for Subclass 572 were set out in Division 3 of Part 4 of Schedule 5A to the Regulations, and that the relevant provision was cl.5A407 of Schedule 5A. This required that an applicant must give evidence that he or she had the requisite degree of English language proficiency. To do this, the Applicant had to show that he or she had achieved, in an IELTS[5] test that was taken less than 2 years before the date of the application, an Overall Band Score at the required level.
[5] International English Language Testing System
The Tribunal noted that the Applicant had provided a number of documents at the time of making his visa application, which went to his academic attainments and the fact that his uncle would be supporting him financially while he was studying in Australia.
In its Findings and Reasons, the Tribunal found that the Applicant was subject to consideration under Assessment Level 3. It stated:
24.In the present case, the delegate found that the applicant did not meet cl.572.223(2)(a)(i)(A). The delegate found that the applicant did not have the requisite English language proficiency as specified in cl.5A407.
25.There is no information before the Tribunal to indicate that the applicant has met the requirements in relation to his English proficiency. The Tribunal has not had an opportunity to discuss this with the applicant, as he chose not to attend the hearing.
26.On the basis of the above, the Tribunal finds that the applicant has not given the Tribunal evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3 to which he is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake (cl.5A407). Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i)(A).[6]
[6] Court Book 79 at [24]-[26]
The Tribunal found that the Applicant did not meet an essential requirement of cl.572.223 and affirmed the decision under review.

Application to the Federal Magistrates Court

The Applicant commenced these proceedings on 8^th October 2008. At that time he filed an affidavit to which he annexed copies of:
a)The Tribunal decision;
b)A letter from Mr Konrad to the Department of Immigration and Citizenship dated 2^nd March 2007; and
c)An IELTS Test Report Form dated 13/12/2006 relating to the Applicant.
The Applicant subsequently filed a further affidavit on 12^th December 2008, annexing copies of:
a)An email from Emi Tsurugoya on behalf of Mr Konrad dated 12 October 2007;
b)The letter from the Minister’s delegate to Mr Konrad dated 06 October 2007 refusing the application for a visa; and
c)The delegate’s Decision Record.
The Applicant also filed an affidavit by Mr Konrad on 8^th December 2008, to which were annexed copies of various emails, letters and faxed documents.
The Applicant deposed that he received a copy of his IELTS results on or about 17 December 2006. He emailed a copy of the document to Mr Konrad and later went personally to Mr Konrad’s office with the document. He believed that Mr Konrad had forwarded a copy of that document to the Department. When he was advised that the delegate had refused his application, he believed that it was because he had not submitted his IELTS result with his application, but later.
When the Applicant applied to the Migration Review Tribunal, he was under the impression that the Department of Immigration and Citizenship would forward all relevant documents, including his IELTS results, to the Tribunal.
He explained his decision not to attend the Tribunal hearing in his affidavit filed on 12^th December 2008:
8. I refer to the letter dated 25 July 2008 appearing at pages 54 to 55 of the Court Book sent to Mr Sikahele. I was provided with a copy of this letter by Mr Sikahele around that time and I remember reading it. When I read it, I decided not to attend the hearing before the Tribunal because I thought that the Tribunal had a copy of my IELTS test results which clearly showed that I achieved a score of 6.0. If I was unable to succeed even though I had this test result, I did not think there was any point in me attending the hearing because there was nothing further that I could do to prove my English proficiency.
9. Had I not been told by the Tribunal that it would ask the Department for all documents that were relevant to my review, or had I been aware that the Department would not send a copy of my IELTS test to the Tribunal, I would have directed Mr Konrad to send a further copy of my IELTS test result to the Tribunal for it to take into account when considering my case.[7]
[7] Affidavit of Sahariar Jahan filed 12 December 2008 at paragraphs [8] and [9]
In cross examination by Mr Kennett of counsel, for the Minister, the Applicant said that when he received the letter dated 6^th October 2007 refusing his application for a visa and the accompanying reasons, he did not think that it meant that the delegate had not seen the IELTS test results. He said that he did submit the IELTS test result, but it was submitted late. His attention was drawn to the sentence:
Applicant has not provided evidence that he meets the English requirements of the legislation, as required under schedule A507, for the assessment level to which he is subject.[8]
[8] Court Book 31
The Applicant was adamant that he had no reason to think that the Department did not have his test results.
The Applicant’s former migration agent, Mr Konrad, deposed in his affidavit that the Applicant engaged him to act for him after he had lodged his application for a visa. He subsequently received from the Applicant printed copies of three emails, all from one Elizabeth Rozas, an officer of the Department. The three emails comprise Annexures “A”, “B” and “C” to Mr Konrad’s affidavit.
The first email, dated 24 May 2006, said (relevantly):
In order to make a decision on your application, you must provide the following documents:
…Evidence of sufficient English to undertake your nominated course, either:
·    IELTS certificate that is less than 2 years old; or
·    Senior Secondary Certificate of Education, completed in English; or
·    Evidence of having successfully completed a substantial part of a course that was conducted in English and was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
·    Evidence of having successfully completed a foundation course in Australia, in English; or
·    Evidence of having at least 5 years of study in English undertaken in 1 or more of the following countries: Australia; Canada; New Zealand; South Africa; the Republic of Ireland; the United Kingdom; the United States of America.
Please provide the original OR a certified copy of this document.
The documents must be submitted by mail and must be received within 28 days from the date of this letter. If you do not send me the document I will make a decision on your application based on the information and documents provided so far. Please contact me by email if you have any problems in meeting this deadline.[9]
[9] Affidavit of Carl Konrad filed on 8.12.2009 Annexure “A”
The third email from Ms Rozas told the Applicant:
I need to see more evidence of English proficiency. It can be done by one of the following;
Evidence of sufficient English to undertake your nominated course, either:
·    IELTS certificate that is les than 2 years old; or
·    Senior Secondary Certificate of Education, completed in English; or
·    Evidence of having successfully completed a substantial part of a course that was conducted in English; or
·    Evidence of having successfully completed a substantial part of a course that was conducted in English and was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
·    Evidence of having successfully completed a foundation course in Australia, in English; or
·    Evidence of having at least 5 years of study in English undertaken in 1 or more of the following countries: Australia; Canada; New Zealand; South Africa; the Republic of Ireland; the United Kingdom; the United States of America.
Please provide me with this evidence so I can finalise your application.[10]
[10] Affidavit of Carl Konrad filed on 8.12.2009 Annexure “C”.
Mr Konrad deposed that he sent an email to Ms Rozas on or about 7^th January 2007. A printed copy of the sent email was annexed to his affidavit. In the email, he stated (relevantly):
I understand the IELTS result was last requested and I have attached this as well.[11]
[11] Affidavit of Carl Konrad 8.12.2009 Annexure “D”
The email included in its heading the words:
Attach: JAHAN, Sahariar_supporting doc IELTS and new COE.pdf; JAHAN Sahariar 956.pdf.[12]
[12] ibid
Mr Konrad went on to depose that, as a result of a telephone conversation by a person from his office with the Department a copy of the Form 956, the Appointment of Migration Agent form, was faxed to the Department on 19^th February 2007[13]. A copy of that form was again faxed to the Department on 23^rd February 2007.[14]
[13] Ibid Annexure “F”
[14] Ibid Annexure “G”
Further in his affidavit, Mr Konrad deposed that he telephoned the Department on or about 26^th April 2007 and had a conversation with an officer named Joanne Huynh, to this effect:
Konrad:What is happening in relation to this matter? I’ve sent in the documents that you wanted, but I haven’t heard anything from you for almost two months.
Huynh:We haven’t received anything from you. Also, we don’t have a 956 from you so I can’t really talk to you about this matter.
Konrad:That’s ridiculous, I’ve sent you the 956, IELTS result and his new COE documents by email in January and again by post in a letter in March, and I’ve sent you the 956 again by fax in February and I know the Department received it by the transmission report.
Huynh: I apologise for this but the Student Centre has been in the process of moving and files are all over the place. Send me a copy of the Form 956 again and we can talk further.[15]
[15] Affidavit of Carl Konrad 8.12.2009 at paragraph [14]
Mr Konrad deposed that he sent a further copy of the Form 956 to Ms Huynh by fax and spoke to Ms Huynh later that same day. He received an email from the Department later that day, saying (relevantly):
In order to make a decision on the application, please provide the following documents within 14 days:…
…Please be advised that the document you have previously provided does not meet the English Requirement. You must provide one of the following as evidence of sufficient English to undertake your nominated course, either:-
IELTS certificate with an overall band score of 5.5 and is less than 2 years old before the date this application was lodged…[16]
[16] Affidavit of Carl Konrad 8.12.2009 Annexure “J”
Mr Konrad deposed that he telephoned Ms Huynh that day and she confirmed that she had received the faxed copy of the Form 956. He sent a further email to the Department on or about 16^th June 2007. On or about 12^th October 2007 he received a copy of the delegate’s decision.
He caused a Freedom of Information request to be made on or about 6^th December 2007 and received some documents in reply on or about 23^rd January 2008.
In cross-examination, Mr Konrad maintained the position that he had set out in his affidavit. He said that he had a specific memory of the matter because of the frustration in sending documents to the Department. He said that he did not provide documents again that he and his employees had already sent.
There were no further witnesses for the Applicant.
The Minister called Laura Frances Weston, a solicitor employed by the Minister’s solicitors on the record in this matter, to give evidence.
Ms Weston deposed to two affidavits, made on 22^nd December 2008 and 11^th December 2009.
In her first affidavit, Ms Weston deposed to having sent emails to the Department seeking the Departmental files relevant to this matter. She annexed copies of the emails which she sent and received and the letters which accompanied the files that she received. She also deposed that she had caused a Court Book to be complied from the files received.
Ms Weston deposed that on 2^nd December 2008 a Notice to Produce was brought to her attention and she subsequently sent emails to the Department. She received various emails back from various Departmental officers.
In her second affidavit, Ms Weston deposed that she sent emails to the Department on 14^th October and 11^th November 2008 requesting the Departmental files relevant to this matter. She received a copy of the Department’s file number CLF2006/41806 on 27^th October 2008 and file number CLF2007/155351 on 14^th November 2008.

In cross-examination by Mr Reynolds of counsel, who appeared for the Applicant, Ms Weston stated that she had no further knowledge of the Department’s file system than what she had been told by the Departmental officers with whom she had communicated. She relied on the information given to her by the Department.

Submissions on behalf of the Applicant

Counsel for the Applicant, Mr Reynolds, submitted that the Tribunal was under an obligation to consider all claims (including component integers) expressly or squarely raised by the material before it.[17] In discharging this duty it is essential that the Tribunal correctly identifies what the Applicant has claimed when seeking a visa. There can be jurisdictional error where the Tribunal has misunderstood the claims made to the delegate even where it has correctly understood the claims made to the Tribunal itself.[18]
[17] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58], [63]
[18] SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 per Rares J at [33]-[35], [37]
Thus, it is submitted, the Tribunal misunderstood the Applicant’s claims as they were made to the delegate because it failed to appreciate that the Applicant had claimed to the delegate that he had taken an IELTS test and had obtained a satisfactory score.
Mr Reynolds went on to submit that the IELTS test result was a relevant consideration that the Tribunal failed to take into account. There is a need to engage in an active intellectual process in dealing not only with the claims made but also any relevant considerations.[19] The only inference that may be drawn from the absence of the reference to the IELTS test result is that the Tribunal did not take it into account. As it was absent from the Tribunal file, it is not open to infer that the Tribunal took it into account but did not refer to it.
[19] SZMIA v Minister for Immigration and Citizenship at [32]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134
As to the claim that the Tribunal breached s.360 of the Act, Mr Reynolds submitted that the Tribunal had, by letter to the Applicant’s migration agent dated 23^rd October 2007[20], indicated that it had requested the Department to provide a copy of all documents considered to be relevant to the review. Further, by letter dated 25^th July 2008, the invitation to appear before the Tribunal, the Tribunal had informed the Applicant that it had considered the material before it.[21]
[20] Court Book 50
[21] Court Book 51
It was the Applicant’s evidence that he believed that the Department had forwarded all documents to the Tribunal, including the IELTS test result, and that the Tribunal had considered that document when it said that it had considered the material before it. It was submitted that this amounted to a misrepresentation because the Tribunal did not in fact receive the IELTS certificate and its consideration of the material did not include consideration of that certificate. Mr Reynolds referred to the judgment of Gaudron J in Muin v Refugee Review Tribunal[22] where her Honour said at [63]:
In my view, a reasonable applicant for review who had been informed that the tribunal would look at the department’s documents along with other evidence on the tribunal file and, later, that the tribunal had looked at “all the material relating to [the] application” would have been misled into thinking that it was unnecessary to draw the tribunal’s attention to the material that favoured his or her application in the Part B documents referred to in the original decision and would have refrained from so doing.
[22] (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30
Because he was so misled, it was submitted, the Applicant formed the belief that there would be no point in attending the hearing before the Tribunal because, if the IELTS certificate was insufficient, there was nothing further he could say in respect of the review.
It was further submitted that there was a breach of s.360 of the Act because the Tribunal was under an obligation to invite the Applicant to appear before the Tribunal to give evidence and present arguments in relation to the decision under review, and that invitation must be “real and meaningful” (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR[23] at [37]). The question of whether s.360 has been frustrated is an objective question that does not depend on the Tribunal’s knowledge of the circumstances said to give rise to its frustration (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR at [37]; see also SZFDE v Minister for Immigration and Citizenship[24]).
[23] (2003) 128 FCR 553
[24] (2007) 232 CLR 189
Essentially, it is the Applicant’s submission that the Tribunal made a misrepresentation that led the Applicant to hold an erroneous belief as to the nature of the issues that arose in relation to the review and of the evidence that was before it. As a consequence, the Applicant was under a misapprehension as to what was before the Tribunal.

Submissions on behalf of the Minister

Counsel for the Minister, Mr Kennett, submitted that if it were established that Mr Konrad had sent the IELTS test result to the Department and a copy of it arrived in the Department’s offices, that might establish that, in a literal sense, the Applicant had “given to the Minister evidence” of his English language proficiency, notwithstanding that the delegate who decided the visa application obviously did not see the document. Whether the Applicant had provided the relevant evidence was a matter for the Tribunal.
Clause 572.223(a)(i) requires that there be before the decision-maker, in this case the Tribunal, evidence of the relevant matters including the visa applicant’s English proficiency. The Tribunal considered that issue and reached a conclusion that was plainly right, on the material before it. As it is conceded that the IELTS document never reached the Tribunal, it cannot be the case that the Tribunal failed to assess a relevant consideration or claim or that it overlooked a critical piece of evidence.
Mr Kennett further submitted that the Applicant’s reliance on the decision in Muin v Refugee Review Tribunal[25] could not succeed. There, the agreed facts established that each plaintiff had been led to think that the Tribunal would obtain and read certain documents referred to by the delegate, but those documents were not sent to the Tribunal. The plaintiffs succeeded on the basis of a denial of procedural fairness, relating to the natural justice hearing rule. However, since s.357A(1) of the Migration Act, general rules of procedural fairness no longer have any direct application (Minister for Immigration and Multicultural and Indigenous Affairs v Lat[26].
[25] Supra
[26] (2006) 151 FCR 214 at 225-226
Further, it was submitted that there was no conduct by the Tribunal that was realistically capable of misleading capable of misleading that Applicant as to what material was before it, for these reasons:
a)The delegate’s reasons for decision concluded that the Applicant had not provided evidence that he met the English language requirements of the legislation, the only possible explanation for which is that the delegate had not seen the IELTS test result document;
b)The Tribunal’s letter to the Applicant of 23^rd October 2007 asked the Applicant to provide any documents or written arguments that he wished the Tribunal to consider and provided no rational basis for thinking that the Tribunal would receive from the Department a document which the delegate had not referred to and plainly had not seen;
c)The Applicant’s advisers had asked for access to the documents in the Tribunal’s possession and, as a result of the Tribunal’s provision of that information on 23^rd January 2008, the Applicant’s advisers knew exactly what documents the Tribunal had six months before the hearing invitation was issued;
d)The Tribunal invited the Applicant to attend a hearing because it was unable to make a favourable decision on the material before it, which would lead the person reading the invitation to understand that more needed to be done to bring about a favourable result;
e)Whilst a hearing must amount to an opportunity to give evidence and present arguments about the issues arising in relation to the decision under review and, therefore, the Applicant attending the hearing is entitled to have his or her mind directed to the critical issues in the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[27]), it does not follow that the Tribunal must spell out these issues;
f)It is enough for the Tribunal to make it clear that it is not persuaded by the documents that have been put before it, and a review applicant who is advised in those terms but nevertheless decides not to attend the hearing cannot complain that he or she has not had the opportunity provided by s.360 of the Act (see SZGTD v Minister for Immigration & Anor Multicultural and Anor[28] at [23] and the authorities cited there).
[27] (2006) 228 CLR 152
[28] [2006] FMCA 95
In reply to the Applicant’s reliance on the decision in SZFDE v Minister for Immigration and Citizenship[29], Mr Kennett submitted that there were two critical distinctions between that case and the present one:
a)The fraud of the Applicant’s adviser prevented the Tribunal from having her claims put to it, but in the present case there was nothing to stop the Applicant from attending the hearing, which would have made any misunderstanding readily apparent; and
b)The reasoning in SZFDE is limited to cases of fraud.
[29] Supra

Conclusions

This is an unusual case that clearly raises the question of whether the Applicant did in fact submit his IELTS test result to the Department and whether the Tribunal fell into error by not considering it.
The following facts are clear:
a)The delegate did not consider the Applicant’s IELTS test result in making the decision not to grant the visa; and
b)The Tribunal did not consider the IELTS test result when it made the decision to affirm the delegate’s decision.
There is nothing to suggest that the Tribunal ever had a copy of the IELTS test result or was aware of its existence when making its decision. It must follow that where there was no evidence of the Applicant’s English language proficiency, the Tribunal did not fall into error by failing to consider a relevant piece of evidence.
In dealing with the factual situation, it is clear that the Applicant applied for a Student visa on 19^th May 2006. He did not submit his IELTS test result with his application, because he did not have it. The certificate, which forms Annexure “C” to the Applicant’s affidavit filed on 8^th October 2008, did not come into existence until 13^th December 2006. The Applicant deposed that he received the document on or about 17^th December that year. He did not submit that document personally to the Department, but gave a copy to Mr Konrad by email and later in person.
The Departmental officer handling the case, Ms Rozas, sent an email to the Applicant on 24^th May 2006, asking for evidence of his English proficiency. This request was repeated in a later email, sent on 13^th June 2006. At that stage, the Applicant did not have the IELTS test result, nor had he instructed Mr Konrad to act for him.
It was not until November 2006 that Mr Konrad received his instructions from the Applicant.
It was Mr Konrad’s evidence that he first contacted the Department by email on 7^th January 2007, attaching the Form 956 (appointment of Migration Agent) and a copy of the IELTS test result of 13^th December 2006. A copy of his email is annexed to his affidavit.
A further copy of the Form 956 was faxed to the Department on 19^th February 2007 and, again, on 23^rd February 2007. Inexplicably, a further copy of the IELTS test result was not faxed to the Department at the same time. That failure is relevant because it must have been clear that the Department had no record of the Form 956 attached to Mr Konrad’s email of 7^th January 2007. If it had no record of the Form 956 attached to the email, it follows that it had no record of the IELTS test result attached to the same email.
The problem must have become apparent to Mr Konrad after his telephone conversation with Joanne Huynh of the Department on or about 26^th April 2007, when he deposes that she told him that the Department had not received a Form 956 from him. By this stage, the Form 956 had already been sent three times, once in January and twice in February. The explanation he was given was that the Student Centre was in the process of moving and files were “all over the place”. That would appear to be an understatement.
In any event, it was Mr Konrad’s evidence that he sent a fourth copy of the Form 956 by fax that same day and received an email in reply later that day.[30] That email made it clear that the Department did not have a copy of the IELTS test, because it asked him to provide:
IELTS certificate with an overall band score of 5.5 and is less than 2 years old before the date this application was lodged.[31]
[30] Annexure J to his affidavit
[31] Ibid
It is surprising that Mr Konrad did not ask the Department why it, if it had received the IELTS test certificate attached to his email of 7^th January 2007, it was not going to accept it. The clear meaning of the Department’s email was that it did not have an IELTS test document. Mr Konrad said in cross examination that he did not provide documents again that he and his employees had already sent[32] but that is not correct. He and his employees had sent, on his evidence, four copies of the Form 956, because the Department kept saying that it did not have it. At the very least, a suspicion must have arisen that the Department did not have a copy of the Applicant’s IELTS test result, because the document was never specifically mentioned.
[32] See at [35] above
The delegate’s Decision Record said:
The applicant did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons:
Applicant has not provided evidence that he meets the English requirements of the legislation, as required under schedule A507, for the assessment level to which he is subject.[33]
[33] Court Book 31
The document is significant for what it does not say as much as for what it says. It says that the Applicant did not provide evidence and it does not say that the Applicant had provided an IELTS test certificate that was not satisfactory. It does not refer to the certificate at all, which leads to the inference that the delegate had not seen it or considered it.
Significantly, after the Applicant had applied to the Migration Review Tribunal for review of the delegate’s decision, the migration agent sent a fax to the Tribunal on 6^th December 2007, requesting copies of the Applicant’s DIAC and MRT files.[34]
[34] Court Book 51
The Tribunal replied on 23^rd January 2008, advising that the files consisted of:
a)Migration Review Tribunal 9MRT) file number 071812732 folios 1-24; and
b)Department of Immigration and Citizenship (DIAC) file number CLF2007/155351 folios 1-36.[35]
[35] Court Book 52
The Tribunal provided the entire contents of the DIAC file and almost the entire contents of the MRT file:
In accordance with your request, please find enclosed copies of disclosable folios from the above files.
Folios 1-36 of DIAC File number CLF2007/155351 have been released to you in full without exception.
From MRT file number 071812732, folio 24 has been found to be exempt from disclosure under section 14, Information Privacy Principle 11 of the Privacy Act 1988 because it contains information of a personal nature about another person. An edited version of folio 24 has been released to you as the information relating to other persons has been deleted.[36]
[36] Ibid
This evidence is significant, because it shows that the Applicant, or at least his migration agent, had received a full copy of the Department’s file. It must follow that it was obvious that the file did not contain a copy of the IELTS test result certificate.
All but one folio of the Migration Review Tribunal file was provided to the migration agent. Folio 24 was edited because it contained information of a personal nature about another person. Whatever that information was, it is a reasonable inference that it was not the Applicant’s IELTS test result, because that could only apply to the Applicant.
Thus, as a result of the Tribunal’s provision of access to the Department’s file and its own file on 23^rd January 2008 the Applicant, through his agent, should have been aware that neither file contained the IELTS test result.
The Tribunal sent its invitation to the Applicant, care of his same migration agent, on 25^th July 2008. That invitation said, relevantly:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.[37]
[37] Court Book 54
There is no misrepresentation. The meaning of the invitation is quite clear. The Applicant should have been well aware of the material before the Tribunal because the Applicant had copies of it. There is no evidence of any other material having been added to the MRT file between 23^rd January and 25^th July 2008. The Tribunal invited the Applicant to provide further written material:
Please use the form or attach additional information if there are any requests or new information you wish the Tribunal to consider.[38]
[38] Ibid
The Applicant appointed a different migration agent, Mr Dobbie, shortly afterwards. The form “Appointment of Representative” appointing Mr Dobbie is dated 30/7/08[39] and was forwarded to the Tribunal by fax on 31^st July 2008.[40]
[39]Court Book 57
[40] Court Book 56
The Applicant’s former migration agents advised the Tribunal on 18^th August 2008 that they were no longer representing the Applicant.[41]
[41] Court Book 60
By means of a faxed letter from Mr Dobbie dated 21^st August 2008, the Applicant advised the Tribunal that he did not wish to attend the hearing before the MRT:
and that a decision can be made on the papers.[42]
[42] Court Book 61
There is nothing to show that the Applicant was in any way persuaded or inappropriately induced not to attend the Tribunal hearing. He was represented by a registered migration agent at the time and he has not suggested that any pressure was brought to bear on him not to attend. What he deposed in his affidavit was that he made his own decision not to attend the Tribunal hearing after reading the Tribunal’s hearing invitation dated 25^th July 2008:
I was provided with a copy of this letter by Mr Sikahele around that time and I remember reading it. When I read it, I decided not to attend the hearing before the Tribunal because I thought that the Tribunal had a copy of my IELTS test results which clearly showed that I achieved a score of 6.0. If I was unable to succeed even though I had this test result, I did not think that there was any point in me attending the hearing because there was nothing further that I could do to prove my English proficiency.[43]
[43] Affidavit of Sahariar Jahan 12 December 2008 paragraph [8]
The fact is, however, that the Applicant, or at least his agent at the time, knew that the Tribunal did not have a copy of the IELTS test result document. It was neither on the Department’s file nor the Tribunal’s file. That much was known as a result of copies of those files being provided to the Applicant’s agent in January.
If the Applicant was under the belief that the Tribunal had a copy of his IELTS test result, it was open to him to attend the hearing and ask why that document had not been considered. He chose not to.
Counsel for the Minister has referred to my decision in SZGTD v Minister for Immigration & Anor where I said at [23]:
It should be abundantly clear by now that applicants who do not attend before the Refugee Review Tribunal when it invites them to give evidence at a hearing cannot be heard to complain if the Tribunal does not make a decision in their favour. A rejection of their application is almost an inevitable consequence because the Applicant is not able to provide further information to allow the Tribunal to be satisfied that the Applicant meets the criteria for a protection visa. (See NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287; SZCGM v Minister for immigration & Multicultural & Indigenous Affairs [2005] FCA 1196; SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306; SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1181[44]).
[44] There is a typographical error in the published decision. The correct citation for SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs is [2005] FCA 1811

In my view, the same holds true in the case of an application to the Migration Review Tribunal for review of a decision not to grant the Applicant a Student visa.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474 and is not subject to certiorari, mandamus or prohibition.
The application will be dismissed with costs.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 17 February 2010