Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1074
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1074
File number(s): MLG 1451 of 2018 Judgment of: JUDGE EGAN Date of judgment: 23 December 2022 Catchwords: MIGRATION – whether Tribunal imposed upon the applicants an onus of proof in respect of the relevant claims – whether the Tribunal’s reasons as a whole reflected the requisite requirement that it be satisfied as to the correctness of the applicants’ claims – whether Tribunal’s reasons were illogical or irrational – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth) sch 2 pt. 885, cls. 885.213
and 885.221Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Egueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 151 FCR 289
SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210
Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 1 December 2022 Date of hearing: 1 December 2022 Place: Brisbane Counsel for the Applicants: Mr S Sharify Solicitor for the Applicants: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1451 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HITESH KUMAR
First Applicant
SHIPRA SHIPRA
Second Applicant
SUMAN SUMAN
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Amended Application for Review filed on 19 January 2022 be dismissed.
3.The First Applicant and Third Applicant pay the First Respondent’s costs of and incidental to the Amended Application for Review fixed in the amount of $7,053.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The first applicant is a male citizen of the Republic of India who arrived in Australia in June 2006 on a valid Indian passport. The third applicant is married to the first applicant and together they are the parents of, and litigation guardians for, the second applicant. The success or otherwise of the second and third applicants’ visa applications is dependent upon the success or failure of the claims of the first applicant.
On 20 November 2011, the first applicant applied for a Skilled – Independent (Class VB) (Subclass 885) Visa. The criteria to be met for the grant of a Subclass 885 visa are as set out in part 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
On 4 July 2014, a delegate of the Minister refused to grant the visa applications on the basis that the applicant did not satisfy cl. 885.213 because he had not provided evidence of competency in the English language. After remitter of the matter back to the department on 27 February 2014, on 4 July 2014 the department again refused to grant the visa, holding that the applicant did not satisfy cl. 885.221 because the first applicant did not meet the qualifying pass score.
On 26 November 2014, the Administrative Appeals Tribunal (‘the Tribunal’) affirmed the decision of the delegate. Subsequently, on 16 February 2016, that decision was quashed by consent and the matter was remitted back to the Tribunal.
A further hearing was held before the Tribunal on 1 February 2017. It was recorded at [8] of the reasons of the Tribunal that a newly constituted Tribunal had listened to the recording of the hearing of 1 February 2017 and had considered all of the written evidence before it. At [9] of its reasons, the issue before the Tribunal was recorded as being whether the first applicant had the required points score so as to meet cl. 885.221 of Schedule 2 to the Regulations.
On 23 April 2018, the Tribunal affirmed the decision not to grant the visas.
An Originating Application for Review of the decision of the Tribunal was filed on 25 May 2018. At the time of the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 19 January 2022, the grounds of which were as follows:
1. …
2. In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Sched 6B to the Regulations, the Tribunal:a.misunderstood the law by imposing an onus of proof on the First Applicant; and/or
b. misunderstood the law, or reasoned in a way that was illogical or irrational, by proceeding on the basis that the relevant part of the ‘points test’ required ‘independently verifiable evidence’.
3. In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Schedule 6B to the Regulations, the Tribunal reasoned illogically or irrationally in finding that the First Applicant did not sit any IELTS test in India between 2010 and 2012.
Ground 2 of the Amended Application for Review was firstly a claim that the Tribunal had improperly imposed an onus of proof on the first applicant, and that the Tribunal had acted illogically or irrationally by proceeding on the basis that the relevant part of the “points test” required “independently verifiable evidence”. It was asserted that though the Regulations did not impose any onus of proof on the first applicant, the Tribunal had at [30] of its reasons, imposed such an onus. Further, it was asserted that though the Regulations contained no requirement as to how the first applicant could prove his English language test results, the Tribunal had wrongfully proceeded on the basis that the first applicant was required to produce independently verifiable evidence of his test results, as opposed to the applicant “himself giving oral and written evidence of the test results”. There is no merit to such ground.
First, it has long been accepted that an applicant is required to put relevant evidence or argument before a Tribunal in support of their claims. In Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] Gummow and Hayne JJ said:
“[187] … It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
It was submitted on behalf of the Applicant that the Tribunal’s use of the word “onus” in [30] of its reasons was determinative of the ground of review, and illustrative of the Tribunal having improperly imposed such an obligation on the first applicant which was impermissible.
In Egueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 151 FCR 289 at [90] – [91], Weinberg J held as follows:
“[90]The MRT’s role in satisfying itself as to various matters has nothing whatever to do with a “common sense” burden of establishing the facts necessary to enable it to reach a finding on “the critical issue”. There is no such burden, whether derived from “common sense”, or anywhere else. The only statutory requirement is that the MRT satisfy itself of the requisite matters.
[91]Subject to what VSAF had to say regarding the meaning of the term “satisfy” (in the context of a proceeding in which the applicant did not attend the hearing that had been arranged so that he could present his case, and therefore put no material to the relevant tribunal in support of that case), it is plainly wrong for a decision maker to approach an application for merits review by considering whether a persuasive burden of proof has been discharged.”
The Court accepts the submission made on behalf of the first respondent that on a proper reading of [30] of the reasons of the Tribunal, it was apparent that when using the word “onus” the Tribunal was doing no more than reflecting the test as set out in Abebe by recording that it was the responsibility of an applicant to provide the “necessary evidence” in support of their claims. That the word onus was used was not determinative as submitted on behalf of the applicant. Paragraph [30], when read as a whole, merely stated the obvious, namely that to satisfy the English Language Test the first applicant had to produce some evidence of his having undertaken the requisite tests, and that he had attained the requisite scores from an accredited and recognised institution. It provided as follows:
“[30]The Tribunal is of the view that the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule. However, in this case, the Tribunal has, at the request of the applicant’s representative, made every effort to substantiate the applicant’s claims to have achieved the standard of proficient English, but without success”.
Second, it is clear from the second sentence of [30] that the Tribunal went to the trouble of itself contacting the British Council to request copies of the results of any tests undertaken by the first applicant. Had it been the case that the Tribunal was asserting that the first applicant was solely responsible for identifying relevant evidence for consideration by the Tribunal, as would be consistent with the imposition of a strict onus of proof resting upon the applicant, the Tribunal would not have undertaken such investigations itself.
The further claim in Ground 2 was that the Tribunal’s finding that there was no independently verifiable evidence that the first applicant had achieved the requisite standard of English was illogical or irrational. [32] of the reasons of the Tribunal was as follows:
“[32]The applicant has been unable to substantiate his claim, with any independently verifiable evidence, that he achieved the standard of proficient English, within the prescribed period. On this basis the Tribunal can only allocate the points entitlement for competent English which has been demonstrated to the Tribunal’s satisfaction.”
It has been held that it is a high bar for it to be established that a decision maker has acted illogically or irrationally. In SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210, when discussing whether jurisdictional error had been demonstrated where some factual findings had been made which were said to be either irrational or illogical, Wigney J, at [52] - [56] and [61], said as follows:
“[52]As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or rationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (at [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[53] The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
[54] The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
[55]Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
[56]An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
…
[61]In all the circumstances, it was not at all illogical, irrational or unreasonable for the Tribunal to have regard to the fact that Mr B said nothing in the biodata interview concerning the Tamil Tigers in assessing the credibility of his claims as they were later developed.”
The reference by the Tribunal in [32] of its reasons to the prescribed period was a reference to the requirement that IELTS test scores are only valid for two years. That requirement was clearly set out in an email of 12 May 2016 sent from the British Council in India to the first applicant which relevantly provided:[1]
[1] Exhibit 1 – Court Book (CB) p. 314.
“Dear Siran
Thank you for writing to us.
Please note that as per the global regulations, IELTS test scores are valid only for 2 years from the date of taking the test. The IELTS test partners (the British Council, IDP Australia and the University of Cambridge ESOL examinations) recommend that receiving organizations will not accept a Test Report Form that is more than two years old.
We hence regret to inform you that we will not be able to issue an expired IELTS result.
A receiving organisation may choose to accept an older Test Report Form if a candidate can provide evidence that they have actively maintained or tried to improve their English language proficiency since doing the test. However, this is a decision of the Receiving Organisation, not the IELTS test partners. In addition, the IELTS test partners are unable to provide any letters or references endorsing a candidate’s level of English.
Should you need to take another IELTS test, you can find all the latest information including application forms and a list of test centres on the British Council website
We hope this information helps you.
British Council brings you the best of the UK and Indian experience. See how you can enjoy our wide range of events and service, do visit us at any further clarifications please feel free to contact us. We are available to assist you from Monday to Saturday between 9:00am to 6:00pm on our number at 0120 -6684353.
Regards
[name omitted]”
The test results had to be independently verifiable to at least establish that the test results had been achieved within the relevant prescribed period. The satisfaction of the relevant criteria in the Regulations was dependent upon that being done as a matter of common sense. The Tribunal did not err in seeking out such evidence, or requiring that the first applicant put such evidence before it.
The Tribunal correctly recorded that it had to be satisfied that the relevant criteria had been met. That the Tribunal expected the production of relevant documentary evidence to establish not only that the requisite points had been achieved upon testing, but also that the testing had occurred within the prescribed period, was neither illogical or irrational. The Tribunal was entitled to rely upon the advice from the British Council that the first applicant had not undertaken any IELTS test in India between 2010 and 2012. Corroboratory evidence has long been accepted as constituting a basis for a decision maker arriving at a reasoned decision. In Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 at [28], Finkelstein J said as follows:
“[28]This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of "facts" is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.”
In any event, in circumstances where there was evidence before the Tribunal that no relevant test had been undertaken in the prescribed period, the Tribunal did not act either illogically or irrationally by seeking production of some independently verifiable evidence that the test had been undertaken, and that the requisite score had been obtained. Having such evidence would have established the applicant’s claims, but no such evidence was forthcoming.
As to Ground 3 of the Further Amended Application for Review, such ground sought an impermissible merits review of a clear finding of fact by the Tribunal.
Secondly, when assessing whether relevant criteria have or have not been satisfied in the face of claims that they had been, it was neither illogical nor irrational for the Tribunal to have found, after due inquiry had been made by it of the British Council, that the first applicant had not sat and passed the relevant test. The Tribunal squarely dealt with that issue at [31] of its reasons where it was said:
“[31]The Tribunal does not accept that the advice of the British Council in India cannot be relied upon on the basis that the applicant sat an IEL TS test in Australia on 3 September 2011, as this enquiry to IEL TS International clearly requested confirmation of whether the applicant undertook a test at the British Council in India between 2010 and 2012 and the results of any test undertaken taken. The Tribunal therefore prefers the evidence of the British Council that the applicant did not undertake an IELTS test in India between 2010 and 2012, but that he did sit two tests in India on 14 March 2009 and 24 October 2009. Copies of these test results were provided and in both of these tests the applicant achieved a competent standard of English. Further, the IEL TS test undertaken in Australia on 3 September 2011 likewise resulted in a standard of competent English.”
The Tribunal’s consideration of the evidence before it was thorough and demonstrated the appropriate level of intellectual engagement with the applicant’s claims. The Tribunal did nor err in the way in which it undertook its deliberations or in its reasons for its decision. Ground 3 is without merit.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 23 December 2022
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