Mo v Minister for Immigration
[2007] FMCA 1982
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1982 |
| MIGRATION – Review of Migration Review Tribunal decision – visa – student visa – no error of jurisdictional fact – Wednesbury unreasonableness concepts not relevant to a non-discretionary decision – Tribunal did not ignore relevant considerations – applicant not denied procedural fairness – no obligation to extend time to reply to request for information – allegation of bias not proved. |
| Migration Act 1958, ss.65, 359, 474 Migration Regulations 1994, sch.2, cl.572.223; sch.5A, cl.5A404 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | YINI MO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1732 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 November 2007 |
| Date of Last Submission: | 15 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1732 of 2007
| YINI MO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China who, by application dated 14 March 2006, sought a student visa for the purposes of study in Australia. For a number of years prior to the lodging of that visa application Ms Mo had already been living and studying in Australia on student visas.
The application in question was refused by the Minister’s delegate on 26 June 2006 on the basis that Ms Mo failed to provide evidence that she met the English language proficiency requirements set out in sch.5A to the Migration Regulations 1994 (“Regulations”). Following that refusal Ms Mo applied to the Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear Ms Mo’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
Following lodgement of Ms Mo’s application the Minister’s department wrote to her on 19 April 2006 asking, amongst other things, for evidence of English language skills sufficient to undertake her nominated course of study. That letter set out what sort of evidence would be satisfactory to meet that criterion (Bundle of Relevant Documents (“RD”) pages 25 – 26). By letter dated 16 May 2006 the applicant’s agent wrote to the department advising, amongst other things, that Ms Mo had requested the IETLS (International English Language Testing System) Centre to post her IELTS result to the department once it was available (RD 27).
When those results were not received the department wrote a final request to Ms Mo asking her to provide:
Copy of IELTS that was taken less than 2 years before the date you lodge [sic] your application or you may email me your IELTS Candidate number, Test Date, Testing Centre and Test Report Form number. (RD 31)
That certificate not being received within the time limit prescribed in the department’s 16 June 2006 letter, the delegate proceeded to make her decision, noting that the applicant had been unable to provide evidence that she met the English language proficiency requirements set out in sch.5A to the Regulations (CB 32 – 36).
In her application for review filed with the Tribunal on 12 July 2006 Ms Mo said that she intended to book the IELTS test, the earliest date being 28 November 2006 (RD 37 – 44). On 3 January 2007 the Tribunal wrote to Ms Mo pursuant to s.359(2) of the Act inviting her to provide the following additional information:
Evidence that you have English language proficiency for the purposes of each course of study that you propose to undertake.
The applicant was invited to provide the information by 31 January 2007 (RD 46 – 47).
By letter dated 29 January 2007 the applicant’s agent sent the Tribunal an IELTS test report dated 9 November 2006 which recorded that the applicant’s overall band score for the listening, reading, writing and speaking tests was “5.0”.
The applicant was invited to attend a hearing at the Tribunal which took place on 20 March 2007. According to the Tribunal’s decision record (para.15), at the hearing Ms Mo provided evidence that she was booked for an IELTS test on 31 March 2007. No doubt as a result of this information the Tribunal wrote to Ms Mo on 20 March 2007, again inviting her to provide the following information:
Evidence that you have English language proficiency for the purpose of each course of study that you propose to undertake.
It should also be noted that the Tribunal’s letter of 20 March 2007 contained the following notice:
If the Tribunal does not receive the additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the additional information.
On 17 April 2007 the applicant’s agent wrote to the Tribunal and asked for an extension of time within which to supply the IELTS test certificate on the basis that a large number of people had sat the test on the relevant day and the results “had not come out yet” (RD 59). The request for an extension of time was refused by the Tribunal’s letter of 18 April 2007. The Tribunal said:
Your request for an extension has NOT been granted. Please note that the Member hearing your matter will be on leave until next week. It is strongly suggested that you provide the requested information by that time.
Please also be reminded that the Tribunal is compelled to consider any evidence that you provide before the handing down of the decision. (RD 60)
On 1 May 2007 the Tribunal rang the IELTS Australia Melbourne Test Centre where the applicant had done her testing on 30 and 31 March 2007 and was informed that the test results had been sent out on 13 April 2007 to those who sat the test.
On 2 May 2007 the Tribunal wrote to Ms Mo inviting her to the handing down of its decision on 11 May 2007.
The Tribunal’s decision and reasons
The Tribunal’s decision dated 1 May 2007 was handed down or sent on 11 May 2007 (RD 71). After setting out the relevant regulatory background the Tribunal set out the background facts, which have been summarised above, and relevantly expressed its decision in the following terms:
The crucial issue in this application is whether the visa applicant has English language proficiency for the purposes of each course of study that the applicant proposes to undertake. According to clause 5A404, there are a number of options regarding English language proficiency. Despite been given numerous opportunities to provide the relevant evidence of English language proficiency, there is no evidence before the Tribunal that the visa applicant has, at the time of its decision, obtained the relevant evidence of English language proficiency. Accordingly, the visa applicant does not meet clause 572.223(2)(a)(i)(A) and as a result, does not meet clause 572.223(2). (RD 71)
Regulatory background
In her application for a student visa Ms Mo identified her intended course as “Advanced Diploma of Hospitality Management” (RD 5). That is to say, she did not give evidence that she proposed to undertake an English Language Intensive Course for Overseas Students (“ELICOS”) before commencing the principal course. This is relevant to the determination of which English language proficiency score she was required to achieve in order to meet the language skill criterion for the visa she sought.
One of the criteria to be satisfied at the time of the decision was cl.572.223(2)(a) of sch.2 to the Regulations. That clause provides:
An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i)the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant's English language proficiency for the purposes of each course of study that the applicant proposes to undertake; …
The requirements mentioned in sch.5A and on which the delegate and the Tribunal based their decisions were those found in cl.5A404 of sch.5A to the Regulations which relevantly provided:
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0 …
Proceedings in this Court
In her amended application Ms Mo sets out a number of grounds of which the first seven are not really grounds of review but, rather, background facts. The grounds which contain substantive allegations were pleaded in the following terms:
8. In making the decision the Tribunal’s findings of a number of jurisdictional facts was not reasonable.
9. The Tribunal has ignored relevant considerations in making its decision.
10. The Tribunal has denied the Applicant procedural fairness.
11. The decision was bias [sic].
Dealing with each of these grounds in turn:
Findings of jurisdictional facts not reasonable
Ms Mo particularises this allegation in the following terms:
(a) The Tribunal failed to recognise that the Applicant had sat for her further IELTS English test as required by the Migration Regulations, governing the said visa.
(b) The Tribunal is required to take into consideration facts that may lead to a favourable outcome for applicants before decision, as required by the Migration Act 1958. In this case it failed to do so.
The matters which Ms Mo has particularised are not jurisdictional facts. A jurisdictional fact is something which is a precondition to the valid exercise of the Tribunal’s power which, in the circumstances of this case, was the decision-maker’s lack of satisfaction that the applicant had met the criteria necessary for the grant of her visa. The fact that Ms Mo may have sat her IELTS test did not change the fact that she had failed to supply the results of that test, particularly results which satisfied the requirements of the Regulations, so that the Tribunal could be satisfied that she did meet those criteria.
The grounds particularised by the applicant do not disclose any basis upon which it might be said that the Tribunal erred in reaching the implicit conclusion that it was not satisfied that the applicant satisfied the relevant visa criterion. Although the Tribunal does not express its decision in terms of a want of satisfaction, the fact that it made positive findings that Ms Mo had failed to meet the visa criteria necessarily involves such a conclusion.
Ms Mo failed to provide the Tribunal with a certificate demonstrating that she had language skills of the necessary standard. In those circumstances, the Tribunal had no option but to affirm the decision of the delegate. It committed no jurisdictional error in doing so.
The allegation that the Tribunal’s decision was not reasonable invites consideration of whether it was unreasonable. However, unreasonableness in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 applies only to discretionary decisions: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. The Tribunal’s decision in this case was not a discretionary one but one required by s.65 of the Act once it determined that it was not satisfied that the applicant met the necessary visa criterion. Consequently, this element of this asserted ground of review does not demonstrate jurisdictional error on the part of the Tribunal.
Tribunal ignored relevant considerations
The applicant particularises this allegation in the following terms:
(a) The Tribunal has not taken or adequately taken into account the fact the applicant legitimately sat for further IELTS English testing as required, and made a decision before being aware of the final results of those said tests.
(b) The Tribunal had on file the application by the Applicant for an extension of time to provide those IELTS English results as required to the Tribunal, but as the record shows, was denied that reasonable request.
The consideration relevant to the decision of the Tribunal on this occasion was whether Ms Mo satisfied the requirements of cl.572.223(2)(a)(1)(A) and, as a result, met the requirements of cl.572.223(2) more generally. Having invited Ms Mo, by its letter of 20 March 2007, to provide evidence of her English language proficiency by 17 April 2007 it identified the issue relevant to its review. The applicant’s request for additional time within which to supply the certificate was a matter of a different character. The relevant matters to which the Tribunal had to turn its mind was whether the visa criterion was satisfied and, when the applicant failed to provide the necessary evidence prior to the proposed handing down date of the Tribunal’s decision, it was entitled to reach the conclusion it did reach.
Consequently, this ground discloses no jurisdictional error on the part of the Tribunal.
Tribunal denied the applicant procedural fairness
The applicant particularises this ground in the following terms:
(a) The record of evidence show the applicant did in fact sit as required for her IELTS English tests, and that the Tribunal failed to allow a reasonable extension of time to provide those results.
(b) The Tribunal sent ambiguous correspondence to the Applicant informing her that she was denied an extension of time to provide the said test results, and therefore the applicant was resolved to the fact they had already failed in her endeavors.
(c) The Tribunal failed to acknowledge that the Applicant had been in Australia studying without incident or problem since the year 2000, some six years in total at the time of its decision.
(d) The Tribunal having denied the Applicant reasonable extension time to provide further evidence, then as the record shows rang the testing centre involved to see if the results had been sent to the Applicant on the 1st of May 2006. The Tribunal was told they had been sent, it then made two critical errors, it failed to contact the Applicant and seek those results, it then failed to ask the centre for testing for those results knowing they were now public. The Tribunal then on the same day of knowing the Applicant was in possible possession of these results, made its decision without proper consultation.
Although the Tribunal had power to extend time within which the applicant could provide her IELTS certificate, the fact that it did not do so does not amount to a denial of procedural fairness. The requirements of procedural fairness in relation to the Tribunal’s operations have been codified in div.5 of pt.5 of the Act. The decision of the Tribunal to decline the applicant an extension of time breaches none of the sections of the Act in that division.
The second particular suggests that the Tribunal’s mind was already closed to whatever information the applicant might have submitted. There is no evidence to support such a conclusion. Moreover, the correspondence sent by the Tribunal to the applicant was not ambiguous as she claims. It expressed a formal refusal of her application for an extension of time by indicating that it would continue to consider any information she might supply up to the time it handed down its decision.
The third particular raises no procedural fairness issues.
As to the final particular of this ground, the Tribunal committed no error by not telling the applicant that its inquiries revealed that her IELTS test results had been sent to her. The applicant was well aware that she was required to send the test results to the Tribunal and its decision was made not on her failure to send the results, as such, but her failure to put evidence before the Tribunal that she met the necessary standard of language proficiency. Secondly, the complaint that the Tribunal made its decision on the day it learnt that the applicant would have already been sent her IELTS results discloses no error. Although its decision was dated that day, its letter to the applicant of
18 April 2007pointed out to her that it was compelled to consider any evidence that she might provide prior to the handing down of the decision. Consequently, if the applicant had supplied the Tribunal with proof of the required standard language proficiency, it would have been required to have taken it into account and, if that information demonstrated satisfaction of the visa criteria, it would have had to reconsider the decision which it had reached in the absence of such information. Consequently, no jurisdictional error is demonstrated by this asserted ground of review.
The decision was biased
No evidence other than what appears in the Tribunal’s decision record has been put before the Court which might touch upon this allegation. There is nothing in that decision record to support the making of this serious allegation whether in terms of actual bias, apprehended bias or a want of bona fides. In the circumstances, this ground cannot be made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 December 2007
0
2
2