Mpunzwana v Minister for Immigration & Anor
[2009] FMCA 901
•7 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MPUNZWANA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 901 |
| MIGRATION – Review of Migration Review Tribunal decision – subclass 485 visa – refusal – extension of time to bring proceedings – Wednesbury unreasonableness relevant only to discretionary decisions. |
| Migration Act 1958, ss.5, 65, 362B, 417, 477 Migration Regulations 1994, reg.1.15C, cl.485.215, cl.485.222 of sch.2 Federal Magistrates Court Rules 2001, r.44.12 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration & Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration & Citizenship v Kamal [2009] FCAFC 98 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 |
| Applicant: | ABEL GARIKAI MPUNZWANA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 108 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 September 2009 |
| Date of Last Submission: | 7 September 2009 |
| Delivered at: | Perth |
| Delivered on: | 7 September 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time within which to bring these proceedings be extended to 2 July 2009.
Pursuant to r.44.12 of the Federal Magistrates Court Rules 2001, the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,935.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 108 of 2009
| ABEL GARIKAI MPUNZWANA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Zimbabwe. On 24 December 2007 he applied for a Skilled (Provisional) (Class VC) subclass 485 visa. A delegate of the first respondent (“Minister”) refused the application on 12 December 2008 on the basis that the applicant failed to satisfy cl.485.215 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant subsequently applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The matter is before the Court today for consideration of the applicant’s application that the respondents show cause why relief should not be granted to him.
At a hearing to determine whether an order to show cause should be made, the order will not be made and instead the proceedings will be dismissed pursuant to r.44.12 of the Rules of Court, if the applicant does not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
Background
Statutory provisions
The criteria for the grant of a subclass 485 visa are set out in sch.2 to the Regulations. Relevantly in this matter, a primary criterion to be satisfied at the time of application was cl.485.215 which at the relevant time provided that:
Either:
(a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English; or
(c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.
For the purposes of cl.485.215(c), the Minister specified the International English Language Testing System (“IELTS”) and Occupational English Test: Legislative Instrument IMMI 07/055. If an application was accompanied by evidence pursuant to cl.485.215(c), cl.485.222 also required an applicant to show at the time of decision that:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or
(b) the applicant has competent English.
It might be recorded at this point that after the applicant made his visa application on 24 December 2007, cls.485.215(c) and 485.222 were repealed. However, that repeal only applied to visa applications made on or after 27 October 2008 and so is not relevant to these proceedings.
What is relevant for these proceedings is that reg.1.15C provides that an applicant has “competent English” if the Minister is satisfied that the applicant:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
For the purposes of reg.1.15C(a)(ii)(A) and (B), a score of at least “B” in each of the four components of an occupational English language test was specified as a score of competent English. For the purposes of reg.1.15C(b), passports issued by the United Kingdom, Canada, New Zealand, Ireland and the United States of America were specified: Legislative Instrument IMMI 07/055.
Factual background
In his visa application form of 24 December 2007, the applicant nominated the skilled occupation of industrial relations officer. He provided no evidence of having completed any form of English language test but in answer 30 in the application form he arguably implied that he had booked an English language test and on 8 January 2008 would forward evidence of his booking number to the Minister’s department.
The applicant subsequently provided a booking receipt dated 17 July 2008 indicating that he had paid for and was scheduled to sit an IELTS test on 11 October 2008.
The Minister’s delegate refused the applicant’s visa application for a subclass 485 visa. This was on the basis that she was not satisfied that the applicant had “competent English” or had provided evidence with his application that he had made arrangements to undergo a language test specified by the Minister in an instrument in writing.
The applicant applied to the Tribunal for review of the delegate’s decision and was subsequently invited to a hearing on 6 May 2009, which he did not attend. The Tribunal therefore proceeded to make a decision on his case without taking any further action to allow or enable him to appear before it.
On 13 May 2009 the Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 485 visa, noting that:
a)the applicant’s occupation of industrial relations officer was not in Major Group IV Australian Standard Classification of Occupations and so cl.485.215(a) did not apply to him;
b)there was no evidence before the Tribunal that the applicant held any passport other than a Zimbabwean one, with the consequence that he did not hold a passport specified by the Minister in an instrument in writing for the purposes of reg.1.15C. Nor had the applicant provided the Minister’s department, or the Tribunal, with evidence of having completed any type of English language test. Consequently, he did not have “competent English” as defined by reg.1.15C and, as a result, did not satisfy cl.485.215(b);
c)with respect to cl.485.215(c), the Tribunal did not accept that the applicant’s statement in his application form, to the effect that he would provide evidence of having booked an English language test by 8 January 2008, was evidence that as at the time of application he had actually made arrangements to undergo such a test. On this basis the Tribunal found that the visa application was not accompanied by evidence that the applicant had actually made arrangements to undergo a language test. Consequently, it found that the applicant failed to satisfy cl.485.215(c).
For these reasons, the Tribunal found that the applicant did not satisfy cl.485.215 and thus it affirmed the decision of the delegate.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.Tribunal did not consider relevant material.
2.Tribunal considered irrelevant material.
3.Decision was so unfair that no fair person would have made it.
4.Applicant scored 8 points on IELTS examination held 11/10/08.
5.Applicant was awarded was awarded [sic] Bachelor of Commerce by the Murdoch University all courses and lectures where [sic] in English.
The applicant also sought leave to bring these proceedings out of time.
Extension of time to bring proceedings
I will deal first with the matter of the time bar. Section 477 of the Migration Act 1958 (“Act”) provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. Section 477 talks of judicial review of a “migration decision” and s.5 of the Act makes it clear that the decision of the Tribunal in this instance is such a migration decision. Therefore the time limit under s.477 of the Act applies in this case.
Section 477 of the Act relevantly provides:
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) …
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal – the date of the written statement under subsection 368(1) or 430(1); …
In this case the Tribunal’s decision was signed on 13 May 2009. However, the application was not filed until 2 July 2009; this means that it was brought one day out of time. The consequence of this is that the Court must now consider the two questions posed by s.477(2).
The first of these is whether an application for an extension of time to bring the proceedings has been made to the Court in writing and specifies, whether in the document itself or in its supporting affidavit or other document, why the applicant considers it necessary in the interests of the administration of justice to make an order extending time to bring the proceedings.
In this case, the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. In his oral submissions today he relied on the grounds which appear in his initiating application and specifically relate to the application for an extension of time. There, the applicant says that:
a)he received the decision of the Tribunal by mail;
b)he suffered severe hardship;
c)he did not have sufficient funds;
d)he was depressed and was unable to file the review application;
e)the application is late by only one day;
f)he miscalculated the period of time within which he had to lodge the application for review;
g)severe hardship would be caused to him if the application for an extension of time were not granted; and
h)no prejudice would be caused to the respondent by the court granting the extension of time sought.
In his oral submissions today, the applicant also made reference to other circumstances, which were to the effect that his mail had been misdelivered and that he did not receive the letter from the Tribunal inviting him to its hearing until after the date for the hearing had passed.
In the circumstances, I conclude that the applicant has satisfied the requirements of s.477(2)(a).
Therefore, the next issue to be addressed is whether the Court is satisfied that it is necessary in the interests of the administration of justice to make the order sought.
In considering the matter and the various issues which the applicant has raised in support of his application for an extension of time, I have come to the view that the applicant should have a determination on this matter which addresses the merits of his claim, rather than one which is determined by a trivial delay which cannot have caused any prejudice to the respondents. Certainly, Mr Gerrard, who appears for the Minister today, has not submitted that the extension of time which the applicant seeks would cause the respondents to suffer any prejudice. Moreover, in my view, the applicant has given an adequate explanation for his delay. His conduct does not suggest to me the sort of neglect or dereliction which should weigh against him. In those circumstances, I consider that it is in the interests of the administration of justice that time be extended for the bringing of these proceedings until 2 July 2009 and there will be an order accordingly.
I now turn to the matters raised in the principal part of the application.
Tribunal did not consider relevant material
The matter which the Tribunal had to consider was whether the applicant satisfied certain primary criteria for the grant of the visa which he sought. The material which was before the Tribunal would only have relevance to the extent that it was relevant to the application of the tests mandated by those criteria. The material placed before the Tribunal was the same as that which was before the delegate. As para.18 of its decision record discloses, that material was considered by the Tribunal. I am not satisfied that the Tribunal failed to consider material which was relevant to its decision and which, if not taken into account, might have affected its exercise of jurisdiction.
The Tribunal considered irrelevant material
The applicant has not suggested what material irrelevant to its consideration was, in fact, considered by the Tribunal such that its exercise of jurisdiction was affected. The only material before the Tribunal was a relatively slight amount of evidence which was also before the delegate and which, in any event, appears to have been supplied by the applicant himself. I cannot conclude, on the material before me, that the Tribunal considered anything which was irrelevant to its task.
The decision was manifestly unreasonable
An allegation that the Tribunal’s decision was unreasonable can be, and I conclude in the context of the current circumstances is, no more than an expression of an applicant’s vigorous disagreement with the Tribunal’s conclusion. However, that is not the sort of complaint which will lead to a finding that the Tribunal has erred. Further, unreasonableness in the sense discussed 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 to affirm the delegate’s decision was not a discretionary one. Once the Tribunal had concluded that the applicant did not satisfy a primary criterion for the grant of the visa he sought, it had no option under s.65 of the Act but to affirm the delegate’s decision. No question of discretion entered into it and thus concepts of Wednesbury unreasonableness have no part to play in this aspect of the proceedings.
It might possibly be considered that this allegation could refer to the Tribunal’s decision to proceed to a final decision notwithstanding the applicant’s absence from the hearing. Section 362B permitted the Tribunal to proceed in this fashion and although it had a discretion not to do so, nothing has been put before the Court to suggest that there was any reason why it should have exercised its discretion whether or not to proceed to a decision in any way different to the way in which the discretion was actually exercised. Certainly no question of Wednesbury unreasonableness arises in this context.
Applicant scored well in IELTS test held on 11 October 2008
Regrettably for the applicant, the results of a language test taken ten months after his visa application was lodged can have no relevance to whether he satisfied the language criteria at the time of lodging his visa application. Further, although I had some initial thoughts that the recent decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v Kamal [2009] FCAFC 98, might have had some significance on this point, I am now satisfied that that case is distinguishable and of no assistance in the determination of this matter.
I should also note that I have concluded that the documents in exhibit 1 which were admitted subject to relevance were, in the result, not relevant to a matter in issue and I have disregarded them.
Applicant qualified for Australian university degree conducted in English
The fact that the applicant is fluent in English, which was clearly demonstrated by his capable advocacy of his case today, is of no relevance to the tests which the Tribunal was required to apply. These turned on an aptitude which was independently assessed by an IELTS test. This ground discloses no jurisdictional error on the part of the Tribunal.
Generally
In any event, the Tribunal’s decision turned on the fact that the applicant did not appear before it to put additional evidence and arguments, such that it might have been in a position to reach a decision different from that of the delegate. Admittedly, given the way that the Regulations were drawn at the relevant time, it is impossible to see how the Tribunal could have reached a conclusion different from the one which the delegate reached. Nevertheless, it is worthwhile observing that the Tribunal invited the applicant to a hearing by its letter of 7 April 2009 because, as it said, it had considered the material before it but was unable to make a favourable decision on that information alone. If the applicant failed to attend the Tribunal hearing, for whatever reason, it was only to be expected that the Tribunal would be in no position to reach a conclusion different from the decision which was reached by the delegate.
In the context of a protection visa application, the Full Court of the Federal Court said in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]:
Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it [the Tribunal] could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
No jurisdictional error is demonstrated by the fact that the Tribunal proceeded to make its decision and no error is demonstrated by the conclusion which it reached in the circumstances.
Conclusion
In this matter, I am satisfied that no jurisdictional error was committed by the Tribunal. For that reason, I conclude that the applicant does not have an arguable case and that the proceedings must be dismissed.
However, before I conclude this judgment, I should observe that it is obvious that the rejection of the applicant’s visa application turned on his failure to satisfy administrative requirements concerned with the proof of his English language ability, not on his failure to achieve a level of ability in English.
I was impressed today by the applicant’s articulateness and level of comprehension. I cannot comment on the other visa criteria which he was called on to meet but, in light of the circumstances revealed by these proceedings, the Minister may consider it appropriate to examine whether an exercise of his discretion under s.417 of the Act might be appropriate in this case.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 September 2009
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