Rahman v Minister for Immigration

[2012] FMCA 334

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHMAN v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 334

MIGRATION – Review of decision of Migration Review Tribunal – application for Skilled (Provisional) (Class VC) visa – where application did not include relevant skills assessment – whether Tribunal aware he was sitting test – whether Tribunal failed to take into account a relevant consideration – whether Tribunal’s refusal to grant extension of time unreasonable.

Migration Regulations 1994, Sch.2, Pt 485

Bandi v Minister for Immigration for Anor [2010] FMCA 365

Applicant: ASHIQUR RASHMAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2545 of 2011

Judgment of: Raphael FM

Hearing date: 12 April 2012

Date of Last Submission: 12 April 2012

Delivered at: Sydney

Delivered on: 12 April 2012

REPRESENTATION

Counsel for the Applicant: Mr R Chia

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.  

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2545 of 2011

ASHIQUR RAHMAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Mr Rahman seeks review of a decision of the Migration Review Tribunal made on 7 October 2011 and published on 10 October 2011 affirming a decision not to grant him a Skilled (Provisional) (Class VC) visa.  Mr Rahman is a citizen of Bangladesh who sought the visa in order to undertake the profession of translator.  The criteria for subclass 485 visas are set out in Part 485, Schedule 2 to the Migration Regulations 1994.  The relevant criteria for the purposes of this decision (the balance being contained in the Tribunal’s decision ([7] and 8] [CB 144-145]) is the criteria found at 485.221 that the skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.  This is described as a criteria to be satisfied at the time of decision.

2. Mr Rahman first applied for his visa on 15 July 2009.  He did not supply the relevant skills assessment with that application.  On 14 January 2010 the Department wrote to him seeking, as additional information, the skills assessment and requesting that he responded within 28 days [CB 63-66].  Nothing was provided by Mr Rahman and so on 2 March 2010 the Department published its decision record refusing the visa.  Mr Rahman then applied to the Tribunal for review of that decision on 14 March 2010, the application was received by the Tribunal on 22 March 2010.  There was no skills assessment advice provided by the applicant at that time and so on 25 August 2010 the Tribunal wrote to Mr Rahman asking him to provide that information.  The Tribunal gave Mr Rahman until 22 September 2010. 

3. On 22 September 2010 Mr Rahman’s migration agents wrote to the Tribunal informing it that further to their letter of 25 August Mr Rahman did not pass the skills assessment test but he believed he would pass the next test.  A receipt for that test was provided and an extension of time was requested [CB 85].  The receipt does not indicate exactly when the test was to be sat but the Tribunal responded to the letter on 23 September granting a further extension until 21 October [CB 88].  On 21 October the agent wrote again to the Tribunal advising it that Mr Rahman’s test was not due to be sat until 17 November and that the test results would come about six to eight weeks after that.  That letter was not responded to immediately, possibly because the member wanted to give the extension but was under the impression that it could only give an extension for 28 days at a time.  In any event on 10 December 2010 an extension was granted until 7 January 2011.  On 6 January 2011 the agent wrote again advising that the result of the test had not yet been received.  On 7 January 2011 the Tribunal responded pointing out all the extensions that had been given and providing a further extension until 4 February.  On 3 February a further extension was requested by the agent because the results had not yet come through indicating that a further test had been booked for 24 March. 

4. On 4 February the Tribunal responded again setting out in detail all the requests that had been made and advising that no further extension of time would be granted.  On 15 February the Tribunal wrote to the applicant advising him that it had scheduled a hearing at which he could give evidence and present arguments on 1 June 2011.  It is important to note that during all this time had the applicant provided a successful result from his NAATI test then, all other things being equal, the Tribunal would have granted him the visa.  As the Tribunal notes at [14] of its reasons for decision the applicant was again to sit the NAATI test on 24 March but was ill on that date and was unable to attend.  He provided medical notes relating to his illness and an illness of his daughter.  He appeared at the hearing on 1 July 2011. At that time there was no evidence his skills had been assessed by the relevant assessing authority as suitable for that occupation as required by the Regulations.

5. The Tribunal noted that the applicant sat his examinations on 18 March 2011 and on 26 August 2011 provided his results, he was unsuccessful.  On 5 September 2011 he provided confirmation of an admission slip for another sitting of the NAATI test to be held on 7 October.  The Tribunal in its Findings and Reasons concluded that:

   “[20]Despite the Tribunal having provided the applicant with a generous opportunity to provide a suitable skills assessment for his nominated skilled occupation, none was received from the applicant.  Accordingly, the Tribunal is not satisfied that the applicant has provided a suitable skills assessment for his nominated skilled occupation by relevant assessing authority. 

   [21]Given the above findings, the Tribunal affirms the decision under review.”  [CB 146 – 147]

6. The applicant sought judicial review of the decision of the Tribunal and was ably represented by Mr Chia, who had only been briefed very recently. Mr Chia identified two matters upon which he suggested the Tribunal had fallen into jurisdictional error. The first was that the Tribunal had not taken into account a relevant consideration namely that the applicant had complied with schedule 2 and his skill had been assessed as at 7 October. What he says is that as far as the Tribunal knew on 7 October the applicant was sitting the test and he may well have passed, it which apparently he did.

7. I have two concerns with this submission, the first is that the Tribunal did not have evidence that the applicant sat the test on 7 October.  All it had in front of it was an acceptance slip for the test.  A number of things could have happened, for example the test could not have been held on 7 October.  Indeed, this is exactly what happened.  The test was sat on the 12 October.  Another possibility is, like last time, Mr Rahman may have been sick and not sat the test.  So I do not believe that it could be said that this was a matter which the Tribunal should have taken into account before coming to its decision.  It may have been otherwise had Mr Rahman actually established to the Tribunal that, before its decision was given, he had sat a test.

8. The second point raised by Mr Chia is that the exercise of the Tribunal’s discretion to refuse any further extensions of time was unreasonable.  He cites as authority for his views the decision of Smith FM in Bandi v Minister for Immigration for Anor [2010] FMCA 365 where his Honour said at [32]:

   “The Tribunal is directed by the Migration Act to provide …a mechanism of review that is fair, just, economical, informal and quick” (see s.353 (1)).  When pursuing those objectives, it is given the express power in s. 363(1)(b) to “adjourn the review from time to time.”

9. If the Tribunal were not given such an expressed discretion then no doubt an implied discretion to decide the timing of its decision would be found.  Whatever its source, the discretion must be exercised consistently with the terms and objects of the legislation providing an avenue for the merits review of decisions of the delegate of the Minister.  In my view Smith FM, who did not grant the review and came to the conclusion that the Tribunal had acted in accordance with s.353, would have done the same thing in this particular case. 

10. The Tribunal’s discretion is not totally unfettered but it is certainly open to it to conclude that after the very lengthy period of time between applying for his visa and having the merits review undertaken the applicant should have been able to provide the necessary evidence.  It was entitled to consider that in order to comply with the requirement to make the decision quickly, which is as important as any of the other requirements, there would have to be an end to the continued extensions.  In my view the Tribunal did not fall into jurisdictional error in the manner in which it exercised its discretion not to extend the time even further.

11. Mr Chia did also argue that the Tribunal failed to consider the particular situation of the NAATI tests, which he said were unlike the IELTS tests insofar as they were not conducted frequently and it was clear the results took a long time coming.  It seems to me by granting the very lengthy periods of extension that were granted it could be implied that the Tribunal did exactly this. But even if it had not I do not think that its failure to do so constitutes a jurisdictional error.

12. I dismiss the application.  I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  20 April 2012