Rathor v Minister for Immigration
[2015] FCCA 1184
•8 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RATHOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1184 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) – applicant requests Tribunal to provide the applicant time to seek a re-mark of the last IELTS test the applicant had undertaken or to undertake a fresh IELTS test – Tribunal decides not to give the applicant the time requested – whether Tribunal acted unreasonably in deciding the application for review without giving the applicant an opportunity to seek a re-mark of his last IELTS test or to undertake a fresh IELTS test – no jurisdictional error. |
| Legislation: Migration Regulations 1994 (Cth), regs.1.15C, 1.15C(a) |
| Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 Nayak v Minister for Immigration & Anor [2015] FCCA 688 |
| Applicant: | GURNAM SINGH RATHOR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1345 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 April 2015 |
| Date of Last Submission: | 24 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2015 |
REPRESENTATION
| Applicant in person. |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1345 of 2014
| GURNAM SINGH RATHOR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Provisional) (Class VC) visa (visa).
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant had “competent English” as required by cl.485.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as those regulations stood at the time the applicant applied for the visa. At that time, the necessity of demonstrating competency in English was a criterion that had to be satisfied at the time of application.
As at 13 April 2010, when the applicant applied for the visa, reg.1.15C of the Regulations provided that a person has “competent English” if the person satisfies the Minister that he or she:
(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.
The letters “IELTS” stand for “International English Language Testing System”, which is a method for assessing competence in the English language.
The Tribunal considered the application on the basis that it was open to the applicant to satisfy the Tribunal he had competent English by relying on tests he had undertaken or would undertake up to the date of the Tribunal’s decision.[1] At the hearing before the Tribunal on 17 April 2014, however, the applicant was not in a position to satisfy the Tribunal he had competent English.
[1] See Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
The applicant informed the Tribunal he had undertaken 25-29 IELTS tests, and he had requested a re-mark of the last IELTS test which he had undertaken on 15 March 2014.[2] The applicant’s representative submitted to the Tribunal that the Tribunal should not make a decision until the 15 March 2014 test was re-marked, “and/or” should allow the applicant an opportunity to undertake further tests. The Tribunal informed the applicant and his representative that it would consider the applicant’s request for it to wait, but it may decide to proceed to a decision.[3]
[2] CB150, [14]
[3] CB150, [15]
The Tribunal proceeded to a decision, which it made on 22 April 2014, without waiting for the applicant to inform the Tribunal of the results of any re-mark of the 15 March 2014 test or of his intentions to apply for another IELTS test.
The Tribunal relied on a number of matters for declining to provide the applicant the time which he sought. First, the Tribunal was of the view that the applicant had considerable opportunity to undertake IELTS tests, and it was not satisfied there was any evidence the applicant previously had any of his IELTS tests re-marked to the required level. Second, the applicant had undertaken numerous tests in the past. Although the applicant had not provided to the Tribunal the results of those tests, and the Tribunal was prepared to assume the applicant was “close” to achieving the required results, the Tribunal was not satisfied there was any evidence the applicant would achieve the required result in a further test. Third, the applicant was given an opportunity after the hearing of a previously constituted Tribunal that had been conducted a year before to undertake a further test.[4]
[4] CB150-151, [16]
The Tribunal, therefore, concluded:[5]
In all the circumstances, the Tribunal is satisfied that it is both reasonable and appropriate to proceed to a decision without waiting for the results of any further tests or for a remark of the test that the applicant sat in March 2014.
[5] CB151, [16]
Grounds of review and submissions
In his application for review the applicant, who is not legally represented, claims the Tribunal made a jurisdictional error by deciding his application without giving the applicant an opportunity to have his 15 March 2014 test re-marked. That by itself does not disclose any jurisdictional error.
The Minister, however, understood the applicant to be claiming that the Tribunal’s deciding to make a decision on the review without providing the applicant a further opportunity to have his exam re-marked or to undertake an IELTS test was unreasonable in the sense considered by the High Court in Minister for Immigration and Citizenship v Li.[6] The hearing was conducted before me on the basis that the applicant was claiming that the Tribunal acted unreasonably in refusing to give the applicant the opportunity the applicant requested.
[6] (2013) 249 CLR 332
At the hearing the applicant relied on a number of matters. One was that he had booked a further IELTS test scheduled for 30 May 2015. The applicant tendered a document that confirmed the booking.[7] I rejected the tender on the ground it was not relevant. That the applicant is due to undertake an IELTS test can be of no relevance to determining whether the Tribunal acted unreasonably. The applicant’s having booked the test obviously was not before the Tribunal, and it was not a matter, therefore, the Tribunal could have considered.
[7] MFI2
A second matter on which the applicant relied is that his wife has applied for a permanent residency visa, and the applicant is a secondary applicant on that application. The applicant tendered letters from the Department of Immigration and Border Protection which showed the applicant’s wife had applied for a Skilled – Independent (subclass 189) visa, and the applicant submitted that the proceeding before this Court is delaying his wife’s application.[8] I rejected the tender of the letters because they were irrelevant. That the applicant’s wife has applied for a Skilled – Independent (subclass 189) visa or that the case before this Court may delay the processing of that application (about which there is no evidence) is not relevant to whether the Tribunal acted unreasonably.
[8] MFI3
A third matter on which the applicant relied was the actual results he had achieved in IELTS tests he had previously undertaken. He tendered six of those tests which demonstrated that which the Tribunal accepted, namely, that the applicant had been close to satisfying a score of at least six in each of the four test components of speaking, reading, writing and listening. The applicant also said that the anticipation of his sitting for IELTS tests had instilled anxiety and panic in him which prevented him from achieving the necessary scores.
While I have great sympathy for the applicant who had on a number of occasions achieved marks that were very close to what reg.1.15C(a) of the Regulations required, the significance of the applicant’s past IELTS results was a matter for the Tribunal to assess and weigh. There is no question the Tribunal considered the applicant’s previous IELTS results when considering whether it should wait making its decision until after the March 2014 IELTS test was re-marked.
Mr Markus, who appeared for the Minister, submitted the Tribunal did not act unreasonably. The Tribunal’s decision, Mr Markus submitted, was supported by an evident and intelligible justification. [9] Mr Markus emphasised the Tribunal was not satisfied that “there is any evidence that [the applicant] will achieve the required result in a further test”. It was submitted that that finding indicates the Tribunal was of the view there would be no utility in granting the applicant what he requested. That is to be contrasted with the facts in Li where the applicant, when seeking further time, had pointed to matters that would have given utility to the Tribunal’s delaying its decision.
[9] In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at page 367, [76] (Hayne, Kiefel and Bell JJ)
Did the Tribunal act unreasonably?
There is no question the Tribunal had the power to delay making a decision on the application for review to allow the applicant an opportunity to have his 15 March 2014 test re-marked, or to sit for another IELTS test, before the Tribunal would decide the application for review. There is also no question that the power was discretionary, and that the Tribunal was obliged to exercise that power reasonably.[10]
[10] Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
I considered in some detail the unreasonableness ground of judicial review in Nayak v Minister for Immigration & Anor, where I concluded as follows:[11]
a)The unreasonableness ground of review applies where a decision-maker is under an obligation to exercise a particular statutory power reasonably.
b)The obligation to reasonably exercise a statutory power is an obligation to conform to a particular standard of conduct in terms of the decisions that may be made in the exercise of the statutory power, and in terms of the reasons for which those decisions may be made.
c)The particular standard of conduct that must be followed is that which would be followed by a reasonable decision-maker who is aware of the subject matter, scope and purpose of the statutory power, properly construed, pursuant to which the decision is made, and who is also aware of the facts relevant to the proper exercise of the statutory power which were known or which ought reasonably to have been known to the decision-maker who in fact exercised or who purported to exercise the statutory power in question.
d)The exercise or purported exercise of a statutory power will be held to have been exercised unreasonably if:
i)the decision is one that would not fall within the range of decisions that a reasonable decision-maker would make, given the subject matter, scope and purpose of the statutory power, and knowledge of the facts and circumstances that were known, or which ought reasonably to have been known by the actual decision-maker in question; or
ii)the decision is one that is arbitrary or which lacks an evident and intelligible justification.
[11] [2015] FCCA 688 at [69]
On the basis of these conclusions, there are two questions I must address. The first is whether the reasons on which the Tribunal actually relied constituted an evident and intelligible justification for the decision it made not to wait for the March 2014 results to be re-marked. The second is whether the decision the Tribunal made is one that falls within the range of decisions that a reasonable decision-maker would have made.
There are four elements to the Tribunal’s reasons for not granting the applicant more time: the applicant had a sufficient opportunity to undertake IELTS tests and obtain the required results; there was no evidence the applicant previously had any of his IELTS tests re-marked to the required level; the applicant had unsuccessfully undertaken an IELTS test between 25-29 times; and there was no evidence that could have satisfied the Tribunal that the applicant would achieve the required result in a further test. Although the Tribunal did not expressly so state, in substance the Tribunal was not satisfied that the granting of further time would result in the applicant achieving the required result, either by way of a re-mark of his March 2014 IELTS test, or by undertaking a further test.
In my opinion, the reasoning on which the Tribunal relied did constitute an evident and intelligible justification for the decision it made. Whether or not the applicant would have been able to obtain a re-mark of his March 2014 IELTS test to the required level, or whether the applicant would have been able to obtain the required result in a further IELTS test, were matters that were relevant to whether the Tribunal should give the applicant further time. If the prospects of the applicant obtaining the required results were poor, that would be a factor on which it would reasonably have been open to the Tribunal to rely not to grant the applicant further time. And the time that had been available to the applicant to obtain the required results, the applicant’s 25-29 failed attempts to obtain the required IELTS results, and the absence of any evidence that any of those 25-29 failed results had been re-marked to the required result, were matters that were capable of being relevant to assessing the prospect of the applicant’s being able to secure the required IELTS result, either by way of a re-mark, or by undertaking a fresh IELTS test.
Given I have found that the reasons on which the Tribunal in fact relied for deciding not to give the applicant further time for a re-mark of his March 2014 IELTS test or to undertake a further IELTS test constituted an evident and intelligible justification for its decision, it should also follow that the decision the Tribunal made is one that it was open to a reasonable decision-maker in the position of the Tribunal to make. I find that the decision was so open.
Conclusion and disposition
For these reasons, the Tribunal did not act unreasonably in deciding not to give the applicant further time to enable him to secure a re-mark of his March 2014 IELTS test results or to undertake a fresh IELTS test. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 8 May 2015
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