SAMURAILATPAM v Minister for Immigration

[2013] FCCA 2352

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMURAILATPAM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2352

Catchwords:

MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – requirement to demonstrate competent English language skills – no procedural unfairness demonstrated by the Tribunal – Tribunal acted reasonably – application dismissed – costs awarded.

Legislation: 
Migration Act 1958 (Cth), ss.348, 353A, 357A

Migration Regulations 1994 (Cth)

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Applicant: RONEL KUMAR SHARMA SAMURAILATPAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 97 of 2013

Judgment of: Judge Burnett

Hearing date: 17 December 2013

Date of Last Submission: 17 December 2013

Delivered at: Brisbane

Delivered on: 17 December 2013

REPRESENTATION

The Applicant appeared on his own behalf.

Counsel for the Respondents: Mr B. McGlade

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the title to the proceedings be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration and Citizenship” as the name of the First Respondent.

2. That the application filed on 5 February 2013 be dismissed.

3. That the Applicant pay the Respondents’ costs fixed in the sum of $8243.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 97 of 2013

RONEL KUMAR SHARMA SAMURAILATPAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The applicant seeks a review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 7 January 2013. At that time, the Tribunal determined to affirm the decision made by the delegate not to grant him a Skilled (Provisional) (Class VC) visa. The applicant is a national of India and he had applied for a visa which, among other things, required satisfaction of cl.485.212 in Part 485 of Schedule 2 of the Migration Regulations 1994 (Cth). That clause requires applicants to show that they have competent English language skills. An English language competency is provided for in regulation 1.15C, which contains a requirement of an International English Language Testing System (IELTS) test score of at least 6 for four test components of speaking, reading, writing and listening.

2. The applicant had attempted those tests on at least one occasion prior to the delegate considering his application but unfortunately, he had only received a score of 6.5 for listening, 5 for reading, 5.5 for writing and 6.5 for speaking. Overall, he did not satisfy an average of 6.  Accordingly, on 16 March 2012, the delegate refused to grant the applicant a visa because he was not satisfied that he had competent English or that he met the requirements of cl.485.215.  He incidentally also made a finding that the applicant had not made a valid application for a subclass 487 visa.

3. The applicant sought a review of that decision, and on 9 October 2012 the Tribunal invited the applicant to give evidence at a hearing which was scheduled for 8 November 2012.  The Tribunal did ask the applicant to provide evidence of his English language proficiency or evidence that he had booked an English language test.  No doubt that particular request was made with the Tribunal’s appreciation that it was a time of decision requirement, not a time of application requirement, that the applicant have that competency.

4. In any event, on 1 November, the applicant provided the Tribunal with evidence that he had booked an IELTS test on 17 November, and also confirmed that he would be participating at the hearing. Accordingly, when the applicant appeared at the Tribunal on 8 November 2012 to give evidence and present arguments, he provided evidence of all relevant matters except, of course, the IELTS test, which he had not at that time sat. He confirmed that he had booked to sit a test on 17 November 2012. With that in mind, the Tribunal agreed to postpone the making of its decision until after the close of business on 7 December 2012 to allow the applicant to receive the results of the IELTS test and provide further evidence to it. Hopefully of a positive result from the IELTS testing.

5. The Tribunal at that time indicated that it would then proceed to make its decision after that date on the basis of the evidence before it.  It did, however, indicate that it would not agree to provide him more time to sit further tests. It was explained to him that if he provided test results that indicated he had scored at least 6 in the four test components, it would have the results verified and by implication that his application would succeed. It appears that in the meantime on 5 December 2012, the applicant wrote to the Tribunal informing it that he had appointed a representative. The representative requested access to the Tribunal’s written material in order to provide advice to the applicant; that occurred, and on 20 December 2012 the representative wrote to the Tribunal and confirmed that he had pursued the documents provided and advised the applicant of the need for him to obtain the appropriate English results.

6. I think the fair inference is, as was alluded to by the applicant in his affidavit filed on 5 December 2012, that the advice was that he was unlikely to be successful in the application because he had not received favourable results or had not sat the test as had been anticipated by the orders made by the Tribunal following the hearing. Needless to say, the applicant did not provide any further material to the Tribunal and, accordingly, it made its decision on 7 January 2013 to affirm the delegate’s decision.

7. The applicant now applies to this court for review of the Tribunal’s determination.  He sets out five grounds of review, which I will address in a moment.  Before doing so, it needs to be highlighted for the applicant’s benefit that these sorts of decisions are what are referred to as ‘privative clause decisions.’ It means that they are strictly not reviewable unless it can be demonstrated that the decision has been tainted by jurisdictional error.  The grounds of application in this instance seek to elicit grounds of jurisdictional error, and so it is with those matters in mind that I will turn principally to the submissions which have been made in response to the application.

8. Before doing so, I should note that the applicant is no longer legally represented.  He has had in the course of the conduct of this proceeding, two sets of legal representation.  His first lawyers, who commenced the application on his behalf, withdrew in late August and his second lawyers withdrew in early December.  Given the affidavit sworn by the applicant and filed on 5 December 2012, it seems a reasonable inference that the lawyers have withdrawn because they took a certain view about the prospects of his application, not that that in any sense informs or influences the court in a consideration of the application.

9. Further, before turning to the five grounds I should address two other matters which are raised by the respondent. The respondent first contends that the application itself fails or should fail because there are two fatal misconceptions in the applicant’s application.  It submits that at the heart of the application is a contention that the Tribunal has some kind of obligation to wait or consider waiting for the result of the applicant’s IELTS test before making a decision on review. In that regard, it contends that matter is misconceived because there was no evidence before the Tribunal that the applicant had sat, passed or was awaiting the results of 17 November 2012 IELTS test.  That much, I think, is correct.

10. It was also contended that in the absence of evidence that the test had been sat the Tribunal had no obligation to wait or consider waiting for the results of the test.  Again, I think so much is correct. The only evidence before the Tribunal was that the applicant had booked to sit the test. But that fact alone would not give rise to any reasonable inference that the applicant had sat and passed or was awaiting the results.  However that was an inference open to be drawn on 7 January 2013 when the decision was made.

11. I note the respondent’s submissions concerning the matter of the inference, which I accept. I think it is plain from the material before the court and, in particular, the expression contained by the applicant’s lawyers to the Tribunal on 20 December:

    “We have now had the opportunity of pursuing the documents and are taking our client’s further instructions.  We have provided our client with advice regarding the furtherance of this matter with the tribunal.  Pertinent to our advice, our client has been the need for him to obtain an appropriate English result.”

12. Those remarks would certainly be consistent with there being no evidence of any result following the reported test of 17 November. It was further contended by the respondent that the applicant or his lawyers had failed to mention that he was sitting and/or had passed the test following 17 November 2012. As indicated by the correspondence of 20 December 2012 and comments at the hearing on 8 November 2012, the Tribunal made clear to the applicant that it would postpone its decision to 7 December to allow him to obtain and tender his test results. It indicated that it would proceed after that date on the basis of the evidence before it, and that it would not provide more time for further tests.

13. Further, there was no evidence before the Tribunal that the applicant did indeed sit, pass or was awaiting the result of any such test. It seems plain, and I accept that it was reasonable, that the Tribunal had no obligation to wait or consider waiting for the IELTS test in the absence of such evidence. On that basis, I accept its submission that, on that basis alone, the application must fail in its entirety.

14. The second misconception which the respondent contends for is that the application arises because each of the grounds for review implicitly assumes that there was an obligation on the Tribunal to wait or consider waiting for the results of the tests, absent there being a request by the applicant for an adjournment or postponement of the Tribunal’s decision.

15. The authorities on this point are well settled. There is no obligation on a Tribunal to adjourn or delay the making of its decision on a matter before it, particularly in circumstances where there has been no request that it do so. In this case, there is no basis for the contention that there was a denial of opportunity for the applicant to present his case in the absence of a request for an adjournment or a postponement of the Tribunal’s decision.  As the respondent properly contends, the applicant had in this instance been put on notice of the Tribunal’s decision to wait until 7 December for the applicant to provide the results of the 17 November IELTS test, and then after that date it would proceed to make a decision in the absence of any further evidence provided by the applicant.

16. Furthermore, the applicant had appointed lawyers by 5 December 2012 and no request was made by them for an adjournment or postponement of the Tribunal’s impending decision. It follows that this is plainly a case where there could be no basis for an assertion that there has been a denial of procedural fairness in the absence of a request for an adjournment or postponement of a decision, there having been none.  I should just note in passing, because it has been referred to in the respondent’s outline, that there is no reasonable parallel between the facts in the Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 and the facts of this case.

17. I am cognisant of the facts in Minister for Immigration and Citizenship v Li as I was the hearing judge in that case. It serves only to restate the principles that apply in terms of procedural fairness, which will apply in the ordinary course in this application and which I will address when looking at a number of the grounds advanced by the applicant in a moment. 

18. The first ground advanced by the applicant was that the second respondent failed to comply with s.357A(3) of the Migration Act 1958 (Cth) (“the Act”) in not waiting for the result of the applicant’s IELTS test before making a decision on a view, and as such made a jurisdictional error.

19. Section 357A of the Act is the exhaustive statement of natural justice hearing rule statement. In particular, subsection (3) provides that:

    “(3) In applying this Division, the Tribunal must act in a way that is fair and just.”

20. The respondent correctly contends that the ground of review presents some complexities. That is, the legal complexity which arises is whether or not s.357A(3) of the Act imposes statutory requirements capable of supporting substantive grounds of review for a jurisdictional error or defines the core function of the Tribunal in such a way as to include procedural requirements additional to those imposed by Division 5 of Part 5 of the Act. That question was squarely raised before the High Court in Minister for Immigration and Citizenship v Li, however the court did not determine that point.

21. In any event, it is submitted that there is no specific need for this question to be determined in this application, because even if as a matter of law a contravention of s.357A(3) of the Act gave rise to jurisdictional error, on the facts of this case the Tribunal did not act in a way which was not fair and just. I have earlier addressed the way in which the Tribunal addressed the application, and in particular took some trouble to afford the applicant an opportunity to sit the IELTS test on 17 November and await the results before proceeding to determine the application, as it was bound to do.

22. There was nothing in the timetable that would have denied the applicant an appropriate opportunity to do all the things that the Tribunal afforded him an opportunity to do.  Furthermore, the Tribunal’s malleability on these matters is further evidenced by its own permissiveness in complying with its set timetable. Rather than determining the matter on 7 December, as it said it would do, it took a further month before it proceeded to resolve the application, no doubt hoping and expecting that the applicant would produce the necessary test score results.

23. It follows that the Tribunal was entitled to act in the way in which it did and proceed on the evidence before it, and there was nothing in its processes or reasoning that suggests a failure to afford fairness or justice to the applicant.  On that ground a review must fail. 

24. The second ground of review is that the applicant failed to comply with s.353A of the Act in not waiting for the result of the applicant’s IELTS test before making a decision on review, and as such made a jurisdictional error. The respondent quite properly points out that the applicant has probably erred in his reference to s.353A and probably means s.353(1). Section 353(1) provides:

    “Tribunal's way of operating

    (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”

25. Subsection (2) provides that, in reviewing the decision, the Tribunal:

    “(2) The Tribunal, in reviewing a decision:

    (a) is not bound by technicalities, legal forms or rules of evidence; and

    (b) shall act according to substantial justice and the merits of the case.”

26. The reality is that this ground merely restates the first ground advanced by the applicant.  In any event, as the respondent contends, when Minister for Immigration and Citizenship v Li came before the High Court French CJ dismissed the idea that s.353 of the Act could of itself provide substantive obligations, the breach of which would then be capable of constituting jurisdictional error. That observation aside, for reasons that I have advanced in addressing the first ground, this ground of review must also fail.

27. The third ground is that the second respondent did not properly perform its function in reviewing a decision under s. 348 of the Act by not waiting for the result of the applicant’s IELTS test before making a decision of review, and as such made a jurisdictional error.

28. Section 348 of the Act provides:

    “Migration Review Tribunal must review decisions

    (1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

    (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.” 

29. The respondent noted that whilst there may be some support for the proposition advanced by the applicant from the decision of Gageler J in Minister for Immigration and Citizenship v Li, his Honour continued to note that a failure to adjourn to allow a visa criterion to be met can in some circumstances be so unreasonable as to constitute a failure to review.  Respectfully however that is, nothing more than inviting a reconsideration of the reasonableness of the overall decision.  In this case, as I have earlier noted, there has been no basis to establish that the Tribunal’s primary decision to proceed to determine the application in the circumstances was unreasonable, and it follows in my view that this ground for review must also fail.

30. The fourth ground advanced is that the second respondent breached the natural justice hearing rule contained in Division 5 of Part 5 of the Act by not waiting for the result of the applicant’s IELTS test before making a decision on review, and as such made a jurisdictional error. I have earlier addressed this matter which more correctly has a factual foundation. There was no evidence before the Tribunal that the applicant sat, and was therefore awaiting the result of, a 17 November IELTS test. Further, there was no request for an adjournment or postponement made when later opportunity was presented, and as such against that background it could not be reasonably contended that there was a denial of procedural fairness. It follows that this ground of review must fail.

31. The fifth ground of review is that the second respondent’s decision was unreasonable and/or irrational by not waiting for the result of the IELTS test before making a decision on review, and as such made a jurisdictional error. 

32. It is well established that a ground of unreasonableness will be made out where, in the exercise of a discretion a decision is so unreasonable that no reasonable repository of power could have so exercised the power.  However, as I have earlier explained, in this instance there can be no basis to advance the facts of this case to support the proposition of unreasonableness. In my view the decision was clearly reasonable in the circumstances and it follows that this ground of review must fail.

33. The sixth ground is that there was a failure by the second respondent to await the result of the applicant’s IELTS test before making a decision on review, which meant that the second respondent meant to take a relevant consideration into account, and as such made a jurisdictional error.  What amounts to a relevant consideration was settled in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd (1986) 162 CLR 24. In this case it is not clear what is said to have been the relevant consideration, although I infer from the facts and circumstances that what is being referred to is the applicant’s IELTS test result of 17 November 2012.

34. As I noted first, there is no evidence to demonstrate that there was indeed a test result, and in the absence of evidence to that effect it is difficult to see what the relevant consideration would have been. It follows that, as the decision-maker is only obliged to make a decision on the material and submissions before him or her at the time, in the absence of any evidence that the applicant had sat the 17 November 2012 IELTS test and was thus awaiting a result, or at least requested an adjournment or postponement of the decision until such a result was forthcoming, it cannot be said that there was any consideration which the Tribunal failed to take into account. It follows that this ground also must fail. 

1. The seventh ground that was advanced was advanced in the alternative or further to the sixth ground. It was that the second respondent failed to ask itself the correct question in making the decision and thus effected an error of jurisdiction. The respondent notes that the Tribunal did not ask itself the question of whether an adjournment or postponement of its decision should be granted because a request for an adjournment or postponement was not made, and further there was no evidence before the Tribunal to even suggest that the applicant had sat the 17 November 2012 IELTS test and was thus awaiting its results.

2. It is submitted that in the circumstances there could not have been a reasonable obligation on the Tribunal to ask itself the question posed in the applicant’s seventh ground of review.  Respectfully, I agree with the respondent’s submission on that matter.  It is a nonsense to expect the Tribunal to ask itself a rhetorical question which is entirely conceptual in the absence of a factual foundation to support it.  On that premise that ground too must fail. 

3. It follows that not only ought the application fail for the reasons advanced at the outset and contended for by the respondent but, having examined each of the seven grounds that were advanced by the applicant in his application, none of the grounds can support any contention of jurisdictional error. It follows that the application is dismissed. 

4. In relation to costs, the costs sought by the respondent are, in my view, quite reasonable and modest and reflect the costs, at least on the scale, which ought to have been awarded. The adjournment was granted on the occasion at the request of the applicant. It follows that the applicant ought pay those costs. The applicant has been unsuccessful today and generally should pay the costs of the application. The total of those costs is $8243.00. The costs will be assessed in accordance with Exhibit 1.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  30 January 2014