SARKER v Minister for Immigration

[2014] FCCA 2693

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARKER v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2693

Catchwords:
MIGRATION – Review of Migration Review Tribunal (Tribunal) decision – whether the Tribunal acted unreasonably in not granting an adjournment to undertake a further IELTS test – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958 (Cth), s.363(1)(b)

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: UTPAL SARKER

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: SYG 911 of 2014

Judgment of: Judge Manousaridis

Hearing date: 11 November 2014

Delivered at: Sydney

Delivered on: 11 November 2014

REPRESENTATION

Applicant in person assisted by an interpreter.

Counsel for the Respondent:

Ms M. Stone

DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 911 of 2014

UTPAL SARKER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 27 May 2010, the applicant applied for a Skilled (Residence) (Class VB) (subclass 885) visa (885 visa). 

2. To have been entitled to the grant of an 885 visa, the applicant had to score 120 points under a points system that applied to the granting of 885 visas.  It is unnecessary to describe that system other than to note that, to score the necessary 120 points, the applicant had to demonstrate proficiency in English. To demonstrate proficiency in English, the applicant had to show that he had undertaken a test under the International English Language Testing System (IELTS), and that he scored at least seven points in each of the listening, reading, writing and speaking bands tested under the IELTS.

3. In his application for the 885 visa, the applicant stated that he had taken an IELTS test on 24 October 2009.  That was true; but the applicant did not achieve the necessary score. Up until 13 December 2013, when a delegate of the first respondent (Minister) refused to grant an 885 visa, the applicant had undergone a number of further IELTS tests but in none of them did the applicant achieve a score that equated to proficiency in English.  By the time the applicant attended a hearing before the Tribunal on 27 February 2014, the applicant had undertaken an IELTS test approximately 30 times.  At least, that is what the applicant told the Tribunal at the hearing.[1]

   [1] CB223, [18]

4. The applicant informed the Tribunal that the applicant had difficulties with the writing component of the IELTS test.  The applicant informed the Tribunal he had begun tutoring about two months ago and felt he was improving.  However, he had undertaken five tests since he had begun tutoring but had not achieved a score of seven in each of the bands.  At the hearing before the Tribunal, the applicant requested the Tribunal await the outcome of the IELTS test the applicant had booked for 8 March 2014.

5. The Tribunal, however, refused the applicant’s request. The Tribunal did so for the following reasons:

   a) the applicant had undertaken the IETLS test numerous times, at least three of which had been taken recently, and the applicant had been unable to achieve the required minimum scores of seven in each of the bands; and

   b) the applicant had had ample opportunity to achieve the required scores, given that the applicant applied for the 885 visa in May 2010 and that he had made 30 attempts to achieve the required IELTS score.

6. Given the Tribunal did not permit the applicant another opportunity to undertake an IELTS test, the Tribunal affirmed the delegate’s decision not to grant the applicant an 885 visa on the ground that the applicant did not score 120 points. 

7. The applicant now seeks an order to quash the Tribunal’s decision.  The only ground stated in the application is “Time Extension for IELTS denied”. I take this to be a claim that the Tribunal acted unreasonably in not granting the applicant the time he asked to undertake a further IELTS test. Stated more precisely, I take the ground raised by the applicant to be that the Tribunal failed to exercise reasonably the power conferred on it by s.363(1)(b) of the Migration Act 1968 (Cth) (Act) to adjourn the review from time to time.

8. At the hearing before me, the applicant requested that I give him further time to provide to the Court the results of an IELTS test he had recently undertaken.  I explained to the applicant what the role of this Court was. I said that it was not for me to determine whether he had satisfied the IELTS tests. That was a matter for the Tribunal.  I informed the applicant that the jurisdiction of this Court was to determine whether the Tribunal determined his application according to law.

9. I then explained to the applicant that the Minister had treated his application for judicial review to be a claim that the Tribunal acted unreasonably in refusing to grant the applicant further time to undertake an IELTS test. I further explained that the applicant would need to inform the Court whether he claimed the Tribunal’s decision not to grant him further time was unreasonable and, if so, the grounds on which he says the Tribunal’s refusal was unreasonable.  I then adjourned the hearing for a few minutes to give the applicant an opportunity to think about whether he wished to make any submissions.  When the matter resumed, the applicant informed me he had nothing to say.

10. When the applicant requested the Tribunal give the applicant time to sit for the IELTS test he had booked for 8 March 2014, the Tribunal was called to consider exercising the power to adjourn the review conferred by s.363(1)(b) of the Act. There is no question that, in exercising that power, the Tribunal was bound to exercise the power reasonably.

11. Various tests have been used in the cases to describe what must be shown before a particular exercise of a power will be characterised as unreasonable. At least two tests can be identified. One is that the decision will be unreasonable if it lacks “an evident and intelligible justification”.[2]  These words look to the actual reasoning or lack of reasoning that may attend the exercise of a particular power.  The test looks into the “justification, transparency and intelligibility” of the decision-making process. The second test is that a decision is unreasonable if it falls outside a range of possible, acceptable outcomes which are defensible. Whatever the test, whether the decision in question is reasonable must be assessed having regard to the scope, subject and purpose of the particular statutory provisions of which the provision conferring the relevant power forms part.

    [2] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76]

12. When considering in any given case whether the Tribunal has reasonably exercised its power under s.363(1)(b) of the Act, it is necessary to consider the Tribunal’s functions as defined by the Act. Relevant here is the requirement that the Tribunal make the correct or preferable decision in respect of an individual applicant or application. This requires the Tribunal to give an applicant a meaningful opportunity to appear and present evidence and argument.

13. Applying these considerations to the case before me, it cannot be said the Tribunal did not provide an evident or intelligible justification for its decision not to grant the applicant further time.  That justification was that the applicant had made around 30 attempts over a period exceeding three years to obtain the required IELTS results and, as the Tribunal noted, it included attempts made recently before the hearing. Although the Tribunal did not so expressly find it was open to it to conclude, and I cannot be satisfied the Tribunal did not so conclude, that it would be futile to allow the applicant the further time the applicant requested.

14. Additionally, it cannot be said that, having regard to the purposes of a review before a Tribunal and the circumstances of this case, the Tribunal’s decision was outside the range of possible acceptable outcomes which are defensible.  It is conceivable that a reasonable decision-maker in the position of the Tribunal, faced with the facts that were before the Tribunal, would not have been satisfied that there was any realistic prospect that granting the applicant further time would have enabled the applicant to pass the IELTS test he had booked on 8 March 2014.

15. For these reasons, I am not satisfied the Tribunal acted unreasonably in refusing to grant the applicant time to enable him to sit for the IELTS test he had booked on 8 March 2014.  I propose, therefore, to dismiss the application and order the applicant pay the first respondent’s costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis.

Associate: 

Date:  19 November 2014