Sharma v Minister for Immigration

[2015] FCCA 248

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 248

Catchwords:
MIGRATION – Migration Review Tribunal – procedural fairness – whether it was reasonable for the Tribunal to refuse an adjournment.

Legislation:  

Migration Act1958

Minister For Immigration And Citizenship v Li [2013] HCA 18

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Applicant: VINAY SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2338 of 2014

Judgment of: Judge Street

Hearing date: 4 February 2015

Date of Last Submission: 4 February 2015

Delivered at: Sydney

Delivered on: 4 February 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr M. Glabac

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3383.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2338 of 2014

VINAY SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the Court is exercising jurisdiction under s.466 of the Migration Act1958, being an application for a Constitutional writ in respect of the Migration Review Tribunal’s decision on 31 July 2014. 

2. The substance of the application is an allegation of jurisdictional error by reason of the failure to provide a further opportunity to sit for an IELTS text exam so that the applicant could try and meet the English language qualification which he had been striving to achieve, of proficiency in English rather than competency in English. The difference in points, if achieved, would have permitted him to meet the criteria under cl.885.221 for the grant of a subclass 885 visa. 

3. The applicant identified the alleged error in his application for relief as follows:

   1. That I am a skilled visa applicant under GSM subclass885. My application lodged on 30^th June 2011 which was refused by the department of immigration on 13^th May 2014 due to not meeting the Points test and the major component of not meeting my points was proficiency in english. That I was required to get 7 in each of the four components of IELTS Test. I had further applied for the review in Migration Review Tribunal and requested MRT to provide me an opportunity to sit for IELTS exam so that I can provide my evid3ence of English. Unfortunately my result state not proficient and despite of further request made to the member of MRT for extention to provide English test, the decision to affirm my matter was made by MRT which I believe to be wrong considering that I was not allowed enough time. I firmly believe that I am a person who has proficient English and I will be providing during this Court proceedings. [sic]

4. There was tendered before the Court the steps that have been taken before the delegate and the Tribunal, to which I will return, and there was also tendered in court, albeit without an earlier notice, the CD electronic recording of the hearing on 4 July 2014.  That recording occupied some 30 minutes and, in the circumstances of the application, notwithstanding the failure to have provided a transcript, I permitted the exhibit to be tendered, and I have listened in open court to that recording.

5. The applicant applied for the skilled (residence) class VB visa on 30 June 2011.

6. On 31 October 2013, the delegate wrote to the applicant, informing him, in relation to the processing of his application, that there was a request checklist that he needed to address.  That checklist identified, relevantly:

   You have currently provided evidence for 110 points.  The pass mark is 120.  Please see below the points Awarded as per the points you claimed in your application form and evidence provided. 

   Relevantly, in relation to English, it recorded:

   Competent  15.

   Attention was drawn to the need to provide evidence of an additional 10 points. 

7. On 1 May 2014 the delegate requested a response by 8 May 2014, and recorded:

   This is the last and final request for your IELTS test report, you indicated you had completed on 15/02/2014.  If you fail to provide this test by 08/05/2014, your application may be refused.

8. On 13 May 2014 the delegate wrote to the applicant and, relevantly, said:

   I was not satisfied that you met the relevant criteria for the grant of this visa as set out in the Australian migration law. 

   The application by Vinay SHARMA was refused because Vinay SHARMA did not satisfy 885.221 of the Migration Regulations 1994.

9. Attached to that letter was a copy of the decision, in which the delegate recorded in his reasons:

   I am not satisfied that you, SHARMA, VINAY, meet the criteria for the grant of Skilled (Residence) (class VB) subclass 885 (Skilled – Independent) visa, as set out in the Australian migration law. 

10. The delegate carefully identified, under the points test the visa application the pass mark required for the Skilled (Residence) (Class VB) subclass 885 (Skilled Independent) visa.  The delegate had determined that on the assessed score for the application by the applicant, in accordance with Schedule 6B of the Regulations, the applicant obtained 110 points – 10 points below the required 120. 

11. The delegate set out in detail how the points had been arrived at, identifying the difference between proficient English and competent English, and the different points that would follow.  The delegate identified the test that had been performed on 7 May 2011, which was provided with the application on 30 June 2011, identifying a score that would only provide 15 points.  The delegate recorded:

    On 31 October 2013 a request letter was sent to you to your authorised email address requesting, amongst other information, evidence of how you propose to meet the points pass mark of 120.  You were asked to provide evidence of the additional 10 points required. On 27 December 2013 our office received from your authorised email address an IELTS receipt for an IELT’s test to be completed 11 Jan 2014.  Our office has not yet received these test results.

    On 28 February 2014 our office received from your authorised email address another IELTS receipt test for a test booked for 15 February 2014.  To date we have not received the results from this IELTS test. 

    On 4 March 2014 our office received from your authorised email address a further receipt for an IELTS test booked for 08 March 2014 again these results have not been received by our office. 

    On 01 May 2014 a final request letter was sent to your authorised email address requesting that you provide further evidence of IELTS as previously requested. You were provided with seven days in which to provide these results. 

    On 8 May 2014 our office received a new IELTS test from your authorised email address with the following results. 

    Test Results Overall Band 7.5

    Date of Examination 2014-04-12

    TRF Number: 14AU001694SHAV108G

    Listening Band 8.5

    Reading Band 7.0

    Writing Band 6.5

    Speaking Band 7.0

    As you have met competent English you have been awarded 15 points as advised above. 

    In that test, the applicant had only achieved 6.5 in relation to the writing band.  The delegate concluded: 

    …I have awarded you a total of 110 points.  As this falls short of the requisite 120 points, I am not satisfied that you meet clause 885.221.  Therefore, I am not satisfied that you meet the criteria for a grant of this visa. 

    As requirements of Class 885.221 are not met, I have not assessed this application further against the requirements of the subclass. 

    …

    As you do not meet the legal requirements for the grant of Skilled (Residence) (class VB) subclass 885 (Skilled – Independent) visa, I therefore refuse to grant you a Skilled (Residence) (class VB) subclass 885 (Skilled – Independent) visa. 

12. It was in these circumstances that the applicant sought a review before the Tribunal.  A hearing occurred on 4 July 2014.  At that hearing, the applicant identified that he had attempted the IELTS test seven times since 31 October 2013.  The test results for 9 November 2013, 30 November 2013, and 7 June 2014 were provided to the Tribunal.  In all of which, in respect of writing, a score of only 6.5 was achieved. 

13. At the hearing on 4 July 2014, the applicant informed the Tribunal that he had booked a further test to be held on 12 July 2014.  The Tribunal agreed to allow further time to provide the results of that test by 25 July 2014. 

14. By a letter dated 25 July 2014 the Tribunal was informed that the applicant’s recent test on 11 July resulted in an overall score of seven, but the applicant was unable to achieve seven in each of the four components.  In that letter, the following request was made:

    Please note that the applicant is a very genuine person and wishes to sit for another test, it is his request you to give him this last opportunity to sit for an IELTS test exam before you make a decision on this matter.

15. There was not provided with that request any specific booking or identification of when the further test was to occur, notwithstanding that on earlier occasions evidence of the booking had been provided to the Department that a booking had been made.

16. In the decision of the Tribunal, the request for an adjournment was dealt with as follows:

    16. At the Hearing on 4 July 2014, the applicant told the Tribunal that he had attempted the IELTS test 7 times since 31 October 2013. The applicant brought to the hearing the results of tests undertaken on 9 November 2013, 30 November 2014 in which he had achieved a score of 7.0 or more for the test components of listening, reading and speaking but not in writing, achieving a score of 6.5 in each of the tests provided. The applicant also provided a printout of the online results from a test he had undertaken on 21 June 2014 in which he had achieved 7.0 in the writing component, but 6.5 in the reading component. The applicant had also made a booking for an upcoming test to be held on 12 July 2014. The Tribunal agreed to allow further time to provide the results of that test and requested that the results be provided by 25 July 2014.

    17. On that date, the Tribunal was advised that the applicant was not successful in achieving 7.0 in each of the test components and a request was made for one last opportunity for the applicant to sit another test.

    18. The Tribunal has considered the request but has not agreed to allow the applicant a further opportunity to undertake an IELTS test. The Tribunal considers that the applicant has had sufficient opportunity to attempt the IELTS for the visa that he is seeking, as the visa application was made over three years ago and he had attempted the IELTS test more than 7 times, including a recent attempt earlier this month. The applicant has been unable to achieve the required score in each test component of 7.90 or more which is what is required by the definition.

17. In considering whether there is legal unreasonableness of the kind identified in Minister For Immigration And Citizenship v Li [2013] HCA 18, it is necessary to take into account the structure of the Act, and, in particular, s.353, s.357A(3), s.360, and, relevantly, s.363 which provides:

    (1) For the purpose of the review of a decision, the Tribunal may:

    …

    (b) adjourn the review from time to time.

18. It is clear from the reasons of the Tribunal that the Tribunal appreciated the discretion that it had to exercise under the legislation, and indeed had exercised that discretion favourably to the applicant at the hearing on 4 July 2014.  However, in response to the letter of 25 July 2014, it cannot be said that the decision was one which lacks an evident and intelligible justification.  The evident justification was the seven times which the applicant had already sat in respect of an application lodged three years earlier in 2011. 

19. It cannot be said, in my opinion, that a reasonable Tribunal, properly taking into account the nature of the review and the legislative provisions to which I have referred and the principles identified in Li, as well as in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, could not have come to the decision made by the Tribunal. In my opinion, it cannot be said no reasonable Tribunal would have refused the request.

20. Moreover, as a matter of proportionality, in the circumstances it cannot be said that there was unreasonableness of a kind that would constitute jurisdictional error.  In my opinion, from the material I have referred to it is clear that the Tribunal exercised its discretion in compliance with the criteria of lawfulness, fairness, and rationality that lie at the heart of the administrative justice being exercised by the Tribunal in its review procedure. 

21. In my opinion, this is a case consistent with the passage identified in the joint judgment of Hayne, Kiefel and Bell JJ, in The Minister for Immigration v Li, supra, at [82]:

    82. It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that "enough is enough", but it is not apparent how that conclusion was reached in the present case, having regard to the facts and to the statutory purpose to which the discretion to adjourn is directed.

22. In the present case before the court, it is apparent how the conclusion was reached in respect of “enough being enough”, given the number of applications that the applicant had made, and the time period since the making of the application.  In those circumstances, I find there is no legal error in the exercise of the discretion declining a further adjournment to the applicant as requested in the letter dated 25 July 2014. 

23. For the above reasons, I am satisfied there is no jurisdictional error, and the application should be dismissed.  Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 February 2015