Siddiqui v Minister for Immigration
[2009] FMCA 816
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIDDIQUI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 816 |
| MIGRATION – Visa – skilled – Independent Overseas Student (Residence) (Class DD) visa – review of Migration Review Tribunal decision – English language skill – IELTS test – where applicant was granted two extensions of time to undergo an IELTS test but was unable to meet the required standard – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.93, 350, 359, 359A, 474, 476 Migration Regulations 1994 (Cth) Schedule 2, cl.880.222 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 |
| First Applicant: | MD FERDOUS SIDDIQUI |
| Second Applicant: | RAZIA SULTANA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1395 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 August 2009 |
| Date of Last Submission: | 6 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor appearing for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $4600.00 and I allow 6 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1395 of 2009
| MD FERDOUS SIDDIQUI |
First Applicant
| RAZIA SULTANA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicants are applying under s.476 of the Migration Act 1958 for review of a decision of the Migration Review Tribunal made on
12th May 2009, affirming the decisions of a delegate of the Minister for Immigration and Citizenship not to grant the applicants Skilled – Independent Overseas Student (Residence) (Class DD) visas.
In their application, which was filed on 11th June 2009, the applicants do not specify any particular orders that they seek. Rather, they say:
Need some time to sit for exam.
Last time I didn’t get my bonus point but now I got it.
That’s why I was upset.
The Grounds of the application are similarly informal:
If my lawyer would asked for another extension then this situation won’t happen. Point No (20).
Before my exam I got back injured that’s why I couldn’t sit properly.
Background
The applicants are a husband and wife from Bangladesh. They applied for Skilled-Independent Overseas Student (Residence)(Class DD) visas on 14th March 2006.[1] On 7th January 2008 a delegate of the Minister refused to grant the application for the visa.[2]
[1] Court Book at 1-14
[2] Court Book 71
The delegate refused the applications on the basis that the first applicant, the husband, did not meet the requirements of cl. 880.222 of Schedule 2 of the Migration Regulations in that he did attain the necessary score of 120 points to enable further consideration of the application. The applicant’s score was 110 points, made up as follows:
a)Skill 60 points
b)Age 30 points
c)English language ability 15 points
d)Australian qualification 5 points[3]
[3] Court Book 74
On 21st January 2008 the applicants applied to the Migration Review Tribunal for review of the delegate’s decision.[4]
[4] Court Book 77-83
Application to the Migration Review Tribunal
On 6th March 2008 the applicants’ current migration agent, Mr da Costa, made a written submission to the Tribunal, saying:
The basis of the decision to reject the visa was that Mr Siddiqui did not satisfy the required 120 points for the granting of the visa; Mr Siddiqui was assessed by the case officer as having amassed a total of 110 points and as a result, a negative decision was given. Mr Siddiqui was relying on two main factors to address the
10 point shortfall with regard to his application:
· A score of Level 6 in each category of an IELTS test to allow an allocation of 20 points for English
· His employment in a skilled occupation in Australia
He was experiencing some difficulty attaining the required 6 band level in each category of the IELTS test; as a result he made several attempts to achieve this.[5]
[5] Court Book 86
On 20th November 2008 the Tribunal faxed a letter to the applicants’ migration agent entitled “Invitation to Comment on or Respond to Information and Invitation to Provide Information”. The letter was clearly intended to comply with the requirements of ss.359A and 359 of the Migration Act. The letter asked the applicants to comment on or respond to this piece of information:
· The first named applicant scored only 110 points in the Points Assessment.[6]
[6] Court Book 93
The letter went on to ask the applicants to provide the following additional information:
· Evidence that the applicants can meet the pass mark of 120 points.[7]
[7] Court Book 94
The Tribunal’s letter asked the applicants to reply in writing by
18th December 2008.
On 1st December 2008 the applicants’ migration agent wrote to the Tribunal advising:
Please find attached confirmation of an IELTS test booking by Mr Siddiqui; he has instructed me to seek leave from the Tribunal to allow him to sit the test on 18 December.[8]
[8] Court Book 95
A Tribunal officer telephoned the applicants’ migration agent on
11th December to advise that the Tribunal would wait for the result of the IELTS test.[9]
[9] Court Book 97
The applicant was not successful in reaching the required standard at the IELTS test, only obtaining an overall band score of 5.5.[10] The migration agent advised that the applicant had made another booking to sit the test again on 4th April 2009 and asked the Tribunal for a further opportunity to sit the test.[11]
[10] Court Book 99
[11] Court book 98
The Tribunal declined to grant a further postponement.[12]
[12] Court Book 104
On 6th February 2009 the Tribunal wrote to the applicants and invited them to attend a hearing scheduled for 10:30 am on 25th February 2009. The first applicant attended the hearing accompanied by his agent,
Mr da Costa.[13]
[13] Court Book 113
At the hearing, the Tribunal considered information from the first applicant’s employer and indicated that, on the basis of that information, the applicant could be granted a further 5 points towards the qualifying score.
The Tribunal then considered the question of the first applicant’s English language skill qualifications:
The primary applicant’s adviser informed the Tribunal that the primary applicant had booked a further IELTS test and required a pass at the level of Competent English to get the necessary
120 points to be granted a Subclass 880 visa. He requested the Tribunal to extend its discretion to allow him to situation[14] the test.
The Tribunal acceded to the primary applicant’s plea and asked him to contact the Tribunal with the results as soon as they were posted so the decision could be finalized.[15]
[14] Sic – presumably “sit”
[15] Court Book 127 at [19] –[20]
The first applicant sat for the IELTS test on 4th April 2009. Although he received an overall band score of 6.0[16], this was not sufficient for him to reach the required standard, as he did not attain a level of 6 in each category.[17]
[16] Court Book 120
[17] Court Book 119
The Migration Review Tribunal decision
The Tribunal signed its decision on 12th May 2009 and a copy of the decision was forwarded to the applicants’ migration agent the next day. The Tribunal affirmed the decision of the delegate not to grant the applicants Skilled-Independent Overseas Student (Residence) (Class DD) visas.
The Tribunal stated that a primary criterion to be met at the time of decision is cl.880.222, “which requires that the applicant has the “qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act”.[18] Further, ss.92-96 of the Migration Act set out a points system under which applicants may be given a score based on points for particular attributes. The Tribunal noted that the number of points awarded by the delegate to the first applicant amounted to
110 points, which was below the pass mark of 120 points.
[18] Court Book 126 at [9]
The Tribunal’s findings and Reasons
In its Findings and Reasons, the Tribunal noted that:
…s.350 of the Act requires the Tribunal, in reviewing a points test assessment, to apply whichever of the Regulations and the pool and pass marks in force at the time of the delegate’s assessment (primary assessment0 or as in force at the time of this assessment (review assessment) that are more favourable to the applicant. The Tribunal will first reassess the primary applicant’s total points score under the Regulations in force at the time of the primary assessment.[19]
[19] Court Book 128 at [24]
The Tribunal then conducted its reassessment of the first applicant’s point score for the relevant categories in Parts 1, 2, 3, 4, 5, 6, 7, 8 and 10 of Schedule 6A to the Regulations. In respect of Part 8 – Bonus Points Qualification, the Tribunal stated:
The Tribunal finds that the primary applicant has submitted additional information from his employer. The Tribunal is now satisfied that he does meet the requirements of item 6A81 of Schedule 6A to the Regulations and, therefore, is entitled to meet the requirements of item 6A81 of Schedule 6A to the Regulations and, therefore, is entitled to 5 points for part 8 of Schedule 6A (T1, ff.36-37).[20]
[20] Court Book 129 at [35]
The Tribunal found that the first applicant was entitled to a total of
115 points under the points test. However, the pass mark was 120 points and pool mark was 120 points, and the first applicant had not reached that qualifying score. The Tribunal found that the primary applicant did not meet cl.880.222, which is a prescribed criterion for the grant of a Subclass 880 visa.
Accordingly, the Tribunal affirmed the decision of the delegate not to grant the applicants Skilled – Independent Overseas Student (Residence) (Class DD) visas.
Application to the Federal Magistrates Court
The first applicant attended Court on the hearing of the application for judicial review. He made an oral submission in which he gave summary of the history of his application for a visa. He told the Court that he had applied for the visa in 2006. After six months he submitted documents in support of his claim for the 5 bonus points. After another four months he asked his “lawyer” (i.e. his migration agent) what was happening. After eight months, the Department rejected his application. He received a total of 10 points and did not get any bonus points.
The first applicant said that he obtained the services of another “lawyer” (migration agent). He claimed that the migration agent told him after the Tribunal decision was handed down that he would have to leave the country. He asked for another extension of time but the migration agent told him that he had reached “The end of the line”.
Submissions on Behalf of the Minister
Ms Johnson, solicitor, appeared for the Minister. She submitted that the first applicant had not asserted any error on the part of the Tribunal. The Tribunal had, in fact, awarded the applicant the 5 bonus points. The decision turned on the first applicant’s language skills. He had been given two opportunities to sit for an IELTS test but had not reached the necessary standard.
Thus, she submitted, there was no jurisdictional error.
Conclusions
The application for review does not allege any jurisdictional error on the part of the Tribunal and the first applicant has not made any such claim in his submission. He claimed in his application that if his migration agent had sought a further extension of time for him to sit for another IELTS test then “this situation won’t happen”.
The first applicant was given two opportunities to sit for an IELTS test whilst the matter was under review by the Tribunal. The applicants’ migration agent asked the Tribunal on 1st December 2008 for an extension of time for the first applicant to sit for an IELTS test on
18th December that year. The Tribunal agreed. The first applicant sat for the test but failed to reach the required standard of English proficiency.At the hearing on 25th February 2009, the applicants’ migration agent asked the Tribunal for an extension of time to allow the first applicant to sit for another IELTS test, booked for 4th April 2009. The Tribunal agreed, the first applicant sat for the IELTS test and again failed to reach the required standard.
The Tribunal then made its decision to affirm the delegate’s decision not to grant the applicants the visas that they sought.
It is hard to see any reason why the Tribunal should have postponed its decision to allow the first applicant the opportunity to undergo another IELTS test. There is no failure by the Tribunal to exercise its discretion.
The Tribunal set out its understanding of the relevant law, which was without error. It correctly applied the provisions of s.350 of the Act, which says:
(1) In reviewing an assessment of the Minister under section 93, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:
(a) the regulations for that purpose that were in force at the time the assessment was made by the Minister;
(b) the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.
(2) In determining whether the regulations mentioned in paragraph (1)(a) or1(b) are more favourable to the applicant, the only applicable pass mark and applicable pool mark that the Tribunal may have regard to are:
(a) in relation to regulations covered by paragraph (1)(a) – the applicable pass mark and the applicable pool mark that applied at the time the assessment was made by the Minister; and
(b) in relation to regulations covered by paragraph (1)(b) – the applicable pass mark and the applicable pool mark that applied at the time the decision is made by the Tribunal about the assessment.
There is nothing to show any jurisdictional error by the Tribunal. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision (Plaintiff S157/2002 v Commonwealth[21] per Gaudron, McHugh, Gummow, Kirby and Haynes JJ at [76]).
[21] (2003) 211 CLR 476; [2003] HCA 2
Privative clause decisions are final and conclusive. They are not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (Migration Act, s.474(1)).
It follows that the application will be dismissed. The Court will hear submissions as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 27 August 2009
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