SINGH v Minister for Immigration
[2017] FCCA 2706
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2706 |
| Catchwords: MIGRATION – Skilled (Professional) (Class VC) visa – criterion of competent concessional English (IELTS) not met by applicant – series of unsuccessful test results – applicant relies upon successful test result obtained in India – successful test result obtained after Tribunal had affirmed decision of delegate to refuse visa application – no jurisdictional error shown – principles applicable on show cause hearing – no arguable case – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), regs.1.15, 1.15B, 1.15E, 1E.1, 2.01, 2.02, Sch 2 cl 487.31, 487.32, cl 487.215, cl 487.224 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 |
| Applicant: | SANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2407 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 1 June 2017 |
| Date of Last Submission: | 1 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the First Respondent: | Ms Wilde |
| Solicitors for the First Respondent: | Clayton Utz |
| Second Respondent: | Having filed a submitting appearance |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2407 of 2016
| SANDEEP SINGH |
Applicant
And
| MINISTER OF IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By this application, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 October 2016 which affirmed a decision of a delegate of the first respondent (Minister) to refuse the applicant a Skilled (Professional) (Class VC) visa. The application should be dismissed. In substance, I do not discern any jurisdictional error in the decision of the Tribunal or the finding that the applicant did not satisfy the criteria for such visa.
The applicant had applied for a Skilled (Professional) (Class VC) visa, one of the criteria for which was that the applicant should have ‘concessional competent English’ (as that phrase is defined): Migration Regulations 1994 (Cth), Sch 2, Part 487, cl 487.215.
The applicant did not have concessional competent English either at the time of lodging his application, at the time of the decision of the delegate to refuse that application or at the time that that decision was affirmed by the Tribunal.
Where a valid visa application has been made, the Minister is required to grant or refuse that application: s 65 Migration Act 1958 (Cth) (Act).
The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable regulations under the Act: s 498. The applicant in this case did not satisfy the requirement under cl 487.215 that he had concessional competent English.
The Minister, or a delegate of the Minister, was required by para 65(1)(b) to refuse the visa application. The Tribunal reviewed that decision and in affirming the decision did not commit any jurisdictional error. My reasons follow.
Background
The applicant, a citizen of India aged 32 years, arrived in Australia in February 2008 as the holder of a student visa and an Indian passport. Before arriving in Australia, in 2006, the applicant had completed a Bachelor of Arts. In Australia, the applicant obtained a Certificate III in Automotive Mechanical Technology and a Diploma of Management.
On 26 May 2010, the applicant applied, by his migration agent, for a Skilled (Professional) (Class VC) visa.
On 4 August 2015, the Department of Immigration and Border Protection (Department) wrote to the applicant informing him that, as a result of investigations made in relation to the information provided in his application, the Department had received unfavourable information which, it considered, did not support the application. The Department stated that it had been informed the applicant had “engaged the services of an imposter in an attempt to gain competent English.”
The Department further provided the applicant with details of the relevant International English Language Testing System (IELTS) test results on which it relied, including the location of the test centre and the date of the test together with certain passport and candidate numbers. The applicant was offered the opportunity to comment on that information and invited to respond within 28 days.
On 28 August 2015, the applicant’s migration agent responded, advising the Department that to the best of the applicant’s knowledge, he had never provided any bogus document to the Department. In addition, the migration agent stated that in order to “confirm his claim, I advised him to apply for an FOI (Freedom of Information) application, which he has already applied. As you know, the processing of FOI application is between 1-2 months, once I get the FOI results, I would be able to verify his claim.”
On 22 September 2015, the Department invited the applicant to furnish a copy of his FOI application in support of his request for an extension of time within which to respond to the contention that he had provided bogus information in connection with his visa application.
On 1 October 2015, the Department wrote to the applicant’s migration agent requesting that the applicant provide additional documents including evidence of his English language ability. The Department’s request stated, “This may include a certified copy of your [IELTS] Certificate or Occupational English Test Certificate (OETC).”
By email transmitted on 28 October 2015, the applicant’s migration agent wrote to the Department attaching a number of documents including “4. Ielts on 21/11/2015” and stated “I will forward you my clients . . . Ielts certificate as soon as provided by my client.” Although the email stated that certain documents were being attached, it is apparent that the applicant’s IELTS document post-dated the email. The Department regarded the email as indicating that the applicant had made arrangements to sit an IELTS test on 21 November 2015.
On 2 November 2015, and again on 24 November 2015, the Department wrote to the applicant’s migration agent advising that the applicant should retain and provide it with a copy of the receipt that he had obtained for the IELTS test which he had booked.
On 24 November 2015, the applicant’s migration agent sent to the Department a copy of the booking receipt for the applicant’s IELTS test. The attached receipt indicated that the applicant’s IELTS test had been scheduled for Saturday, 21 November 2015.
On 21 December 2015, the Department sent an email to the applicant’s migration agent advising that there were insufficient grounds upon which to approve the request that had been made for an extension of time (i.e. in which to respond to the contention that he had provided bogus IELTS information in connection with his visa application).
On 21 December 2015, a delegate of the Minister decided to refuse the visa application, doing so on the grounds that the applicant had been afforded a reasonable amount of time in which to sit an English test and that he had failed to provide any English language test results. For those reasons the delegate was not satisfied that the requirement that the applicant demonstrate he had concessional competent English had been met: Regulations, Sch 2, Part 487, cl 487.224.
The delegate found that, as the applicant had not satisfied cl 487.224, the criteria for the grant of the visa were not met.
On 5 January 2016, the applicant sought from the Tribunal a review of the delegate’s decision to refuse the visa application: s 347. Upon it being determined that the application for review was properly made, the Tribunal was obliged to review that decision: sub-s 348(1). The review of the decision was to be conducted on its merits: sub-s 349(1).
On 19 September 2016, the applicant was invited to attend before the Tribunal to give evidence and make submissions in relation to issues arising in connection with the delegate’s decision. A hearing was fixed for 13 October 2016 at 12.00pm. The Tribunal requested the applicant provide at the hearing the documents which he considered to be relevant to the review and stated, “to date you have not presented evidence that you meet the English language proficiency requirement (competent English) for the visa. If you have booked an IELTS test or an Occupational English Test scheduled to take place before the hearing date, or soon after, please send evidence of the booking.”
On 12 October 2016, the applicant’s migration agent responded to this invitation stating that his “client has given IELTS a few time but couldn’t satisfy the English Requirement.” He requested that an interpreter fluent in Punjabi and English be made available for the Tribunal hearing. He also provided the Tribunal with copies of some five IELTS test results, none of which satisfied the concessional competent English requirements. In addition, the applicant’s migration agent provided a receipt for a further IELTS test booking which recorded that that test was scheduled for 19 November 2016.
On 13 October 2016, the applicant appeared before the Tribunal where an interpreter and his migration agent assisted him.
Immediately following that hearing, the Tribunal delivered its decision orally, affirming the decision of the delegate to refuse the visa application. The Tribunal also wrote to the applicant and his migration agent on 14 October 2016, providing a copy of the record of that decision and advising that the Tribunal would provide reasons for the decision as soon as they were available.
On 14 October 2016, the Tribunal provided reasons for its decision (reasons). By its reasons the Tribunal recounted the history of the application and relevant law and identified the criteria in issue, including whether the at the time of the application, the applicant had concessional competent English (cl 487.215(a)), or that the application had been accompanied by evidence that the applicant had made arrangements to undergo a language test (cl 487.215(b)). The Tribunal noted that, where the latter criterion applied, the applicant also needed to satisfy the requirements of cl. 487.224 at the time of its decision. The reasons state, “Clause 487.224 requires that the applicant has concessional competent English.”
The Tribunal noted that the term “concessional competent English” was defined by reg’n 1.15E and provided that an applicant had demonstrated such competency where relevantly, in the period of two years before the date of the application, the applicant had achieved, an IELTS test average of at least 6 for the 4 components of that test, vis, speaking, reading, writing and listening.
The Tribunal applied the principle that an applicant can satisfy the requirements of reg’n 1.1E by achieving a test average of 6 in an IELTS test that is undertaken after the application had been made, but not more than two years earlier: citing Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450.
The reasons record the evidence that the applicant had given at the hearing with the assistance of a Punjabi/English interpreter. The reasons set out the results of the five IELTS tests which the applicant had sat and that the applicant had failed to achieve an average of at least 6 for the 4 components of that test. The test results were of an overall band score of 5 for 4 of those tests and 4.5 for the fifth test.
The Tribunal also recorded the applicant’s evidence that, at the time he had applied for the visa, he was aware of the requirement to provide proof of his competency in English. His evidence was that he had recently undertaken English classes. When asked why he had waited some six years to commence English classes the applicant responded that he travelled to India every year and so he had had no time to do so.
The applicant confirmed he was booked to sit another IELTS test on 19 November 2016. He requested that the Tribunal grant him a further opportunity to demonstrate his competency in English.
The Tribunal decided not to postpone the making of its decision on the review of the delegate’s decision until after 19 November 2016. In doing so, the Tribunal identified four factors that it considered:
(a)the visa application had been lodged in 2010 – and in light of the applicant’s evidence above, he had been aware for six years of the need to demonstrate his competency in English;
(b)the Tribunal had regard to the applicant’s IELTS test results and noted that in the most recent test, the applicant had achieved an overall band score of 4.5. The Tribunal considered that the applicant had never come close to achieving the requisite overall band score of at least 6 across all 4 components;
(c)the Tribunal considered the applicant’s stated reasons for not having arranged or undertaken English classes until one month prior to the Tribunal hearing;
(d)the Tribunal also considered whether, in all the circumstances, it was likely that evidence would be forthcoming that the applicant would meet the requirements of cl 487.224. It considered that the applicant had been given a fair opportunity to provide evidence of his English competency.
The Tribunal concluded that it was not disposed to delay indefinitely the making of a decision in relation to the application for a merits review of the delegate’s decision.
Having decided not to accede to the request that a further opportunity be granted so as to demonstrate concessional competency in English, the Tribunal found that it was not satisfied the applicant had achieved a test average band score of at least 6 for the 4 test components in an IELTS test that had been conducted not more than two years before the day on which the application was lodged (as qualified by Berenguel). The Tribunal found that the applicant did not have concessional competent English as defined by reg’n 1E.1 and so did not meet the requirements of cl 487.224.
Having undertaken that analysis, the Tribunal affirmed the decision of the delegate not to grant the applicant’s visa application.
In response to a request, on 14 October 2016, the Tribunal supplied a copy of the recorded hearing to the applicant’s migration agent.
Procedural History
On 4 November 2016, the applicant filed an application in this court seeking an order that the decision of the Tribunal made on 27 August 2013 be quashed. On that date the applicant also affirmed an affidavit in support. Exhibited to that affidavit was a copy of the Tribunal’s reasons together with a copy of the decision record. The application set out 14 grounds upon which the application was made.
The Minister’s response contended that the decision of the Tribunal was not affected by jurisdictional error and was therefore a privative clause decision within the meaning of sub-s 474(2) of the Act with the result that it was final and conclusive, not to be challenged in any court and was not subject to prohibition or other form of prerogative relief. The Minister sought orders that the application be dismissed with costs.
The application was listed for directions on 24 April 2017 and on that day the application was fixed for a show cause hearing on 1 June 2017. Directions were made for the filing of any amended application with proper particulars of the grounds on which it was made, a court book and written submissions. Those orders were made by consent.
The applicant filed no contentions. Instead, he filed an affidavit that he had affirmed on 17 May 2017. In substance, the applicant’s affidavit:
(a)provided a history, including of matters that might have been said to be relevant to the merits based review by the Tribunal;
(b)deposed to his recent travel to India and stated that while in India, he had booked and undertaken another IELTS test on 25 March 2017. He swore:
Up until this time I was always taking an IELTS exam in Australia and this time I tried in India. It proved to be fruitful and I happen (sic) to achieve the required IELTS Score of concessional competent meeting the visa application requirements.
(c)exhibited an IELTS certificate dated 7 April 2017. According to the IELTS Test Report Form, the applicant achieved an overall band score of 6. However, on the basis of those scores, it may be questioned whether the applicant had achieved an overall band average of 6 (but this was not explored before me). The document bore the insignia of the British Council, idp Australia and Cambridge Language Assessment. In this certificate, the following scores were recorded:
i.Listening 6.5
ii.Reading 5.5
iii.Writing 5.0
iv.Speaking 6.0
(d)exhibited a series of travel itinerary’s for the period 2010 to 2017 the relevance of which were not apparent;
(e)exhibited certain authorities to which I will refer.
It will be noted that the IELTS test results obtained in India on 7 April 2017 post-dated the conduct of the Tribunal hearing and the making of its decision on 14 October 2016.
The Minister filed an outline of submissions that was responsive to the matters raised in the applicant’s affidavit.
Consideration
Approach to this application
The applicant was self-represented at the hearing before me and, as noted above, did not file any submissions. He appeared with the assistance of an interpreter.
It may also be assumed that the applicant was unfamiliar with court processes: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)]; cf Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21, [11]-[15] (Spender J, Branson and Stone JJ agreeing). Moreover, I am conscious of the unreality and inutility of expecting that such a person will be able to identify the jurisdictional error of which they complain: AMF15, [44(e)], citing Shrethav Migration Review Tribunal (2015) 229 FCR 301, [53] (Mansfield, Tracey and Mortimer JJ). With those observations in mind, I have re-examined the Tribunal’s reasons.
The court analysed and considered for itself the competing arguments in relation to this application.
The substantive submission made by the Minister was that in light of the applicant’s failure to adduce evidence that he had, in the two year period to the date of the Tribunal hearing, successfully achieved an overall band score of 6 for the IELTS test, the Tribunal decision was, in effect, the only decision that was open to it on the evidence.
Show cause hearings
On the face of the application, the relief sought by the applicant was for an order that the respondents show cause why a remedy ought not be granted in respect of the Tribunal’s decision affirming the delegate’s decision to refuse the visa application. It will also be recalled that on 24 April 2017, the proceeding was fixed for a show cause hearing.
Rule 44.12(1) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding or to adjourn the proceeding for a final hearing or otherwise to make final orders in relation to the claims for relief.
The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 593, [10] (Smith J).
In light of the statements that the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.
It is clear that caution must be exercised when considering whether to grant summary judgment. By extension, such caution is appropriate upon the determination of a show cause hearing.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra stated a series of further propositions, including the following:
(a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
(b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
(c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;
(d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power given to grant summary judgment;
see [2016] FCAFC 158, at [46]-[49]. The propositions stated above in Upaid Systems were endorsed by the Full Federal Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]- [142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB, supra, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: [2015] FCCA 593, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.” That is, the residual discretion remains to be applied.
I apply those principles in determining this show cause application.
Visa applications
The object of the Act as expressed in sub-s 4(1), is to regulate the coming into, and presence in, Australia of non-citizens (being those persons as defined by sub-s 5(1)). The Act is an exclusive source of the right of non-citizens to enter or remain in Australia: ss 4(2), 13-14. Subject to the Act, the Minister may grant a non-citizen permission – to be known as a visa – to travel to, enter, and remain in Australia and to do so for a prescribed, specified or indefinite period: ss 29-30.
Part 2 of the Act concerns the subjects, arrival, presence and departure of persons, and is arranged in 23 Divisions comprising ss 13 - 274.
By s 65, the Minister is required (subject to exceptions that are not here relevant), to consider a valid protection visa application. Where a valid visa application has been made, the Minister is required to grant or refuse the visa application: paras 65(1)(a)-(b). The Minister may delegate the exercise of power conferred by s 65 to grant or refuse a visa application: s 496; cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 37-38 (Mason J, Gibbs CJ, Deane and Dawson JJ agreeing).
By paragraph 65(1)(b), the Minster is required to refuse to grant a visa application where the criteria for that visa are not satisfied. As stated above, one constraint imposed on the Minister in the consideration of a visa application is the requirement that the application may only be granted where the criteria for the particular visa applied for have been satisfied: ss 31(3), 65(1)(a)(ii).
Classes and criteria for visas
A non-citizen who wants a visa must apply for a visa of a specified class: sub-s 45(1). There are prescribed classes of visas: sub-s 31(1). The prescribed classes of visas are those as itemised in Sch 1 to the Regulations: reg’n 2.01. In addition, reg’n 2.02 prescribes that there may be subclasses of visa being as set out in certain items in Schedule 2 to the Regulations.
Item 1229 of Sch 1 prescribes as a visa class, a Skilled (Provisional) (Class VC) visa. By para 1229(10) subclass 485 is specified for a Skilled visa. Relevantly, Part 487 of Sch 2 of the regulations prescribes a Skilled – Regional Sponsored visa as a subclass of Skilled (Provisional) (Class VC) visa.
Sub-section 31(3) provides that the Regulations may prescribe criteria for the grant of a visa. Further, the Regulations may provide that a visa of a specified class may only be granted in specified circumstances: sub-s 40(1).
Division 487.2 prescribes primary criteria for a Skilled – Regional sponsored visa. Divisions 487.3 – 487.7 contain further regulations that are not relevant; however, it may be noted that some of those provisions prescribe criteria that are to be satisfied as at the date of the application and as at the date of the decision respectively: cf the secondary criteria in cl 487.31, 487.32.
In Division 487.2, cl 487 prescribes primary criteria for such visas which are to be satisfied at the time of the application (sub-div’n 487.21), and at the time of decision (sub-div’n 487.22) respectively.
Within sub-div’n 487.2, cl 487.215 prescribed as a primary criterion to be satisfied at the time of the application that a visa applicant must, relevantly, have concessional competent English.
Within sub-div’n 487.22, cl 487.224 prescribed as a primary criterion to be satisfied at the time of decision that a visa applicant must have concessional competent English.
Regulation 1.15 contains various definitions, including of competent English, proficient English and concessional competent English. The phrase concessional competent English is defined by reg’n 1.15E. Although that regulation has been amended, as it applied at the time of the present visa application, it read:
If a person applies for a General Skilled Migration visa, the person has concessional competent English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was made:
(a)an IELTS test average band score of at least 6 for the 4 test components of speaking, reading, writing and listening; or,
(b) a score . . .
Other Parts of Sch 2 also prescribe as a primary criterion to be satisfied at the time of the application (and decision), that a visa applicant must have concessional competent English. On orthodox principles, expressions employed in different parts of the same legislation should be given a uniform construction: Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450, [19], [26] (Smith J) citing Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523, [14], [72]; see also BMB16 v Minister for Immigration and Border Protection[2017] FCAFC 169.
In Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1, French CJ, Gummow and Crennan JJ considered the proper construction of an analogue clause in Sch 2 which stipulated a requirement for concessional competent English. Their Honours recognised that the heading “Criteria to be satisfied at time of application” was grammatically disconnected from the text of the subject clause in that the definition of concessional competent English (in reg’n 1.15B) allowed that the test had been conducted no earlier than two years before the visa application. The Court, allowed that the heading “Criteria to be satisfied at time of application” (treating it as forming a part of the Regulations), could be used to inform the question of construction. The Court held that the text of the relevant clause did not support a conclusion that the criteria was fixed in time at the date of the application: (2010) 114 ALD 1, [25]-[26]. To the contrary, the phrase “not more than 2 years before the date on which the application is lodged” was to be construed so as to restrict reliance on tests more than two years old. Properly construed, the clause did not prevent reliance on tests results that post-dated lodgement of the application.
Applied here, the applicant had applied for a Skilled (Professional) (Class VC) visa, a primary criterion for which was that the applicant should have ‘concessional competent English’.
The power conferred by s 65 to grant or refuse a visa application must be exercised in accordance with any applicable regulations under the Act: s 498. The applicant in this case did not satisfy the requirement under cl 487.215 that he had concessional competent English. The applicant did not have concessional competent English either at the time of lodging his application, at the time of the decision of the delegate to refuse that application or at the time that that decision was affirmed by the Tribunal.
It follows that the Minister’s delegate was required by para 65(1)(b) to refuse the visa application.
The Tribunal reviewed that decision and affirmed the decision to refuse the application. Did it otherwise commit any jurisdictional error?
Grounds of review
As stated above, the application contained 14 grounds of review.
I agree in the Minister’s submission that Grounds 1 – 7 and 14 do no more than offer a chronology of the applicant’s case before the Tribunal and do not identify any available ground of judicial review.
In the same vein, the applicant’s affidavit affirmed on 17 May 2017 did not identify any available ground of judicial review. Insofar as reference was made to a recent IELTS test result that the applicant had obtained on 25 March 2017 while travelling in India, I agree also that those test results are not relevant to the present application. Those test results post-dated the conduct of the Tribunal hearing and the making of its decision. The present case may be distinguished from Habib v Minister for Immigration where the applicant had successfully met the requirements of an IELTS test after the date of the delegate’s decision but before the Tribunal gave its decision: see [2010] FMCA 450, [1], [6], [35], [40].
Subject to the exercise of judicial review as permitted, relevantly, in the Federal Circuit Court, privative clause decisions of the Tribunal are final: ss 474, 475, 476. It is not the function of this court in conducting a judicial review of an administrative decision to affirm or set aside a delegate’s decision to refuse a visa application, to conduct a merits review of that decision or to substitute its own decision for that of the Tribunal. In an application for judicial review of a Tribunal’s decision it is impermissible to seek that this court undertake review based upon grounds which press explicitly, or otherwise disguise, a claim for a merits review: Gupta v Minister for Immigration and Border Protection[2017] FCAFC 172, [62] (Gilmour and Mortimer J, Logan J agreeing) citing Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority[2012] FCA 1205 at [124]; see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-41 (Mason J, Gibbs CJ, Deane and Dawson JJ agreeing). .
I also accept that it is not the court’s function to reassess the factual material or to make its own factual findings, either on the facts as they were before the Tribunal or on new facts. To do so would be impermissibly to undertake a further merits review: see, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272 and 282-283 (Brennan CJ, Toohey, McHugh and Gummow JJ) citing Attorney-General v Quin (1990) 170 CLR 1, 35-36 (Brennan J); see also at 291-293 (Kirby J).
In Quin, Brennan J observed that the merits of administrative action, to the extent that they could be distinguished from legality, were a matter for the repository of the relevant power. The caution to avoid a merits review of an administrative decision was echoed more recently in BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78, [45] (Collier, Murphy and Burley JJ): see also JL v Secretary, Department of Family and Community Services [2015] NSWCA 88, [112] (McColl JA).
The Minister submitted, and I agree, that the remaining grounds of review might be understood as raising the following issues:
Unreasonableness – adjournment
Under this heading, the question was posed whether it was unreasonable for the Tribunal to refuse to adjourn the hearing or otherwise to grant an extension of time so as to enable the applicant to sit another IELTS test.
This issue was said to encapsulate the applicant’s grounds 9-11:
Ground 9 reads: Tribunal considered my circumstances in Australia and concluded that I don’t satisfy the criteria if grant of 487 visa without giving time and taking any additional evidences
Ground 10 reads: I claim that it was the fault of DIBP and TRIBUNAL took legal action without granting the extension of time till the result of my IELTS exam.
Ground 11 reads: Therefore, Tribunal did not provide any time to comment on my case and provide the evidences in support of my application.
The Minister accepted that the characterisation of unreasonableness is “a conclusion which may be applied to a decision which lacks an evident and intelligible justification” or if it reflects “a conclusion so unreasonable that no reasonable authority could ever have come to it” citing Minister for Immigration and Border Protection v Li (2013) 249 CLR 332, [78] (Hayne, Kiefel and Bell JJ), [28] (French CJ).
The test for unreasonableness is well established: Gupta & Ors v Minister for Immigration & Anor [2017] FCAFC 172, [36]-[37] (Gilmour and Mortimer JJ, Logan J agreeing). Unreasonableness in the relevant sense arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker: Li, at [30] (French CJ), [113] (Gageler J).
I have set out above at [31] the reasoning by which the Tribunal decided to decline the request to grant the applicant a further opportunity to demonstrate his competency in English. In doing so, the Tribunal identified clearly the factors that led to the conclusion not to postpone the making of its decision on the review of the delegate’s decision until after 19 November 2016.
I do not regard as unreasonable in the relevant sense, the conclusion of the Tribunal in deciding to decline the request to grant the applicant a further opportunity to demonstrate his competency in English. It did not lack an intelligible justification and I do not consider that it was a conclusion so unreasonable that no reasonable authority could ever have come to it. The decision was not illogical. Nor was it irrational.
Adequacy of reasons
Under this heading, the question was posed whether the Tribunal failed to provide proper reasons for its decision (Ground 12).
Ground 12 reads: I am not satisfied with the decision made by the [TRIBUNAL] and Department . . . as there ground to refuse my visa are not appropriate and lack detail.
If the applicant’s dissatisfaction is to be understood as a request for a merits review by this court, I reiterate that which is said above.
It will be recalled that the Tribunal gave its decision orally and then provided written reasons. In those circumstances, the Tribunal must:
(a)make an oral statement that satisfies para 368D(2)(a); and
(b)make a written statement that satisfies para 368D(2)(b).
These obligations largely mirror obligations which apply at the time the applicant is notified of the refusal of an application: cf s 66(2).
As concerns the oral statement, sub-paras 368D(2)(a)(i)-(v) enumerate a series of cumulative requirements being that the oral statement must variously describe, refer to or identify (as the case requires): (i) the decision of the Tribunal on the review; (ii) the reasons for the decision; (iii) the findings on any material questions of fact; (iv) the evidence or material on which the findings were based; (v) the day and time that the decision was given orally.
While the applicant called for and was provided a copy of the recording of the hearing before the Tribunal, he made no attempt to rely upon the recording of the hearing before the Tribunal that had been provided to him in October 2016. His migration agent represented him at that time. The applicant made no submission or complaint that engaged a challenge based on want of compliance with para 368D(2)(a). In making that observation I do not suggest that either the applicant or the Minister bore a legal onus in the conduct of the proceedings before the Tribunal: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, [40] (Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ).
By contrast, in the proceeding for judicial review, and more particularly, on a show cause hearing, it is for the applicant to raise an arguable case for relief: r 44.12(1).
As concerns the written statement, sub-paras 368D(2)(b)(i)-(v) also enumerate a series of cumulative requirements being that the written statement must variously set out, refer to or record (as the case requires): (i) the decision of the Tribunal on the review; (ii) the reasons for the decision; (iii) the findings on any material questions of fact; (iv) the evidence or material on which the findings were based; (v) the day and time that the decision was given orally.
Again, in my view, the written statement in this case satisfied those requirements. I have set out above my analysis of the reasons.
Procedural fairness
Under this heading, the question was posed whether the Tribunal afforded the applicant procedural fairness (Ground 13).
Ground 13 reads: They did not provide any knowledge and time that can be helpful in support of my application.
The suggestion that ‘they did not provide any knowledge’ may be taken to indicate that the applicant now suggests that he was not aware of the issues arising in relation to the decision under review.
It may be accepted that the Tribunal was required to identify for the benefit of the applicant the issues arising in relation to the decision under review: s 359A(1), SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
In SZBEL the Court held at [35], that the Tribunal is entitled to rely upon the issues as identified by the delegate.
In the circumstances of this case there is, in my opinion, no room for a suggestion that the delegate and Tribunal had not raised squarely with the applicant that the central issue in the application for review was whether he had satisfied the requirement to show that he had achieved an IELTS test average band score of at least 6 for the 4 test components in an IELTS test that had been conducted in the relevant period. From the outset, the delegate raised with the applicant that the requirements of cl 487.224 had not been complied with. The applicant was asked to furnish details of his IELTS test results. He was asked to provide details of the bookings that he had made for such tests.
A constant theme in the visa application process (including in the period that the delegate’s decision was the subject of review by the Tribunal), was whether the applicant would be granted additional time in which to submit a successful IELTS test result. The IELTS issues were raised by the applicant’s migration agent on several occasions from 2010 until 2016. They were raised with the applicant during the hearing before the Tribunal. The applicant’s affidavit filed in support of his submissions on the show cause hearing likewise alluded to the history of the attempts to obtain a successful IELTS test result and of the success that was apparently achieved in India in 2017.
The applicant was given notice by the Tribunal of the issues arising in relation to the decision under review. Upon my review of the material facts and circumstances the requirements of s 359A were observed.
The obligation under s 360 was discharged. The Tribunal did invite the applicant to appear before it to give evidence and present arguments relating to the decision under review. Quite aside from the fact of such invitation, the applicant did attend such hearing and did give evidence.
I reject a contention that the applicant was denied procedural fairness.
Conclusion
I am not satisfied that the applicant has raised an arguable case for relief. Nor am I persuaded that there are discretionary considerations which militate in favour of a conclusion that the show cause application should be adjourned for a final hearing: r 44.12.
In those circumstances, the application should be dismissed.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 10 November 2017
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