Sumon v Minister for Immigration
[2016] FCCA 2312
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUMON v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2312 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal incorrectly assumed that the definition of “competent English” in reg.1.15C of the Migration Regulations 1994 (Cth) (Regulations) was an exhaustive definition. DELEGATED LEGISLATION – Whether instrument made under reg.1.15C of the Regulations nominating a non-existent language test and score rendered invalid the regulation – regulation not invalid. MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal acted unreasonably in refusing to allow applicant further time to sit an IELTS test – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.348, 353, 360(1), 363(1)(b) Migration Amendment Regulation 2012 (No. 1) (Cth) |
| Cases cited: Farook v Minister for Immigration and Border Protection [2014] FCA 1017 Singh v Minister for Immigration & Anor [2016] FCCA 19 |
| Applicant: | ABDUR RAHIM SUMON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2190 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Lawyers | |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz | |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2190 of 2014
| ABDUR RAHIM SUMON |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) (Subclass 885) visa (885 Visa).
Background
To have been entitled to an 885 Visa, the applicant was required to satisfy the criterion specified in cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Regulations). On 30 June 2011, when the applicant applied for an 885 visa, cl.885.213 of Schedule 2 to the Regulations required that the applicant have “competent English”.[1] “Competent English” was defined in reg.1.15C as follows:
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
[1] The regulations that apply to the applicant are those contained in the Regulations as in force immediately after the coming into effect of the Migration Amendment Regulations 2011 (No. 1) (Cth) and Migration Amendment Regulations 2011 (No. 2) (Cth).
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Regulation 1.15C was subsequently amended, but this version continued to apply to the applicant because the application for the 885 Visa was lodged before 1 July 2011. [2] For ease of expression, in the remainder of these reasons I will refer to the Regulations as they applied to the applicant in the present tense.
[2] Migration Amendment Regulations 2011 (No. 3) (Cth) and items 12 and 124 of Schedule 1 to the Migration Amendment Regulation 2012 (No. 2) (Cth). See also Singh v Minister for Immigration & Anor [2016] FCCA 19 at [6] (Judge Cameron).
An instrument in writing, being IMMI 09/073, was made on 25 June 2009 for the purposes of reg.1.15C(a)(ii)(A) of the Regulations. That instrument was revoked by instrument IMMI 11/036 which commenced on 1 July 2011. IMMI 11/036 was in turn revoked by instrument IMMI 12/018 which took effect on 1 July 2012. It specified for applications lodged before 1 July 2012 the following matters:
A. For the purposes of subparagraph 1.15C(a)(i) the following language tests:
· an International English Language Test System (IELTS test); and
· an Occupational English Test (OET).
B. For the purposes of subparagraph 1.15C(a)(iii) the following scores:
· an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
· a score of at least “B” in each of the four components of an OET.
C. For the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
There are two errors in IMMI 12/018 which I previously identified in Singh & Anor v Minister for Immigration & Anor.[3] First, IMMI 12/018 purports to specify language tests “for the purposes of subparagraph 1.15C(a)(i)”. That paragraph, however, does not require or refer to the specification by instrument of any score or English language test; the paragraph itself prescribes an English language test, namely the IELTS test, and the necessary score under that test. The paragraph for the purposes for which a language test and the score required to be achieved in that test could be specified by instrument is paragraph 1.15C(a)(ii). And this leads to the second error. IMMI 12/018 specifies “for the purposes of subparagraph 1.15C(a)(iii)”. There is no such paragraph.
[3] [2016] FCCA 387
Before the Tribunal
By letter dated 6 May 2014 the Tribunal invited the applicant to attend a hearing before it on 3 June 2014. That letter also requested the applicant provide evidence “at or before the hearing date” that he had “competent English”, or that he had booked an OELT or IELTS test scheduled to take place no later than 24 May 2014.[4]
[4] CB54-57
On 29 May 2014 the applicant’s representative wrote to the Tribunal requesting additional time for the applicant to sit an IELTS test scheduled on 21 June 2014 (21 June 2014 IELTS test).[5] The applicant was granted additional time to provide the results of the 21 June 2014 IELTS test.
[5] CB58
On 23 June 2014 the applicant’s representative informed the Tribunal that the applicant had not received the results of an IELTS test taken on 7 June 2014 (7 June 2014 IELTS test), and requested additional time to provide the results.[6]
[6] CB65
By email sent on 24 June 2014 the applicant’s representative provided to the Tribunal the 7 June 2014 IELTS test results.[7] Attached to that email was a document titled “International English Language Testing System Test Report Form” which recorded the following scores:[8]
[7] CB66-68
[8] CB68
Listening 6.0, Reading 5.5, Writing 5.5, Speaking 7.0, and Overall Band Score 6.0.
The applicant’s representative said the applicant “did not achieve the required score for Reading and Writing”, but noted “we are instructed that [the applicant] did obtain 6.0 or above in both modules in previous tests”. The representative further said his firm had been instructed that the applicant had undertaken the 21 June 2014 IELTS test, and that the applicant was confident “he would achieve a much better score in that test”. The representative requested the Tribunal to “wait for [the applicant] to provide the result of the 21 June 2014 test”.[9]
[9] CB66
On 24 June 2014 the applicant’s representative telephoned the Tribunal and informed it that the applicant had sat the 21 June 2014 IELTS test, and asked if the Tribunal would await the results of that test. The officer who took the call then spoke with the Tribunal member, after which the officer informed the applicant’s representative that the Tribunal had declined the request, and that the Tribunal would proceed to a decision shortly.[10]
[10] CB69
In the meantime, a different member of the Tribunal was assigned to determine the application for review. On 3 July 2014 a Tribunal officer advised the applicant’s representative the Tribunal would delay its decision in order to consider the 21 June 2014 IELTS test results.[11] On 7 July 2016 the applicant’s representative provided to the Tribunal the test results,[12] noting that the applicant did not achieve the required scores. The representative requested the Tribunal permit the applicant to sit a further IELTS test that was scheduled for 2 August 2014.[13] The Tribunal declined the applicant’s request,[14] and proceeded to determine the application for review.
[11] CB70
[12] CB71-73
[13] CB71
[14] CB74
Tribunal’s decision
The Tribunal affirmed the delegate’s decision because the applicant did not have competent English; and the applicant did not have competent English because, although he had “attempted the IELTS tests numerous times”, including the 7 June 2014 IELTS test and 21 June 2014 IELTS test, the applicant did not in any one test attain a score of at least 7 for each of the four test components of speaking, reading, writing, and listening.[15]
[15] CB79-80, [9]
The Tribunal also referred to the applicant’s requests for further time to sit for an additional IELTS test. After referring to the extensions previously given by the Tribunal, the Tribunal said:[16]
It was requested that the applicant be allowed a further opportunity to provide the results of an upcoming IELTS test scheduled for 2 August 2014. The Tribunal refused the request as the applicant has attempted the IELTS test numerous times, including two recent tests in June 2014. As noted above, the minimum score was not achieved on both occasions in the same two test components. The applicant had given evidence at the hearing that he had attempted the IELTS test 9 or 10 times and first sat the test one and a half years ago. The visa application itself was made over three years ago and the Tribunal considers that the applicant has had ample opportunity to provide evidence that meets the requirement r.1.15C. In the circumstances, the Tribunal does not consider that it is appropriate in this case to allow further time to undertake yet another IELTS test.
[16] CB80, [9]
Grounds of application
The application raises five grounds of review.
Ground 1
The first ground is as follows:
The Tribunal erred by considering the wrong legislative instrument.
Particulars
The Tribunal considered the applicable legislative instrument under the relevant version of reg 1.15C to be IMMI 09/73, whereas that instrument had been replaced by a new instrument which made no specifications for reg 1.15C(a)(ii), the paragraph that applied to the Applicant.
The Tribunal held that the applicable instrument by reference to which the applicant’s claims should be assessed is IMMI 09/073. The Tribunal so decided not because it was unaware of IMMI 12/018; the Tribunal noted that the “current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012”.[17] Although the instrument is not identified, the Tribunal must have had in mind IMMI 12/018. The Tribunal decided IMMI 09/073 was the applicable instrument because the “current instrument” did not reflect the structure of r.1.15C of the Regulations as in force before 1 July 2012. At any rate, there is no issue that the instrument the Tribunal ought to have applied is IMMI 12/018.
[17] CB79, [7]
As stated, ground 1 claims the Tribunal made a jurisdictional error because it applied the incorrect legislative instrument. The Minister submits that the Tribunal’s application of the incorrect legislative instrument discloses no jurisdictional error because, whether IMMI 09/073 or IMMI 12/018 was the relevant instrument, there was only one available means of demonstrating “competent English”, namely, by achieving the scores specified in reg.1.15C(a)(i) of the Regulations, and, in any event, the applicant undertook the IELTS test. Relying on the judgment of Murphy J in Farook v Minister for Immigration and Border Protection,[18] the Minister submits the issue of which of IMMI 09/073 and IMMI 12/018 applied is only of academic interest.[19]
[18] [2014] FCA 1017 at [18]
[19] First Respondent’s Outline of Submissions, 5.08.2015, [24]
Ground 1, however, is to be determined by the application of the reasoning of the judgment of Gordon J, when her Honour was sitting in the Federal Court, in Nayyar v Minister for Immigration and Border Protection.[20] In that case, as in the case before me, the Tribunal incorrectly considered that IMMI 09/073, rather than IMMI 12/018, was the relevant instrument. Her Honour, however, held the Tribunal made no jurisdictional error:[21]
The MRT did not identify the correct instrument, but instead found that IMMI 09/073 was the applicable instrument… At the date of the MRT’s decision, 24 September 2012, IMMI 12/018 was in force, and IMMI 09/073 and IMMI 11/036 had both been revoked. IMMI 12/018 was and is the legislative instrument applicable to the appellant’s application for the visa at the time of the MRT’s decision. That error does not however assist the appellant. It does not assist the appellant because the erroneous reference to IMMI 09/073 was not an error that went to the MRT’s jurisdiction. The MRT nevertheless asked itself the correct question. It was the correct question because the requirement for a visa applicant to have “competent English” (being whether the appellant had obtained the requisite score in either an OET or IELTS test) remained the same: cf Farook v Minister for Immigration and Border Protection [2014] FCA 1017.
[20] [2015] FCA 119
[21] [2015] FCA 119 at [27]
That reasoning applies to the Tribunal’s decision in the case before me. The Tribunal itself recognised that in both IMMI 09/073 and IMMI 12/018 “the specified scores, tests, and passports are substantially the same”.[22] Ground 1, therefore, as stated in the application, fails.
[22] CB79, [7]
In written submissions prepared by Mr Jones, who represented the applicant, a different submission was made. It was submitted that the confusion resulting from IMMI 12/018 applying to applications made before 1 July 2012 “provides a further basis for finding that there was, at the time of the Tribunal’s decision, no legally effective definition of the term “competent English” in the legislation”.[23] At the hearing, Mr Jones submitted that this part of his written submissions was a challenge to the validity of the instrument, by which I assume he meant IMMI 12/018. Mr Jones submitted that, even with the “slip rule” that was applied by Murphy J Farook v Minister for Immigration and Border Protection,[24] IMMI 12/018 does not make sense, and this invalidated the instrument. Hence, Mr Jones submitted, there is no legally effective definition of the term “competent English”.
[23] Outline of submissions for the Applicant, 29.07.2015, [16]
[24] [2014] FCA 1017 at [24]
Even if I were to accept that IMMI 12/018 does not make sense and, for that reason, IMMI 12/018 is invalid, there is nothing in the language of reg.1.15C of the Regulations that suggests that its operation or validity is conditional on the Minister validly exercising the power to specify by instrument in writing an additional score and additional language test. On its proper construction, reg.1.15C of the Regulations confers a discretion on the Minister to specify such additional score and language test as he or she may consider appropriate and at such time as he or she considers appropriate. In other words, reg.1.15C permits, but does not oblige, the Minister to specify an additional score and an additional language test. In those circumstances, that IMMI 12/018 may make no sense and for that, or for some other reason, is invalid, does not affect the validity of reg.1.15C of the Regulations. And there is no question that reg1.15C of the Regulations unambiguously specifies at least one way in which “competent English” has to be demonstrated, namely, by achieving the scores specified in reg.1.15C(a)(i) under an IELTS test.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The Tribunal erred in construing Regulation 1.15C of the Regulations by reading the preliminary words of the regulation as though they read “if and only if” in circumstances where the statutory language does not import any exclusivity to the definition of “competent English”.
As stated in the applicant’s written submissions, this ground challenges the Tribunal’s implicit assumption that the definition of “competent English in reg.1.15C is an exhaustive list of acceptable evidence”.[25] The applicant, in effect, submits that the definition of “competent English” in reg.1.15C of the Regulations is not an exhaustive definition. That submission is answered by the judgment of Katzmann J in Milanes v Minister for Immigration and Border Protection where her Honour rejected the contention that the expression “competent English” given in reg.1.15C of the Regulations is not exhaustive.[26]
[25] Outline of submissions for the Applicant, 29.07.2015, [19]
[26] [2015] FCA 1105; (2015) 234 FCR 508
Ground 2, therefore, fails.
Grounds 3 and 4
Grounds 3 and 4 may be considered together. Ground 3 is as follows:
Regulation 1.15C is an invalid exercise of the power to make regulations under the Migration Act.
Particulars
The definition of “competent English" in reg 1.15C is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
Ground 4 is as follows:
The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments under the Migration Act.
Particulars
The tests to which the instrument refers are described in a way that is ambiguous, uncertain, misleading and / or incapable of practical administration.
These are identical to the second and third grounds I considered in Singh & Anor v Minister for Immigration & Anor.[27] The reasons I gave in that case for not accepting the second and third grounds apply to the third and fourth grounds advanced in this proceeding. For those reasons, therefore, grounds 3 and 4 in the proceeding before me fail.
[27][2016] FCCA 387; (2016) 304 FLR 396
Ground 5
Ground 5 of the applicant’s application for review is as follows:
The Tribunal's refusal to allow the First Applicant more time to undertake a further IELTS test was arbitrary and unreasonable.
Particulars
The Tribunal received a request from the Applicant to postpone its decision until he received the results of a test he was scheduled to undertake on 2 August 2014. The Tribunal's refusal was based solely on the asserted sufficiency of the opportunities that the Applicant had already had.
Mr Jones particularly relied on the following passages from the judgment of the Full Federal Court in Minister for Immigration & Border Protection v Singh:[28]
[75] There was no objective or intelligible justification given by the Tribunal for refusing the adjournment. There were no grounds to believe the period required for the re-mark would be very long, given the frequency of the IELTS testing schedule. The first respondent had a basis in the marks he had received in the past to have a level of confidence that the re-mark might deliver a 6 or above in Listening. The whole exercise was aimed at producing for the Tribunal a verified and accurate mark of a test it had agreed to the first respondent taking and using as evidence in the review.
[76] There was no evidence about any factual reason why the Tribunal needed to make a decision in early January 2013. There was no prejudice to anyone from a short adjournment of the review, but there was significant and inevitable prejudice to the first respondent if the adjournment were refused. His application for review would be doomed to failure. The Minister accepted that the refusal by the Tribunal to adjourn was not legitimately affected by policies of which the Court has no experience.
[77] If a proportionality analysis were undertaken (cf Li 297 ALR 225; [2013] HCA 18 at [30], [74]), it could be said that the exercise of power to refuse a short adjournment in these circumstances was disproportionate to the Tribunal’s conduct of the review to that point, to what was at stake for the first respondent, and what he might reasonably have hoped to secure through a re-mark.
[28] [2014] FCAFC 1 at [75]-[77]
Mr Jones submitted there was no evidence about any factual reason why the Tribunal needed to make a decision when it did, and there was no evidence the Tribunal were to suffer prejudice if further time were granted.
Whether or not in any given case the exercise of a power is unreasonable is not to be determined by comparing the facts of the case in which unreasonableness is claimed with the facts of other cases. The outcome of a challenge based on legal unreasonableness “will depend on the application of the principles which emerge from” Minister for Immigration and Citizenship v Li,[29] “and the earlier authorities discussed in it, rather than on mere factual similarities or differences”.[30] What are the principles that emerge from Li?
[29] [2013] HCA 18; (2013) 249 CLR 332
[30] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]
There are a number of matters to bear in mind. The first is the power the Tribunal exercised and which, it is said, it exercised unreasonably. The power is s.363(1)(b) of the Migration Act 1958 (Cth) (Act), which provides that the Tribunal may “adjourn the review from time to time”. Second, there is the proposition that the power must be exercised reasonably.[31] Third, assessing whether a decision is legally unreasonable requires a court to evaluate the decision with a view to determining whether, having regard to the subject matter, scope, and purpose of the relevant statutory power, the decision possesses one or more of the qualities conveyed by such words or expressions as “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. If the court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[32] Fourth, where the decision which it is claimed to be unreasonable is supported by reasons, reasonableness should be assessed both by reference to the actual reasoning the decision-maker adopted in reaching the decision, and the outcome of the decision.[33] In those circumstances, the decision will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[34]
[31] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
[32] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
[33] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
[34] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
In applying these principles, I must first identify the subject matter, scope and purpose of s.363(1)(b) of the Act. The subject matter is the adjournment of the review from time to time. The scope and purpose of that power must be assessed at least in the context of Part 5 of Division 5 of the Act. Three provisions are of particular relevance. Fundamental is the power conferred by s.348 of the Act, which requires the Tribunal to review an application for review that has been properly brought before it. Next is s.360(1) of the Act, which requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence, and present arguments relating to the issues arising in relation to the decision under review. Finally, there is s.353 of the Act which, at the time of the Tribunal’s decision, required that the Tribunal, in carrying out its functions under the Act, “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.
Having identified the subject matter scope and purpose of s.363(1)(b) of the Act, I next consider the reasons the Tribunal gave for not granting the applicant additional time. These consisted of the applicant’s having previously unsuccessfully attempted the IELTS test nine or ten times, including twice in June 2014, the applicant’s first undertaking an IELTS test one and half years before the Tribunal’s decision, and the applicant’s having applied for the 885 visa three years before the Tribunal’s decision. Although the Tribunal did not expressly so state, its reasons imply the view that, given the number of attempts the applicant made to obtain the necessary scores under the IELTS test, and the period over which the applicant made those attempts, the Tribunal was not satisfied there was any real prospect that giving the applicant further time would result in his achieving the necessary score. There was nothing that was before the Tribunal that could reasonably have led the Tribunal to believe the applicant did have some realistic prospect of obtaining the necessary score in August 2014.
I am not satisfied that the reasons the Tribunal gave for not granting the applicant further time do not manifest an intelligible justification for not granting the applicant further time. Each of the reasons on which the Tribunal relied was relevant to the proper exercise of the power conferred by s.363(1)(b) of the Act. It was reasonably open to the Tribunal to conclude, as I find it did conclude, that there was little prospect the applicant would obtain the necessary score if the Tribunal gave him the extension he sought. In any event, given the reasons on which the Tribunal did rely, I am not satisfied the Tribunal did not in fact conclude there was no substantial basis for believing the applicant would obtain the necessary score in August 2014. Nor am I satisfied that the decision itself was one that no reasonable decision maker could reasonably have reached, having regard to the matters on which the Tribunal expressly relied, and all the other matters of which the Tribunal was or of which it should be taken to have been aware.
Ground 5, therefore, also fails.
Disposition
I propose to order that the application be dismissed, and that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding thiryt-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 9 September
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