Wu v Minister for Immigration - [2011] FMCA 502

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 502

MIGRATION – Visa – Skilled (Provisional) (Class VC) visa – application for review of decision of Migration Review Tribunal – IELTS tests – competent English – whether an applicant must achieving the requisite IELTS test score in a single test – whether an applicant can achieve the requisite IELTS test score by amalgamating multiple test results – whether Tribunal failed to exercise discretion to adjourn hearing – no jurisdictional error.

Migration Act 1958 (Cth), ss.359A, 363, 476
Migration Regulations 1994 (Cth), reg.1.15C

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Mohamad v Minister for Immigration and Citizenship [2010] FCA 414

First Applicant:

Second Applicant:

XIAO CHUAN WU

QIANG GAO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 218 of 2011

Judgment of:

Scarlett FM

Hearing date:

27 June 2011

Date of Last Submission:

27 June 2011

Delivered at:

Sydney

Delivered on:

12 July 2011

REPRESENTATION

Counsel for the Applicant:

The First Applicant appeared in person

Solicitors for the Applicant:

No solicitor on the record

Solicitor for the Respondents:

Ms Hooper

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 218 of 2011

XIAO CHUAN WU

First Applicant

QIANG GAO

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Migration Review Tribunal. On 24^th January 2011 the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicants Skilled (Provisional) (Class VC) visas.
The application filed by the Applicants on 11^th February 2011 does not specify the orders sought, merely referring to the decision of the Tribunal that is sought to be reviewed. At the hearing, the First Applicant confirmed that she sought an order setting aside the Tribunal decision.
The application sets out that the applicants rely on the following grounds:
1. Per the request of Case Officer on Apr. 2, 2009 I provided my

2 IELTS[1] booking receipts within 7 days.
2. I achieved the score of 6 in each part during different IELTS tests.
3. The unreasonable procedure of migration department made me under great pressure every time when I took IELTS tests.
[1] International English Language Testing System
The First Applicant filed an affidavit in support of the application.

In that affidavit she repeats Grounds 1 and 2 of the application and annexes a copy of the Tribunal decision.
The Minister for Immigration and Citizenship filed a response on
23^rd February 2011, opposing the making of the orders sought in the application. The response notes that the Applicants assert that the First Applicant took two IELTS tests and although she did not achieve the required scores in each test, if the scores achieved in those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 502
Decision Date: 12 July 2011

CaseChat Overview and Summary

In the matter of Wu v Minister for Immigration, the dispute arose from the applicants' challenge against the Minister's decision to refuse their application for a visa. The applicants argued that the Administrative Appeals Tribunal (AAT) had erred in its decision and that the Minister had not taken their circumstances into account. The case was heard in the Federal Court of Australia.

The legal issues before the court included whether the AAT had properly considered the applicants' circumstances and whether the applicants had met the English language requirements under the relevant regulations. Specifically, the court had to determine whether the applicants had achieved an IELTS test score of at least 6 in each component in a single test, as required by the regulations.

The court found that the AAT had not erred in its decision. It was established that the applicants needed to obtain a score of 6 in each component in a single test, rather than combining scores from multiple tests. The applicants had not achieved this in any of the tests they took, and thus, the AAT's decision was correct. The court also noted that the applicants had not requested an adjournment to complete another IELTS test, and it was not the AAT's responsibility to ask if they wanted one for that purpose. The result of the applicants' subsequent test, which was before the AAT, further supported the decision.

ORDERS:
The application was dismissed, and the decision of the AAT was upheld.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is not sufficient for an applicant to show that he or she has obtained a score of 6 in each component in several tests. They cannot be combined. They must be obtained in the one test (Bodruddaza v Minister for Immigration and Multicultural Affairs[13] at [74]). In Mohamad v Minister for Immigration and Citizenship[14], Buchanan J applied the decision in Bodruddaza to the question of “vocational English” in reg.1.15B:It is also clear, in my view, that subreg. (3) required the necessary successful results to be obtained “in a test” – i.e. in a single test rather than being achieved by amalgamating results in multiple tests, even if all taken within the requisite period of time. In the first place that is clear as a matter of ordinary language. In any event, it is the construction of the regulation required by authority. As the written submissions for the Minister on the present appeal pointed out, in Bodruddaza v Minister for immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 the High Court considered very similar criteria for establishing English language proficiency which arose from reg. 2.26A(2)(iv) in combination with Pt 3 of Sch 6A to the Regulations.[15][13] Supra [14] Supra [15] [2010] FCA 1414 at [10] I am satisfied that the Tribunal did not fall into jurisdictional error when it decided that the Applicant had failed to show that she had achieved an IELTS test score of at least 6 in a single test in a test conducted not more than 2 years before the day on which the application was lodged. The First Applicant argued that the Tribunal did not take her circumstances into account. The Tribunal had no option but to decide whether or not the First Applicant had competent English within the meaning of regulation 1.15C. The Tribunal hearing complied with the requirements of the Migration Act. The Applicants were invited to attend a hearing. The First Applicant attended and gave evidence. She did not request the services of an interpreter. The hearing dealt with the issue of whether or not the first applicant had shown that she had Component English, which was the issue that had been referred to by the delegate. There was no information that required the Tribunal to meet the requirements of s.359A of the Act. As the Minister submitted, the Tribunal did have a discretion to adjourn the hearing, which is one of the powers given to it by s.363 of the Act. The First Applicant did not ask the Tribunal for an adjournment for the purpose of completing another IELTS test. It was not incumbent on the Tribunal to ask the First Applicant specifically if she wanted an adjournment for that purpose. The First Applicant complained that the delegate elected not to wait until the outcome of the IELTS test which the First Applicant was due to sit on 11th July 2009, but decided the application on 23rd April. The Minister submission is correct in submitting that the Court has no power to review the delegate’s decision, which is a primary decision. However, the result of the IELTS test on 11th July 2009 was before the Tribunal and the Tribunal noted that the First Applicant did not achieve a score of at least 6 in each of the four test components in that test.[16][16] Court Book 104 [28]