Wu v Minister for Immigration

Case •

[2011] FMCA 502

•

12 July 2011

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

  1. 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

  1. This is an application for review of a decision of the Migration Review Tribunal.  On 24th 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.

  2. The application filed by the Applicants on 11th 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.

  3. 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

  4. 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.

  5. The Minister for Immigration and Citizenship filed a response on
    23rd 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 tests were considered in combination the First Applicant would have achieved the necessary score.

  6. The First Respondent contends that the Migration Review Tribunal did not err in requiring that the requisite IELTS score be achieved in a single test and relies on the decision in Bodruddaza v Minister for Immigration and Multicultural Affairs.[2]

    [2] (2007) 228 CLR 651

  7. The Applicants have filed an affidavit by the First Applicant to which she has attached a Statement, which appears to be a submission, and copies of the following items of correspondence:

    a)a letter from the IELTS Test Centre of the Centre for Macquarie English showing that the First Applicant was registered for the IELTS test on Saturday 11th July 2009;

    b)a Request for Further Information from the First Applicant’s Case Officer dated 2nd April 2009; and

    c)a copy of an email from the First Applicant’s Migration Agent dated 9th April 2009.

  8. The Minister’s lawyers filed a written outline of submissions on


    24th May 2011.

Background

  1. The Applicants are a wife and husband who are citizens of China.  They applied on 27th August 2008 for Skilled (Provisional) (Class VC) visas, relying on the qualifications of the wife, the First Applicant.  The Second Applicant applied as the First Applicant’s spouse.  In that application, the First Applicant stated that she had undertaken an English test within the last 24 months, being an IELTS test on 25th August 2007.  She stated that her language ability was “competent”.[3]

    [3] See Court Book at page 13

  2. On 2nd April 2009 the Department of Immigration and Citizenship contacted the Applicants’ Migration Agent, Lian Lu, seeking further information, including a copy of her IELTS English Test Report results.

  3. The Applicants’ Migration Agent replied on 9th April 2009, attaching various documents, including a letter from the IELTS Test Centre at Macquarie University, advising that the Applicant was registered for the IELTS test on Saturday 11th July 2009.

  4. The delegate advised the Applicants on 23rd April 2009 that their application for a Class VC, subclass 485 Skilled – Graduate visa has been refused.  In the delegate’s Decision Record, the delegate advised the First Applicant that she was required to demonstrate at least a Competent level of English, and referred to Regulation 1.15C of the Migration Regulations, which requires a person applying for a General Skilled Migration visa to show that he or she has competent English by satisfying the Minister that he or she:

    (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;[4]

    [4] Court Book 45

  5. The delegate stated that:

    The results of your IELTS test dated 25 August 2007 indicates that you do not have a Competent level of English as you obtained scores of 6.0 for Listening, 5.5 for Reading, 5.5 for Writing and 5.0 for speaking.[5]

    [5] Court Book 45

Application to the Migration Review Tribunal

  1. The Applicants applied to the Migration Review Tribunal for review of the delegate’s decision on 12th May 2009.  The Tribunal invited the Applicants to attend a hearing on Thursday 20th January 2011.

  2. The First Applicant attended the Tribunal hearing on 20th January and gave evidence.  She provided to the Tribunal two IELTS test results, dated 5th November 2008[6] and 23rd July 2009.[7]  The Applicant submitted to the Tribunal that, although the test results showed that she had not received the score of 6 in each of the test components of either of those tests, she had achieved that score in different tests and hoped that they could be considered.

    [6] Court Book 95

    [7] Court Book 96

The Tribunal Decision

  1. The Tribunal made its decision on 24th January 2011, affirming the decision of the delegate not to grant the Applicants Skilled (Provisional) (Class VC) visas.

  2. The Tribunal stated, in its Findings and Reasons:

    The applicant argues that she achieved the overall band score of 6, however, the legislation refers to the score of 6 in each of the four test components and not to the overall band score. The applicant also argues that she achieved the score of 6 in different tests, however, the legislation contemplates the score in a single test (see Bodruddaza v MIMA [2007] HCA 14). There is no evidence before the Tribunal that the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening.

    [8] Court Book 104 at paragraph [28]

    The Tribunal is not satisfied that she meets r. 1.1.15C(a)(i).[8]

  3. The Tribunal found that there was no evidence to suggest that the Applicant had achieved a score of at least ‘B’ in each of the four components of Occupational English Language test conducted not more than 2 years before the application was made.  Thus the Applicant did not meet the requirement of paragraph 1.15C(a)(ii).

  4. Also, the Tribunal found that the First Applicant held a passport of China and there was no evidence that she held a passport of the type specified by the Minister for the purpose of paragraph 1.15C(b).  


    The specified passports are those issued by the United Kingdom, the United States of America, Canada, New Zealand and Ireland.

  5. The Tribunal was not satisfied that the First Applicant had Competent English within the meaning of Regulation 1.15C and therefore did not meet cl.485.215(b).  The Tribunal went on to note that the First Applicant had made arrangements to undertake a language test on


    11th July 2009 and therefore met the requirement of cl.485.215(c).  However, at the time of the decision she did not have Competent English and therefore did not meet cl.485.222.  The secondary applicant, the husband, did not meet cl.485.321.

  6. The Tribunal affirmed the delegate’s decision.

  7. The Applicants applied for review of the Tribunal decision by filing an application and an affidavit in support on 11th February 2011.

Submissions

  1. The Applicants filed an affidavit on 10th May 2011 to which a statement was attached.  The statement will be considered as a written submission.

  2. The Applicants submit:

    Although I lodged the 485 application without competent IELTS test result, I believed that I could achieve the satisfied score soon.
    I engaged in several IELTS tests since then, it proved that I had a continuous improvement. The case officer asked for further documents on 02/04/2009, in which letter it stated in ‘Timeframe for response’ that ‘if you are unable to provide some of the required documents by due date for reasons beyond your control, please send us the e evidence you have applied for these documents’.
    At that time, I had booked an IELTS test on 11 July 2009 (the evidence has been attached), which was the nearest available test date I could find. Also I asked my migration agent to provide the evidence of IELTS booking to the case officer. However, the case officer refused my application on 23/04/2009, without permission for extension. I think it’s the procedure fault of the case officer in dealing with my case.

  3. The First Applicant attended Court and made oral submissions.  She said that she had not been given sufficient time to obtain a satisfactory IELTS test result.  She complained that the Minister’s delegate had sought information from her migration agent on 2nd April 2009 and even though her migration agent had advised the delegate on 9th April that she had registered to attend an IELTS test on 11th July, the delegate did not wait for the results of that test.  Instead, the delegate had refused her application for a visa on 23rd April 2009.

  4. The First Applicant told the Court that the refusal of her application for a visa had affected her psychologically.  She also said that the level of the IELTS test gets harder every year.  Had she applied before 2006 the standard would have been easier.  However, the Applicant had taken time out to have a baby.

  5. The First Applicant complained that she had been treated more severely than others.

  6. The Minister submits that the Tribunal did not err in requiring that the requisite IELTS test score be achieved in a single test, rather than being achieved by amalgamating multiple test results.  The High Court had considered very similar criteria for establishing English language proficiency in Bodruddaza v Minister for Immigration and Multicultural Affairs[9] at 675 [73]-[74].  The High Court held that the objective of requiring a particular level of overall competence in the English language would not be achieved if the test could be satisfied by sitting the test on several occasions, concentrating on different components, until a sufficient collection of scores had been accumulated.

    [9] (2007) 228 CLR 651

  7. This decision was applied in Mohamad v Minister for Immigration and Citizenship.[10]

    [10] [2010] FCA 1414

  8. It was further submitted that the Tribunal had otherwise complied with the requirements of Division 5 of Part 5 of the Act. It had invited the Applicants to a hearing at which it traversed determinative issues with the First Applicant. There was no information before the Tribunal giving rise to its section 359A obligations.

  9. It was noted on behalf of the Minister that although the delegate had received evidence that the First Applicant had made arrangements to sit another IELTS test, the delegate had made a decision refusing the application for a visa without awaiting the result of the test.

  10. The Court has no jurisdiction to review the delegate’s decision.  In any event the Tribunal did have the IELTS test results before it[11].  The First Applicant had failed to satisfy the English language criterion applicable at the time of decision.

    [11] Court Book page 96

  11. In reply to the First Applicant’s oral submissions, Ms Hooper, who appeared for the Minister, conceded that the delegate had made a decision without waiting for the further IELTS test.  However, she submitted that the Applicant had never asked the Tribunal to adjourn the hearing to allow her time to sit another test, nor had she put any evidence before the Tribunal that she had arranged to sit a further test.  The Tribunal does have a discretion to adjourn, but it was not asked to.  Consequently, there was no error.

  12. The First Applicant, in reply, submitted that the Migration Review Tribunal had not asked her if she wished to seek an adjournment so that she could sit another IELTS test.  She said that she did not know that she had a right to ask for an adjournment.  She submitted that the Tribunal had fallen into error by not telling her that she could seek an adjournment in order to do another test.

  13. The First Applicant conceded that she had employed a migration agent but said that the migration agent had not told about her right to apply for an adjournment.

  14. The First Applicant also said that the Tribunal Member was hard to understand because she spoke very quickly and with an Indian accent.  She did not have an interpreter, because she did not believe that she would need one for a hearing of the Migration Review Tribunal.

  15. The First Applicant was provided with the services of an interpreter in the Mandarin language for the purpose of these proceedings.  She made some of her submissions in English but relied on the interpreter when she found it necessary, as she was entitled to do.

Conclusions

  1. The First Applicant is clearly an intelligent and educated woman.  


    She has obtained both a Diploma of Commerce and the degree of Bachelor of Commerce from Macquarie University during the period from June 2004 to July 2008.[12]

    [12] Court Book 103 at [17]

  2. The difficulty for the First Applicant is that she is required to satisfy cl.485.215 to show that she has competent English.  To do this, she has to meet the requirements of competent English under regulation 1.15C(a), which provides that she has to show that she has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening.

  3. 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]

  4. 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.

  5. 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.

  6. 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.

  7. There was no information that required the Tribunal to meet the requirements of s.359A of the Act.

  8. 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.

  9. 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.

  10. 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]

  11. There is no jurisdictional error.  The Tribunal decision is a privative clause decision as defined by s.474 of the Act.  As such, it is not subject to review.

  12. The application will be dismissed.  The Court will hear submissions on costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  1 July 2011


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