Yasmin v Minister for Immigration and Anor (No.2)

[2010] FMCA 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YASMIN v MINISTER FOR IMMIGRATION & ANOR (No.2) [2010] FMCA 557

MIGRATION – Skilled – Independent Overseas Student visa – review of Migration Review Tribunal decision – Tribunal’s discretion to delay decision on application before it.

PRACTICE & PROCEDURE – Application to reinstate proceedings summarily dismissed for failure to appear at final hearing.

Migration Regulations 1994, reg.1.15B, cl.880.223 of sch.2
Federal Magistrates Court Rules 2001, rr.13.03C, 13.10

Yasmin v Minister for Immigration & Anor [2010] FMCA 533

Applicant: NELUFA YASMIN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 294 of 2010

Judgment of: Cameron FM

Hearing date: 21 July 2010

Date of Last Submission: 21 July 2010

Delivered at: Sydney

Delivered on: 21 July 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The applicant’s application in a case filed on 25 June 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 294 of 2010

NELUFA YASMIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court for determination of the application in a case filed by the applicant on 25 June 2010. On 16 February 2010 the applicant had filed a substantive application seeking constitutional writs of certiorari, mandamus and prohibition in connection with a decision of the Migration Review Tribunal (“Tribunal”) which affirmed an earlier decision of a delegate of the first respondent (“Minister”) to not grant her a Skilled – Independent Overseas Student visa. An amended application was filed on 6 April 2010. On 31 May 2010 the application was dismissed pursuant to r.13.03C(1)(c) of the Rules because the applicant failed to appear at the hearing of the matter which had been listed for that day.

2. In the application in a case currently before the Court, the applicant seeks an order that her earlier application be reinstated and that it be given a hearing on the merits. Plainly there has been no decision on the merits of her principal application. In deciding whether to grant the current application I must consider whether the applicant’s explanation for her non-attendance on 31 May 2010 is a satisfactory or adequate one and whether nevertheless she has an arguable case on the principal application.

Non-attendance on 31 May 2010

1. Turning to the issue of whether the applicant has provided a reasonable explanation for her non-attendance. The circumstances of 31 May must be referred to first. On that occasion, when the applicant did not appear, the Minister sought dismissal of the application pursuant to r.13.03C(1)(c) by reason of her non-attendance. In granting that application I said:

   The matter was listed for hearing today at a directions hearing on 8 March 2010. Earlier today, the applicant sent a letter to the Court advising that she was sick and unable to attend the hearing, inviting the Court to make a decision on the basis of her written submissions. Attached to the letter from the applicant is a medical certificate dated 11 May 2010 stating that she had been an in-patient at the Prince of Wales and Sydney Children’s Hospitals from 7 May 2010 until 11 May 2010 and that she was “unfit to resume duties/school” for three weeks.

   It might be noted that three weeks from 11 May is just slightly beyond today. The injury referred to in the medical certificate appears to be an injury to an arm and it is not apparent why such an injury would make the applicant unable to attend Court today to present her arguments. In the circumstances, I am not satisfied that the applicant’s reasons for non-attendance today are adequate or that she has given any proper excuse for not attending.

   In the circumstances, I consider that it is appropriate that the matter be dismissed by reason of her failure to attend. In the event that the applicant considers that this is a matter which should be reviewed, then such an order always gives her the opportunity to seek to re-list the matter to demonstrate why she was truly unwell today and unable to present her case and then seek to present the case in its substantive form. In the circumstances, therefore, I accede to the Minister’s application to dismiss the proceedings pursuant to r.13.03C(1)(c). (Yasmin v Minister for Immigration & Anor [2010] FMCA 533 at [2]-[4])

2. In her affidavit sworn 26 June 2010 and filed in support of today’s application in a case, the applicant deposes that she could not attend court on 31 May 2010 due to sickness and she annexes to her affidavit two medical certificates, one radiology request form and an appointment letter, all from the Prince of Wales Hospital. They reveal that from 7 May 2010 to 11 May 2010 the applicant was an in-patient on account of an injury to the head of her right radius. The medical certificate of 28 May 2010 states that from 25 May 2010 the applicant was an out-patient in connection with an elbow injury and would probably be unfit to resume duties for six weeks. The radiology request form records that an x-ray of the applicant’s injury was requested on 18 June 2010 and the appointment letter advises the applicant of an appointment which was scheduled for 28 May 2010.

3. In her evidence today the applicant said that she had suffered a severe injury to her right arm which, amongst other things, caused her to be concerned that she would have ongoing difficulties with her right hand.  She said that she was very worried about her right hand and that she was afraid to come to court on 31 May 2010 because in order to do so she would have had to take a bus and she was concerned at suffering additional injury, which might have meant that she would be unable to use her right hand in the future.

4. In light of the fact that the applicant had to undergo an operative procedure in relation to the injury she suffered to her arm and her stated concerns regarding the future of her right hand, I accept that the applicant had reasonable grounds for not attending court on the last occasion and that she has provided a reasonable explanation for her non-attendance at that time. I should also record that the Minister accepted the applicant’s explanation for her non-attendance as a reasonable one.

Does the applicant have an arguable case?

1. It is necessary therefore to now consider whether the applicant has an arguable case for the relief she claimed in her application. Arguably, the correct test to apply today is whether the applicant can show that the claim she raises in the amended application has reasonable prospects of success. A matter may be dismissed pursuant to r.13.10 of the Rules if an applicant cannot demonstrate that the claim for relief has reasonable prospects for success. However, for the purposes of today I will proceed on the more traditional basis that the applicant has to demonstrate at least an arguable case, which is an easier test to satisfy.

2. In the absence of an arguable case today’s application will be dismissed. It must also be observed that the applicant will not have made out the existence of an arguable case unless she can demonstrate that it is at least arguable that the Tribunal’s decision is affected by jurisdictional error; it is only if jurisdictional error is demonstrated at a final hearing that the Tribunal’s decision may be set aside by the Court.  Consequently, I now turn to consider whether the amended application discloses an arguable case for the relief claimed.

Factual background

1. The applicant is a citizen of Bangladesh. On 17 August 2007 she applied for a Skilled – Independent Overseas Student (Residence) (Class DD) subclass 880 visa. A delegate of the Minister refused the application on 20 October 2008 on the basis that the applicant failed to satisfy cl.880.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Tribunal for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and on 16 February 2010 applied to this Court for judicial review of the Tribunal’s decision.

2. The Tribunal described a subclass 880 visa as an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification.

3. The criteria for the grant of a subclass 880 visa are set out in pt.880 of sch.2 to the Regulations. Relevantly in this case, a primary criterion to be satisfied at the time of decision is cl.880.223 which requires the visa applicant to have “vocational English”.

4. “Vocational English” is defined in reg.1.15B of the Regulations which relevantly provided:

   (3) If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:

   (a) not more than 12 months before the day on which the application was lodged; or

   (b) during the processing of the application.

5. However, pursuant to reg.1.15B(4) the Minister may, if he or she is satisfied that the visa applicant is proficient in English to a standard that is not less than the standard required under sub-reg.(3), make a determination that it is not reasonably practicable or necessary for the visa applicant to be tested using the International English Language Testing System (“IELTS”) test.

6. On 28 April 2008, during the processing of her visa application, a delegate of the Minister advised the applicant that she was required to provide evidence of her English language proficiency by way of an IELTS test. However, the applicant did not provide any IELTS test results to the Minister’s department. Consequently, on 20 October 2008 the delegate found that the applicant did not have vocational English pursuant to cl.880.223 and thus refused to grant her the visa.

7. An application for review was lodged with the Tribunal on 31 October 2008. On 8 September 2009, in response to the Tribunal’s invitation to provide information that she had vocational English, the applicant advised that she had made a booking to undertake an IELTS test on 5 December 2009 and asked the Tribunal to allow her the opportunity to take the test. A hearing before the Tribunal had been set for 6 October 2009.

8. In a further letter to the Tribunal dated 25 September 2009, the applicant claimed that:

   a)since the lodgment of her visa application on 17 August 2007, she had undertaken three IELTS tests but was unable to obtain the required score;

   b)her request to the Tribunal that she be allowed an opportunity to sit a further IELTS test on 5 December 2009 was her first request for an extension of time; and

   c)previous family disputes caused her to suffer anxiety and depression and affected her overall concentration and ability to study. However, she was gradually recovering and believed that if she were granted an extension of time she would be able to achieve the required score.

9. At the Tribunal hearing on 6 October 2009 the applicant claimed that she had not been able to achieve the required IELTS test scores because of the problems she had been experiencing in association with the breakdown of her marriage. In light of her marital difficulties, the Tribunal agreed to allow the applicant the opportunity to undertake the IELTS test scheduled for 5 December 2009.

10. On 30 December 2009 the Tribunal received the applicant’s IELTS test results as follows: listening component – 3; reading component – 3; writing component – 4; and speaking component 5.5. As the applicant had not achieved a result of 5 in all of the four test components in any of the IELTS tests she had undertaken, the Tribunal found that she did not have vocational English as defined in reg.1.15B(3) and that therefore she did not satisfy cl.880.223.

Application for judicial review

1. The grounds of the amended application were pleaded as follows:

   1. The Migration Review Tribunal failed to provide me further time to set [sic] for next IELTS test.

   2.The Migration Review Tribunal failed to understand my exceptional circumstances that affected my overall IELTS performance.

Ground one

1. The first allegation in the amended application was particularised as follows:

   The tribunal did not give me another chance to set [sic] for next IELTS test.

   In her written submissions filed on 18 May 2010 the applicant relevantly said:

   I appeared few IELTS tests but failed to obtain the required score for Residence visa. Under this circumstance I need to have sit for the next IELTS test. However the Tribunal did not give me the opportunity to sit for the next IELTS test.

   Accordingly I submit that the Tribunal failed to uphold the natural justice to me.

2. On 28 August 2009 the Tribunal wrote to the applicant asking her to submit, by 23 September 2009, evidence that she met the vocational English requirement of cl.880.223. On 8 September 2009 the applicant wrote to the Tribunal advising that she had made a booking to sit an IELTS test on 5 December 2009 and requesting an extension of the deadline set in the Tribunal’s letter of 26 August 2009. On 9 September 2009 the Tribunal wrote to the applicant refusing her request for an extension of time. On 25 September 2009 the applicant wrote again to the Tribunal in the terms referred to earlier in these reasons.

3. A Tribunal file note dated 30 September 2009 records that an officer of the Tribunal telephoned the applicant that day, saying that the Tribunal would not wait until 5 December 2009 for her to sit the IELTS test but also advising that any concerns she had could be raised with the Tribunal at its hearing on 6 October 2009.

4. At its hearing, the Tribunal heard from the applicant concerning the difficulties she had encountered during her time in Australia and was persuaded to allow her a further opportunity to sit an IELTS test. It delayed its decision until after the results of that test had been received.

5. On 10 December 2009 a Tribunal officer telephoned the applicant and inquired about the results of the IELTS test of 5 December 2009. The Tribunal’s file note, reproduced at p.134 of the Court Book (“CB”), records that the Tribunal was advised that the results would not be available until approximately 20 December 2009 and that when the applicant received them she would provide them to the Tribunal.

6. A Tribunal file note of 23 December 2009, reproduced at CB135, records that a Tribunal officer telephoned the applicant and left a message on her mobile phone and a voicemail on her landline asking her to call back.

7. A Tribunal file note of 24 December 2009, reproduced at CB136, records that the applicant telephoned the Tribunal that day, advising that she received her IELTS test results and had been very upset ever since. She said to the Tribunal officer that she would mail the results to the Tribunal that day. Paragraph 28 of the Tribunal’s decision records that it received the IELTS test results on 30 December 2009.

8. In her evidence today, the applicant said that not only had she made a booking for an IELTS test on 5 December 2009 but she had also, approximately a week after having made that booking, made a booking for a further test which was scheduled to take place in March or May 2010.

9. As I understand her evidence, in light of the Tribunal decision she did not, in the result, sit the second test. However, the applicant’s evidence was that she had provided to the Tribunal not only details of the booking for the December 2009 test but also the booking details for the test scheduled for 2010. Her evidence was that she gave both booking forms to the Tribunal at the same time. She also said that she had given the Tribunal the booking form for the 5 December 2009 test on one occasion only. The significance of that statement lies in the terms of the applicant’s letter of 25 September 2009 to the Tribunal. In that letter, the applicant said:

   Recently I have booked for another IELTS test due on 5 December 2009. …

   Unfortunately I cannot achieve required score of my IELTS test unto now. I would like to try one more time and I have already booked for IELTS test on 5 December 2009. No test available for me earlier than this date. (CB109-110)

10. Significantly, none of the Tribunal’s file notes of the telephone conversations which it had with the applicant on 30 September 2009, 10 December 2009 or 24 December 2009 make any reference to the applicant having made a booking for a further IELTS test to take place in 2010. Neither does the Tribunal’s decision record indicate that the applicant mentioned to it that she had made a booking for a further IELTS test in 2010.

11. Although I am willing to accept that the applicant may have hand-delivered her letter of 25 September 2009 to the Tribunal and may have had with her at that time a booking form for a second IELTS test, it is plain that the letter of 25 September 2009 only asks the Tribunal to consider the first date. Although the applicant said in her evidence today that she had two booking forms with her at the time but the Tribunal only took one to photocopy, it must be inferred that this was because the applicant’s letter of 25 September 2009 only sought the Tribunal’s indulgence in relation to the test of 5 December 2009.

12. It must also be recorded that the applicant conceded today that she had never raised with the Tribunal subsequently to the letter of 25 September 2009 the fact that she had made a booking for a further IELTS test in 2010. If the Tribunal was not asked to take account of any further test which the applicant may have booked, it could not consider the issue. The applicant’s evidence does not go so far as to say that she made it clear to the Tribunal that, notwithstanding the terms of her letter of 25 September 2009, she wanted the second test to be considered.

13. In the circumstances, I conclude that the applicant did not make clear to the Tribunal that she wanted it to consider delaying its consideration of her application until she sat an IELTS test in 2010. That being so, the fact that the Tribunal proceeded to make a decision on the review application which was before it after having received the 5 December 2009 test results, and did not delay its decision further, does not represent a miscarriage of discretion. Neither does it represent a constructive failure to exercise jurisdiction by reason that it failed to take account of material which would have been relevant to the exercise of its jurisdiction.

14. As a result of these considerations, I find that the first ground of the application does not disclose a reason for the Tribunal’s decision to be set aside.

Ground two

1. The second ground of the application is particularised as follows:

   The Tribunal failed to understand my exceptional circumstance that affected my overall IELTS performance that:

   (i)The exceptional circumstance like, obtained divorce from the husband control my overall progress of the IELTS test.

2. In her written submissions, the applicant said:

   The Tribunal did not consider my particular circumstances, which affected my overall IELTS performance.

   I claimed before the Tribunal that I had been harassed by my then husband and subsequently obtained a divorce from him. I was suffering trauma because of this incident.

   The above particular circumstances were beyond my control. I submit that the exceptional circumstances like, divorcing from husband control my overall progress to the study.

   Unfortunately the Tribunal did not consider those circumstances when assessed and made decision of my review application.

1. It is not apparent what the relevance of the circumstances alleged by the applicant are said to be. The Tribunal expressly considered the problems which the applicant had encountered in her personal life when it decided to allow her the time she sought in order to sit the IELTS test in December 2009. Consequently, if this ground relates to that issue, it is not made out on the facts. If this ground refers to something else, it has not been made apparent what that might be.

2. The criterion which was relevant to the Tribunal’s decision did not rely in any of its aspects on considerations such as “exceptional circumstances”. That is to say, it cannot be said that when testing the applicant’s visa application against cl.880.223 and reg.1.15B, the Tribunal was required to consider whether any exceptional circumstances applied to the applicant. It may be that the applicant has confused the concept of exceptional circumstances with the idea of reasonable practicability referred to in reg.1.15B(4)(b)(i). However, that sub-regulation had no applicability to this case because there was no suggestion that the Minister could have been satisfied, pursuant to reg.1.15B(4)(b)(ii), that the applicant had the necessary English language proficiency. Moreover, the fact that the applicant had actually sat the test prior to the Tribunal arriving at its decision demonstrates that sitting the test was reasonably practicable and, for that reason alone, reg.1.15B(4) has no relevance to this case.

Conclusion

1. In light of these conclusions, I find that the amended application filed by the applicant on 6 April 2010 does not manifest an arguable case. 

2. As the applicant has not demonstrated that she has an arguable case for the relief she claims, her application in a case filed on 25 June 2010 will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 30 July 2010