Zheng v Minister for Immigration
[2008] FMCA 867
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHENG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 867 |
| MIGRATION – Review of Migration Review Tribunal decision – subclass 880 visa – refusal – Tribunal’s exercise of discretion did not miscarry – decision not demonstrated to be erroneous or manifestly unreasonable – no jurisdictional error demonstrated. |
| Migration Act 1958, ss.94, 95, 95A, 96, 350 Migration Regulations 1994, reg.2.26A, sch.2 cl.880, sch.6A |
| House v The King (1936) 55 CLR 299 Surinakova v Minister for Immigration Local Government & Ethnic Affairs (1991) 33 FCR 87 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 |
| Applicant: | SHI HUI ZHENG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3514 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 June 2008 |
| Date of Last Submission: | 18 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3514 of 2007
| SHI HUI ZHENG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 5 March 2004 the applicant applied for a Skilled – Independent Overseas Student (Residence) (Class DD) subclass 880 visa. This was refused by a delegate of the Minister on 7 February 2006. The applicant subsequently applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant law
The Tribunal described the Skilled – Independent Overseas Student (Residence) (Class DD) 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.
The criteria for the grant of a subclass 880 visa are set out in Part 880 of Schedule 2 to the Migration Regulations 1994 (“Regulations”).
Relevantly in this case, a primary criterion to be satisfied at the time of decision is cl.880.222 which requires that an applicant have a “qualifying score” when assessed under Subdivision B of Division 3 of Part 2 of the Act (i.e. ss.92 – 96). That subdivision provides for the application of a points system under which applicants for relevant visas are given an assessed score based on particular attributes set out in the Regulations, in this case reg.2.26A and sch.6A.
Section 94 of the Migration Act 1958 (“Act”) provided that:
(1)An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2)An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3)If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a)the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b)if the Minister puts the application aside – the Minister is taken to have put the application into a pool.
(4) …
Pass and pool marks are set by the Minister from time to time: s.96. Applications that have been put aside by the Minister may remain in the “pool” for up to 24 months, waiting for a lower pass mark: ss.95, 95A.
Section 350 of the Act requires the Tribunal, in relation to a points assessment, to consider the Regulations and the pool and pass marks in force at the time of the delegate’s assessment and as in force at the time of the Tribunal assessment and apply whichever is more favourable to the applicant.
At the date of the Tribunal’s determination reg.2.26A relevantly provided:
(5) The Minister may determine that the applicant is proficient in English to a level equivalent to that mentioned in an item in Part 3 of Schedule 6A, if the Minister determines that it is not reasonably practicable, or not necessary, for the applicant to be tested using IELTS test.
That is to say, the Tribunal had a discretion whether or not the applicant’s English language proficiency was to be determined by reference to an IELTS test.
Background facts
The applicant’s application for a subclass 880 visa was refused by the Minister’s delegate on 7 February 2006, the delegate having awarded the applicant 110 points. This fell below the pool and pass mark of 115 points (Court Book (“CB”) pages 89 – 93, 164).
On 30 August 2006 the Tribunal sent the applicant a letter inviting him to comment on information relating to his IELTS certificate. The letter stated that, based on his IELTS scores, the applicant was entitled to
15 points out of 20 points for language skills (CB 103). The Tribunal invited the applicant to submit evidence that he was registered to undertake an IELTS examination and/or evidence to indicate that he was eligible for the award of 5 extra points.
On 4 October 2006 the applicant provided evidence he was registered to take an IELTS test on 3 February 2007.
On 2 April 2007 the Tribunal invited the applicant to submit his IELTS test results (CB 107). The applicant provided his results and submitted that the Tribunal should exercise its discretionary power to award him 20 points for language skill qualifications (CB 114).
On 15 May 2007 the Tribunal sent the applicant a letter inviting him to comment on information which indicated that the applicant would be awarded an assessed score of 110 points in total, as a component of which the applicant scored 15 for language skills (CB 117).
On 21 June 2007 the applicant provided comments and asked the Tribunal to exercise its discretion to award him 20 points for language skill qualifications. These comments were supplemented by submissions dated 13 September 2007 (CB 131).
The applicant appeared before the Tribunal on 13 September 2007 and submitted that:
a)on the basis of his employment history and qualifications it was not necessary for him to sit an IELTS test and the Tribunal should exercise its discretion and award him 20 points for language skill qualification;
b)he be allowed additional time to obtain a report from a psychologist or psychiatrist on his ability to sit an IELTS test; and
c)he be allowed additional time to sit a further IELTS test.
The Tribunal denied the applicant’s request for additional time to sit a further IELTS test but indicated that it would consider any further evidence submitted.
The Tribunal’s decision and reasons
The Tribunal affirmed the decision of the delegate not to grant the applicant a subclass 880 visa on the basis that:
a)having reassessed the applicant’s total points score at the time of primary assessment, the Tribunal concluded that the applicant was entitled to a score of 110 points;
b)at the time of primary assessment and the Tribunal’s decision, both the pool and the pass marks were 115 points; and
c)the applicant failed to achieve the qualifying score to pass the points test and thus failed to meet the requirements of cl.880.222, which was a prescribed criterion for the grant of a subclass 880 visa or to be placed in the pool.
In relation to the applicant’s submission that the Tribunal exercise its discretion to award 20 points for the English language skill qualification rather than rely on his IELTS scores, the Tribunal made reference to the Procedures Advice Manual (“PAM”) 3 which gave guidance to departmental decision-makers on how to exercise this discretion under reg 2.26A(5) and also to other provisions of the Regulations.
Proceedings in this Court
The applicant alleges, in essence, that the Tribunal erred by not determining that it was not necessary for him to undergo an IELTS test. He expresses this in term of a miscarriage of a discretion.
The submissions of the applicant, as reflected in his application commencing these proceedings, were not that the Tribunal erred in the way that it exercised its discretion but simply that it should have exercised its discretion differently and should have arrived at a different conclusion. A discretionary decision is not reviewable on this basis. Tribunals and courts may reasonably differ as to how a discretion ought to be exercised in particular circumstances but such a disagreement provides no basis for disturbing a discretionary decision which has been made. If a discretionary decision is sought to be set aside than the approach of the decision-maker must be shown to have been erroneous or the decision itself manifestly unreasonable.
It was not suggested for instance that the Tribunal’s decision offended any of the principles set out in House v The King (1936) 55 CLR 499. The applicant’s submissions were principally to the effect that as he had completed a university degree for which the study was conducted in English, had worked in Australia and lived in Australia for a period, he had, in substance, met the language competency requirements such that the Tribunal ought to have accepted these in place of an IELTS test score.
One possible characterisation of the applicant’s allegations is that the Tribunal’s approach to the exercise of its discretion was erroneous because it fettered its discretion by following PAM 3 without applying an independent mind to the issue before it. As Hill J said in Surinakova v Minister for Immigration, Local Government & Ethnic Affairs (1991) 33 FCR 87 at [98]:
There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines. The policy of the Minister, to which I have referred, is one such example. However, a decision-maker must take care to ensure that he does not slavishly follow a policy and disregard the particular circumstances of a case. As Gummow J said in Khan’s case (pp 11-12):
“….what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy…”
The criteria for the exercise of discretion contained in reg 2.26A(5) are the reasonable practicability of an applicant sitting an IELTS test or a lack of necessity that an applicant should sit such a test. PAM 3 gives guidance as to the matters which may be considered when deciding those matters but the Tribunal was not limited to the matters canvassed in PAM 3 when reaching its decision. The Tribunal had other material before it and it is plain that the Tribunal did consider such information when reaching its decision. As it said:
Considering the guidelines in PAM 3 as set out above and the evidence the applicant has submitted in relation to his English language ability, including the results from the 3 IELTS tests as set out above, his qualifications and employment history, the Tribunal is of the view that it is necessary for the applicant to sit an IELTS test. The Tribunal is also satisfied that it is reasonably practicable for the applicant to sit an IELTS test. (CB 170)
The Tribunal did not limit its consideration to the matters contained in PAM 3. On the question of whether it was necessary that the applicant’s English language skills be determined by an IELTS test, it took into account his prior test results and claimed life experience. On the question of whether such a test was practicable, it can be inferred that the Tribunal took account of the fact of the prior tests having been sat as addressing this criterion. Consequently, although the guidance of the manual was clearly taken, it has not been demonstrated that the Tribunal applied the guidelines in the manual slavishly and failed to give proper consideration to the merits of the case.
It may be that the applicant’s allegation is that the decision was manifestly unreasonable. In order to make out such an allegation, he needs to demonstrate that the decision was so unreasonable that no reasonable Tribunal could ever have come to it and thus it exceeded its jurisdiction: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, per Lord Greene MR at 234. However, were that to be the allegation, it is not made out. The Tribunal’s preference for an objective assessment of the applicant’s language skills was far from unreasonable and the applicant’s persistent failure to achieve adequate marks in the IELTS tests he sat underscores the lack of unreasonableness in not accepting the applicant’s life experiences as adequate testimony as to his language skills.
Conclusion
In the absence of anything to demonstrate that the Tribunal’s discretion miscarried, there is no basis upon which to find that its decision is affected by jurisdictional error. As no such conclusion can be reached in this case the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 June 2008
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