FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration and Border Protection [2015] FCA 1417

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Mohammad Moinul Islam is a non-citizen who desperately wishes to secure a permanent visa so that he can stay in Australia and ply his trade.

2    On 29 June 2011 he lodged an application for a Skilled (Residence) (Class VB) subclass 885 (Skilled – Independent) visa. His application was refused by a delegate of the Minister. That decision was affirmed by the Migration Review Tribunal. Mr Islam applied for judicial review. By consent, the Federal Circuit Court quashed the Tribunal’s decision and remitted the application to the Tribunal because of the Tribunal’s failure to consider a written submission made on Mr Islam’s behalf after the hearing. But when the Tribunal reconsidered the matter, it reached the same conclusion.

3    Mr Islam applied again to the Circuit Court for judicial review. This time, however, the Circuit Court determined that there was no jurisdictional error and dismissed the application, ordering Mr Islam to pay the Minister’s costs fixed in the sum of $6,100. This is an appeal from that decision. In his notice of appeal Mr Islam complains that he was denied procedural fairness and natural justice by both the primary judge and the Tribunal. For the reasons which follow the appeal must be dismissed.

Criteria for the grant of a Skilled (Residence) (Class VB) visa

4    Section 65 of the Migration Act 1958 (Cth) imposes an obligation on the Minister to grant an applicant’s visa application if the Minister is satisfied that the applicant satisfies the prescribed criteria and, if not, to refuse it. At the relevant time the prescribed criteria for the grant of the visa for which Mr Islam applied included that he have competent English (see sch 2 cl 885.213) and that he satisfy certain public interest criteria including public interest criterion 4020 (PIC 4020) (sch 2 cl 885.224).

5    Regulation 1.15C defines the circumstances in which a person has “competent English” for the purposes of a General Skilled Migration visa. At the time Mr Islam lodged his visa application, the definition took the following form:

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

(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.

(Original emphasis.)

6    IELTS is an acronym for the International English Language Testing System.

7    At the time Mr Islam lodged his visa application, the Regulations as interpreted by the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 (Berenguel) enabled an applicant to satisfy the competent English criterion at the date of hearing, By the time of the second Tribunal decision the form of reg 1.15C had changed, although the requirement that the applicant have an IELTS test score of at least 6 for each of the four test components remained the same. After the judgment in Berenguel, the Regulations were amended so as to require that the requisite test scores be achieved in a test conducted in the three year period before the visa application is made: see Migration Amendment Regulation 2011 (No 3) (Cth), sch 1 item [2]; Milanes v Minister for Immigration and Border Protection [2015] FCA 1105. These changes, however, have no effect on Mr Islam because they only applied to applications for General Skilled Migration visas made on or after 1 July 2011: Migration Amendment Regulation 2011 (No 3), cl 3. The form of the regulation was further amended in 2012 but these amendments are also irrelevant as they only apply to visa applications made on or after 1 July 2012: Migration Amendment Regulations 2012 (No 2) (“the 2012 Regulations”), sch 13 cl 101.

8    The subclass 885 visa was omitted by the 2012 Regulations (sch 2 item [26]), but these amendments only apply in relation to visa applications made on or after 1 July 2013 (sch 13 item [29]).

9    PIC 4020 is to be found in sch 4 to the Regulations. It was a criterion which was to be satisfied at the time of the decision: see sch 2 cll 885.22 and 885.224. At the time of the hearing before the Tribunal in April 2015 PIC 4020 relevantly stated:

(1)    There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

(a)    the application for the visa; or

(b)    a visa that the applicant held in the period of 12 months before the application was made.

…(3)    To avoid doubt, subclaus[e] (1) … appl[ies] whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) … if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note    Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

(Original emphasis.)

10    Section 97 of the Act defined “bogus document” in the following way:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

(Original emphasis.)

The relevant facts

11    Mr Islam is a single man from Bangladesh, who I gather has been in Australia for about 10 years on a succession of temporary visas. He professes to have skills as a chef and to hold a diploma of hospitality management. He nominated his occupation in his visa application as “cook”. At that time he had been employed as a cook at the Nelson Hotel for three years.

12    On 4 April 2012 the Minister’s Department received from Mr Islam’s migration agent a copy of an IELTS test report form with respect to a test taken on 13 August 2011 which recorded scores of 6 in all four test components. An online verification of the test with the examining authority conducted by an officer of the Department showed scores in two bands which were lower than those appearing on the form — a score of 5 for listening and 4 for reading.

13    On or about 6 October 2013 Mr Islam contacted the Department by email, expressing concern at the length of time taken to finalise his application. He was assured that the application was “under active consideration”. It seems likely, however, that the Department was prompted into action by Mr Islam’s email because on 11 October 2013 the Department requested Mr Islam to provide the original IELTS certificate. Mr Islam responded twice on 23 October 2013, each time submitting a copy of what purported to be the IELTS results. These copies were apparently identical to the copy provided by his migration agent on 4 April 2012.

14    On 12 November 2013 the Department wrote to Mr Islam advising of the discrepancies between the test results held by the examining authority and the results in the documents he had sent to the Department and of the Department’s view that the information in the documents he had provided was “false and misleading” in a material respect. The Department drew his attention to PIC 4020 and invited him to comment, both on the information it considered to be false and misleading and on the waiver conditions. Mr Islam replied three days later with a plea to the Department to let him stay in “this nice and lovely country” but he did not address any of the matters raised by the Department. Later that day, and then again on 22 November 2013 the Department wrote to him to giving him a further opportunity to be heard on its concerns about the documents and the waiver conditions. Once again Mr Islam responded with a plea to allow him to stay in Australia but offered no comment on the apparently false IELTS results or the existence of circumstances which might justify the grant of a visa. On 6 December 2013 he made a written request for the documents to be “withdrawn”.

15    By the time of the first Tribunal hearing, on his own evidence Mr Islam had taken a total of 16 IELTS tests, had not been able to obtain scores of at least 6 in each of its four components, and had no other evidence that he had “competent English” as defined in the Regulations. He said that a friend had convinced him to do what he did, he realised now how serious that was, and he apologised for his actions.

16    The first Tribunal hearing took place on 25 March 2014. After the Federal Circuit Court set its decision aside and remitted the matter to the Tribunal, the Tribunal wrote to Mr Islam advising him that it had considered the material before it but was unable to make a favourable decision on this information alone and invited him to appear before the Tribunal on 5 March 2015 to give evidence and present arguments. It also gave him the opportunity to submit additional documents or information. Mr Islam responded with a letter advising the Tribunal that he had “booked two tests to obtain his IELTS result”, one for 14 February 2015, the other for 14 March 2015. He did not, however, request an adjournment of the hearing.

17    The second Tribunal hearing took place on 5 March 2015 before a differently constituted Tribunal. Mr Islam appeared on his own with the assistance of a Bengali interpreter. He submitted additional documents to the Tribunal, including his eight previous IELTS results. Amongst them was the most recent, issued on 25 February 2015, which showed that he had received a score of 3.5 for reading and 4.5 for writing.

18    The Tribunal took into account the information provided to it and also the material provided to the previous Tribunal, both before and after the hearing, the latter comprising a submission dated 3 April 2014 from Mr Islam’s representative and two employment references attached to it. This material was directed to the question of whether there were compassionate or compelling circumstances to enable the Minister to waive the requirements of PIC 4020(1).

19    Mr Islam admitted to the Tribunal that he had altered the document in order to satisfy the competent English requirement.

The second Tribunal decision

20    The Tribunal found that the IELTS test report provided to the Department on 4 April 2012 contained incorrect results and that Mr Islam had no proper authority to alter the form. It also found that Mr Islam knew the document was purposely untrue and that he was “consciously committing a fraud or deception” in giving it to the Department. For these reasons the Tribunal was satisfied that the IELTS test report was a “bogus document” in that it was a document the Tribunal reasonably suspected was counterfeit or had been altered by a person who had no authority to do so. The Tribunal acknowledged Mr Islam’s request that the document be withdrawn but expressed the view that once given to the Department it was “subject to consideration in respect of PIC 4020”. Consequently, the Tribunal concluded that there was evidence before both the Minister and the Tribunal that Mr Islam had given, or caused to be given, to the Minister or an officer, a bogus document in relation to the application for the visa at hand and the requirement in PIC 4020(1) was not satisfied.

21    The Tribunal then turned to consider whether it should waive compliance with PIC 4020(1), noting that at the hearing it had given Mr Islam the opportunity to make any relevant claims.

22    The Tribunal acknowledged that, if compliance with the requirement in subcl (1) were not waived, Australia would not have the benefit of any of Mr Islam’s skills but did not consider that this was a compelling circumstance that affected the interests of Australia. The Tribunal said it accepted, as he claimed, that Mr Islam had had paid work at a number of local restaurants and in the past had done voluntary cooking for the Australian Bangladeshi community. The Tribunal said that it also accepted that Australian permanent residents, Australian citizens or eligible New Zealand citizens may have been the recipient of Mr Islam’s services, but noted Mr Islam’s oral evidence that he was not currently working and had last worked (whether in a paid or voluntary capacity) in August/September 2014.

23    In addition, the Tribunal considered Mr Islam’s claim that he wished to do more voluntary work with older Australians in the future and the Tribunal accepted that some Australian permanent residents or citizens here would miss him if he were not granted the visa and had to return to Bangladesh.

24    Nonetheless, the Tribunal did not consider that these matters were sufficient to satisfy it that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which would justify the grant of a visa.

25    In these circumstances, the Tribunal found that Mr Islam did not satisfy PIC 4020.

The application for judicial review

26    Mr Islam filed an application seeking, amongst other things, an order that the Tribunal’s decision be quashed and that a writ of mandamus directed to the Tribunal or the Minister be issued requiring “them” to determine his application according to law.

27    The application contained four grounds, which alleged that:

(1)    the Tribunal “made error of law and failed to exercise the proper procedure”;

(2)    the manner in which the Tribunal dealt with both him and the application was such as to give rise to a reasonable apprehension that it did not bring an impartial mind to the resolution of the application;

(3)    the Tribunal denied Mr Islam “natural justice and procedural fairness pursuant to s 359AA and 363 [of the Act]”; and

(4)    the Tribunal was “preoccupied” and that is “why he was denied natural justice and procedural fairness when the Tribunal formed the view about its jurisdiction as [it] failed to take into consideration all the options available [under the Act and Regulations]”.

The decision of the primary judge

28    The primary judge noted that the application had been listed for hearing at 11.15am, that it had been called outside the Court, and that by 11.55am Mr Islam had failed to appear. His Honour then stated:

There has been no communication to the Court by the applicant seeking an adjournment and no explanation for the failure to appear communicated to [the Minister]. As the matter was fixed for hearing, the Court has dealt with the matter on its merits.

29    The primary judge accepted the Minister’s submissions in relation to each ground: first, that the unparticularised allegations in ground 1 failed to identify any legal or procedural error; secondly, that the Tribunal applied the correct test in determining whether Mr Islam had given the Minister a bogus document and that the Tribunal’s findings were open on the material before it, including Mr Islam’s own evidence; and thirdly, that the Tribunal correctly considered the question of waiver and that the adverse determination was open on the material before it. His Honour said that there was no substance to ground 1 or 2. In relation to ground 2 his Honour held that the allegation of “bias” could not be made out because it was unparticularised and was “not clearly proven”. He went on to say:

I also accept the first respondent’s submission that a fair minded person taking into account the admissions by the applicant in respect of the bogus document would not by reason of the adverse findings by the Tribunal, believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

30    Presumably the reference to “the adverse findings” is a reference to the finding that Mr Islam knew the document was purposely untrue and that he was consciously committing a fraud or deception in giving it to the Department.

31    With respect to ground 3, the primary judge accepted the Minister’s submissions that Mr Islam was well aware of both the critical allegation in respect of the documents and of the waiver issues and that there was no breach of s 359A, “as the test information was falsified and fell within the exclusion under s 359A(3)(b)”.

32    In relation to ground 4, his Honour accepted the Minister’s submission that there was no substance in the suggestion that the Tribunal was required to adjourn the hearing or that it was unreasonable to proceed with the review. In this respect his Honour noted that Mr Islam had taken the test some 20 times without success and did not request an adjournment although he had booked further tests. In these circumstances his Honour concluded that it could not be said that the decision of the Tribunal to proceed with the review “lacks an evident and intelligible justification”.

The appeal

33    The appeal is in the nature of a rehearing in which error by the primary judge must be shown: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129.

34    The notice of appeal alleges that there were two errors.

35    The first alleged error is that Mr Islam was denied natural justice because the primary judge:

(a)    heard the application in his absence when he had “duly notified his illness and inability to attend the Court by phoning the registry on the very day of the hearing”; and

(b)    did not take this circumstance into consideration before finding in the Minister’s favour.

36    Mr Islam filed an affidavit stating that he had “duly phone[d] the Court registry in [the] first hour of the hearing day” and “had notified of [his] illness”. He claimed there was no reason to make a decision in the Minister’s favour.

37    At the hearing the only submission Mr Islam made which was relevant to this ground was that the primary judge erred by proceeding to hear his case in his absence. His Honour had the power to do this and to dismiss the application on this account: Federal Circuit Court Rules 2001 (Cth) (FCCR), r 13.03C(1)(c). Consequently, the only way the primary judge could have erred is if it would have been a denial of procedural fairness in the particular circumstances to try the case in his absence.

38    The evidence in the affidavit filed on 4 August 2015 was vague as to the time Mr Islam informed the registry that he was ill. “In first hour of the hearing day” could be any time between 10.15 and 11.15 or between 11.15 and 12.15, bearing in mind the listing. Even so, Mr Islam did not state what his illness was. Nor did he say why it precluded him from attending Court on the day. He did not submit any medical evidence. Moreover, there was no evidence to suggest that the primary judge was aware of any call to the registry before he proceeded with the hearing. Several inferences are available: the call was made after and not before the hearing, that the registry did not pass on the message to the primary judge, or that no call was in fact made. There is no record in the Circuit Court file of any such call. When I drew this to Mr Islam’s attention at the hearing, he confessed to having made no call.

39    The rules of natural justice or procedural fairness require that a party who might be adversely affected by a decision be given a reasonable opportunity to be heard. Mr Islam was afforded that opportunity. He appeared before the primary judge on 11 June 2015 when the matter was fixed for hearing. Both parties were then ordered to file and serve written submissions by 9 July 2015. Mr Islam was also given the opportunity to put on affidavit evidence. He could have filed written submissions but he did not. He could have filed additional evidence but he did not. The obligation of a decision-maker to afford a party an opportunity to be heard does not carry with it an obligation to ensure that the party takes advantage of the opportunity: Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 (Deane J). When Mr Islam failed to appear at the hearing and had not previously signalled any difficulty attending, the primary judge was entitled to conclude that he had no intention of availing himself of the opportunity to be heard.

40    A failure to accede to a reasonable request for an adjournment may amount to procedural unfairness (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ)), but Mr Islam made no application for an adjournment.

41    Mr Islam could have applied to the Federal Circuit Court to set aside the order. Where an order has been made in the absence of a party, the Circuit Court has the power to vary or set aside any judgment or order, even after it has been entered: FCCR 16.05(2)(a). I considered whether I should give Mr Islam the opportunity to make such an application, though he did not seek it, on the assumption that he was unlikely to have been aware of the rule. Consequently, I raised this possibility with the parties.

42    Mr Islam pleaded with me to allow him time. But he did so, not to make an application to the Circuit Court for a variation of the judgment or order, but to enable him to sit an IELTS test for what he said would be the 24th occasion. When pressed, he said he would make an application to the Circuit Court. But the Minister opposed an adjournment and tendered a letter dated 19 August 2015 from his solicitors which drew FCCR 16.05(2)(a) to Mr Islam’s attention and attached a copy of it. Mr Islam admitted to receiving the letter around the date it bears but claimed not to understand the rule. If that were so, he could have sought advice. Moreover, as the Minister submitted, any argument he could make to the Federal Circuit Court on the substance of his application, he could make to this Court.

43    In these circumstances I considered that Mr Islam had had sufficient opportunity to make the application and there was no good reason to adjourn the appeal.

44    The second ground of appeal alleges that the Tribunal “did not follow the procedural fairness in reviewing [the delegate’s decision]” and that “[i]t is apparent that [the] Tribunal has not acted in accordance with the law”.

45    No particulars were given. At the hearing Mr Islam declined to explain the basis for these allegations and made no submissions.

46    I respectfully agree with the primary judge that there is no basis for concluding that the Tribunal was actually biased against Mr Islam. For actual bias by reason of prejudgment it would have to be shown that the Tribunal was so committed to a preconceived conclusion that its mind was incapable of alteration, no matter what evidence or arguments were presented to it: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72]. But, as I read the grounds of his application, that was not Mr Islam’s allegation. His allegation was that there was a reasonable apprehension that the Tribunal was biased. To make good that allegation, it was necessary for him to establish that a fair-minded lay observer, with knowledge of the nature of the Tribunal’s non-curial role and inquisitorial processes, might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]–[28]. The application of this test involves a two stage process: first, identifying what it is said which might lead the Tribunal to decide the case otherwise than on its merits; and secondly, showing a logical connection between the suggested reason and the feared deviation: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]. Mr Islam made no attempt to do either.

47    In the way in which the primary judge approached this question, his Honour appears to have imposed a more onerous test. Be that as it may, on the material before the Court there is no reason to conclude that the hypothetical lay observer might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the determination of the issues before it.

48    In the absence of any submissions to the contrary, I also accept that the primary judge did not err in disposing of the remaining grounds of the application. While the primary judge did not mention s 359AA of the Act in his reasons, which was the first of the sections mentioned in Mr Islam’s application in the court below, there was no apparent breach of that section. It states that:

If an applicant is appearing before the Tribunal because of an invitation under section 360:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so-the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

49    There is nothing in the material before the court to indicate that the obligations set out in para (b) were engaged.

50    Section 359A requires the Tribunal in certain circumstances to give to an applicant clear particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, ensure as far as is reasonably practicable that the applicant understands the relevance of the information to the review and the consequences of the Tribunal relying on it, and to invite him or her to respond. The subsection did not apply, however, because, as the primary judge observed, Mr Islam was the source of the adverse information. His Honour referred to s 359A(3)(b), no doubt because it was the Minister’s submission (which his Honour adopted) that that was the relevant provision. The reference is wrong, but nothing turns on the error. In fact, the relevant provision is s 359A(4)(b). That paragraph provides that the section does not apply to information that the applicant gave for the purpose of the application for review. Both the information about the IELTS documents and the evidence and material submitted in support of a waiver would fall within this exception.

51    In his application to the court below Mr Islam also referred to s 363 which sets out the powers of the Tribunal. What aspect of s 363 he had in mind is a mystery. The Minister speculated that he might have been complaining that the Tribunal should have adjourned the hearing. Certainly, s 363(1)(b) gave the Tribunal the power to adjourn the review from time to time. As I have already observed, however, Mr Islam did not seek an adjournment. No transcript or recording of the hearing was tendered and there is no indication in the Tribunal’s decision record that he did so. Yet, as I have also observed, there was material before the Tribunal to indicate that Mr Islam had booked additional IELTS tests. Consequently, the primary judge considered whether it was legally unreasonable for the Tribunal not to have adjourned the hearing. The relevant principles are set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration v Singh [2014] FCAFC 1; 308 ALR 280. Where, as here, Mr Islam had taken the tests 20 times previously without achieving a score of 6 in all four subjects, where, in any event, the decision of the Tribunal was not based on his failure to satisfy the English language competency criterion, and where no application for adjournment was apparently made, the primary judge was plainly correct to hold that there was no substance in the proposition that it was unreasonable for the Tribunal to proceed with the review.

Conclusion

52    Mr Islam failed in the Tribunal because he could not satisfy criterion 4020. The Tribunal considered whether or not the satisfaction of the criterion should be waived. The decision record shows that the Tribunal took into account the written material provided to the first Tribunal, Mr Islam’s evidence and his oral submissions. There is no reason to conclude that the Tribunal erred in its approach to either question or denied Mr Islam procedural fairness.

53    The appeal must be dismissed. Costs should follow the event. There will be orders to this effect.

Associate:

Dated:    14 December 2015