FEDERAL COURT OF AUSTRALIA

Aktar v Minister for Immigration and Border Protection [2019] FCA 1288

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) given on 30 June 2015. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) made on 12 March 2015 to refuse to grant the appellants’ Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2    The appellants applied for the visas on 29 June 2010. The relevant subclass was subclass 885 (Skilled Independent), the criteria for which was set out in Part 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one visa applicant. Other members of the family unit, if any, who are also applicants, need satisfy only the secondary criteria.

3    The delegate of the Minister refused the visas because the first appellant (who is the mother of the second appellant) did not have the required English language proficiency.

4    The appellants were legally represented before the primary judge but not on the appeal. I have considered the written submissions filed by the first appellant and oral submissions that she also made. Her submissions focused on her personal circumstances and those of her children but did not address the reasoning or conclusion of the primary judge.

5    The issue before the Tribunal was whether the first appellant had competent English as required by clause 885.213. Regulation 1.15C provided:

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.

6    The hearing before the Tribunal took place on 26 May 2015. On that date, the first appellant advised the Tribunal that she had sat the IELTS test more than 20 times but had not achieved a score of at least six in each of the four test components. She advised the Tribunal that she had made an appointment to sit another IELTS test on 30 May 2015 and asked the Tribunal to delay making its decision until the results of that test had been obtained. The Tribunal agreed to adjourn the review to allow the first appellant to sit a further IELTS test on 30 May 2015.

7    On 18 June 2015 the first appellant advised the Tribunal that she did not obtain a score of at least six in each of the four components in the IELTS test undertaken on 30 May 2015. She advised the Tribunal she had booked another IELTS test for 11 July 2015 and asked the Tribunal to delay making a decision until she had sat that test. She also advised that she had been having tutoring twice a week and that she had a young daughter who was born in Australia and who grew up here.

8    In its reasons the Tribunal noted that it carefully considered the first appellant’s request to be given extra time to take another IELTS test on 11 July 2015. The Tribunal noted that the first appellant had sat the IELTS test seven or eight times since November 2014 and that although her reading results had improved, her results for writing had not. The Tribunal said that it did not accept that the additional time “… would necessarily allow the applicant to achieve the required IELTS results, given her previous history.” It therefore decided to proceed to determine her application for review on the evidence before it.

9    Once the Tribunal decided not to grant the appellants a second adjournment, the decision to affirm the delegate’s decision was one which the Tribunal was bound to follow from the first appellant’s inability to meet the requirements of clause 885.213 of Schedule 2 to the Regulations before completion of the review.

10    Before the primary judge it was submitted by the solicitor who appeared on behalf of the appellants that the Tribunal acted unreasonably in refusing to adjourn the review to allow the first appellant to undertake another IELTS test on 11 July 2015. The primary judge rejected that submission. In the course of doing so his Honour gave consideration to the concept of legal unreasonableness as explained in Minister for Immigration v Li (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (“Singh”).

11    The submission made on behalf of the appellants are recorded in the primary judge’s reasons focused on the following four propositions:

(1)    The fact that the first appellant had five years to provide evidence that she had competent English was “irrelevant” in light of the High Court's reasoning in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 because “the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained”.

(2)    There was no stated reason or explanation provided by the Tribunal as to why the relatively short adjournment would prejudice any person or that there was any policy or practice of not allowing for a further short adjournment in the circumstances.

(3)    The Tribunal ignored the first appellant’s claim that she was undertaking regular professional tutoring to address the specific problem that had been causing her to fail to achieve the necessary score in the writing component.

(4)    The Tribunal’s explanation for the refusal took no account of the concerns expressed by the first appellant for her four year old child.

12    The solicitor for the appellants submitted to the primary judge that the appellants’ circumstances were relevantly indistinguishable from those of the visa applicant in Singh. However, the circumstances in that case were rather different. In particular, the Full Court concluded (at [66]) that the Tribunal had failed to give the adjournment request in that case “active consideration … on its merits and in context at the time it was made …”. One matter of importance in that case was that the visa applicant sought a second adjournment to allow for a remarking of a test that he had previously undertaken after the first adjournment had been granted specifically for the purpose of allowing him to take that test. Another matter of importance was that the Tribunal in that case did not give any reasons for its decision refusing a second adjournment.

13    In the present case the primary judge concluded that the Tribunal’s decision not to grant a further extension was “entirely reasonable”. He noted that the first appellant’s case was not one where the Tribunal had decided to bring the review to an end arbitrarily or one where there was evidence to indicate a marking or re-marking process was already underway or with a result imminent. He also rejected the submission that the Tribunal failed to take into account the first appellant’s claim that she was undertaking regular professional tutoring or that she had concerns for her young child. Rather, his Honour considered that the Tribunal was not persuaded by these considerations.

14    The first appellant had undertaken the IELTS test many times. At the hearing of the review on 26 May 2015 she was granted an adjournment to enable her to re-sit the test. I do not see how the Tribunal’s decision to refuse the first appellant a further adjournment to enable her to re-sit the test yet again on 11 July 2015 could be characterised as unreasonable in the legal sense. The Tribunal’s decision does not strike me as arbitrary or capricious, lacking common sense (Li at [28]) or lacking an evident and intelligible justification (Li at [76]). I am inclined to agree with the primary judge’s finding that the Tribunal acted “entirely reasonably”. In any event, the decision of the Tribunal to refuse the first appellant a further adjournment for the reasons it gave was one that was in my opinion reasonably open to the Tribunal given the circumstances of the first appellant’s case.

15    Mr Reilly, who appeared for the Minister, drew my attention in his submissions to the fact that there was what purported to be a certificate issued under s 375A of the Act dated 9 September 2013 (“the s 375A notice”) before the Tribunal, the existence of which does not appear to have been disclosed to the appellants by the Tribunal.

16    Neither the application for judicial review filed by the appellants in the Federal Circuit Court or the submissions made to the primary judge address the significance of the s 375A notice or the fact that its existence had not been disclosed to the appellants. As Mr Reilly submitted, the matter not having been raised before the primary judge, and not having been raised in the appellants’ notice of appeal, leave would be required to raise what is a new point that was not taken below.

17    It is not apparent when the existence of the s 375A notice was first disclosed to the appellants but it is reproduced in the Court Book that was filed in the Federal Circuit Court on 17 September 2015 and was, I infer, available to the appellants’ solicitor by the time of the hearing before the primary judge on 4 May 2016. However, I am mindful that the significance of the point may not have been apparent to the appellants’ solicitors at the time given that the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (in which the possible significance of such non-disclosure first appears to have been judicially considered) was not delivered until 7 September 2016.

18    Permitting the appellants to raise the matter now would necessitate a consideration of the documents referred to in the s 375A notice and whether the non-disclosure was not material to the Tribunal’s decision and so not a jurisdictional error: Minister for Immigration and Border Protection v SZMTA & Anor (2019) 363 ALR 599 at [2] per Bell, Gageler and Keane JJ. Mr Reilly indicated that would be the Minister’s position in the event that the appellants were granted leave to raise the point.

19    At my invitation, Mr Reilly produced the documents the subject of the s 375A notice. He also produced an affidavit made by his instructing solicitor. That affidavit makes clear that the Minister does not make any claim for privilege or public interest immunity over the exhibited documents nor does he seek any order for confidentiality save in respect of some redacted portions which disclose various names, email addresses, telephone numbers and other personal information.

20    I have considered the contents of the documents and am satisfied that they contain no information that could have had any bearing on the Tribunal’s decision to refuse the first appellant the second adjournment she requested. The documents relate to enquiries made in relation to a Bangladeshi passport issued to the first appellant’s husband, and the marriage between the first appellant and her husband. They have nothing to do with the first appellant’s IELTS tests, her proficiency in the English language, or the prospects of her meeting the requirements of clause 885.213 of Schedule 2 of the Regulations.

21    In circumstances where there is no indication in the Tribunal’s reasons or any other material before me to suggest that the documents the subject of the 375A notice could have had any bearing on the decision of the Tribunal not to grant the appellants a second adjournment, I would not grant the appellants the leave they would require to enable the point to be raised in the appeal.

22    In the result, the appeal will be dismissed. The first appellant must pay the Minister’s costs of the appeal as assessed or agreed.

Associate:

Dated:    15 August 2019