Federal Court of Australia

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 568

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants 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

WHEELAHAN J:

1    The appellants are members of a family who are citizens of India. On 20 November 2011, the first appellant applied for a Skilled – Independent (Class VB) (Subclass 885) Visa. The second and third appellants were included in the application.

2    On 7 February 2014, a delegate of the Minister refused the visa application. The appellants then sought review of that decision by the Migration Review Tribunal, which on 6 May 2014 remitted the application for reconsideration by a delegate of the Minister.

3    On 4 July 2014 a delegate of the Minister again refused the appellants’ application. The appellants then sought review of the second decision by the Migration Review Tribunal.

4    On 26 November 2014, the Migration Review Tribunal affirmed the second delegate’s decision. The appellants then sought judicial review by the Federal Circuit Court of Australia of the Tribunal’s second decision. The Minister conceded that the Tribunal’s second decision was affected by jurisdictional error, and on 17 February 2016 the Court ordered that the decision be set aside. By this time, the Migration Review Tribunal had discontinued and the matter was remitted to the Administrative Appeals Tribunal for reconsideration: see Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AG.

5    On 1 February 2017, the Tribunal conducted a hearing. Thereafter, further submissions were provided to the Tribunal by the appellant, including in response to an invitation by the Tribunal under s 359A of the Migration Act 1958 (Cth) to comment on or respond to information. At some point after the hearing on 1 February 2017, the Tribunal was reconstituted by another member. On 23 April 2018, the Tribunal affirmed the second decision of the delegate of the Minister to refuse the application. This was the third decision of a Tribunal relating to the appellants’ visa application.

6    By an application filed 25 May 2018 in the Federal Circuit Court of Australia, the appellants sought judicial review of the third Tribunal decision. On 23 December 2022 the primary judge dismissed the appellants’ application. The appellants then appealed that dismissal by a notice of appeal filed 20 January 2023, and that appeal is now before this Court.

Background

7    I will outline the features of the factual background that are relevant to the appellants’ grounds of appeal.

8    A grant of the appellants’ visas was subject to the appellants meeting the applicable conditions specified in Schedule 2 in the Migration Regulations 1994 (Cth). Those conditions included that the appellants have a qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.

9    The Tribunal’s decision to affirm the decision to refuse the visa applications turned on whether the first appellant had achieved sufficient points to qualify for the visa for which he had applied. The first appellant qualified for points on the grounds of his qualifications, his age, his studies in Australia, and his English language qualifications. He was held not to qualify for any points in relation to several specified areas. His points totalled 110, which was short of the 120 points specified for the particular visa by the Minister under s 96(2) of the Act for the purposes of reg 2.26AA of the Regulations.

10    In arriving at the points given to the first appellant, the Tribunal allocated 15 points on the basis that he had competent English. If the first appellant had been assessed as having proficient English, then he would have achieved 25 points, thereby meeting the 120 points threshold: see Schedule 6B, Part 6B.3 of the Regulations.

11    The ascertainment of English language skills was the subject of the Regulations. In relation to proficient English, reg 1.15D provided –

1.15D    Proficient English

If a person applies for a General Skilled Migration visa, the person has proficient English if the person satisfies the Minister that:

(a)    the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)    the test was conducted in the 2 years immediately before the day on which the application was made; and

(c)    the person achieved a score specified in the instrument.

12    The language tests specified by the Minister for the purposes of reg 1.15D that were applicable to the first appellant’s application included an International English Language Test System (IELTS) test score of at least 7 in each of four test components of speaking, reading, writing, and listening.

13    Before the Tribunal was written evidence of IELTS test results for the first appellant for the following dates that preceded the visa application –

(a)    9 April 2005 – 05IN000421XXXH120A;

(b)    14 March 2009 – 08IN050553KUMH120A;

(c)    24 October 2009 – 09IN033793KUMH120G;

(d)    3 September 2011 – 11AU304870TH240G;

(e)    24 September 2011 – 11AU007093TH165G;

(f)    22 October 2011 – 11AU301314TH166G; and

(g)    5 November 2011 – 11AU306760TH240G.

14    The documents recording the above test results were before the Tribunal and are in the appeal book. The test results with “AU” in the number indicate that the tests were undertaken at test centres in Australia. The tests with “IN” in the number bear the stamp of the British Council of New Delhi Examination Centre, and screenshots for two of those three tests nominate the test centre as the British High Commission in New Delhi. Only the Australian test results of 3 September 2011, 24 September 2011, 22 October 2011, and 5 November 2011 were within the two year window preceding the date of the visa application, which was 20 November 2011. None of the above test results qualified for the threshold of proficient English, because the first appellant did not in any of them achieve a test score of at least 7 in each of the four test components of speaking, reading, writing, and listening.

15    In his electronic application form for the visa dated 20 November 2011, the first appellant stated that he had undertaken an IELTS test on 3 September 2011, nominating the test with the reference number 11AU304870TH240G, and stating that his language ability was proficient. It is important to what follows to note that the test number that the first appellant nominated in his visa application corresponded to the record for a test that he undertook on 3 September 2011 in Australia, as the first appellant’s representative later acknowledged to the Tribunal.

16    On 14 November 2013, the Department wrote to the first appellant requesting that he submit the language test of 3 September 2011 to which he had referred in his visa application. The first appellant wrote to the Department on 10 January 2014 stating that he had misplaced the test report, and that he had requested another copy from the British Council in India.

17    On 20 January 2014, the first appellant forwarded to the Department his request to the British Council in India for another copy of the test report, and the Council’s response. It is not clear that the Council’s response addressed the request, because it merely informed the first appellant that test results were valid for two years, and that he could sit another test.

18    On 30 January 2014, the first appellant forwarded to the Department further email exchanges with the British Council by which he was unsuccessful in obtaining a copy of a test report for 3 September 2011. The Department responded later that day stating that it had found the first appellant’s IELTS results online, but without specifying what results had been found.

19    I will now move to the second Tribunal decision, which affirmed the second delegate’s decision.

20    The Tribunal conducted a hearing on 21 October 2014. Following that hearing, on 5 November 2014 the first appellant forwarded to the Tribunal additional email exchanges with the British Council in India in October 2014. The upshot of that correspondence was that the first appellant was unsuccessful in obtaining the test results that he had requested in respect of a test he claimed he had undertaken in Ludhiana in India in 2011.

21    On 6 November 2014, the Tribunal contacted the British Council by an email addressed to IELTS.Verification@britishcouncil.org. The Tribunal made a request in the following terms –

In conducting this review, the Presiding Member requires access to the following information:

•    records of the date and testing centre of all IELTS tests undertaken by the applicant

•    a copy of the results of each test undertaken

•    in particular, confirmation of whether the applicant undertook a test at the British Council in India between 2010 and 2012, and the results of any test undertaken.

22    The British Council in Scotland replied by email on 25 November 2014, identifying two test dates, being the 14 March 2009 and 24 October 2009 dates to which I referred earlier, and attaching copies of the results. The terms of the response are material to the submissions advanced by the appellants, so I will set them out –

Please find the results of our search of our IELTS test history records.

There are no records for Mr Hitesh Kumar having taken the test between 2010 and 2012.

We found the test dates (and corresponding TRF number for your reference) for the candidate as below:

14/03/2009 - 081N050553KUMH120A

24/10/2009 - 091N033793KUMH120G

23    I will now move to the third Tribunal decision.

24    On 6 May 2016, the Tribunal invited the appellants to provide in writing information that the first appellant was entitled to a score of at least 120 points against the items in Schedule 6B of the Regulations, and attached a copy. The items included the English language qualifications the subject of Part 6B.3.

25    On 9 May 2016, the appellants’ representative sent an email to the British Council in India, stating that she was instructed that the first appellant had undertaken an IELTS Test on 3 September 2011, giving the reference number 11AU304870TH240G, and requesting evidence of the test results.

26    On 12 May 2016, the British Council in India responded in terms that IELTS test results were valid for two years, and that it could not supply results that had expired.

27    On 20 May 2016, the appellants’ representative forwarded to the Tribunal the email exchanges in which she had engaged with the British Council in May 2016 referred to above, and drew attention to the fact that she had been advised that a copy of the first appellant’s test results had not been retained by the British Council. The representative stated in the submission to the Tribunal that the first appellant maintained that he was entitled to the award of 25 points under the English language criterion, but unfortunately was unable to substantiate the claim. The appellant’s representative submitted that the appellant had been awarded 25 points in English for an IELTS test that the appellant sat in India on 3 September 2011 in which he achieved a score of 7 in each band. The representative requested that if the Tribunal was not satisfied that the first appellant had proficient English, then the Tribunal should write to the British Council to request a copy of the first appellant’s test report score.

28    On 25 January 2017, the appellant’s representative wrote to the Tribunal and, amongst other things, submitted that the first appellant had travelled to India and had endeavoured to obtain evidence of his IELTS test results from the British Council for a test sat on 3 September 2011, but without success. The submission stated that the test number provided to the Department of Immigration (11AU304870TH240G) was evidence of proficient English. The test number that was cited was the same number that the first appellant had cited in his visa application. The representative stated that the first appellant had engaged in extensive searches to try and corroborate this claim, including by travelling to India, but to date he had been unsuccessful in retrieving the results.

29    The Tribunal then conducted a hearing on 1 February 2017. Following the hearing, the appellants’ representative provided a further submission to the Tribunal dated 8 February 2017. In relation to IELTS tests, the position changed. It was acknowledged that the test number that the first appellant had provided in his visa application referred to an IELTS test that he sat in Australia on 3 September 2011, in which the appellant did not achieve a test score of at least 7 in each band. The appellants’ representative submitted, however, that the first appellant had consistently maintained that he had achieved proficient English in an IELTS test that he sat in India prior to making the visa application. The representative was instructed that the first appellant sat at least two tests in 2010 in addition to the tests that he undertook in 2009, and that the first appellant was certain that he achieved 7 in each component of one of those tests, but that his family in India had misplaced the report card.

30    On 26 March 2018, the Tribunal wrote to the appellants inviting comment on or a response to information that it set out in the letter. The information that was set out in the Tribunal’s letter concerned two matters to which I have already referred, namely –

(1)    On 6 November 2014 the Tribunal contacted the British Council requesting records of the date and testing centre of all IELTS tests undertaken by the appellant, in response to which the Council identified two test dates, being the 14 March 2009 and 24 October 2009 dates to which I referred earlier, and attaching copies of the results. The Tribunal stated that the information was relevant because it suggested that the appellant did not sit an IELTS test in India and achieve a level of proficient English as he had claimed at the hearing on 21 October 2014 and in the written submissions dated 20 May 2016 and 25 January 2017.

(2)    In his visa application the first appellant had answered “yes” to the question whether he had undertaken an English test within the previous 24 months, and quoted a number for a test undertaken on 3 September 2011, stating that his English language ability was “proficient”. The Tribunal stated that on 22 March 2017 it had verified the test undertaken by the first appellant on 3 September 2011, the outcome of which was that his English language was competent rather than proficient. The Tribunal stated that if it relied on this test result, then it may find that the first appellant was not eligible for 25 points for his standard of English, with the consequence that he may not pass the points test and satisfy cl 885.221.

31    On 9 April 2018, the appellants’ representative responded to the Tribunal. In relation to the first matter that the Tribunal had raised, it was submitted that little weight should be given to the correspondence between the Tribunal and the British Council in November 2014 on the ground that it had been shown that the first appellant had sat an IELTS test between 2010 and 2012 because it had been established that he sat a test on 3 September 2011. I pause to note that the test record before the Tribunal and which is in the appeal book indicates that this test was undertaken in Australia. It was submitted to the Tribunal that the British Council’s records were either incomplete or incorrect. Other submissions were that –

(a)    the first appellant continued to rely on his assertion that he achieved the required level of proficient English on an IELTS test completed sometime in 2010;

(b)    the first appellant recalled travelling to India and sitting an IELTS test, and he instructed that his test report cards were sent to his Indian home address but that his family misplaced the results;

(c)    there was no way of verifying the first appellant’s scores for these IELTS test results, because the British Council had stated that it was not able to provide the first appellant with results that had expired, and for the further reason that the first appellant had been advised by his case officer at the Department that IELTS test results were kept for only seven years, and that his 2010 test had been completed well over seven years ago;

(d)    the first appellant accepted that he did not achieve the required English score in the test on 3 September 2011, but when he completed his online visa application he was under the mistaken apprehension that this was the test where he had achieved the required level of proficiency; and

(e)    the matter gave rise to unique or exceptional circumstances that justified referral of the matter to the Minister.

32    The submissions of 9 April 2018 were supported by a statutory declaration of the first appellant made 9 April 2018 in which he declared that he sat for at least two IELTS tests in India in 2010, and that he could not provide evidence of them because the tests were undertaken so long ago, that no records were available, and that his test results were misplaced by his family.

The Tribunal’s decision

33    On 23 April 2018, the Tribunal published its decision, which was accompanied by a statement of reasons (R). The member who made the decision was not the same member who had conducted the hearing on 1 February 2017. The member stated that she had listened to the recording of the hearing on 1 February 2017 and had considered the written evidence before the Tribunal. The member stated that she did not consider a further hearing to be necessary. Nothing turns on the manner in which the Tribunal proceeded.

34    The Tribunal considered the totality of issues relating to whether the first appellant achieved at least 120 points. Of relevance to the appeal is only the Tribunal’s consideration of the first appellant’s English language qualifications.

35    The Tribunal recounted the background, which included reference to the inquiries that the Tribunal itself had made. The Tribunal stated at R [26] that on 22 March 2018 it had verified IELTS test number 11AU304870TH240G, which was the test dated 3 September 2011 which the first appellant had nominated in his visa application. The test results qualified the first appellant as being competent rather than proficient in English. The Tribunal referred to the submissions that had been advanced on behalf of the appellants, including that the British Council’s records were either incomplete or incorrect, and that the first appellant relied on his assertion that he achieved a level of proficiency in a test that he sat in 2010, and that he accepted that he did not achieve a level of proficiency in his test of 3 September 2011. The Tribunal’s reasons at R [30]–[31] lie at the heart of the appeal –

30.    The Tribunal is of the view that the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule. However, in this case, the Tribunal has, at the request of the applicant’s representative, made every effort to try to substantiate the applicant’s claims to have achieved the standard of proficient English, but without success.

31.    The Tribunal does not accept that the advice of the British Council in India cannot be relied upon on the basis that the applicant sat an IELTS test in Australia on 3 September 2011, as this enquiry to IELTS International clearly requested confirmation of whether the applicant undertook a test at the British Council in India between 2010 and 2012 and the results of any test undertaken taken. The Tribunal therefore prefers the evidence of the British Council that the applicant did not undertake an IELTS test in India between 2010 and 2012, but that he did sit two tests in India on 14 March 2009 and 24 October 2009. Copies of these test results were provided and in both of these tests the applicant achieved a competent standard of English. Further, the IELTS test undertaken in Australia on 3 September 2011 likewise resulted in a standard of competent English.

32.    The applicant has been unable to substantiate his claim, with any independently verifiable evidence, that he achieved the standard of proficient English, within the prescribed period. On this basis the Tribunal can only allocate the points entitlement for competent English which has been demonstrated to the Tribunal’s satisfaction.

(Emphasis in bold added.)

The application to the Federal Circuit Court

36    Before the Federal Circuit Court was an amended application with three grounds of review. Only grounds of review 2(a) and 3 are relevant to the appeal, and they were in the following terms –

2.    In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Sched 6B to the Regulations, the Tribunal:

a.    misunderstood the law by imposing an onus of proof on the First Applicant; and/or

...

Particulars

(i)    As to ground 2(a), the Regulations did not impose an onus of proof on the First Applicant yet the Tribunal proceeded on the basis that ‘the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule’ (paragraph 30 of the reasons, emphasis added). That was a jurisdictional error.

...

3.    In assessing whether the First Applicant engaged item 6B31 in Part 6B.3 of Sched 6B to the Regulations, the Tribunal reasoned illogically or irrationally in finding that the First Applicant did not sit any IELTS test in India between 2010 and 2012.

The primary judge’s reasons

37    The primary judge’s reasons are published: Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1074 (J).

38    The primary judge rejected the second ground of review. His Honour stated at J [9] that it had long been accepted that an applicant is required to put relevant evidence or argument before a Tribunal in support of the applicant’s claims, citing the following passage from the reasons of Gummow and Hayne JJ in Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510 (Abebe) at [187] –

It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

39    The primary judge at J [12]–[13] disposed of the appellants’ argument based on the Tribunal’s use of the word “onus” by holding that the Tribunal was merely stating the obvious, namely that it was for the first appellant to bring forward some evidence that he had undertaken an English language test conducted by an accredited and recognised institution and had achieved the requisite score –

12    The Court accepts the submission made on behalf of the first respondent that on a proper reading of [30] of the reasons of the Tribunal, it was apparent that when using the word “onus” the Tribunal was doing no more than reflecting the test as set out in Abebe by recording that it was the responsibility of an applicant to provide the “necessary evidence” in support of their claims. That the word onus was used was not determinative as submitted on behalf of the applicant. Paragraph [30], when read as a whole, merely stated the obvious, namely that to satisfy the English Language Test the first applicant had to produce some evidence of his having undertaken the requisite tests, and that he had attained the requisite scores from an accredited and recognised institution. It provided as follows:

“[30] The Tribunal is of the view that the onus rests with an applicant to provide the necessary evidence to substantiate claims under any of the points categories in the relevant Schedule. However, in this case, the Tribunal has, at the request of the applicant’s representative, made every effort to substantiate the applicant’s claims to have achieved the standard of proficient English, but without success”.

13    Second, it is clear from the second sentence of [30] that the Tribunal went to the trouble of itself contacting the British Council to request copies of the results of any tests undertaken by the first applicant. Had it been the case that the Tribunal was asserting that the first applicant was solely responsible for identifying relevant evidence for consideration by the Tribunal, as would be consistent with the imposition of a strict onus of proof resting upon the applicant, the Tribunal would not have undertaken such investigations itself.

40    As to the appellants’ third ground of review, the primary judge held at J [20]–[22] that it was without merit and that it invited impermissible merits review of a finding of fact made by the Tribunal. His Honour held that it was neither illogical nor irrational for the Tribunal to have found that the first appellant had not sat and passed the relevant test, stating that the Tribunal had squarely dealt with the issue at R [31] of its statement of reasons which I set out at [35] above.

The appellants’ grounds of appeal to this Court

41    The appellants’ grounds of appeal to this Court are as follows –

1.    The primary judge erred in applying Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (Abebe), at [12].

Particulars

a.    The primary judge found that use of the word ‘onus’ by the Tribunal at [30] was ‘doing no more than reflecting the test as set out in Abebe by recording that it was the responsibility of an applicant to provide the “necessary evidence” in support of their claims’ (at [12]).

b.    The primary judge erred in applying Abebe as the principle stated in that case is that the Tribunal does not deny an applicant procedural fairness by not contradicting all of an applicant’s claims at a hearing, and it is a matter for an applicant to put their claims to the Tribunal, not for the Tribunal to make the applicant’s claims for them.

c.    This principle is not relevant to the case at hand. The Appellants in the present case are arguing that the Tribunal impermissibly analysed the evidence through the lens of the onus of proof, which does not apply in the Tribunal’s inquisitorial jurisdiction.

d.    The primary judge did not address this argument in his written reasons for judgment.

e.    Further and alternatively, the primary judge erred in applying Abebe because the Tribunal impermissibly imposed an onus of proof on the Appellants.

2.    The primary judge erred by failing to address the third ground of review, at [20]-[23].

Particulars

a.    The Appellants’ third ground of review before the primary judge arose from the Tribunal’s failure to properly understand the British Council’s correspondence with the Tribunal.

b.    The Appellants argued that the British Council’s response to the Tribunal’s request for all of the First Appellant’s IELTS test results contained obvious omissions which meant the Tribunal could not logically rely on the response.

c.    The primary judge failed to address this argument in his written reasons for judgment.

Consideration of the grounds of appeal

Ground one

42    In relation to the first ground of appeal, the appellants submitted that the Tribunal’s obligation under s 348 of the Migration Act was to review the delegate’s decision, that the review was inquisitorial in nature, and that there was no onus of proof. The appellants submitted that in stating at R [30] that the onus rested on an applicant to provide necessary evidence to substantiate claims as to the entitlement to points the Tribunal showed that it wrongly considered that the first appellant bore the burden of proving that the claim was made out.

43    The appellants relied on the decision of Weinberg J in Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 328; 151 FCR 289 at [87] and [91] for the uncontroversial and longstanding general principle that onus of proof has no place in administrative proceedings in determining whether the decision-maker is satisfied of the relevant matter: see also, Bushell v Repatriation Commission (1992) 175 CLR 408 at 424–425 (Brennan J). I say that this is a general principle, because it must be subject to the particular legislative context. For instance, s 14ZZK(b) of the Taxation Administration Act 1953 (Cth) places an onus on a taxpayer in proceedings before the Administrative Appeals Tribunal to demonstrate that a taxation assessment is excessive or otherwise incorrect.

44    The appellants submitted that the primary judge had wrongly applied Abebe. The appellants sought to distinguish Abebe on the basis that [187] of the reasons of Gummow and Hayne JJ related specifically to a submission in that case that it was a denial of procedural fairness for the Tribunal not to put to the applicant any suggestion that a version of events she gave was untrue. The appellants relied on the full text of [187] of Abebe –

The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

45    The appellants submitted that the above passage concerned the obligation on an applicant before the Tribunal to put forward the claims and evidence on which the applicant wished to rely, and that it was not for the Tribunal to act as a contradictor. This understanding of [187] of Abebe is supported by Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 201 ALR 437 at [57] (Gummow and Heydon JJ). It was submitted that [187] of Abebe does not stand for the proposition that an applicant always bears an onus to provide the “necessary evidence” to establish or prove the claims. The appellants submitted that an applicant need only “set in motion the process which establishes the entitlement”, citing McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 (Woodward J). It was submitted that it was then for the Tribunal to determine for itself whether it reached the relevant state of satisfaction. The appellants submitted that it was wrong for the Tribunal to view its task as determining whether the first appellant had proved the claim, rather than by considering whether it could be satisfied cl 885.221 was met, including by considering whether it should exercise any further powers, such as the power to get additional information.

46    In my view, it is something of a distraction to view the Tribunal’s reasons through the lens of [187] of Abebe, which was concerned with a different issue. It is therefore also a distraction to consider whether the primary judge erred in applying Abebe. Appeals are against orders, and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 at [34] (Kiefel CJ, Gordon and Steward JJ). Putting Abebe to one side, it is clear the Tribunal did not misunderstand its function by casting an onus on the first appellant to satisfy it of his claim to an entitlement of 25 points for English language skills. It is important to read the first sentence of R [30] of the Tribunal’s reasons in its correct context, which includes its legislative context. In relation to the latter, reg 1.15D which I set out at [11] above frames the relevant condition for the grant of the visa as being “if the person satisfies the Minister”, thereby indicating at least that the person seeking the visa must bring forward information that could form the basis of the Minister being satisfied that the person achieved a score in a language test specified in the relevant instrument.

47    Independently of the terms of reg 1.15D, the Tribunal is not to be understood as having cast an onus of proof on the appellants. That is not consistent with the second sentence of R [30] where the Tribunal recorded that it had, at the request of the appellants’ representative, made every effort to try to substantiate the first appellant’s claims to have achieved the standard of proficient English, but without success. The second sentence of R [30] underscores that the Tribunal well understood that its review function was inquisitorial, in which it had power under s 359 of the Migration Act (as then in force) to get information for itself. However, the Tribunal was not required to get information unless to fail to do so was legally unreasonable thereby engaging the principles referred to in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429, Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22, Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439. All that the Tribunal was saying at [30] was that, in circumstances where the Tribunal was generally under no duty to undertake its own investigations, it was for the first appellant to put before the Tribunal for its consideration any evidence that he had completed the English language tests that would contribute to the points necessary to qualify for the visa. To do that is not to impose an onus of proof on the appellants: Beezley v Repatriation Commission [2015] FCAFC 165 at [68] (North, Tracey and Mortimer JJ). There is otherwise nothing in the Tribunal’s reasons to suggest that it approached its task on the basis that the appellants had some common law onus of proof in a curial sense.

48    For the above reasons, the primary judge was correct to reject the appellants’ claim that the Tribunal had erred by casting an onus of proof on the appellants.

Ground two

49    In relation to the second ground of appeal, the appellants submitted that the primary judge erred by failing to address the third ground of review that claimed that the Tribunal reasoned illogically or irrationally in finding that the first appellant did not sit any IELTS test in India between 2010 and 2012.

50    In argument, counsel for the appellants clarified that within the second ground of appeal was a claim that the primary judge had erred in rejecting the claim that the Tribunal had reasoned illogically or irrationally in finding that the first appellant did not sit an IELTS test in India between 2010 and 2012.

51    The appellants submitted that the Tribunal’s finding that the first appellant was only entitled to 15 points for having competent English was based on information it received from the British Council, from which the Tribunal concluded that the first appellant did not sit an IELTS test in India between 2010 and 2012. The appellants relied on the terms of the email of the British Council dated 25 November 2014 which I set out at [22] above. The appellants submitted that the response was not confined to stating that there were no records of the first appellant having taken the test in India in the period 2010 to 2012, but that the language used in the email indicated that the British Council was stating that there were no records of the first appellant taking the test at all during that period, particularly in light of the terms of the Tribunal’s request. It was submitted that understood in that context, the British Council’s response was plainly incomplete or incorrect because the appellant had undertaken IELTS tests during that period. It was submitted that in these circumstances, it was illogical to rely on the response of the British Council as evidence that the first appellant did not undertake an IELTS test in India between 2010 and 2012 and to prefer that evidence over the evidence given by the first appellant.

52    The appellants further submitted that, at a minimum, the information from the British Council necessitated that the Tribunal clarify the response, particularly in circumstances where the Tribunal had been able to obtain information about the first appellant’s results from the British Council which the British Council would not provide to him. That is, the Tribunal was likely in a position to obtain information that the first appellant could not.

53    I do not accept that the primary judge failed to address the third ground of review at first instance. His Honour did so at J [20]–[22], holding that the ground was without merit and that it invited impermissible merits review of a finding of fact.

54    There is an implied condition on the discharge of the Tribunal’s duty under s 348 of the Migration Act to review a decision that the review must be undertaken reasonably. There is a corresponding implication that the required threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J).

55    A claim that the reasoning of the Tribunal and its findings were illogical or irrational seeks to engage the high threshold that is involved in challenging an administrative decision on the ground that it was unreasonable. The condition of reasonableness is concerned with both the outcome and the process of decision-making, including findings on the way: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [132] (Crennan and Bell JJ). In relation to outcome, the high threshold has been described as a decision which is “so unreasonable that no reasonable repository of the power could have taken the impugned decision or action”: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J). In relation to the process of decision-making, the high threshold has been referred to by asking whether it was open to the decision-maker to engage in the process of reasoning in which it did engage, and to make the findings it did make on the material before it: SZMDS at [133]. A decision that is the product of a process of reasoning that is illogical or irrational such as to give rise to jurisdictional error has been explained as being “one at which no rational or logical decision-maker could arrive on the same evidence”: SZMDS at [130].

56    The Tribunal at R [31] of its reasons (see [35] above) engaged with the claim that the advice of the British Council should not be relied upon. The Tribunal stated that the enquiry to “IELTS International” clearly requested confirmation whether the first appellant undertook a test at the British Council in India between 2010 and 2012 and the results of any test undertaken. The Tribunal preferred the response of the British Council that the first appellant had not undertaken an IELTS test in India between 2010 and 2012 to the unsubstantiated claim of the first appellant that he did.

57    It was open to the Tribunal to accept that the British Council had undertaken a search of its records, and had ascertained that while it possessed records for two IELTS tests that the appellant undertook in India in 2009, it had no record of the first appellant sitting an IELTS test in India between 2010 and 2012. The Tribunal’s request for information, while initially expressed in general terms, specifically included a request for confirmation whether the first appellant had undertaken a test at the British Council in India between 2010 and 2012. The test results before the Tribunal for the four tests undertaken by the first appellant in 2011 were in relation to IELTS tests that he undertook in Australia. There was no illogicality in the Tribunal giving weight to the representations by the British Council and preferring the results of its searches over the first appellant’s claims. The first appellant’s claims had been shown to be not reliable, and had changed upon the Tribunal ascertaining and putting to him that the IELTS test that he had nominated in his visa application form had been undertaken in Australia on 3 September 2011 and did not qualify for 25 points because the first appellant had obtained a result which achieved a standard of competent but not proficient English. Nor did the Tribunal act unreasonably in not making more enquiries than it did. The circumstances of this case were not of such a rare or exceptional kind that there was an obligation to make some obvious enquiry beyond the enquiries that the Tribunal had already made. Even if it were reasonable for the Tribunal to make a further inquiry, it would not follow that the failure to make a further inquiry amounted to jurisdictional error: Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184; 256 FCR 235 at [33] (Dowsett, Pagone and Burley JJ).

58    In the end, despite making its own enquiries, the Tribunal concluded at R [32] of its reasons that the first appellant had been unable to substantiate his claim that he had achieved a standard of proficient English in an IELTS test with any independently verifiable evidence. As a result, the Tribunal was not satisfied that the first appellant was entitled to more than 15 points for his level of English language. There was nothing illogical, irrational, or otherwise legally unreasonable about this conclusion. Therefore, there was no error by the primary judge in rejecting the third ground of review at first instance.

Conclusion

59    The appeal will be dismissed, and the appellants will be ordered to pay the Minister’s costs.

Associate:

Dated:    4 June 2025