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Patel v Minister for Immigration & Anor [2010] FMCA 279 (29 April 2010)

Last Updated: 3 May 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Migration Review Tribunal – contradictory departmental information does not amount to jurisdictional error – no denial of procedural fairness – no failure to provide adequate time – applicant on notice that Tribunal would proceed to decision – Tribunal’s action not retrospectively unreasonable – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.351, 353, 357A, 359, 359A, 359B, 379, 424A
Migration Regulations 1994 (Cth), 2.26A, 4.17, Schedule 2 cl.880.22, Schedule 6A

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35

Applicant:
DARSHAN POONAMBHAI PATEL

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 3104 of 2009

Judgment of:
Nicholls FM

Hearing date:
6 April 2010

Date of Last Submission:
6 April 2010

Delivered at:
Sydney

Delivered on:
29 April 2010

REPRESENTATION

The Applicant:
In Person

Appearing for the Respondents:
Mr R White

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application, made on 21 December 2009, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,200.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3104 of 2009

DARSHAN POONAMBHAI PATEL

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. This is an application made on 21 December 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 2 December 2009, which affirmed the decision of a delegate of the respondent Minister to refuse the grant of a Skilled – Independent Overseas Student (Class DD, Subclass 880) visa.

Background

  1. The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following is relevant as background. I note also the background as set out in the first respondent’s written submissions of 29 March 2010 ([2] to [6]).
  2. The applicant, who is a national of India, applied on 30 August 2007 for a Skilled Independent Overseas Student (Residence) visa. (See CB 1 to 11 and CB 18 to CB 69 with annexures.)
  3. Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) reveals that the class of visa applied for contains one subclass of visa. The subclass 880 visa is available for applicants in Australia who are eligible overseas students, who have been studying in Australia and have completed a relevant tertiary qualification.

Relevant Law

  1. At all relevant times, clause 880.222 read:

The Visa Requirements

  1. Under clause 880.222 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), an applicant for the relevant visa must achieve a “qualifying score” in order to meet the criteria which need to be satisfied at the time of the making of the decision on the application. The “points” system is set out in subdivision B of Division 3 of Part 2 of the Act. That is, ss.92 to 96. Points are awarded for particular “qualifications”. The total is then set against “pool” and “pass” marks set from time to time by the Minister.
  2. Points are awarded as against certain criteria, the attributes of which are set out in Schedule 6A of the Regulations. For the purposes of the relevant visa category, criteria or “qualifications” 1, 2, 3, 4, 5, 6, 7, 8, and 10 apply (see reg.2.26A). These are skill, age, language skill, employment experience, spouse or de facto partner skill, Australian education, skills targeting, bonus points and additional points for regional Australia and low population growth metropolitan areas.

The Delegate

  1. The application for a Skilled – Independent Overseas Student (Class DD, Subclass 880) visa was refused by the delegate on 25 September 2008 (CB 74 to CB 77). The delegate determined that the applicant failed the points assessment. The relevant “pass” mark was 120 points. The applicant was found to have only 110 points.

The Tribunal

  1. The applicant sought review by the Tribunal on 29 September 2008 (CB 78 to CB 85). On 30 January 2009, the applicant wrote to the Tribunal notifying that he would be overseas between 3 February 2009 and 5 March 2009 (CB 91).
  2. The Tribunal wrote to the applicant by letter, dated 24 April 2009, inviting him to provide additional information or evidence, by 2 June 2009, showing that he met the requirements of cl.880.222 (CB 95 to CB 101). That is, information that would go to the issue of his achieving the relevant pass mark of 120 points. The letter indicated that an extension of time could be requested if required. The letter further indicated that if the information was not received within the allowed period the Tribunal may proceed to make a decision without further seeking to obtain the information.
  3. I agree with the Minister’s submissions that the letter complied with s.359(3), in that it was given by one of the methods set out in s.379A (s.379A(4)). Further, it complied with s.359B(1)(b), and stated that the information was to be provided within the prescribed period (see reg.4.17(4)). Bearing in mind what was relevantly said in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 and Minister for Immigration & Citizenship v SZKTI [2009] HCA 30, no error is revealed.
  4. Relevantly, I note that as part of the points requirement the applicant needed to meet requisite IELTS (International English Language Testing System) test scores for English language competency (see Part 3 of Schedule 6A of the Regulations). This allows for 20 points for an IELTS test score of at least “6” in each of the four relevant components (Item 6A31), or 15 points for an IELTS test score of at least “5” in each of the four components (Item 6A33). (The components are: speaking, reading, writing and listening.)
  5. The applicant responded by letter dated 2 June 2009 (CB 102). The applicant indicated that he had applied to have an IELTS exam of 21 March 2009 “remarked”, and was awaiting the result. He indicated that he expected the results to be available in three weeks. The applicant also indicated that he had sat a further IELTS exam on 30 May 2009, and that he was awaiting the results. The applicant sought an extension of time to provide the information sought by the Tribunal (CB 102).
  6. On 30 June 2009 a Tribunal officer spoke to the applicant by telephone and requested a copy of the IELTS test results to which he had referred in his letter of 2 June 2009 (CB 109). The applicant is reported as responding that he would send a copy of his results as soon as he received them from his education provider.
  7. By letter dated 5 August 2009, the Tribunal invited the applicant to attend a hearing (CB 110). The applicant attended a hearing on 6 October 2009 (CB 114 to CB 116). The Tribunal’s decision record contains an account of what occurred at the hearing (see [18] at CB 155).
  8. I note that the applicant indicated that he intended to deposit AUD100,000 in a “designated security” in order to obtain 5 points under the bonus points qualification. He subsequently provided evidence to the Tribunal of this deposit (see [19] at CB 155 and CB 143). In its decision the Tribunal subsequently awarded the applicant 5 bonus points for this (see [33] at CB 157 and [35] at CB 158).
  9. Also at the hearing the applicant provided twelve “IELTS” Test Report Forms dated 21 July 2007, 1 December 2007, 8 March 2008, 29 November 2008, 6 December 2008, 21 March 2009, 4 April 2009, 18 April 2009, 30 May 2009, 13 June 2009, 27 June 2009 and 22 August 2009 (CB 121 to CB 132). These were tests that the applicant had relevantly sat.
  10. Items 6A31 and 6A33 of Schedule 6A enabled the Tribunal to take into account any IELTS test result for a test taken not more than 12 months before the date on which the application was made or during the processing of the application (see Berenguel v Minister for Immigration and Citizenship [2010] HCA 8). As the application for the visa was made on 30 August 2007, each of these test results fell within this period.
  11. To be eligible for 20 points pursuant to item 6A31 the applicant would need a test result of at least “6” for each of the 4 test components. To be eligible for 15 points pursuant to 6A33 the applicant would need a score of at least “5” for each of the components.
  12. It is clear that the test results provided by the applicant met 6A33, but not 6A31.
  13. At the hearing (6 October 2009) the applicant also told the Tribunal that in addition he had sat for yet another IELTS test in September 2009, and that he expected to receive “the results in the next few days” ([18] at CB 155). He submitted a copy of an email from the “IELTS Testing Unit” of “IELTS Australia”, dated 28 September 2009 which stated that there would be a “slight delay” with the publishing of the results. But that the delay “should be no more than 7 working days NOT including postage time” (CB 117).
  14. The Tribunal indicated at the hearing that, even if the applicant failed to achieved the requisite IELTS score in the September test, it would proceed to a decision ([18] at CB 155). The Tribunal requested these results again during telephone contact on 15 October 2009 and 3 November 2009 (CB 141 and CB 142). It appears the applicant indicated that “... he knew what the results of the test would be”, and would: “... forward the IELTS test results to the Tribunal” (CB 142).
  15. On 13 November 2009 the applicant wrote to the Tribunal indicating that he would be overseas between 15 November 2009 and 9 February 2010. He claimed that, because of his mother’s illness, he had not been able to concentrate for his IELTS examination. He indicated that he would notify the Tribunal “shortly” about the examination results, and requested an extension of time (CB 146 to CB 147).
  16. The examination results had not been provided at the time of the Tribunal’s decision ([22] at CB 156). The applicant provided no further information and the Tribunal proceeded to make its decision on 2 December 2009.
  17. The Tribunal found that the requisite qualifying score relevant to the applicant at the time of assessment was 120 points ([23] at CB 156). The Tribunal set out its assessment as against each of the qualifying criteria ([34] at CB 156 to [35] at CB 157). The applicant was given maximum points for skill, age, Australian educational and bonus points. He had provided no evidence in support of employment experience, spouse skill, skills targeting or regional Australia qualifiers. He received no points for these.
  18. For language skills the Tribunal awarded the applicant 15 out of the maximum 20 points because “in his best IELTS test results” he achieved a score of at least five (not six) in each of the IELTS test components (see [26] at CB 156).
  19. The Tribunal concluded that the applicant was entitled to 115 points. As the pass qualifying score remained at 120 points, the applicant had not achieved the requisite qualifying score to meet clause 880.222, which contained the prescribed criterion for the class of visa for which he had applied ([36] at CB 158). The Tribunal therefore affirmed the delegate’s decision ([37] at CB 158).

Application to the Court

  1. The application to the Court was made on the following grounds:
  2. No further particulars were provided. The Minister made written submissions.

Before the Court

  1. At the hearing before the Court the applicant appeared in person. Mr R White appeared for the first respondent.
  2. The applicant sought to submit two bundles of documents. The first bundle was headed “Applicant’s Written Submissions”. Attached to it was a copy of an IELTS test result dated 11 February 2010, which showed that the applicant scored at least “6” for each of the relevant elements.
  3. Leave was granted for the applicant’s written submissions to be filed in Court. I upheld the Minister’s objection to the IELTS test result of February 2010 on the basis of relevance to the issue before the Court. That is, the date of the test and the result post-dated the Tribunal’s decision. The Court cannot now substitute its own finding of fact to award the applicant additional points.
  4. In relation to the second bundle of documents, Mr White made no objection to pages one to four. The first page was a cover sheet, the other three pages were already before the Court in the Court Book (CB 49, 43, and 44).
  5. Pages 5, 6, and 7 were not before the Tribunal, but in any event they relate to work done by the applicant in 2005. There was no apparent relevance to the Tribunal’s consideration of the application. These were not admitted into evidence. At best they may have been a challenge to the Tribunal’s finding of fact in relation to the qualifying element of employment experience.
  6. Pages 8, 9 and 10 are in the nature of written submissions. Leave was granted for these to be filed in Court.

The Applicant’s Complaints

  1. I understood from the applicant’s oral and written submissions that his complaints are:
    1. The designated security deposit.
    2. A denial of procedural fairness arising from the failure to provide more time for him to provide his IELTS results.
    3. A denial of procedural fairness because the Tribunal failed to consider his request for an extension of time.
    4. The Tribunal made an error in that it did not consider the IELTS test results of September 2009.
  2. Complaints 2, 3 and 4 are dealt with below in the consideration of the grounds of the application.

The Designated Security Deposit

  1. The Tribunal contacted the Minister’s department on 6 October 2009 seeking an urgent opportunity for the applicant to make a deposit in a designated security (CB 133 to CB 136). The Minister’s department responded to the applicant by letter dated 8 October 2009. It appears to have been sent by an officer in the “Adelaide Skilled Processing Centre” (CB 138 to CB 140).
  2. Before the Court the applicant pointed to that part of the letter dealing with the relevant timetable (CB 139.7):
  3. He further pointed to what immediately preceded this advice (CB 139.5):
  4. The applicant “submitted” (and this is supported by the “Case Note” at CB 141) that he then contacted the Tribunal as to the relevant date, given that the letter from the Minister’s department contained two different dates (31 October 2009 and 14 November 2009).
  5. The Tribunal “Case Note” reveals that on 15 October 2009 a Tribunal officer spoke to the relevant officer in the Adelaide Centre and advised the applicant that the deposit would need to be made by 31 October 2009. The applicant made the deposit and presented a copy of the relevant certificate (CB 143).
  6. There were two limbs to the applicant’s complaint. The first appeared to be that he was “induced” by the Tribunal (“not provide me proper information”) to pay the security deposit (AUD100,000) in circumstances where his application was refused. The second limb was relevant to the applicant’s complaint about a failure of procedural fairness and will be dealt with below.
  7. In relation to the first limb the applicant submitted that the making of the deposit, noting the large sum, involved financial hardship for his father. He was now left in a position where he (and his father) had expended large sums of money, yet he was still not given a visa.
  8. It is not clear what ground of review the applicant seeks to plead here. But in any event, taking the applicant’s complaint on its face, I cannot see that the Tribunal sought to induce or mislead the applicant.
  9. The “pass” mark for the visa required by the applicant, both before the delegate and the Tribunal, was 120. Before the delegate the applicant scored 110 points as against the “pass” total required of 120 points. It was clear that, having regard to the applicant’s circumstances, there were only two “qualifiers” where the applicant would have been able to obtain the extra 10 points to achieve the total of 120 points required before the Tribunal.
  10. One was his language skills. The applicant had already “achieved” 15 points of the maximum 20 points for this qualifier. Only a further 5 were available to him.
  11. The only other relevant area available to him was to obtain 5 points by making the security deposit (under the “bonus point” qualification). Had he then provided the Tribunal with evidence that he had achieved the relevant score of “6” at a IELTS test he would have been awarded a further 5 points and achieved the total pass of 120 points.
  12. It is quite clear that, even if the applicant had satisfied the language skill qualification, he would not have achieved the desired result without the 5 points from the “bonus point qualification”. In this sense, therefore, even if the applicant had been given some advice as to the need or desirability of making the security deposit, the only “inducement” for doing so would be so that he could be successful in his application.
  13. In any event, on the best evidence available before the Court it appears the initiative for making the deposit came from the applicant himself. He indicated his intention to the Tribunal at the hearing on 6 October 2009 (see [18] at CB 155). The Tribunal officer’s subsequent action on 6 October 2009 can therefore be seen as an attempt to facilitate the applicant’s intention in circumstances where the opportunity for making such an investment with the designated investment body was to close on 31 October 2009. (The time of the officer’s email seeking the opportunity for the applicant was noted as “4:39PM” – CB 133.2. This was after the cessation of the hearing with the Tribunal at 3.37PM – CB 115.4.)
  14. Another element of complaint arising from the security deposit complaint is the confusion as to relevant dates arising from what was contained in the Minister’s department’s letter of 8 October 2009 (see in particular CB 139 and the quotes extracted above at [38] and [39]).
  15. It is clear that this is some formulaic letter. Nonetheless, that does not absolve the Departmental officer from the responsibility to ensure that the relevant details included in the letter are accurate, and indeed are not contradictory.
  16. But on its own this matter cannot, and does not, reveal error on the part of the Tribunal. In fact the Tribunal officer, in contrast, can be said to have acted in an exemplary fashion. When the contradictory and confusing (to the applicant) dates were brought to the Tribunal’s attention, swift action was taken to resolve the question as to the relevant date (CB 141). The applicant indicated that he would comply with this “deadline”, and appears to have done so.
  17. The second limb of this particular complaint is part of the general assertion of a denial of procedural fairness (ground three) and is dealt with below.

Ground One

  1. Ground one alleges a breach of s.424A of the Act. As pleaded this ground cannot succeed. This section is part of Division 4 of Part 7 of the Act, dealing with the conduct of a review before the Refugee Review Tribunal.
  2. In any event, even if this is meant to allege error pursuant to s.359A, the equivalent section relating to the Migration Review Tribunal, it does not succeed.
  3. The application does not identify what information should have been provided to the applicant. Nor can I see that any such information can be said to fall within the requirement that it would be the reason, or part of the reason, for affirming the decision under review, noting that the Tribunal’s thought processes, subjective appraisals, its determinations and conclusions are not “information” for the purposes of this section (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18], noting the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 per Finn and Stone JJ).
  4. Rather, and in any event, the analysis was derived from documents and evidence provided by the applicant himself for the purpose of the review, or submitted to the Minister’s department in writing in connection with the visa application. As such, this information falls within the exceptions to the obligation in s.359A(1) contained in s.359A(4)(b) and (ba).
  5. Before the Court, as best as I understood, the applicant’s complaint in this regard was that, having asked him for information by its letter of 24 April 2009, the Tribunal did not communicate with him before then going on to make its decision.
  6. It must be said that this complaint misrepresents the relevant facts before the Court, and probably arises from the applicant’s lay research efforts. Even if this was treated as a complaint involving s.359, the Tribunal’s letter was quite clear in directing the applicant’s attention to, and inviting the submission of, information or evidence as to whether he could meet the requirements of cl.880.222 in the context of needing to amass 120 points to satisfy the relevant visa requirement. The Tribunal’s request that this information be provided by 2 June 2009 was at least the prescribed reasonable time. In this case 2 June 2009.
  7. In his response (CB 102) of 2 June 2009 the applicant made reference to a number of IELTS tests. Ultimately he asked the Tribunal for a further three weeks to submit his IELTS test result of “30th May 2009”.
  8. The applicant’s complaint now in relation to this specific point can only be described as disingenuous. The applicant provided no test results by 23 June 2009. This was three weeks after the date advised by the Tribunal for the submission of any additional information or evidence and consistent with the time extension sought by the applicant.
  9. It was only when he was contacted by a Tribunal officer on 25 June 2009 (CB 108) that the applicant subsequently advised that it would take yet: “a further few weeks” to obtain a “re-mark” of the IELTS test.
  10. In any event, in relation to this specific complaint, the Tribunal gave the applicant, in effect, more than 2 months (up to the end of June 2009) more than what was prescribed as being the reasonable period. Noting of course that the final decision was not made until five months later (2 December 2009).
  11. This ground as pleaded and “explained” in submissions does not succeed. For the other aspects of procedural fairness see below.

Grounds Two and Three

  1. Grounds two and three can be considered together. Ground three asserts a failure generally to accord procedural fairness, and in a sense ground two is a particular of that complaint in that it asserts that the Tribunal failed to provide adequate time for his providing the IELTS test result. Again, no meaningful particulars are provided.
  2. First, I agree with the Minister that this is a case to which s.357A applies. This makes the matters set out in Division 5 of Part 5 of the Act the exhaustive statement of the natural justice hearing rule, absent bias, for the purposes of this review (Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration & Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). To the extent that the application implied some breach of natural justice principles at general law, this must be rejected.
  3. Although it is not explicitly stated, it would appear the applicant’s complaint is directed to the results of his thirteenth IELTS test, taken on 15 September 2009.
  4. At the hearing with the Tribunal on 6 October 2009 the applicant told the Tribunal that he expected to receive the results of that test “in the next few days”. The Tribunal pursued the applicant on 15 October and 3 November when he did not provide these results.
  5. On 13 November 2009, much more than just a “few days” after the hearing, the Tribunal received a request for more time from the applicant. He asserted that his mother was severely ill and that he would leave for India immediately to see her.
  6. The Tribunal took this request into account (see [21] at CB 156). It noted that at the time of the decision on 2 December 2009 nothing had been received from the applicant. The applicant had been given a further 3 weeks to provide his latest test results. In all the circumstances I cannot see that the Tribunal failed, or refused, to consider the request, or to have made its decision without regard to the request. In the circumstances I cannot see that the Tribunal exercised its discretion unreasonably or arbitrarily.
  7. The applicant was on clear notice as at the time of the hearing on 6 October 2009 that his twelve earlier test results would not provide sufficient points for him, and that it was important that he now provide the results of his 13th test (see [18] at CB 155). He said he would do so within “a few days”. He did not do so. The Tribunal contacted him on two subsequent occasions to enquire as to this matter. The second was on 3 November 2009, nearly a month after the hearing (CB 142). Still the applicant did not provide the test results.
  8. It was not until 10 days later that he wrote to the Tribunal citing his mother’s illness and his immediate departure for India as the reason for requesting more time to submit the test results. Importantly, the letter did not address, or explain why, the applicant did not provide the test results within a few days of 6 October 2009. There was nothing about any difficulty with delay on the part of the IELTS examiners in providing the results to him. That delay on the applicant’s part remained unexplained before the Tribunal.
  9. In these circumstances, it would not have been unreasonable of the Tribunal to have then proceeded at that time to its decision, particularly as in the intervening period it had made contact with the applicant who gave no indication of any difficulty. In fact, the material before the Court reveals that he knew what the results would be (see CB 141) and would provide them at the same time at which he provided other relevant material (CB 142). While he provided this other material on 13 November 2009 he was silent as to his inability to provide the test results.
  10. In any event, the Tribunal waited yet a further three weeks. In all the circumstances I cannot see that the Tribunal failed to provide adequate time for his providing his test results, or that there was any failure to apply the relevant procedural code. Noting, of course, that the applicant had already had the opportunity previously to provide twelve IELTS test results.
  11. The Tribunal did not fail to consider the applicant’s repeated requests for more time to submit his IELTS test results. Ultimately, even if his reported conversation with the Tribunal officer on 15 October 2009 (CB 141) was seen as yet another request for more time, the Tribunal did provide more time for the applicant to provide the results of the “September” IELTS test. The decision was not made until 2 December 2009.
  12. The applicant’s subsequent letter to the Tribunal of 13 November 2009 (CB 146 to CB 147), when properly and plainly read, is not a request for more time to provide the results of the “September” test (or indeed another test). It is clearly a request for more time to enable the applicant to sit for yet another IELTS test (CB 147):
  13. Before the Court the applicant complained that he had been denied procedural fairness because the Tribunal did not contact him by “email” as he had requested in his letter of 13 November 2009, but without any further contact proceeded to make its decision.
  14. This complaint must be seen against the background of the applicant’s long history of attempts to achieve the requisite scores in the IELTS test. By 13 November 2009 the applicant had attempted IELTS tests on at least thirteen occasions. His, at the time, latest test, in September 2009, had clearly not provided the result he wanted. He told the Tribunal the result was known to him. His failure to produce the result in the ensuing two months can only be seen in the circumstances as strong evidence that he had not achieved the requisite score.
  15. The applicant applied for the visa on 30 August 2007. He applied for review on 29 September 2008. He was on notice, at least as at the time of the delegate’s decision, on 25 September 2008, of the need, amongst other matters, to achieve the requisite scores in an IELTS test to enable 20 point to be awarded to him. The Tribunal’s letter of 27 April 2009 squarely raised this point with the applicant. The Tribunal again made this “need” clear at the hearing on 6 October 2009. A Tribunal officer spoke to the applicant on 15 October and 3 November 2009 where the issue of the IELTS test result was clearly discussed.
  16. Section 353(1) certainly exhorts the Tribunal to pursue the objective of providing a mechanism of review that is “fair” and “just”. It also exhorts it to be “quick”. I cannot see that the applicant can complain about the Tribunal’s action in December 2009 in proceeding to a decision. The Tribunal’s conduct was (not meant as a criticism) quick. The Tribunal clearly, over the length of the review, gave the applicant every opportunity to sit for and achieve the required IELTS results. In the circumstances, the applicant was on notice, at least as at the time of receipt of the letter of 27 April 2009 (CB 95) that the Tribunal may proceed to a decision within a reasonable time. The time available to the applicant was more than reasonable in the circumstances.
  17. Nor does the fact that the applicant ultimately succeeded in February 2010 in achieving the required IELTS result make the Tribunal’s action in December 2009 “retrospectively” unreasonable. At the time it was plainly open to the Tribunal to proceed as it did. The applicant had notice of the importance of the IELTS issue and had more than a reasonable period to address it. The Tribunal was not required to further await a successful IELTS result, whenever that may have been.
  18. None of the applicant’s grounds or complaints reveals jurisdictional error on the part of the Tribunal. The Tribunal’s assessment of the applicant’s claims as against each of the “qualifiers” reveals no error. Nor did the applicant raise any complaint in this regard. There is no failure of procedural fairness evident in what the Tribunal has done. Ultimately, the applicant must take responsibility for the time it took to achieve the desired IELTS result. That it took far too long does not reveal error on the part of the Tribunal.

Conclusion

  1. For the applicant to succeed the Court would need to find jurisdictional error (at least) in the Tribunal’s decision. As no such error is evident, the application is dismissed.

Postscript

  1. A number of features of this matter compel some additional comment. First, the applicant’s complaint about the confusion over dates and the time for the payment of the investment into a designated security in the departmental letter of 8 October 2009 does not reveal error on the part of the Tribunal. In fact, the Tribunal’s officer acted in a timely way to explain the confusion.
  2. But this matter does expose the danger in the use of pro forma or formulaic letters by the Minister’s department. In my view there is no criticism warranted merely with the use of such letters. It can be understood that, with the large volume of cases dealt with by the Minister’s department, the efficiencies to be garnered through the use of standard letters makes such practices necessary.
  3. But this does not absolve individual officers from exercising the necessary caution to avoid confusion for applicants. In this circumstance the juxtaposition of two different dates in two succeeding short paragraphs raises this inconsistency, as to the relevant dates, from a mere oversight to poor administration.
  4. It may be that while this may not provide any visa outcome for the applicant, as was raised at the hearing before the Court, a complaint to the Ombudsman may, by way of highlighting the dangers in the use of pro forma or standard letters, at least achieve a result that other applicants in the future will not be confronted with confusing advice.
  5. Second, before the Court Mr White, very fairly, commented that the applicant was deserving of some sympathy arising from circumstances where he finally, but too late for the purpose before the Tribunal, achieved the requisite level of English language proficiency. I agree.
  6. I ask that the Minister not think it presumptuous of the Court to comment that this may be a case where consideration should be given to the exercise of the discretion pursuant to s.351 of the Act.
  7. In my view such consideration should also view the applicant’s circumstances in the context of a visa system that encourages persons from other countries to come to Australia to study. In so doing large amounts of money are paid to Australian educational institutions. A system which then holds out the hope, if not the expectation, that at the end of a successful course of study, the student may be given residence in Australia.
  8. In the current case the applicant’s father, apart from financially supporting his son’s studies in Australia over some years, was “required” to sell property to enable the applicant to make the AUD100,000 “investment”, and paid, amongst other things, many thousands of dollars for the applicant’s numerous “unsuccessful” IELTS tests. Attempts which the system permitted the applicant to take, seemingly without end. When the applicant told the Court of the mental stress that he endured throughout this process his grievance could only evoke sympathy.
  9. It is, of course, a matter for the government to create whatever lawful system it considers appropriate. But, in the circumstances of this case, I would respectfully ask the Minister to consider that the applicant, and his father, have paid enough, and not just in financial terms, and that some sympathetic consideration be given to the applicant’s circumstance.

I certify that the preceding 93Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !ninety-threeninety-three (93) paragraphs are a true copy of the reasons for judgment of Nicholls FM


Associate: D Nestor


Date: 29 April 2010

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