Mohamad v Minister for Immigration & Anor [2010] FMCA 539 (3 September 2010)

Last Updated: 4 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOHAMAD v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 539

MIGRATION – Visa – Skilled – Independent Overseas Student (Residence) (Class DD) visa – application for review of decision of the Migration Review Tribunal – IELTS (International English Language Testing System) tests – vocational English – where applicant sat for at least 15 tests without success – whether Tribunal misinterpreted regulation – meaning of ‘in a test’ – no jurisdictional error.

Migration Act 1958 (Cth), ss.474, 476 Migration Regulations 1994 (Cth) Regulation 1.15B, Cl.880.223 of Sch. 2

Hadiuzzaman v Minister for Immigration [2007] FMCA 1266 followed Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651; 234 ALR 114

Applicant:

MOEMEN RADY ABDELNAEIM MOHAMAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 169 of 2010

Judgment of:

Scarlett FM

Hearing date:

2 June 2010

Date of Last Submission:

2 June 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

Applicant:

Appeared in person

Counsel for the Respondents:

Mr Tynan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 169 of 2010

MOEMEN RADY ABDELNAEIM MOHAMAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is a citizen of Egypt who is applying to the Court for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
2. The Applicant asks that the Tribunal decision should be quashed and reconsidered according to law. He claims in his application that the Tribunal fell into jurisdictional error in that:
   1. The Tribunal ignored particulars of numerous IELTS[1] tests taken by him on various occasions.
   2. The Tribunal ignored the Australian qualifications which he had obtained, all of which were in the English language.
   100. He had demonstrated his ability to communicate with the Tribunal in English at the vocational level but this was not acknowledged in the Tribunal decision.
   4. The Tribunal ignored the fact that he had suffered from depression which affected his IELTS results.
   5. The definition of vocational English is wrong.

Background

3. The Applicant applied for a General Skilled Migration visa on 19th June 2007. The class of visa for which he applied was Skilled – Independent Overseas Student (Class DD, Subclass 880). He provided various documents in support of that application. On 9th October 2007 the Department of Immigration and Citizenship wrote to the Applicant’s representative, advising:
   • ENGLISH
   • Please note: The applicant has not passed the IELTS test, as he did not achieve 5.0 in each component of the exam.
   • This office will provide the applicant with another opportunity to resit the test, provided the receipt of payment and test date are forwarded to this office by the 06th November 2007.[2]
4. The Applicant’s migration adviser replied by facsimile message on 8th November 2007, advising:
   • As per your email/letter dated 9/10/07, Applicant has booked an IELTS test. Due to high demand of IELTS, he booked one in Queensland.
   • Applicant is waiting to receive receipt of Payment. Applicant has advised us that IELTS test centre advised him that he will get the receipt by 9/11/07 or 12/11/07.
   • We will then attach receipt with this online application.[3]
5. The Applicant duly took the IELTS test on 15th January 2008. Unfortunately, he was unsuccessful. His migration agent advised the Department by facsimile dated 5th March 2008:
   • In IELTS Exam previously undertaken by the Applicant, he scored 4.5 band in 1 test component but scored more than 5.0 or above in other(s) components.
   • Applicant undertook another test on 23/02/08 and expects to receive result by 10/03/08. Applicant has advised us that he has done well & expects to achieve vocational level.[4]
6. The Applicant’s IELTS test report dated 5th March 2008 showed that, whilst he had received an overall band score of 5.5, he had only received a score of 4.5 in the writing component.[5]
7. The Department advised the Applicant’s migration agent on 4th April 2008 that:
   • Your case officer is permitting the applicant to have one last final attempt at the IELTS test.[6]
8. The Applicant sat for a further test, but again received a score of less than 5.0 for the writing component. His migration agent advised that the Applicant had applied for his results to be re-marked. However, his band score was only increased from 4.0 to 4.5, which was not sufficient. His agent advised the Department that he had booked another IELTS test to take place on 6th December 2008 and asked for an extension of time:
   • Applicant has requested that he will appreciate if you can please wait until about25/12/08 so that the result of that test is available. Mr Mohamad is taking some coaching to improve his English level and is confident that he will be able to score at least 5.0 in EACH of the IELTS test component this time.[7]
9. The Department did not accede to this request and advised the Applicant on 26th November 2008 that his application for a skilled migration visa had been refused.
10. In the Department’s Decision Record, dated 26th November 2008, the delegate stated that the requirement under Clause 880.223 of Schedule 2 of the Migration Regulations was that the Applicant has vocational English. The delegate referred to the criteria for determining whether an applicant has vocational English set out in subregulation 1.15B(3):
    • If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person has achieved an OELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:
      • (a) not more than 12 months before the day on which the application was lodged; or
    • (b) during the processing of the application.[8]
11. The delegate then set out the Applicant’s IELTS test results for the tests conducted on 19/1/2008, 23/2/2008 and 9/8/2008, noting that the Applicant had not achieved a test score of at least 5.0 for each of the four test components in any of the three tests. The delegate concluded:
    • This means that the Applicant has not demonstrated that they have vocational English language ability.
    • As the Applicant has not demonstrated that they have Vocational English as specified in Migration Regulation 1.15B and consequently does not satisfy the requirements of regulation 880.223 I have not assessed the application further.[9]
12. The delegate refused the grant of a Skilled – Independent Overseas Student (Residence) (Class DD) visa.

Application to the Migration Review Tribunal

13. The Applicant applied to the Migration Review Tribunal for review of the delegate’s decision on 16th December 2008. He nominated his migration agent, Amrit Pal Jagota, as his representative.
14. The Tribunal wrote to the Applicant, care of Mr Jagota, on
    2nd September 2009, seeking further information;
    • You are invited to provide the following information in writing:
    • Information that you have vocational English as defined in regulation 1.15B, a requirement for the grant of the visa sought.[10]
15. The Tribunal’s letter sought the information by 30th September 2009.
16. The Applicant apparently sought the assistance of one Toufic Laba-Sarkis, who wrote to the Tribunal on 26th September 2009, enclosing a change of contact details form. Mr Laba-Sarkis advised the Tribunal that the Applicant had booked a further IELTS test, saying:
    • He informed me that he made a booking at Macquarie University for IELTS test on 24 October. The Tribunal was made aware that the Applicant sat for IELTS test for at least 15 times and he scored a variety of points for each band. This is the result of his psychological issues.
    • Based on the attached report and the fact that he made an appointment at Macquarie University for IELTS test, I would be grateful for a further extension of time, for six weeks from the 30th of September, to enable him to present the IELTS test results to the Department with further important information.[11]
17. Enclosed with letter was a psychosocial assessment/report dated
    7th September 2009 from one Ayman Qasem, a Mental Health Social Worker. The report recommended:
    1. That the Applicant be given an extension until 30th September 2009 to submit an IELTS test result and even a six month adjournment; and
    2. That the Applicant be given “exceptional understanding while under taking any further IELTS tests due to his conditions to enable him to utilise his performance in a better conduct.[12]
18. The Applicant also provided a document entitled Client Informed Consent/Client Counselling Contract, showing that he was to receive counselling from a social worker named Lisa Laba-Sarkis.[13]
19. The Tribunal replied in a letter of 30th September 2009, advising that the Applicant had been given an extension of time until 9th November 2009.
20. Mr Laba-Sarkis wrote to the Tribunal on 12th November 2009, advising that the Applicant sat for the IELTS test on 7th November and expected to receive the results on 23rd November 2009.
21. On 17th November 2009 the Tribunal wrote to Mr Laba-Sarkis, inviting the Applicant to appear at a hearing of the Tribunal on 5th January 2010. The Applicant completed a Response to Hearing Invitation, advising that he wished to take part in the hearing and would require the services of an Arabic/Egyptian interpreter.
22. Mr Laba-Sarkis wrote to the Tribunal on 3rd January 2010, advising that the Applicant had been unsuccessful in scoring the required points in the IELTS test. He went on to say:
    • Based on the above the Applicant is terribly upset as a result of the failure in the IELTS test and he asked me to ask the Tribunal to take into consideration the effect of depression which made him too confused and stressed.[14]
23. He provided copies of various certificates of attainment and IELTS test result forms from previous tests. The result from the test conducted on 7th November 2009 showed that the Applicant had received the following band scores:
    1. Listening 5.0
    2. Reading 4.5
    100. Writing 5.0
    4. Speaking 5.5[15]
24. The Applicant attended the Tribunal hearing on 5th January 2010. He was provided with the services of an interpreter in the Arabic language.[16]

The Migration Review Tribunal Decision

25. The Tribunal made its decision on 7th January 2010. The Tribunal affirmed the decision not to grant the Applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa.
26. In the Decision Record, the Tribunal set out, under the heading Claims and Evidence, the material from the Applicant’s visa application file. It also referred to its letter to the Applicant of 2nd September 2009 requesting additional information and the subsequent correspondence from Mr Laba-Sarkis on the Applicant’s behalf.
27. The Tribunal recorded that the Applicant appeared at the hearing on 5th January 2010 and asked for a further opportunity to qualify at an IELTS test. The Tribunal had declined this request, giving these reasons:
    • The Tribunal said that as the Applicant made the visa application more than 2 years ago, he had had sufficient opportunity to demonstrate that he has vocational English.[17]
28. The Applicant pointed to the results he had received in other courses and stated that he had sat for 15 or 16 IELTS tests. He referred to the counsellor’s report and asked for one further opportunity. The Tribunal declined, saying:
    • The Tribunal said it had given the Applicant the opportunity to sit 2 further tests on 24 October and 7 November 2009 and had considered all the information, including the report from the counsellor but it was not inclined to grant any additional time.[18]

The Tribunal’s Findings and Reasons

29. The Tribunal described the issue in the case as whether the Applicant met cl.880.223, noting that he had undergone IELTS tests on at least
    15 occasions during the processing of the visa application. He had not achieved an overall score of 5.0 in any of them.
30. Accordingly, the Tribunal found that the Applicant did not have vocational English as defined in r.1.15B(3), as it was not satisfied that he had achieved a score of at least 5 for each of the 4 test components in a test conducted not more than 12 months before the day on which the visa application was lodged or during the processing of the application. The Tribunal was not satisfied that the Applicant had vocational English and therefore did not meet the requirements of cl.880.223.
31. The Tribunal affirmed the decision not to grant the Applicant a Skilled Overseas Student (Residence) (Class DD) visa.

Application for Judicial Review

32. The Applicant filed his application and affidavit in support on 1st February 2010. The Minister filed a response on 12th February 2010, asserting that the application for judicial review did not establish any jurisdictional error in the Tribunal decision.
33. On 19th April 2010 the Applicant filed an affidavit, attaching a transcript of the Tribunal hearing. The affidavit states that it was sworn on 16th May 2010 but bears a stamp showing that it was filed on 19th April 2010. The Applicant pointed out in his affidavit that, even though an interpreter was present, he conducted the hearing in English. He asked the Court to look at his original IELTS test results and take into account what he described as “the Medical Report on pages 84-85 of the Court Book”[19] as well as pages 87-88[20] to establish that his psychological condition affected his results.[21]
34. The affidavit refers to a number of factual matters and contains a submission at paragraphs [7] and [8] that the Tribunal ignored the Applicant’s academic achievements in Australia and failed to accept that he was proficient in English at not less than the standard required by Subregulation 1.15B(3).
35. The Minister filed a written outline of submissions on 24th May 2010.
36. The Applicant attended Court on the day of the hearing and said that he relied on the affidavit filed on 19th April together with the attached transcript. He asked the Court to read both documents. He did not wish to make any further oral submissions except to say that the delegate’s decision of 26th November 2008 refusing to grant him a visa was wrong.

Submissions and Evidence

37. The Applicant’s submissions are contained in his affidavit. In paragraph [7] of that affidavit he refers the Court to Subregulation 1.15B(4) which states:
    • Of a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if:
      • (a) the person does not have an IELTS test score in a test conducted:
        • (i) not more than 12 months before the day on which the application was lodged; or
        • (ii) during the processing of the application; and
    • (b) the Minister:
      • (i) determines that it is not reasonably practicable, or not necessary, for the person to be tested using the IELTS test; and
      • (ii) is satisfied that the person is proficient in English to a standard that is not less than the standard required under subregulation (3).
38. The Applicant submits that the Court should find that the Tribunal ignored his academic achievements and failed to accept him as a person of proficiency in English to a standard not less than that required by subregulation (3). He claims that during his time in Australia, from 2004 to date, he has never had a problem with the English language and has successfully completed various courses. His submission is that the IELTS test should no longer apply to him because of his successful completion of those courses, including:
    1. Intensive IELTS Preparation Course; and
    2. Certificate II in English for Speakers of Other Languages.
39. Counsel for the Minister, Mr Tynan, submitted that:
    1. The words “in a test” in r.1.15B(3) refer to scores being obtained in a test means scores obtained in a particular test and that an applicant cannot “mix and match” scores obtained in various tests to accumulate sufficient scores (see Hadiuzzaman v Minister for Immigration[22] at [42]; Bodruddaza v Minister for Immigration and Multicultural Affairs[23] at [73]-[74]);
    2. As the Applicant had received the results of numerous IELTS tests completed during the process of his visa application, the Tribunal correctly determined that subregulation 1.15B(4) did not apply and therefore did not have a discretion to consider waiving the requirement that the Applicant undergo an IELTS test and find that he was proficient in English to the required level;
    100. The Tribunal did take the report of Mr Qasem into account and granted the Applicant further time to sit an IELTS test; and
    4. The Applicant’s Ground 5, that the definition of vocational English is wrong, is not a proper ground of review.

Conclusions

40. The Applicant relies in his application on five grounds of review.
41. Ground 1 states:
    • The Tribunal ignored particulars of numerous IELTS tests undertaken where on various occasions scores were achieved but not in one go.
42. This ground cannot succeed. It is clear, in my view, that the words “an IELTS test score of at least 5 of each of the 4 test components of speaking, reading, writing and listening in a test...” refer to a score obtained in a particular single test and not a combination of tests. As McInnis FM held in Hadiuzzaman v Minister for Immigration[24]:
    • I am not satisfied that the expression ‘in a test’ can be interpreted in the manner suggested by the Applicant and accept the First Respondent’s submissions that the phrase should be considered in its ordinary meaning. There is clearly a logical reason why the phrase refers to a singular test and I do not accept that it is appropriate nor consistent with the regulation to suggest that a combination of tests or a ‘mix and match’ approach is appropriate.[25]
43. The Applicant’s first ground of review fails.
44. The Applicant’s Ground 2 states:
    • The Tribunal ignored the Australian qualifications obtained and/or listed and attached to the application. They were all completed in the English language.
45. This ground suggests that the Tribunal should have considered the Application of reg.1.15B(4) to establish that the Applicant had the necessary level of English. The Applicant’s entire case concentrated on his efforts to qualify at an IELTS test, and the Tribunal correctly considered that reg.1.15B(4) did not apply. The Tribunal stated in its findings and reasons:
    • As the applicant has an IELTS test score in a test conducted during the processing of the application the exercise of the discretion in r. 1.15B(4) cannot be considered.[26]
46. Therefore, as counsel for the Minister submitted, the other information was irrelevant.
47. The Applicant’s second ground of review fails.
48. The Applicant’s ground 3 states:
    • The Applicant demonstrated ability to communicate and respond to the Tribunal in English at vocational level without using the interpreter and such was not acknowledged in the decision.
49. This is essentially the same argument as in the Applicant’s second ground of review, and it fails for the same reasons.
50. The Applicant’s ground 4 states:
    • The Tribunal ignored the depression suffered by the Applicant which affected his IELTS results.
51. The Applicant provided a report from Mr Qasem, who is a social worker. This report states that the Applicant was referred by his general medical practitioner for treatment of Depression and Anxiety attacks.[27]
52. The Tribunal granted the Applicant an extension of time to provide the information sought in its letter of 2nd September 2009, which indicates consideration of all the matters raised by the Applicant, including
    Mr Qasem’s report. However, it was not open to the Tribunal to find that the Applicant would have obtained a higher score in his IELTS tests if he had not been depressed and change the results accordingly. The IELTS test results spoke for themselves.
53. The Applicant’s fourth ground of review fails.
54. The Applicant’s ground 5 states:
    • The definition of vocational English is wrong as it ignores the ability of student who achieved academic level in Australia, in English language. Those particular people should be treated as having Vocational English.
55. Clearly, the Applicant feels strongly about this point. Whatever the rights and wrongs of it may be, it is not a ground of review.
56. The Applicant’s fifth ground fails.
57. The Applicant is not legally represented in this matter. An examination of the Tribunal decision and the other documents in the Court Book does not reveal an arguable jurisdictional error. A reading of the transcript of the hearing shows that the hearing was conducted perfectly properly and the Applicant was not prevented from making his arguments to the Tribunal in support of his case.
58. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined in s.474 of the Migration Act. It is not subject to relief in the way of certiorari or mandamus, as the Applicant seeks in his application.
59. It follows that the application must be dismissed.
60. I will consider submissions on costs.

I certify that the preceding 60Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !sixtysixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 22 July 2010

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[1] International English Language Testing System
[2] See Court Book at 32
[3] Court Book at 37
[4] Court Book at 41
[5] Court Book at 45
[6] Court Book at 46
[7] Court Book at 54
[8] See Court Book at 66
[9] Ibid
[10] Court Book 78
[11] Court Book 80
[12] Court Book 85
[13] Court Book 87
[14] Court Book 97
[15] Court Book 112
[16] Court Book 120
[17] Court Book 128 at paragraph [17]
[18] Court Book 129 at [18]
[19] The Applicant was referring to the Psychosocial Assessment/Report from Ayman Qasem.
[20] The Client Informed Consent/Client Counselling Contract with Ms Lisa Laba-Sarkis
[21] Affidavit of M.R.A. Mohamad filed 19.4.2010 at paragraph [6]
[22] [2007] FMCA 1266
[23] [2007] HCA 14; (2007) 228 CLR 651; 234 ALR 114
[24] supra
[25] [2007] FMCA 1266 at [42]
[26] Court Book 129 at [21]
[27] Court Book 83