Yasmin v Minister for Immigration and Citizenship [2010] FCA 1339 (8 December 2010)

Last Updated: 8 December 2010

FEDERAL COURT OF AUSTRALIA

Yasmin v Minister for Immigration and Citizenship [2010] FCA 1339

Citation:		Yasmin v Minister for Immigration and Citizenship [2010] FCA 1339
Appeal from:		Application for leave to appeal: Yasmin v Minister for Immigration & Anor (No 2) [2010] FMCA 557
Parties:		NELUFA YASMIN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 984 of 2010
Judge:		LANDER J
Date of judgment:		8 December 2010
Catchwords:		MIGRATION – Skilled Student visa – leave to appeal from Federal Magistrate – whether Federal Magistrates Court proceeding should be reinstated – whether appellant has an arguable case on the principal application – whether appellant complied with reg 1.15B of the Migration Regulations 1994 (Cth) requiring vocational English – whether exceptional circumstances relevant to determination of compliance with reg 1.15B. Held: Leave to appeal refused – no arguable case established.
Legislation:		Migration Regulations 1994 (Cth) Sch 2 cl 880.223, reg 1.15B Federal Magistrates Court Rules 2001 r 13.03C(1)(c)
Date of hearing:	2 November 2010
Place:	Adelaide (heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	48
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms B Rayment
Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 984 of 2010

BETWEEN:	NELUFA YASMIN Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	8 DECEMBER 2010
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 984 of 2010

BETWEEN:	NELUFA YASMIN Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	LANDER J
DATE:	8 DECEMBER 2010
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a judgment of a Federal Magistrate given on 21 July 2010 dismissing the applicant’s application to reinstate her originating application which had previously been dismissed and for a hearing on the merits.
2. The order appealed from is interlocutory and leave is therefore required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
3. On 17 August 2007 the applicant applied to the Department of Immigration and Citizenship (the Department) for a Skilled-Independent Overseas Student (Residence) (Class DD) visa.
4. On 20 October 2008 a delegate of the Minister refused to grant the visa. The application was refused on the ground that the applicant did not satisfy clause 880.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) in that the applicant did not have vocational English as defined by reg 1.15B of the Regulations.
5. On 31 October 2008 the applicant applied to the Migration Review Tribunal (the Tribunal) for a review of the delegate’s decision.
6. The Tribunal accepted that the delegate’s decision was an MRT-reviewable decision under s 338(2) of the Migration Act 1958 (Cth) (the Act) and that the applicant had made a valid application for review under s 347 of the Act.
7. The Tribunal addressed clause 880.223 which requires that the applicant have “vocational English” which is defined in reg 1.15B of the Regulations. At the relevant time reg 1.15B provided for a visa application which was lodged after 1 July 1999:

(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 IELTS test score of at least 5 for each of the four 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 process of the application.

(4) 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:

(a) the person does not have an IELTS 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).

8. The application for review was lodged on 31 October 2008. On 26 August 2009, prior to the applicant appearing before the Tribunal, the Tribunal wrote to the applicant and invited her to provide evidence that she had vocational English as defined in reg 1.15B of the Regulations.
9. On 8 September 2009 the applicant responded to the Tribunal’s invitation advising that she had made a booking to undertake an IELTS test on 5 December 2009 and asking the Tribunal to allow her the opportunity to take the test.
10. On 6 October 2009 the applicant appeared before the Tribunal for the purpose of giving evidence and putting submissions.
11. The Tribunal noted that the applicant was a citizen of Bangladesh, aged 27, who had arrived in Australia on 29 August 2002 and who had held a series of Student visas since that time. She had attended the Sydney International College of Business (SICB) and completed a Diploma of Hospitality – Management and a Certificate III in Hospitality – Commercial Cookery on 18 June 2007. On 10 August 2007 she was assessed by Trades Recognition Australia as a cook.
12. At her hearing the applicant advised the Tribunal that she had been unable to achieve the necessary scores in all components of the IELTS test to that point of time but had made a booking to undertake a further test on 5 December 2009. She claimed that previous family disputes had impacted on her ability to study and succeed in her IELTS test. She said that she had undertaken IELTS tests on 3 November 2007, 19 January 2008 and 11 July 2009. In her last test she had achieved a score of 4.5 for listening; 3.0 for reading; 3.0 for writing; and 6.5 for speaking.
13. She explained that her family difficulties involved her husband who had also come to Australia to undertake studies but had neglected those studies and, as a result of arguments, they had separated. She said that in 2005 she returned to Bangladesh and obtained a divorce.
14. The Tribunal agreed that the applicant should have a further opportunity to undertake the IELTS test which had been planned for 5 December 2009.
15. The Tribunal advised the applicant that should she fail to achieve the necessary test results the Tribunal would have no alternative but to affirm the delegate’s decision.
16. After 5 December 2009 the Tribunal contacted the applicant and was eventually told that she had received the IELTS test results which she undertook to send to the Tribunal.
17. On 30 December 2009 the Tribunal received the IELTS test results which showed that the applicant had achieved the following scores: Listening 3.0; Reading 3.0; Writing 4.0; and Speaking 5.5.
18. The Tribunal addressed her application and found that the applicant had not been able to achieve a result of 5.0 in all four test components on any of the four IELTS tests she had undertaken and that therefore she did not have “vocational English” as defined in reg 1.15B(3) and did not meet the criteria in clause 880.223 of Schedule 2. The Tribunal affirmed the delegate’s decision.
19. On 16 February 2010 the applicant applied in the Federal Magistrates Court for the issue of the constitutional writs seeking to quash the decision of the Tribunal and for the remission of the application to the Tribunal.
20. On 31 May 2010 the applicant’s application was dismissed pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 because the applicant failed to appear at the hearing of the proceeding which had been listed for that day.
21. On 25 June 2010 the applicant applied by interlocutory application for the reinstatement of the proceeding which had been dismissed on 31 May 2010 and for a hearing on the merits.
22. The Federal Magistrate acknowledged that the Court had not arrived at a decision on the merits and in those circumstances approached the matter by a consideration as to whether the applicant’s explanation for her non-attendance on 31 May 2010 was satisfactory or adequate, and whether “nevertheless she has an arguable case on the principal application”.
23. The proceeding had been dismissed on 31 May 2010, notwithstanding that the applicant had sent a letter to the Court that same day advising the Court that she was sick and unable to attend the hearing and inviting the Court to make a decision on the basis of her written submissions. In that letter she enclosed a medical certificate dated 11 May 2010 which said that the applicant had been an in-patient at the Prince of Wales and Sydney Children’s Hospital from 7 May 2010 until 11 May 2010, and that she would be “unfit to resume duties/school for three weeks”. The medical certificate apparently related to an injury to the applicant’s arm.
24. The Federal Magistrate dismissed the proceeding because he was of the opinion that an injury to the applicant’s arm would not disqualify her from attending the hearing set for that day.
25. The applicant relied on her own affidavit sworn on 26 June 2010 in support of her application to reinstate the proceeding. In that affidavit she annexed letters from the Prince of Wales Hospital which showed that she was an in-patient in that hospital between 7 May 2010 and 11 May 2010 as a result of an injury to the head of her right radius. A medical certificate of 28 May 2010 stated that she would need to be an out-patient of that hospital from 25 May 2010 and would be unfit to resume duties for six weeks.
26. She said at the hearing of her application to reinstate the proceeding that she did not attend Court because she was worried about the injury to her right hand and worried that if she travelled by bus, which was her only transport, she might suffer an additional injury.
27. The Federal Magistrate accepted that the applicant had provided a reasonable explanation for her non-attendance on 31 May 2010. The Minister did not argue otherwise.
28. The Federal Magistrate then addressed the question whether the applicant had an arguable case for the relief claimed in her application and, to that end, he enquired into the question whether the Tribunal’s decision was affected by jurisdictional error.
29. In her original application the applicant sought review of the Tribunal’s decision on the grounds:
    1. The Migration Review Tribunal failed to provide me further time to set (sic) for next IELTS test.
       
    2. The Migration Review Tribunal failed to understand my exceptional circumstances that affected my overall IELTS performance.
       
30. The Federal Magistrate addressed the facts to which I have referred to above and then considered the two grounds.
31. The Federal Magistrate noted that the Tribunal had waited upon the applicant sitting the IELTS test on 5 December 2009 and the results of that test.
32. However, the applicant claimed that not only had she made a booking for an IELTS test on 5 December 2009 but she had also, approximately a week after having made that booking, made a booking for a further test which was scheduled to take place in March or May 2010. Apparently she did not sit for that second test because of the Tribunal’s decision. She claimed however that she had provided the Tribunal with the details of the 5 December 2009 test and also the booking details for the test scheduled in 2010.
33. The Federal Magistrate referred to a letter written by the applicant to the Tribunal dated 25 September 2009 where the applicant wrote:

Recently I have booked for another IELTS test due on 5 December 2009 ...

Unfortunately I cannot achieve required score of my IELTS test unto (sic) now. I would like to try one more time and I have already booked for IELTS test on 5 December 2009. No test available for me earlier than this date.

34. The Federal Magistrate was of the opinion that the letter of 25 September 2009 only referred to the test to be taken on 5 December 2009 and not some later test. He also noted that none of the Tribunal file notes of the telephone conversations which the Tribunal had with the applicant on 30 September 2009, 10 December 2009 or 24 December 2009 make any reference to the applicant having made a booking for a further IELTS test to take place in 2010.
35. The applicant conceded at the hearing before the Federal Magistrate that she had not raised with the Tribunal at any time after her letter of 25 September 2009 the fact that she had made a booking for a further IELTS test in 2010.
36. The Federal Magistrate rejected the first ground because he found that the applicant did not make clear to the Tribunal that she wanted the Tribunal to consider delaying its consideration of her application until she sat an IELTS test in 2010. In those circumstances he found that it was appropriate for the Tribunal to proceed to make its decision on the review application after having received the 5 December 2009 test results. Its failure to further delay its decision did not represent a miscarriage of its discretion. Nor did it represent a constructive failure to exercise jurisdiction for failing to take into account material which would have been relevant to the exercise of its jurisdiction.
37. The second ground was particularised by reference to the applicant obtaining a divorce from her husband which affected her overall progress of the IELTS test. She said in her written submissions that she had told the Tribunal that she had been harassed by her husband and subsequently obtained a divorce from him. She said she told the Tribunal that she suffered trauma because of those circumstances. She said those particular circumstances were beyond her control. She claimed that the Tribunal did not consider the circumstances when it assessed and made a decision on her review application.
38. The Federal Magistrate noted that the Tribunal took into account her particular circumstances when it delayed making its decision whilst she sat for the IELTS test on 5 December 2009.
39. He found that when the Tribunal had to come to make its decision the question of “exceptional circumstances” was not a relevant matter in determining whether or not the applicant complied with reg 1.15B. The Federal Magistrate dismissed the second ground.
40. For those reasons, the Federal Magistrate dismissed the application to reinstate the proceeding because the applicant could not establish an arguable case.
41. On this application for leave to appeal the applicant has exhibited a draft notice of appeal. That notice of appeal raises the same grounds as those addressed by the Federal Magistrate.
42. In my opinion, leave to appeal should be refused because there are no prospects of the appeal succeeding.
43. In my opinion, for the reasons given by the Federal Magistrate, the applicant’s proceeding was doomed to fail.
44. There is no evidence to support her contention that the Tribunal was ever advised that she had made a booking to sit an IELTS test some time in 2010. The evidence overwhelmingly supports the Federal Magistrate’s finding that the Tribunal was advised that she intended to sit the test on 5 December 2009 and that she requested the Tribunal to delay making its decision until such time as she had sat that test. The Tribunal acceded to her request and gave its decision only after it had been advised of the result of that test.
45. The Tribunal was aware that the applicant had divorced her husband some time in 2006. The Federal Magistrate was right to conclude, in my opinion, that the applicant’s divorce and its consequences were not a relevant consideration for determining whether or not the applicant complied with the criteria under clause 880.223 and reg 1.15B.
46. The applicant’s entitlement to a visa depended upon her establishing that she had “vocational English” as it is defined in reg 1.15B of the Regulations. When she failed to pass the IELTS test with a test score of at least 5.0 for each of the four test components of speaking, reading, writing and listening, she was unable to establish that she had vocational English and therefore unable to establish the criteria in clause 880.223.
47. The applicant appeared unrepresented on this application. She expressed a wish to be allowed to remain in Australia. She did not put any additional arguments which would support an order for leave to appeal.
48. The application for leave to appeal must be dismissed. The applicant must pay the first respondent’s costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 8 December 2010