Ghori v Minister for Immigration and Citizenship [2011] FCA 759 (7 July 2011)

Last Updated: 7 July 2011

FEDERAL COURT OF AUSTRALIA

Ghori v Minister for Immigration and Citizenship [2011] FCA 759

Citation:		Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Appeal from:		Ghori v Minister for Immigration and Citizenship [2010] FMCA 794
Parties:		SARDAR KHAN GHORI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1500 of 2010
Judge:		PERRAM J
Date of judgment:		7 July 2011
Catchwords:		IMMIGRATION – Visas – skilled graduate visa – appeal from decision of Federal Magistrate upholding decision of the Migration Review Tribunal – English language proficiency – judicial review – whether Tribunal failed to take into account personal circumstances – whether jurisdictional error
Legislation:		Migration Act 1958 (Cth) s 358 Migration Regulations 1994 (Cth) reg 1.15C, Schedule 2 cll 485.215, 485.222
Cases cited:		Ghori v Minister for Immigration and Citizenship [2010] FMCA 794 Parmar v Minister for Immigration and Citizenship [2011] FCA 760
Date of hearing:	9 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1500 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SARDAR KHAN GHORI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	7 JULY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant 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 1500 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SARDAR KHAN GHORI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	PERRAM J
DATE:	7 JULY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This case concerns Mr Ghori’s attempts to secure the issue to him of an Australian visa. Mr Ghori is a native of India and was born in Hyderabad in 1981. Hyderabad is the capital of Andhra Pradesh which is a state on the east coast of central India. His native tongue is Urdu which is widely spoken, along with English, in Andhra Pradesh.
2. Many visas – particularly those granted for occupational purposes – require the person seeking the visa to demonstrate varying degrees of proficiency in the English language. The particular visa Mr Ghori applied for was the kind of visa issued to skilled graduates. The requirements for such visas – in particular reg 1.15C and cll 485.215 and 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) in force at the time – are of some complexity. However, there is no debate that the effect of those regulations is to require Mr Ghori to show that he had ‘competent English’. The regulations provide for an applicant to prove that he or she has ‘competent English’ by a number of means but relevantly for present purposes by achievement of a particular level of performance at a test known as the IELTS test. IELTS is an acronym for the International English Language Testing System and that system appears to be associated with, and be developed by, the British Council and Cambridge University. The test is not administered by the Department of Immigration and Citizenship but, instead, by various tertiary institutions. It is up to the visa applicant to arrange for such a test to be conducted and also to pay for it. The test has four components; one each for listening, reading, writing and speaking. The candidate is assessed on each component and a mark for each is given. An overall mark is also generated. It is apparent that the test is used not only by the Department but also by tertiary institutions, no doubt, to test the proficiency in English of those who seek to enrol.
3. The regulations require Mr Ghori to achieve a score of at least 6 in each of the four components. The evidence shows that Mr Ghori has taken the IELTS test on five occasions and has, on each occasion, fallen just short of achieving a score of 6 in each component of the test. His test results are as follows:

Date	Institution	Listening	Reading	Writing	Speaking
11 Oct 2008	Wollongong College	6.5	5.5	5.5	6.5
15 Nov 2008	University of Technology	6.0	5.5	5.5	6.0
11 July 2009	Macquarie University	7.5	5.5	4.5	6.0
23 Jan 2010	University of Technology	6.5	5.0	5.5	6.0
6 Feb 2010	University of Technology	6.5	6.0	5.5	6.0

4. A number of things may be said about these results. First, it is plain that Mr Ghori has consistently satisfied the regulations’ requirements both in relation to his listening and his speaking skills. On all five occasions he has achieved, and in one case substantially bettered, those requirements. This is consistent with his appearance before me in which he demonstrated more than enough fluency to conduct his own case: although an Urdu interpreter was provided to assist him she was not once utilised.
5. Secondly, however, it is clear that it is his reading and writing which have let him down with his achieving the requisite score of 6 only once for reading and not at all for writing. Thirdly, the amount by which he has repeatedly fallen short, particularly in reading, has been quite modest.
6. All of those matters engender, of course, a natural sympathy for Mr Ghori. That feeling is only augmented by the fact that his English appears to have been sufficient to obtain a Masters of Information Systems with Honours from the University of New England which was conferred on 10 October 2008. However, be all that as it may, the regulations require Mr Ghori to achieve a score of 6 in each component and, the short fact is, this has not occurred.
7. That being so Mr Ghori’s visa application has understandably been refused by each person who has dealt with it. The first of these was a delegate of the Minister. The second was the Migration Review Tribunal (‘the Tribunal’) to whom Mr Ghori applied for a review after the delegate’s initial refusal of the visa application. The Tribunal’s decision takes the place of the delegate’s decision.
8. Mr Ghori now seeks to set aside the Tribunal’s decision. Obviously enough, he cannot directly challenge its decision to refuse him a visa for it had no power to grant the visa unless he had first achieved a score of 6 in each component of the IELTS test and this simply had not occurred. Indeed, Mr Ghori did not pursue such an argument. His argument instead focused on the refusal by the Tribunal to grant him further time to sit yet another IELTS test.
9. The hearing before the Tribunal took place on 23 February 2010. At that time, Mr Ghori was not in possession of any results of an IELTS test which indicated that he had achieved a score of at least 6 in each of the four components. However, he had just sat such a test on 6 February 2010 (that is, about two weeks before the hearing) but had not yet received the results. The Tribunal was aware that those results would be likely to become available in the near future. It indicated therefore that it would wait before it made its decision until 9 March 2010 for the results of that test. It was understandable that the Tribunal took this course because correspondence from the University of Technology lent credence to the idea that Mr Ghori’s test results had been delayed by some form of routine quality assurance test conducted by the university on its own testing procedures.
10. During the hearing, Mr Ghori also sought, but was denied, a further extension so that he could sit another IELTS test booked for 27 March 2010.
11. He advanced detailed reasons to the Tribunal during the hearing as to why that extension should be granted. Mr Ghori’s father had died some years ago leaving his mother a widow. She had fallen ill. It had been necessary for him to return to India to tend to her and this had disrupted his studies for his final year in his Masters degree. Since he needed to return to Australia for his studies he arranged for his brother to look after his mother. His brother had not performed this task at all well, however, and Mr Ghori had therefore been obliged once more to return to India. Mr Ghori submitted to the Tribunal that it was during these times of great family anxiety and stress that he had attempted the earlier IELTS tests. The stress he was under at that time had adversely affected his performance and he had not achieved the results he needed. I infer that the tests in question are those which took place on 11 October 2008, 15 November 2008 and 11 July 2009. I do so in the case of the first two tests because Mr Ghori’s original application for a visa was made on 30 May 2008, the application for a review on 20 April 2009 and those two tests lie within that date range. I infer that the test taken 11 July 2009 falls into the same category because, for reasons to which I will shortly come, the Tribunal review process was still in train at that time.
12. On 20 October 2009, the Tribunal wrote to Mr Ghori’s migration agent and asked him to provide evidence that he had competent English and to do so by 17 November 2009. The agent replied to this request on 17 November 2009 by a facsimile, the salient features of which informed the Tribunal that:
    • an IELTS test had been booked for 6 February 2010;
    • Mr Ghori had previously done IELTS tests but had not achieved the requisite scores. However, those results were the product of the family stresses to which reference has already been made; and
    • an extension of time was sought to permit the results of the test booked for 6 February 2010 to be utilised by the Tribunal.
13. The Tribunal looked upon this request favourably. On 19 November 2009, it wrote to the migration agent indicating that it would take the results of the February test into account and scheduling a hearing for 23 February 2010.
14. Of course, by the time of the hearing on that date, Mr Ghori had sat the IELTS test booked for 6 February 2010 but his results had been unexpectedly delayed by the interposition of the University of Technology’s quality assurance processes. It was in that context that Mr Ghori then sought the further adjournment to allow him to sit another IELTS test on 27 March 2010. In the course of making that application he reiterated the matters of family stress set out above. He submitted that it was only now – that is, around 26 February 2010 – that he felt that he could perform at his best at an IELTS test. This time, however, the Tribunal was unmoved. Its record of what occurred is set out in the reasons it ultimately gave for refusing Mr Ghori’s visa application. It said:

The Tribunal noted the visa application was made on 30 May 2008, that the review application was made on 21 April 2009 and that in November 2009, the Tribunal had allowed the applicant to sit a further test on 6 February 2010. The Tribunal said in these circumstances it was only prepared to wait until 9 March 2010 for the applicant to provide the results of the 6 February 2010 IELTS test.

15. The hearing concluded on 23 February 2010. By 8 March 2010, as expected, the results of the February test had become available but, as set out above, Mr Ghori narrowly failed to get a score of 6 in one of four categories and hence could not demonstrate he had ‘competent English’.
16. On 8 March 2010, Mr Ghori’s migration agent sent an urgent fax providing the IELTS results from the February test and indicating that Mr Ghori had lodged an appeal for review of his score of 5.5 in the writing component. The fax added:

In that regard, further time of six weeks is requested for Mr Ghori to provide the evidence requested by the [Tribunal].

17. Of course, no evidence had been requested by the Tribunal. A telephone conversation between the migration agent and an employee of the Tribunal ensued. The Tribunal’s record of the discussion reads (in part):

The Presiding Member has considered her [sic] request and asked me to inform that the decision will be made on the available evidence.

18. The Tribunal itself recorded the same decision in its reasons at [27]:

The applicant’s representative requested further time of 6 weeks to allow the processing of an appeal. The Tribunal informed the representative that it would make the decision on the available evidence.

19. The eventual decision of the Tribunal was, as already noted, that the delegate’s decision to refuse the visa should be affirmed. Inevitably its reasoning was that Mr Ghori had not demonstrated that he had ‘competent English’ since he had not obtained a score of 6 or more on each component of the IELTS test.
20. Mr Ghori then sought judicial review of the Tribunal’s decision before the Federal Magistrates Court: Ghori v Minister for Immigration and Citizenship [2010] FMC 794. He advanced a number of arguments before the learned Federal Magistrate of which only one remains relevant. He argued that the Tribunal should have permitted him sufficient time to sit the test on 27 March 2010 and in not doing so it had failed to take into account his personal circumstances.
21. The learned Federal Magistrate was disinclined to accept this argument for a number of reasons. Her Honour’s principal reason was that, contrary to the submission, the Tribunal had in fact considered his personal circumstances. Further, her Honour’s view was that the circumstances of Mr Ghori having once sought and obtained an extension rendered it impossible to say that the refusal of a further extension was an unreasonable one.
22. From that decision Mr Ghori now appeals. I agree, with respect, with her Honour’s conclusions which are plainly correct. It is clear that the Tribunal did take into account Mr Ghori’s personal situation as the passages above show. He put his personal circumstances to the Tribunal at the hearing on 23 February 2010. The Tribunal explicitly recited them in its reasons. It is true that when it declined to accede to his further application for more time on 8 March 2010 it did not explicitly repeat those reasons. However, I am more than prepared to infer that the Tribunal refused the second application for the same reason as it had refused the first application made at the hearing, namely, that it did not accept that the family circumstances were sufficient to justify further delay. This is particularly so in light of the fact that the Tribunal had agreed to the 6 February 2010 test on the basis that this was necessary because Mr Ghori had been suffering from family stress whilst doing his earlier tests. It is equally plain that it was reasonable for the Tribunal, in light of Mr Ghori’s past applications for extensions of time, eventually to put an end to the review process. I would add that the ostensible reason advanced for the extension on 8 March 2010 was the need to pursue an appeal from the February test results. There was nothing before the Federal Magistrate which indicated that that appeal had been successful. This is important because it means that even if some complaint could be made about the decision made on that day, it could not go anywhere for it is not shown that Mr Ghori’s position viz à viz his test results would have been any different.
23. Before me Mr Ghori put two further arguments. The first was based on s 358 of the Migration Act 1958 (Cth). That provision permits an applicant for a review to give to the Tribunal ‘a written statement in relation to any matter of fact the applicant wishes the Tribunal to consider’. I do not think this assists Mr Ghori. He did not seek to put such a statement before the Tribunal.
24. The second argument was that the Tribunal had failed to give reasons for its decision not to accede to his application for a six week postponement made on 8 March 2010.
25. I do not think that this argument can succeed because the Tribunal was merely refusing an application which it had refused once already. Mr Ghori had asked the Tribunal to adjourn the matter on 23 February 2010 so he could sit a further test on 27 March 2010 and had done so on the basis of his family situation. The Tribunal had refused that request and gave brief oral reasons for doing so. When thereafter he asked for a further six weeks the Tribunal was not obliged to repeat what it had already said. I did not apprehend that Mr Ghori put an argument that the adjournment was sought to facilitate an appeal on his test results (no doubt because the outcome of the appeal was not in evidence). Treating his argument as instead that he sought further time to pursue another IELTS test (as I apprehend he put it) the problem is that that application had already been refused and the Tribunal did not need to give the same reasons a second time. Even if Mr Ghori were to put a case that no reasons were given for not permitting further time to allow the test appeal to be pursued this argument is empty without knowing how that appeal was ultimately disposed of. I make no remark as to (a) whether the Tribunal was under any obligation to produce reasons for the second decision; or (b) whether, if there was such an obligation, a breach of it constituted jurisdictional error. It follows that the appeal should be dismissed.
26. Mr Ghori’s case in this Court was heard on 9 February 2011 and the decision reserved on the same day. Subsequently, on 11 February 2011, a question was raised in another, similar, matter before me as to the validity, or alternatively the exhaustive nature, of the definition of ‘competent English’ as set out in reg 1.15C(a)(i) of the Migration Regulations: Parmar v Minister for Immigration and Citizenship [2011] FCA 760. I heard submissions on that issue on 11 May 2011 in that case. Although this was not a question of law raised by Mr Ghori, the potential for the outcome of that legal dispute to affect Mr Ghori’s case lead me to reserve judgment in this matter until judgment was given in Parmar. In that decision, I concluded at [35] that the challenge made in Parmar to the regulations failed.
27. In all of those circumstances, the appeal must be dismissed with costs.
    

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 7 July 2011