Mohamad v Minister for Immigration and Citizenship [2010] FCA 1414

FEDERAL COURT OF AUSTRALIA

Mohamad v Minister for Immigration and Citizenship [2010] FCA 1414 Citation: Mohamad v Minister for Immigration and Citizenship [2010] FCA 1414

Appeal from: Mohamad v Minister for Immigration & Anor [2010] FMCA 539

Parties: MOEMEN RADY ABDELNAEIM MOHAMAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number: NSD 1242 of 2010

Judge: BUCHANAN J

Date of judgment: 16 December 2010

Catchwords: ADMINISTRATIVE LAW – Migration Regulations 1994 (Cth) – vocational English – achieving IELTS scores "in a test" – whether error of construction – whether jurisdictional error

Legislation: Migration Act 1958 (Cth) ss 5, 351, 367 Migration Regulations 1994 (Cth) reg 1.15B, Sch 2 cl 880.223

Cases cited: Bodruzza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

Date of hearing: 26 November 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 23

Counsel for the Appellant: The Appellant appeared in person

Counsel for the First Respondent: Mr J. King

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1242 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOEMEN RADY ABDELNAEIM MOHAMAD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 16 December 2010 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs, as taxed if not agreed. 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 1242 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOEMEN RADY ABDELNAEIM MOHAMAD

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE: 16 december 2010 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This case appears to be an unfortunate one where, as a result of the operation of the Migration Regulations 1994 (Cth) ("the Regulations"), the obvious merits of the appellant's position are foreclosed from consideration, except perhaps by the Minister personally. The question at issue on the merits is whether the appellant possesses a sufficient command of the English language. The question posed by the Regulations is whether he has "vocational English". The Regulations require that question to be answered by reference to particular test results. There seems a very real possibility in the present case that the test result process yields a false result in the case of the appellant, due to his inability to cope well with an examination environment. 2 The possibility of practical injustice was revealed starkly at the hearing of this appeal. The appellant appeared for himself, without the aid of an interpreter. He is obviously an intelligent man with a reasonable command of the English language. He had no difficulty expressing himself and reading from notes. He appeared to understand the nature and significance of discussion about the issues bearing on his case. Were it a matter for me I would have no hesitation in pronouncing him capable of speaking, reading and understanding English to an acceptable everyday level. 3 In addition, at the hearing the appellant drew my attention to the fact that he has completed a number of courses of study in Australia, all of them in English, and on each occasion received satisfactory results. On the hearing of the appeal, counsel for the Minister very fairly, and unprompted, accepted that the appellant, in a practical sense, had a reasonable grasp of the English language. 4 However, the assessment required is not one for this Court. The question on the present appeal is whether the Federal Magistrates Court of Australia ("the FMCA") was in error to conclude that the Migration Review Tribunal ("the MRT") established under the Migration Act 1958 (Cth) ("the Act") acted contrary to or outside its jurisdiction when it affirmed a decision of a delegate of the Minister to refuse the appellant's application for a further visa on 26 November 2008. 5 The underlying legal issue which requires determination in the appeal is whether the MRT had the power to conclude that the appellant had satisfied cl 880.223 of Sch 2 to the Regulations (which required that the appellant had "vocational English") or whether it was legally bound to conclude that the appellant had not satisfied cl 880.223 and was therefore ineligible for the grant of a Skilled - Independent Overseas Student (Residence) (Class DD) visa. 6 The appellant is a citizen of Egypt. He has lived in Australia for some time, having arrived on 16 August 2004 to study here. During the course of his residence in Australia he has fulfilled the requirements for General English Level 1 (22 October 2004), passed the Oral Skills 3 and Written Skills 3 modules in a Certificate II course of English for Speakers of Other Languages (22 October 2004), obtained a Certificate III in Hospitality (Commercial Cookery) (2 November 2006), a Diploma of Tourism (Operations Management) (19 April 2007), a Diploma of Hospitality Management (17 May 2007) and an Advanced Diploma of Business Management (12 June 2007). In addition he has undertaken at least one intensive International English Language Testing System ("IELTS") preparation course in March/April 2007. He appears (so far as it appears from the material before the Court) to satisfy the medical and security requirements for the grant of a visa and has been assessed as having the skills suitable for his chosen occupation of Cook by Trades Recognition Australia. 7 The critical requirement which the appellant has been unable to satisfy is to obtain a score of at least 5 in each of four test components at the same IELTS test. That is the result which would demonstrate that he has "vocational English". At the relevant time for the present appeal the appellant had undertaken IELTS tests on 15 or 16 occasions. Over the course of that testing he had achieved a score of at least 5 in each of the four components (listening, reading, writing and speaking) but he had never achieved a score of at least 5 in each of the four components at the same test. 8 The appellant made his application for a Skilled – Independent Overseas Student (Residence) (Class DD) visa on 19 June 2007. Clause 880.223 of Schedule 2 to the Migration Regulations required the appellant to have "vocational English" at the time of a decision on his application for a visa. On 26 November 2008 the visa was refused by a delegate of the Minister because the vocational English requirement had not been satisfied. No further assessment of the application was undertaken for that reason. 9 On 16 December 2008 the appellant applied to the MRT for review of the delegate's decision. A hearing took place before the MRT on 5 January 2010. At that time (and at the time of the MRT's decision) vocational English was defined in reg 1.15B as follows: 1.15B Vocational English (1) Vocational English, for a person, has the meanings given in subregulations (2), (3), (4) and (5). (2) If a person applied, before 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 is proficient in English to at least the standard required for the award of 15 points in the language skill factor of the general points test specified in Part 3 of Schedule 6. (3) If a person applies, on or after 1 July 1999, for a visa (other than a General Skilled Migration 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 IELTS 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. (4) If a person applies, on or after 1 July 1999, for a visa (other than a General Skilled Migration 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). 10 It is clear from reg. 1.15B that subreg (4) did not apply to the appellant and there was no discretion for the MRT to assess his application in a way which did not use a relevant IELTS test result. It is also clear, in my view, that subreg (3) required the necessary successful results to be obtained "in a test" – i.e. in a single test rather than being achieved by amalgamating results in multiple tests, even if all taken within the requisite period of time. In the first place that is clear as a matter of ordinary language. In any event, it is the construction of the regulation required by authority. As the written submissions for the Minister on the present appeal pointed out, in Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 the High Court considered very similar criteria for establishing English language proficiency which arose from reg 2.26A(2)(a)(iv) in combination with Pt 3 of Sch 6A to the Regulations. The High Court said (at [73]-[74]): 73 Item 6A31 fixes upon what transpired "in a test". That test must have been conducted not more than twelve months before the day on which the application is made or during the process of the application. From that test the applicant must be able to provide evidence of having achieved a score of at least six for each of the four components of that test, namely, speaking, reading, writing and listening. 74 The Minister correctly submits that the apparent objective of requiring a particular level of overall competence in the English language would not be achieved if Item 6A31 were to be satisfied by sitting the test on several occasions, concentrating on different components, until there was accumulated a sufficient collection of scores. 11 Between the date of the delegate's decision and the date of the hearing before the MRT the appellant made further attempts to pass the IELTS test in a single attempt, but without any greater success than in the past. At the hearing, the appellant was able to communicate successfully with the MRT, understand the matters put to him and respond in a way which the MRT understood. The member of the MRT who heard the applicant's application however explained to the appellant at the hearing that, in the view of the MRT, there was no discretion to depart from the requirements of the Regulations. 12 The MRT's decision was handed down on 7 January 2010. The findings and reasons, conclusion and decision of the MRT were stated as follows: FINDINGS AND REASONS 19. The issue in the present case is whether the applicant meets cl.880.223. 20. The visa applicant underwent IELTS tests on at least 15 occasions during the processing of the visa application. He did not achieve a score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in any of these tests. Therefore the Tribunal finds that the applicant has undergone IELTS tests during the processing of the application but has not achieved a score of at least 5 for each of the 4 tests components of speaking, reading, writing and listening in a test. 21. The Tribunal finds that the applicant does not have 'vocational English' as defined in r.1.15B(3), as it is not satisfied that the applicant has achieved a score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted not more than 12 months before the day on which the visa application as lodged or during the processing of the application. 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. Accordingly, as the Tribunal is not satisfied that the applicant has vocational English, he does not meet cl.880.223. CONCLUSION 22. For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.880.223. DECISION 23. The Tribunal affirms the decision not to grant the applicant a Skilled – Independent Overseas Student (Residence) (Class DD) visa. 13 On 1 February 2010 the appellant applied to the FMCA for judicial review of the decision of the MRT. The grounds of the application to the FMCA were stated as follows: 1. The Tribunal ignored particulars of numerous IELTS tests undertaken where on various occasions scores were achieved but not in one go. 2. The Tribunal ignored the Australian qualifications obtained and/or listed and attached to the application. They were all completed in English language. 3. 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. 4. The Tribunal ignored the depression suffered by the applicant which affected his IELTS results. 5. The definition of vocational English is wrong as it ignores ability of student who achieved academic level in Australia, in English language. Those particular people should be treated as having Vocational English. 14 None of those grounds identified any jurisdictional error in the decision of the MRT. It was not alleged, for example, that the MRT had misconstrued or misapplied the requirements of the Migration Regulations or made any other jurisdictional error. An affidavit sworn by the appellant which was filed in the proceedings in the FMCA did not raise a jurisdictional issue either. The affidavit relied upon the fact that the appellant had been able to communicate satisfactorily with the MRT in English, had scored a variety of results in IELTS tests which included at least one successful result in each component and had achieved the other certificates and academic results to which I earlier referred. The affidavit also attached a copy of the transcript of the hearing before the MRT. 15 On 3 September 2010 the FMCA dismissed the appellant's application for judicial review (Mohamad v Minister for Immigration & Anor [2010] FMCA 539). The FMCA considered each of the grounds relied upon by the appellant and concluded that none of them demonstrated a jurisdictional error. In particular, the FMCA concluded (at [42]) that the requisite score of at least 5 in each component had to be obtained in a single test and not in a combination of tests. For reasons given earlier, that was a correct approach. 16 In my respectful view the FMCA was correct to reject each of the grounds relied upon by the appellant. In particular the FMCA was correct to conclude that the MRT had made no error in its application of the requirements of reg 1.15B of the Regulations. Upsetting though it no doubt is for the appellant, as matters stood at the time the decision of the MRT was made the MRT was correct to conclude that it had no discretion to grant the appellant the visa which he sought. That would spell the end of any possible challenge to the decision of the FMCA, or any possible argument of jurisdictional error by the MRT, save for one further possibility which Mr King, who appeared for the Minister, very fairly drew to my attention. 17 Although the requirement to meet the requirements for vocational English must be satisfied in a single test, reg 1.15B(3)(b) accommodates the possibility that the test might be taken "during the processing of the application". The MRT therefore had some discretion to permit the appellant some time to make further attempts to obtain a satisfactory result, even after his application for review by the MRT had been lodged. The decision of the MRT makes it clear that some further time was granted for that purpose. In fact, the appellant unsuccessfully sat for a further three tests after the date of the delegate's decision; two of them after he had lodged his application for review to the MRT. At the hearing before the MRT, the appellant again sought further time. The MRT decision referred to those matters as follows: 13. The applicant's newly appointed representative sent a letter on 26 September 2009 advising that the applicant had booked another IELTS test for 24 October 2009. He requested that the applicant be allowed to sit the test. The representative stated that the applicant had at least 15 IELTS test and had scored a variety of points for each band as a result of psychological issues. The representative submitted a report from a counsellor which recommended the applicant be given an extension to submit his IELTS test results. The counsellor recommended that a six month period would enable the applicant to receive some treatment and to undertake the test when feeling better. The Tribunal granted an extension of time for the prescribed period. 14. On 12 November 2009, the applicant's representative wrote to the Tribunal requesting a further extension of time to allow the applicant to provide the results of the IELTS test he sat on 7 November 2009. The Tribunal did not grant a further extension of time but invited the applicant to appear before it on 5 January 2010. On 3 January 2010, the applicant's representative provided results of IELTS tests the applicant undertook on 9 December 2006, 19 May 2007, 16 August 2007, 6 October 2007, 15 December 2007, 19 January 2008, 23 February 2008, 19 April 2008, 31 May 2008, 12 July 2008, 9 August 2008, 27 September 2008, 6 December 2008, 24 October 2009 and 7 November 2009. He did not achieve a score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in any one of these tests. … 17. The applicant requested that he be allowed a further opportunity. 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. 18. The applicant said he had tried hard and had had no luck. The applicant pointed to the results he had achieved in his studies from 2004 to 2007. He said he had concentrated on getting the required score over the last couple of years and had sat for 15 or 16 tests. The applicant asked for one more opportunity and asked the Tribunal to consider the report from the counsellor. 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. (Emphasis added) 18 The matter which Mr King drew to my attention arises from the passage I have emphasised. Having referred to the recommendation of the counsellor that an extension be granted for six months, the MRT granted an extension from 30 September to 9 November 2009, less than six weeks. What was meant by the reference to an extension having been granted by the MRT for "the prescribed period"? Although s 367 of the Act requires certain decisions to be made within a "prescribed period" (i.e. prescribed by the Regulations – see s 5 of the Act), that section had no application in the present case. It does not appear therefore that the MRT, when it used the term "prescribed period", was referring to some limitation upon its powers. On the other hand, an alternative meaning is hard to establish. The counsellor's report was dated 7 September 2009. It was signed by Ayman Qasem. The report suggested that the appellant was at risk of "developing acute depression and anxiety disorder". It made the following recommendations: 1. That Mr Mohamad is giving an extension to the 30th Sept 2009 date that he was given to submit an IELTS test results. A six months period would be good to enable him to receive some treatment and undertaking the test when feeling better. 2. I strongly recommend that Mr Mohamad is to be given exceptional understanding while undertaking any further IELTS tests due to his conditions to enable him utilise his performance in a better conduct. 19 As I have said, the MRT did not grant an extension for six months. It allowed a much shorter time. It seems unlikely, therefore, that the reference to "an extension of time for the prescribed period" was a reference to the period recommended by the counsellor. 20 Whatever was meant by the reference to "the prescribed period" it is clear from the decision of the MRT that it gave further thought at the hearing to the appellant's request for a further extension, but decided it was not warranted. That was a decision which was clearly open to the MRT in the exercise of its discretion. There was no jurisdictional error made in that respect. There is therefore nothing on which the appellant may rely, arising out of this issue, which will assist him. 21 In fact, the appellant has, since the decision of the MRT, made even further unsuccessful attempts to secure a successful IELTS test score. That total number of attempts had become 18 by the time the appeal was heard. The appellant also had a further test booked for 11 December 2010. He sought an adjournment of his appeal to await the results of that test. However, a successful test result could not change the legal issues which I have already discussed and the adjournment was refused. 22 So far as the disposition of the appeal is concerned, no jurisdictional error in the decision of the MRT has been identified. No error in the judgment of the FMCA has been demonstrated. The appeal to this Court must be dismissed. I can see no principled reason to depart from the ordinary rule that costs should follow the result. 23 Should the appellant achieve a successful result in his latest test (or even if he does not) there may yet be one further avenue left to him. It remains open to the Minister to substitute a more favourable decision than that of the MRT even if the MRT itself had no power to make the same decision (s 351 of the Act). I was informed that it would remain open to the appellant to seek such a decision for at least 28 days after the disposition of the present appeal. The Minister cannot be compelled to give consideration to the exercise of such a discretion (s 351(7)), much less to exercise it in any particular way. It would not be appropriate to say anything more about either of these issues, although it will be obvious enough where my sympathies lie. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate: Dated: 16 December 2010