FEDERAL CIRCUIT COURT OF AUSTRALIA
AHMAD v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 3157	

Catchwords: 
MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – Skilled (Residence) (Class VB) Subclass 885 visa – whether the Tribunal acted unreasonably in refusing to allow applicant further time to sit for an IELTS test that was scheduled to take place some five weeks after the hearing before the Tribunal – no jurisdictional error.	

Legislation:
Migration Act 1958 (Cth), s.353(1)
Migration Regulations 1994 (Cth), reg.1.15D	

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332	

Applicant:	Sazzad Ahmad	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	ADMINISTRATIVE APPEALS Tribunal	

File Number:	SYG 830 of 2014	

Judgment of:	Judge Manousaridis	

Hearing date:	5 November 2014	

Date of Last Submission:	2 December 2014	

Delivered at:	Sydney	

Delivered on:	27 November 2015	

REPRESENTATION
The applicant appeared in person assisted by an interpreter	

Solicitors for the Respondents:	Ms Briffa of Australian Government Solicitor	

ORDERS
(1)	The application is dismissed.
(2)	The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 830 of 2014
Sazzad Ahmad	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

ADMINISTRATIVE APPEALS Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction
1.	The applicant seeks constitutional writs directed to the second respondent (Tribunal) in relation to a decision it made to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) Subclass 885 visa (885 visa). 
2.	To have been entitled to an 885 visa, the applicant was required to satisfy the Minister that he had obtained a “qualifying score when assessed in relation to the visa” under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) (Act).  For the purposes of these reasons, however, it is not necessary to set out the legislative and regulatory scheme that give meaning to, and govern the assessment provided for under Subdivision B of Part 2 of the Act. All I need to say is that:
a)	the applicant was required to be assessed to have a qualifying score of 120 points; 
b)	to have been assessed for that score, it was necessary that the applicant have “proficient English” as that expression is defined in reg.1.15D of the Migration Regulations 1994 (Cth) (Regulations); and 
c)	in order to have “proficient English” within the meaning of reg.1.15D of the Regulations, it was necessary, among other things, that the applicant achieve, in a test conducted not more than 2 years before the day on which the applicant lodged his application for the 885 Visa, “an IELTS test score of at least 7 for each of the 4 test components of speaking, reading, writing and listening”.
3.	The Tribunal affirmed the delegate’s decision because the applicant did not have proficient English; and the applicant did not have proficient English because, although he had undertaken 15 IELTS tests, the applicant did not in any one test attain a score of a least 7 for each of the 4 test components of speaking, reading, writing, and listening.
Background
4.	The applicant applied to the Tribunal for a review of the delegate’s decision on 15 December 2013. By letter dated 24 January 2014 the Tribunal invited the applicant to appear before it on 24 February 2014 for the purpose of giving evidence and making submissions.
5.	By letter dated 21 February 2014 the applicant’s representative informed the Tribunal the applicant had an IELTS test booked for 5 April 2014, and also had a NAATI test booked for 4 April 2014.  The applicant’s representative stated:
The appeal application was lodged recently on 15 December 2013. The applicant was planning to have taken an IELTS test prior to the MRT hearing. However, as the hearing date has arrived much sooner than expected, the applicant does not yet have his suitable IELTS test result.
In August 2013, the applicant almost scored Proficient English in an IELTS test.
However, the applicant has recently been suffering from severe mental stress related to his family circumstances. His father died and subsequently his mother became very sick. Mr Ahmed has assumed the family head role. This has placed tremendous pressure on him, which has consequently affected his previous IELTS test performance.
The applicant is requesting an adjournment of the hearing decision until after the results of these tests are known.
6.	On 21 February 2014 an officer of the Tribunal informed the relevant Tribunal member of the applicant’s request for an adjournment. The Tribunal member decided the adjournment would not be granted, and that decision was communicated to the applicant’s representative. The applicant, therefore, appeared before the Tribunal on 24 February 2014. 
7.	At the hearing, the Tribunal asked the applicant questions in relation to his application to be given further time to complete the IELTS test he had booked for 5 April 2014. The applicant explained that it was his family matters that had previously affected his IELTS test performance. The applicant said his mother was unwell and his wife was looking after her. He said that, because he was the only son of the family, he was responsible for taking care of his mother, and he wanted to stay in Australia so he could earn money to do that. The applicant submitted he believed that the outcome of the IELTS test he had booked for 5 April 2014 “would be different because it would be his last chance”.
Tribunal’s decision
8.	The Tribunal decided not to allow the applicant further time to sit for the IELTS test the applicant had booked for 5 April 2014. The Tribunal noted there was no indication that the conditions the applicant claimed explained why he had previously not scored 7 for each of the 4 test components, namely, the death of the applicant’s father in 2010 and the sickness of the applicant’s mother, would change in the near future. The Tribunal noted that the applicant said “he thought this time would be different because it would be his last chance”;  but the Tribunal did not consider that was a reason for granting further time.
9.	Further, the Tribunal noted the applicant had not attempted a further IELTS test since he was notified of his last IELTS test result. The Tribunal noted the applicant had “3 months in which to undertake another language test since the visa refusal . . . during which time there have been a number of IELTS test dates, but he does not appear to have booked an IELTS test until 20 February 2014”. The applicant was on notice at the end of January 2014 that the Tribunal’s hearing was scheduled for 24 February 2014, but took no steps at that time to book an IELTS test.
10.	There being no evidence that the applicant had achieved an IELTS test score of at least 7 for each of the 4 test components of speaking, reading, writing, and listening, the Tribunal could not be satisfied that the applicant had proficient English. That meant the applicant could not achieve the overall score that was necessary for him to be granted an 885 visa.
Grounds of application
11.	The application contains the following grounds of review:
1.	The Tribunal made an error in deciding the fate of the application not considering the totality of the case.
2.	The Tribunal made an error not providing the applicant a reasonable time to complete his IELTS.
3.	The Tribunal failed to attain [sic] procedural fairness to conclude the decision.
12.	At the hearing before me, the applicant handed up written submissions. In addition, and at my invitation, the applicant made submissions in relation to each of the grounds stated in the application. At the conclusion of the hearing, however, the applicant requested that he be given an opportunity to provide written submissions in response to the written submissions on which the Minister relied. I made directions permitting the applicant to file written submissions, and the Minister to respond to such submissions. Both the applicant and the Minister filed post hearing submissions.
13.	In these reasons, I will address each of the grounds stated in the application by reference to the oral submissions the applicant made at the hearing and his post hearing submissions. I will separately address the written submissions the applicant handed up during the hearing.
Ground 1
14.	It would be convenient to consider this ground by first recording the Minister’s submission that ground 1 is a mere assertion which, without any particulars to make it meaningful, cannot succeed.
15.	In his post hearing submission, the applicant responded to the Minister’s submission by submitting he has lived in Australia for over a decade and, for that reason, it will be hard for him to get used to living in Bangladesh again. He also submitted that his life will be even harder, given he is the only person in his family earning money. This is, in substance, what the applicant submitted before me in relation to ground 1.
16.	Ground 1, considered alone, does not identify any jurisdictional error. Nor do the matters the applicant identified in his post hearing submission. Those submissions imply that the Tribunal was obliged to consider the applicant’s circumstances if he were required to return to Bangladesh, given that the applicant had lived in Australia for over a decade. The Tribunal, however, was under no such obligation. Its obligation was to determine whether the applicant satisfied the criteria for the granting of an 885 visa. What is likely to occur to the applicant if he returns to Bangladesh was not relevant to whether the applicant satisfied those criteria. For these reasons, ground 1 fails.
Ground 2
17.	In substance, this ground claims the Tribunal acted unreasonably in refusing to permit the applicant time to sit for the IELTS test he had booked for 5 April 2014.
18.	The Tribunal was under a duty to act reasonably in considering whether it should allow the applicant time to sit for the IELTS test he booked. Whether its decision not to give the applicant further time was unreasonable depends on whether the Tribunal’s decision was based on “an evident and intelligible justification”, and whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. 
19.	In his post hearing submissions, the applicant submitted:
a)	his having attempted the IELTS test 15 times indicates how serious he was, and that he had scored at least 7 in each of the test components, although not in any one test;
b)	the Tribunal’s noting it did not appear that the applicant’s mother’s ill-health would change in the near future was unreasonable because the applicant asked himself how the Tribunal could see the future given the improvement that medical science had shown around the world;
c)	the applicant’s mother is now in better health, which is reflected in the applicant’s NAATI test results; 
d)	the Tribunal was “pre decisive”; the Tribunal repeatedly noted the applicant did not sit for the IELTS test for a particular period, yet during the hearing the applicant never mentioned to the Tribunal that he gave up trying to pass IELTS tests; and his financial situation did not permit him to book a fresh IELTS test sooner than he did; and
e)	the applicant has proved his ability to “be a “GOOD USER” in many IELTS tests according to handout page no.106”.
20.	With one possible exception, these submissions go to the merits of whether the Tribunal should have granted the applicant the time he requested to sit for the IELTS test he had booked on 5 April 2014. That, however, is not the question I am required to consider; the question is whether the Tribunal acted unreasonably in not granting the applicant the time he requested. 
21.	The one possible exception is the applicant’s submission I have set out in paragraph 19(d) of these reasons. The effect of that submission is that, in giving weight to the applicant’s not having sat for an IELTS test for three months, the Tribunal did not consider, or acted unreasonably in also not giving weight to, the applicant’s financial circumstances. 
22.	It is true the Tribunal did not refer to the financial circumstances of the applicant when it noted the applicant had not booked an IELTS test until 20 February 2014. There is no evidence, however, that the applicant gave his financial circumstances as a reason for his not having booked a further test before 20 February 2014. The Tribunal only records that the reason the applicant gave for his not having booked an IELTS test earlier than 20 February 2014 was that the hearing before the Tribunal had been scheduled much earlier that he had anticipated, so he did not have a chance to undertake a test; and, he had returned to Bangladesh to visit his mother.
23.	At the hearing before me, the substance of the submission the applicant made in relation to this ground was that the Tribunal acted unreasonably in not allowing the applicant a few weeks to undertake the IELTS test, given the length of time the applicant has been living in Australia.
24.	In my opinion, the Tribunal gave an “an evident and intelligible justification” for not allowing the applicant further time to sit for another IELTS test. It was open to the Tribunal to accept the applicant’s explanation for his not having scored at least 7 for each of the 4 test components, namely, his mother’s being sick since the applicant’s father’s death in 2010, and to find there was no indication those circumstances would change in the near future. It was also open to the Tribunal to regard as relevant the applicant’s not having applied for an IELTS test between November 2013 and 20 February 2014. The applicant’s not having applied for an IELTS test for three months is relevant to the applicant’s willingness to pursue his application for review in a timely manner. That, in turn, is relevant to the public interest in the Tribunal reviewing decisions in a manner that is “fair, just, economical, informal and quick”. Further, the Tribunal’s decision not to allow the applicant further time was one that fell within a range of possible, acceptable outcomes.
25.	For these reasons, ground 2 of the application does not succeed.
Ground 3
26.	As with ground 1, it would be convenient to begin by noting the Minister’s submission that ground 3 is a mere assertion which, without any particulars to make it meaningful, cannot succeed.
27.	In his post hearing submissions, the applicant responded to this part of the Minister’s submissions by submitting that during the hearing before the Tribunal the applicant asked the Tribunal several times to allow him to sit an IELTS test for the last time. The Tribunal’s decision not to allow him to do so was unfair, given that the IELTS test the applicant had booked was to take place on 5 April 2014, and that the applicant has been living in Australia for about thirteen years. Before me, the applicant submitted he was not given procedural fairness because he asked for only a few weeks, not years, to attempt only one more IELTS. 
28.	Ground 3, and the submissions the applicant made in support of it, challenge the merits of the Tribunal’s decision not to grant the applicant further time. As I have already noted, the relevant question I have to decide is whether the Tribunal acted reasonably in deciding not to grant the applicant further time. For the reasons I have given, the Tribunal did not act unreasonably, and therefore, ground 3 of the application does not succeed.
Other submissions
29.	In the written submission the applicant handed to me at the hearing, the applicant submitted as follows:
5. I have tried a number of occasions in obtaining 7 in each band of IELTS test. However, I failed to obtain the above result due to some unavoidable circumstances surrounding in my family members, particularly my father passed away and my mother became very sick and she was hospitalised for 3 occasions, which affected my ability in obtaining a good result.
6. The second respondent plainly rejected my request without any basis ensuring the obligation lies on the Tribunal. As such I was deprived of in attending procedural fairness.
7. I believe, if the Tribunal would provide me with an opportunity to sit for that particular IELTS test, I could obtain expected result to pass my point test. At that time, I was seriously adamant for that result and mentally I was prepared for it.
30.	I do not accept the applicant’s submission that the Tribunal had no basis for rejecting the applicant’s request for time to undertake the further IELTS test. As I have already found, the Tribunal’s decision not to give the applicant the time he requested was based on an evident and intelligible justification, and was one that fell within a range of possible, acceptable outcomes.
31.	There is one final matter to note. In his written submissions, the Minister submitted there was no pattern of improvement in the applicant’s IELTS test results. During the hearing before me, the applicant submitted his results were improving. The Tribunal, however, does not appear to have relied on the applicant’s IELTS results exhibiting or failing to exhibit any pattern of improvement. For what it is worth, IELTS results that are in evidence before me do not reflect any obvious pattern one way or the other.
Conclusion and disposition
32.	The Tribunal made no jurisdictional error by deciding not to allow the applicant further time to sit for the IELTS test the applicant booked for 5 April 2014. I sympathise with the applicant. He has attempted the IELTS test many times, he has obtained at some time a score for 7 for each of the test components, and, on one occasion, he fell short only by 0.5 in one of the four test components. Unfortunately, the sympathy I feel for the applicant cannot translate into my concluding the Tribunal made a jurisdictional error.
33.	I propose, therefore, to dismiss the application. I will order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent. I will hear the parties on costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:  

Date:  27 November 2015