Manna & Anor v Minister for Immigration & Anor [2012] FMCA 28

1. In order to grant a subclass 485 visa, the Minister must be satisfied that the applicant meets the requirements set out in Pt.485 of Sch.2 to the Migration Regulations 1994 (Cth) ("the Regulations"). It was a criterion for the grant of the skilled visa that the Minister be satisfied that at the time of application:
   1. The applicant's nominated skilled occupation is in the Australian Standard Classification of Occupations ("ASCO") Major Group IV and that the applicant has vocational English (cl.485.215(a)); or
   2. The applicant has competent English (cl.485.215(b)); or
   3. The application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl.485.215(c)).
      • [As at the relevant time.]
2. Relevantly, I note that the determination of whether an applicant possessed "competent English" was, and is now, determined by the criterion set out in reg.1.15C of the Regulations. At the time, reg.1.15C stated that a person is held to have demonstrated competent English if the person has achieved, in a test conducted not more than two years before the day on which the application was lodged, an International English Language Testing System ("IELTS") test score of at least six for each of the four test components (reg.1.15C(a)(i)), and the person holds a passport of a type specified by the Minister in an instrument in writing (reg.1.15C(b))
3. In her application form the applicant provided "Accountant" as the "Nominated Occupation" (CB 11).
4. Further, the applicant submitted documents in support of her claim including an IELTS test booking form, academic certificates and results, and Australian Federal Police Certificates (CB 19 to CB 36).

1. On 24 February and 5 May 2009, an officer of the Minister's department wrote to the applicant requesting that she provide further documents to support her application (CB 52 to CB 55). These included evidence of her Australian qualifications and her IELTS test results.
2. On 31 May 2009, the applicant emailed additional material to the Department pursuant to the above request (CB 57). The documents provided by the applicant included her academic transcripts from the Central Queensland University (CB 59 to CB 62), and copies of receipts for student visa medical examinations for herself and her spouse (CB 63). Further, on 1 June 2011, the applicant submitted her IELTS test report, as well as receipts for her and her spouse's future IELTS appointment (CB 64 to CB 68).
3. On 23 June 2009, the Minister's delegate refused the grant of a skilled visa (CB 71 to CB 78). The reason was that the delegate found that the applicant did not meet one of the criteria set out in cl.485.215, which contained the mandatory requirements for the grant of the subclass 485 visa.
4. The applicant's nominated occupation of accountant was, at the relevant time, not included in the ASCO Major Group IV, and thus the visa could not be granted under cl.485.215(a).
5. In order to be satisfied that a visa could be granted under cl.485.215(b), the delegate had to find that the applicant had "competent English". Clause 1.15C provides that an applicant possesses "competent English" if they have completed an IELTS test no more than two years before the lodgement date of the application (reg.1.15C(a)), and received a score of at least six for each of the four test components (reg.1.15C(a)(i)).
6. The IELTS test results submitted by the applicant on 1 June 2009 did not record a score of at least six in all four test components. As such, the applicant had not demonstrated a competent level of English and the delegate was not satisfied that a skilled visa could be granted in accordance with cl.485.215(b) (CB 76).
7. Whilst the applicant had registered for a future IELTS test, the delegate considered that she had "booked" at least three previous tests and had failed to, at the time of application, demonstrate a competent level of English (CB 76).
8. The delegate went on to further consider whether the applicant was eligible for a subclass 487 (skilled - regional sponsored) visa. The delegate held that the applicant did not meet all the relevant statutory requirements (cl.487.213).

1. On 23 July 2009, the applicants applied to the Tribunal for review of the delegate's decision (CB 79). On 12 April 2011, the Tribunal invited the applicants to appear before it on 9 May 2011 (CB 83).
2. On 5 May 2011, the Tribunal was contacted in writing by a solicitor on behalf of the applicants (CB 85). The solicitor requested that the Tribunal delay its determination of the application for review until after 9 July 2011 in order to allow the applicant to undertake a further IELTS test (CB 85).
3. However, the applicants did attend the hearing before the Tribunal on 9 May 2011. On this occasion, the Tribunal allowed the applicant to undertake a further IELTS test by 11 June 2011 (CB 88 and CB 96). The applicants' solicitor contacted the Tribunal in writing on 13 May 2011 and indicated that the earliest test date the applicant had been able to organise for sitting the test was 25 June 2011 (CB 88). A Tribunal officer telephoned the solicitor and advised that several IELTS test appointments were available on 11 June 2011, and that no extension of time was granted by the Tribunal member (CB 90).
4. On 16 June 2011 the Tribunal affirmed the decision of the delegate (CB 93 to CB 97), and notified the applicants in writing on 17 June 2011 (CB 91 to CB 92).
5. The Tribunal was satisfied that the applicant had been afforded adequate opportunities to undertake IELTS tests and achieve at least a score of six in the four tests. Particularly since the application had been on foot for over three years ([21] at CB 96). Further, the Tribunal noted that it allowed the applicant time to undertake another test by 11 June 2011, which the applicant failed to do. In this context the Tribunal declined to grant the applicant more time ([21] at CB 96).
6. The Tribunal considered the relevant parts of cl.485.215 and cl.485.222 when deciding the application ([22] at CB 96). (Being part of the relevant criteria to be satisfied at time of application and at time of decision respectively.)
7. Since the applicant's nominated occupation of, "accountant", was not in the Major Group IV in ASCO, the Tribunal was not satisfied that the applicant met cl.485.215(a) and cl.485.222(a) ([23] at CB 96).
8. The Tribunal next turned its mind to cl.485.215(b) and cl.485.222(b) and considered whether the applicant demonstrated "competent English" ([24] at CB 96). There was no evidence before the Tribunal that the applicant satisfied the legislative requirements in reg.1.15C(a)(i) required to prove "competent English" ([24] at CB 97). Further, the applicant gave oral evidence that she had not yet achieved at least a score of six in all four test components, despite having sat the IELTS several times previously ([24] at CB 96 and CB 24).
9. As such, the Tribunal was not satisfied that the applicant was eligible for a skilled visa under cl.485.215(b) and cl.485.222(b), as she failed to meet the statutory requirements under reg.1.15C. The Tribunal subsequently held that the applicant's spouse failed to meet cl.485.321 as a family member of the applicant had been denied a subclass 485 visa ([25] to [28] at CB 97).
10. Clause 487.213 was also contemplated by the Tribunal. The Tribunal found that the applicant did not meet the necessary statutory criteria as she was not nominated by a Territory or State government agency, nor sponsored by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen ([29] at CB 97).

1. The amended application before the Court is in the following terms:
   • "The Tribunal found (at MRT DECISION, page 5, paragraph 27), that the applicant does not meet cl. 485.215(b) and cl. 485.222(b).
   • The applicant had made arrangements to undergo a language test (IELTS) before the application was submitted. [S]o the applicant meet[s] cl. 485.215.
   • Now question is, when the applicant has to meet cl. 485.222, 'if at time of decision', then question arise, when decision will be made? [I]t is uncertain. So the applicant does not has time limit to meet cl. 485.222.
   • On this basis the Tribunal fell into jurisdictional error."

1. The applicants appeared in person before the Court. They did not require the services of any interpreter. The second applicant took the lead in making submissions. Ms K Whittemore appeared for the first respondent. Written submissions were filed by both the applicants and the solicitors for the Minister.
2. The issue raised by the amended application is whether the Tribunal's exercise of its discretion not to allow the applicant further time to sit for another IELTS test was such as to reveal jurisdictional error on its part.

1. The applicants' complaint before the Court was, in essence, that it was unreasonable and unfair in the circumstances for the Tribunal not to give the applicant more time to sit for the "next" IELTS test.
2. Some sympathy can be extended to the applicants in circumstances where they contend that the earliest date that could be arranged for the next IELTS test attempt was on 25 June 2011. Yet the Tribunal set as the latest date for this purpose 11 June 2011.
3. On its face therefore, the question arises as to whether the Tribunal exercised its discretion in an arbitrary, or capricious, manner. The applicants' submissions emphasised these elements. In this light, at the hearing, I granted leave for the parties to make further written submissions, with reference to authorities not made available for consideration at the hearing, as to the Court's approach to the exercise of the Tribunal's discretion.
4. Written submissions were subsequently made by both parties.
5. Turning first to the ground as asserted in the amended application.
6. The first part is merely a statement of fact found by the Tribunal. Without further particulars or explanation it fails to allege a reviewable error. Clause 485.215(b) and cl.485.222(b) both require the applicant to possess "competent English". The Tribunal was unable to satisfy itself that this applicant had "competent English", as she failed to meet the statutory criterion for this. Specifically reg.1.15C(a)(i) ([25] at CB 96 to [27] at CB 97).
7. The applicant failed to provide evidence that she had achieved at least a score of six in the four test components of one of her previous IELTS tests ([24] at CB 96). Further, she conceded this in oral evidence before the Tribunal ([20] and [24] at CB 96). As such, the Tribunal did not err in finding that the applicant did not meet the requirements of cl.485.215(b) and cl.485.222(b).
8. Part two of the ground of the amended application alleges that, since the applicant had made arrangements to undertake a further IELTS test, she was "eligible" under cl.485.215. I infer that the applicant asserts by this complaint that she was eligible under cl.485.215(c), which provided (at the relevant time) that a subclass 485 visa may be granted if "the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph".
9. There was no evidence before the Tribunal to support the proposition that at the time of making her application for review (23 July 2009) the applicant had organised to undergo a language test. On 5 May 2011 the applicant, through her agent, informed the Tribunal that she had booked another IELTS test, to take place on 9 July 2011 (CB 85).
10. If what the applicant means in "part" two is that she had made arrangements to sit for an IELTS test as at the time of making her application for the visa, then even if that is the case, it did not assist her before the Tribunal, nor now before the Court, as at the time of the making of the Tribunal's decision there was no evidence before the Tribunal that she had achieved the requisite IELTS score to meet the requirement of "competent English".
11. But even if the applicant had provided such evidence, it would not assist her now. As the Tribunal recognised ([9] at CB 95), if cl.485.215(c), as it then was, was met, the applicant would still need to satisfy cl.485.222 at the relevant time. That is, at the time of decision.
12. That clause required that the applicant's nominated skilled occupation needed to be in ASCO Major Group IV, with the applicant having vocational English (not the case), or the applicant having competent English as at the time of decision (equally, not the case).
13. This brings us again to the central issue before the Tribunal as to whether, at the time of decision, the applicant had provided such evidence as to her English ability relevant to the grant of the visa for which she had applied. This leads to the third part of the ground of the amended application.
14. The third part asserts that the applicant was required to have met the requirements of cl.485.222 at the time of decision. The applicant claims that this was "uncertain" as she was not informed of when the decision would be made, and thus had no time limit in which to meet the requirements set out in the clause.
15. Clause 485.222 required (at the relevant time) that if the application was accompanied with evidence that the applicant had arranged to undertake an appropriate language test then, at the time of the decision:
    • "(a) the applicant's nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or

1. The applicants' further written submissions did not address the question central to the matter for which leave was granted. Rather they repeated the complaint, and added a further assertion of bad faith on the part of the Tribunal.
2. The Minister's submissions directly, and comprehensively, addressed the question.
3. First, mirroring concerns expressed at the hearing, I agree with the Minister's submissions, and it is now trite to say so, that this Court cannot engage in merits review of the Tribunal's exercise of its discretion, and substitute a more favourable outcome for the applicant (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481).
4. The applicant had booked an IELTS test for 9 July 2011 (CB 90.7). There is evidence that she was advised by the examination authority that the earliest date that could be accommodated was 25 June 2011 (CB 88.5). The Tribunal did not give an extension beyond 11 June 2011.
5. In these circumstances another Tribunal may have granted the extension. The Court may have even been so minded if it could engage in merits review to have granted the extension in the circumstances.
6. But this is not the relevant test to be applied (see further below).
7. Second, a line of authorities going back to House v R [1936] HCA 40; (1936) 55 CLR 499 ("House") at 504-5 per Dixon, Evatt and McTiernan JJ, make it clear that there is a very high threshold to circumstances where a Court can interfere with a discretionary decision (as in the current circumstances).
8. Allowing for what their Honours said in House, as it applied to an appellate Court considering the exercise of a discretion by a "primary judge", and applying in terms of principle to this Court reviewing a Tribunal decision, then the relevant test requires the Tribunal to have acted unreasonably, or plainly unjustly, before it can be said to have failed to properly exercise its discretion.
9. Again, allowing for the comparison between an inferior and superior Court, and the Tribunal and this Court, where the discretion is on a point of practice and procedure, then "great caution" should be exercised. In SZJZY v Minister for Immigration & Citizenship [2008] FCA 280 at [10]- [11], Jessup J applied this to the review by this Court of a Tribunal decision.
10. The applicants complain that the Tribunal's action rendered uncertain the situation faced by the applicant, because the question arose as to when the Tribunal's decision would be made.
11. The Tribunal is a statutory body and its conduct is governed by the relevant legislation (the Act). There is no statutory, or other requirement, that the Tribunal notify the applicants of when it will make its decision (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 223 ALR 171 at [5] per Gleeson CJ). Nor has any case law been brought to my attention that establishes such an obligation. Rather, once the Tribunal has fulfilled its statutory obligations it is open to the Tribunal to proceed to make a decision at any time, provided it exercises any discretion as to whether to proceed to a decision in a manner that is neither arbitrary nor capricious, nor unreasonable or unjust.
12. The Tribunal proceeded in circumstances where it found that over three years had elapsed between the applicant submitting her application for the visa and the Tribunal making its decision. Therefore she was afforded more than sufficient time to achieve a satisfactory IELTS result ([21] at CB 96).
13. Further, the Tribunal allowed the applicant until 11 June 2011 to submit a further result ([20] at CB 96). The Tribunal notified the applicant on 17 May 2011, through her agent, that her request for another further extension of time was refused (CB 90). The Tribunal drew the applicants' agent's attention to the availability of IELTS tests on 11 June 2011 (CB 90), which would have allowed a result to be available for the Tribunal's consideration prior to it making its decision.
14. In deciding to refuse the applicant further time the Tribunal did not err, as it made a determination that the circumstances were not sufficient to justify the delay (see Ghori v Minister for Immigration and Citizenship [2011] FCA 759 (upheld on appeal), and [21] - [22] at CB 96).
15. The grant, or denial, of an extension of time is at the discretion of the Tribunal. The applicant does not say that the Tribunal's decision was arbitrary or capricious, but rather that it was "unfair", or made in bad faith, because the Tribunal proceeded to make its decision without any consideration of the applicant's relevant circumstances.
16. The Tribunal's decision record makes it clear that it considered the circumstances surrounding the request for an extension of time ([21] at CB 96). In the context of the applicant having submitted her application for a skilled visa over three years ago, and having had the opportunity to, and indeed taken, several language tests, the Tribunal decided, as was reasonably open to it, that it was not appropriate to delay the Tribunal's decision any further ([21] at CB 96).
17. In all therefore, there was no obligation on the Tribunal to advise the applicant as to when it would make its decision. In the context, it was reasonably open to the Tribunal to find that the applicant had been given a reasonable opportunity to meet the legislative requirement for "competent English". The applicant was put on notice of the opportunity to sit an IELTS test at a time which would have allowed her to submit an IELTS report at a time prior to the time of decision.
18. There is no obligation on the Tribunal to delay making its decision in these circumstances, particularly given the history to which it had regard. In all the circumstances the Tribunal's exercise of the discretion to proceed was not arbitrary or capricious. While it may be described as a "hard" decision, it cannot be said to be "unfair" given the applicant had ample opportunity and was on notice of the relevant issues.
19. The applicants' late complaint of "bad faith" also does not assist them in the circumstances of this case. The question of "bad faith", or a lack of "bona fides", in administrative decision making has been comprehensively considered in such authorities as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 and SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397.
20. It is not necessary for current purposes to embark on a long discussion about relevant principles. It is sufficient to say that an attack of "bad faith", as in the current case, carries with it the implication that the Tribunal member failed to make an honest and genuine attempt to exercise the discretion. It is an attack on the Tribunal member's integrity.
21. There is no evidence before the Court to sustain such a charge. In fact, the evidence is that the Tribunal did give the applicant at least one extension of time. There is no dishonesty, or a lack of genuine intent, in finding that after some years the applicant had had ample opportunity to provide evidence that she met the relevant regulatory requirement.
22. In all, from the material before the Court, the Tribunal did consider the applicant's request for additional further time to sit the test. It gave her some time, but would not give her additional time as she requested. On the material before the Court, I cannot see that the Tribunal's discretion to proceed to a decision is infected with, or results in, legal error.

1. The ground of the amended application does not succeed. Nor can I otherwise discern jurisdictional error in the Tribunal's decision. The application, as amended, is to be dismissed. I will make an order accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Nicholls FM