Polasani v Minister for Immigration & Anor [2012] FMCA 869

"(1) The Tribunal erred jurisdictionally by denying the applicant natural justice by making its decision on 30 December 2011 when the applicant expected a result in his IELTS test early January 2012.

(2) The Tribunal erred jurisdictionally in failing to consider that the applicant has spent 2 years studying in Australia in the English language.

(3) The Tribunal erred jurisdictionally by failing to canvass with the applicant the various other ways he could meet the English language requirement other than the IELTS test.

(4) The Tribunal breached Section 360 of the Migration Act by making the hearing nothing more than a hollow shell."

The applicant seeks the grant of injunctive relief restraining the Minister for Immigration and Citizenship and his servants and agents from implementing the alleged invalid decision. The first respondent seeks the application be dismissed and that costs follow the event.

1. The applicant was issued with a Student Subclass 572 visa on 22 July 2008. The place of issue was India. He travelled from his country of citizenship, namely India, to Australia, arriving in Australia on 25 August 2008. His Subclass 572 student visa was valid until 17 December 2010. Prior to its expiration and on 16 December 2010 the applicant applied for a further student visa.
2. Between 22 July 2008 and his application of 16 December 2010, the applicant had completed a 'Certificate III in Graphic Prepress' from the Universal Institute of Technology (UIT). The applicant's intended courses to be completed were a Diploma of Multimedia from UIT (to be completed between 5 April 2010 and 4 April 2011), and a Certificate IV in Business and a Diploma of Business from Education Access Pty Ltd (to be completed between 9 May 2011 and 9 May 2012).
3. In support of his application for a student visa, the applicant submitted a test result from the International English Language Testing System ('IELTS') and as defined in Regulation 1.03 of the Migration Regulations 1994 ('the Regulations') indicating that he achieved an overall score of 5.0 on 7 July 2007, along with certificates of completion for certain courses he had undertaken in Australia.
4. On 24 January 2011, a delegate of the first respondent refused to grant the applicant the visa he sought (on 16 December 2010) and notified him of that decision by letter of same date. The applicant then applied on 21 February 2011 to the Tribunal for review of the delegate's decision. As noted in paragraph 1 of these reasons that application for review was unsuccessful.

1. At the time the applicant lodged his visa application, the Student (Temporary)(Class TU) visa contained a number of Subclasses. The Subclass applicable to the applicant was Subclass 572 'vocational education and training sector'. The criteria to be satisfied before a Subclass 572 visa is granted is as prescribed in Part 572 of Schedule 2 to the Regulations. Specifically the applicant was required to meet the criteria in clause 572.223. It is a time-of-decision criteria. At the time of the delegate's decision on 24 January 2011 and at the time of the Tribunal's decision on 30 December 2011, cl.572.223 (1) and (2) provided:

"(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).

(2) An applicant meets the requirements of this subclause if:

(a) for an applicant who is not a person designated under regulation 2.07AO:

(i) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(iii) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant's financial capacity; or

(b) for an applicant who is a person designated under regulation 2.07AO - the Minister is satisfied that:

(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person's own or provided by a relative; and

(ii) the applicant's proficiency in English is appropriate to the proposed course of study; and

(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:

(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

1. Schedule 5A of the Regulations detailed evidentiary requirements for student visas, and relevantly provided for Subclass 572 visa applications:

"Division 2 Requirements for assessment level 4

The applicant must give evidence that one of the following applies:

(i) will not undertake an ELICOS before commencing his or her principal course; and

(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;

(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and

(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;

(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and

(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course - will undertake an ELICOS of no more than 20 weeks duration;

(d) the applicant had, less than 2 years before the date of the application:

(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:

(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii) as the holder of a student visa - successfully completed a substantial part of a course (other than a foundation course) that:

(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(iv) successfully completed a substantial part of a course that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or

(v) successfully completed a foundation course that was conducted:

(vi) successfully completed a course in foundation studies that:

(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and

(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;

(i) a level of English language proficiency that satisfies the applicant's proposed education provider; and

(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:

1. In Kamal v Minister for Immigration and Anor [2009] FMCA 238 Smith FM described the approach required to be taken by the Tribunal in its consideration of the matter as follows:

"The normal principle of construction of a decision-making power which is subject to a merits review system such as operates under the Migration Act 1958 (Cth), is that time-of-decision criteria are intended to be satisfied at time of decision by a review agency, even if they are not satisfied as at an earlier time. This is the implication, in particular, from the 'stand in the shoes' powers of the Migration Review Tribunal under s.349 of the Migration Act 1958 (Cth), as construed in the light of the long history of similar provisions modelled on s.43 of the Administrative Appeals Tribunal Act 1975 (Cth). In this context, but subject to contrary intention shown in the particular power of decision, a merits review Tribunal such as the present Tribunal is usually intended to have the function of performing completely afresh a primary power of decision, including by addressing criteria at the date of the Tribunal's decision and not as at the date of a primary decision. The Tribunal does not have only the function of receiving fresh evidence concerning satisfaction of criteria at an earlier date of decision. The structure of administrative decision-making under Commonwealth legislation allows, and is intended to allow, the persons affected by administrative decisions to be able to satisfy criteria during the period of pendency of an administrative appeal. This normal structure, and legislative intent, was recently confirmed by the High Court in Shi v Migration Agents Registration Authority (2008) 248 ALR 390, [2008] HCA 31, by Kirby J at [37], [40], [46], [54], Hayne and Heydon JJ at [99] and [101], and Kiefel J with whom Crennan J agreed at [143]."

1. Whilst the delegate determined that the applicant had provided sufficient information to satisfy the financial requirements as set out in Schedule 5A of the Regulations, the delegate determined that the applicant did not meet the English requirements of Schedule 5A. As a result the applicant undertook IELTS tests on 24 September 2011 and 5 November 2011 but only achieved Overall Band Scores of 5.0. These scores were not sufficient to satisfy the English requirement criteria for the grant of a subclass 572 visa by that method and as acknowledged by the applicant's migration agent in submissions provided to the Tribunal on behalf of the applicant at the Tribunal hearing. At the time of the Tribunal hearing, which occurred on 13 December 2011, the applicant was awaiting the results from a further IELTS test undertaken by him on 3 December 2011 and was due to take another such test on 7 January 2012. The applicant requested of the Tribunal that it delay its decision. The Tribunal responded in paragraphs 40 to 43 of its reasons of 30 December 2011 that the applicant:-

"40. Had already had 12 months since lodging his visa application in which to provide the required documents which it believed was ample opportunity. It was therefore not prepared to grant a further formal extension, however the Tribunal advised the applicant that it would not be making a decision before Monday 19 December 2011 and would consider any evidence received before that time, specifically the IELTS test result of 3 December.

1. On 18 December 2011 the Tribunal received a fax from the applicant's original agent which stated:

42. I am writing to notify the Tribunal that unfortunately Mr Srinivas Rao Polasani, review applicant, is unable to satisfy the English requirement criteria for the grant of a subclass 572 visa based on the IELTS test he took on 3 December 2011 and for which the result was published on 16 December 2011.

43. At the date of the decision the Tribunal has received no further evidence or submissions."

1. The Tribunal found the applicant had not given evidence (in accordance with the requirements in Schedule 5A of Subclass 572 and Assessment Level 4 under Schedule 5A cl.5A404 of the Regulations to which he was subject) in relation to the requisite English language proficiency. Thus, the Tribunal found the applicant did not satisfy the requirements of Schedule 2 cl.572.223(2)(a)(i).

1. The Tribunal found that the applicant had undertaken an IELTS test in July 2007 which could not be considered because the results were outdated.
2. Clause 5A404(a)(ii) of the Regulations requires that an IELTS score of at least 5.5 be achieved in a test taken less than 2 years before the visa application. The applicant failed to put before the Tribunal evidence that such a score had been achieved.
3. At the Tribunal hearing the applicant was assisted by a migration agent and an interpreter. The applicant was not denied natural justice as asserted by him. The Tribunal considered the evidence before it, including the IELTS scores achieved by the applicant in September, November and December 2011 and made a decision on such evidence. Its findings of fact in respect thereto were a matter for the Tribunal. The Tribunal considered the applicant had 'ample time' to put the requisite evidentiary material before it, the applicant having been informed by the delegate and subsequently the Tribunal of what such evidence was, which included the various options available to the applicant to demonstrate that he met the English language requirements and why it was he had not satisfied them. In Kamal v Minister for Immigration and Anor [2009] FMCA 238 at [47] Smith FM said:

"The Tribunal is under an obligation to complete a review by making a decision (see ss.348 and 349), and must follow procedures which are, inter alia_,_ "quick" (see s.353). It is not obliged to give people adjournments to allow them to procure evidence required to satisfy time-of-decision criteria, if it does not think this appropriate."

1. It is not for the Tribunal to make the applicant's case for him. The Tribunal gave to the applicant the time and opportunity to put the necessary evidence before it. It canvassed with him and his migration adviser the requirements under cl.5A404 in relation to:
   • (a) the achievement of an IELTS test result of at least 5.5 overall;
   • (b) demonstrating that he was studying an ELICOS course of no more than 20 weeks before commencing his principal course;
   • (c) the provision of transcripts to show that no more than 2 years before making the visa application he had successfully completed a substantial part of an approved Certificate IV level course.
2. The applicant was afforded procedural fairness and given considerable opportunity to make out his case. He failed to do so even though he was aware of the criteria in cl.5A404 that he was required to meet, and even though the Tribunal took into account his test results pending at the time of the hearing. The application shall be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM