Siddique v Minister for Immigration & Border Protection

JUDGE: GILMOUR J DATE: 12 December 2014 PLACE: PERTH VIA VIDEO-LINK TO SYDNEY (HEARD IN SYDNEY)

Background 1 An order was earlier made extending time for filing an application for leave to appeal. The application then is for an order for leave to appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (Tribunal) that affirmed a decision of a delegate of the first respondent (Minister), then the Minister for Immigration and Citizenship, refusing to grant the applicant a visa. The court below dismissed the proceedings summarily pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCCR). 2 However, the parties were content for the substantive appeal to be determined were leave to appeal granted. There was accordingly full argument on the merits of the appeal.

Relevant facts 3 On 25 June 2010, the applicant applied for a Skilled (Residence) (Class VB) visa. 4 On 13 July 2010 his solicitors lodged further documents in support of that application including a certified copy of the results of an International English Language Testing System (IELTS) exam, which were insufficient for the applicant to meet the relevant criteria for the grant of the visa. The solicitors noted that the "applicant will pass the point test when he achieves proficient English and passes the [National Accreditation Authority for Translators and Interpreters (NAATI)] test". 5 Three years later, on 6 August 2013, the delegate of the Minister refused to grant the visa because the applicant did not meet the points test relevantly on account of the language score. 6 On 21 August 2013, the applicant applied to the Tribunal for review. 7 On 30 October 2013, the applicant was invited to a hearing before the Tribunal which invitation he accepted. 8 At the conclusion of the hearing on 14 November 2013 the applicant asked the Tribunal to adjourn the hearing until July 2014 to enable him to provide evidence of obtaining the requisite English language ability scores. The Tribunal refused to do that, but agreed that it would await the outcome of the English language test which the applicant was booked to take on 7 December 2013 and it did that. The applicant still failed to obtain the necessary language ability scores, despite this indulgence. 9 By letter dated 27 December 2013 sent by facsimile on 2 January 2014, the applicant reiterated the request for an extension of time. This was refused. 10 The Tribunal in early January 2014 affirmed the decision of the delegate. This was relevantly because the applicant did not have evidence of his achieving the requisite IELTS and NAATI examination results to obtain the points he needed. By that time, the applicant had undertaken the IELTS test "12, 13 or maybe even 15 times". 11 The challenge to the Tribunal's decision concerns its refusal to grant the adjournment sought by the applicant to sit IELTS and NAATI tests that he had booked, which inevitably led to the Tribunal affirming the decision under review. The predominant reason for refusing the adjournment, it seems, was that the Tribunal considered that he has had ample opportunity to attempt the test and achieve the necessary score (at [17]). 12 The applicant subsequently applied to the court below for judicial review, which application was rejected summarily pursuant to r 44.12 of the FCCR. It is this decision that is the subject of the present application. 13 The first issue is whether leave should be granted, and if so, in whole or in part, and, second, to the extent that leave is granted, whether the appeal ought succeed.

Rule 44.12 of the FCCR 14 Relevantly, r 44.12 of the FCCR provides: (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or ... (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

Extension of time 15 As dismissal of the proceedings below was interlocutory, leave to appeal is required and the application for leave must be filed within 14 days of the decision below: r 35.13(a) of the Federal Court Rules 2011 (Cth). The last day for the filing of the leave application was 4 June 2014. The application was filed on 10 June 2014, six days late. The Court has made an order extending time.

Leave to appeal 16 The principles generally governing leave to appeal are well established: whether, in all of the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 at [20] and cases there cited. 17 Further, when considering whether a decision pursuant to r 44.12(1)(a) is attended by sufficient doubt, the principles relating to appeals from a discretionary decision are applicable: SZTGS.

Ground 1 18 The first proposed ground of appeal contends that the court below erred by misconstruing or failing to apply the applicable law or by acting on a wrong principle. 19 The power in r 44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application: SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 at [20]. 20 I accept that it would be wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed. To do so would involve a misunderstanding of the applicable law, a failure to exercise the discretion at all, or an exercise of power based on a wrong principle. 21 That does not mean that the answer to the first question will not, in very many cases, lead inevitably to the answer to the second. I accept the Minister's submission that the precondition to the power is not only relevant to the question of whether to exercise it, but can be sufficient reason to exercise it. The applicant does not suggest otherwise. 22 The applicant submits that the primary judge failed to expressly acknowledge, and therefore failed to exercise, the discretion under r 44.12(1)(a). At [21], the court below expressed its conclusion as follows: In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 16 January 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs. 23 This, the applicant submits, discloses that the court dismissed the proceedings because it was satisfied as to the state of satisfaction that enlivened the discretion to dismiss but failed to exercise any discretion, which it was bound to do. 24 The only matters relevant to the exercise of the power that were before her Honour were the merits of the application for judicial review. As already noted, those merits were not only critical to the first question raised by r 44.12(1)(a), but were significant to the residual question of discretion. In those circumstances, I accept the submission that there was no need to deal with the two aspects of r 44.12(1)(a) separately and it was sufficient for her Honour to proceed in the way that she did. 25 I would not grant leave to appeal in respect of this proposed ground.

Ground 2 26 The second proposed ground of appeal involves a contention that the court below misconstrued or failed to address a material claim or consideration or it mistook the facts before it. 27 The applicant acknowledges that the primary judge correctly identified the basic complaint made by him concerning the Tribunal's decision, namely that: (a) the Tribunal had failed to consider his personal circumstances in refusing the adjournment application to it (at [12]) (Personal Circumstances Complaint); and (b) the Tribunal's exercise of discretion in refusing an adjournment miscarried (at [17]) (Miscarriage of Discretion Complaint). 28 He submits that in relation to the Personal Circumstances Complaint, it is clear from the material that his personal circumstances relevant to his adjournment application before the Tribunal comprised at least the following: (a) the applicant had been unable to take the requisite language test more frequently because of financial constraints; (b) the applicant's parents had gone through health complications and three of his close relatives had passed away over the years, which had a stressful impact upon the applicant; (c) the applicant's studies would finish in December 2013 and he planned on spending all of his time studying for the IELTS and NAATI exams from then onwards; (d) the applicant required only a short adjournment of a couple of weeks - the applicant required an adjournment to sit an IELTS test booked for 18 January 2014 and a NAATI test booked on 31 January 2014 (whereas the Tribunal was contemplating handing down its decision in early January 2014); (e) the applicant had recently obtained the requisite score in 3 of 4 of the components on the IELTS exam and, in relation to the fourth component, he had previously achieved the requisite score; (f) in the component where he failed he scored 6.0 which was only 1.0 point below the required score; and (g) the negative consequences of a refusal of an adjournment on the applicant, particularly its effect upon his visa application. 29 He now complains that the Tribunal, in considering the adjournment application, dealt only with the matter of his financial constraints identified in para (a) above and failed to deal with the remaining matters. This he submits is clear from para [16], where the primary judge dealt with the "personal circumstances" argument as follows: The applicant complains that a further adjournment was not provided to him and that the MRT had failed to consider his personal circumstances. The passage above makes clear that the MRT did consider the applicant's financial constraints but was not persuaded that they were sufficient reason to grant a further adjournment. 30 Accordingly, he argues that the Tribunal had failed to take into account those other considerations relevant to the exercise of its discretion such that it had engaged in jurisdictional error when refusing the adjournment application. 31 He then submits that there is nothing in her Honour's reasons disclosing that she had considered his other personal circumstances and that if she had considered his other personal circumstances described above, her Honour might not have reached the state of non-satisfaction prescribed by r 44.12(1)(a). 32 The Minister submits that this fails to address the proper question for this Court which turns on whether the primary court's judgment is attended by sufficient doubt to warrant reconsideration on appeal, not whether the Tribunal's decision was attended by sufficient doubt. The judgment of the court below involved the exercise of power under r 44.12(1)(a) and it is this which is the focus of this application. However, the decision of the primary judge is necessarily referrable to a consideration of the review of the Tribunal's decision. Such consideration informs the question whether the discretion under r 44.12(1)(a) miscarried or not. 33 Whilst it is the case that her Honour did not restrict her consideration to the bare terms of the application before the court but also considered the affidavit sworn by the applicant on 5 May 2014 there was important material before her which I am satisfied her Honour did not consider but should have. The only personal circumstance the applicant referred to in the 5 May affidavit was financial in nature. The primary judge found, and the applicant accepts, that the Tribunal did consider that circumstance. However, the letter which had been sent by the applicant to the Tribunal setting out reasons for requesting an extension of time on 14 November 2013, including that the applicant's parents had had some health complications and three close relatives had passed away causing additional stress on the applicant, was before her Honour but was not the subject of consideration by her. The letter supports the applicant's contention that personal circumstances which arguably should have been considered by the Tribunal have not been considered by the primary judge. Had the primary judge done so she should not have reached the relevant state of non-satisfaction. It was arguably an error by the Tribunal. 34 I would grant leave to appeal in respect of this proposed ground and would uphold it.

Grounds 3 and 4 35 Grounds 3 and 4 may conveniently be dealt with together. 36 The applicant submits and I accept that on a fair reading of the decision below, the primary judge concluded that the two grounds advanced by the applicant below had no prospects or no reasonable prospects of success because the Tribunal displayed an "intelligible justification" (purporting to apply the principle derived from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) and it was open to the Tribunal to find that the applicant had had "ample opportunity" to achieve the requisite scores: at [17]. 37 The applicant submits that neither reason, individually or in combination, reflected a correct summary of the principles to be applied from Li or was determinative as to the two complaints made below such that it was open to the court below to reach the state of satisfaction required to enliven the power and discretion to dismiss the application under r 44.12(1)(a) of the FCCR. 38 The applicant advances two propositions. 39 First, he submits that neither reason posed any conclusive answer to the Personal Circumstances Complaint. The complaint was that the Tribunal had failed to take into account the personal circumstances of the applicant relevant to the exercise of the discretion to adjourn. He submits that neither the existence of an "intelligible justification" nor an "ample opportunity" to achieve the requisite scores addressed this complaint. 40 Second, he submits that in relation to the Miscarriage of Discretion Complaint, having regard to the decision in Li and Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 the Tribunal failed to engage in the requisite task of weighing the competing considerations in the exercise of its discretion having regard to the object, scope and purpose of the discretion, including the need to make a decision, the prejudice were it to deny the request, the reasons advanced for the request, and question as to proportionality. He then submits that a fair reading of the Tribunal's decision does not suggest that it engaged in this exercise; rather, its reason for rejecting the applicant's request focused almost entirely on the applicant having had sufficient opportunity in the past to achieve the requisite score. It was just such a circumstance, he submits, which the High Court in Li and the Full Court in Singh considered insufficient and demonstrative of error. 41 Further, the applicant submits that it is apparent that it is arguable that the decision of the court below did not reflect an application of the applicable law as established in Li and Singh. Rather, the court below merely noted that the Tribunal decision appeared to have an "intelligible justification" and concluded that it was open to the Tribunal to find that the applicant had had "ample opportunity" to achieve the requisite scores. 42 As the Full Court in Singh observed at [42], legal unreasonableness is invariably fact dependent. There is no bright line which divides what is reasonable from what is not. It is a matter of degree and ultimately judgment. 43 It is not difficult to see why the result in each of Li and Singh ensued. In Li, following her application for review by the Tribunal, the first respondent by her new migration agent had submitted a fresh application to Trades Recognition Australia (TRA) for a new skills assessment. The first assessment by TRA was found to have been based on false information submitted by her former migration agent. It was this which had led to the refusal of the visa application in the first instance by the Minister's delegate. 44 It appears that the fresh TRA application was based on genuine information. This application to the TRA was unsuccessful but the first respondent's migration agent pointed out to the Tribunal "two fundamental errors" in TRA's assessment and advised that the first respondent had applied to TRA for review of its adverse decision. The agent asked the Tribunal to "forbear from making any final decision regarding her review application until the outcome of her skills assessment application is finalised". A week or so later, without awaiting advice as to the outcome of this assessment, the Tribunal affirmed the delegate's decision, stating that "[t]he Tribunal considers that the applicant has been provided with enough opportunities to present her case" and that it was not prepared to delay any further. 45 In Singh the first respondent had failed to obtain the required score in an IELTS test. 46 When the matter came on for hearing in early November 2012 before the Tribunal for review of the refusal to grant the visa by the delegate of the Minister, the Tribunal agreed to wait until 31 December of that year so that he could obtain and submit the results for the English language tests he had undergone or booked. 47 In early January 2013 the first respondent wrote to the Tribunal attaching his test results which showed he had achieved the requisite marks in his last test on all topics except the topic of "Listening", where he scored 5.0. The necessary score was 6.0. He also advised the Tribunal that he was going to apply for re-evaluation/rechecking of this test result and hoped it would be successful. If it was, he would have demonstrated the necessary competence in English. 48 It may be seen that in each of Li and Singh the adjournment application was to enable the re-evaluation of assessment (TRA skills assessment in Li and "Listening" score in Singh). 49 That the decisions were arbitrary or unreasonable in the sense employed in Li, or legally unreasonable in Singh, is readily apparent. The explanation in Li was that the first respondent had had enough time to present her case. It did not deal with the merits of the adjournment application. In Singh, the Tribunal did not provide reasons for its refusal but in its statement of decision and reasons stated that the first respondent had had a reasonable period of time to obtain evidence of competent English. 50 Here, it is true that the applicant had over three years failed somewhere between 12-15 IELTS tests, and that the Tribunal had delayed its decision until after the test booked for 7 December 2013. Nonetheless I am firmly of the opinion that the refusal to grant the adjournment was arguably unreasonable in at least one of the ways discussed in Li and later in Singh, for the reasons which follow. 51 It is insufficient merely to recite facts concerning the number of tests sat and the results. What was required was the involvement of a reasoning process by reference to the position at the time of the application which was that: 1. The applicant was within an ace of passing the necessary examinations. In the test undertaken on 7 December 2013, he achieved the requisite score in all components except "Reading", for which he received a score of 6.0. However, in an earlier test, undertaken in July 2013, he had achieved the requisite 7.0 in "Reading". 2. His failure to pass them in the immediate past was explained not only by reference to his financial circumstances but other personal circumstances involving his parents and family. 3. There was no evidence to suggest that he was unlikely to pass the test, were an adjournment to be granted. Certainly, no such reason was given and to the extent that the likelihood of his passing might be implied, it seems to me that it was much more likely than not that he would. 4. The identification of the NAATI test and that it had not yet been passed, as apparently an allied reason for refusing the adjournment, suffers from the same problem. It is merely a statement of fact but exposes no reasoning process, at least not by reference to whether it was likely or not that the applicant might pass that test. 52 There was no prejudice to the Minister in the adjournment being granted. There was no obvious reason why it should not, and yet the consequences for the applicant, by contrast, were severe. This is against a background where the Minister did nothing for almost three years following the original application. 53 To say that the applicant has had sufficient time to pass the test is to state a conclusion but does not advance the reasons. Reading the file note of 3 January 2014 together with the reasons of 3 January 2014 delivered on 6 January 2014 at [16] and [17], these amount to a recitation of facts, a conclusion, as I have indicated, and little or no reasoning. The decision was unreasonable. To employ the language of the plurality in Li it lacked an evident and intelligible justification. 54 I am satisfied that leave to appeal on these grounds should be granted and that the appeal on these grounds ought be allowed.

Conclusion 55 There will be orders in the following terms: 1. Leave to appeal in terms of grounds 2, 3 and 4 in these reasons be granted. 2. The rules of Court as to the institution and preparation of the appeal be waived. 3. The appeal be heard instanter. 4. The evidence and arguments on the leave application be evidence and arguments on the appeal. 5. The appeal be allowed. 6. The orders made by the primary judge be set aside. 7. The matter be remitted to the Federal Circuit Court of Australia for the application for judicial review to be considered on its merits. 8. The first respondent is to pay the applicant's costs of the application for leave and the appeal. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.