Vishnumolakala v Minister for Immigration [2006] FMCA 1209

Vishnumolakala v Minister for Immigration [2006] FMCA 1209 | Case summary | Zoe

[27]

This is an application filed on 9 August 2005 under s.483A of the Migration Act 1958 (Cth) ("the Migration Act") which seeks orders by way of judicial review of a decision of a delegate of the respondent dated 19 July 2005, which refused an application for a Class BN subclass (136) Skilled - Independent permanent residence visa.

The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

The Court's powers are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the delegate's decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [15] and [76]-[77] and subsequent cases). I do not have power myself to decide whether the applicant qualifies for the visa.

One of the criteria for the visa was "the applicant must be outside Australia when the visa is granted" (Sch.2 cl.136.411 of the Migration Regulations 1994 (Cth) ("the Regulations")). The consequence is that, although the applicant was present in Australia when applying for the visa and may still be here, he did not have a right of merits review by the Migration Review Tribunal (see s.338(2)(a)). It was not suggested by the Minister that there was any discretionary reason for refusing relief, if I were satisfied that the delegate made a jurisdictional error.

A further consequence of this criterion was that, although the delegate was obliged to notify the applicant of the visa criteria which she considered had not been satisfied, she was under no obligation to "give written reasons ... why the criterion was not satisfied" (see s.66(2)(c) as modified by (3)). Thus, although a "decision record" is in evidence before me, it is apparent that this was intended to provide only a cursory explanation of the decision.

In the absence of a duty on the delegate to explain fully how evidence was assessed, it becomes difficult to draw inferences from the absence of discussion of evidence or submissions presented by the applicant's agent, that the delegate failed to take these things into consideration (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and Vanstone v Clark (2005) 147 FCR 299 at 359-360). A similar evidentiary problem faces the applicant when challenging the procedural decisions taken by the delegate, since she was under no obligation to explain how she regarded relevant provisions in the Departmental Procedures Advice Manual ("PAM").

The applicant's application for the visa was lodged on 13 January 2004 by his migration agent. It presented evidence of the applicant's Indian qualifications in science and computer programming, and his subsequent employment in India between 1996 and 2002, in the United Kingdom between 2002 and 2003, and in Australia since 2003.

It nominated the skilled occupation upon which he sought permanent migrant entry to Australia as "analyst programmer" ASCO code 2231-17. There is no evidence before the Court to explain this occupation, or its distinctions from other occupations in the field of computer programming.

To establish his occupational level, the applicant presented a skills assessment from "the relevant assessing authority". This was a letter dated 13 November 2003 from the Australian Computer Society ("the Society") which stated: "your skills have been assessed to be suitable for migration under 2231-17 of the ASCO Code, being the skilled occupation indicated that you intend to nominate in a General Skilled Migration application". This language appears directed to establishing satisfaction with the visa criterion in item 136.222:

[31]

The cited subdivision of the Migration Act empowers procedures for applying a "points" test, by assessing an applicant against a prescribed table of qualifications for which a range of "points" are given (s.93). The Minister also sets an "applicable pass mark" from time to time which determines whether the applicant's assessed score "is taken to have received the qualifying score" (ss.94(1) and 96). The Minister also sets a lower "applicable pool mark", so that applicants who reach this mark but do not qualify are passed into a "pool" of applicants who might in a subsequent period be found to qualify for the visa if the applicable pass mark changes (see ss.94(3) and 95).

11.

The points test relevant to the present visa type was found in Sch.6A of the Regulations. Its table allowed the accumulation of points under categories addressing the skilled occupation (maximum 60 points), age qualification (maximum 30), English language skill (maximum 20), employment experience (maximum 10), spouse skill (maximum 5), Australian educational qualification (maximum 15), extra points for occupations in demand (maximum 20), special bonus points (maximum 5), sponsorship by relatives (maximum 15), and regional education loading (maximum 10).

The descriptions of the tests for awarding points in each of these categories are complex, and are further complicated by regulations which, inter alia, confer dispensing discretions. It is understandable that the Department also issues to the Minister's delegates lengthy explanatory and procedural guides to this legislation.

In the assessment of the present applicant's points, the delegate's decision record states that the relevant pool entry mark for the visa was 70 points and the pass mark was 115. She gave the applicant 60 points for skill, 25 for age, 15 for English language ability, and 5 bonus points, totalling 105. She awarded no points in the other categories. She therefore found that the applicant did not attain a score which qualified him for the visa, but that he had met the applicable pool mark allowing his visa application to be reconsidered in the next two years.

No criticism is made of the delegate's reasoning on any of these conclusions, except her awarding of 15 rather than 20 points for English language ability, and her award of no points rather than 10 for employment experience. Separate grounds of review attacked each of these conclusions, and it is convenient to examine the delegate's reasoning on each of them separately.

[44]

It was common ground between counsel before me that reg.2.26A(5) gave the delegate a discretion to award 20 or 15 points if she was persuaded that the applicant had established an English language skill equivalent to that shown in scoring respectively 6 or 5 under the IELTS test. It was also common ground that the delegate exercised this discretion when awarding 15 points to the applicant, since he never presented any IELTS or Occupational English Test results.

No challenge was made to the delegate's implicit opinion that, to this extent, it was "not necessary, for the applicant to be tested using the IELTS test".

The applicant's contention is that the delegate made a jurisdictional error when not accepting the submissions of the applicant's agent that he should be assessed as having English skills equivalent to a score of 6 on the IELTS test, so as to award him 20 points. It was also contended that she erred by not warning the applicant that she would only award 15 points, thereby denying him an opportunity to achieve 20 by sitting for the IELTS test and achieving a score of 6 in that test.

As I understood Ground 1 of the amended application as addressed by counsel, it was contended that the delegate failed to take relevant material into account when deciding not to award 20 points, and that the delegate was in breach of obligations of procedural fairness by not warning the applicant before declining to do so.

The applicant's arguments on both of these contentions sought to gain strength from the relevant parts of PAM. I shall extract these, after recounting the course of correspondence between the applicant's agent and the Department, and the relevant part of the decision record.

The correspondence was:

i)

The applicant's visa application lodged on 13 January 2004 claimed that he had "functional or better" ability to communicate in English, and that his "main language" was "Telugu, English". He did not enclose any documents providing "evidence of English language ability".

ii)

His agent's submission to the Department lodged on 29 June 2004 invoked the Minister's discretion to waive the need to sit the IELTS test, and sought an assessment of 20 points by reference to item 6A31 under Sch.6A. It said:

[45]

7. English Language Ability of the applicant

The applicant is holding a Bachelor of Science majoring in Computing degree from the Osmania University, which is a 3 years Bachelors degree and the medium of instruction throughout was English. He is a Microsoft Certified Professional having successfully completed SQL Server 6.5, Visual Basic 5.0 and Architecture I Examinations, all of which were also conducted in English. Additionally he also holds an 18-month Honours Diploma in Computer Applications from the Centre for Computer Information & Training. The medium of instructions for this qualification was also English. He has worked as an Analyst Programmer both in London, United Kingdom (from March 2002 to January 2003) and in Australia (from June 2003 to Present). He currently holds a Subclass 457 Business Long stay visa sponsored by Brain Tech Pty Ltd. Presently the visa applicant has been overseas working on some offshore projects for Brain Tech Pty Ltd. Throughout the time, the visa applicant has worked in the UK and Australia, his language in both his working environment and his living environment has been English. He has undertaken various software projects which involved English language and his dealings with the clients also have been in English.

We submit that according to the Procedure and Advise Manual of DIMIA, the delegate of the Minister can take into account the following type of evidence to invoke the awarding of points where testing "is not necessary".

• Where an applicant is a native English speaker or

• Where the applicant holds an award (being a degree, a higher degree, a diploma or a trade certificate) from an Institution where all instruction has been conducted in English (the duration of the full time study for this award should be at least 2 years).

The visa applicant is required to have a Competent English standard. Item 6A31 of the Regulation states that the applicant must have a generally effective command of the language. They must be able to use and understand fairly complex language, particularly in familiar situations. The applicant has demonstrated that he possesses this standard of English through his qualifications which were obtained while undertaking all his studies in English as well as his work experience in different English speaking environments.

We respectfully submit in view of the above written submissions and the documentary evidence provided with this visa application, the visa applicant has competent knowledge of English and therefore eligible for the award of 20 points for his English language ability.

We ask the delegate of the Minister, based on the above submission to waive the requirement of appearing for the IELTS examination and award 20 points for the English language ability for the primary applicant.

[62]

Counsel for the applicant contended that the procedures followed by the delegate in the present case did not include giving the applicant the opportunity to sit a test which is referred to in PAM. He argued that this revealed that the delegate had overlooked a relevant part of PAM, and therefore failed to take into account a relevant matter when making her decision.

Counsel for the Minister did not concede that the applicant had not been given the opportunity suggested in PAM, although he accepted that the applicant had been given no explicit invitation to sit the test so as to achieve 20 points rather than 15. He contended that I could not conclude that the delegate had not considered the relevant parts of PAM. Further, even if it had been overlooked, this could not establish the jurisdictional error of failing to take into account relevant matters, since the legislation did not require, as an incident of jurisdiction, that the Minister and her delegates must take into account or follow the contents of PAM.

Although no evidence was presented to me as to the general purposes and role of PAM, it is clear from those parts of PAM which were tendered in evidence that it is no more than an advisory administrative guide to delegates in relation to their application of the legislation. Moreover, as a matter of law, it could have no higher status. It was not contended for the applicant that the relevant parts in evidence amounted to "written directions" given by the Minister under s.499 about "the performance of ... functions" or "the exercise of ... powers". In my opinion, to any extent that its procedural or substantive contents go beyond repeating the effect of the Migration Act and Regulations, they are incapable of being elevated into legally necessary or relevant considerations of the type identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42.

Although reference was made by the applicant's counsel to Brennan J's well known discussion of "policy" in Re Drake and Minister for Immigration & Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, I do not consider that the parts of PAM which are in evidence show any real analogy with a Ministerial policy of the type discussed by Brennan J.

I accept, and respectfully agree with the opinion of Gray J in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038 at [45]:

[65]

This analysis provides a fundamental reason why a failure by the delegate to take into account or to follow a procedure suggested by PAM could not itself provide jurisdictional error.

Moreover, I am not satisfied that, in fact, the present delegate failed to consider any part of PAM, or failed to provide the applicant with an opportunity to sit the IELTS test so as to achieve a score of 20 points.

As I have explained above, no adverse inference can be drawn from the absence of express discussion in the decision record of why the decision-maker did not give a clearer warning that she was contemplating a score of 15 for "Vocational English" rather than 20 for "Competent English", nor why she did not consider it necessary expressly to invite the applicant to sit the IELTS test.

PAM does not spell out the manner or circumstances in which its suggested procedure of "given an opportunity to sit a test" should be followed. In my opinion, it was open to the delegate to have concluded that the applicant had been given that opportunity. The correspondence between the applicant's agent and the Department which I have set out above, showed clearly that the applicant's agent was fully aware of the need for the applicant to present an IELTS score unless this was waived, and that a waiver might be given to achieve either the Competent English or Vocational English equivalence. In my opinion, in these circumstances, it would have been open to the delegate to have considered that the agent was put on sufficient notice by the letter of 17 January 2005 that only the lower score was in contemplation, by reason of its reference, in emphasised font, to "Vocational English" rather than "Competent English". Although the agent's response maintained a request for a higher assessment, I do not read it as showing that the agent was under any misapprehension in this respect. Moreover, no evidence has been led from the agent or the applicant to establish that they were under such a misapprehension.

I am therefore not satisfied that, in fact, the delegate did fail to observe a procedure suggested by PAM in relation to the English language score, or that the applicant's agent was misled as to how the delegate was proceeding.

This finding also is an answer to the alternative argument presented under Ground 1, which contended that the delegate's failure to follow the procedure suggested by PAM, or to warn the applicant that it would not be followed, amounted to a denial of procedural fairness.

It is therefore unnecessary for me to enter into an examination of the legal premises for this contention, which would take me into interesting legal territory as to whether principles of "legitimate expectation" are now absorbed into general principles of procedural fairness (c.f. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 ("Lam") at [28]-[34], [81]-[83], [116]-[122], and [138]-[148], and Basten JA in Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426 ("Country Energy") at [98] and following - note that this is not included in the report at (2005) 63 NSWLR 699).

I also do not need to explore the extent to which an administrative guide such as PAM is capable of giving rise to a procedural representation which principles of procedural fairness would require to be observed in the absence of a warning before any deviation. On the evidence before me, which was confined to the tender of extracts from PAM, I would not conclude that it was intended to make, or be read as making, procedural promises to people dealing with the Minister's delegates, such that a departure should be found to carry legally enforceable consequences. Rather, in its terms, it appears to be only an internal administrative manual. I do not consider that its publication to migration agents and others would extend its status and legal effect. In my opinion, the evidence does not establish PAM as a published instrument or announced policy which is relevantly analogous to the governmental representations which some judges have held can give rise to "legitimate expectations" or rights of procedural fairness to all persons affected, even for those ignorant of its existence or contents (c.f. the discussion in Lam and Country Energy cited above).

Moreover, I am not satisfied in the absence of evidence from the applicant or his agent, that they ever believed that the present delegate would warn before deciding not to follow this aspect of PAM, or that they relied upon this aspect of PAM when deciding not to tender more evidence that the applicant could achieve level 6 in the IELTS test or its equivalent (c.f. Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [62], [113], and [256]; Lam (supra) at [38], [106], and [149]-[152]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [53]; SVHB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 18 at [16]).

Counsel for the applicant attempted to meet the point made in the last paragraph, by tendering from the bar table an email correspondence between the applicant's agent and a different delegate, concerning a different visa application made by a different person. This suggested that there had been conversations in that case in which these persons discussed the need for IELTS testing, and that this visa applicant was sent a letter "requesting that the principle applicant sit an IELTS test to demonstrate competent English and his spouse to sit a test to demonstrate functional English Language ability". I rejected the tender on the ground that it had no apparent relevance or probative weight in the present case.

For the above reasons, I do not consider that the applicant has made out any ground of jurisdictional error affecting the delegate's assessment of the points to be allowed to the applicant for his English language skills.

[78]

In my opinion, this contention fails, because I am not satisfied as to its factual premise: that there was relevant evidence presented by the applicant which was not considered by the delegate. As I have explained above, the delegate was under no obligation to give reasons containing a discussion and findings in relation to the evidence and submissions presented, and I can draw no inference from the absence of such discussion. Counsel was unable to point to any parts of the decision record or correspondence which points to the overlooking of evidence or submissions.

The applicant's counsel argued that the overlooking of evidence could be established by the lack of any apparent justification for the rejection of the submission made by the applicant's agent. In effect, his submission was that it was not open to the delegate not to award points for work experience, on the evidence before her.

However, I am not so persuaded. As I have indicated above, there was an apparent distinction in the applicant's work history for the preceding four years, in which a substantial part involved employment in an occupation with a name different from that of the nominated skilled occupation of "analyst programmer". The documents which were presented to the Department maintained this distinction, and suggested that two separate occupations might be recognised in the industry.

I can find no evidence before me, or the delegate, that the applicant's "senior programmer" position in India met the ASCO classification 2231-17 so as to allow him to obtain 10 points under item 6A41 of Sch.6A. Nor can I find such evidence showing that his Indian position was a "skilled occupation" as defined in reg.1.03 for the purposes of item 6A42, so as to obtain 5 points.

I am therefore not satisfied that the delegate's conclusion was not open to her as a matter of law. Indeed, I consider that it was more probably properly based upon the evidence presented by the applicant. On the evidence before me, I consider that it was open to the delegate to award no points for the reason that the applicant had "not provided sufficient evidence".

Counsel for the applicant argued that the applicant should have been warned of this conclusion, and given an opportunity to present further evidence. However, even at common law unfettered by s.51A of the Migration Act, a decision-maker is not required to warn as to an insufficiency of evidence (c.f. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592, cited in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [22], Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187], Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [76] and [208]).

Counsel for the applicant tendered parts of PAM relevant to this element of the delegate's decision, and submitted that there was a "legitimate expectation" element in this ground also. However, he did not develop this argument, and I am unable to identify any aspect of PAM which assists the applicant's case.

For the above reasons, I consider that none of the grounds of jurisdictional error argued for the applicant are made out.

The delegate's decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

A consequential costs order was agreed.

At a glance

Court

Decision date

Source

Judgment (79 paragraphs)

Vishnumolakala v Minister for Immigration [2006] FMCA 1209 (27 September 2006)

Parties

Legislation Cited (2)

Cases Cited (13)