FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2016] FCA 652 Appeal from: Singh & Anor v Minister for Immigration & Anor [2016] FCCA 387 File number: NSD 377 of 2016 Judge: NORTH J Date of judgment: 27 May 2016 Legislation: Migration Regulations 1994 (Cth) reg. 1.15C(a) Date of hearing: 27 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 13 Counsel for the Appellants: The appellants appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: DLA Piper Australia ORDERS NSD 377 of 2016 BETWEEN: AMANDEEP SINGH First Appellant PAWANDEEP KAUR Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 27 MAY 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellants to pay the first respondent's costs of the appeal as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NORTH J: introduction 1 Before the Court is an appeal from orders made by the Federal Circuit Court on 22 October 2014. The Federal Circuit Court dismissed an application for review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal, made on 29 November 2013. The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the appellants' Skilled (Residence) (Class VB) (subclass 885) visas (885 visas). the facts 2 The first and second appellants are husband and wife. It was a requirement for the grant of the 885 visas that the first appellant was competent in English. So far as is relevant to this appeal, reg. 1.15C(a) of the Migration Regulations 1994 (Cth) required the first appellant to satisfy the Minister that he had 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. At the date of the hearing before the Tribunal the appellant had not achieved the required competency. the tribunal's decision 3 At the hearing, the appellants applied to the Tribunal for an adjournment to allow the first appellant a further opportunity to qualify as competent in English. The Tribunal refused to grant the adjournment at [6]-[8] for the following reasons: 6. In relation to r.1.15C(a), the applicant told the Tribunal at the hearing that he had previously undertaken seven or eight English language tests. The applicant told the Tribunal that he had undertaken an IELTS test on 12 October 2013 and requested further time to provide those results. He presented to the Tribunal test results for IELTS tests undertaken on 15 May 2013, 8 June 2013, 22 June 2013, 17 August 2013 and 21 September 2013 which indicate that he was not able to achieve 6 or more in each of the four test components in any of those tests. In four of those tests, he achieved 6 or more in one component and in one test he was able to achieve 6 or more in two components. He explained that he had found it difficult to concentrate as his two year old daughter had passed away in India after illness in August 2013 and provided a letter from Paarvati Devi Hospital in India regarding his daughter's illness and death. 7. After considering the information presented, the Tribunal requested that the IELTS test result for 12 October 2013 be provided by 30 October 2013. On that day, the results of the IELTS test of 12 October 2013 were received which indicated that the applicant achieved 5.5 in listening; 4.5 in reading and 6.5 in the writing and speaking components. This does not meet the requirement of 'competent English'. A copy of an IELTS test receipt for 9 November 2013 was provided and a request to grant a further extension until 25 November 2013. In the circumstances, the Tribunal agreed to allow until 27 November 2013. 8. On 29 November 2013, the Tribunal received a request for further time for the applicant to undertake another test which had been booked for 7 December 2013. The Tribunal has considered the request but does not consider that it should delay its decision until the applicant achieves the necessary result. While it appreciates that the applicant may be having difficulties concentrating given the loss of his daughter a few months ago, he made the application for the visa in June 2011 which is over two years ago and his own evidence is that he has attempted at least 10 tests for the visa. A number of these tests were attempted prior to his daughter's sudden death on 31 August 2013. There is no indication that the applicant will achieve the necessary score an [sic] IELTS test in the near future if the Tribunal were to delay its decision, and the Tribunal has declined the request. 4 In the absence of the necessary English qualification, the Tribunal affirmed the decision of the delegate to refuse to grant the appellants' 885 visas. the federal circuit court's judgment 5 On 24 December 2013, the appellants appealed to the Federal Circuit Court for review of the Tribunal's decision. They were represented by lawyers before the Federal Circuit Court. 6 The grounds of review included challenges to the validity of the regulations. Those grounds failed and are not pursued on the appeal. 7 Ground 4 of the application for review was in the following terms: The Tribunal's refusal to allow the First Applicant more time to undertake a further IELTS test was arbitrary and unreasonable. Particulars On 29 November 2013 the Tribunal received a request from the Applicant to postpone its decision until he received the results of a test he was scheduled to undertake on 7 December. The Tribunal's refusal was based solely on the asserted sufficiency of the opportunities that the Applicant had already had, and an unsupported claim that there was no indication he would achieve the necessary score in a later test. 8 The Federal Circuit Court rejected that ground at [62]-[63] as follows: 62. The exercise or purported exercise of a statutory power will be held to have been exercised unreasonably if: a) the decision is one that would not fall within the range of decisions that a reasonable decision-maker would make, given the subject matter, scope and purpose of the statutory power, and knowledge of the facts and circumstances that were known, or which ought reasonably to have been known by the actual decision-maker in question; or b) the decision is one that is arbitrary or which lacks an evident and intelligible justification. 63. The Tribunal did not say much about the applicant's request for further time. That, however, is not surprising. The applicant did not provide to the Tribunal any material on the basis of which the Tribunal could have made any rational assessment of whether the applicant had any reasonable prospect of obtaining the necessary IELTS score on 7 December 2013. The only material the Tribunal had before it was the applicant's previous failures to obtain the necessary score and his not having been able to concentrate because of the sad loss of his daughter in August 2013. That is the material the Tribunal considered. It was reasonably open to it to conclude there was nothing before it that would indicate the applicant would achieve the necessary score in the test that he had scheduled to take on 7 December 2013. the appeal 9 On 17 March 2016, the appellants filed a notice of appeal from the orders of the Federal Circuit Court. The first ground of appeal alleges jurisdictional error and lack of jurisdiction. The second ground of appeal alleges error in interpretation of legislation and denial of natural justice. 10 The second appellant appeared at the hearing of the appeal. Her only contention was that the Tribunal should have granted the adjournment of the hearing so that her husband could have attempted to gain the relevant English qualification. She handed up a certificate showing that he achieved that competency in English in November 2014. 11 This appeal arouses sympathy for the appellants, because of the tragic family circumstances which had occurred very near to the time of the hearing, and because the first appellant has now achieved the competency which would have qualified him for the visa. 12 However, the Federal Circuit Court was correct in the approach it took to the challenge to the refusal of the adjournment. The decision of the Tribunal was a discretionary decision. The Court will only intervene if there was jurisdictional error in the making of the decision. Although the ground articulated in the Federal Circuit Court was limited to jurisdictional error constituted by unreasonableness, it is clear that there is no other basis for alleging jurisdictional error available in these circumstances. The Tribunal took into account the relevant circumstances. It did not misapprehend the facts. It did not take into account irrelevant circumstances. In terms of the reasonableness ground raised before the Federal Circuit Court, the decision was rational because the first appellant's history did not demonstrate that he was likely to achieve the English competency qualification in the sufficiently near future to justify an adjournment. There was, therefore, an intelligible justification for the decision. 13 In those circumstances, the appeal is dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 2 June 2016