Australian Immigration Daily News

Suppose you have a client who is seeking a 457 visa (yes it is still possible!)

Suppose also that the client was not able to satisfy the English language proficiency requirement of sub-regulation 457.223(4)(eb)(v),  which specifies that the applicant must have “achieved within the period specified by the Minister in (a) legislative instrument, in a single attempt at the test,  the score specified by the Minister in the instrument”.

(For readers having difficulty finding this sub-regulation, I will be happy to loan you my electron microscope for a small fee!!)

Suppose that the Department has refused the application, the applicant has unsuccessfully sought an adjournment from the Tribunal to take the IELTS test another time, the Tribunal has refused to grant the adjournment and affirmed the refusal of the application, and then, after the Tribunal’s decision, the applicant has been able to achieve the required scores on the test.

Do you think in these circumstances the decision of the Tribunal might be set aside?

Well, guess what? The applicant was successful before the Federal Circuit Court in a decision that was handed down on 31 August 2016 – Gowda & Ors v Minister for Immigration & Anor (2016) FCCA 3491.

This decision just mysteriously “popped up” on Austlii – it was “updated” on 15 June 2017 and had not appeared on Austlii previously!

Here was the story:

The requirement of 457.223(4)(eb)(v) that the applicant achieve the scores specified in the legislative instrument “in a single attempt at the test” is a “time of decision” and not a “time of application” criterion.

The relevant legislative instrument was IMMI 15/028 which, in the applicant’s case, required an overall score on the IELTS test of 5.0, and minimum scores in each of the 4 components of the test of 4.5.

The applicant had taken courses in commercial cookery in Australia, and was described by the Court as not being an “academic man”.

He had sat the IELTS test on several occasions, and had been able to achieve results above 5.0 in each of the 4 bands of IELTS, but he had not been able to achieve scores above 4.5 in all of the bands in a single attempt at the test.  In November 2015, he had obtained the required overall score of 5.0, but on that date his result in the reading component was only 3.5, below the required 4.5.

The applicant had sought a further adjournment from the Tribunal so that he could take the IELTS test again in March 2016, and had provided the Tribunal with documentation confirming that he had paid the fee for taking the test and that the test was scheduled for March 2016.

However, the Tribunal took the view that it could not indefinitely postpone the finalization of the applicant’s case, and in December 2015, proceeded to affirm the Department’s refusal of the visa application.

Then, following the Tribunal’s decision, the applicant did sit the IELTS test again in March 2016 and this time he was successful: he achieved results that would have been sufficient to enable him to satisfy the English language proficiency requirement.

And: somewhat surprisingly, Judge  Riethmuller held that “in the most unusual circumstances of the case”, the Tribunal’s decision should be set aside and the matter should be remitted back to the Tribunal for re-determination.

Here are the factors which persuaded Judge Riethmuller to quash the Tribunal’s decision:

• The applicant had actually achieved the required scores in each of the bands of IELTS, just not during a single attempt at the test;
• The applicant had specifically booked and paid for the further IELTS test which was the subject of his adjournment request (prompting the Court to view the case as “somewhat different to many cases that we see in the court where the applicant constantly seeks an adjournment to undertake some further step but never actually does anything about it and then appeals, and appeals to the higher courts on a similar basis;
• The applicant had come to Australia to study, was working, and  was “on a pathway that leads to a residence visa”  (well at least he might have been prior to the changes announced by the government on 19 April 2017!!!) and in that respect his situation was considered by the Court to be unlike a student who would not be on a pathway to remain in Australia or a “business person who is here only to try and pursue business before returning”.

Judge Riethmuller stated in his decision that the case was “finely balanced”, and that test results obtained after  a Tribunal decision were not “relevant considerations at law” and that the Court was required to ignore these post-decision test results in its reasoning process.

A highly unusual result in this case, wouldn’t you say?

Wouldn’t you expect that the Court would normally disregard IELTS test results achieved after the Tribunal has made its decision? Or somehow found its way to a conclusion that the Tribunal’s refusal to grant an adjournment to allow the applicant to take a further  IELTS test was somehow “legally unreasonable” in the sense of Minister for Immigration & Citizenship v Li?

Does it seem perhaps that the Court may have been swayed by sympathy for the applicant?

What do you think?

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