Australian Immigration Daily News

How far does the right to procedural fairness extend?

Does the right extend so far that an applicant has the right to be notified by the authority that has administered an IELTS test that it intends to cancel her or his test results on the basis that the test was taken by an “impersonator” and not by the applicant herself or himself?

This was the issue that was at the heart of a case that was recently decided by the Full Court, Verma v Minister for Immigration and Border Protection (2018) FCAFC 87 (7 June 2017).

The background facts of this case were that the applicant was seeking a “Skilled (Residence)” visa, the former subclass 885 visa. It was a criterion for the grant of this visa that applicants achieve results of at least “6” on each of the components of the IELTS test. The applicant in Verma had taken the IELTS test in New Delhi, and, in support of his application, he had submitted an IELTS test results report showing “passing” scores.

However, after the application was lodged, the “British Council”, which had evidently been the authority that had administered the test, cancelled the applicant’s results on the basis that it was not the applicant, but an imposter, who had actually taken the test.

The British Council had notified the applicant that it was conducting an investigation into his test results, and asked him to provide evidence relevant to the investigation, including proof of his visa and airline tickets, stating the dates of his departure from India and arrival in Australia; the front and back pages of his passport; and photo identification approved by the Indian government authorities.

After receiving these documents from the applicant, the British Council notified him that it wanted to have a teleconference. This teleconference did take place, during which the applicant was asked to provide certain personal details.

However, when the applicant asked the British Council what the investigation was about, he was informed that he could not be told as the investigation was still in its preliminary stages.

After the teleconference, the British Council notified the Department that the applicant’s test results had been cancelled, on the basis that the applicant had been involved in “malpractice” in relation to the test.

About two years later (!) the Department wrote to the applicant advising him that it had received information that indicated that the test result report that had been submitted in support of the application was a “bogus document’, and inviting him to comment on that information.

After receiving the applicant’s response, the Department then proceeded to refuse the application.

When the case came before the Tribunal, the Tribunal obtained online verification of the applicant’s test results, which stated that the applicant had been given scores of “0” on each element of the test.  The Tribunal then contacted the British Council to find out why the applicant’s test results had been cancelled, and was informed that this had been done on the basis that the applicant had used an “impersonator” to take the test for him.  The Tribunal put this information from the British Council to the applicant in a letter dent pursuant to s 359A of the Migration Act.

The Full Court concluded, as the Federal Circuit Court had previously, that there was no denial of procedural fairness in the circumstances of this case, and thus no jurisdictional error by the Tribunal in affirming the refusal of the visa application.

The Full Court accepted the reasoning of the Federal Circuit Court, which had held that there was no denial of procedural fairness on two primary grounds:

First, the migration legislation did not require the Department to treat the opinion of the British Council that an imposter had sat for the IELTS test as “conclusive”  evidence that that had actually occurred; and secondly, because the Tribunal had itself provided procedural fairness to the applicant in respect of the cancellation of his test results, by notifying the applicant under s 359A that the British Council’s opinion that an imposter had taken the test could form the reason, or part of the reason, for affirming the refusal of the application.

So the lesson to be taken from this decision of the Full Court is that “non-statutory” authorities that serve as the administrators of the IELTS test results do not themselves have to afford an applicant procedural fairness when they make a determination to invalidate a test result.  And the fact that the administrator of the test has not provided procedural fairness will not usually form a sound basis for challenging a decision of the Tribunal (at least where the Tribunal has itself provided the applicant with procedural fairness with regard to the issue of whether there was some form of fraud in obtaining the test result).