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MIGRATION - Review of MRT decision affirming a delegate's decision to refuse to grant a skilled migrant visa - English language skills - whether MRT should have accepted certificate from the applicant's university in the Philippines - whether the MRT should have made inquiries - whether MRT proceeded on incorrect legal basis - whether errors of law immunised by the privative clause in the Migration Act.

Morgan v Minister for Immigration [2002] FMCA 155 (25 July 2002)

Morgan v Minister for Immigration [2002] FMCA 155 (25 July 2002)
Last Updated: 7 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORGAN v MINISTER FOR IMMIGRATION
[2002] FMCA 155



MIGRATION - Review of MRT decision affirming a delegate's decision to refuse to grant a skilled migrant visa - English language skills - whether MRT should have accepted certificate from the applicant's university in the Philippines - whether the MRT should have made inquiries - whether MRT proceeded on incorrect legal basis - whether errors of law immunised by the privative clause in the Migration Act.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.93, 338, 351, 359, 483A, 474, Part 2

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Migration Regulations

Craig v State of South Australia (1995) 184 CLR 163

Lachmi v MIMIA [2002] FMCA 19

NAAG v MIMIA [2002] FCA 713

NAAX v MIMIA [2002] FCA 263

NACH v MIMIA [2002] FMCA 110

R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598


Tadawan v State of South Australia [2001] FMCA 25

Wang v MIMIA [2002] FCA 477

Applicant:
ESTHER MORGAN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ417 of 2002



Delivered on:


25 July 2002



Delivered at:


Sydney



Hearing Date:


25 July 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr J Diaz

Diaz & Diaz



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) There is no order as to costs.

RECOMMENDATION

The Court recommends that the Minister give consideration to the question whether he should substitute a more favourable decision for the decision of the Migration Review Tribunal.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ417 of 2002

ESTHER MORGAN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. I have before me for ex tempore judgment an application to review a decision of the Migration Review Tribunal ("the MRT") made on 1 May 2002 to affirm a decision of a delegate of the respondent to refuse to grant to Mr ERROL IRENEO ALEJO ("the visa applicant") a skilled Australian linked migrant class AJ visa. He is a national of the Philippines.

2. The applicant in these proceedings was the nominator for the visa and was the applicant before the MRT pursuant to s.338(5) of the Migration Act 1958 (Cth) ("the Migration Act"). The visa applicant is the son of the applicant in these proceedings. The visa applicant had applied for a visa on 8 May 1996. The delegate's decision refusing the visa was made on 4 November 1998 at the Australian Embassy in Manila. An application for internal review of that decision became an application for review to the MRT and the hearing was conducted by the MRT on 6 February 2002.

3. The dispute ventilated in the proceedings before me today concerned the decision of the MRT insofar as it related to an assessment of the applicant's English language ability. As is noted in the respondent's written submissions the only subclass of the visa class that was relevant was subclass 105 Skilled Australia Linked, which required that at the time of the MRT decision the MRT must be satisfied that the visa applicant has the qualifying score when assessed in relation to the visa under subdivision B of Division 3 of Part 2 of the Migration Act. That assessment required the application of what is known as the points system.

4. The delegate had found that the applicant obtained insufficient points in order to qualify for a visa and found that it was unnecessary to apply an English language test because even if the applicant had obtained the maximum number of points on that test the applicant would still not have achieved sufficient points in order to qualify for a visa. The effect of the review of that decision by the MRT was that more points were awarded than had been awarded by the delegate on several prescribed qualifications but the MRT, like the delegate, did not award the visa applicant any points under Part 3 of Schedule 6 to the Migration Regulations, dealing with the language skill qualification. This is the only matter on which the applicant complains.

5. The MRT decision deals with the matter of the points to be awarded under Part 3 of Schedule 6. The MRT proceeded on the basis that points could be awarded under Part 3 of Schedule 6 if, inter alia, an applicant provides evidence that he holds an award and that "all instruction ... for that award was conducted in English". The applicant held an award, a Bachelor of Science in Computer Science from AMA Computer College, awarded 28 March 1994. The issue for the MRT was whether all instruction for that award was conducted in English. According to the visa applicant's application for the visa the course was conducted in English, commenced in March 1991 and finished in September 1993.

6. On 5 March 2002 the MRT requested under s.359 of the Migration Act that the applicant provide "independent written evidence that English was the language of all instruction in relation to the visa applicant's four year Computer Science course at AMA College". The applicant's solicitor sent a certificate dated 12 March 2002 from AMA Computer University stating that &quo;
t;the medium of instruction in this institution is English". It appears that the applicant's solicitor was contacted by an officer of the MRT on 25 March 2002 to advise that his response was not adequate. In response, another certificate was forthcoming dated 2 April 2001 (presumably a typographical error for "2002"), stating "the medium of instruction in this institution is English, specifically the course leading to the degree of Bachelor of Science in Computer Science". The covering letter dated 5 April 2002 from the solicitors said "[w]e request that this matter now be finalised". However, the second certificate was also rejected by the MRT.

Consideration and findings

7. The matter was argued before me today on behalf of the applicant by Mr Diaz on the basis that the decision of the MRT was not made in good faith. In the expectation that submission might not be successful Mr Diaz also submitted that the decision of the MRT discloses a jurisdictional error which vitiates the decision of the MRT.

8. This application comes before the Court pursuant to the Court's jurisdiction under s.483A of the Migration Act. The application for review was filed after 2 October 2001 and is therefore caught by s.474(2) of the Migration Act on the basis that the decision subject to review is a privative clause decision. The effect of the privative clause is to confine the jurisdiction of this court and the Federal Court to limited grounds. The jurisdiction is to provide prerogative relief on those limited grounds under s.39B of the Judiciary Act 1903 (Cth).

9. The application was heard by me today on the basis that the application was an application for prerogative relief on the limited grounds still available. The courts have differed in their approach to hearing applications for relief that are caught by the privative clause. In some cases this Court and the Federal Court have determined that it is necessary first to clearly determine the scope of the operation of the privative clause before deciding whether it is necessary to go further and to consider whether a reviewable error has been made. In other cases this Court and the Federal Court have proceeded on the basis of determining first whether any error can be established and if not, that it is unnecessary to consider the operation of the privative clause.

10. In the matter of NACH v MIMIA [2002] FMCA 110 the Chief Federal Magistrate took the latter course. In the circumstances of this case and having regard to the fact that five cases are currently reserved before the Full Federal Court which will provide definitive guidance on the operation of the privative clause, I have decided to take the same approach as was taken by the Chief Federal Magistrate in NACH.

I will therefore consider first whether any error of law was made by the MRT in its determination of the issue of language for the purposes of assessing the points score of the visa applicant.

11. As I have noted, the history of this matter before the delegate was that no English language test was made and the delegate noted that conducting an English language test would have served no purpose as it would have made no material difference to the overall score achieved by the visa applicant.

12. The outcome of the proceedings by the MRT was different, so that if the visa applicant was awarded points for English language ability the visa applicant would have qualified for the relevant class of visa. The MRT sets out the history of the matter to that point in its decision. At paragraph 36 of the MRT decision on page 129 of the court book the Presiding Member said:

"Review of the points awarded for the other components of the points test indicates that they were awarded correctly by the delegate. The visa applicant states his main language is Filipino and that he speaks and writes fluently in English - see question 26 of the visa application. At question 27 of the visa application the visa applicant states he studied at AMA between 6/01 and 9/93 where the language of instruction was English. The Tribunal notes that the delegate did not award the visa applicant points for the language component of the points test as a formal assessment of his English language ability was not conducted. This remains the position at the time of review. However, after the hearing, the Tribunal sought information with respect to the language of instruction of the visa applicant's degree course at AMA between 1991 and 1993. As stated above, AMA has provided a certification that relates to the present time and does not refer to the period of the visa applicant's attendance at the College. There is no evidence before the Tribunal with respect to the language of instruction of the visa applicant's primary and secondary school education. Accordingly, the Tribunal has no alternative but to make a finding that the visa applicant is not entitled to any points for the language component of the points test under Part 3 of Schedule 6."

13. The reference in this paragraph to certification of the language of instruction at the AMA institution is a reference to queries raised by the MRT with the representatives of the visa applicant. First, on 5 March 2002 an MRT officer wrote to the present applicant as a representative of the visa applicant and sought further information concerning the applicant's English language ability. The letter invited the applicant to submit information in writing within 28 days providing independent written evidence that English was the language of all instruction in relation to the visa applicant's four year computer science course at AMA College in the Philippines.

14. In response to that invitation the certificate dated 12 March 2002 was provided. It is clear that the MRT was dissatisfied with that certificate and a telephone call was made to the visa applicant's representative to query that certificate as unsatisfactory. A file note appearing at page 116 of the court book establishes that in a further conversation with Mr Diaz on 2 April 2002 an officer of the MRT explained that the document that had been submitted by AMA did not state that the instruction in the four year computer course undertaken by the visa applicant was in English.

15. In response, a further certificate was provided. This is dated 2 April 2001 from the AMA Computer College, which by that stage had become the AMA Computer University. This document certifies that the medium of instruction of that institution is English, specifically in the course leading to the degree of Bachelor of Science in Computer Science.

16. The MRT declined to accept either of these certifications as evidence that the language of instruction in the course undertaken by the visa applicant was English because, in the MRT's view, it was not clear from either of those certificates that the language of instruction in the course was in English at the time that the visa applicant attended the course.

17. This seems to me to be an artificial conclusion for several reasons. The first is that it is common knowledge that English is one of two official languages in the Philippines. The other is Tagalog, also known as Filipino, which is a Malay dialect spoken by something less than a quarter of the population. There are around 87 other indigenous languages in the Philippines, which are not official languages, but English is both an official language and the language for official purposes.

18. In the matter of Tadawan v State of South Australia [2001] FMCA 25 this Court dealt with the issue of the English language in the Philippines in unrelated proceedings. The Court accepted evidence from Ms Tadawan that in the Philippines all residents are brought up to speak their own dialect in ordinary family conversation but that English is the language of government and the law, education and commerce. Every Filipino child comes to school and there begins his or her study in the English language. English is truly the second language of the Philippines.

19. In addition, country information was available to the MRT to establish that English is the language of instruction in educational institutions in the Philippines commencing at the primary school level and certainly at the tertiary level. Further, the certificates provided by the AMA University provided a telephone number which would have rendered it simple for the MRT to check the currency of the certificates.

20. The AMA University is a substantial institution in the Philippines. A visit to its website at www.amaes.edu.ph reveals that it claims to be the oldest and most prestigious computer education facility in Asia, with affiliations with international IT institutions and industry leaders such as Microsoft, Cisco Systems, AVAYA Communication, Hewlett Packard, The National Computing Centre of the United Kingdom, the London Guildhall University, the Association of Business Executives of the UK, the University of California at Berkeley and other institutions. It is therefore apparently an institution of substance. It is extremely improbable to suppose that the computer studies conducted at the institution would be conducted in any language other than English.

21. In those circumstances it is surprising that the MRT was so reluctant to accept the certificates provided by the applicant. I am satisfied that the MRT made an error of fact in its approach to the assessment of the language of instruction in the institution attended by the visa applicant. In addition I am satisfied that the MRT should in pursuance of its inquisitorial functions have checked the veracity of the certificates provided by the visa applicant, which the MRT had itself requested. It would have been simple to do so. A very simple means would have been to telephone the institution on the telephone number provided on the certificates.

22. As matters have turned out in the conduct of the proceedings today, the issue of the language of instruction in the institution attended by the visa applicant was legally irrelevant. That is because on 1 July 1998 part 3 of schedule 6 to the Migration Regulations was amended to delete items 6301 and 6305, the relevant amendment being made by Statutory Rule 210 of 1998. Both the decision of the delegate and the decision of the MRT were made after the amendment was made.

23. Mr Reilly took me to s.93 of the Migration Act, which makes clear that the prescribed number of points for each prescribed qualification in the relevant class of visa application means prescribed by regulations in force at the time the assessment is made, not at the time the relevant application is made. Accordingly, the deletion of items 6301 and 6305 from part 3 of schedule 6 meant that the applicant could not satisfy the points test by providing evidence of the language of instruction in the institution he attended.

24. The MRT was mistaken in pursuing that avenue of inquiry after the hearing before it. The visa applicant was similarly mistaken in providing further information in an attempt to satisfy the MRT. The mistake was a common mistake of law in terms of the operation of the relevant legislation.

25. Mr Reilly has submitted to me that the mistake makes no difference to the outcome of these proceedings because it is clear from each of the items in part 3 of schedule 6 that the onus is on the applicant to provide evidence of language ability. Accordingly, he submits that the onus was on the applicant to provide evidence of language ability by reference to the items which were in force at the relevant time. The obvious thing for the applicant to have done would have been to provide evidence of language proficiency in English by sitting a test. As I have noted no test was conducted either at the time of the decision of the delegate or at the time of the decision of the MRT.

26. Mr Diaz has submitted to me that there was some obligation on the MRT to facilitate the conduct of such a test, given that the outcome would have made a material difference. In addition, it is relevant to note that the MRT, like the visa applicant, was diverted from consideration of that possibility by the mistaken view that was taken of the operation of the law.

27. The legal error made by the MRT is an error of jurisdiction, in that the MRT, on the face of its decision misunderstood the relevant law to be applied. In addition, I find that the MRT made an error of jurisdiction in failing to take into account country information which was at least constructively before it. It should have done so in the exercise of its inquisitorial functions pursuant to s.359 of the Migration Act.

28. In Craig v State of South Australia (1995) 184 CLR 163 at 179 Brennan, Dean, Toohey and McHugh JJ said:

" If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

29. I conclude that under the general law the errors made by the MRT which are demonstrated on the face of its decision would be sufficient to invalidate that decision. The question then is whether the decision of the MRT is immunised against a finding of invalidity by the privative clause.

30. My approach to the interpretation of the privative clause was initially set out in my decision in Lachmi v MIMIA [2002] FMCA 19. I have followed that decision in interpreting the privative clause since. In that decision at paragraph 10 I noted that s.474 of the Migration Act provides that:

A private clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not subject to prohibition, mandamus injunction, declaration or certiorari in any court on any account.

31. A privative clause decision is defined to include a decision of the MRT on a review of a decision to refuse to grant a visa. Accordingly, the privative clause applies to these proceedings. On its face the privative clause appears to preclude any judicial review of a privative clause decision.

32. However, as I noted in Lachmi, s.474 must be read subject to the decision of the High Court in R v Hickman; ex parte Fox v Clinton (1945) 70 CLR 598. That case is authority for the proposition that it is open to a court to review a decision subject to a privative clause on the basis that first, the decision was not a bona fide attempt to exercise the decision maker's power, secondly that the decision displayed a constitutional or statutory jurisdictional error on its face, or thirdly that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the MRT.

33. Mr Diaz submitted to me that the decision of the MRT in this case was not a bona fide attempt to exercise the decision maker's power. I reject that submission. It is clear to me that the MRT went about its task in a genuine fashion in pursuance of the function conferred on it and, indeed, went a considerable way following the hearing before it to attempt, albeit erroneously, to exhaust its consideration of the issue of English language ability. I find that the decision of the MRT was a bona fide attempt to exercise its decision making power.

34. There was no submission to me that the decision of the MRT did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the MRT. This was clearly a migration decision in purported exercise of the power conferred on the MRT. There is no question of a constitutional error having been made. The only question, therefore, is whether the decision of the MRT displayed statutory jurisdictional error on its face.

35. The Migration Act establishes a highly prescriptive decision making regime. Although the High Court has found that the statutory provisions relating to the procedure of the MRT and the RRT is not a code, the effect of the privative clause is to exclude from review at least some kinds of jurisdictional errors. Any other conclusion would render the privative clause devoid of meaning and application.

36. Although the decisions of the Federal Court at first instance to date have varied, the trend of authority has been to establish that a breach of common law rules of procedural fairness is not reviewable in the light of the privative clause. I was referred today by Mr Reilly to a number of decisions to that effect including NAAG v MIMIA [2002] FCA 713 and NAAX v MIMIA [2002] FCA 263. I was also referred by Mr Reilly to the decision in Wang v MIMIA [2002] FCA 477 which is noteworthy for the fact that the Federal Court found that it could not set aside a decision of the MRT notwithstanding that a jurisdictional error had clearly been established.

37. I did query Mr Reilly as to whether I was bound by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which was recently enacted to clearly exclude from review a breach of common law rules of procedural fairness. The present application was filed before the commencement of that Act. I proceeded today on the basis that I am not bound by that Act, although legal representatives were not certain. Even so, consistently with the view I have taken in other cases to date on the interpretation of the privative clause, I find that I am not able to review the decision of the MRT on the basis of a breach of the rules of procedural fairness under the general law.

38. The approach that I have taken in interpreting the privative clause is to find that a jurisdictional error will not be reviewable unless I could be satisfied that the jurisdictional error relates to a breach of an essential requirement in the Migration Act. Consistently with that approach, it would only be if a breach of an essential requirement of the Migration Act could be identified that a basis could be established for overturning this decision of the MRT. Mr Diaz today has not sought to identify any particular provision of the Migration Act that could be said to have been breached by the decision of the MRT. Indeed he has not identified any provision of the Migration Act that could be said to be a provision, the breach of which would be a breach of an essential requirement.

39. In the present case I am satisfied that the MRT failed to take into account a relevant consideration. That relevant consideration was the country information available to the MRT and constructively before it which might have satisfied the MRT that the visa applicant was proficient in English, given that English is the language of instruction in educational institutions in the Philippines. Secondly, I find that the MRT misunderstood its jurisdiction, in particular in terms of the law to be applied in reaching its decision.

40. On the basis of the way in which this matter was argued before me today, I am not able to conclude that these errors of jurisdiction were a breach of an essential requirement of the Migration Act. In the circumstances, I am prevented by the privative clause from interfering with the decision of the MRT. What I can do is to recommend to the Minister that he consider substituting a more favourable decision for the decision of the MRT. The Minister has that power pursuant to s.351 of the Migration Act.

41. It does seem to me that the manner in which the proceedings were conducted before the MRT resulted in an injustice. It was objectively open to the MRT to conclude simply on the basis of country information that the visa applicant was proficient in English. If the MRT had needed to go further it could have facilitated a test of the applicant's English ability. I find that it did not do so because the MRT erroneously believed that the test of English language proficiency could be satisfied by reference to the language of instruction in the tertiary institution attended by the visa applicant. The opportunity should now be presented to the visa applicant to put to rest the issue of his English language proficiency.

42. I do not think that I should make any order as to costs, having regard to the recommendation that I am going to append to the orders of the Court, and having regard to the deficiencies in the decision of the MRT which I have found to exist. Therefore, the only order which I will make is to dismiss the application. I will append to that order a recommendation that the Minister consider substituting a more favourable decision pursuant to s.351 of the Migration Act.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 August 2002
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