Asad v Minister for Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 134 (17 August 2021)

Last Updated: 20 August 2021

[2021] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2021

B e t w e e n -

PALWASHA ASAD

Plaintiff

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 17 AUGUST 2021, AT 9.32 AM

Copyright in the High Court of Australia

HER HONOUR: On 11 March 2021, the plaintiff filed an application for a constitutional or other writ seeking relief in relation to a decision made by a delegate of the defendant to refuse to grant the plaintiff a Skilled - Regional Sponsored (Provisional) (Class SP) (Subclass 489) visa.

The named defendant in the application is “Minister for Home Affairs”. The defendant has sought an order, which the plaintiff does not oppose, that the defendant’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”. That order will be made.

For the reasons that I now publish, the plaintiff’s application for a constitutional or other writ should be dismissed with costs. I publish those reasons.

In matter A8/2021, the order of the Court is:

1. The plaintiff’s application for a constitutional or other writ filed on 11 March 2021 is dismissed with costs.

I publish that order and I direct that the reasons as published be incorporated into the transcript.

The plaintiff seeks a writ of mandamus and a writ of prohibition in respect of a decision made by a delegate of the defendant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, on 4 February 2021 (“the delegate’s decision”) to refuse to grant the plaintiff a Skilled – Regional Sponsored (Provisional) (Class SP) (Subclass 489) visa (“the visa”). The plaintiff also seeks a writ of certiorari quashing the delegate’s decision.

Each party has filed extensive written materials and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) that the application be dismissed without listing it for hearing because the application does not disclose an arguable basis for the relief sought.

The facts are primarily drawn from the plaintiff’s affidavit filed in support of the application and the exhibits to that affidavit. On 11 February 2019, the plaintiff applied for the visa. Pursuant to s 65 of the Migration Act 1958 (Cth), the Minister (or, as it was in this case, his delegate) could only grant the visa if satisfied that all of the conditions of the visa had been met.

The conditions of a Subclass 489 visa are set out in Sch 2 to the Migration Regulations 1994 (Cth) and relevantly include, at cl 489.223, that “[a]t the time of invitation to apply for the visa, the applicant had competent English”. “[C]ompetent English” is relevantly defined in reg 1.15C(1) as follows:

“A person has competent English if:

(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b) the person is an applicant for a visa; and

(ba) for a person who was invited ... by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and

(bb) for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and

(c) the person achieved a score specified in the instrument.”

There is no dispute that the test purportedly taken by the plaintiff on 10 November 2018, the Cambridge English: Advanced (CAE) test in Saudi Arabia, was a test specified by the Minister and that her alleged results of that test, being 169 or above in each of the four test components, was high enough for her to satisfy reg 1.15C(1)(c).

Following receipt of the application, under the power provided to the delegate by s 56 of the Migration Act, the delegate obtained information about the test via the Cambridge verification website. On that site, test results can be confirmed and identification information obtained, including a photograph of the test candidate. Upon review of this information, the delegate had what have been described as “verification concerns” and “travel concerns”. The verification concerns were twofold: that the photo uploaded on the Cambridge verification website had characteristics that indicated the photo was not taken by the test centre, but was an image provided to the test centre by the test candidate; and secondly, that the Cambridge verification website did not list a passport number and thus it was not clear what identification had been provided by the person who undertook the test. The travel concerns were that the plaintiff resides in Pakistan and there was no third‑party verifiable evidence to support that the plaintiff was in Saudi Arabia at the time the test was conducted.

Pursuant to ss 57 and 58 of the Migration Act, the delegate wrote to the plaintiff and, at the same time as raising other concerns, provided the plaintiff with the adverse information provided from the Cambridge verification website and invited her to comment on the verification concerns and the travel concerns. On 24 September 2020, the plaintiff provided further information in support of her claim that she was in Saudi Arabia when the English test was conducted on 10 November 2018 including:

(1) a letter from a hotel in Saudi Arabia confirming that the plaintiff stayed at the hotel for the period from 9 November 2018 to 12 November 2018 and providing the plaintiff’s passport number (the same passport number identified in a police report provided by the plaintiff);

(2) an invoice for travel “from MUX-JED-MUX between 9 November 2018 and 12 November 2018”; and

(3) bank statements and evidence of bank transfers to the signatory of what appears to be a travel and tours business.

The delegate gave little weight to most of the information provided by the plaintiff in support of her claim that she had taken the English test in Saudi Arabia on 10 November 2018. The delegate noted that the plaintiff had not provided any “evidence that she paid for [the] accommodation” where she said she stayed in Saudi Arabia and had not provided “third party verifiable evidence that she had made a booking with the hotel”. The delegate also noted that the plaintiff provided no “evidence to support [that] the correct identity checks were conducted by the test centre”; nor to support her claim that she had “contacted the test centre”. The delegate acknowledged that “the test centres [sic] lack of recording the identification [was] outside of the [plaintiff’s] control” but emphasised that the plaintiff had “provided very little third party verifiable evidence to support [that] she was in the test country at the time the test was taken”. The delegate applied “little weight in favour of the [plaintiff]”. In short, the delegate refused the visa because the delegate was not satisfied that the plaintiff was the person who undertook the English test relied upon by the plaintiff to meet the English competence requirement.

On 11 March 2020, the plaintiff filed the present application, which cannot be remitted^[1]. The contents of the application are problematic. It fails to set out concise grounds of review.

The primary issue appears to be the delegate’s decision to refuse the visa on the basis that she was not satisfied the plaintiff was the person who undertook the test. The plaintiff’s central complaint, and one which underpins many of the various formulations of the plaintiff’s review grounds, is that the factual findings made by the delegate were illogical or irrational. In particular, the plaintiff takes issue with the fact that the delegate gave little weight to the additional information provided by the plaintiff.

Two matters of principle must be stated at the outset. First, the delegate’s decision “must be read fairly and not in an unduly critical manner”^[2]. Secondly, a finding of fact is not “illogical” or “irrational” simply because one conclusion has been preferred by the decision‑maker over another possible conclusion^[3]. “The mere fact that an alternative conclusion was available, even if it is a persuasive one, does not mean that the [decision-maker] made a jurisdictional error”^[4]. Indeed, “[e]ven emphatic disagreement with the [decision-maker’s] reasoning would not be sufficient to make out illogicality”^[5].

In essence, the plaintiff’s complaint is directed to the factual findings of the delegate and amounts to a submission that the delegate ought to have arrived at a different conclusion in respect of the materials provided; the plaintiff does not impugn the process by which the delegate arrived at her conclusions^[6]. However, the weighing of various pieces of evidence is a matter for the decision‑maker, as Gummow and Hayne JJ explained in Abebe v The Commonwealth^[7]:

“It may be accepted that, as the applicant submitted, much of the Tribunal’s statement of reasons focuses upon what the applicant said about her husband’s arrest and whether what she had said on that subject was to be believed. But it did this in the context of assessing whether her claims that she had been persecuted in the past should be accepted. The Tribunal’s reasoning does not reveal any failure to take account of relevant matters or any taking into account of irrelevant matters. In the end, the criticisms made by the applicant of the Tribunal’s reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.” (emphasis added)

The present case is one where a different decision-maker might have reached a different conclusion on the material provided. For example, a different decision‑maker might have attributed greater weight to the police report which indicated that the plaintiff’s passport was lost on 10 April 2019 in considering the extent to which the plaintiff was able to provide other evidence to demonstrate she was in Saudi Arabia at the time the test was taken.

But this is not a case where there was no material before the delegate on which she could make a finding that she was not satisfied the plaintiff was the person who took the English test. The delegate’s conclusions were not bare assertions. The matters relied upon by the delegate (including that the test photo on the Cambridge verification site had characteristics that indicated the image was not taken by the test centre, the absence of a passport number listed on the online verification site and the delegate’s view that the plaintiff provided very little third‑party verifiable evidence to support that she was in Saudi Arabia at the time the test was taken) were logically and rationally capable of supporting her finding. Contrary to the plaintiff’s submissions, the delegate considered the documents provided by the plaintiff and explained the weight she attributed to those documents. The delegate identified in her reasons how the material before her and the inferences drawn from it led to her conclusion.

The delegate’s decision might be regarded as unpersuasive or harsh. And, as explained, a different conclusion might have been reached on the merits by a different decision-maker. Nonetheless, the delegate’s findings and process of reasoning were not of a kind that gave rise to jurisdictional error. It was open to the delegate “to engage in the process of reasoning in which [she] did engage and to make the findings [she] did make on the material before [her]”^[8].

The application should be dismissed with costs.

AT 9.33 AM THE MATTER WAS CONCLUDED

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^[1] Migration Act, s 476B, read with ss 474, 476, 476A.

^[2] BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at 45 [38], citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

^[3] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131].

^[4] C7A/2017 v Minister for Immigration and Border Protection (2020) 276 FCR 147 at 169 [115].

^[5] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at 518 [61].

^[6] cf Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 177 [36].

^[7] [1999] HCA 14; (1999) 197 CLR 510 at 580 [197].

^[8] cf SZMDS (2010) 240 CLR 611 at 648 [133].