Abraham v Minister for Immigration

[2014] FCCA 3107

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABRAHAM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3107

Catchwords:

MIGRATION – Application to re-hear application for judicial review of Migration Review Tribunal regarding decision not to grant skilled visa – applicant failed to attend court on first occasion due to alleged medical condition – applicant failed to attend re-hearing application on same basis – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001, Rule 13.03C ; Rule 16.05

Migration Act 1958 (Cth), ss.474 and 476

Migration Regulations 1994, Reg.1.15C

Plaintiff 157/2002 (2003) 211 CLR 476
MZZYG v Minister for Immigration & Border Protection [2014] FCA 488

Applicant: VANITHA ABRAHAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 370 of 2013

Judgment of: Judge Brown

Hearing date: 2 October 2014

Date of Last Submission: 2 October 2014

Delivered at: Adelaide

Delivered on: 2 October 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondent: Mr P d’Assumpcao

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 8 August 2014 is dismissed.

2. The applicant is restrained and an injunction issues restraining her from filing any further intrerlocutory applications relating to the orders made in her absence on 18 August 2014 and today without the leave of the court.

3. The applicant pay the first resondent’s costs fixed in the sum of five hundred dollars ($500.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 370 of 2013

VANITHA ABRAHAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is Vanitha Abraham “the applicant”.  The respondents to the application are the Minister for Immigration and Border Protection “the Minister” and the Migration Review Tribunal “the Tribunal”.

2. The proceedings relate to a decision of the Tribunal not to grant the applicant a skilled (provisional) (class VC) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth).

3. On 18 August 2014, the original application, to this court, was dismissed because the applicant failed to attend court, pursuant to the provisions of Rule 13.03C of the Federal Circuit Court Rules 2001 (Cth).

4. The proceedings today are an application to re-hear that application, which was dismissed for want of appearance.  The application for re-hearing was filed on 8 September 2014.  The court, pursuant to Rule 16.05(2), is authorised to set aside an order, which has been made in the absence of a party.

5. The difficulty with this application is that, just as with the first hearing, the applicant has not attended this hearing, on the basis that she is medically unwell.   The applicant has provided another medical certificate, which is dated yesterday, 1 October, which just indicates that Ms Abraham is suffering from a medical condition, unspecified and will be unfit for work from 2 October until 7 October 2014.

6. If one was of a suspicious bent, one might assume that Ms Abraham went to the doctor and said, “Look, there’s something on, but I don’t think I’m up to it, because of X, Y or Z, and I will probably be okay in about a week,” and the certificate then gets written.  It provides no detail and follows a similar assertion in the earlier proceedings that the applicant could not attend court because of a medical indisposition.

7. On the earlier occasion, when her application was dismissed, Ms Abraham contacted the court by email, on the morning her matter was listed for hearing and advised that she was suffering from a stomach ailment and was unable to attend court.

8. In her substantive application, filed on 11 December 2013, the applicant seeks to quash a decision of the Tribunal made on 8 November 2013 not to grant her the visa in question.  The issue before the Tribunal turned on the mandatory condition, relating to the visa, that the applicant concerned establish that he or she had competent English.

9. The manner in which a person must establish such competency in proscribed by regulation 1.15C of the Migration Regulations. The applicant concerned must complete a language test, specified by the Minister and achieve a satisfactory score in that test.  The test itself must be conducted in the 3 years immediately before the day on which the application was made.

10. In the context of these proceedings, the relevant prescribed language test is the International English Language Testing Scheme IELTS. The Tribunal found that the applicant had completed an IELTS test on 19 June 2010 but had not recorded an adequate score.  She applied for the relevant visa on 30 August 2012.  

11. When the applicant attended before the Tribunal, she provided an IELTS test completed on 9 March 2013, which recorded a pass.  The Tribunal determined that this result did not comply with the prerequisite regulation because the test was completed after the application for the visa in question.

12. On the first hearing date, it was the Minister’s submission that the application should be dismissed because it had no prospects of success as no jurisdictional error was disclosed as the applicant had not proved her competency of English in the manner required by the regulation.

13. On 18 August 2014, I noted that the decision concerned was a privative clause decision and so is not amenable to challenge or review.  I further noted that pursuant to the High Court’s decision in S157 prerogative writs could issue, in respect of a privative clause decision, if the decision sought to be impugned was vitiated by jurisdictional error.

14. On 18 August 2014, given that I could not glean such a jurisdictional error and given that the applicant had not appeared to prosecute her application and her reason for non-appearance was deemed to be inadequate, I dismissed her application pursuant to the provisions of rule 13.03C.

15. At the end of the day, in terms of the case itself, it is a mandatory condition, in respect of the grant of the visa in question, that the relevant applicant establish that he or she has competent English.  The regulation stipulates when that has to be done, it is prior to the date of application for the visa in question.  The applicant may feel aggrieved that she has now established her English proficiency but the regulatory regime prescribes a time for that to occur.

16. The applicant did not provide that at the right time to the MRT and it is difficult, if not impossible, to glean a jurisdictional error flowing from that.  The ground of review is imprecise.  I declined to adjourn the matter on the last occasion, and now there is no attendance today.

17. Mr d’Assumpcao reiterates what he has said in the past about applicants in migration matters, who routinely fail to attend at their hearing and seek to adjourn them at short notice on flimsy grounds.  He has drawn my attention to what was said in MZZGY[1], which appears analogous to the present case.

    [1]  MZZYG v Minister for Immigration & Border Protection [2014] FCA 488

18. I regard the certificate presented as wholly inadequate and, given the history of the matter to date, the only inference that can be drawn is a desire just to keep the proceedings on foot for whatever end it might meet. 

19. There is an internal illogicality, in having dismissed the application for non-attendance, to adjourn the application to reinstate the matter on the same ground, given I think the certificate provided in support of the application is inadequate.   I think, unless you say otherwise, that the only alternative I have is to dismiss the application and make the orders sought by the Minister.

20. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date:                  5 February 2015