Aindla v Minister for Immigration - [2006] FMCA 1885

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AINDLA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1885

MIGRATION – Migration Review Tribunal – summary dismissal – no appearance by Applicant – application dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001.

Federal Magistrates Court Rules 2001, r.13.10(a)
Migration Act 1958, ss.357A(1), 422B

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration & Multicultural & Affairs [2006] FCAFC 62

Applicant:

SANDEEP REDDY AINDLA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 621 of 2006

Judgment of:

McInnis FM

Hearing date:

15 December 2006

Delivered at:

Melbourne

Delivered on:

15 December 2006

REPRESENTATION

Applicant:

No appearance

Counsel for the First Respondent:

Ms C. Symons

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The name of the First Respondent be amended by deleting the words “and Indigenous”.
The Application be summarily dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules 2001.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 621 of 2006

SANDEEP REDDY AINDLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the First Respondent by notice of motion filed

13 October 2006 seeks summary dismissal of the Application pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001 (the Rules). The basis upon which summary dismissal is sought is that there is no reasonable prospect of success and so much is evident from a brief analysis, it is submitted, of the Application and the decision of the Migration Review Tribunal (the Tribunal) which is sought to be reviewed by the Applicant.
It should be noted that when the matter was called for hearing this day there was no appearance for the Applicant. The First Respondent has sought, however, summary dismissal of the Application rather than dismissal due to non-appearance of the Applicant. I should also indicate that in this matter when the Application was before the court on 6 October 2006 the court made an order that the Application be listed for summary dismissal hearing or final hearing on this day.

I am satisfied a sealed copy of that order was forwarded by the court to the Applicant at the appropriate address for service.
I am further satisfied and accept that by correspondence dated 16 October 2006 the First Respondent has served the Applicant with the Notice of Motion relied upon in this Application for summary dismissal. The Notice of Motion for the purpose of this court I take to stand as an Application. I also note further that an undertaking has been given by the solicitors for the First Respondent to file a brief Affidavit of Service confirming what I have already accepted to be the service on the Applicant of the Notice of Motion.
The Applicant in this matter has lodged an Application for a Skilled -Independent Overseas Student (Residence) Class DD) visa on 9 July 2004. A delegate of the First Respondent refused that Application on 11 August 2005, and the Applicant then applied to the Tribunal on

2 September 2005 seeking review of the delegate's decision. The Tribunal conducted a hearing on 3 March 2006. On 19 April 2006 the Tribunal handed down its decision of the same date. It is noted from that decision that the Applicant attended the hearing of the Tribunal. The Tribunal delivered what might be described as brief findings, which I will refer to in due course. In any event, the Applicant filed an Application before this court on 11 May 2006 seeking judicial review of the Tribunal's decision.
The relevant legislation which applies to this matter has been accurately set out in the Tribunal decision and helpfully set out in the First Respondent's submissions as follows,
“7.The criteria for the grant of a Skilled visa are set out in Part 880 of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
8.Clause 880.233 of Part 880 relevantly requires that an applicant has a vocational level of English at the time of decision.
9.Regulation 1.15B of the Regulations defines the term ‘vocational English’.
10.    Subregulation 1.15B(3) states that:
‘A person to whom this subregulation applies has vocational English if:
(a)the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:
(i)not more than 12 months before the day on which the application was lodged; or
(ii)     during processing of the application; or
(b)     the Minister;
(i)determines that it is not reasonably practicable or not necessary, for the person to be tested using the IELTS test; and
(ii)     if satisfied that the person is proficient in English to a standard that is not less than the standard required under paragraph (a).”
In the First Respondent's submissions, it is noted that the Tribunal in its decision was not satisfied the Applicant had a vocational level of English, and should therefore not be granted a skilled visa. The Tribunal found the Applicant did not achieve what is described as the IELTS test score of at least 5 for each of the four components for speaking, reading, writing and listening. It further found that although the Applicant claimed at the hearing that he sat the IELTS test on 25 March and 25 June 2005, he did not give results to the First Respondent's Department. The results were not satisfactory and the Applicant did not have further results to provide to the Tribunal.
The Tribunal further found then it was unnecessary for it to exercise its discretion to waive the requirement for IELTS testing, because the Applicant had already sat the test and the testing was practically for the Applicant. The Applicant, according to the Tribunal, had not provided evidence that he had a vocational level of English, and therefore the Tribunal had no alternative but to affirm the decision under review.
It is clear to me on a proper reading of the Tribunal's decision and findings that it has made findings which are free of any error. The application in this matter is indeed brief and does not provide appropriate particulars. Instead, the Applicant merely asserts that the Tribunal failed to accord natural justice and procedural fairness. In my view, a proper reading of the Tribunal decision leads me to conclude that that has not occurred, and indeed I accept, as submitted by the First Respondent, that in any event, in an application of this kind the equivalent of s.422B of the Migration Act 1958 applies, namely s.357A(1).
I further accept that, applying the authority of Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at paragraphs 60 to 70, which I note, although that may have been regarded as obiter, was nevertheless applied by the same Full Court on the same day in the matter of SZCIJ v Minister for Immigration and Multicultural and Affairs [2006] FCAFC 62 at [7] – [8].
Accordingly, I apply those authorities to the present case. I should indicate, however, that it is probably not necessary to apply that authority or indeed to have regard to s.357A(1) in the present case, as I am satisfied that even if procedural fairness and natural justice applied in this instance I can see no evidence at all that the Tribunal has failed to afford to the Applicant procedural fairness or natural justice. The Applicant was given and indeed took the opportunity to attend the hearing, and the matter was decided by the Tribunal in a way which was free of error.
It is my concluded view for the reasons given in this instance that there is no reasonable prospect of success for the Applicant in this Application, and that accordingly it is appropriate that the Application be summarily dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 15 December 2006