AKRAM v Minister for Immigration

[2015] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKRAM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 683

Catchwords:
MIGRATION – “Show Cause” application – application for Skilled Residential Visa – applicant concedes that he had not provided evidence of English proficiency – no discretion in Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: AUN AKRAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1016 of 2014

Judgment of: Judge McGuire

Hearing date: 23 March 2015

Date of Last Submission: 23 March 2015

Delivered at: Melbourne

Delivered on: 23 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 30 May 2014 be dismissed.

2. The Applicant pay the first respondent’s costs and disbursements of an incidental to the application fixed in the sum of $3416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1016 of 2014

AUN AKRAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application for judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) made 5 May 2014, affirming a decision of the Minister’s delegate not to grant the applicant a Skilled Residential (Class VB) Visa (“the visa”).

2. On 20 August 2014 the Registrar listed the application for a Show Cause hearing this day. The applicant represents himself before me. His application does not disclose that he requires an interpreter. He has filed written submissions on 16 March 2015 in support of his application.

3. The first respondent has also filed written submissions dated 5 March 2015 and opposes the application for an order to Show Cause.

4. The application articulates one ground only being:

   1. The decision of the Migration Review Tribunal is made without jurisdiction and is affected by jurisdictional error

   Particulars;

   The Tribunal was well aware of the applicant’s circumstances with regard to the health of his parents and this had a marked result on his mental health. This was evident in that his mental health was in such a state that he lost his job that he had held down for a number of years. He was subsequently forced to travel to Pakistan to look after their needs. The very fact that he had previously passed his English to the required standard should have been evidence enough for the Tribunal to take into account his currently mental health and grant him a period of time before he would sit for the IELTS, which he would have passed

5. That ground is perhaps expanded by the argument of the applicant in his written submissions at [4], [5] and [6] as follows:

   The Migration Review Tribunal was well aware of my circumstances with regard to the health of my parents and this had a marked result on my mental health. This was evident in that my mental health was in such a state that I lost my job that I had held down for a number of years.

   I was subsequently forced to travel to Pakistan to look after their needs. The very fact that I had passed my English to the required standard should have been evidence enough for the Tribunal to take into account my current mental health and grant me a period of time before I would sit for the IELTS, which I would have passed.

   I was requesting that the Migration Review Tribunal exercised its discretion and grant me a period of a few months so that I could make a recovery from the very bad mental health condition that I was suffering at the time.

Background

1. The applicant is from Pakistan. On 28 May 2012 he applied for the relevant visa. In his application he disclosed that he had not undertaken a prescribed English language proficiency test within the previous 24 months. The applicant was not exempt by reason of holding a passport pursuant to regulation 1.15C of the Migration Regulations 1994 (“the Regulations”). The applicant did however, provide to the Minister’s delegate with a letter dated 24 May 2012 indicating that he would be taking the required test on 9 June 2012. No evidence of the test results were provided to the delegate, who on the 20 December 2013 refused the application on the basis that the applicant did not meet the legal requirements for the visa, namely cl. 885.213 of schedule 2 of the regulations, being a mandatory requirement.

2. On 8 January 2014 the applicant applied to the Tribunal for a review or a hearing de novo of the delegate’s decision. With that application the applicant provided a copy of results of an IELTS test that he had in fact sat on 5 November 2011. There is no evidence to suggest that the proposed test of 9 June of the following year produced any results.

3. At [7] of applicant’s written submissions the applicant concedes:

   I was well aware that I did not have the required score of 6 in all of the competencies of the IELTS test, but given the exceptional circumstances that I found myself in, the Migration Review Tribunal should have been bound by its charter that it is to provide a decision that was fair and just.

4. The hearing before the Tribunal was set down for 7 March 2014 but was adjourned at the request of the applicant who said he was travelling overseas.

5. The hearing was rescheduled for 5 May 2014. The applicant attended at the hearing before the Tribunal.

The Tribunal’s Reasons

1. In its reasons the Tribunal noted the visa type sought by the applicant and that his English language proficiency was at the issue. The Tribunal found that the applicant was not the holder of a passport from a country listed in regulation 1.15C of the Regulations. The applicant conceded that he had not achieved the requisite scores in a English language proficiency test undertaken during the statutory period, and therefore, that he did not have composite English as defined in the Regulations and hence did not satisfy cl. 885.213. Specifically at paragraph [13] of its reasons the Tribunal states;

   The Tribunal explained that it did not have discretion in relation to the requirement to have competent English, only the Minister had such power. The Tribunal was required to apply the law. The applicant stated that his advisor who had assisted him in his previous temporary visa application had passed away so was not able to advise that the requirement for the permanent visa was now a score of 6 in all four component areas. The applicant stated he was the sole provider for his family.

2. This is undoubtedly a correct statement of the relevant law from the Tribunal member.

3. In respect of this application, and as indicated to the applicant today, he must demonstrate, in order to succeed, that the Tribunal’s decision was infected by an error of law. This is not a forum for a further investigation of the facts or a hearing de novo.

4. To my mind, the one ground of the complaint set out in the application does not particularise any alleged jurisdictional error of the Tribunal. At its highest, or perhaps its broadest, the applicant may be seen as complaining that the hearing should have been adjourned so as to allow further time for him to complete the English language test and provide evidence to the Tribunal. Nevertheless, there is no evidence that a further adjournment of the hearing had been requested and it is noted the indulgence of the Tribunal in giving an earlier adjournment.

5. There is the evidence of the applicant relying on his test results from 2011. As I have already said, he concedes in his submissions to this Court that they were not satisfactory or sufficient to satisfy the requirement of the statute.

6. There can be no argument, therefore, in my view that proper procedural fairness was not accorded this applicant. The English language requirement is a mandatory one under the statute and the applicant did not satisfy this requirement. There is no discretion in the Tribunal to waive or vary the requirement. Although, in its reasons it is quite clear that the Tribunal did consider the applicant’s personal circumstances at [10] – [12] of those reasons, the Tribunal was undoubtedly correct in its view as to its lack of discretion as set out at [13] of those reasons. There is, therefore, no error of law evident in the process of the Tribunal in reaching its determination.

Conclusion

1. It follows that the only order open to me is that the application that the Minister Show Cause be dismissed and I will order accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 March 2015