Amandeep Singh Uppal v Minister for Immigration

[2013] FCCA 463

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMANDEEP SINGH UPPAL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 463

Catchwords:
MIGRATION – Judicial review application for a decision of MRT; non‑appearance of applicant; application dismissed pursuant to power under Rules of Court.

Legislation:

Migration Act 1958, s.476

Federal Circuit Court Rules 2001, R 13.03C
Migration Regulations (1994) (C’th), Sch.2 Pt 485 cl.485.215, Reg 1.15C
Commonwealth Constitution, s.75(v)

Cases cited:
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Craig v State of South Australia [1995] HCA 58

Applicant: AMANDEEP SINGH UPPAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 277 of 2012

Judgment of: Judge Lindsay

Hearing date: 15 April 2013

Date of Last Submission: 15 April 2013

Delivered at: Adelaide

Delivered on: 15 April 2013

REPRESENTATION

Applicant: No appearance

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 the application filed 12 November 2013 is hereby dismissed.

2. The applicant is to pay the costs of and incidental to these proceedings fixed in the sum of FIVE THOUSAND AND FOUR HUNDRED DOLLARS ($5,400).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 277 of 2012

AMANDEEP SINGH UPPAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 for orders by way of judicial review of a decision of the Migration Review Tribunal of 17 October 2012 to affirm the decision of the delegate of the Minister not to grant the applicant the visa sought by him, which was a general skilled migration visa.  The relevant part of the Migration Regulations (1994) (C’th), clause 485.215 in Part 485 of Schedule 2, referred to the need for the applicant to have competent English, and that, in turn, was defined by Regulation 1.15C.

2. A person is taken to have competent English if the person satisfies the Minister that he has undertaken or she has undertaken a language test specified by the Minister in writing for the purpose of this subparagraph; the test must be conducted in the two years immediately before the date on which the application was made; and the person must achieve a score specified in the instrument.  The Tribunal’s decision at paragraph 5 goes on to amplify what the tests are and what the scores must be.  The applicant did not have those scores.  We know this because he conceded as much before the Tribunal.  That is set out at paragraph 7. 

3. Paragraph 8 notes that he simply asked for more time to obtain the requisite score, and the Tribunal notes that it explained what surely was obvious, that it would have been, in any event, to no avail.  The regulation requires the test to have been conducted in the two years prior to the date of the making of the application for the visa.  I mean, these are not complicated notions.  There is no basis for assuming that the applicant would not have understood that.  But he has brought an application to this Court and the only ground promoted in the application is to simply state “evidence addressing competent English will be provided”. 

4. I note, in fact, nothing had been provided since the application was filed. There is no outline of submission or any amended application or supplementary material. I mention these matters because, as I was about to describe, s.476 of the Act process permits judicial review of migration decisions and it gives this Court the same jurisdiction as the High Court has under paragraph 75(v) of the Commonwealth Constitution to review migration decisions as they are defined in the Migration Act. And, relevantly, it means a privative clause decision or purported privative clause decision.

5. This decision clearly falls into that category, but the High Court has made plain, since Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, that review will only lie in respect of decisions of the Migration Review Tribunal that can be shown to be vitiated by jurisdictional error. Jurisdictional error is a concept explained by the High Court in many cases, perhaps most clearly in Craig v State of South Australia [1995] HCA 58. There has been no attempt to even identify or to contend for jurisdictional error in the application that has been filed. The application to this Court, and the application to the Tribunal from the delegates decision, are applications that have been made in circumstances of there being no apparent merit in the applications, no prospects for success. The applications have been made ostensibly to provide time for the fulfilment of a condition relating to the grant of the visa, but which condition could never, of its nature, be fulfilled, because it referred to a circumstance that was, in that sense, historical.

6. I make these observations, as it were, by-the-by, just out of a desire to record completely the circumstances of the matter, apprehending as I do the possibility of an application for leave to appeal to the Federal Court of Australia from this decision. I say “an application for leave to appeal” because the applicant is not here and that gave rise to a consideration of the power under the Rules to dismiss the claim. He has been called and he has not answered the call. There has been no representation made to the Court by or on his behalf, or to the Minister’s legal representatives explaining his anticipated non‑attendance. The Court has the power under Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 to dismiss the application if the applicant is absent from a hearing.

7. I am satisfied that he has notice of the hearing because he was present, so the Court record tells me, at the directions hearing conducted by Registrar Christie on 19 December 2012 when this hearing date was appointed and I accept, of course, what I am told by Ms Whittemore today, that there had been communications from the Minister since that time to him at the address provided by him, which confirmed the listing of this matter today. 

8. There being a default of appearance and there being no explanation for that default, it is appropriate to proceed under the power granted by the Federal Circuit Court Rules 2001 to dismiss the application and I do so.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.

Date:  6 June 2013