Baig v Minister for Immigration
[2014] FCCA 1114
•17 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAIG v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1114 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – IELTS test not completed – no matter of principle. |
| Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1 Sandhu v Minister for Immigration & Anor [2013] FCCA 2285 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| Applicant: | MIRZA KHALED ALI BAIG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2196 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 17 April 2014 |
| Date of Last Submission: | 17 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Applicant’s application to reinstate be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1549.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2196 of 2013
| MIRZA KHALED ALI BAIG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application to reinstate a judicial review application with respect to a decision of the Migration Review Tribunal made on 4th of December 2013.
The applicant is a citizen of India who applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa on the 20th September 2011.
The Delegate refused the application in June 2012, nearly a year later, because the applicant did not satisfy the language requirements.
The applicant applied to the Tribunal in November 2013.
The Tribunal found that the applicant had not undertaken an English language test and obtained the requisite score in the 2 years prior to making his visa application. This is a requirement set out in the Regulations as has been confirmed in a number of previous cases in this Court and more recently in the decision of Sandhu v Minister for Immigration & Anor [2013] FCCA 2285 (importantly the requirement is not in the form considered in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1: see Singh v Minister for Immigration and Border Protection [2014] FCA 185).
On 17 April 2014 the Application was dismissed and the applicant has sought to re-instate the Application.
In this case, as with most applications concerning migration issues the most significant question is whether or not the applicant has an arguable case. If he does, some consideration should also be had as to the reasons why he did not appear on the first court date.
The applicant’s grounds are effectively a request to be given a dispensation to pursue his visa application even though his English language test results weren’t available before he applied for the visa. Unfortunately, as a result of the way in which the visa criteria are worded in Subclass 485 and Subclass 487 and the operation in particular of cl.485.215 and reg.1.15C the applicant must have his English Language Test score results prior to making application for the visa.
The applicant says from the bar table that after he had applied for the visa he had attended upon 3 different migration agents, none of whom pointed out this problem to him. It is most unfortunate that this case has gone on for so long without any advisor pointing out to the applicant that he simply could not meet the visa criteria because he did not have his English Language test score as at the date of his application.
The case seems all the more unfortunate in the applicant’s circumstances as his English language oral skills as demonstrated by his submissions at the bar table are obviously quite good.
In the circumstances however, the applicant can simply never be given this type of visa on the current visa application because of the conditions and the fact that he did not have the test results to hand prior to his visa application.
In these circumstances his case is doomed to fail and therefore there is no purpose to be served by reinstating it. For this reason I would not reinstate the application and I need not turn to the question of the reasons why he did not attend on the first Court date.
In the circumstances I therefore formally dismiss the current application.
[Further argument ensued]
In this application there has already been a costs order of $1,331 made by the Registrar. The Minister seeks an additional $1,549 which would make it a total of $2,880.
I note that a proceeding concluded at final hearing would have a scale costs order of $6,646 and that a proceeding concluding after the first date for the proceedings but before an actual hearing would be $3,326.
The costs sought by the Minister are considerably less than the scale fees for these types of events which no doubt is reflected by the fact that this case was in fact a very simple case and one in which the applicant would never have succeeded.
The applicant it seems received very poor advice from Migration agents, at least from what he tells me. However, ultimately that is not something the Minister had a hand in and there is nothing that the Minister has done that seems to have caused the difficulty in this case.
Ordinarily costs should follow the event. Even having regard to the circumstances it does not seem to me that under the existing Rules I should make a costs order other than to follow the event. Having regard to the scale fees and the amounts sought and the amount of work in the matter involving as it does a further application for reinstatement and a hearing today it does seem to me that the costs sought are actually reasonable.
In those circumstances I order that the applicant pay the Minister’s costs fixed at $1,549 which will be in addition to the Registrar’s order.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 May 2014
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