Bedi v Minister for Immigration
[2014] FCCA 1660
•8 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEDI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1660 |
| Catchwords: MIGRATION – Application for Skilled (Professional) (Class VC) visa – whether applicant had competent English – application for judicial review dismissed. |
| Legislation: Migration Regulations 1994 |
| Applicant: | RAVINDER SINGH BEDI |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2033 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 8 July 2014 |
| Date of Last Submission: | 8 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2014 |
REPRESENTATION:
| Counsel for the Applicant: | Self represented |
| Solicitors for the Applicant: | Self represented |
| Counsel for the First Respondent: | Mr Hornsby |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS:
The applicant pay the respondent’s costs in the sum of $3326 within 28 days of this order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2033 of 2013
| RAVINDER SINGH BEDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the tribunal”), dated 7 November 2013 which affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa (“the visa”).
This is a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001. The issue for determination is whether the application raises an arguable case for relief claimed; rule 44.12, (1).
In so satisfying the Court, the applicant is confined to the relief sought and the grounds mentioned in the application for judicial review; rule 44.13(1). If the Court is not so satisfied, it may dismiss the application.
Background & Applicable Law
On 8 June 2010 the applicant, who is a citizen of India, applied to the Department of Immigration and Citizenship, as it then was, for the visa. This is set out at case book 1 to 13.
On his application, the applicant stated he had not undertaken an English test within the last 24 months. In order to be granted the visa, the applicant was required to meet a range of criteria such as sections 31(3) and 65 (1)(a) of the Migration Act 1958 (“the Act”). Relevantly, this included clause 485.215 of Schedule 2 to the Migration Regulations 1994 (“Regulations”) which provided that the applicant has competent English. Competent English is further defined in regulation 1.15C of the Regulations. The applicable form of regulation 1.15C was as follows:
If a person applies for a general skilled migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved in a test conducted not more than two years before the day on which the application was lodged.
(i)an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening; or
(ii)a score specified by the Minister in an instrument in writing for this subparagraph; and
(b)in a language test specified by the Minister in the instrument or subsection (b) holds a passport of a type specified by the Minister in an instrument in writing for the paragraph.
The delegate refused to grant the visa, as I have indicated, on the basis that the applicant did not provide evidence that he had competent English.
Tribunals Decision
On 27 March 2012, the applicant applied to the Tribunal for a review of the delegate’s decision. His application is set out at Court book 89 to 95. The applicant had appointed a representative to receive correspondence on his behalf and to assist him with his application. This is set out at court book 92.
On 5 April 2013, the Tribunal wrote to the applicant pursuant to section 359 of the Act to request the applicant provide information in the form of evidence that he had met the definition of competent English by 14 May 2013(CB 96 to 100). At page 99 of the Court Book, the Tribunal stated in its correspondence, dated 5 April 2013:
You are invited to provide the following information in writing: evidence that you meet the definition of competent English in regulation 1.15C of the Migration Regulations 1994.
In that correspondence the Tribunal set out the applicable regulation, the terms of that, and then went on to state:
Please note that for the purpose of regulation 1.15C, subsection (a)(iii), the Minister for Immigration and Citizenship has specified a score of at least B in each of the four components of an occupational English language test and for regulation 1.15C, paragraph (b), has specified passports issued by the United Kingdom, the United States of America, Canada and New Zealand and Ireland.
On 13 May 2013, the applicant emailed the Tribunal to request an extension of time to provide evidence of his competent English as he claimed to have booked two more IELTS tests on 8 and 22 June 2013 (CB101). The applicant subsequently provided evidence of the bookings (CB 104). On 16 May 2013, the tribunal wrote to the applicant to notify him that it had granted the extension of time and now required the applicant to provide the requisite information by 24 June 2013(CB105 to 106).
On 21 June 2013, the Tribunal received a further email from the applicant requesting a further extension of time until 20 July 2013 in order to provide the requisite information (CB109). In that email, the applicant says:
Unfortunately, till now, I’ve not been able to clear my exam. I have given couple of attempts and still I did not clear it. I have booked not my IELTS exam for 22 June and 6 July. I am deep – I am in deep trouble at the moment.
On 27 June 2013, the Tribunal informed the applicant by correspondence that it had considered his request and agreed not to take any further steps before 24 July 2013 (CB 111). By letter dated 11 November 2013, the Tribunal notified the applicant of its decision of 7 November 2013 to affirm the delegate’s decision to refuse the visa application(CB 112 to 116).
The Tribunal did not receive any further communication from the applicant or his representative prior to making its decision. There was no hearing. That is, the Tribunal decided not to have the hearing because pursuant to section 359C. It found section 359C applied and because of section 360 (3), the applicant was not entitled to appear. I will return to those sections later. The Tribunal in its decision record found that, having regard to the visa application, the relevant subclass was subclass 485 and this is set out at paragraph 2 of the decision record which is contained at court book 115.
The Tribunal identified that the determinative issue was whether the applicant had competent English as required by clause 485.215 of the Regulations, referred to the definition of competent English in regulation 1.15C and found the applicable instrument for the regulation was IMMI09/73. This is set out at paragraphs 12 to 13 of Court Book 116. The Tribunal found that the applicant did not have competent English as defined for the following reasons.
First, there was no evidence that the applicant had achieved the requisite score in an OET or an IELTS test that would satisfy the requirements of regulation 1.15C, subparagraph (a). This is set out at paragraphs 15 to 16 of the decision record at Court Book 116. Secondly, the tribunal found that the applicant did not hold a passport of the type specified in IMMI09/73 and, hence, did not satisfy regulation 1.15C, subparagraph (b). This is set out at paragraph 14 of the decision record at Court Book 116.
Accordingly, the tribunal concluded that the applicant did not satisfy clause 485.215 and this is set out at paragraph 17 of Court Book 116.
Judicial Review
In his application, filed on 25 November 2013, the applicant set out two grounds for judicial review and I am now quoting:
(1)I am not satisfied with the decision. I was expecting a trial in the Court where I could explain myself.
(2)I am very close to get my English IELTS 6 each.
As the applicant is self-represented here today, I explained to the applicant the difference between a merits review which was conducted by the Tribunal and the judicial review proceedings before this Court. I explained to the applicant that the Court’s function was to focus on the Tribunal decision and to examine whether there had been a legal mistake, a phrase I use for jurisdictional error. I explained that a legal mistake could arise by the wrong application of the law or a failure to follow the fairness procedures in the legislation or a failure to consider the applicant’s claims for the particular visa.
The applicant agreed, in his submissions today, that in fact he does not and did not have at the time of the Tribunal hearing, competent English within the meaning of the Act. He says that he is very close to getting it. He has some tests to complete. He understood that a criteria for the visa that he sought was that he have competent English and he conceded that he did not have so at the time of the Tribunal hearing. He said that he was advised by his migration agent to make this application for judicial review.
He also said that he expected to appear before the Tribunal and did not understand why he was not called to appear before the Tribunal and that was his first ground of review, that he ought to have been able to appear before the Tribunal and give evidence. As I have already indicated, the Tribunal wrote to the applicant on 5 April 2013 pursuant to section 359 of the Act, to seek information from the applicant in the form of evidence that he had competent English. The application did not provide the information requested in the Tribunal’s invitation under section 359. Hence, by reason of the combinations of section 359C(1) and section 360 (3) of the Act, the applicant was no longer entitled to appear before the Tribunal.
It is appropriate that I turn to those provisions of the Act. Section 395C (1) provides that, if a person is invited in writing under section 359 to give information and that person does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action.
As I have indicated, that the Tribunal did invite the applicant pursuant section 359, to give information, and the applicant did not do so.
The section 360 provides as follows.
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Now, the applicant did not provide the information he was requested to do by reason of section 359. By reason of the fact that, first, the applicant was invited to provide information – that is, his English competency within the meaning of the Act; second, provide that information, section 360(3) applied.
The inevitable consequence is that the Tribunal was not required, in fact, indeed, the applicant was not entitled to appear before the Tribunal and that is why the Tribunal did not conduct a hearing but proceeded by way of the documentary material before it. The consequence of this, of course, is that the applicant’s first ground that he was not able to appear before the Tribunal does not constitute a jurisdictional error by reason of the fact that he was not entitled to do so.
The second ground of his application is that he is very close to getting his English IELTS. He may very well be so, however, as I have explained to the applicant and as is clear, having regard to the regulations that apply pursuant to the provisions of the Act, the applicant was required to have the test conducted not more than two years before the date on which the application was lodged. The applicant concedes these are point in time decisions; the applicant concedes that he had not completed the test before his application, nor had he completed the test before the Tribunal hearing. Therefore the fact that he might be close to getting his IELTS now is neither here nor there because the legislation is quite clear and that is, that unless the applicant had undertaken the test in the two years prior to his application, he was not entitled to be granted the particular visa in question.
Accordingly, I find firstly that there is no jurisdictional error affecting the decision of the Tribunal. Secondly, I dismiss the application of the applicant made on 25 November 2013 for judicial review.
This is my decision and these are my orders in this matter. Thank you
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 29 July 2014
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