Bedi v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 32

[2015] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M119 of 2014

B e t w e e n -

RAVINDER SINGH BEDI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 17 FEBRUARY 2015, AT 9.57 AM

Copyright in the High Court of Australia

MR R.S. BEDI appeared in person.

MR W.A. SHARPE:   May it please the Court, I appear for the first defendant.  (instructed by Sparke Helmore)

HIS HONOUR:   Yes, thank you.  Mr Bedi, I think you were present in Court when I was dealing with the first application.  The procedure which I will follow is substantially the same as with the first application, that is, the Minister submits that your case must fail.  I will hear first from the Minister, then I will hear from you, and that will be your opportunity to tell me why the Minister is wrong.  Do you understand that?

MR BEDI:   Yes.

HIS HONOUR:   Thank you very much, Mr Bedi.  Yes, Mr Sharpe.

MR SHARPE:   Your Honour, this is an application to show cause, pursuant to rule 25.03 of the High Court Rules.  The defendants to the application for show cause are the Minister for Immigration and Border Protection and the Federal Court.  The focus of this application is the decision of the Federal Court by Justice Tracey, being a decision to refuse an extension of time and also to refuse leave to appeal from a decision of the Federal Circuit Court.

HIS HONOUR:   Yes.

MR SHARPE:   Your Honour, the applicant was an applicant for a Skilled (Provisional) visa.  One of the criteria for that visa was that the applicant show that he has competent English.  That is a requirement from clause 485.215 of Schedule 2 to the Migration Regulations and also regulation 1.15C to the Migration Regulations.  The visa application was made on 8 June 2010, refused on 20 March 2012.  An application for review of that refusal decision was made to the Tribunal on 26 March 2012, and then subsequently refused by the Tribunal on the basis that the applicant had not been able to show that he had competent English.

An application was made to the Federal Circuit Court for review of that decision.  That was refused on 8 July 2014 at a show cause hearing on the basis that the applicant had been unable to show there was an arguable case.  The matter went then to the Federal Court and was considered ‑ ‑ ‑

HIS HONOUR:   It is in the intervening period that he passes the relevant test.  Is that ‑ ‑ ‑

MR SHARPE:   That is right, your Honour, there is evidence before this Court now I think that shows that he satisfies the test.

HIS HONOUR:   He achieved the result on 18 September 2014.

MR SHARPE:   That is right, your Honour.

HIS HONOUR:   Yes.

MR SHARPE:   The application before the Federal Circuit Court was considered by Justice Tracey as both an application for an extension of time and also an application for leave.  That was necessary because the decision of the Federal Circuit Court was an interlocutory decision and, therefore, leave was required and the application to the Federal Court was made out of time.  His Honour, however, looked more broadly at a decision of the Federal Circuit Court and at the decision of the Tribunal and determined that there was no basis on which it could be said there was any merit in the application and therefore refused the application for an extension of time and also, therefore, so declined any leave to appeal from the decision of the Federal Circuit Court.

Your Honour, as I have mentioned, the criteria in question before the Tribunal was whether or not the applicant had competent English.  Your Honour has noted now that the applicant has shown ‑ he has evidence that he does meet those requirements.  That evidence, however, was not available either to the delegate or to the Tribunal and the test itself was only sat after the decision of the Tribunal was made, so that evidence was not available at the time.

The applicant was given an opportunity both by the delegate and by the Tribunal to put forward evidence that he satisfied the competent English test.  He was given an opportunity – or invited by the Tribunal to provide that evidence under section 359 of the Act.  There was a failure to respond to that invitation but, nevertheless, an adjournment – further time was given to the applicant to provide that information and eventually after two extensions of time the Tribunal allowed the applicant to provide the information by 27 July 2014, your Honour.  The Tribunal without having heard anything further from the applicant proceeded to refuse the – or affirmed the decision of the delegate.

HIS HONOUR:   I think the date was 7 November 2013, was it not?  Affirmed ‑ ‑ ‑

MR SHARPE:   That is right, your Honour, so maybe ‑ I might have given you an incorrect date for the ‑ ‑ ‑

HIS HONOUR:   I think the MRT disposed of it on 7 November.

MR SHARPE:   That is right, your Honour.

HIS HONOUR:   Well, what am I to do with the fact that the plaintiff now puts on evidence that he has achieved the result?

MR SHARPE:   Your Honour, unfortunately, that information cannot be used in these proceedings to the question whether or not the decision of the Tribunal was the correct decision or there was any error in the decision of the Tribunal.  That information having come after the Tribunal decision, it was not relevant to the proceedings before the Tribunal and the Tribunal was not required, of course, to take it into account.

HIS HONOUR:   Accepting the force of what you say, it is a point not easy of explanation to someone who is not trained in the law.  What submission, if any, does the Minister make about it?  Is there anything that can be added beyond what you have?

MR SHARPE:   Your Honour, I would only say that to the extent there was any claim of lack of procedural fairness the applicant was put on notice of the issues that he needed to address by the letter provided to the applicant under section 359 by the Tribunal.  That letter clearly raised the question of providing evidence of competent English.  The applicant was in contact with the Tribunal seeking further time in order to provide that information and he had indicated that he believed he would be able to provide that information if further time was given to him.

HIS HONOUR:   Well, reduced to its essentials, the proposition is, as I would understand it, he had his chance, he did not take it.  Now, that is either good or bad, but that is the proposition, is it not?

MR SHARPE:   That is the proposition.  If I can put it this way, your Honour, that is one part of the proposition.  The other part of the proposition is possibly – and we do not necessarily know this – but the information the applicant was giving to the Tribunal was that he was undertaking those tests and it may be that in the time period allowed that he was not able to pass the test.

HIS HONOUR:   Well, that is just something we do not know.  Yes.  Is there anything else you want to add, Mr Sharpe?

MR SHARPE:   The only thing I would add, your Honour, is just by way of completeness to mention that the form of regulation 1.15C, which was in effect at the time the applicant made his application for the visa, was the form of the regulation that was considered by this Court in the matter of Berenguel v Minister for Immigration and Citizenship.  The Tribunal was aware of the requirements – the interpretation of regulation ‑ ‑ ‑

HIS HONOUR:   Hence the giving of the opportunity.

MR SHARPE:   That is right, your Honour.

HIS HONOUR:   Yes.  Yes, thank you.  Mr Bedi, the principal answer which the Minister makes to your case I think is this.  This Court has power only to make sure that the law was obeyed.  The merits of the decision are for the administrators.  We have to make sure that the administrators apply the right legal test.  The Minister says they did.  The Minister, as you heard, accepts that you say you have now passed the relevant English test, but they say too late.  So this is your chance to tell me what answer you would make.  Could I just ask you to come to the lectern just so that we can transcribe it, Mr Bedi?  I know it is a bit awkward, but it will be better for us all.  Yes, do go on.

MR BEDI:   Sure.  Thanks for giving me the opportunity to speak.  I am not saying like the Minister said it is too late when I pass the exam.  Like, I have already like completed exam like when my appeal was in the Federal Circuit Court and still Judge Tracey declined my case on behalf of that.  I was in like the time limit, so that was the only reason I came here to High Court to speak up a bit further to explain myself.

HIS HONOUR:   Yes.

MR BEDI:   I do not know, sorry, what is ‑ ‑ ‑

MR SHARPE:   Sharpe.

HIS HONOUR:   Mr Sharpe.

MR BEDI:   Yes, Sharpe said earlier, like there was not – like was not aware ‑ with the time period I was doing the exams or not, I was like taking – but I did like feel – not even feel like 20 times exam but it was not clear that time in the Tribunal.  And at that time, like I was expecting like something trial in the Tribunal, they will call me and I can speak to them, but at that time they just send me an email that your visa cannot be granted.  I was really disappointed that time, then I apply in the Federal.  At that time I had ‑ like I pass exam but still they put aside and they never listen to anything, so ‑ ‑ ‑

HIS HONOUR:   Yes.

MR BEDI:   ‑ ‑ ‑ and then I just came to High Court.  And I was expecting to like in my favour because there was few cases in like 2010 I have already…..in my application, it might be on your desk as well ‑ ‑ ‑

HIS HONOUR:   This is Berenguel?

MR BEDI:   Yes.

HIS HONOUR:   The case of Berenguel?

MR BEDI:   Yes, yes.

HIS HONOUR:   Yes, I am familiar with that.

MR BEDI:   Yes, and there are a few as well, like with Habib and with a grant - like they have given in favour and Mr Habib as well, so it is pretty much same situation like me as well.

HIS HONOUR:   Yes.

MR BEDI:   That is all I can say.

HIS HONOUR:   Thank you very much, Mr Bedi.

The plaintiff, Ravinder Singh Bedi, applied on 8 June 2010 for a Skilled (Provisional) (Class VC), Subclass 485 (Skilled – Graduate) visa.  On 20 March 2012, a delegate of the Minister refused the application on the ground that the plaintiff had not provided evidence of his competence in the English language.  Being dissatisfied with the decision of the delegate, Mr Bedi applied to the Migration Review Tribunal for review of the refusal.  While that review was pending the Tribunal wrote to the applicant inviting him to provide information, being evidence that he met the definition of competent English in the relevant regulation.

The plaintiff sought an extension of the time allowed for provision of that information and on 16 May 2013 the Tribunal notified the plaintiff that it granted him an extension until 24 June of that year.  Shortly before that time expired the plaintiff again asked for a further extension, saying that he had not then “cleared” his exam but had booked further tests on 22 June and 6 July.

The Tribunal told the plaintiff that it would not take any further step in the review before 24 July, thus providing the plaintiff with a further opportunity to provide satisfactory test results.  In its decision the Tribunal recorded that it received no further communication from the plaintiff or his representative after 24 June.  Without hearing the plaintiff the Tribunal affirmed the decision not to grant him the visa which he sought.

The plaintiff applied to the Federal Circuit Court of Australia for judicial review of that decision.  On 8 July 2014, Judge Jones of that court dismissed the application on the basis that the plaintiff had no arguable case.  The plaintiff sought leave to appeal against that dismissal and his application for leave came on for hearing before Justice Tracey of the Federal Court of Australia on 7 November 2014.  In the meantime, on 18 September 2014, the plaintiff had achieved a satisfactory result in demonstrating the requisite degree of proficiency in the English language.

Justice Tracey refused the plaintiff leave to appeal against the decision of the Federal Circuit Court.  It is important to emphasise that the proceedings in the Federal Circuit Court and the proceedings in the Federal Court of Australia concerned whether the Tribunal had acted in accordance with law in deciding the application as it did.  The merits of the decision which the Tribunal made were matters for the Tribunal and the proceedings in the Federal Circuit Court and Federal Court of Australia were not general appeals against the merits of the case which the plaintiff had in his claim for a visa.

On 19 November 2014, the plaintiff filed an application to this Court for an order to show cause directed to the Minister and to the Federal Court of Australia.  Again, the proceedings in this Court are concerned only with the lawfulness of the decision which the Minister made and the Federal Court of Australia made.  Proceedings in this Court are not an opportunity, and this Court has no power, to embark on any consideration of the merits.

Again, I have read with care the decision of Justice Tracey and the decision of the Federal Circuit Court, as well also as the decision of the Tribunal and that of the delegate.  I see no error of law in the decision of Justice Tracey or the decision of the Federal Circuit Court.  I see no jurisdictional error in the decision of the Tribunal.  It follows that the proceedings in this Court are proceedings which must fail.  They must stand dismissed.  Yes, Mr Sharpe.

MR SHARPE:   Thank you, your Honour.  We also seek an order for costs in this matter.

HIS HONOUR:   Again, Mr Bedi, is there anything you can say against an order for costs?

MR BEDI:   No, your Honour.

HIS HONOUR:   Yes.  The proceeding stands dismissed with costs.  Thank you very much for coming, Mr Bedi; you may go.

AT 10.18 AM THE MATTER WAS CONCLUDED