CHANGELA v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANGELA & ORS v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 912

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – No arguable case for the relief claimed – application dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001(Cth) s.44.12

First Applicant: MINTUBEN ANAND CHANGELA

Second Applicant: HARSH ANAND CHANGELA

Third Applicant: ANAND KANTILAL CHANGELA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1056 of 2013

Judgment of: Judge Emmett

Hearing date: 17 July 2013

Date of Last Submission: 17 July 2013

Delivered at: Sydney

Delivered on: 17 July 2013

REPRESENTATION

The First Applicant appeared in person

Solicitor for the First Respondent: Mr M. Alderton (Sparke Helmore Lawyers)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1056 of 2013

MINTUBEN ANAND CHANGELA

First Applicant

HARSH ANAND CHANGELA

Second Applicant

ANAND KANTILAL CHANGELA

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), requiring the applicant to show cause in circumstances where if the court is not satisfied that the application has raised an arguable case for the relief claimed, the court may dismiss the application. The initiating application filed on 16 May 2013 contained no grounds at all. Based on the absence of grounds in the application, rule 44.12 is satisfied. However, the applicant made further complaints in her affidavit annexing the decision of the Migration Review Tribunal, relevantly, as follows:

   “I was not well since Jun 2012 due to my family problem in India and so was not able to concentrate to study /Preparation of my IELTS Test examination. Unfortunately I did not achieve required bands because of my family problem.

   I again requested migration review tribunal to give some more time to appear in another IELTS Test but again my request was refused. I think I am become a victim of procedure fairness issue/matter here as migration review tribunal has an error in my decision by not allowing enough time. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects give enough time to produce documents.”

2. The substance of the applicant’s complaints are that she was not given further time to seek to satisfy a mandatory requirement of her visa. That requirement is she have competent English by demonstrating that she has a band six in respect of four different areas under the IELTS scheme.  The decision record makes clear that the applicant was given opportunities to provide satisfactory results, including a further adjournment at the tribunal hearing that was held on 21 February 2013. 

3. The applicant acknowledged before the Migration Review Tribunal that she had done about 10 tests without satisfactory result and had recently sat for another test on 16 February 2013 and was awaiting that test result.  The applicant was permitted further time by the Tribunal to provide that test result.  When it was received, the applicant had failed that test also. 

4. In the circumstances, the Tribunal had no discretion other than to affirm the decision under review that competent English being a mandatory requirement of the applicant’s visa. 

5. The applicant was unrepresented this morning.  She confirmed at the outset that she did not require an interpreter. However, during the hearing, she said she wished to have an opportunity to get a solicitor and that she needed an interpreter.  She did not appear to need an interpreter. Further, the applicant did not identify any particular solicitor or any attempt made by her to obtain a solicitor to date. 

6. In those circumstances and in light of the applicant’s confirmation that she did not need an interpreter at the beginning of the hearing, to the extent that the applicant seeks an adjournment of today’s hearing, that application is refused. 

7. The Tribunal’s decision record does not suggest that it is affected by any error that goes to the Tribunal’s jurisdiction. The application for an adjournment is also refused on the basis that to stand the matter over and return the matter to the list would have no utility given the applicant’s unhappy prospects of success. 

8. In all the circumstances, particularly the failure of the applicant this morning to raise an arguable case, this is a matter that is properly disposed of by way of r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

9. Accordingly, the proceeding before this court commenced by way of application filed on 16 May 2013 is dismissed, pursuant to r.44.12 of the Federal Circuit Court Rules. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:  23 July 2013