CHATLA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 811

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHATLA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 811

Catchwords:
MIGRATION LAW – Application for review of Migration Review Tribunal decision – applicant failing to provide proof of competent English – failure fatal to application – application dismissed.

Legislation:  

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.15C, cl.485.215

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Applicant: CHANDISHWAR CHATLA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1551 of 2012

Judgment of: Judge Burchardt

Hearing date: 27 May 2013

Date of Last Submission: 27 May 2013

Delivered at: Melbourne

Delivered on: 19 July 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1551 of 2012

CHANDISHWAR CHATLA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 4 December 2012, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).  That decision is annexed to the affidavit filed in support of the application and is dated 23 November 2012.  The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.  The application lists no grounds of application.  The affidavit merely says:

   “Please refer to ‘section B’ of supporting documents.”

2. The only documents annexed to the application, however, are what appear to be copies of pages from the applicant’s passport, including his visa for Australia and the Tribunal’s decision record, together with accompanying correspondence informing the applicant of the outcome. 

3. On 15 February 2013, Registrar Allaway made orders which, inter alia, required the applicant, before 1 April 2013, to file and serve an amended application, if any, and a supplementary court book, if any and written submissions.

4. The applicant did not file any such materials.  Accordingly, it is immediately apparent that the application remains wholly unparticularised.  When the matter came before the Court, the applicant said that he had one request only, which was that the Court consider two test reports.  I permitted the applicant to provide to the Court copies of two test results; the first is dated 1 December 2012 and the second is dated 19 January 2013.  That is to say those are the dates, as I would understand it, upon which the applicant took his tests.

5. I note that in each of the tests, his marks were under six in relation to one component of the test results.  That document was marked exhibit MFI1.  The test results were received over the objection of counsel for the Minister, who submitted, correctly enough, that it is apparent that the Tribunal’s decision was given on 23 November 2012 and the Tribunal was clearly functus officio at that time.  The decision clearly predated both test results now sought to be tendered and clearly the Tribunal cannot have fallen into jurisdictional error in not having regard to them.

6. Furthermore, as counsel once again correctly submits, it was a requirement of the Migration Act 1958 (“the Act”) and the Migration Regulations 1994 (“Regulations”) that the applicant receive a score of not less than six in every component of his tests and therefore, to admit the materials that the applicant sought to tender would not assist him in any event. 

7. In concluding in reply, the applicant said only that he sought more time to take his tests.  It is implicit in that request that he understands that he has thus far failed to achieve the necessary results required to comply with his visa criteria.

8. The history of the matter is set out in the written submissions of the first respondent, which are not controversial and which are clearly supported by the Court Book (“CB”) and I take the following from that recitation.  The applicant is a 27 year old citizen of India who applied on 28 January 2011 with the assistance of a migration agent, for a visa.  On 17 January 2012, a delegate of the first respondent wrote to the applicant and invited him to provide evidence of his English language ability.

9. On 25 January 2012, the applicant wrote to the delegate and stated he was attending a course to improve his English and would have difficulty providing evidence of his English language ability. He asked for an extension of time. On 27 January, the delegate responded, stating the applicant’s response was due on 14 February 2012, which was the original date for him to reply. On 30 April, the delegate for the first respondent refused the application on the basis that the applicant had not demonstrated competent English in accordance with the regulations.

10. On 1 May 2012, with the assistance of his migration agent, the applicant applied to the Tribunal for merits review.  On 10 September 2012, the Tribunal invited the applicant to provide evidence he could meet the definition of competent English.  The Tribunal noted that evidence of competent English was a criterion for the grant of the visa and set out the relevant statutory criteria.  The Tribunal gave the applicant until 8 October 2012 to provide the response and expressly alerted the applicant to the consequences of failing to do so.

11. On 28 September 2012, the applicant wrote to the Tribunal and asked for an extension of time.  On 1 October 2012, the Tribunal granted the request and wrote to the applicant, stating that he had until 29 October 2012 to provide the information.  The Tribunal again warned the applicant of the consequences of failing to provide the information.  The applicant did not provide the information requested and on 26 November 2012, the Tribunal decided the application on the basis of the information before it.

12. One turns to the Tribunal’s decision, which is at CB129-132, I note that the Tribunal set out the application and the relevant law in terms that seem to me to be entirely correct. The Tribunal then turned to the criterion in issue at CB130 and noted that cl.485.215 requires that the applicant have competent English. The Tribunal noted that competent English is defined in r.1.15C of the Regulations and relevantly requires that a person must achieve, in a test conducted not more than two years before the day on which the application was lodged, an IELTS score of at least six for each of the four test components of speaking, reading, writing and listening.

13. The Tribunal noted, pursuant to the authority of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 that the English language proficiency requirement can be satisfied by tests undertaken after the application has been made. The Tribunal correctly noted that the issue in the present case was whether or not the applicant had provided evidence of the relevant level of English ability for the grant of his visa. The Tribunal noted the fact that the applicant had not complied with the opportunities provided to him to provide his test score results and noted correctly, at paragraph 18 (CB131), “there is no evidence of any IELTS test or OELT score”.

14. The Tribunal relevantly found, at paragraphs 22-23 (CB132):

    “The Tribunal further finds that the applicant has not achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or achieved at least ‘B’ in each of the 4 test components in an OELT, conducted not more than 2 years before the day on which the visa application was lodged.  The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.

    The Tribunal finds that the applicant does not satisfy cl.485.215.”

15. The Tribunal noted other matters at paragraph 24 that were antithetical to the applicant’s claim.  In the circumstances, where the applicant’s additional documents, even if admissible, only go to show that he has still not achieved the relevant test score, it is clear that the Tribunal did not fall into jurisdictional error and that the application must be dismissed.  Unfortunately for the applicant, his obviously sincere request that he be given more time to comply simply cannot be accommodated in view of the fact that he had to have the relevant score at the time of his original visa application.  His failure to do so is clearly fatal to his case.  Accordingly, the application will be dismissed with costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  19 July 2013