DHINDSA v Minister for Immigration
[2014] FCCA 2451
•28 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHINDSA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2451 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – application for Skilled (Residence) (Class VB) Subclass 885 visa – adjournment refused – no appearance by or on behalf of the Applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.360 Migration Regulations 1994 (Cth), Reg.1.15C, Sch 2, Part 885, cls.885.21, 885.22, 885.213 |
| Pakala v Minister for Immigration & Anor [2014] FCCA 145 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| Applicant: | SUKHJINDER SINGH DHINDSA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 814 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 13 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2014 |
REPRESENTATION
| The Applicant: | No Appearance |
| Counsel for the respondents: | Mr Murano |
| Solicitors for the respondents: | Clayton Utz Lawyers |
ORDERS
The application for an adjournment is dismissed.
The Application filed 2 May 2014 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 814 of 2014
| SUKHJINDER SINGH DHINDSA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By way of Application filed 2 May 2014 the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 2 April 2014. The Tribunal affirmed a decision of the First Respondent by his delegate (‘the delegate’) not to grant the Applicant a Skilled (Residence) (Class VB) Subclass 885 visa.
In the Response to Application filed 14 May 2014 the First Respondent opposed the Application for an order to show cause filed in this Court on 2 May 2014 on the grounds that the Tribunal decision is not affected by jurisdictional error.
By Orders made by consent pursuant to r.13.04(4) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) on 5 August 2014 before Registrar Allaway the application was listed for a hearing pursuant to r.44.12 of the Rules. The First Respondent has filed and served written Submissions dated 24 September 2014 in respect of this hearing but the Applicant has failed to do so (both being required to do so pursuant to the Orders made by consent). There is also before the Court on the hearing of this matter the Court Book filed 20 June 2014 which is in evidence in the proceedings.
The grounds of application for judicial review as set out in the Application filed 2 May 2014 are as follows:-
“1. I have strong grounds to prove that MRT decision was made in error.
2. I want to further provide my claims that my application for Skilled (Residence) should not be refused.”
As can be observed, there is no particularisation of the grounds in the Application and to that extent they are meaningless.
The Applicant failed to attend the hearing on 13 October 2014. He did however make a written application for an adjournment of the hearing in correspondence to the Court received 10 October 2014. That application for an adjournment was opposed by the First Respondent. The Court heard submissions in respect of the Applicant’s application for an adjournment, and determined that such application should be refused.
The basis of the Applicant seeking an adjournment was because he was at the time of the hearing, out of the country and in India. He said in the correspondence forwarded by him received 10 October 2014 relevantly:-
“…
I have hearing on 13 October 2014. But unfortunately I will not be able to attend the hearing because of my family medical emergencies in India. As my mother (kiran kaur) is under health disorder of heart problem and sudden unconsciousness from last few months. Therefore I visited India several times in a short interval. This time I scheduled my visit so that I attend my hearing on time. But my father, who is in police services in India and the only person to look after my mother, is appointed out of town on emergency duties for a short interval, because of festive season in India. After him I am the only person who can look after my mother (as doctor recommended) until my father came back.
As above said situation I am requesting honourable court to grant me extension for the shearing (sic). I hope honorable (sic) court will understand my problem and help me in this hard time. I will be very thankful for you.
…”
The travel document annexed to that correspondence indicated that the Applicant would be returning from India to Melbourne, arriving at Terminal 2, Melbourne Airport on 12 October 2014 in the morning.
The material put before the Court by the Applicant was insufficient for the Court to grant an adjournment of these proceedings to the next available date, being some five or six months hence. The travel documents indicated that, in fact, the Applicant had returned to Australia the day before the hearing. The communication itself provided no reasonable nor compelling explanation as to why the Applicant could not be in attendance at the hearing. The matter thus proceeded in the absence of the Applicant. The judicial review application shall be dismissed for the reasons which follow. It was unmeritorious and costs shall follow the event.
History
The Applicant is a citizen of India. On 28 December 2012 the Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a Skilled (Residence) (Class VB) Subclass 885 visa (‘the visa’) as set out in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria are set out in Part 885 of Schedule 2 to the Regulations which are respectively headed:-
a)Criteria to be satisfied at time of application; and
b)Criteria to be satisfied at time of decision.
Clause 885.213 of Schedule 2 to the Regulations is a mandatory requirement that the Applicant have competent English. The expression ‘competent English’ is defined in Reg.1.15C of the Regulations which provided at the relevant time:-
“(1) A person has competent English if:-
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.”
The Court notes in respect of subparagraph (2) above, the Applicant is not the holder of such a passport type.
At all relevant times, the First Respondent had relevantly specified:-
a)for the purpose of Reg.1.15C(1)(a) of the Regulations, an International English Language Testing System (‘IELTS’) test or an Occupational English Test (‘OET’);
b)for the purposes of Reg.1.15C(1)(c) of the Regulations, an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening or an OET score of at least “B” in each of its four components; and
c)for the purpose of Reg.1.15C(2) of the Regulations, a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland to a citizen of that country (Legislative Instrument IMMI 12/018).
By reason of Reg.1.15C(1)(b) of the Regulations, the Applicant could only obtain ‘competent English’ within the meaning of Reg.1.15C of the Regulations by providing satisfactory results of a language test conducted in the three years immediately before the date of the visa application. Accordingly, any test conducted before 28 December 2009 or after 28 December 2012 would be irrelevant to the requirements set out in the visa criteria.[1]
[1] Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [16]-[17].
On 28 December 2012, the Applicant applied to the Department for the visa. In his visa application, the Applicant stated that:-
a)he had undertaken an English language test within the last 24 months, on 24 July 2012;
b)his language ability was competent; and
c)the IELTS test reference number was “12AU010721DHIS24OG”.
The delegate refused to grant the visa because the Applicant did not have the required English language proficiency, as determined by his test results.
On 6 September 2013, the Applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 5 March 2014, the Tribunal invited the Applicant to appear before it to give evidence and present arguments at a hearing scheduled on 2 April 2014. The letter specifically:-
a)noted that the Applicant was yet to provide evidence that he had ‘competent English’;
b)set out the ways the Applicant could show ‘competent English’;
c)invited him to provide any documents he relied on to establish he met the criteria for the visa; and
d)noted that it would only change the scheduled hearing date if satisfied the Applicant had a “very good reason” and explained that if he failed to appear, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.
The Applicant attended the hearing on 2 April 2014. At the hearing, the Applicant provided the Tribunal with written submissions that in substance reiterated the submissions the Applicant submitted to the Tribunal on 6 September 2013.
On 2 April 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant the visa. In its Decision Record dated 2 April 2014 (‘the Decision Record’), as accurately set out in paragraph 19 of the First Respondent’s submissions, the Tribunal found that:-
“(a) the applicant did not meet the requirements of reg 1.15C(b) because he did not hold a passport of the type specified in Legislative Instrument IMMI 12/018;
(b) the applicant’s IELTS test results showing that he had “competent English” did not relate to an IELTS test conducted in the 3 years immediately before the date of the Visa application in accordance with reg 1.15C(a); and
(c) the applicant did not meet the criteria for subclass 886 or 887 visas.”
Consideration
Given the unparticularised nature of the Applicant’s grounds of review and this Court’s lack of requirement to effectively create grounds of review for the Applicant, this consideration must be limited. On a fair reading of the Decision Record it is not affected by jurisdictional error. The Tribunal set out the relevant law applicable and clearly understood the nature of its decision making task under the Migration Act 1958 (Cth) (‘the Act’). On the evidence which was before it the Tribunal made the only decision open to it. The Tribunal was not at liberty to take the IELTS test conducted on 27 April 2013 or that conducted on 9 March 2013 into account. Whilst both test results showed the Applicant had ‘competent English’, the Tribunal was required to have placed before it by the Applicant evidence of a test in which he received scores meeting ‘competent English’ in a test conducted three years immediately before the day his application for the visa was made, and not the result of tests provided after he had lodged his visa application. The IELTS test completed on 24 July 2012 which was before the Tribunal, and which was a test conducted in accordance with the Regulations, did not indicate that the Applicant had ‘competent English’.
The Tribunal explained (as set out in paragraph 15 of the Decision Record) to the Applicant, that the Tribunal had to consider the law that applied to the visa application that had been lodged by him. The Tribunal noted to the Applicant that he had not provided evidence of requisite scores in a specified test prior to the lodging of his visa application.
There is no evidence in the Decision Record, or in the conduct of the Tribunal, indicating that the Applicant was not afforded procedural fairness. Indeed, the Applicant was invited to attend a hearing and give evidence and present arguments in accordance with s.360 of the Act. The issues arising on the decision under review were made known to the Applicant prior to the hearing before the Tribunal and again during the currency of the hearing. The Tribunal’s decision was made on the basis of information provided by the Applicant.
The Tribunal correctly applied the law, albeit in its Decision Record it did not list the correct legislative provisions, referring to Reg.1.15C(a) of the Regulations when the relevant provision is Reg.1.15C(1) of the Regulations and referring to Reg.1.15C(b) of the Regulations when the relevant provision is Reg.1.15C(2) of the Regulations. However, nothing turns on these errors. As they do not go to jurisdiction, the Tribunal applied the correct test.[2]
[2] Pakala v Minister for Immigration & Anor [2014] FCCA 145 at [22]–[23].
The Applicant’s failure to provide any evidence to satisfy the ‘competent English’ criteria as required was dispositive of his application for review to the Tribunal. There is no jurisdictional error.
Finally, I shall add and as correctly submitted by the First Respondent in its Submissions filed 24 September 2014 at paragraph 36:-
“In relation to the applicant’s assertion to the Tribunal that he was misled or misrepresented by his former migration agent, the Minister notes that:
(a) the Tribunal explained to the Applicant that it was bound to apply the definition of “competent English” and that it had no discretion to find that he met those requirements or to waive those requirements; and
(b) the applicant has not claimed that his former agent’s conduct was fraudulent. In any event, even if such a claim was made, fraud will only vitiate a Tribunal’s decision where the actions amount to fraud on the Tribunal as described by the High Court in SZFDE and MIAC (2007) 233 CLR 189. On the material before the Tribunal and this Court, that could not be the case.”
The application is dismissed. Costs will follow the event.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 28 October 2014
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