Estocado v Minister for Immigration

[2014] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESTOCADO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 884

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Berenguelv Minister for Immigration (2010) 264 ALR 417

First Applicant: BIENVENIDA TEANO ESTOCADO

Second Applicant: LARRY BAUTISTA ESTOCADO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 862 of 2014

Judgment of: Judge Driver

Hearing date: 30 April 2014

Delivered at: Sydney

Delivered on: 30 April 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms A Wong

DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.11(a) of the Federal Circuit Court Rules 2001 (Cth), there be an immediate show cause hearing.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 862 of 2014

BIENVENIDA TEANO ESTOCADO

First Applicant

LARRY BAUTISTA ESTOCADO

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 31 March 2014 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal decision was made on 19 March 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Ms Estocado, a skilled residence visa. 

2. The matter came before me today for first Court date directions.  The Minister had filed a response on 14 April 2014, which notes that the application pleads no grounds for review whatsoever.  The Minister notes from the Tribunal decision that it is apparent that Ms Estocado had taken an International English Language Testing System (IELTS) test but had not achieved the necessary score.  The Tribunal decision noted that it had explained the consequences of this to Ms Estocado, and that Ms Estocado indicated that she understood. 

3. This morning the solicitor for the Minister sought the summary dismissal of the application on the basis that no jurisdictional error by the Tribunal had been asserted in the application.  The application, indeed, is blank in that regard.  The supporting affidavit filed with the application on 31 March this year simply states that Ms Estocado wishes to appeal against the decision of the Tribunal.  That much is uncontroversial. 

4. Having questioned Ms Estocado at the bar table in relation to the application, I decided to order an immediate show cause hearing for the purpose of inquiring whether any arguable case of jurisdictional error by the Tribunal could be discovered. 

5. Ms Estocado agreed to give oral evidence.  In her evidence she told me a number of things.  First, she was assisted to some extent before the Tribunal by a registered migration agent, Ms Jimruz Erive‑Cabacungan. Ms Estocado provided me with Ms Erive‑Cabacungan’s business card, which I took a photocopy of and received as an exhibit[1]. The Office of the Migration Agents Registration Authority website confirms that Ms Erive-Cabacungan is a registered migration agent.

   [1] Exhibit C1

6. Ms Estocado told me that Ms Erive-Cabacungan had also agreed to assist her with the application to the Court, and had prepared the application upon which she relies.  It would seem, therefore, that Ms Erive-Cabacungan was at fault in not including any grounds of review in that application. 

7. I asked the applicant about her visa application and IELTS tests that she had undertaken.  She told me that, at the time of her visa application in 2012, she was aware of the need to pass an IELTS test.  She had sat a number of tests – perhaps four or five – in the two years immediately preceding the visa application.  However, she had not been able to secure a passing score.  It seems that her best result was achieved in August 2013, well after she had made the visa application, in which she had received scores in the range of 5.5 to 6.5.  She told me that she had consistently been unable to receive a passing grade in at least two elements of the test. 

8. Ms Estocado confirmed that she had attended a hearing before the Tribunal by telephone on 5 March 2014.  It appears uncontroversial that the problem of the IELTS test was discussed at that hearing.  Ms Estocado did not furnish anything further to the Tribunal in relation to that issue after the hearing.  That was no doubt because, although she had continued to sit IELTS tests, she had not been able to pass one.  Even after the Tribunal decision she has continued to sit IELTS tests, but has not received a passing grade in all elements of the test.  Her most recent attempt was on 21 March 2014.

9. There is at the present time an issue which has not been conclusively resolved in relation to the interpretation of clause 885.213, and regulation 1.15C of the Migration Regulations 1994 (Cth) in relation to the IELTS test. The visa criteria applied to this applicant required that the test be undertaken in the two years immediately before the day on which the visa application was made. The visa criteria were amended to add the word “immediately” with the express purpose of ensuring that only a test undertaken in the period of two years prior to the visa application could be taken into account.

10. The High Court in the case of Berenguelv Minister for Immigration[2] had held that an earlier form of the Regulations, without the word “immediately”, should be interpreted in such a way that a test could be undertaken up until the time of a decision on the visa application.  The unresolved question is whether the amendment has achieved the drafter’s stated purpose.  There are a number of cases before the Court awaiting a hearing on that issue. 

    [2] (2010) 264 ALR 417

11. I have considered whether the Court should grant Ms Estocado further time to amend her application in order to address that issue, or whether the Court should make a show cause order in her favour now directed to that issue.  I have concluded that there would be no point in doing so, because Ms Estocado conceded in evidence that, although she has undertaken the test many times, her English is not good enough for her to achieve a passing score in all elements of it.  Accordingly, it would not matter what interpretation was put on the Regulations in her case. 

12. I have concluded that there is no arguable case of jurisdictional error by the Tribunal that can be advanced in these proceedings. Accordingly, I will order that the application be dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application the Minister seeks an order for costs in the sum of $900.  That is significantly below the scale amount prescribed for a dismissal at the first court date.  Ms Estocado was assisted by a friend, Nabil Nasr, this morning, and he made submissions both against an adverse judgment and costs, and vowed to take the proceedings further.  I counselled him that the proceedings were not his, but were those of Ms Estocado, and that he should take care not to put himself in a position where he became personally exposed to a costs order.

14. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $900.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 6 May 2014