Govind v Minister for Immigration & Border Protection

[2014] FCCA 957

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOVIND v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 957

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal considered the applicant’s claims at a hearing – whether the applicant complied with regulation 1.15C of the Migration Regulations 1994 (Cth) at the time of application – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.338, 474
Migration Regulations 1994 (Cth), reg.1.15C, 2.01, 485.215

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1

Applicant: GOVIND GOVIND

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1329 of 2013

Judgment of: Judge Emmett

Hearing date: 12 May 2014

Date of Last Submission: 12 May 2014

Delivered at: Sydney

Delivered on: 12 May 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1329 of 2013

GOVIND GOVIND

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 21 May 2013 and handed down on 22 May 2013 (“the MRT”).

2. The issue in this case is whether the applicant met the requirements of r.1.15C of the Migration Regulations 1994 (Cth) at the time of his application for a visa.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 28 July 2011, the applicant lodged an application for a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa with the (then) Department of Immigration and Citizenship (“the Department”).

2. On 18 September 2012, the Delegate refused the applicant’s application for a Skilled Graduate (Temporary) (Class VC, Subclass 585) visa.

3. On 8 October 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

4. On 21 May 2013, the MRT affirmed the decision of the Delegate not to grant a Skilled Graduate (Temporary) (Class VC, Subclass 585) visa.

5. On 14 June 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. The relevant criterion which must be met at the time of application for the grant of a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa is set out in cl.485.215 to Schedule 2 of the Regulations, and is as follows:

   “485.215      The applicant has competent English.”

3. “Competent English” is defined in r.1.15C of the Regulations as follows:

   “If a person applies for a General Skilled Migration visa, the person has competent English if the person:

   (a)    satisfies the Minister that:

   (i)    the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

   (ii)    the test was conducted in the 2 years immediately before the day on which the application was made; and

   (iii)    the person achieved a score specified in the instrument; or

   (b)    satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.” (emphasis added)

4. On 12 June 2012, the Minister issued an Instrument (“IMMI 12/018”) specifying that an International English Language Testing System (“IELTS”) score of at least 6 or each of the four test components of speaking, reading, writing, and listening was required for compliance with r.1.15C of the Regulations. Alternatively, an applicant must hold a passport of a type specified in paragraph 2C of IMMI 12/018

5. Under s.338 of the Act, a decision to refuse to grant a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa is a decision which may be reviewed by the second respondent.

6. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

7. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 18 September 2012, the Delegate refused the applicant’s application for a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa on the basis that the applicant had not provided evidence that he had “competent English” for the purposes of r.1.15C of the Regulations.

2. The Delegate noted that in his visa application, the applicant stated that his most recent English test was taken on 17 June 2010 and that he was assessed as competent. The Delegate further noted that there was no copy of any IELTS test provided by the applicant despite a request being made to the applicant on 1 May 2012 that he do so.

The MRT’s review and decision

1. On 8 October 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. The applicant provided no further documents in support of his review application.

3. On 21 March 2013, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 15 April 2013 to give oral evidence and present arguments. The letter also informed the applicant that he needed to produce evidence of an IELTS test score of at least 6 in each of the four specified components in the two years immediately before the day in which his visa application was made.

4. On 15 April 2013, the applicant attended the MRT hearing.

5. The issue before the MRT was whether the applicant met cl.485.215 of Schedule 2 to the Regulations, which required that the applicant have “competent English”.

6. The MRT noted that on the visa application form, lodged by the applicant on 28 July 2011, the applicant indicated he had undertaken an IELTS exam on 17 June 2010. However, despite requests, the applicant had not provided any evidence to that effect.

7. The MRT explained to the applicant that the requirements of r.1.15C were that the applicant had undertaken a recognised English exam not more than two years before the visa application was made. Alternatively, the applicant could meet r.1.15c of the Regulations if he held a passport from one of the specified countries in IMMI 12/018. However, the applicant held only an Indian passport and India was not one of the specified countries.

8. The applicant confirmed that he lodged his application in 28 July 2011. However, the copy of an IELTS result provided by the applicant to the MRT was dated 21 February 2009, which was more than two years from the day on which the visa application was lodged. In any event, the result indicated that the applicant had not achieved the required scores.

9. The MRT put to the applicant that on the evidence before it, the applicant did not meet the “competent English” definition. The applicant provided to the MRT an invoice for an IELTS exam scheduled for 27 April 2013. The MRT advised the applicant that it would not delay its decision as the Regulations required that the test had to be conducted not more than two years before the day on which the visa application is lodged.

10. The MRT found that the applicant had not successfully conducted a language test not more than two years before the day on which the visa application was lodged. The MRT concluded that on this basis, the applicant did not meet the requirements of r.1.15C of the Regulations.

11. Having found that the applicant did not meet the requirements of r.1.15C of the Regulations, the MRT affirmed the decision not to grant the applicant a Skilled Graduate (Temporary) (Class VC, Subclass 485) visa.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Hindi interpreter. 

2. On 25 July 2013, the applicant attended a directions hearing before a Registrar of this Court. The applicant was provided with a copy of the applicable costs schedule of the Court.

3. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

4. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the grounds contained in his application filed on 14 June 2013 as follows:

   “The Migration Review Tribunal failed to consider my IELTS appointment.

   2. The Tribunal failed to take into account my IELTS test which was done in India and failed to accept that my English is competent”

7. The applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

8. The applicant declined to make any oral submissions, however, provided a document in the nature of written submissions. The written submissions appear to misunderstand that whether the applicant had “competent English” is a matter of definition in accordance with r.1.15C of the Regulations, rather than an objective assessment either by the MRT or this Court.

9. It is clear from the statutory regime that the applicant was required to satisfy the MRT that he had be achieved a satisfactory test score in an IELTS test conducted not more than two years before the day on which the application was lodged, pursuant to r.1.15C of the Regulations. The only evidence before the MRT of any IELTS test results was a document dated 21 February 2009, more than two years from the lodging of his visa application. Further, in any event, that test result made clear that the applicant had not achieved a score of 6 in each of the four categories, namely reading, writing, speaking, and listening.

10. In the circumstances, the MRT’s finding that the applicant did not have competent English and therefore did not meet the criterion of his visa in cl.485.215 to schedule 2 of the Regulations, was open to it on the evidence and materials before it and for the reasons it gave.

11. To the extent that the applicant’s written submission stated that he not given “the opportunity to argue my case as I remember I attended the Tribunal with a group of other student and I was denied the opportunity to have face to face interview during which the tribunal [sic] would be satisfied that my English level was competent because of my previous and current studies in English language” is not made out.

12. The MRT’s decision record specifically refers to exchanges it had with the applicant about the applicant’s difficulties in not having undertaken an IELTS test in the two years before the visa application was made. The MRT also referred to the fact that the applicant held a passport from India which was not one of the countries specified as an alternative in IMMI 12/018.

13. There was no transcript of the MRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the MRT’s decision record is not accurate. At the directions hearing on 14 June 2013 the applicant was given an opportunity to file a transcript of the MRT hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence.

14. In the circumstances, the Court accepts as accurate the MRT’s summary of the exchanges it had with the applicant at the MRT hearing. The Court is entitled to accept the MRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

15. In the circumstances, the MRT’s decision is not effected by jurisdictional error.

16. The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

17. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

18. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

19. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 May 2014