IMRAN v Minister for Immigration

[2015] FCCA 1884

FEDERAL CIRCUIT COURT OF AUSTRALIA

IMRAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1884

Catchwords:
MIGRATION – Application to reinstate application dismissed because of the failure of the applicant to attend Court – applicant satisfactorily explaining failure to attend – applicant conceding that the did not have, as required, competent English – whether Tribunal should have given applicant more time to attain competent English – Tribunal’s decision not to provide further time wholly reasonable – original application doomed to fail – application to reinstate dismissed.

Legislation:  
Federal Circuit Court Rules 2001, r.16.05

Migration Regulations 1994, reg.1.15C(a)

Migration Act 1958

Berenquel v Minister for Immigration and Citizenship (2010) 264 ALR 417

Applicant: IMRAN IMRAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1635 of 2014

Judgment of: Judge Burchardt

Hearing date: 18 June 2015

Date of Last Submission: 18 June 2015

Delivered at: Melbourne

Delivered on: 23 July 2015

REPRESENTATION

The Applicant: In person (by telephone)

Counsel for the First Respondent: Mr Murano

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The applicant’s application in a case seeking to reinstate, pursuant to r.16.05 of the Federal Circuit Court Rules 2001, his application originally filed on 11 August 2014 is dismissed. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1635 of 2014

IMRAN IMRAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The matter presently before the Court is an application in a case filed on 20 May 2015.  In substance, the applicant seeks to reinstate his substantive application, which was dismissed on 7 May 2015 because the applicant did not attend court when the matter was listed. 

2. In his affidavit in support of the application in a case, the applicant deposes that he came to the Court building but went to the wrong courtroom and effectively was unable to find it until after the matter was concluded.  I indicated to the applicant during the hearing of the matter that I accept that explanation.  To put the matter in context, I should record that when the matter was called at trial the applicant again did not attend.  He was telephoned at my request by lawyers representing the first respondent.  He was apparently asleep and asserted that he thought the case was due to be heard on 18 July 2015.

3. Given that 18 July 2015 is a Saturday and that the date of 18 June 2015 is clearly marked on the Court’s file copy of the application in a case, that oversight on the applicant’s part is a little unusual.  Nonetheless, when telephoned by the Court the applicant was perfectly prepared to address the Court.  It is important to note what he said.  He said words to the effect that he has been trying to achieve a score of 6 in his IELTS test.  He has failed to do so.  His circumstances are very bad. 

4. The applicant appeared to accept that the case was likely to be decided against him and said that he was happy to leave Australia, provided he was given one to two months to arrange his affairs.  He said the last several years have been very difficult and he had depression and other problems. 

5. It was clear to the Court that the applicant was labile while talking. 

   
   

   I am quite prepared to accept that the applicant is depressed and that depression may explain his otherwise unusual failure to attend Court on a day of which one would have thought he would have been well aware. 

6. Having set out those preliminary matters, I now turn to consider whether the Court should exercise its discretion, pursuant to r.16.05 of the Court’s Rules, to set aside the orders made on 7 May 2015.

7. In order to do so, it is appropriate to consider the substantive merits of the applicant’s case.  I make it clear that I am prepared to give the applicant the benefit of any doubt and accept that his failure to attend on 7 May 2015 and, indeed, initially on the date of this hearing are made out. 

8. However, the originating application filed on 11 August 2014 seeks orders that the decision of the Migration Review Tribunal (“Tribunal”) is invalid, unlawful and void and of no force and effect.  The ground of application is a failure to accord the applicant procedural fairness and natural justice.

9. The particulars note the Tribunal hearing and note that the applicant had explained his anxiety and depression problems and his past completion of studies, his approved trade’s recognition assessment and his approved temporary residence.  The grounds go on to assert that the Tribunal’s decision to proceed was unreasonable in the above circumstances and that the Tribunal refused to interview him and made a decision in his absence. 

10. The affidavit likewise filed on 11 August 2014 in support of the application annexes a copy of the Tribunal’s decision and asserts “Not performing but I can do that.  Please allow me to get success”. 

11. The affidavit goes on to seek more time in which to achieve his IELTS result.  There are also matters referred to relating to proof of financial resources which are not presently of any moment.  A relatively extensive handwritten annexure to the affidavit asserts a concerning state of health and financial circumstances on the applicant’s part but repeats the assertion that he would require some time to prepare before returning to his country of origin.  There is quite a deal more material but in the circumstances it is not directly relevant. 

12. The Tribunal’s decision dated 10 July 2014 affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled (Residence) (Class VB) visa.  The statement of reasons is relatively short.  The decision notes that the applicant sought review of a decision of the delegate, who had refused the applicant’s application.  It notes that the delegate did so because the applicant did not have the required English language proficiency.  It notes that the applicant appeared before the Tribunal on 2 April 2014 to give evidence and present arguments.

13. The Tribunal identified the relevant issue before it as whether the applicant had competent English as required by cl.885.213 of the Migration Regulations 1994 (“the Regulations”). The decision referred to reg.1.15C(a) which refines the definition of competent English. The Tribunal noted at paragraph 9 the test in English that the applicant was required to meet and noted the decision of Berenquel v Minister for Immigration and Citizenship (2010) 264 ALR 417, inter alia, which prescribes the basis upon which an English language test can be taken. The Tribunal noted at paragraph 10, and I quote:

    “The applicant stated that he had not yet been able to undertake a test where he had scored the requisite level to show competent English.  The applicant provided to the Tribunal evidence that he has booked IELTs tests in the near future.  The Tribunal stated that it would allow the applicant to provide the results of these tests to the Tribunal, and would not make a decision on the application until 2 May 2014.  The Tribunal advised that if there was a delay in the results being provided the applicant should contact the Tribunal.”

14. The Tribunal noted that the applicant had failed an IELTS test in April 2014 and noted that it was prepared to wait for the result of the applicant’s posited June 2014 IELTS test until 8 July 2014 but would not wait thereafter.

15. The Tribunal noted at paragraph 14 that the applicant sought an extension on 16 June 2014 until 30 October 2014 to provide an IELTS result.  The Tribunal refused but repeated the preparedness to wait until 8 July 2015. 

16. The Tribunal also dealt with material provided by the applicant going, as one might say broadly described, to his state of health but noted these had not been raised before the Tribunal hearing itself.  The Tribunal noted further applications for more time from the applicant and, effectively, decided that sufficient time had already been granted. 

17. The Tribunal noted (paragraph 18) that the applicant did not meet the requirements of the Regulations to have competent English and therefore failed to satisfy the criteria for the grant of the Subclass 885 visa and affirmed a decision under review.

18. On 19 November 2014, Registrar Caporale ordered the filing of any amended application and written submissions and on 25 March 2015 the applicant did file a further affidavit.  This affidavit appears to be concerned with whether or not the applicant had a valid passport and said he would book an IELTS test straight away after the receipt of his new passport.  The first respondent filed an outline of written submissions on 23 April 2015.  The gravamen of those submissions was that the course of conduct embarked upon by the Tribunal did not deny the applicant natural justice and that the Tribunal did not act unreasonably by not extending the 8 July 2014 deadline that it set for the applicant to provide his test results.

19. The application, as the first respondent submits, faces very considerable difficulties.  Contrary to the submissions advanced, I do not find against the applicant for failing to provide an adequate reason for his non-attendance.  I am prepared, as I say, to give him the benefit of the doubt in that regard both in relation to 7 May 2015 and at trial.  However, the difficulty with this matter is that the applicant’s case was doomed to fail.

20. The Regulations require an applicant to have competent English as described in the Regulations and the applicant himself readily concedes that he has not attained competent English.  His application cannot succeed.  It is not in the interests of justice to reinstate the application because it cannot succeed precisely for the reasons the applicant himself has articulated.  I note that as it happens the administrative delay that will necessarily attend in settling these reasons for judgment is such that the applicant is likely to obtain the one to two months to order his affairs that he has sought.  As I understood him, he proposes to leave Australia within the next couple of months in any event.  However, whether he does or not, his application is fatally flawed.

21. I should make it clear that the course of conduct embarked upon by the Tribunal was entirely reasonable in the circumstances.  It did not deny the applicant natural justice.  It certainly does not reveal jurisdictional error.  It follows that the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  23 July 2015