ISLAM v Minister for Immigration

[2015] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISLAM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1280

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (class VB) visa – failure to achieve the relevant IELTS band score – no jurisdictional error.

Legislation:  

Migration Act 1958 s.476

Applicant: KABIRUL ISLAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3272 of 2013

Judgment of: Judge Street

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Sydney

Delivered on: 13 May 2015

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr P. Knowles

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3272 of 2013

KABIRUL ISLAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming the decision of the delegate not to grant the applicant a Skilled (Residence) (class VB) visa.  The delegate refused to grant the application for the visa by the applicant on 12 September 2012, and the applicant applied for review.  The applicant was notified, consistently with the statutory obligations on the Tribunal, of a hearing date on 18 October 2013.

2. Prior to that hearing date, the applicant sought an adjournment for at least two years, and to give additional time to obtain English proficiency requirement.  Notwithstanding that the application for the visa completed by the applicant asserted that he had competent English, the test identified in that application was one which failed to identify competent English as required, with a score of 6 or more in each of the four components.  That application for the visa was made on 2 March 2011.

3. It was in those circumstances that the Tribunal considered the request dated 30 September 2013 for an adjournment, and identified that the applicant asserted he was mentally shocked and suffering mental illness from his poor Band Scores.  The applicant had also identified that he had a close relationship with his brother and his niece.  In support of that application, the applicant provided a medical report that identified he was suffering from auditory hallucination with some delusional visions, and that he responds well to counselling in his country of origin.

4. A report from a year earlier provided to the Tribunal indicated that he had presented with paranoid thought and some delusional visions, with occasional hearing of voices.  An earlier report, of 17 August 2012, indicated that he was suffering from depression and he wished to return to his country of origin for treatment.  On 1 October 2013, the Tribunal noted the request for an adjournment for two years, and declined that request, and indicated that the matter would proceed on the scheduled hearing date on 18 October 2013.

5. It was clearly open to the Tribunal to come to that decision on the material before it, particularly given the applicant’s original application was made more than two years earlier, and it was almost nine months since the applicant had been refused the grant of the visa by the delegate.  There was no breach of any statutory duty by the Tribunal in refusing to grant an adjournment and deciding to proceed with the hearing on 18 October 2013.

6. The Tribunal identified, in its decision of 1 October 2013, in response to the request, that it had considered that request carefully and decided not to postpone the hearing.  In the Tribunal’s reasons, it set out that request for an adjournment prior to the hearing and provided reasons as to why it was that the Tribunal was of the view that the matter should proceed at the hearing.  The applicant attended the hearing with his brother.  The reasons for the Tribunal proceeding with the hearing were cogent and compelling, and cannot be said to lack an intelligible justification, and cannot be said to be disproportionate in the circumstances including the time that had already elapsed in relation to the application for the visa.

7. At the hearing, the applicant asked for a further opportunity to undertake a further test, and the Tribunal allowed that opportunity by providing that it would permit the applicant up until 30 November 2013, being a period of six weeks, to provide evidence that he now met the competent English requirement.  At the time of the Tribunal delivering its reasons, on 3 December 2013, the Tribunal noted that no further evidence had been received from the applicant after the hearing on 18 October 2013.

8. In this Court, the applicant tendered evidence in relation to his medical condition and also tendered a booking receipt made on 18 October 2013 for the purpose of attending an IELTS test on 9 November 2013, which he failed to attend.  The applicant failed to provide any detail relating to that failure to attend, or explain the same, or to provide any further medical evidence that he was unable to attend that IELTS test on 9 November 2013.  It was in those circumstances that the Tribunal proceeded to deal with the application for the visa, and found that the applicant did not have competent English, and thus did not satisfy clause 885.213 in respect of the visa requirement, and did not hold a visa of a kind that would not require the applicant to have competent English.

9. Those findings of the Tribunal were clearly ope and cannot be said to be unreasonable.  There was no jurisdictional error by the Tribunal in this case in saying that the further six weeks was enough time, and that having received no further evidence it was clearly open to the Tribunal to proceed to determine the matter on the evidence before it.  The decision by the Tribunal to proceed to determine the matter cannot be said to lack an evident and intelligible justification, and was proportionate in the circumstances identified.

10. The applicant has filed an amended application and a further amended application.  The further amended application, filed on 25 June 2014, identifies the following grounds:

    1. I sat for IELTS examination for several time. But I am unable to get 6 in all component at the same time. I got 8 in speaking at one time and the next time I got 5.5 but, my English competency has not gone down.

    2. Obtaining 6 in all band at one time is not a reasonable criteria to judge English competency. I just get behind 0.5 in one component out of four. That is why I was mentally shocked and unable to do so.

    3. I live with my brother and he has a daughter. I have strong bondage with her and is very hard to go away from her.

    4. Currently I am working with Australia post as a mail contractor. If I go back to my country, I will not be able to find a decent job because of my age.

    5. MRT did not consider my surcomstancess. [sic]

    6. MRT did not follow Guidance of Vulnerable person.

11. The grounds fail to identify any jurisdictional error.  Ground 1 is an impermissible challenge to the merits of the application, and does not disclose any jurisdictional error.  Ground 2 is a further impermissible challenge to the merits of the matter and does not disclose any jurisdictional error.  Ground 3 is also a matter going to the merits of the application and does not disclose any jurisdictional error.

12. Ground 4 again identifies matters of alleged merit, and does not identify any jurisdictional error.  Ground 5 is without substance as it is clear the Tribunal carefully identified the evidence before it, and properly addressed the request for an adjournment, and considered the circumstances of the applicant in relation to that request, and the decision of the Tribunal to proceed with the hearing was open, and the decision of the Tribunal to allow only six weeks further opportunity after that hearing on 18 October 2013 cannot be said to be the subject of any jurisdictional error.

13. The sixth ground fails to identify any jurisdictional error, and is an impermissible challenge to the merits of the application.  This Court is not a Court of appeal.  This Court does not have jurisdiction to review the merits of the matter.  It is confined to jurisdictional error in the conduct of the review by the Tribunal. The application is dismissed for want of any jurisdictional error.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  18 May 2015