KAUR v Minister for Immigration
[2015] FCCA 650
•20 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 650 |
| Catchwords: MIGRATION – Application for review of a decision by the Migration Review Tribunal – the Tribunal correctly applied the relevant Regulations – grounds disclose no claim of jurisdictional error on the part of the Tribunal – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), reg.1.15C, cl.885.213 of Sch.2 |
| Patel v Minister for Immigration and Border Protection [2014] FCA 823 Singh v Minister for Immigration and Border Protection [2014] FCA 185 |
| First Applicant: | RAJWINDER KAUR |
| Second Applicant: | ARVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1769 of 2014 |
| Judgment of: | Judge Whelan |
| Hearing date: | 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 20 February 2015 |
REPRESENTATION
| Counsel for the Applicants: | The Applicants appeared in person |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth),
the Application filed 29 August 2014 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $2,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1769 of 2014
| RAJWINDER KAUR |
First Applicant
| ARVINDER SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
I have heard what the First Applicant has had to say, and I have also had the benefit of both reading the written submissions[1] and hearing from the representative of the Minister for Immigration and Border Protection (“the First Respondent”) with respect to the proceedings. It is apparent from what the First Applicant has put in her application,[2] and also what she put to the Court today, that she fails to understand both the role of the Migration Review Tribunal (“the Tribunal”) in terms of what it was required to do, and the role of this Court in terms of a judicial review.
[1] First Respondent’s Contentions of Fact and Law, filed 16 January 2015.
[2] Application filed 29 August 2014.
Background
This is an application for a judicial review of a decision by the Tribunal on 1 August 2014.
The Tribunal affirmed a decision of a delegate of the Minister to refuse to the Applicant a Skilled (Residence) (Class VB) visa. In this case, there are two Applicants (collectively “the Applicants”). The
First Applicant is the person who has sought the visa, and the
Second Applicant’s application depends on the success of the
First Applicant’s application.
The First Respondent seeks that the application be dismissed under the provisions of r.44.12(1)(a) of the Federal Circuit Court
Rules 2001 (Cth) (“the Rules”), that is on the basis that there is no arguable case in this matter.The history of the matter is this:
·On 15 December 2012, the Applicants applied for the visa, with the First Applicant as the primary visa applicant and the Second Applicant as a member of her family unit;
·The visa application was rejected on 28 October 2013 but, for reasons which are not relevant to these proceedings, was remitted back to the Department for reconsideration by a different tribunal;
·On 12 March 2014, a delegate refused to grant the visas because the First Applicant did not have the required English language proficiency as set out in reg.1.15C and cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”);
·
On 31 March 2014, the Applicants applied to the Tribunal for a review of that decision. The Applicants appeared before the Tribunal to give evidence and present arguments on 30 May and
3 July 2014. The Tribunal also allowed the Applicants until
31 July 2014 to provide any further submissions. No further submissions were received; and
·On 1 August 2014, the Tribunal affirmed the delegate’s decision, and on 29 August 2014, the Applicants lodged this application for judicial review.[3]
[3] First Respondent’s Contentions of Fact and Law, filed 16 January 2015, p.p.1-2 at paras.2-7.
Grounds
There are four grounds set out in the application. The first two grounds set out the history of the application, being that:
·The Applicants made the application for the visa and that was refused by the delegate;
·The Applicants then applied to the Tribunal for reconsideration of the decision; and
·The First Applicant had applied for the International English Language Testing System (“IELTS”) test but did not have results with her at the time; she explained to the Tribunal that she would sit for the exam, and requested an extension of time from the Tribunal.[4]
[4] Application filed 29 August 2014, p.4 at paras.1-2.
The third ground of the application refers to the Tribunal refusing the application on the grounds that the First Applicant did not satisfy the criteria under cl.885.213 of Sch.2 to the Regulations.[5]
[5] Ibid, para.3
The fourth ground, as set out in the application, states as follows:
I request honourable authority to please consider my application and grant me time so that I can apply for IELTS and will have required score and can present documents before honourable justice.[6]
[6] Ibid.
The Tribunal’s decision
In its decision, the Tribunal determined that, having regard to the application and the relevant subclause of Sch.2 to the Regulations, the key issue of the review was whether the First Applicant had competent English. The First Applicant had provided three IELTS test results to the Tribunal. All of those tests were undertaken in 2014 and, in any event, none of them demonstrated that the First Applicant had achieved the requisite score. The Tribunal also pointed out that the
First Applicant had conceded at the hearing that she did not have test results which showed that she had acquired the requisite score in a test that was conducted three years immediately before the day her visa application was made. Accordingly, the Tribunal determined that the First Applicant did not satisfy the requirements of cl.885.213 of Sch.2 to the Regulations and affirmed the decision of the delegate.
The First Respondent’s submissions
The First Respondent submits that the application alleges no jurisdictional error on the part of the Tribunal.[7]
[7] First Respondent’s Contentions of Fact and Law filed 16 January 2015, p.3 at para.19.
The First Respondent further submitted that:
The Tribunal was bound to apply the statutory definition of ‘competent English’ that applied to the visa application. The definition in this case cannot be satisfied by evidence of a [English] language test undertaken after the lodgement of the visa application.[8]
[8] Ibid at para.20.
The First Respondent referred the Court to the matter of Singh v Minister for Immigration and Border Protection [2014] FCA 185, (“Singh”) a judgment of Barker J of 6 March 2014 which, in most ways, is on all fours with the current proceedings in that the applicant in that case was also caught by the same Regulation as he was unable to produce a IELTS test result which showed a score of at least six for each of the four components of speaking, reading, writing and listening, which had been conducted prior to him making the application.
In the case of Singh, the applicant actually had a test score that did meet the requirements, but in that case the test had not been conducted until after he had made the application. Barker J pointed out quite clearly that the Regulations required that the test score had to be achieved prior to the application being made and, therefore, the test results from after that date were irrelevant with respect to the requirements of the Migration Act 1958 (Cth) (“the Act”) and the Regulations.
The First Respondent also drew the Court’s attention to a decision in the matter of Patel v Minister for Immigration and Border Protection [2014] FCA 823, a judgment of Robertson J in which his Honour indicated that in such circumstances, a judgment of the
Federal Circuit Court in a similar case that found that an extension of time by the Tribunal would have been futile was correct and that, if the applicant could not meet the requirements in the time specified by the Regulations, that no extension of time would have assisted.
Accordingly, the First Respondent submits that a request for further time to apply for another test was misconceived and that, in those circumstances, the Tribunal could only come to the conclusion that there was no basis upon which the Tribunal could do other than to uphold and affirm the decision made by the delegate.
Conclusions
As I have stated previously, the First Applicant misconceives the role of the Court in a process of judicial review. The Court can only grant relief in such a case if it is satisfied that the Tribunal has made a jurisdictional error. In this case, the Tribunal was required to apply the requirements as set out in the Act and the Regulations.
The requirements of cl.885.213 of Sch.2 to the Regulations meant that the First Applicant had to have ‘competent English’ at the time of the visa application. ‘Competent English’ is defined by reg.1.15C of the Regulations which required that the person had undertaken an English language test as specified by the Minister. The test required by reg.1.15C(1)(a) of the Regulations had been specified by the Minister in June 2012.
The Regulations required that the test was conducted in the three years immediately before the day on which the application was made; that is a test which had been conducted prior to 15 December 2012, and further, that the person had achieved a score specified in the instrument. The score specified was a score of at least six for each of the four test components.
It is clear that the evidence before the Tribunal was that the
First Applicant had not achieved such a score in a test conducted in the three years prior to 15 December 2012, and the Tribunal was therefore bound to find that the requirements of the Regulation had not been met. The Tribunal did not have any discretion to grant the visa if those requirements were not fulfilled.
This is not a case where an adjournment might have enabled the
First Applicant to meet the statutory requirements and that it could be said that the Tribunal had acted unreasonably in not allowing her more time. It is quite clear, on the authorities and on the reading of the Regulation itself, that more time would not have assisted the
First Applicant.
The Court has no capacity to grant the relief sought by the Applicants, which is essentially a further request for more time and, on that basis, 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 Whelan
Associate:
Date: 20 March 2015
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