KAUR v Minister for Immigration

[2015] FCCA 285

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 285

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – applicant seeking a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa – applicant failed to produce evidence of satisfactory compliance with the Australian study requirements in cl.485.213 of Schedule 2 of the Migration Regulations 1994 (Cth) and further, failed to produce evidence of satisfying the English language requirements of cl.485.215 of Schedule 2 of the Migration Regulations.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)

Migration Act 1958 (Cth), s.362B

Migration Regulations 1994 (Cth), reg.1.15C(1)(a) & (2), cl.485.213 & cl.485.215 of Schedule 2

Ajaya v Minister for Immigration and Border Protection [2014] FCA 718.

First Applicant: HARDEEP KAUR

Second Applicant: RAGHVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 193 of 2014

Judgment of: Judge Simpson

Hearing date: 9 February 2015

Date of Last Submission: 9 February 2015

Delivered at: Adelaide

Delivered on: 19 February 2015

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 4 June 2014 is dismissed pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants shall pay the first respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 193 of 2014

HARDEEP KAUR

First Applicant

RAGHVIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application has proceeded as a ‘show cause’ hearing pursuant to r.44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”)

2. The ‘show cause’ provisions of the Rules are in the following terms:

   “44.12 Show cause hearing

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   …”

3. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 8 May 2014.  The first applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa which was lodged electronically on 18 November 2011.  The second applicant is the applicant’s husband.

4. This matter came before Registrar Grant on 4 July 2014 at which time the learned Registrar made directions for the hearing of the matter. The applicant was given leave to file and serve an Amended Application by 29 August 2014. She did not do so. The applicant was given leave to file and serve further material including the transcript of the proceedings before the Migration Review Tribunal by 29 August 2014. She did not file anything. The matter was listed for a ‘show cause’ hearing pursuant to r.44.12 of the Rules and the matter was listed for hearing at 10.00am on 9 February 2015. An order was made that the applicant file and serve an Outline of Submissions 10 business days prior to the hearing. She failed to do so. An order was made that the first respondent file and serve an Outline of Submissions three business days prior to the hearing. The first respondent filed and served its Outline on 4 February 2015.

5. In her application, the applicant indicated that she did not require an interpreter.  As a result, during the hearing before me, the applicant did not have an interpreter.  The applicant, who was the principal speaker, was able to satisfactorily communicate with the Court.  The second respondent could not.  No request was made to the Court by either applicant requesting that there be an adjournment to arrange for an interpreter to be present.

6. On 4 September 2012, a Delegate of the Minister refused to grant the applicant a visa. The Delegate’s refusal was based on two independent grounds: firstly a failure of the applicant to satisfy the Australian study requirements as set out in cl.485.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”); and secondly, a failure to satisfy the English language requirements in cl.485.215 of Schedule 2. The Delegate concluded in the decision record that:

   “To date, no evidence has been provided that you have completed a degree, diploma or trade qualification for award by an Australian educational institution.  Therefore, I am not satisfied that you meet the Australian study requirement as prescribed in Regulation 1.15F(1) and (2) and in turn Regulation 1.15F in its entirety.

   As you do not meet the requirements of Regulation 1.15F, you do not meet the requirements of Regulation 485.213.

   As you do not meet the requirements of Regulations 485.213, you do not meet the requirements for the grant of a VC-485 Skilled Graduate visa.”

7. A little later the Delegate said:

   “As you have not provided evidence of an IELTS test report of at least 6 for each of the 4 test components, I am not satisfied that you have competent English as prescribed in Regulation 1.15C9A)(iii) …

   As you do not meet the requirements of Regulation 1.15C, you do not meet the requirements of Regulation 485.215.

   As you do not meet the requirements of Regulation 485.215, you do not meet the requirements for the grant of a VC-485 Skilled Graduate visa.”

8. I make mention the reasons given by the Delegate as it indicates the length of time that the applicant has been on notice about the matters that she needed to address in making her application for the visa.

9. The applicant applied for a review of the Delegate’s decision by filing an application for review to the Tribunal on 13 August 2012.

10. On 7 May 2014, the review to the Tribunal was dismissed and it affirmed the decision not to grant the applicant a visa.

11. The Tribunal’s decision was made upon the basis that the applicant had failed to satisfy the mandatory requirements of cl.485.213 of the Schedule 2 in respect to the Australian study requirements and cl.485.215 of Schedule 2 in respect to the English language competency requirements.

12. By application to this Court filed on 11 June 2014, the applicant sought an order quashing the Tribunal’s decision.  The applicant’s sole ground of challenge as set out in her application is as follows:

    “I wish to apply for review through the federal (sic) Circuit Court because my visa application for temporary residency 485 was refused by DIBP and then by TRIBUNAL because the IELTS result was not provided.  I requested them to provide me some time but the request was refused.  I request you please give me some more time to provide the IELTS results.”

13. It is to be noted that the applicant’s sole ground of challenge in her application to this Court seeks only to impugn the Tribunal’s conduct in respect to the English language requirement (the “IELTS” issue). Even if made good by the applicant, the Tribunal’s adverse findings in relation to the applicant not satisfying cl.485.213 (the Australian study requirement) would remain, and thus constitute a separate, unimpeached basis for the Tribunal’s decision to affirm the Delegate’s refusal. As these applicants are not legally represented, I propose to deal with both issues raised in this matter.

14. In relation to the applicant’s suggestion that she requested but was not provided with more time to address the IELTS results, in my view, the complaint lacks any foundation.  By letter dated 1 April 2014 the applicant was invited to appear before the Tribunal for a hearing to be conducted at 10.00am on 6 May 2014.  The applicant did not respond to the hearing invitation and did not appear before the Tribunal at the scheduled hearing.  At the departmental stage, it is apparent from the Delegate’s letter dated 18 June 2012 that the Delegate requested further information from the applicant to assist it in determining her application for a visa.  The Delegate received no response from the applicant as a result of this request.

15. There is no evidence in the departmental file, the Tribunal file, or in any affidavit material filed on behalf of the applicant in this Court to the effect that the applicant ever requested an extension of time to provide evidence in support of her case.  The Tribunal decision also does not reflect any such request.  It would appear to me from all of the available material that the applicant never in fact engaged with the department or the Tribunal in any active way.

16. As there is no evidence that the applicant sought an adjournment, it cannot be said that there was any procedure unfairness on behalf of the Tribunal in not adjourning the matter.

17. As a result of the applicant’s non-attendance at the scheduled hearing, the Tribunal exercised its discretion pursuant to s.362B of the Migration Act 1958 (Cth) (“the Act”) to make a decision without taking further steps to allow the applicant to appear.

18. In my opinion, there was no error by the Tribunal in doing so.  The evidence indicates that the applicant had been on notice for over a month as to the date and time of the hearing and the telephone number to be used if she elected to put her submissions by telephone rather than physically attending before the Tribunal.  The applicant also had over two years to participate in the visa application process and provide any relevant information to the Department and the Tribunal in support of her application.  She failed to do so.

19. The applicant did not provide the Tribunal (or for that matter the Delegate at first instance) with any evidence of her satisfactory completion of an IELTS test for the purposes of evidencing compliance with IMMI 12/018, reg.1.15C(1)(a) and cl.485.215 of Schedule 2 of the Regulations.

20. Nor did the applicant provide to the Tribunal or, again, to the Delegate at first instance, any evidence that she held one of the passports listed in cl.3F of the IMMI 12/018 for the purposes of satisfying the alternative competent English criterion in reg.1.15C(2).

21. There was no error on the part of the Tribunal in its finding and, as a result, the application to this Court should be dismissed.  As was explained by McKerracher J in Ajaya v Minister for Immigration and Border Protection[1]:

    “There was no error in the decision of the Tribunal or in the decision of the Delegate. Pursuant to s.65MA, the Tribunal has no discretion to grant a visa to an applicant unless it is satisfied that the person meets the criteria for the grant of the visa. Berenguel is of no assistance to Mr Ajaya. The wording of reg.1.15C of the Regulations is in different terms from reg.1.15B(5) which was considered in Berenguel. The wording in the former being ‘not more than two years before the day on which the application was lodged’ and in the regulation as applicable here ‘in the two years immediately before the day on which the application was made’. The amendment to the wording was a deliberate policy change as evidenced in the Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) which inserted reg.1.15C. The Minister explained:

    These amendments ensure that an applicant for a [General Skilled Migration] visa is assessed as holding the relevant English language test score before the application for a [General Skilled Migration] visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the [General Skilled Migration] visa may satisfy the relevant Schedule 2 criterion. (emphasis added).”

    [1] [2014] FCA 718 at [27].

22. It is clear in this case that the application should be dismissed.

23. Having considered all of the material and the submissions put by the parties, I am not satisfied that the application has raised an arguable case for the relief claimed.  In those circumstances, the application should be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 19 February 2015