KAUR v Minister for Immigration

[2014] FCCA 2120

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2120

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no grounds relied upon – no jurisdictional error disclosed – application dismissed with costs – no matter of principle.

Legislation:

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

Migration Act 1958 (Cth)

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

Applicant: MANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 351 of 2013

Judgment of: Judge Simpson

Hearing date: 13 August 2014

Date of Last Submission: 13 August 2014

Delivered at: Adelaide

Delivered on: 13 August 2014 (ex tempore)

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.44.12 of Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent its costs fixed in the amount of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX  ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 351 of 2013

MANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for judicial review brought by the applicant on 26 November 2013.  The application challenges a decision of the Migration Review Tribunal (“the Tribunal) made on 11 November 2013. 

2. On 11 July 2012, the applicant had applied to the Minister for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa.  On 5 December 2012, a delegate of the Minister refused to grant the applicant a visa.  The delegate concluded in its decision as follows:

   “On your application form, you provided an IELTS test report, number 12AU001822TM100A.  A check of the IELTS website shows that you achieved a score of 5 for the test component of listening, 4.5 for the test component of reading, 5.5 for the test component of writing and 6.5 for the test component of speaking.  As you did not achieve an IELTS test score of at least 6 for each of the test components in either test, I am not satisfied that you have competent English as described in regulation 1.15C(1).”

3. On 21 December 2012, the applicant applied for review of the decision by filing an Application for Review to the Tribunal.  On 11 November 2013, the review to the Tribunal was dismissed and the Tribunal affirmed the decision not to grant the applicant a visa.  The Tribunal’s decision was made upon the basis that the applicant had failed to satisfy the mandatory requirement of cl.485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), namely, that the applicant had not submitted any evidence as to her English language competency such that would meet the requirements of reg.1.15C.

4. By application to this Court filed on 26 November 2013, the applicant seeks an order from this Court quashing the Tribunal’s decision. 

5. The application that was filed by the applicant does not identify any grounds of the application. 

6. Through her interpreter this morning, the applicant has indicated that she has no grounds for review but simply asks that she be given a further opportunity to pass such a test or to provide the results of a test.

7. The application that is before me is listed as a show cause hearing pursuant to Federal Circuit Court Rules 2001 (Cth) (“the Rules”), r.44.12 as was ordered by Registrar Bochner on 20 December 2013. Pursuant to r.44.12 of the Rules, under the heading ‘Show Cause Hearing’, it is provided that at a hearing of an application for an order to show cause the Court may, if it is not satisfied that the applicant has raised an arguable case for the relief claimed, dismiss the application.

8. The applicant certainly has not indicated any proper basis for the order that she seeks. I have myself looked at the material to see whether there is any arguable case that is available to the applicant. I have come to the firm conclusion that there is not. In the circumstances, I propose to make an order pursuant to r.44.12(1)(a) that the application be dismissed.

9. There will be a further order that the applicant pay the first respondent’s costs fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3326.00).

10. I make the orders to be found at the beginning of these reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 September 2014