Kaur v Minister for Immigration

[2014] FCCA 830

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 830

Catchwords:
MIGRATION – Judicial Review of a decision of the Migration Review Tribunal – Skilled (Provisional)(Class VC) Visa – English proficiency – whether the refusal to grant an adjournment of the MRT hearing was unreasonable or otherwise inappropriate.

Legislation:

Migration Act 1958 (Cth), s.360

Migration Regulations 1994, Part 485, reg. 1.15C

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Farook v Minister for Immigration & Anor (2011) FMCA 940

Minister for Immigration & Citizenship v Li [2013] HCA 18

Applicant: KULDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 527 of 2013

Judgment of: Judge Howard

Hearing date: 9 April 2014

Date of Last Submission: 9 April 2014

Delivered at: Brisbane

Delivered on: 29 April 2014

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the First Respondents:	Clayton Utz
Solicitors for the Second Respondents:	Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the applicant pay the first respondent’s costs in an amount to be fixed by the Court on the date of when the Judgment is delivered.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 527 of 2013

KULDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this case is Ms Kuldeep Kaur.  The applicant was born on 15 October 1983 in India.

2. The applicant arrived in Australia sometime prior to 23 February 2012.  On 23 February 2012 the applicant applied for a Visa known as, “Skilled (Provisional) (Class VC).  That application was made by the applicant at the same time that her husband made a similar application.  It is not relevant for the Court to have regard to the applicant husband’s application.

3. In relation to the Visa in question – the relevant subclass is subclass 485. The criteria for that subclass of Visa appears in Part 485 of Schedule 2 to the Migration Regulations 1994 – enacted pursuant to the Migration Act 1958.

4. One of the key requirements is English language proficiency.

5. On 21 December 2012 the Minister’s Delegate refused to grant to the applicant the Skilled (Provisional) (Class VC) Visa – because the applicant did not have the required English language proficiency.

6. After the Delegate refused to grant the Visa to the applicant – the applicant applied for a review of the Delegates’ decision.  That review was conducted by the Migration Review Tribunal on 5 June 2013.  The Tribunal affirmed the decision of the Delegate not to grant to the applicant the Skilled (Provisional) (Class VC) Visa.  The written decision of the Migration Review Tribunal was delivered on 5 June 2013.

7. On 27 June 2013 the applicant filed an application in the Federal Circuit Court of Australia seeking Judicial Review of the decision of the Migration Review Tribunal.

8. The matter came before His Honour Judge Burnett on 7 August 2013 when His Honour made various orders including an order setting the matter down for final hearing at 10:00am on 17 February 2014.

9. On 17 February 2014 the applicant attended as a self represented litigant at the Court.  Ms Kelly, solicitor from Clayton Utz appeared on behalf of the First Respondent. 

10. On that day the applicant sought an adjournment because she required an interpreter.  I do note that in the application filed in the Court on 27 June 2013 the applicant had (on page 4) ticked the box stating that she required an interpreter.  The language that she noted there was, “Punjabi”.  In Court on 17 February 2014 the applicant told the Court (in English) that either a Punjabi interpreter or a Hindi interpreter would be appropriate.

11. The Court granted an adjournment until 9 April 2014 and arrangements were made for an interpreter to attend.  On 9 April 2014 an interpreter did in fact attend and the hearing proceeded.

12. Relatively early on during the applicant’s submissions it became apparent that the applicant was seeking an adjournment of the hearing in order to obtain a lawyer.  The Court dismissed that application and separate Reasons for Judgment were delivered ex tempore in relation to that application for an adjournment.

13. The hearing then continued and the time taken for the hearing was approximately one hour and 30 minutes.

14. The application for Judicial review filed by the applicant on 27 June 2013 states:

    “Grounds for Application

    I have been pregnant my delivery is due in two weeks time.  Tribunal refused to adjourn the hearing.  Contacted me on 5 June 2013 at home and proceeded with the hearing I was in great Pain therefore I was unable to proceed with the case.  Injustice has been done because I was unable to deal with the Case.”

15. The applicant did not file any affidavit apart from the original affidavit filed on 27 June 2013.  In that original affidavit the applicant did nothing more than attach a copy of the MRT decision.

16. On 9 April 2014 I had the applicant sworn in and the applicant gave some evidence.  To the extent that it becomes necessary for the Court to refer to any of that evidence I will do so in these Reasons for Judgment.

17. In the decision of the Migration Review Tribunal it became necessary for the Tribunal member to have regard to clause 485.215 and regulation 1.15C (in force at the time).  Those regulations provide that a person has “competent English” if the person:

    “a) satisfies the Minister that:

    i) the person undertook a language test, specified by the Minister in writing for this sub paragraph; and

    ii) the test was conducted in the two years immediately before the day on which the application was made; and

    iii) the person achieved a score specified in the instrument; or

    b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”

18. There was no evidence that the applicant held the requisite passport referred to in the regulation.

19. There are two language tests (and scores) which the Minister has specified in terms of the regulation.  Those tests are known as:

    a)the International English Language Test System (IELTS) test – and  a test score of at least “6” for each of the four tests components is required; and

    b)the Occupational English Test (OET).  A test score of at least “B” for each of the four test components was required.

20. As noted earlier, the applicant lodged her Visa application on 23 February 2012.  In that application the applicant noted that she held an Indian passport.  The applicant also stated that she had completed an IELTS test on 15 October 2011.  The applicant stated in the application form that she was “competent”.  However, the applicant did not provide a copy of the results of the IELTS test which she claims to have undertaken.  If the applicant had a copy of the result of her IELTS test then surely she would have provided a copy of those test results to the Minister’s Delegate and/or a copy of those test results to the Migration Review Tribunal.

21. The applicant provided evidence (presumably to the Delegate) that she had lined up an appointment for an IELTS test to take place on 19 January 2013.  The Migration Review Tribunal noted in its decision dated 5 June 2013 that the applicant had not provided any results from that test.

22. It must be noted, of course, that the relevant regulation provided that the applicant must have conducted one of the relevant tests “in the two years immediately before the day on which the application was made”.

23. In the decision of the Migration Review Tribunal dated 5 June 2013 I note paragraph 11 states:

    “11. On 23 May 2013 the applicants responded to the hearing invitation.  They advised that they would not be taking part in the hearing.  A copy of a medical certificate was attached to the response indicating that Mrs Kaur is pregnant and her expected date of delivery is 27 June 2013.  The Tribunal contacted the applicants on 30 May 2013 and advised that it would be happy to conduct the hearing by telephone, but would not postpone the hearing without specific medical evidence that Mrs Kaur is unable to participate by telephone in the hearing which it expected would only be for a short period of time.”

24. In order to put the above paragraph in context it is necessary to have regard to some of the other correspondence.  Exhibit 1 in the proceedings is a bundle of relevant documents prepared and filed by the lawyers acting on behalf of the First Respondent.  That bundle was in fact filed on 6 September 2013 and became exhibit 1 at the hearing on 9 April 2014.  Looking at the numbering system in the bottom right hand corner – on page 22 of that bundle of documents there appears a letter dated 9 May 2013 from the Migration Review Tribunal addressed to the applicant.  That letter invited the applicant to appear before the Tribunal.  The invitation was for the applicant to appear in person at 9:30am on 5 June 2013 at Level 4 of the Harry Gibbs building – the Commonwealth Law Courts at North Quay, Brisbane.

25. One of the attachments to the letter is a document entitled, “Information about Tribunal Hearings”.  It is a question/answer sheet.  One of the questions noted is:

    “Will an interpreter be provided at the hearing?

    If requested, the Tribunal will arrange for an interpreter to be at the hearing.  The interpreter will be a qualified interpreter from an Interpreter Service – it is Tribunal policy not to use family members, friends or representatives as an interpreter.

    If you are not satisfied with the interpreting before or during the hearing, it is important that you tell the Tribunal member or the Hearing attendant as soon as possible.”

26. The applicant filled in a form called the, “Response to Hearing Invitation”.  The applicant ticked a box stating that she would not be taking part in the Tribunal Hearing scheduled for 5 June 2013.  Furthermore the form had the following question:

    “Do you or any other person attending the hearing need an interpreter?”

27. The applicant ticked the “No” box.

28. The applicant signed the form and dated it on 21 May 2013.  The form was then sent by the applicant back to the Migration Review Tribunal and was received by the Tribunal on 23 May 2013.

29. Even though the applicant had told the Tribunal that she would not be taking part in the hearing – it is apparent that she must have changed her mind.  The applicant did agree to take part in the hearing before the Migration Review Tribunal.  Before agreeing to take part in the Tribunal hearing (on 5 June 2013) the applicant had attempted to have that hearing date adjourned.  The applicant was pregnant at the time.  She subsequently gave birth to a child on 5 July 2013. 

30. I note page 15 of the bundle of documents contains a type written case note dated 30 May 2013 which sets out the details of a telephone conversation between an employee of the Migration Review Tribunal and the applicant.  The case note states:

    “At the Member’s request I contacted the RA (review applicant) and informed her that the Member is willing to conduct a telephone hearing given that she is well advanced into her pregnancy.  I informed the RA that the Tribunal will contact her at the mobile number 0425559281.  The RA asked what would happen if on that day she had to go into hospital as she is 9 months pregnant.  I responded by asking that she contact the Tribunal as soon as possible to explain her situation and to also obtain a medical certificate from her obstetrician or GP.  The RA said that she would do that.”

31. Page 14 of the bundle of documents contains a further case note detailing a telephone conversation between an employee of the Migration Review Tribunal and the applicant.  That case note states:

    “RA called and asked re her request for a postponement of hearing due to her pregnancy.  I stated that the request has not yet been received and she stated that she will fax a copy of the request to the Tribunal today.”

32. That conversation took place on 31 May 2013 at 2:53pm.

33. At 4:20pm (16:20) on 31 May 2013 the applicant faxed to the Migration Review Tribunal a one page medical certificate that stated:

    “The above named person is a patient of this surgery.  She is pregnant and her expected date of delivery is the 27/06/2013.”

34. That medical certificate is signed by Dr Ranjit Kaur.  It is dated 21 May 2013 and the medical certificate appears on stationery with a heading:

    “DOCTORS@BRISBANE Pty Ltd

    Kuraby Station Surgery”

35. At page 11 of the bundle of documents there is a further case note – dated 3 June 2013.  That case note states:

    “I received a medical certificate by fax from the RA today in which it states that her expected date of delivery is 27 June 2013.  I contacted the RA on her mobile and explained that her medical certificate has been received and will be forwarded on to the Member for consideration, however I emphasised to the applicant that she would still need to be available for the hearing on 5 June 2013 unless otherwise advised by the Member.  The applicant asked if it was possible for the hearing to be postponed because she was uncomfortable with a telephone hearing.  I said that I would need to speak to the Member but in the unlikely event that the hearing is not postponed, the RA will need to be available for her hearing on 5 June 2013.

    After speaking to the Member, I contacted the RA and informed her that the hearing will still be going ahead this Wednesday 5 June 2013.  I stressed that the hearing will be informal and will not disadvantage the applicant.  I reiterated that the hearing will be by telephone and the tribunal changed the method of the hearing because of the RA’s condition.  I also informed the RA that if she has any evidence that she has sat her IELTS test, to submit it to the Tribunal before the hearing date.  I also stated that in the event she was unwell on the day of the hearing and cannot talk to the Member, that she will need to advise the Tribunal of her circumstance and submit a medical certificate from either her obstetrician or GP.  The RA said that she understood that she will need to be available at the hearing this Wednesday 5 June 2013.  The RA also said that she will submit IELTS test results today.”

36. During the course of the hearing on 9 April 2014 I drew to the attention of the parties the fact that the word “not” appears in the second last line of the first paragraph in the quote above.  The word “not” was clearly a typographical error.  When one reads both of the paragraphs in their entirety it is apparent that the word “not” before the word “postponed” – has been included inadvertently.  It should not be there.

37. In paragraph 12 of the decision of the Migration Review Tribunal (appearing on page 5 of the bundle of documents) it is stated:

    “12. At the hearing the applicant confirmed that her husband Mr Bachitter Singh was at work and would not be participating in the hearing.  The applicant said that she had done an IELTS test in February 2013.  The Tribunal discussed with the applicant that even if she had achieved the necessary scores in this test, as it was not undertaken within the required time frame, it would not satisfy the definition of ‘competent’ English.  The Tribunal explained that it did not have discretion in this matter.  The applicant said that it was not her fault.  She said that she used a migration agent who told her that she could do the IELTS test at the time of decision.”

38. It is apparent that, on more than one occasion, the applicant had maintained that she had undertaken the IELTS test.  But at no stage has the applicant provided a copy of the results of that test to any relevant person in authority.

39. I note that the Migration Review Tribunal explained to the applicant that it did not have any discretion in relation to the matter in question.  In particular, the test itself had to be undertaken within the specified time frame – i.e. within the two year period immediately prior to the date the application for a Visa was lodged.  If the test was not undertaken within that time frame then the applicant would not be able to satisfy the definition of “competent” English.

40. One matter to consider is whether or not the decision of the Migration Review Tribunal not to adjourn the applicant’s hearing amounted to jurisdictional error – taking into account the obligations imposed by section 360 of the Migration Act 1958. Section 360 states:

    “360 Tribunal must invite applicant to appear

    (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2) Subsection (1) does not apply if:

    (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c) subsection 359C(1) or (2) applies to the applicant.

    (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

41. The applicant was invited (in writing) (by letter dated 9 May 2013) to appear in person before the Tribunal (note paragraph 24 above). 

42. There is recent High Court authority which his relevant to this case.  In the decision of the High Court of Australia in Minister for Immigration & Citizenship v Li [2013] HCA 18 at page 624 French CJ referred with approval at page 624 to comments made by the Full Court of the Federal Court of Australia (Greenwood and Logan JJ) – where they correctly described the review function conferred on the Migration Review Tribunal. In the Full Court of the Federal Court Greenwood and Logan JJ had stated, inter alia:

    “The MRT is given power to adjourn proceedings from time to time… an unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant.It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s.75(v) of the Constitution.”

43. In Li, the applicant had applied for an adjournment of the hearing before the Migration Review Tribunal.  The applicant was waiting to obtain the results of a Skills Assessment Review decision which was crucial to her application for a Visa.  The Tribunal refused to grant an adjournment to Li and she sought judicial review before the Federal Magistrates Court of Australia (as it then was).  The Federal Magistrates Court of Australia, the Full Court of the Federal Court of Australia and the High Court of Australia all agreed that the Tribunal’s decision to dismiss the application for an adjournment gave rise to jurisdictional error.  In essence it was held that the refusal to grant the adjournment was not reasonable.  Further, it was said by French CJ in the High Court that the applicant, Li, had been denied procedural fairness and that denial had constituted jurisdictional error.

44. Particular reference was made to the decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. French CJ stated in paragraphs 27 and 28 of his decision:

    “[27] In Wednesbury Corporation, Lord Greene MR observed that the word “unreasonable” in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters.  “If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’.”  That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.

    [28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”  In such a case the court may interfere.  That limiting case can be derived from the framework of rationality imposed by the statute.  As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision.  After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom.  Within that area reasonable minds may reach different conclusions about the correct or preferable decision.  However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.”

1. I agree with the submission made by the solicitor on behalf of the Minister in the case currently before the Court.  That submission states in paragraph 25 (of the outline of submissions filed in the Court on 4 February 2014) that the case currently before the Court is “markedly different” to the decision in Li.  In the presence case the applicant sought an adjournment before the Migration Review Tribunal on the basis of medical grounds.  But there was no medical evidence to suggest that the applicant was unable to participate in a hearing by telephone.  Indeed, the medical evidence that was provided in no way suggested that the applicant was incapacitated to attend a hearing in person.  Furthermore there was no evidence to suggest that the applicant was seeking an adjournment in an attempt to obtain more time so that she could obtain further relevant evidence.  As the Migration Review Tribunal had stated to the applicant – the only relevant evidence which could have justified an adjournment would have been evidence to the effect that the applicant was in the process of obtaining documents, details or other evidence to confirm that she had sat the appropriate English test in the two years prior to her application for a Visa.  It was never suggested by the applicant that she was in a position to obtain such evidence.  The applicant has never obtained such evidence. 

2. At the hearing on 9 April 2014 the applicant maintained that she had a further (second) medical certificate but that she had been told by the Tribunal that she was not allowed to rely upon that further medical certificate.  The applicant stated that during sworn testimony on 9 April 2014.  I asked the applicant during the course of the proceedings on 9 April 2014 if she had a copy of that further medical certificate with her so that she could show the Court.  The applicant said that she did not have a copy of that medical certificate with her.

3. I do not believe the applicant in relation to that evidence.  I find it inherently improbable that the applicant would have obtained a further medical certificate (the implication being that the further medical certificate would have justified an adjournment) and yet the applicant has not at any time produced that further medical certificate and still, on the day of the adjourned date of the final hearing on 9 April 2014 – the applicant still has failed to produce a copy of the further medical certificate.

4. The applicant was told that the hearing was to go ahead by telephone on 5 June 2013 unless she obtained medical evidence which specifically explained why it was that a telephone appearance by her would not be medically possible.  As stated, the applicant never obtained such medical evidence.  If the applicant had obtained such evidence – she would surely have produced that medical evidence both to the Tribunal and to the Court.

5. In a decision of the Federal Magistrates Court of Australia (as it then was) in Farook v Minister for Immigration & Anor (2011) FMCA 940 Riley FM (as Her Honour then was) considered the reasonableness of a Tribunal’s decision to refuse an adjournment of a telephone hearing on medical grounds. I note that Her Honour stated at paragraph 47:

   “There is nothing untoward or unreasonable about the Tribunal seeking medical evidence substantiating a claim that an applicant cannot attend a hearing in a particular way for medical reasons.”

6. The same sentiment expressed by Her Honour is applicable in the present case.

7. I agree with the submission made on behalf of the Minister that the applicant had, indeed, agreed to proceed with the hearing on 5 June 2013.  There was no further evidence forthcoming from the applicant to show that she was not capable of partaking in the hearing by telephone on that day.  It should be noted that the only medical evidence provided confirms that the applicant was pregnant – not that the applicant was in any way incapacitated.

8. I have come to the conclusion that the Tribunal acted in a reasonable manner.  It was reasonable for the Migration Review Tribunal to exercise its discretion and refuse the adjournment.  It was reasonable for the hearing to go ahead by telephone on 5 June 2013.  No jurisdictional error has been made out in relation to that ground.

9. I have also turned my mind to the question as to whether or not there should have been an interpreter available for the purposes of the telephone hearing on 5 June 2013.

10. In that regard I note that the applicant had originally ticked a box stating that she did not require an interpreter for the Migration Review Tribunal.  Mind you it should be noted that in that same form the applicant had said that she did not intend appearing before the Migration Review Tribunal.

11. Whilst it is the case that the applicant ticked a box requesting an interpreter for this hearing and the original hearing was delayed so that an interpreter could be obtained – it is also apparent to the Court that when one has regard to the transcript from 17 February 2014 that the self represented litigant, Ms Kaur (the applicant) is able to speak and understand English to a reasonably good standard.  I note from page 3 of the transcript of 17 February 2014 that I asked Ms Kaur whether she can read English and she stated “yes”.  In addition, the bundle of documents contains the various case notes to which I have referred earlier herein in these Reasons for Judgment.  It is apparent from the case notes dated 30 May 2013 and 3 June 2013 that an employee of the Migration Review Tribunal held telephone discussions with the applicant and during the course of those telephone discussions the applicant conveyed clearly in English to the employee the situation in relation to her pregnancy etc.  There was never any mention by the applicant that the hearing before the Migration Review Tribunal should be adjourned because of the lack of an interpreter.  Indeed the hearing went ahead without an interpreter. 

12. The fact that the Tribunal hearing went ahead by telephone on 5 June 2013 – without the assistance of an interpreter – is not sufficient, in this case, to constitute jurisdictional error.  Indeed, the applicant has never claimed that jurisdictional error arose because of the lack of an interpreter.  There is no evidence to suggest that the Tribunal hearing on 5 June 2013 was not conducted in a reasonable and fair manner. 

13. In my view the applicant has been accorded procedural fairness by the Tribunal.  In my view the Tribunal has acted reasonably in the circumstances. 

14. The applicant has not been able to establish any jurisdictional error.  The application must be dismissed with costs in an amount to be fixed on the date when the judgment is handed down.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate: 

Date:  29 April 2014