Kaur v Minister for Immigration
[2015] FCCA 3181
•18 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3181 |
| Catchwords: MIGRATION – Judicial review – failure to pass IELTS test – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 |
| Applicant: | BALJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 965 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 November 2015 |
| Date of Last Submission: | 18 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 18 November 2015 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Young |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 4 May 2015 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 965 of 2015
| BALJIT KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter has been listed for a show cause hearing today pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). That is an application by the respondent for a show cause hearing. The applicant filed an application to this Court seeking a review of the decision of the Administrative Appeals Tribunal decision dated 30 April 2015. In her application, she says that she is awaiting the results of the IELTS test. She says she is waiting for a re-evaluation of the results but the Tribunal made the decision before receiving those results.
Ms Kaur appears in person today and I accept that she has genuinely tried to pass this test and has gone to some considerable effort to do so. She acknowledges that the Tribunal has not made a jurisdictional error but that really what she is seeking is another chance to pass the test. That invites me to deal with this matter on its merits, which is something that I am not permitted to do. This is a judicial review and not a rehearing of the application. My task is to identify whether or not there has been an error by the Tribunal such that it amounts to a jurisdictional error which would mean the decision could not stand.
The respondent has prepared written submissions which fairly set out the situation. It is clear from the regulations that apply to the applicant that the applicant had until the time the decision was made by the Tribunal to provide the required test results. It is also clear that the Tribunal was aware that the applicant had some health issues which delayed matters for her and had attempted the test several times. The applicant was passing three out of the four areas of the test but was not achieving the necessary score in the area of written English and it is necessary for her to pass all sections of the test.
It is clear from the Tribunal decision that the Tribunal took this into account and did give her further time to provide the passing test results because she had booked herself in for further tests. It is also clear that the Tribunal warned the applicant that the Tribunal would not delay the decision indefinitely and, in fact, that the tribunal had given her a further extension of time until 27 April 2015. The applicant was put on notice about that but did not supply any further test results and the Tribunal made its decision on 30 April 2015.
As Yates J has stated in Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 at paragraph 48, the Tribunal is not obliged to postpone finalising its review indefinitely. In the circumstances, there is no jurisdictional error and the application must be dismissed.
The first respondent seeks costs in the sum of $3,416 in accordance with the scale and I will make that order.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 30 November 2015
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