KUMAR v Minister for Immigration

[2014] FCCA 1820

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1820

Catchwords:
MIGRATION – Applicant required to produce evidence of results in an IELTS test – failure to produce evidence – failure to meet criteria for a visa – independent basis for decision – relief denied.

Legislation:

Federal Circuit Court Rules 2001, rr.15.03, 44.12

Migration Act 1958 (Cth), s.65

Migration Regulations 1994, reg.1.15C, Sch.2 cl.886.213

Minister for Immigration and Citizenship v Li [2013] HCA 18
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant: MANOJ KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1891 of 2013

Judgment of: Judge F. Turner

Hearing date: 25 June 2014

Date of Last Submission: 25 June 2014

Delivered at: Melbourne

Delivered on: 25 June 2014

REPRESENTATION

The Applicant appeared In Person with the assistance of a Punjabi interpreter

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review filed 8 November 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1891 of 2013

MANOJ KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 15 October 2013 (Court Book (“CB”) p.89). That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Skilled (Residence) (Class VB) visa.

2. The delegate had refused to grant a visa because the applicant did not satisfy cl.886.213 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”), as the applicant failed to demonstrate that he had a competent level of English language as required by reg.1.15C. Regulation.1.15C, as it was at the time of the application, provided:

   If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

   (a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii)a score:

   (A)  specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B)  in a language test specified by the Minister in the instrument; or

   (b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph (CB p.48).

3. The final hearing of the application for judicial review was listed for

   
   

   25 March 2014, when the Court granted an adjournment until 25 June 2014, on the basis that the applicant was stressed and unable to concentrate on 25 March 2014.

4. On 22 January 2014, Registrar Caporale ordered that a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”) be dispensed with and the matter proceed to final hearing.

5. At the hearing before the Court the applicant represented himself with the assistance of a Punjabi interpreter and Ms Gangemi represented the first respondent.

6. By orders dated 22 January 2014, the applicant was to file and serve written submissions. That was not done. The Court invited the applicant to put submissions to the Court today in support of his application. No submissions were put.

7. Ms Gangemi consented to the Court making a decision in the matter pursuant to r.15.03 without an oral hearing.

8. In his application filed 8 November 2013 the applicant set out the following grounds for judicial review:

   (1)The Tribunal failed to accord to the Applicant procedural fairness and natural justice.

   Particulars

   (a)On 8 May 2012 the Applicant applied to the MRT for review of the delegate’s decision.

   (b)MRT invited the applicant to attend the hearing on 17 Sept 2013.

   (c)The applicant on 12 Sept 2013 requested for an extension of time on compelling and compassionate grounds to appear before the Tribunal on medical grounds enclosing a copy of the High Court decision of MIAC v Xijuan Li and Anor [2013] HCA 18 and a copy of the psychologist letter dated
   3 October 2013 which clearly states that the applicant is undergoing anxiety and depression and also provided a contact number.

   (d)The Tribunals decision to proceed was unreasonable in the circumstances.

   (e)The decision maker has failed to give an opportunity to the applicants to be heard and to address the issues and grounds upon which the visa was cancelled.

   (f)The Tribunal’s exercise of the decision under s363 (1)(b) of the Migration Act 1958 (the Act) was unreasonable applying the case of MIAC v Xijuan Li and Anor [2013] HCA 18.

   (g)The Tribunal’s exercise of the decision went against the case of Berenguel v MIAC [2010] HCA 8 which says a test can be undertaken after the application has been made.

   (h)The Tribunal made a decision in the absence of the applicant.

   (i)The Tribunal failed to accord the applicant procedural fairness.

   (2)The Tribunal failed to comply with section 362B (2) of the Act in that it failed to rescheduled the applicant’s appearance before it to enable the applicant to appear and present her case.

   Particulars

   (a)The Applicant refers to and repeats the particulars at paragraph 1 above.

   (b)The Tribunal erred in not having regard to the fact that the applicant was undergoing treatment from the psychologist and wanted time to complete the IELTS test and ought to have rescheduled the hearing to enable the applicant to attend the hearing and to provide evidence and information and present arguments before making a decision.

   (c)The decision maker has failed to identify and consider the elements of the case.

   (3)The Tribunal failed to comply with section 348 of the Migration Act 1958 (the Act) in that it failed to conduct a review of the Applicant’s application.

   Particulars

   (a)The Applicant refers to and repeats the particulars at paragraph 1 above.

   (b)There was no ‘available information’ before the Tribunal to make a decision.

   (c)The Tribunal could not have reviewed the application on the available information.

   (d)The Tribunal failed to consider the applicant’s circumstances and proceeded to decide in the absence of the applicant.

   (e)The Tribunal did not conduct a hearing of the matter and contemplated under the Act.

9. The first respondent filed Contentions of Fact and Law on 11 March 2014. The Court accepts the following submissions of the first respondent:

   ·In his visa application, the applicant answered ‘No’ to the question “Have you undertaken an English test within the last 24 months?” (CB p.11)

   ·“On 25 November 2011 the delegate requested that the applicant provide evidence of his English language test ability” (CB p.30).

10. On 22 December 2011, the applicant’s agent sent a copy of a booking receipt for an IELTS test to be conducted on 18 February 2012 (CB pp.32 and 36) and requested the applicant be given a chance to provide details of his score (CB p.32).

11. On 23 December 2011, the Department responded to the applicant, through his migration agent (CB pp.37–40) stating that:

    “…we may consider any English language test results undertaken after the date of application and submitted to the department for assessment. However the department will not delay finalising the application where test result evidence is not provided.”

    
    (CB p.37.3).

12. The applicant did not submit the results for the test conducted on

    
    

    18 February 2012 (CB p.49.2), and on 23 April 2012, the delegate refused to grant the visa.

13. The first respondent submits at [8.1]:

    “The delegate found that the applicant had not provided evidence that he had ‘competent English’ as defined in r1.15C of the Migration Regulations 1994(the Regulations). The delegate found that the applicant therefore did not meet cl 886.213 of Schedule 2 to the Regulations, which required the applicant to have competent English: CB49.”

14. As provided in s.65 of the Migration Act 1958 (the “Act”), if the Minister is not satisfied that the prescribed criteria for a visa have been satisfied, the Minister must refuse to grant the visa.

15. On 7 May 2012, the applicant applied to the Tribunal to review the delegate’s decision (CB p.51). On 21 August 2013, the Tribunal wrote to the applicant’s migration agent, inviting the applicant to attend a Tribunal hearing on 17 September 2013 (CB p.64).

16. On 13 September 2013, the Tribunal received a fax from the applicant, acknowledging that he should have submitted his IELTS test results (CB p.68) and including details of having booked for another IELTS test on 21 September 2013 (CB p.70). The applicant requested an extension on “compassionate and compelling ground[s]” [CB p.68].

17. The Tribunal noted that the applicant made no request for a postponement of the hearing held on 17 September 2013

    
    

    (CB p.92 [18])] but that he requested only that some more time be granted for him to provide evidence of competent English.

18. A Tribunal officer had contacted the applicant’s representative on

    
    

    16 September 2013, and advised him that the Tribunal had decided not to grant the postponement (CB p.71).

19. The Tribunal stated at CB p.92 [18] that:

    “In order to avoid any misunderstanding as to the nature of the correspondence received, on 16 September 2013, the Tribunal officer contacted the applicant’s representative and informed him that the hearing set for 17 September 2013 at 2 p.m. will proceed as scheduled.”

20. On 17 September 2013 at 10.14am, the applicant sent a further fax to the Tribunal (CB p.72), stating that due to his mental health condition, he could not appear, and enclosed a summary of the decision of the High Court of Australia in Minister for Immigration and Citizenship v Li [2013] HCA 18. The applicant requested more time to submit an IELTS score (CB p.72.6).

21. The applicant did not appear at the hearing and the Tribunal considered whether to exercise its discretion to reschedule the hearing. The Tribunal determined that, for the reasons it stated, “…there would be no value in delaying its decision on the review in order to enable the applicant’s appearance to be re-scheduled” (CB p.92 [24])

22. The applicant was not able to provide the results required for a visa. As a result, the applicant did not satisfy the requirements of cl.886.213 of Schedule 2 to the Regulations.

23. The Court accepts the following written submissions for the first at [27] to [38]:

    Ground One

    (27)The particulars of ground 1 claim that on 12 September 2013, “the applicant requested an extension of time on compelling and compassionate grounds to appear before the Tribunal on medical grounds”.  The particulars further claim that, applying the case of Minister for Immigration v Li [2013] HCA 18, the decision to refuse the adjournment and proceed with the hearing was unreasonable, denied the applicant an opportunity to be heard, went against the case of Berenguel v Minister for Immigration [2010] HCA 8 and failed to accord the applicant procedural fairness.

    (28)Firstly, there is no merit to the applicant’s claim that the Tribunal went against the decision in Berenguel.  As the Tribunal correctly set out at [10] of its decision (CB 91), Berenguel held that cl 885.213 can be satisfied by a test undertaken after the application has been made.  The Tribunal held that the Court’s reasoning applies to cl 886.213, which is expressed in identical terms.  This correct application of the law is evident in the Tribunal’s conduct of the review, in particular the Tribunal’s agreement to defer making a decision until 8 October 2013 to enable the applicant to provide the result of the IELTS test undertaken on 21 September 2013.

    (29)Secondly, it is clear from the Tribunal decision at [18]-[19] (CB 92) and the 24 September 2013 email (CB 74), the Tribunal did not understand the applicant to have made a request to postpone the Tribunal hearing.  While the file note made by the Tribunal officer (CB 71) indicates that the officer may have spoken to the representative in terms of the Tribunal deciding not to grant the postponement, the Tribunal decision, rather than the file note, should be seen to record how the Tribunal exercised its powers.

    (30)Thirdly, in treating the correspondence of the applicant as a request to delay the making of a decision, rather than a request to postpone the hearing, the Tribunal did not reason illogically or irrationally in a legal sense: see Li at [72].  It is submitted that the Tribunal’s treatment of the 12 September 2013 correspondence was not “upon the facts….unreasonable or plainly unjust” or a decision “which lacks an evident and intelligible justification”: Li at [76] for the following reasons. 

    30.1The 12 September 2013 letter contained no specific request for the hearing to be adjourned, nor did it attach a copy of the decision in Li.  Rather, the letter stated the applicant’s awareness that he was meant to have already submitted an IELTS score, but that severe depression had hindered his performance.  He advised that he had booked another IELTS test for 21 September 2013 and requested an extension on compassionate and compelling grounds.  It was open to the Tribunal to understand the letter to request that the Tribunal delay its decision to enable the applicant to undertake a further IELTS test.

    30.2There was no practical injustice from the Tribunal’s treatment of the correspondence as a request for more time.  The Tribunal agreed to defer its decision on the review to enable the applicant to submit the results of the IELTS test undertaken on 21 September 2013.

    Ground 2

    (31)The applicant’s second ground claims that by not re-scheduling the hearing, the Tribunal failed to comply with s 326B(2) of the Act. The applicant repeats the particulars of ground 1, and additionally claims that the Tribunal erred by not having regard to the fact that he was having treatment from a psychologist and wanted time to complete the IELTS test.

    (32)Under s 362B(1) of the Act, where an applicant is invited under
     s 360 to appear before the Tribunal [sic ‘and’] does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.  Section 362B(2) makes clear that the discretion in s 362B(1) does not prevent the Tribunal from re-scheduling the applicant’s appearance before the Tribunal. 

    (33)To the extent that ground two claims that the Tribunal failed to comply with s 362B(2) as it acted unreasonably, the first respondent submits:

    33.1The Tribunal reasonably assessed the reasons against re-scheduling the matter based on the material before it. 

    33.1.127 months had passed since the visa application was made, and that the applicant had been aware for at least 17 months (since the delegate’s decision) of the basis for the refusal of his visa application: CB 92 at [22]. 

    33.1.2The 12 September 2013 psychologist’s report did not explain why the applicant was unable to attend the scheduled hearing.  Further, despite claiming that he had been struggling with mental health for ‘a while’, no evidence of his past treatment was provided to the Tribunal: CB 92 at [23].

    33.1.3Considering the above reasons, the Tribunal determined that there would be no value in delaying its decision on the review to enable the applicant’s appearance to be re-scheduled: CB 92 at [24].

    33.2There was no practical injustice in refusing to re-schedule the hearing as the Tribunal agreed to defer making its decision until 8 October 2013 to enable the applicant to provide the IELTS score of the test taken on 21 September 2013. 

    Ground 3

    (34)The applicant’s third ground claims that the Tribunal failed to comply with s 348 of the Act because it could not have reviewed the application on the information that was available to it.

    (35)Section 348(1) of the Act requires that if an application is properly made under s 347 of the Act for review of an MRT-reviewable decision, the Tribunal must review the decision.

    (36)On a fair reading of the Tribunal decision, it is submitted that the Tribunal

    36.1understood and identified the relevant issue in the matter;

    36.2invited the applicant to give evidence and present argument regarding the issue under review at a hearing in accordance with the relevant requirements (see, in particular, ss 360, 360A, 379A and 379C of the Act);

    36.3was entitled to proceed to make a decision after the applicant did not attend the hearing: s 362B(1);

    36.4but agreed to delay the making of a decision to enable the applicant to provide evidence to satisfy the relevant criterion in issue. 

    (37)Despite being provided with the opportunity [sic ‘to’] put before the Tribunal the actual results of the 21 September 2013 IELTS test, no results were put before the Tribunal. In the absence of any results demonstrating competent English, it was open to the Tribunal to conclude that cl 886.213 was not satisfied.

    (38)It is submitted that there was no failure to the Tribunal to conduct a review as required by s 348(1).

24. Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].

25. The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:

    “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”

    [1] [1994] 1 SCR 202 at 228.

    [2]  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].

26. The Court finds that those statements are directly applicable to this case.

27. As stated by Kirby J in SZBYR at [88]-[89]:

    “In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”

1. Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:

   “… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].

   As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:

   ‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’

   See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).

2. The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:

   “Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”

3. The Court finds that even if there was some merit in the grounds for judicial review of the decision of the Tribunal (and the Court finds that there is, in fact, no merit) then the Court would exercise its discretion to withhold relief because there is an unimpeachable independent basis for the Tribunal affirming the delegate’s decision being that the applicant failed to produce evidence of the prescribed scores in an IELTS test. Clause 886.213 as it then was [CB p.48] was not satisfied. By s.65 of the Act, the Minister was required to refuse the visa.

4. The Court finds no error of law in the Tribunal’s decision.

5. The application for judicial review is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 19 August 2014