KUMAR v Minister for Immigration

[2014] FCCA 648

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 648

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – no jurisdictional error – application dismissed – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.485.215 and r.1.15C

Applicant: ASHOK KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 230 of 2013

Judgment of: Judge Simpson

Hearing date: 27 March 2014

Date of Last Submission: 27 March 2014

Delivered at: Adelaide

Delivered on: 27 March 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms C Deegan

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 30 July 2013 is dismissed.

2. The applicant shall forthwith pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

3. The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 230 of 2013

ASHOK KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. In this matter, the applicant appears in person.  He does not have legal representation.  He has indicated to me that he has received the first respondent’s Outline of Submissions, and has been able to read that document.  He also indicated to me that he is able to read and understand English.  He has been given the opportunity this morning to put submissions to me as to why I should make the orders that he seeks in his application.

2. In my view, the applicant’s submissions do not identify any proper ground for review.  Nevertheless, it is for the Court to examine all of the material and decide whether there is a jurisdictional error not identified by the applicant. 

3. It is not uncommon for applicants such as this applicant to not fully understand what is required for this Court to overturn a decision of the Migration Review Tribunal (“the Tribunal”).  I have spent a significant amount of time explaining to the applicant what is required and what a jurisdictional error might comprise.  I am assisted as is often the case, by a very helpful outline of submissions from the first respondent. 

4. The application before me is an application for judicial review of a decision of the Tribunal.  The Tribunal affirmed a decision of the delegate of the then Minister for Immigration and Citizenship, now known as the Immigration and Border Protection, not to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) Visa. 

5. The applicant is a citizen of India. On 21 October 2011, he lodged an application for the visa with the then Department of Immigration and Citizenship. On 4 July 2012, the delegate of the Minister refused the application on the ground that the application did not satisfy the ‘Competent English’ requirement under cl.485.215 and r.1.15C of the Migration Regulations 1994 (Cth).

6. On 25 July 2012, the applicant applied to the Tribunal for review of the delegate’s decision.  On 16 May 2013, the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.  The hearing was scheduled to take place on 19 June 2013.  The applicant did not attend the hearing, and so the Tribunal proceeded on the review in his absence.  It ultimately affirmed the decision under review. 

7. The Tribunal gave extensive reasons.  I have carefully considered those reasons. 

8. On 30 July 2013, the applicant filed his application with this Court.  He indicated in his application that he was challenging the decision of the Tribunal of 28 June 2013, and sought an order that the decision of the Tribunal be quashed.  He gave as the grounds of the application, and I read this verbatim:

   I lodged Skilled (Provisional)(Class VC) 485 visa on 21 October 2011, which got refused on 4 July 2012.  I then applied for Migration Review Tribunal, which was refused on 28^th of the 6^th of 2013.  The reason for my visa refusal was IELTS 6 each.  I am preparing for IELTS examination, and will submit my IELTS results to Federal Court as soon I will clear that. 

   The IELTS is concerned with the issue of whether the applicant had provided proper evidence of his competence in the English language, which is the issue that both the delegate and the Tribunal had concerns about. 

9. The applicant has to establish jurisdictional error to qualify for the relief that he seeks.  In my view, there is no basis for an argument that there has been jurisdictional error in this case.  The applicant does not identify a jurisdictional error. 

10. An examination of the reasons does not reveal any jurisdictional error.  It seems to me this is a simple matter of the applicant failing to provide the Tribunal with the evidence that was needed, that is, the evidence that he was competent at English.  He comes to the Court today, again saying that he does not yet have evidence of competent English.  He says that at some stage in the future he hopes that he might have this evidence.

11. There has been no procedural error on the part of the Tribunal, and it’s clear that without the evidence of competent English, the visa could not be granted. This application is without merit and should be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

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

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 8 April 2014