Kumar v Minister for Immigration

[2013] FCCA 1860

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1860

Catchwords:
MIGRATION – Multiple-applicant Tribunal hearing – Applicant claims denial of procedural fairness – issue of fact –  Applicant unable to meet visa criteria – Applicant given opportunity to be heard – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), ss.53, 353, 360, 365, 429

Migration Regulations 1994 (Cth), Reg.1.15C(1)-(2), Sch.2 cl.485.215

Minister for Immigration and Citizenship v SZQHH and Anor (2012) FCR 223
Re JRL; Ex parte CJL (1986) 161 CLR 342
SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 565

Professor The Hon. Michael Lavarch, Report on the Increased Workload of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT), 29 June 2012

Applicant: AJAY KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 697 of 2013

Judgment of: Judge Whelan

Hearing date: 22 October 2013

Date of Last Submission: 22 October 2013

Delivered at: Melbourne

Delivered on: 22 October 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Burchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The Application filed by the Applicant on 21 May 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 697 of 2013

AJAY KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This in an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 23 April 2013. The Tribunal’s decision affirmed the decision of 18 February 2013, of the delegate of the Minister, to refuse to grant the applicant a Skilled (Provisional)(class VC) subclass Skilled – Graduate (485) visa.[1]

   [1] Court Book filed 7 August 2013 at pp.48-51.

2. In the application, the Applicant seeks the following orders:

   1.  A writ of certiorari quashing the decision or alternatively an order setting aside the decision

   2.  A declaration that the decision is invalid

   3.  An order remitting the matter to the Respondent for determination according to law.[2]

   [2] Application filed 21 May 2013 at p.2.

Background

1. The Applicant is a citizen of India. On 20 November 2012, he lodged an application for a Skilled Graduate (Provisional) visa. On

   
   

   18 February 2013, a delegate of the Minister refused to grant the visa to the Applicant on the grounds the delegate was not satisfied that the Applicant had met the criteria for the visa, as he did not meet the requirements of Reg.1.15C of the Migration Regulations 1994

   
   

   (“the Regulations”), because the Applicant had not taken an English language test within the 36 months before the day on which the application was made.

2. On 7 March 2013, the Applicant applied to the Tribunal for a review of the delegate’s decision. In correspondence dated 28 March 2013,[3] the Tribunal invited the Applicant to appear before it on 22 April 2013, in a multiple-applicant hearing list to give evidence and present arguments. The Tribunal also made a request that the Applicant provide any information to show that he had successfully completed the required English language test within the time specified.

   [3] Court Book filed 7 August 2013 at pp.61-62.

3. The letter stated the Tribunal was unable to make a favourable decision on the information before it. The delegate had refused the application because he was not satisfied that the Applicant had competent English. The issue before the Tribunal was whether the Applicant had competent English, as defined by the Regulations, and the Applicant was invited to provide evidence of that.

4. The Applicant wrote to the Tribunal seeking an adjournment of the hearing, as he had booked in for an English test between 23 April and 27 April 2013.[4] The Tribunal contacted the Applicant to advise that the hearing would proceed, as he was required to have sat a successful test in the three years immediately before making his visa application. A result after this time could not be considered.[5] 

   [4] Ibid at p.68-70.

   [5] Ibid at p.71.

5. At the hearing, the Applicant submitted various test and report forms, from 2011 to 2013;[6] none of which achieved the score required for competent English. The Tribunal affirmed the delegate’s decision on 23 April 2013, and on 21 May 2013, the Applicant lodged this application for review. 

   [6] Court Book filed 7 August 2013 at pp.74-80.

The Tribunal’s Decision

1. The Tribunal, in its decision, addressed the criteria for a subcl.485 visa as set out in Sch.2 of the Regulations and noted that it required the Applicant to meet the requirements of those Regulations.

2. The Tribunal noted that the Applicant’s visa application had been refused by the Department, because it was not satisfied that the Applicant had competent English at the time of the application. The Tribunal explained to the Applicant that it was too late to sit another test or to produce results of tests taken after lodging the visa application. The Tribunal noted that it wrote to the Applicant to request his attendance and to present evidence of competent English. 

3. The Tribunal asked the Applicant to confirm that he had noted on his visa application that he had not undertaken an English test in the three years immediately before the day on which he lodged his application, and the Applicant agreed, and said he had no further evidence in support of his application. 

4. The Tribunal concluded that the Applicant had not undertaken an English language test in which he had achieved the specified score in the three years immediately before the day on which the application was made. The Tribunal therefore found that the Applicant did not have competent English as defined by the Regulations and could not satisfy the requirements of cl.485.215 of the Regulations.

Grounds of Application

1. The Applicant, in his application to the Court, sets out the following as the ground for the application.

   The decision of the Tribunal was a denial of procedural fairness and natural justice[7]

   The particulars of that ground were: 

   The Tribunal hearing was not properly conducted in that the hearing of my application was not done in a proper and fair way. There were a number of other applicants in the hearing room when my case was heard. They were listening to what I said and on occasions there was laughter and people would come in and out of the hearing room. It was not fair that all of these other people who also had their case on that day, should be present when I was presenting my case. This was not a class action case, but the way it was conducted amounted to such a hearing.[8]

   [7] Application of Ajay Kumar filed 21 May 2013, at p.3.

   [8] Ibid.

2. The Applicant, in his Contentions of Fact and Law filed with the Court, stated as follows:

   1.  This is an application pursuant to section 39 B of the Judiciary Act for judicial review of a decision of the Migration Review Tribunal (the MRT) affirming a decision of a delegate of the Respondent not to grant the applicant a Skilled (provisional)(class VC) visa.

   2.  The issue in the present case is whether the applicant has competent English as required by cl.485.215. Competent English is defined in r.1.15C. It provides:

   1.  A person has competent English if:

   (a)    the person undertook a language test, specified by the minister in an instrument in writing for this paragraph; and

   (b)    the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)     the person achieved a score specified in the instrument.

   3.  A person has competent English if the person hold (sic) a passport of a type specified by the Minister in an instrument in writing for this subregulation.[9]

   [9] Applicant’s Contentions of Fact and Law filed 6 September 2013, at pp.1-2.

3. The Applicant went on to state:

   1.  I was born in India and I am a national of that country. 

   2.  I am the Applicant in the present proceedings, where I am appealing the decision of the Migration Review Tribunal made on the 23^rd day of April 2013.

   3. On 20 November 2012, I applied for a Skilled visa under s. 65 of the Migration Act.

   4.  On 18 February 2013, the delegate refused to grant me the visa. 

   5.  I then applied to the MRT for review of the delegate’s decision.

   6. On 23 April 2013, the MRT affirmed the decision of the delegate.

   7.  I then appealed to the Federal Magistrates Court. 

   8.  I say that the decision of the Tribunal was a denial of procedural fairness and natural justice in that the Tribunal hearing was not properly conducted in that the hearing of my application was not done in a proper and fair way. There were a number of other applicants in the hearing room when my case was heard. They were listening to what I said and on occasions there was laughter and people would come in and out of the hearing room. It was not fair that all of these other people who also had their case on that day, should be present when I was presenting my case. This was not a class action case, but the way it was conducted amounted to such a hearing.[10]

   [10] Ibid at pp.2-3.

4. In his oral evidence today, the Applicant stated the hearing was not private and he did not feel confident about speaking. The whole hearing only took about five minutes and he could not explain himself in the time given.

The First Respondent’s Submissions

1. The First Respondent submits that the Tribunal correctly applied the law in finding that the Applicant had not satisfied cl.485.215 of the Regulations at the time of the decision.

2. The Applicant had provided seven International English Language Testing System (“IELTS”) results from 2011 to 2013, none of which met the required test scores.[11] Clause 485.215 of the Regulations requires that the Applicant have competent English. Regulation 1.15C of the Regulations defines competent English to mean the applicant had undertaken a test conducted in the three years immediately before the day on which the application was made with an IELTS score of at least six for each of the four test components of speaking, reading, writing and listening.[12]

   [11] Court Book filed 7 August 2013 at pp.74-80.

   [12] First Respondent’s Outline of Submissions, filed 10 October 2013, p.3 at para.11.

3. The Tribunal was therefore correct to conclude that the Applicant had not provided any evidence that he met the English language criteria. The Applicant complains he was denied procedural fairness and natural justice because there were a number of other applicants in the hearing room at the time his case was heard. The First Respondent submits that the Tribunal is required by s.353 of the Migration Act 1958 (Cth) (“the Act”) to conduct itself in a way that is fair, just, economical, informal and quick. The Tribunal is not bound by technicalities, legal forms or rules of evidence.

4. In response to recommendations of the Report on the Increased Workload of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) (“the Lavarch Report”),[13] the Tribunal trialled the system of multiple-applicant hearings, where the applicants had a single issue in common; in this case, where the delegate was not satisfied of their English language competency skills. The Applicant was advised of the way the hearing would be conducted and what the issue for determination by the Tribunal was.

   [13] Professor The Hon. Michael Lavarch, Report on the Increased Workload of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT), 29 June 2012.

5. At the commencement of the proceeding, all applicants were invited to the hearing room and the Tribunal member gave a generic opening explaining the process and the issues before the Tribunal. Each applicant then had a specific hearing of their own. The First Respondent submitted that the process adopted complied with the requirements of s.360 of the Act.

6. Section 365(1) of the Act states that:

   Subject to this section, any oral evidence the Tribunal takes while a person is appearing before it must be taken in public. 

   It is only if it is satisfied that it is in the public interest to do so, or if it is impractical to take that evidence in public, that the Tribunal may direct that the oral evidence be taken in private.[14]

   [14] Migration Act 1958 (Cth) ss.365(2)-(3).

7. The First Respondent referred the Court of the decision of the High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 565 (“SZAYW”). The Court, in that case, was considering equivalent provisions before the Refugee Review Tribunal and in particular, the provisions of s.429 of the Act. In the exercise of a Tribunal’s express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present, may attend and observe what is going on.

8. The fact that there were people, including other single-issue student visa applicants, in the hearing room during the Applicant’s hearing, does not, of itself, amount to a jurisdictional error.

9. The First Respondent also referred the Court to the case of the Minister for Immigration and Citizenship v SZQHH and Anor (2012) 200 FCR 223. That case concerned an applicant who, together with nine other applications from fellow Hazara Shia asylum seekers, was allocated to an Independent Merits Reviewer (“the Reviewer”).

10. Each asylum seeker claimed to fear persecution in Afghanistan because of their ethnicity and religion. The Reviewer used a template to record his assessment of the common claims put by all the asylum seekers in his case load, repeating verbatim the material relied on to reject the generic claim in each case.

11. The applicant accepted his individual claims had been fairly assessed but said an apprehension of bias arose because the Reviewer had used a template to reject the generic claims advanced. The Court, in considering the applicants’ contentions in that case, made the observation:

    If claims or applications made by a number of persons involve common features, a decision-maker who must determine all of those individuals’ claims or applications at about the same time ordinarily will work out his or her findings about the common aspects and apply those consistently in each individual case.[15]

    The Court also said:

    The mere fact that a decision-maker has previously expressed a view on the same or a similar subject does not, of itself, give rise to an apprehension that he or she will not bring a fair and impartial mind to the new decision to be made: see for example in relation to judges Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. After all, decision-makers can be expected to apply the law and relevant policies in a consistent and predictable way.[16]

    [15] (2012) 200 FCR 223 at para.44.

    [16] Ibid at para.38.

12. In this case, the single issue that arose in relation to the decision under review, was whether the Applicant satisfied the English language requirement for the visa for which he applied. It was the only matter that the Tribunal was required to invite him to attend and give evidence and present arguments about.

13. The First Respondent submits that there are no interruptions heard on the recording in relation to that part of the hearing which concerned the Applicant alone. The Applicant was not denied the opportunity to have a meaningful hearing. The First Respondent submits the Applicant has not established how the conduct of a multiple-applicant hearing list impeded his ability to give evidence in relation to the one factual issue in question, namely whether, for the purposes of Reg.1.15C of the Regulations he had competent English, which was a pre-condition to the grant of a Skilled Graduate subclass 485 visa.

14. The First Respondent submits that the Tribunal’s decision was open to it on the evidence before it and the Tribunal correctly addressed the Applicant’s claims. 

Conclusions

1. The Applicant, in his Contentions of Fact and Law, correctly identified that the issue in the present case was whether he had competent English, as required by cl.485.215 of the Regulations. As specified in Reg.1.15C of the Regulations, a person has competent English if they undertook a language test specified by the Minister and the test was conducted in the three years immediately before the day on which the application was made and the person achieved the specified score.

2. In this case, the Applicant applied for the relevant visa on 20 November 2012; therefore, the English test in which he was required to achieve his specified score had to have been conducted between 19 November 2009 and 19 November 2012. The requirement was an IELTS score of at least six, in each of the four test components of speaking, reading, writing and listening.

3. The Applicant produced to the Tribunal at the time, and these are found in the Court Book, seven tests scores between January 2011 and February 2013.[17] In none of those results, did the Applicant achieve at least a score of six in each of the four test components. The Applicant has, in fact, at no stage contended that he was able to meet the criteria. The Applicant instead contends that he was denied procedural fairness because there were other people in the room when his case was heard and, on occasions, there was laughter and people were entering and leaving the room. 

   [17] Court Book filed 7 August 2013, at pp.74-80.

4. The First Respondent has provided the Court with both the general introduction tape and the tape of the Applicant’s hearing. From the Applicant’s responses to the questions put to him by the Tribunal, he appeared to hear and understand the questions that were being put to him. As the First Respondent has pointed out, s.365(1) of the Act states that, “any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public”. In the interests of efficiency and the provision of a process which is just, economical, informal and quick, the Tribunal adopted a process which was designed to deal with multiple-applicants for whom there was a single issue which the Tribunal needed to determine and this was a common one. 

5. In my view, that process complied with the requirements of ss.353, 360 and 365 of the Act. I am not satisfied the process denied the Applicant a meaningful opportunity to be heard. The process may have limited application, but in the context of this case, it was not inappropriate. I am of that view for these reasons:

   ·This is not a case where the Tribunal had a discretion to exercise or where it was required to make findings of facts on the basis of an assessment of the credibility of the Applicant’s evidence;

   ·The issue in this case was a factual one. Either the Applicant had obtained the requisite score in the prescribed test during the relevant period, or he had not. There was no evidence to suggest that the Applicant had;

   ·The evidence, in the forms of the test reports submitted by the Applicant, showed that he had not achieved the score required for competent English; and

   ·The Applicant does not say how the conduct of the hearing by the Tribunal prevented him from presenting this evidence. On the face of that evidence, he could not meet the requisite criteria and the Tribunal was, therefore, bound to uphold the delegate’s decision to refuse the visa.

6. As the Court in SZAYW noted at paragraph 4 of its judgment:

   The procedure of review is inquisitorial, and does not involve an adversarial trial, at which evidence is adduced and tested, and issues are debated. There are no parties. The tribunal investigates an applicant’s claims in a process of administrative merits review of the delegate’s decision.[18]

   [18] (2006) 91 ALD 565 at pp.567-568.

1. In adopting the procedure which it did, I am satisfied that the Tribunal appropriately exercised its powers as set out in the Act and that it complied with the requirements to both provide an informal, quick, just and economical process and to give the opportunity to the Applicant to be heard.

2. On that basis, the application for review must be dismissed. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 12 November 2013