Kumar v Minister for Immigration & Border Protection

[2014] FCCA 2914

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2914

Catchwords:
MIGRATION – Migration Review Tribunal – whether Migration Review Tribunal properly exercised its discretion to refuse a further opportunity to the applicant to provide evidence of compliance with Regulation 1.15C of the Migration Regulations 1994 (Cth) in relation to English proficiency.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13
Migration Regulations 1994 (Cth), reg.1.15C

Cases Cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: PANKAJ KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2005 of 2014

Judgment of: Judge Emmett

Hearing date: 5 December 2014

Date of Last Submission: 5 December 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2005 of 2014

PANKAJ KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 17 July 2014. The application otherwise seeks judicial review of a decision of the Migration Review Tribunal dated 25 June 2014 and handed down on 26 June 2014 (“the MRT”).

2. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

4. On 4 November 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

5. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

6. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

7. The applicant confirmed that he wished to continue with the application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, by 21 November 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 21 November 2014.

8. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

9. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.

10. The applicant was unrepresented before the Court today, although had the assistance of an interpreter. The applicant confirmed that no documents had been filed by him either in accordance with the directions of the Court made on 4 November 2014 or otherwise.

11. The applicant confirmed that he relied on the grounds of his application filed on 17 July 2014. Those grounds of review are as follows:

    “1. Jurisdictional error and lacked jurisdiction

    2. error in interpretation of legislation

    3. Natural justice.”

12. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. The only response made by the applicant to Grounds 1 and 3 was that he sought more time to find a solicitor to assist him.

13. To the extent that I understood the applicant to be making an application to adjourn today’s hearing, in my view, the applicant has had many months in order to be able to seek such advice. The applicant was provided with contact details of legal service providers on the last occasion. Having regard to the opportunities that the applicant has had to obtain legal advice, to the extent that the applicant was seeking an adjournment of today’s hearing, that application was refused.

14. The applicant had nothing at all to say in support of Ground 2.

15. Plainly none of the grounds of the application identify any error capable of review by this Court and do not by themselves disclose an arguable case for the relief claimed.

16. The first respondent filed written submissions on 28 November 2014 pursuant to directions made by me on 4 November. Those submissions identify the issues, the legal background, the factual background, the application for review and a summary of the RRT’s relevant findings. Those submissions are as follows:

    “ISSUES

    By way of an application filed on 17 July 2014, made under section 476 of the Migration Act 1958 (Cth) (Act), the applicant seeks judicial review of a decision of the second respondent dated 25 June 2014. In that decision the second respondent affirmed a decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    The applicant attended a first Court date directions hearing on 4 November 2014, at which the Court ordered (inter alia) that the applicant have leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 21 November 2014. To this date no amended application has been filed.

    The grounds of review raised in the originating application are set out below in full.

    LEGAL BACKGROUND

    As at the time of the applicant's visa application, Class VB contained three subclasses: Subclasses 885, 886 and 887. Relevantly, the applicant sought to be assessed against the criteria for Subclass 885.

    The criteria for the grant of a Subclass 885 visa were set out in Part 885 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Those criteria relevantly included a mandatory criterion—as set out in clause 885.213—that stated that:

    The applicant has competent English.

    'Competent English' was in turn defined in regulation 1.15C of the Regulations as follows:

    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 [International English Language Testing System     (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-paragraph; and

    (B)     in a language 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.

    For the purpose of subregulation 1.15C(a)(ii), the Minister for Immigration and Border Protection (the Minister) had specified a score of at least 'B' in each of the four components of the Occupational English Language Test (OET). For the purpose of subregulation 1.15C(b), the Minister had specified passports issued by the United Kingdom, the United States of America, Canada and New Zealand.

    Pursuant to the definition of 'competent English' applicable to the applicant's visa application, the applicant was able to satisfy regulation 1.15C of the Regulations by achieving the specified score in either an IELTS test or an OET in a test undertaken in the two year period prior to the visa application or in the period after the visa application had been made: Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417.

    FACTUAL BACKGROUND

    The applicant lodged an application for a Skilled (Residence) (Class VB) Subclass 885 (Skilled—Independent) visa on 7 June 2010 (CB1–41). That application was lodged online.

    In his online application form, the applicant indicated that he had not undertaken an English test within the previous 24 months (CB10). He also provided no evidence of competent English at the time of his application.

    By decision dated 6 February 2014, a delegate of the Minister (the delegate) refused to grant the applicant a visa (CB45–54). The delegate was not satisfied that the applicant met the requirements of regulation 1.15C of the Regulations, and was consequently not satisfied that the applicant had competent English as required by clause 885.213.

    The applicant lodged an application for review of the delegate's decision before the Migration Review Tribunal (the Tribunal) on 21 February 2014 (CB61–62).

    Pursuant to an invitation issued by the Tribunal on 9 April 2014 (CB73–76), the applicant appeared at a hearing before the Tribunal on 13 May 2014 to present evidence and arguments (CB87–89).

    In its decision record, the Tribunal records that the applicant told the Tribunal that he had undertaken 10 or 12 IELTS test, but had not been able to obtain 6 in each component (CB108 at [6]). The decision record also indicates that the applicant requested more time to sit a further test, and that the Tribunal asked for copies of his previous tests (CB108 at [6]).

    The Tribunal contacted the applicant's representative by email following the hearing on 13 May 2014, to request copies of the applicant's previous IELTS test results (CB92). A case note indicates that the representative said he could scan a copy and provide them by return email the next day (CB94).

    No email was received by the Tribunal on that next day, and a further case note indicates that the Tribunal attempted to contact the applicant's representative by telephone on 19 May 2014, and that a voicemail message was left (CB95).

    On 20 May 2014, the Tribunal received an email from the applicant in which he requested 'an extension on [his] stay' because he was due to sit an examination on 7 June 2014 (CB96). He also provided a document indicating that he had made arrangements to sit an IELTS test on 5 and 7 June 2014 (CB97).

    On 20 May 2014 the applicant's representative provided the Tribunal by email (CB98) with four sets of IELTS test results, dated 13 April 2011 (CB102), 18 January 2013 (CB101), 28 March 2013 (CB100) and 20 June 2013 (CB99). The applicant did not achieve at least 6 for all of the 4 test components in any of those tests.

    A case note indicates that the Tribunal attempted to contact the applicant's representative by telephone again on 26 May 2014, and that a message was left with the representative's assistant explaining that the Member would proceed to make a decision after 7 June 2014 (CB103). No response was received.

    On 25 June 2014 the Tribunal proceeded to affirm the decision under review (CB107–109). The Tribunal found that the applicant did not meet the relevant level of English proficiency for a Subclass 885 visa, because he did not meet the requirements of 'competent English' prescribed by regulation 1.15C of the Regulations.”

17. It is clear from the MRT’s decision record that the MRT understood the applicant to be the holder of a student visa and that the subclass for which he was applying required competent English. A delegate of the first respondent had refused to grant the visa because the applicant did not have the required English language proficiency. The applicant then lodged an application for review of that decision to the MRT.

18. The applicant was represented before the MRT by a registered migration agent. Regulation 1.15C of the Migration Regulations 1994 (Cth) (“the Regulations”) clearly specifies how those requirements are to be met. They include the satisfactory test scores of at least 6 for each of the four test components.

19. The applicant requested that the MRT allow him further time to undertake further IELTS tests. That request was granted by the MRT. However, the IELTS tests submitted thereafter also failed to meet the requisite score. The applicant then sought further time from the MRT and the MRT gave the applicant a further period to 23 June 2014.

1. The MRT noted on 25 June 2014 that there were no test results provided to the MRT prior to that date and the MRT determined to proceed to a decision on the information before it. The MRT noted that the applicant’s visa application had been lodged in June 2010, nearly four years ago, and that the applicant had not been able to achieve the requisite score in each of the test components in a single test. The MRT considered that the applicant had had ample opportunity to provide evidence that he had achieved the necessary scores and noted that he had attempted the IELTS test more than 10 times over the relevant period.

2. There is nothing on the face of the MRT’s exercise of its discretion in those circumstances to suggest that the MRT’s exercise of discretion miscarried. The MRT found that as a result of the applicant not providing evidence of having achieved the specified score, it was not satisfied that the applicant has competent English as defined in reg.1.15C of the Regulations and, accordingly, affirmed the decision under review.

3. There is nothing on the face of the MRT’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave.

4. The applicant’s difficulty with the MRT’s conclusions appears to be a disagreement with the findings and conclusions of the MRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

5. Whilst I make no final finding as to whether or not the decision is affected by jurisdictional error, none is apparent on the face of the tribunal’s decision record and none has been identified by the applicant.

6. In the circumstances, I am not satisfied that the application filed on 17 July has raised an arguable case for the relief claimed.

7. Accordingly, the proceeding before this Court should be dismissed with costs pursuant to r.44.12(1)(a) of the Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 11 December 2014