KUMARI v Minister for Immigration

[2016] FCCA 520

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMARI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 520

Catchwords:
MIGRATION – Judicial review – skilled residence visa.

Applicant: REETA KUMARI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 710 of 2015

Judgment of: Judge Harland

Hearing date: 4 March 2016

Date of Last Submission: 4 March 2016

Delivered at: Melbourne

Delivered on: 11 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: Ronald Gordon

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed on 8 April 2015 is dismissed.

2. The applicant is to pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 710 of 2015

REETA KUMARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Tribunal made on 25 March 2015 affirming the delegate’s decision to refuse the applicant’s application for a Skilled (Residence) (Class VB) visa. 

2. Before dealing with the application itself, it is necessary to comment on the conduct of the applicant’s solicitor Mr Gordon. Mr Gordon has appeared in this Court and before others of my colleagues in migration matters. In this matter Mr Gordon filed a notice of address for service on 8 October 2015 and filed an amended application on 9 October 2015. Initially, the matter was listed for a show cause hearing before me on 14 September 2015. Mr Gordon and Mr Young, the solicitor for the Minister, entered into consent orders vacating that date and setting out a timetable for the applicant to file an amended application and written submissions.

3. Mr Gordon never filed any written submissions on behalf of the applicant and, upon reviewing the file in preparation for today’s hearing, I had to cause my chambers to contact Mr Gordon as there had been no submissions received and no notice of ceasing to act.  Mr Gordon attended this morning and confirmed that he had not filed any written submissions in accordance with the directions which he and Mr Young had sought I make by consent.

4. Mr Gordon said that he had had great difficulty getting instructions from his client and had given his client notice of his intention to withdraw on 22 February 2016 but had not filed a notice because he had been overseas and then in Brisbane.

5. Mr Gordon then said that he had obtained instructions from his client last night and sought leave to hand up an affidavit annexing a transcript of the Tribunal hearing proceedings and a further IELTS test that the applicant had undertaken.

6. It is most unsatisfactory that Mr Gordon has dealt with the matter in this way which is not unique to this case. Mr Gordon said that if the solicitor for the Minister was unable to deal with this today, he would seek a short adjournment seeking that the matter be listed within a few days. As Mr Gordon is aware, having appeared in this Court regularly, this Court has listings into 2017 and it is not simply a matter of being able to find a slot for it within a few days time when it has been listed for hearing for several months.

7. I stood the matter down to enable Mr Young to read the transcript.  Having done so, Mr Young was in a position to deal with the matter and I accepted the transcript into evidence and marked the affidavit annexing it as exhibit A.

8. The only ground that Mr Gordon argued was ground 3 of the amended application which simply says that the then Migration Review Tribunal (MRT) did not act in a way that was fair and just. Mr Gordon says that the Tribunal was unfair in all the circumstances of the case when it refused her application for an adjournment. Mr Gordon said that this does not appear in the decision but is dealt with in the transcript and he took me to those portions of the transcript. The relevant part of the transcript starts at page 5.

9. The Tribunal member referred to the fact that the paperwork showed that the applicant had sat a number of these tests and that the test she sat on 22 November 2014 showed she only scored a 6 for writing.  The issue in this case was the requirements under clause 885.221 and the qualifying score for the English test. The applicant was only able to secure 115 points and not the required 120 points, and she was only able to score points for competent English and not proficient English.  If she had been able to achieve a score for proficient English, she would have acquired the necessary 120 points.

10. The transcript shows a discussion between the Tribunal member and the applicant where she said she had booked further tests, including one on 13 December 2014 and one on 7 February 2015. The applicant then revealed that she did not sit either of those tests. She said that on the day of the December test that she was stressed and could not go in to do the test. She said that she was sick on the February test date and could not attend. The transcript also records that she had previously undertaken a test in December 2012.

11. The next part of the transcript goes through the other points that she needs to qualify and then midway down page 9 of the transcript the applicant seeks further time to pass the test. She said she had been trying very hard to get the English requirement and that she had been misguided by her lawyer as he had told her that she would have other points that would enable her to get the requisite score. 

12. The Tribunal member referred to the fact that the delegate had sent letters to the applicant prior to the delegate’s decision and that there was a letter from August 2013 which referred to the IELTS test that she sat on 1 December 2012 and her comments that it was being remarked.  The delegate asked her to send in the re-evaluation.  The applicant said that she was not successful in the re-evaluation.

13. The Tribunal member pointed out to the applicant that she had known since the delegate’s decision dated 19 August 2014 that she did not have the required points and did not get the points for proficient English.  The Tribunal member pointed out that seven months had passed and that, since then, she had done another test and had not got the requisite score.

14. The Tribunal member then referred to the two tests that she had booked but not sat and the Tribunal member said:

    To be honest with you, I’m not inclined to give you an extension of time because you have had seven months to meet the English language requirement. Your last test that you sat as recently as November of last year indicates you didn’t. You had, further, to further opportunities to sit the test.  One you were too stressed; another you were unwell.  But what I am saying to you is you’ve had quite a bit of time to get there. And I think you’ve probably had enough time.  So I’m not inclined to grant you an extension of time to sit another English language test, I’m sorry.

15. The applicant then made a request for another chance and the Tribunal member confirmed that the request was refused.

16. Mr Gordon submits, in the circumstances of this case, that the decision not to grant her an adjournment was unjust and unfair. He then refers to an annexure to the affidavit of a test taken on 17 February 2016. I cannot have any regard to that test as it is after the date of the decision by the Tribunal. The requisite time for passing the test is the time of the Tribunal decision.

17. When pressed, Mr Gordon conceded that whether or not to grant an adjournment is a discretionary matter for the Tribunal member, but said that if the Tribunal member had granted her a short adjournment she would have passed the test.

18. Mr Gordon did not make submissions with respect to any other of the other eight grounds pleaded or set out in the amended application and it was necessary for me to seek his explicit instructions as to whether or not she was withdrawing the other grounds. When pressed to confirm that he was withdrawing those grounds he conceded that he was. Given that concession, I do not propose to go through those grounds, but I will observe that having read those grounds, the Tribunal’s decision and the written submissions of the solicitor for the Minister, I accept the Minister’s submissions that the grounds did not disclose any jurisdictional error.

19. With respect to ground 3, Mr Young submitted that as the applicant had been on notice since August 2014 that she did not have the requisite score for proficient English she had ample time to address that. The Tribunal’s decision to refuse to grant her an adjournment was reasonable in the circumstances. The Tribunal member clearly sets out her reasons for refusing to grant the adjournment in the transcript. The Tribunal is under no obligation to grant adjournments to enable an applicant another chance to pass the test. In the circumstances where the applicant had a lengthy opportunity to pass the test and had not by the time of the Tribunal’s decision, it was well open to the Tribunal to refuse the oral application for an adjournment. The applicant has failed to establish that she was denied procedural fairness and has failed to establish any jurisdictional error on the part of the Tribunal. I will dismiss the application. 

20. The parties each sought costs in accordance with the scale of $6,825 in the event they were successful. I order that the applicant pay the first respondent’s costs fixed in the sum of $6,825.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 11 March 2016