KUMARI v Minister for Immigration

[2014] FCCA 328

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMARI & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 328

Catchwords:
MIGRATION – Failure to appear at the Migration Review Tribunal hearing or to provide evidence of competent English – Migration Review Tribunal entitled to exercise its discretion under s.362B of the Migration Act 1958 (Cth) to determine matter – no arguable grounds for relief – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), s.362B

Migration Regulations 1994 (Cth), reg.1.15(c), cl.485.215 of Sch.2.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259

First Applicant: AVITA KUMARI

Second Applicant: DEEPAK DEEPAK

Third Applicant: KRISH KHINDRIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1592 of 2013

Judgment of: Judge Whelan

Hearing date: 12 February 2014

Date of Last Submission: 12 February 2014

Delivered at: Melbourne

Delivered on: 12 February 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 25 September 2013 be dismissed.

2. The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1592 of 2013

AVITA KUMARI

First Applicant

DEEPAK DEEPAK

Second Applicant

KRISH KHINDRIA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

1. This is an application by the First, Second and Third Applicants

   
   

   AVITA KUMARI (“First Applicant”), DEEPAK DEEPAK

   
   

   (“the Second Applicant”) and KRISH KHINDRIA

   
   

   (“the Third Applicant”) (collectively “the Applicants”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 18 September 2013. The Applicants have failed to appear this morning and the Court has taken the view that it is appropriate to deal with the matter on the basis of the material before it. In that regard,

   
   

   the Court is assisted by the written submissions that have been provided by the First Respondent.[1] The Tribunal, in its decision, affirmed a decision of the delegate of the First Respondent not to grant the First Applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa.

   [1] First Respondent’s Outline of Submissions “Show Cause” Hearing filed 6 February 2014.

2. The Applicants now seek an order that the decision of the Tribunal be quashed and a writ of mandamus be directed to the Tribunal to determine the application according to law.[2] 

   [2] Application filed 25 September 2013, at p.3.

Background

1. The First Applicant originally came to Australia as a student and the Second Applicant as a dependent of the First Applicant. On

   
   

   3 May 2011, the First Applicant applied for a skilled visa. The Second and Third Applicants are members of the First Applicant’s family group with the Third Applicant being the child of the First and Second Applicants. The Third Applicant was born in Australia after the visa application was made.

2. On 18 May 2012, a delegate of the First Respondent refused to grant the visa on the basis that the First Applicant did not satisfy the criteria for competent English in reg.1.15(c) of the Migration Regulations 1994 (Cth) (“the Regulations”) and therefore did not satisfy cl.485.215 of Sch.2 of the Regulations. The only International English Language Testing System (“IELTS”) test submitted by the First Applicant showed a result of six in only two of the four test areas.[3] The Applicants applied to the Tribunal for a review of the delegate’s decision on

   
   

   5 June 2012, and on 21 August 2013, the Tribunal sent the Applicants an invitation to appear before the Tribunal which scheduled a hearing on 17 September 2013 at 2.00 p.m.

   [3] Court Book filed 6 November 2013, at p.90.

3. That invitation drew the Applicants’ attention to a ‘Response to hearing invitation’ form and stated “Please provide all documents you intend to rely on to establish that you meet the criteria for the visa”.[4]
   The document also stated:

   The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa. If you have booked an IELTS test or an Occupational English Test scheduled to take place before the hearing date, or soon after, please send evidence of the booking.[5]

   [4] Ibid, at p.115.

   [5] Court Book filed 6 November 2013, at p.115.

4. The Applicants did not respond to the correspondence, nor did they attend the scheduled Tribunal hearing.

5. The Tribunal noted that it had a discretion under s.362B of the Migration Act 1958 (Cth) (“the Act”) to reschedule the Applicants’ appearance, or to delay its decision to enable the appearance to be rescheduled. The Tribunal decided to make its decision without taking any further action. It noted that the Applicants had notice, from at least from 18 May 2012 (approximately 15 months before the Tribunal hearing), of the basis for the refusal of their visa application (i.e. that the first applicant did not meet the competent English requirement).[6]

   [6] First Respondent’s Outline of Submissions “Show Cause” Hearing filed 6 February 2014, p.3, at para.7.1.

6. Further, the Tribunal had requested that the First Applicant provide evidence of having competent English or having booked an English test. No such evidence had been provided, despite being given ample time to do so. The Applicants failed to attend the scheduled hearing and did not put forward any reason for non-attendance, nor did they request an adjournment or extension of time.

7. The Tribunal found that the First Applicant did not have competent English as defined in reg.1.15(c) of the Regulations. The delegate’s decision record indicated that the First Applicant had undertaken an IELTS test on 20 May 2010, but did not achieve the requisite score. There was no other evidence before the Tribunal indicating the

   
   

   First Applicant had undertaken an IELTS test and achieved a score that would satisfy the requirements of the Regulations, nor had the

   
   

   First Applicant satisfied the requirements of any other applicable regulation. Accordingly, the First Applicant did not satisfy cl.485.215 of Sch.2 of the Regulations.

8. The application for judicial review was lodged on 25 September 2013. Directions were made by Registrar Caporale on 20 November 2013 permitting the Applicants to file and serve an amended application or any affidavit evidence by 22 January 2014.[7] According to the Court record, nothing has been filed. The Applicants are therefore confined to the grounds contained in the initial application which was filed on

   
   

   25 September 2013. 

   [7] Order made 20 November 2013 by Registrar Caporale.

Grounds for review

1. The application for judicial review states the following grounds:

   1.  I need time to get my Target (sic).

   2.  I Refuse (sic) this decision

   3.  I am not agree (sic) to this decision (sic).[8]

   [8] Application filed 25 September 2013, at p.3.

The First Respondent’s submissions

1. The First Respondent submits that the grounds raise no arguable case for relief. In relation to ground 1, no particulars are given. It is unclear what this ground relates to. It may be that the Applicants complain the Tribunal should have exercised its discretion under s.362B of the Act in order to allow the First Applicant to obtain a satisfactory English test result. The Tribunal, however, gave reasons for not exercising that discretion in the Applicants’ favour. The Tribunal’s reasons do not indicate that it acted upon a wrong principle or acted on irrelevant matters. Its refusal to exercise its discretion in the Applicants’ favour was not otherwise unreasonable.

2. In relation to grounds 2 and 3, the First Respondent submits that these grounds amount to nothing more than an attempt to obtain a merits review of the Tribunal’s decision and the Court’s role does not extend to a merits review of the decision. The First Respondent refers to the decision in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259 in support of that contention.

Conclusions

1. As this is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”), the issue for determination is whether the application raises an arguable case for the relief claimed. By virtue of r.44.13(1) of the Rules, the Applicants are confined to the relief sought and the grounds raised in the application. On the face of it, the application raises no ground for judicial relief.

2. Ground 1 states “I need time to get my Target (sic)”.[9] I have taken this to be a reference to the fact that the only evidence of the

   
   

   First Applicant’s English language competence provided to the delegate or the Tribunal failed to meet the criteria in cl.485.215 of Sch.2 of the Regulations as defined by reg.1.15(c) of the Regulations.

   [9] Application filed 25 September 2013, at p.3.

3. The delegate’s decision was made on 18 May 2012. The application for review was made on 5 June 2012. The hearing before the Tribunal,

   
   

   at which the Applicants failed to appear, was some 15 months later on 17 September 2013. Despite being invited to provide documents with specific reference to the evidence that the First Applicant met the English language proficiency requirements, nothing was provided by the First Applicant. The Applicants did not seek an adjournment of the hearing or seek an extension of time to provide evidence.

4. I am satisfied that, in deciding to make a decision on the basis of the material before it, the Tribunal did not act unreasonably. As the other grounds simply indicate that the Applicants disagreed with the Tribunal’s decision, they provide no basis for judicial review. As I am not satisfied that the application raises an arguable case for relief,

   
   

   the application is dismissed in accordance with r.44.12(1)(a) of the Rules.

5. On the basis that the application has been entirely unsuccessful,

   
   

   the First Respondent is entitled to have their costs met in accordance with the schedule and I, therefore, further order that the First and Second applicants are to pay the costs of the First Respondent fixed in the sum of $3,326.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 25 February 2014