LAL v Minister for Immigration

[2014] FCCA 415

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 415

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – application dismissed as without merit and failure to show cause.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.05 and 44.12

Migration Act 1958 (Cth), ss.360(1) and 360A, Part 7

Migration Regulations 1994 (Cth), rr.1.15C, 4.21, Part 485 of Schedule 2

Minister for Immigration and Multicultural and Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572

First Applicant: MADAN LAL

Second Applicant: SHARMILA DEVI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 228 of 2013

Judgment of: Judge Simpson

Hearing date: 11 February 2014

Date of Last Submission: 11 February 2014

Delivered at: Adelaide

Delivered on: 11 February 2014

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 30 July 2013 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The name of the first respondent be changed from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection.

3. The applicants do pay the first respondent’s costs fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 228 of 2013

MADAN LAL

First Applicant

SHARMILA DEVI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application filed on 30 July 2013. The application seeks judicial review of a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”). The hearing is a Show Cause hearing as provided for by r.44.05 and r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The question I have to decide is whether there is an arguable case for the relief claimed that has been put forward by the first applicant (“the applicant”).

2. In addition to the usual documents filed by the first respondent (“the respondent”), the respondent has filed an affidavit of Terrie Hancock sworn on 24 October 2013.  Mr Hancock is employed by the Tribunal as an Assistant Team Leader, Support Services.  At the time of the affidavit Mr Hancock worked on file management.  The affidavit attempts to prove that an express post article, ‘056181844094’ was delivered to 56 Livingstone Avenue, Prospect, SA 5082.  The reason for this evidence is made clear later in these reasons.

3. The applicant seeks an order that the decision of the Tribunal be quashed.  The grounds of the application is in the following terms, and I read it verbatim:

   “I would like to apply for my case to be heard in court so that I get a chance to say my side of points which I did not get a chance to explain with DIAC and then MRT.  Both institutions have refused my visa application for subclass 485 visa because I could not give them sufficient evidence to prove that my English language skills fulfil visa criteria.  I am in the process of achieving the required results, which I am sure I will provide soon.  However, I have not been considered for time extension in this matter, so now I wish to continue my case with the court.”

4. The brief background of the matter is that the applicant is a citizen of India who lodged an application for a Skills Provisional (Class VC) Visa on 26 October 2011.  The second applicant applied as a member of the applicant’s family unit.  On 6 September 2012 the applicant was asked by the delegate of the Minister to provide further evidence in support of his application.  Among the material requested was the result of an English Language Test (IELTS), “the language test”.  It was necessary for the result of the language test to have occurred within two years prior to the lodgement of the visa application.

5. On 12 October 2012, a delegate of the Minister refused to grant the application for a visa on the basis that he did not satisfy the relevant clause of the regulations as the applicant did not have evidence of competent English as defined in r.1.15C of the Migration Regulations 1994 (Cth) (“the Regulations”). The matter then went to the Tribunal.

6. The Tribunal also refused to grant the applicant’s application.  The Tribunal gave extensive reasons. 

7. The relevant subclass of visa application in this case was subclass 485, the criteria for which are set out in Part 485 of Schedule 2 of the Regulations. The primary criteria must be satisfied by at least one of the applicants. Other members of the family unit who are also applicants for the visa need only satisfy the second criteria providing the first applicant meets the criteria.

8. The Tribunal invited the applicants to appear before it on 19 June 2013 at 2.00pm.  On 19 June 2013 at 1.04pm the Tribunal received a certificate of sickness from the applicant dated 18 June 2013 together with a letter from the applicant stating that he had been dealing with an ongoing illness for several weeks and that he had depression and could not think positively about himself.  The Tribunal says that in his letter the applicant stated that he did not wish to miss the hearing and that he had all the evidence about his case but needed some additional time to provide the evidence.

9. The Tribunal stated that the certificate of sickness provided by the applicant stated that on 18 June 2013 the doctor’s opinion was that the applicant was suffering from severe low back pain, infection of the gum and depression and that he would be unfit for work from 18 June 2013 until 25 June 2013.  He further stated that the applicant should be able to resume work on 26 June 2013. 

10. The Tribunal acted, in my view, appropriately.  It wrote to the applicant on 20 June 2013 to advise the applicant that the hearing, originally scheduled for 19 June 2013, had been rescheduled and that he was invited to appear before the Tribunal on 26 June 2013 to give evidence and present his arguments.  The letter dated 20 June 2013 identified in the system as article number ‘056181844094’, was sent by express post..  The evidence of Mr Hancock suggests that the article was delivered on 21 June 2013.

11. Unfortunately, the applicants did not attend the hearing scheduled for 26 June 2013. 

12. During the hearing earlier today the applicant initially stated that on 26 June 2013 he sent a medical certificate and a note to the Tribunal advising them that he was not well again.  Later in the hearing the applicant acknowledged eventually that that occasion was the earlier occasion that I have already dealt with.  It would appear that the applicant did nothing in relation to the hearing of 26 June 2013. 

13. The Tribunal decided that the decision under review should be affirmed.  In deciding to take that course, the Tribunal considered all the claims and evidence before it. 

14. It found that the issue was whether either applicant had competent English as required by the Regulations. The Regulations provided that the applicant must undertake a language test as specified by the Minister, that the test be conducted in the two-year period immediately before the day on which the application was made, and that the person achieved a score as specified in the instrument. Alternatively, the applicant needed to be able to satisfy the Minister that he held a passport of a particular type. Neither of the applicants holds the necessary passport.

15. The Tribunal found that there was no evidence before it that satisfied any of the requirements of the legislation.  On the basis of those findings, the Tribunal found that the applicant was not entitled to the visa sought.  It, therefore, affirmed the decision not to grant the applicant’s Skilled Provisional (Class VC) Visas. 

16. For the reasons that follow the application filed in this action by the applicant, in my view, raises no ground that could give rise to a finding of jurisdictional error.

17. There was no evidence before the Tribunal that the applicant wanted further time in which to provide the evidence required to meet the competent English requirement.  The Tribunal, in my view, did all that could reasonably be expected of it to reschedule the hearing to accommodate the applicant.  The applicant has not made any claim that he did not receive the second hearing invitation.  Similarly, he has not said that he did not receive enough notice of the second hearing. 

18. The first respondent, in its written submissions, points out that there is a question that arises as to whether the revised hearing notice sent on 20 June 2013 complied with the legislative requirements.  This, of course, is not an issue that was raised by the applicant, but, as a model litigant, the respondent has decided it appropriate to put submissions in on this point. 

19. They point out that only six days’ notice was provided and that this is less than what is required by r.4.21 of the Regulations in relation to a hearing notice, such as was sent to the applicant on 16 May 2013. They point out, however, that it has been held by the Full Federal Court in the case of Minister for Immigration and Multicultural and Indigenous Affairs v SZFML & Anor (2006) 154 FCR 572 that in relation to a comparable provision in Part 7 of the Migration Act 1958 (Cth) (“the Act”), dealing with the Refugee Review Tribunal, that an invitation to a rescheduled hearing does not constitute a fresh invitation for the purpose of s.360(1) of the Act.

20. They submit that as a result, the statutory requirement that applied to the original hearing invitation does not apply to the notice informing the applicant of the rescheduled hearing. They submit that, accordingly, there was no requirement for the application of the minimum prescribed period applicable to the notice required by s.360A.

21. The only obligation on the Tribunal was to provide the applicant with reasonable notice of the rescheduled hearing.  What constitutes “reasonable notice” involves an objective determination based on the particular circumstances.  The first respondent submits that the notice that was given to the applicant regarding the adjourned hearing was reasonable having regard to all of the circumstances.  These circumstances include the nature of the issue before the Tribunal.  In this case, the Tribunal was limited to determining only one matter, namely whether the applicant had evidence of competent English.  The second issue before the Tribunal, the applicant’s request for an adjournment of the original scheduled hearing, of which he had more than four weeks’ notice, was made on the day of the hearing and this is despite the doctor’s certificate being dated 18 June 2013.

22. Next, the applicant had not been contactable on the day of the hearing when Tribunal staff tried to contact him twice by telephone and also by email after receipt of his fax. 

23. Next, the medical certificate provided by the applicant indicated that he would be fit for work on 26 June 2013 and the rescheduled hearing date was sent to the applicant by Express Post. 

24. In all of the above circumstances, I consider that the notice given to the applicant was reasonable.

25. The second respondent submits that even if the applicant were to establish an error in the procedure followed by the Tribunal, which the first respondent does not concede resulted in any error, it would be futile to remit the matter in circumstances where the applicant cannot meet the requirements of the Regulations in relation to competent English. That is clearly the case.

26. In my view, the applicants’ application should be dismissed. 

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

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 6 March 2014