LALIT v Minister for Immigration

[2017] FCCA 3246

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALIT v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3246

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Skilled (Residence) (Class VB) visa – IELTS score – Applicant did not have competent English – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Schedule 2, cl. 886.213, reg. 1.15C

Cases cited:

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: LALIT LALIT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2800 of 2016

Judgment of: Judge Hartnett

Hearing date: 11 December 2017

Delivered at: Melbourne

Delivered on: 11 December 2017

REPRESENTATION

The Applicant: In Person

Solicitor appearing as Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2800 of 2016

LALIT LALIT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court was an application filed 22 December 2016 wherein the Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 28 November 2016 which affirmed a decision of a delegate of the First Respondent to refuse an application for a Skilled (Residence) (Class VB) visa (‘the visa’).

2. This is a show cause hearing pursuant to r. 44.12 of the Federal Circuit Rules 2001 (Cth) (‘the Rules’).  The issue for determination is thus whether the application raises an arguable case for the relief claimed.  The First Respondent submits the application does not disclose an arguable case for the relief claimed and seeks dismissal of the application together with costs.

3. The grounds of application are as follows:- 

   “1. As per IELTS Australia, the definition of competent English is having overall 6.00 bands (There was no classification about having 6.0 bands in each individual four components). Department of Immigrations refused my visa under subclass 886 for not supplying the 6.0 bands in each IELTS components.  The matter was further raised with Administrative Appeals Tribunal but my petition to grant visa was declined. I was told the Department of Immigration has its own specifications about IELTS and I was supposed to get 6.00 bands in each four components of IELTS. 

   2. AAT has given me a chance to sit in IELTS test dated 29.10.2016.  I asked for one more time till 04.11.2016 since I was suffering from mental stress, anxiety and depression and was diagnosed with acute psychosis and depression. The extension request till 4.11.2016 was denied. 

   3. I have been unable to get the required result in IELTS dated 29.10.2016 due to physical and mental instability.

   4. I wish to raise the matter further with Federal Circuit Court disputing the fact that I have presented IELTS test results and overall 6.00 bands but the 886 visa was not granted on the basis that I have not got 6.00 bands in each four components.”

4. By orders made by Registrar Ryan on 21 June 2017 the Applicant was to file any amended application with proper particulars of the grounds of the application by 26 July 2017 and to file and serve written submissions by 26 July 2017. The Applicant failed to do so. The Applicant did not file any written submissions in the proceedings but was given the opportunity to make oral submissions this day.  The Applicant did so.  The Applicant also had this day translated to him the First Respondent’s written submissions and the matter was stood down for that to occur.

Background

1. At the relevant time reg.1.15C of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) set out the criteria to be met for the grant of a Skilled (Residence) (Class VB) (Subclass 886) visa. Clause 886.213 of the Regulations was one of the mandatory requirements for the grant of the visa and it required that the Applicant had competent English.

2. Regulation 1.15C, as it then stood, provided that a person had competent English if:-

   “1.15C    Competent English

   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 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‑subparagraph; and

   (B) in a language test 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.”

3. The Applicant applied for the visa on 9 April 2010. At the time the visa application was lodged, (Class VB) contained three subclasses, 885, 886 and 887, of which the relevant subclass in the Applicant’s case was Subclass 886, the criteria for which was set out in part 886 of Schedule 2 to the Regulations.

4. On 19 October 2015 a delegate of the Minister refused to grant the Applicant the visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The delegate was not satisfied the Applicant had demonstrated satisfactory evidence of competent English as the IELTS test results provided by the Applicant did not show a score of at least six for each of the four test components of speaking, reading, writing and listening. The delegate found the Applicant thus did not satisfy the requirements of cl.886.213.

5. On 30 October 2015 the Applicant applied to the Tribunal for a review of the delegate’s decision attaching a copy of the delegate’s decision.  He also attached an “explanation of review request” which stated that he had thought the requirement was an “overall score” of six. He attached a copy of his IELTS test results dated 23 July 2012 which he had provided to the Department of Immigration and Border Protection in which he had achieved an overall score of six.

6. On 14 September 2016 the Tribunal invited the Applicant to attend a hearing on 10 October 2016 to give evidence and present arguments.  The Applicant requested a postponement for two months because he was overseas as his wife’s brother had passed away a few months previously and his wife had depression. He provided a medical certificate stating he had been experiencing anxiety and depression. 

7. The Tribunal declined to grant the postponement, noting the Applicant had applied for the visa more than six years earlier and that the issue to be discussed at the hearing was relatively straightforward. It was anticipated the hearing would be short and not stressful.  The Applicant then appointed a representative who sought an extension on the basis he had only been recently instructed and needed time for the hearing.  The Tribunal declined the request, noting the Applicant had sufficient time to seek representation.  The Tribunal advised the Applicant he could attend the hearing by telephone. On 7 October 2016 the Applicant advised the Tribunal he would attend the hearing in person.

8. The Applicant appeared before the Tribunal on 10 October 2016 to give evidence and present arguments. 

9. The Tribunal, as set out in its Statement of Decision and Reasons (‘the Decision Record’) and in paragraph 6 therein, stated that the issue for it was whether the Applicant had competent English as required by cl.886.213. The Tribunal noted reg.1.15C(a) provided that a person had competent English if the person satisfied the Minister that the person had achieved, in a test conducted not more than two years before the day on which the application was lodged, either:-

   a)an IELTS test score of at least six for each of the four test components;  or

   b)a score in a test specified by the Minister. 

   The Tribunal noted that such a test may be conducted after the application was lodged, but not more than two years earlier, and referred to the decision of the High Court of Australia in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8. The Tribunal noted alternatively a person had competent English if she or he held a passport of a type specified by the Minister as provided for in reg.1.15C(b).

10. The Applicant conceded at the hearing that he did not hold a passport of a type specified and as such could not satisfy reg. 1.15C(b). 

11. The Decision Record noted that at the hearing the Tribunal informed the Applicant that more than six years had passed since the visa application was lodged and competent English had not yet been demonstrated.  The Tribunal informed the Applicant that, despite the long passage of time since the application was lodged, the Tribunal was willing to give the Applicant until 13 October 2016 to provide evidence that he had booked a language test and until 13 November 2016 to provide the Tribunal with the results.  The Tribunal informed the Applicant that if evidence of competent English language was not demonstrated by those dates it would make a decision without contacting the Applicant further.  The Tribunal noted that, given the very substantial time the Applicant had already had to demonstrate competent English, the Tribunal would strictly adhere to the deadlines as set out by it.

12. On 13 October 2016 the Applicant advised the Tribunal he had booked an IELTS test for 29 October 2016.  The results of that test were not provided to the Tribunal by 13 November nor at any time prior to the Tribunal decision of 28 November 2016.

Tribunal Decision

1. On 28 November 2017 the Tribunal affirmed the decision not to grant the visa. On the evidence before it, the Tribunal found that the Applicant did not have competent English as defined and did not meet the requirements of cl.886.213, a required criterion for the grant of the visa. The necessary evidence to form that conclusion was before the Tribunal, and the Tribunal had no other option but to find as it did.

2. The Applicant essentially is seeking to challenge the requirements in the Regulations. The Tribunal’s finding that the Applicant did not have competent English and did not satisfy cl.886.213 was the only conclusion available to the Tribunal on the evidence before it.

3. Insofar as the Applicant attempted to challenge the Tribunal’s refusal to grant him further time to provide test results, as submitted by Counsel for the First Respondent, this does not amount to jurisdictional error.  The Tribunal was not required to give the Applicant another opportunity to sit a test but the Tribunal in fact did so “out of a desire that he might be satisfied he had every opportunity to meet the visa criteria”.[1] 

   [1] Decision Record dated 28 November 2016, paragraph 17.

4. The Court accepts the First Respondent’s submission that it was not unreasonable for the Tribunal to proceed to decision when the Applicant failed to submit the results of any successful IELTS test prior to its decision on 28 November 2016 and failed to make any further contact with the Tribunal. The Court further accepts the First Respondent’s submission that this was an appropriate case for the Tribunal to decide “enough is enough”.[2]

   [2] Minister for Immigration and Citizenship v Li [2013] HCA 18, 82.

5. The application failing to raise an arguable case for the relief claimed shall be dismissed pursuant to r.44.12(1)(a) of the Rules with costs following that determination.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  21 December 2017