Lalji v Minister for Immigration

[2014] FCCA 147

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALJI & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 147

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled visa – applicant unable to demonstrate English language competence – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Berenguel v Minister for Immigration (2010) 85 ALJR 251

Endi v Minister for Immigration & Anor [2013] FCCA 1700
Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779
Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439

First Applicant: SHAZIA AMIN LALJI

Second Applicant: AMIN QAMRUDDIN LALJI

Third Applicant: ASHIRALI AMIN LALJI

Fourth Applicant: SEHAR AMIN LALJI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2303 of 2013

Judgment of: Judge Driver

Hearing date: 3 February 2014

Delivered at: Sydney

Delivered on: 3 February 2014

REPRESENTATION

The Second Applicant appeared in person

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Sparke Helmore

INTERLOCUTORY ORDERS

1. The application filed on 27 September 2013 is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG2303 of 2013

SHAZIA AMIN LALJI

First Applicant

AMIN QAMRUDDIN LALJI

Second Applicant

ASHIRALI AMIN LALJI

Third Applicant

SEHAR AMIN LALJI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 4 September 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled (Provisional) (Class VC) visas.  There are four applicants.  The first applicant, Mrs Shazia Amin Lalji, was the primary visa applicant.  The second applicant, Mr Amin Qamruddin Lalji, is her husband.  The other applicants are their children.  The second, third and fourth applicants applied as members of the family of Mrs Lalji.

2. The visa application was refused by the Minister’s delegate on the basis that Mrs Lalji was unable to demonstrate competent English, which was a criterion for the grant of the visa.  The delegate made that decision on 7 May 2013.  The applicants sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and, by letter dated 31 July 2013, invited the applicants to a hearing.  At that time, the applicants were represented by a registered migration agent, a Mr Lakhani.

3. The Tribunal records in a case note[1] that because no response to the hearing invitation had been received, a Tribunal officer telephoned Mr Lakhani to inquire as to the circumstances.  He apparently stated that Mrs Lalji had applied for a subclass 457 visa, which was in the final stage of processing, and that she would not be attending the hearing and would withdraw her skilled visa application the following week.  He stated that he would advise this in writing.  The position of the applicants evidently changed, however, because shortly after, a response to hearing invitation was sent which accepted the hearing invitation.

   [1] court book (CB)76

4. In the event, it appears that both adult applicants attended the Tribunal hearing on 26 August 2013 to give evidence and present arguments.  They remained represented by their registered migration agent.  The Tribunal records discussing with Mrs Lalji her inability to demonstrate competent English.  Mrs Lalji gave evidence that she had never sat an OET test, which was one of the two tests prescribed by instrument made under the Migration Regulations 1994 (Cth) (Regulations). She said that she had sat the IELTS test on several occasions but had not been able to pass it.

5. The Tribunal concluded that Mrs Lalji had not demonstrated competent English for the purposes of regulation 1.15C of the Regulations and, therefore, the requirements of clause 485.215 had not been met.  The Tribunal records at [19] of its reasons[2], that at the hearing Mrs Lalji reiterated her representative’s request made previously to adjourn the review until her subclass 457 visa application had been finalised, which was then apparently expected soon.  The Tribunal declined that request.  The Tribunal evidently considered it inappropriate to adjourn the review of a particular visa application while the outcome of a different visa application was awaited. 

   [2] CB 84

6. These proceedings began with a show cause application filed on 27 September 2013.  There are three grounds in that application:

   1. The Tribunal erred in making final decision.  The MRT adopted harsh approach to judge the English criteria.

   2. The Tribunal made decision in hurry based on incomplete information.

   3. The Tribunal did not provide sufficient opportunity to provide the required information.

7. The application purportedly sought review, not only of the decision of the Tribunal but also of the decision of the delegate.  The latter is clearly a primary decision as defined and the Court does not have jurisdiction to review it.  The grounds of review advanced all relate to the decision of the Tribunal.  The application is supported by a short affidavit which I received as evidence. 

8. I also have before me as evidence the court book filed on 14 November 2013. 

9. Prior to the hearing today, Mr Lalji contacted the Court through the registry to advise that Mrs Lalji was unwell and that she is receiving treatment for major depression.  Mr Lalji requested an adjournment of today’s show cause hearing.  Mr Lalji furnished a medical certificate from Dr Manjula O’Connor dated 28 January 2014, certifying that Mrs Lalji is receiving treatment for a major depressive illness and she is receiving medication.  A prescription for medication was also provided.  My associate advised the parties, on instructions from me, that I would deal with the adjournment application at the outset of today’s show cause hearing.  Mr Lalji appeared by telephone to press the adjournment application, which was opposed by the Minister.

10. That opposition was supported by an affidavit of Liam Dennis, made on 31 January 2014.  That affidavit deposed as to dealings between the Minister’s solicitors and the applicants concerning the adjournment request.  Mr Lalji pressed the adjournment request on the basis that Mrs Lalji was too unwell to attend in person and required a significant adjournment.  When I enquired of Mr Lalji how long that adjournment would need to be, he indicated that, at a minimum, an adjournment of three to four months was required.

11. I raised with Mr Lalji whether the order I made on 24 October 2013, appointing Mrs Lalji litigation guardian for the two minor applicants, remained appropriate.  I also raised with him the question whether, if Mrs Lalji was too unwell to participate in the proceedings because of a major depressive illness, she required a litigation guardian.  Mr Lalji doubted that the order I had made had become inappropriate and also doubted that he should become the litigation guardian, either for his children or for Mrs Lalji.  However, he invited me to hear from his wife, who was in the next room of his home.  Mrs Lalji appeared by telephone and supported the adjournment application.  She stated that she felt unable to deal with the proceedings at the moment and felt that an adjournment for a significant period of two to three months was required.  However, neither Mr nor Mrs Lalji were able to provide me with any confidence that her condition would necessarily be any different after that time.  Mrs Lalji confirmed that she was content to remain the litigation guardian for her children and that she did not want her husband to be appointed as her litigation guardian.

12. Counsel for the Minister submitted that there would be no point in an adjournment because it was apparent that no arguable case of any jurisdictional error by the Tribunal could be demonstrated; therefore, an adjournment served no purpose. 

13. I rejected the adjournment application on the basis that if an arguable case of error could be demonstrated, there would need to be a significant delay until a final hearing could be scheduled, which would provide Mrs Lalji with time to recover her health.  If, on the other hand, there was nothing indicating an arguable case of jurisdictional error, then the submission of counsel for the Minister would be correct, namely that there would be no point in further delay.  Ultimately, Mr Lalji agreed to attend by telephone and participate in the show cause hearing. 

14. In his submissions, Mr Lalji stated that his wife had attempted the IELTS English language test but had not been able to pass it.  It appears that her best result was on 23 February 2013, in which she received scores of 6, 6, 6.5 and 5.  It is noteworthy that that was not a passing score and also that it was attained after the visa application was made on 1 October 2012. 

15. I also asked Mr Lalji about the subclass 457 visa application.  He confirmed that he and his wife had sought delay in order to attempt to finalise that visa application.  However, the subclass 457 visa application was refused after the Tribunal hearing.  He told me that a fresh application has been made for a subclass 457 visa which is now in the final stages of consideration in the Minister’s Department.  Mr Lalji conceded that a reason for seeking delay at the present time was to give a chance for a favourable outcome to be achieved on that application. 

16. Having heard the parties, I am not persuaded that an arguable case for jurisdictional error has been demonstrated.  The grounds in the application are general on their face, but in the context of the Tribunal decision must relate either to the Tribunal’s interpretation of the Regulations, in particular regulation 1.15C or the Tribunal’s refusal to delay the review until the first subclass 457 visa application had been finalised.  In my view, there was no obligation on the Tribunal to delay the review of one class of visa application while another is being dealt with.

17. The Tribunal appears to have interpreted regulation 1.15C in the way directed in the explanatory statement which accompanied it.  That statement makes clear that the regulation, as amended, was intended to overcome the effect of the High Court’s decision in Berenguel v Minister for Immigration[3] which permitted applicants to satisfy the competent English criterion at any stage up to the decision on the visa.

    [3] (2010) 85 ALJR 251

18. The stated effect of the regulation, as amended, was in effect to convert what was in practice a time of decision criterion into a time of application criterion.  I cannot say that it is entirely clear whether the drafter’s purpose has been achieved.  There is currently very limited judicial guidance on the new regulation.  The only decisions interpreting the regulation as amended have not cavilled with the expressed purpose of the drafter.  Those are all decisions of this Court, and some of those decisions have been made on an interlocutory basis[4].

    [4] Endi v Minister for Immigration & Anor [2013] FCCA 1700; Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779; Singh & Ors v Minister for Immigration & Anor [2013] FCCA 1439

19. The issue has not been squarely raised in the grounds of this application, but even if they had been, I doubt that this would be an appropriate vehicle to test the issue because it is clear that at no stage has Mrs Lalji been able to demonstrate satisfaction of the English competence requirement.  Therefore, she has not lost an opportunity by reason of being denied the chance to satisfy the criterion between the time of her visa application and the time of decision.  Even now, Mrs Lalji has not passed the IELTS test.

20. No arguable case of jurisdictional error having been demonstrated, I conclude that the application should be dismissed, and I will so order.

21. In consequence of the dismissal of the application, the Minister seeks an order for costs against the first and second applicants in the scale amount of $3,326.  Mr Lalji doubted his capacity to pay and asked for the cost to be reduced to approximately $2,000.  Impecuniosity is not a reason for the Court to refrain from making a costs order.  I am satisfied that costs of not less than $3,326 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis. 

22. I will order that first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 February 2014