LU v Minister for Immigration

[2015] FCCA 646

FEDERAL CIRCUIT COURT OF AUSTRALIA

LU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 646

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled Provisional (Class VC) Visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Migration Regulations 1994 reg.1.15C

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

First Applicant: JIAYIN LU

Second Applicant: LINLING PAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 364 of 2015

Judgment of: Judge Street

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

The applicants appeared in person.

Solicitors for the Respondent: Mr E. Elliott
DLA Piper

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 16 February 2015, is summarily dismissed.

2. The applicants pay the costs of the first respondent fixed in the amount of $1,367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 364 of 2015

JIAYIN LU

First Applicant

LINGLING PAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal delivered on 20 January 2015 affirming a decision of the delegate not to grant the applicant a Skilled Provisional (Class VC) Visa. The applicants applied for the visas on 2 June 2014. Visa class VC contains subclass 485. The criteria for the grant of a subclass 485 visa are set out in part 485 of schedule 2 of the Migration Regulations.

2. The primary criteria must be satisfied at least by one applicant.  Other members of the family unit, if any, who are applicants for the visa need to satisfy only the second criteria. The Tribunal noted the delegate refused a visa on 3 September 2014 because the first named applicant did not have the required English language proficiency.  The applicant appeared before the Tribunal on 20 January 2015 to give evidence and present arguments. The applicants were assisted by a registered migration agent.

3. The Tribunal identified that the issue in the present case is whether the applicant satisfied clause 485.212 which requires that the application was made and was accompanied by evidence that the applicant had competent English.  Competent English was defined under reg.1.15 as follows:

   (1) A person has competent English if:

   (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c) the person achieved a score specified in the instrument.

   (2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

4. For the benefit of the applicant, I emphasise that in relation to rule reg.1.15C it says:

   (b) The test was conducted in the three years immediately before the day on which the application was made.

5. That is a criterion which, it is clear from the reasons given by the Tribunal, that the applicant did not meet. It is the case that the applicant has made considerable efforts to obtain, and has now successfully obtained as at 19 July 2014, scores of at least 6 in each of the four test components. That does not, however, give rise to a compliance with the requirements under reg.1.15C, which required that the test was conducted in the three years immediately before the day on which the application was made.

6. The Tribunal said, in para.12, that:

   12. The Tribunal accepts on the basis of the evidence provided to the Department, a copy of which was also given to the Tribunal, that the applicant undertook an IELTS test on 19 July 2014 and achieved scores of at least 6 in each of the 4 test components of that test. However, the Tribunal finds, unfortunately, that this test was not conducted in the 3 years immediately before the day on which the application was made, but rather after the date of the application. The Tribunal finds that the requirements of r.1.15C(1)(b) of the definition of competent English are not met on the basis of this test, or any other test undertaken by the applicant after the date of application. The applicant has not provided any other evidence to show that he undertook a language test specified by the Minister in the 3 years immediately before the day on which the application was made and achieved the specified scores. He therefore does not satisfy r.1.15C(1).

7. It was in those circumstances that the Tribunal made the findings it did in paragraphs 13 and 14:

   13. The Tribunal is satisfied that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(1).

   14. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. It has not been claimed, and there is no other material before the Tribunal to support a finding that the second named applicant satisfies essential primary criteria for a Subclass 485 visa.

8. The Tribunal came to the conclusion expressed in paragraphs 15, 16 and 17:

   15. Where no applicant satisfies primary criteria for the visa sought, none can satisfy essential secondary criteria on the basis of being a member of the family unit of a person who, having satisfied the primary criteria, is the holder of the visa.

   16. As Subclass 485 is the only relevant subclass in this case, and given the findings above, the decision under review must be affirmed.

   17. The Tribunal affirms the decisions not to grant the applicant Skilled (Provisional) (Class VC) visas.

9. The Court notes that the application identifies on the face of the return date the Court may hear and determine all interlocutory or final issues, or may give directions for future conduct of proceedings.  The Court notes that the grounds identified in the application are as follows:

   1. Tribunal failed to give full consideration to due process and allow applicant time to provide all relevant documents.

   2. Tribunal failed to provide comprehensive explanation and clarification as to time stipulations and did not accord the applicant ample opportunity for redressing his issue.

10. It is clear those grounds had no prospect of success.  It is in those circumstances the Court raised with the applicants the Court’s concern as to whether there was an arguable case and whether or not the Court should exercise its powers to summarily dismiss the application.  The Court, in considering the exercise of its summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) takes into account the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

11. It is clear that the Tribunal made findings that were open to it and conducted a genuine hearing, that there is no arguable error of the kind identified in the application or in relation to the review conducted by the Tribunal.  In those circumstances, the proceedings are doomed to failure. 

12. It is unfortunate that it was not fully explained to the applicants clearly, beforehand, as to why the application was doomed to failure both before the Tribunal and before this Court.  It is clear that the first applicant is very intelligent and has acquired an English proficiency that may well assist him in the future.

13. However these proceedings are doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 March 2015