Manage v Minister for Immigration

[2014] FCCA 2759

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANAGE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2759

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – request for adjournment – inadequate reasons for adjournment – matter ultimately unsuccessful.

MIGRATION – Review of Migration Review Tribunal decision – Skilled (Provisional) (Class VC) Visa – application dismissed.

Legislation:  
Migration Regulations 1994

Applicant: CHAMINDA DINESH MARAKKALA MANAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 408 of 2014

Judgment of: Judge Riethmuller

Hearing date: 15 October 2014

Date of Last Submission: 15 October 2014

Delivered at: Melbourne

Delivered on: 15 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Mendis appearing for the Applicant.

Solicitors for the Applicant: Mendis and Gibson Lawyers

Counsel for the Respondents: Ms Bosnjak appearing for the First Respondent.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed 7 March 2014 be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 408 of 2014

CHAMINDA DINESH MARAKKALA MANAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal. 

2. The applicant did not appear today, but sent a solicitor to seek an adjournment.  The solicitor was armed with a letter from a psychologist, advising that the applicant had attended one appointment with the psychologist and had another appointment and also a business card from the psychologist that had the appointment time for his next appointment on it and the phone numbers for Lifeline for telephone counselling. 

3. The material provided was not sufficient, in my view, to justify an adjournment of the show cause hearing.  I stood the matter down to allow the solicitor to review the material again to enable him to articulate the applicant’s argument if one was possible. 

4. It seems that it is not possible for the solicitor to find an argument for a basis upon which the applicant could possibly succeed in these proceedings.  I turn then to explain why.

5. The applicant in this case applied for a visa on 22 August 2012.  This was for a Skilled (Provisional) (Class VC) visa.  The relevant subclass of the visa is subclass 485, and the criteria for a subclass 485 visa that must be satisfied by at least one applicant from a family unit includes a requirement for English language proficiency.  The delegate refused the visa application on 18 April 2013 because the applicant did not have the required English language proficiency. 

6. The applicant sought a review and appeared before the tribunal on 3 December 2013 to give evidence and to present arguments.  The hearing was conducted with the assistance of an interpreter for the applicant, as it seems that his English language was not sufficient to properly participate in the hearing without an interpreter.  He was represented on the review by his migration agent. 

7. The question of whether or not he had competent English must be determined in accordance with reg.1.15C, which the tribunal identified in its decision when it said:

   7. The issue in the present case is whether the applicant has competent English as required by cl.485.215. Compentent English is defined in r.1.15C.  It provides:

   (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 in an instrument in writing for this subregulation.

8. The tribunal turned its mind to whether or not the applicant had, in fact, obtained the test scores required (the applicant not being the holder of a type of passport that would exempt him from having test scores).  The test score requirements are a score of B in each category for the occupational English test or a score of 6 in each of the test components in the IELTS test system.  The tribunal records:

   10. In his visa application, the applicant stated that he had undertaken an English language test on 22 August 2012 but did not provide any evidence of the results of this test.  At the hearing, the applicant advised that he had take IELTS tests during the relevant period but did not achieve the requisite score and conceded that he did not meet the requirements to have competent English.

9. The applicant did not provide the tribunal with the test result scores for a test he did in August 2012 and advised the tribunal that he did not have the test result scores to meet the requirements of the regulation.  Even today, it does not appear that the applicant has any test result scores to indicate that at any point he has succeeded in the English language test.  In any event, succeeding in the test today would not be sufficient to meet reg.1.15C, which requires that the test be conducted in the three years immediately before the day on which the application was made. 

10. In these circumstances, the applicant simply cannot satisfy one of the elements of the requirements for the visa that he applied for, and therefore his claim must inevitably fail.  His grounds as he sets out in his application are simply that the tribunal should have used its discretion to delay its decision to enable the applicant to consolidate another application.  There is no evidence about how that could have assisted him. 

11. The tribunal was asked to delay making its decision for a month and a half and agreed to hold off making its decision until the beginning of 2014.  Given that the applicant appeared before the tribunal on 3 December 2013 and the tribunal did not make a decision until 12 February 2014, it seems that the tribunal actually gave him two and a half months, rather than the one and a half months that he requested.  The tribunal specifically turned its mind to this issue, saying:

    11. He advised that he needed time because he is working for a company that is planning to sponsor him.  He advised that they are still in discussions and asked the Tribunal to delay making its decision for 1 ½ months.  The Tribunal agreed to hold off making a decision until the beginning of 2014.

    12. While the applicant may be seeking to obtain other visas in order to remain in Australia, the Tribunal is not required to indefinitely defer its decision-making processes: Huo v Minister for Immigration and Multi-cultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28. In light of the issues before it, the Tribunal has decided to proceed to a decision without further delay.

12. It does not appear to me that the applicant has any form of arguable case which could even possibly lead to him succeeding in this matter.

13. In the circumstances, I therefore dismiss the application.

Costs

1. In this matter, the applicant has been entirely unsuccessful.  The first respondent seeks costs in the scale amount of $3,326, and I do so order. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  27 November 2014