Mann v Minister for Immigration

[2014] FCCA 2336

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2336

Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – no arguable case raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994 (Cth), reg.1.15C
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR
Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 16
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Applicant: MANMEET SINGH MANN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1395 of 2014

Judgment of: Judge Nicholls

Hearing date: 10 September 2014

Date of Last Submission: 10 September 2014

Delivered at: Sydney

Delivered on: 10 September 2014

REPRESENTATION

Applicant: In Person

Appearing for the Respondents: Mr L d’Avigdor

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 23 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1395 of 2014

MANMEET SINGH MANN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (“the Act”) on 23 May 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 30 April 2014 which affirmed the decision of the Minister’s delegate to refuse a Skilled (Residence) (Class VB) visa (“the visa”) to the applicant.

2. I have before me in evidence the affidavit of the applicant filed in these proceedings on 23 May 2014, to which is annexed, relevantly, the decision of the Tribunal.

Application Before the Court

1. The application before the Court contains the following ground:

   “I need to find my IELTS result in India as my family moved house so they think its still in the old place.”

   [errors in original]

2. I note that the ground is repeated under “Grounds of application for extension of time”, however I have taken this to be a misunderstanding of the requirements of the application form, as the applicant filed his application within the time limit provided in s.477(1) of the Act (see also further below).

Background

1. As stated above, the applicant filed an affidavit annexing the Tribunal’s decision with his application to the Court. The following background can be ascertained from that decision record.

2. The applicant applied for the visa on 14 February 2012. The delegate refused the visa to the applicant on 24 January 2014 because the applicant “did not have the required English language proficiency” ([3] of the Tribunal’s decision record).

3. The applicant applied for review of the Tribunal’s decision on 8 February 2014 ([3] of the Tribunal’s decision record). He attended a hearing before the Tribunal on 14 April 2014 ([4] of the Tribunal’s decision record).

4. The Tribunal affirmed the delegate’s decision to refuse the visa to the applicant on 30 April 2014. The Tribunal’s decision was based on the finding that the relevant criteria for the subclass of visa that the applicant had applied for (subclass 885 (Skilled – Independent), see [2] and [6] of the Tribunal’s decision record) required the applicant to demonstrate, or provide evidence, that, amongst other things, he had “Competent English” pursuant to reg.1.15C of the Migration Regulations 1958 (“the Regulations”).

5. The Tribunal found that the applicant had not demonstrated that he had competent English. In light of the applicant’s ground, I note what the Tribunal said at [11] – [12] of its decision record:

   “[11] At the hearing, the applicant gave evidence that he had no evidence of competent English with him. He stated that he went to India in 2011 and undertook an IELTS test there. He stated that the IELTS Test Report Form was at his family home in India. He stated that his family had moved house and would be returning to their family home shortly. When asked whether he had contacted the IELTS Administration and requested a copy of his IELTS Test Report Form, he answered no. The Tribunal granted the applicant until 28 April 2014 to provide evidence of competent English.

   [12] The applicant did not provide any evidence of competent English to the Tribunal by 28 April 2014 nor did he contact the Tribunal to seek further time to do so. Therefore, there is no evidence before the Tribunal that the applicant has competent English as defined.”

Before the Court

1. The applicant appeared in person at the first Court date in this matter on 16 July 2014. At that time I explained to the applicant that the Court could not give him a visa, the power of the Court was confined to the consideration of whether the Tribunal had made any legal error in making its decision. In particular, that this required an error in the exercise of the Tribunal’s jurisdiction in the making of its decision. In light of the applicant’s ground, I urged him to consider obtaining some legal advice. Further, in orders made at that Court event, I gave the applicant leave to file any amended application and any evidence by way of affidavit on which he wished to rely. I set the matter down for mention today.

2. The applicant was on notice on that occasion that if he did not file anything further of substance, the Minister would seek to have his matter heard pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

3. The applicant appeared today in person. Mr L d’Avigdor appeared for the Minister. As the applicant has not filed anything further, the Minister has made such an application to proceed to an immediate show cause hearing pursuant to r.44.12 of the FCC Rules. It is appropriate that I proceed in that manner today to consider whether any arguable case is raised by the application to the Court.

The Issue

1. The issue before the Court today is whether the ground of the application raises an arguable case for the relief sought (see also r.44.13(1) of the FCC Rules). If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration: Applicant’s Submissions

1. Before the Court today the applicant stated that what he was seeking was more time to be able to search and obtain the IELTS test result. That is, the test that he undertook in India in 2011 as referred to in the Tribunal’s decision record. As I sought to explain to the applicant today, the Court has no power to make any finding that the applicant meets the criteria for the grant of a visa. The Court has no power specifically, and particularly, to make any finding that the applicant has competent English as that is defined in the Regulations. Therefore, even if the applicant were to have produced the IELTS test result to the Court today, the Court cannot intervene to assist the applicant.

2. To the extent that the applicant’s request for “further” time may imply that he seeks an adjournment of the hearing today, that is refused on the basis that no real purpose can be served in further delaying the disposition of this matter. That is because the critical issue before the Court today can only derive from the question as to whether the Tribunal, in making its decision, fell into jurisdictional error. It is in those circumstances that the Court could then intervene to set aside the Tribunal decision and return the matter for consideration according to law. Even if further time were given to the applicant, and even if he now produced the “lost” IELTS test result, that cannot assist him in this regard.

Consideration: Ground of the Application

1. The applicant’s ground does not appear to assert that the Tribunal made any jurisdictional error. In effect, the ground asserts that the applicant does have “Competent English” as defined by the Regulations, and that he needs to find the evidence of this, “the IELTS result”, which is in India. The applicant clearly understood that he cannot be granted the visa without providing evidence of competent English. With respect, what the applicant has not understood is that the time for providing that test result was before the Tribunal, and not before the Court.

2. I did consider whether there was any other matter that might assist the applicant in his case before the Court today, and in that light, as stated above, I also gave the applicant time on the earlier Court occasion by orders made at that time to provide any evidence that might have assisted any ground that he wanted to put before the Court, and the opportunity to file any amended application. However, it is the case that that opportunity was not exercised by the applicant and no further evidence has been provided before the Court.

3. The applicant’s focus before the Court was on providing the evidence for the grant of the visa rather than any evidence to argue legal error on the part of the Tribunal. What is before the Court is that the ground, even at best for the applicant, does not raise an arguable case for the relief that he seeks. I agree with the Minister’s submissions that this is not a case where the Tribunal has exercised its discretion to refuse an adjournment “unreasonably” or without “intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 16 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1). On the evidence before the Court, the Tribunal gave the applicant additional time to locate the IELTS test result.

4. The facts, as presented to the Court today, are that before the Tribunal the applicant sought further time because his family would be “returning to their family home shortly” and this was where he believed the evidence to be. The Tribunal gave the applicant two weeks to provide the evidence. He did not provide the evidence within that time.

5. Further, in light of his submission to the Tribunal that his family was returning to their, apparently former, family home “shortly”, this was a reasonable length of time. This was also reasonable in the context of the applicant requesting a copy of his IELTS test result from the “IELTS Administration”. The applicant’s evidence to the Tribunal was that he had not taken steps to do so in the time available to him since 2011 (see [11] of the Tribunal’s decision record).

6. In the circumstances, it was reasonably open to the Tribunal on the evidence before it to find that the applicant did not have competent English, and as such was not able to meet the requirements of the visa such that the visa must be granted.

Conclusion

1. The ground of the application to the Court, and the complaint made by the applicant before the Court today, which also focused on the location of the misplaced test result from 2011, do not raise an arguable case for the relief sought. Further, and notwithstanding r.44.13 of the FCCA Rules, I cannot otherwise see any jurisdictional error on the part of the Tribunal or that any such argument arises from the material before the Court. It is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

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

Associate: 

Date: 13 October 2014