Marwaha v Minister for Immigration

[2015] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARWAHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1080

Catchwords:
MIGRATION – Application for judicial review of decision of the Migration Review Tribunal affirming the refusal of a Skilled (Residence) (Class VB) visa – no evidence of English language proficiency – criteria not met – procedural fairness afforded the applicant – no jurisdictional error.

Legislation:

Migration Amendment Regulations 2011 (Cth)

Applicant: NAVJOT SINGH MARWAHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1353 of 2014

Judgment of: Judge McGuire

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Melbourne

Delivered on: 7 May 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the First Respondents: Ms Bosnjak

Solicitors for the First Respondents: Clayton Utz

ORDERS

1. The application for judicial review filed 7 July 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1353 of 2014

NAVJOT SINGH MARWAHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Migration Review Tribunal  (“the Tribunal”) dated 26 June 2014 affirming a decision of the Minister’s Delegate not to grant the applicant a Skilled (Residence)(Class VB) visa (“the visa”)

2. The applicant appears in person and unrepresented. He has not complied with the Registrar’s directions of 1 October 2014 to file written submissions. I do have written submissions filed on behalf of the first respondent.

Procedural History.

1. The applicant is from India.

2. On 23 June 2010 the applicant applied to the Department for a skilled visa. The nominated occupation was as a cook.

3. The applicant deposed that he had completed an English language proficiency test within the preceding statutory period of 24 months and that his English language was “proficient”. The test disclosed scores of listening 6.5; reading 6.0; writing 6.0; speaking 6.5; resulting in an English language point score of 15 being in accordance with “competent English” rather than the 25 points awarded for “proficient English”.

4. By letter of 12 April 2013 the Department invited the applicant to provide evidence of English language proficiency.

5. An email from the applicant’s agent of 18 June 2013 advised that the applicant had sat a further IELTS test and that the results were pending. No further results were, in fact, provided.

6. The Delegate refused the granting of the visa on 28 October 2013 noting that the applicant did not satisfy the English proficiency requirement which would have given him 25 points whereas his competent in English score gave him only 15 points and hence not achieving the proscribed 120 point criteria for the grant of a skilled visa.

7. On 6 November 2013 the applicant sought a merits review before the Tribunal.

8. By letter of 6 March 2014 the Tribunal invited the applicant to attend the hearing and to provide documents relied upon so as to meet the criteria.

9. At the hearing on 4 April 2014 the applicant was granted the indulgence of an adjournment in order to sit a further test on 12 April 2014 and to provide the results by 20 May 2014.

10. An email of 30 April 2014 from the applicant’s representative disclosed that he had sat the test and received results but was awaiting a re-evaluation. A number of further communications between the Tribunal and the applicant’s representative took place. Nevertheless, the ultimate advice from the applicant’s representative in respect of the re-evaluation of the test results was “negative”.

11. The tribunal confirmed the delegate’s determination on 26 June 2014. The tribunal found that the applicant had not satisfied the criteria of clause 886.221 of Schedule 2 of the Migration Amendment Regulations 2011 in achieving a qualified score of 120 points. Again the applicant’s points awarded were just 15 for English competency.

12. The application before me does not essentially disclose any proper ground of complaint in stating;

    Application due to IELTS Requirement, time of application and I have scored at time of decision. for transitional applicants, DIBP has given on 10/02/2010 that they can apply for 885 bi on 10 Feb 2010 regulation, however MRT & DIBP had refused without looking into transitional arrangements regulation.

13. When asked by this Court whether he had any oral submissions the applicant indicated that he wanted a further indulgence from this Court to allow him to sit yet another test and hopefully obtain the requisite English language proficiency score. The applicant was advised that this Court is not a further forum for merits review. The applicant was then unable to point to any error of law in the Tribunal.

14. A reading of the Tribunal’s decision discloses that the Tribunal understood its decision making process under the Act. The Tribunal references the evidence to the statutory criteria. The conclusion of the Tribunal was therefore, the only one open to it.

Conclusion:

1. The chronology above clearly shows that procedural fairness was afforded this applicant. He was made aware of the relevant issues and the materials to be provided to the Tribunal. He was granted generous indulgences.

2. I find no error in the process of the tribunal or its decision. The application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  7 May 2015