Mundi v Minister for Immigration

[2015] FCCA 1412

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNDI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1412

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) Class VC) visa – English language test – competency requirement – time frame within which to produce English language test result.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

Migration Regulations 1994 (Cth), reg.1.15C, Schedule 2, cl.485.215

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586
Singh v Minister for Immigration & Anor [2014] FCCA 569
Singh v Minister for Immigration & Border Protection [2014] FCA 719
Suh & Ors v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515

Applicant: TEJWINDERPAL SINGH MUNDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 111 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 26 May 2015

Date of Last Submission: 26 May 2015

Delivered at: Perth

Delivered on: 26 May 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr P Corbould

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs in the sum of $6825 by 30 June 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 111 of 2014

TEJWINDERPAL SINGH MUNDI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extemporaneously and revised)

Introduction

1. Under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) the applicant seeks judicial review (“Judicial Review Application”) of a decision of the Migration Review Tribunal (“Tribunal”) made on 9 May 2014 affirming a decision of a delegate (“Delegate’s Decision”) of the Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (“Minister”), refusing to grant to the applicant a Skilled (Provisional) (Class VC) visa (“Skilled Visa”).

Background prior to the Judicial Review Application

1. The background to the Judicial Review Application is as follows:

   a)the applicant is a citizen of India: Court Book (“CB”) 113;

   b)on 27 December 2012 the applicant electronically lodged an application for a Skilled Visa with the former Department of Immigration and Citizenship (“ Department”): CB 1;

   c)in the Skilled Visa application form the applicant was asked 'Have you undertaken an English test within the last 24 months?' The applicant answered 'Yes' and stated that his most recent English test was an International English Language Testing System (IELTS) test dated 3 September 2011 that had tested his language ability as 'Competent': CB 9;

   d)on 5 May 2013 the applicant departed Australia: CB 41;

   e)on 15 May 2013 the Department wrote to the applicant requesting additional information and documents in relation to the Skilled Visa application, including a copy of the applicant's IELTS test report: CB 27;

   f)on 27 June 2013 the Delegate refused to grant the applicant a Skilled Visa because the applicant did not satisfy the requirement to be in Australia when the Skilled Visa is granted: Delegate’s Decision at CB 41;

   g)on 10 July 2013 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 58;

   h)on 28 August 2013 the Tribunal received a report from an IELTS test taken by the applicant on 27 July 2013, in which test the applicant achieved a test score of 6.5 for listening, 6.5 for reading, 6 for writing, 6 for speaking and an overall band score of 6.5: CB 82;

   i)on 14 March 2014 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments: CB 87-88;

   j)on 11 April 2014 the applicant and a supporting witness appeared before the Tribunal by telephone: CB 116;

   k)at the Tribunal hearing the Tribunal put to the applicant that the IELTS test report he had provided was dated 27 July 2013, which was after his Skilled Visa application was lodged, and asked if he had undertaken a test in the 3 years immediately preceding his Skilled Visa application: CB 121 at [10];

   l)the applicant gave evidence that:

   i)he had undertaken an IELTS test but that he had only achieved a score of 6 in 3 of the test components;

   ii)he had consulted a lawyer who told him he could provide an IELTS test later; and

   iii)he had lost five family members in the last two years and that he had had to leave Australia to attend their burial ceremonies: CB 121 at [10]; and

   m)on 15 April 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Skilled Visa: CB 119 and 121 at [14].

Tribunal Decision

1. In the Tribunal Decision the Tribunal identified the relevant issue as being whether the applicant had competent English at the time of application as required by cl.485.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) and as defined in reg.1.15C of the Migration Regulations: CB 120 at [7].

2. The Tribunal noted that reg.1.15C of the Migration Regulations, read in conjunction with the relevant legislative instrument, IMMI 12/018, provided that a person has competent English if the person satisfies the Minister that:

   a)the person undertook a specified language test conducted in the 3 years immediately before the day on which the application was made and achieved a specified score with the specified languages tests and scores being:

   i)a test score of at least 6 for each of the 4 components of speaking, reading, writing and listening in an IELTS test; or

   ii)a test score of at least ‘B’ for each of the 4 test components in an OET; or

   b)holds a specified passport, namely, a passport from the UK, USA, Canada, New Zealand or the Republic of Ireland.

3. The Tribunal :

   a)noted that there was no evidence that the applicant held a specified passport: CB 120 at [8];

   b)found on the evidence before it that the applicant had not undertaken an IELTS test in the three years immediately preceding his Skilled Visa application in which he achieved the required score: CB 121 at [12];

   c)found that the applicant did not therefore have competent English as defined in reg.1.15C of the Migration Regulations: CB 121 at [12];

   d)found that the applicant did not meet the requirements of cl.485.215 of Schedule 2 to the Migration Regulations: CB 121 at [13]; and

   e)affirmed the Delegate’s Decision not to grant the applicant a Skilled Visa”: CB 121 at [14].

Judicial Review Application

1. The Judicial Review Application does not set out any proper grounds of review or allege any jurisdictional error by the Tribunal. Rather, the application makes very general submissions that:

   a)the applicant's 'agent' gave him wrong advice;

   b)the applicant had been through a lot of personal difficulties;

   c)the applicant had lived in Australia for six years and never breached any law, and had been productive and honest; and

   d)the applicant had asked for a chance taking into account his hard work, history and contrition.

2. An affidavit of the applicant filed with the application for judicial review states that the applicant 'had been treated unfairly' and was 'just seeking justice'.

3. At hearing today the applicant conceded that there was no error in the Tribunal Decision, let alone jurisdictional error. Notwithstanding that concession, it is appropriate that the Court properly conclude its consideration of the matter.

Consideration

1. Section 65 of the Migration Act requires that a decision-maker be satisfied that the criteria for the visa being applied for have been satisfied before granting that visa. If the decision-maker is not so satisfied, then the visa must be refused. Section 65 does not confer a discretion as to the exercise of the power.

2. The Skilled Visa is a subclass 485 visa. The relevant criteria for a subclass 485 visa are set out in the Migration Regulations. At the relevant time, cl.485.215 of Schedule 2 to the Migration Regulations read in conjunction with the relevant legislative instrument, IMMI 12/018, provided as mandatory criteria to be met at the time of application that the applicant have competent English, defined as set out above: see [4] above.

3. The application before the Court contains no proper grounds of review, which is unsurprising given the applicant’s concession: see [8] above. The applicant asserts in his affidavit that the Tribunal Decision was unfair. There is nothing to indicate that the Tribunal failed to accord the applicant procedural fairness or failed to carry out its review in accordance with the Migration Act, and the Court particularly notes that the Tribunal invited the applicant to a hearing at which the applicant gave evidence concerning his IELTS test history and results: CB 120 at [4] and 121 at [10]. Without particulars identifying how this alleged unfairness amounts to jurisdictional error, the applicant’s assertion is an impermissible attack on the merits of the Tribunal Decision, contrary to principles which are well established and often applied by this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. There was no evidence before the Tribunal demonstrating that the applicant had undertaken an IELTS test, or an OET, and achieved the required score in the 3 years immediately before the day on which he made his Skilled Visa application. This being the case, affirming the Delegate’s Decision was the only decision that the Tribunal could have reached on the material before it: Singh v Minister for Immigration & Anor [2014] FCCA 569 at [21] per Judge Lucev (“Singh”), affirmed on appeal: Singh v Minister for Immigration & Border Protection [2014] FCA 719 at [19]-[20] per McKerracher J (“Singh Appeal”). The Court further notes that the judgment of the Federal Court in Singh Appeal, which is directly on point, is binding on this Court: Suh & Ors v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [38] per Weinberg, Jacobson and Lander JJ.

5. The fact that the applicant has passed an IELTS test with the specified score subsequent to the date of his Skilled Visa application is irrelevant and cannot establish jurisdictional error in the Tribunal Decision: Singh at [22] per Judge Lucev; Singh Appeal at [21] per McKerracher J.

6. Even if the applicant was incorrectly advised by an agent or a lawyer that he could provide an IELTS test report after the date of his Skilled Visa application, this cannot provide a basis for a finding of jurisdictional error, as the fundamental fact remains that the applicant did not satisfy the relevant criteria at the time of making his Skilled Visa application: Singh at [22] per Judge Lucev; Singh Appeal at [21] per McKerracher J.

7. For the reasons set out above the Tribunal Decision does not involve jurisdictional error.

Conclusions and orders

1. The Court has concluded that the Tribunal Decision does not involve jurisdictional error. It follows that the application must be ordered to be dismissed. It further follows that the applicant must be ordered to pay the Minister’s costs in the sum of $6825, by 30 June 2015. Orders are so made.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 27 May 2015