Muthyala v Minister for Immigration
[2013] FCCA 2299
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUTHYALA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2299 |
| Catchwords: MIGRATION – Application to set aside orders dismissing application for non-appearance – subclass 485 General Skilled visa – competent English – no reasonable prospect of success. |
| Legislation: Migration Regulations 1994 r.1.15C |
| Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8 BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230 |
| Applicant: | ARUN KUMAR MUTHYALA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 567 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 December 2013 |
| Date of Last Submission: | 13 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Counsel for the First Respondent: | Richard Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 13 November 2013 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $3,156.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 567 of 2013
| ARUN KUMAR MUTHYALA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to set aside orders that were made on 25 October 2013 dismissing a proceeding for non-appearance.
The applicant, on 24 October 2013, had sent a facsimile to the court saying that he was unwell. He also attached a medical certificate, apparently signed by a doctor, saying that he was suffering from a “medical condition” and would be unfit for work and travel from
24 October 2013 to 27 October 2013.
The applicant did not attend court on 25 October 2013 and the application was dismissed for non-appearance for reasons which were given orally on that day. The reasons included a consideration of the applicant’s application, if any, for an adjournment.
The test to be applied in the consideration of an application to set aside orders was set out by Rangiah J in the matter of BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230 at paragraph 12, where his Honour said that the considerations are:
(a)whether the applicant had explained his previous failure to appear; [and]
(b) whether there was any utility or purpose in setting aside the orders, having regard to the merits of the principal application.
These matters were explained to the applicant when he appeared in court today. He reiterated that he was not well on 25 October 2013. He said that he had submitted his medical certificate to the Minister’s lawyer and to the court. He said that he had no further medical evidence today.
I am not satisfied that the applicant has adequately explained his absence on 25 October 2013. He has not said what condition he suffered from on that date or how it prevented him from attending court on that date.
In any event, the main issue in matters such as this is whether there is any reasonable prospect of success in the substantive application. In that regard, I note that the applicant applied for a General Skilled visa (subclass 485) on 3 September 2011. That application was refused by the delegate on the basis that the applicant did not have competent English. The Tribunal also refused the application on that ground.
The applicant was required to file written submissions in the proceeding before this court, by an order of the registrar. However, the applicant did not do so. He said to the court today that he was unable to identify any error in the Tribunal’s decision.
The application filed on 29 April 2013 says that the grounds of the application are as follows:
(1)Under the section 475, my tribunal decision comes under the Federal court jurisdiction
(2) I am not happy with Tribunal decision
(3)I am applying for the Judicial Review in 35 days Time frame.
The affidavit in support simply attached the Tribunal’s decision dated 10 April 2013.
The type of visa that the applicant applied for was a subclass 485 General Skilled visa. At the relevant time, the relevant criteria for that visa included a requirement that the applicant have competent English, which was defined at that time in regulation 1.15C as follows:
If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument; or
(b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The reference to certain types of passports was a reference to a requirement that the applicant have a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland to a citizen of that country. It is common ground that the applicant did not have such a passport. He is a citizen of India and has an Indian passport.
The applicant was found by the Tribunal not to have provided evidence of the results of a language test conducted within the two years immediately before the day on which the application was made. The applicant conceded in court today that he does not have a pass in the four modules of the IELTS test. He said he has done the test a number of times and has not succeeded in obtaining a score of 6 in each of the modules. He asked the court if he could have time to sit the test again in January or February. He said that if he did not get the required results at that time, he would go home.
The applicant, as I have said, was not able to identify any error in the Tribunal’s decision. The situation is that if the applicant does not have competent English as defined, he is not able to qualify for the visa that he has sought and there is no error in the Tribunal so finding. There is no scope for this court to give the applicant the additional time that he seeks to sit the test. The relevant regulation requires the applicant to have passed the relevant test in the two years immediately prior to lodging his application.
Perhaps, for completeness, it should be said that the High Court’s decision in Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8 applies to an earlier version of regulation 1.15C and the definition of competent English.
The version of regulation 1.15C of the regulations that the applicant needed to satisfy was introduced by Migration Amendment Regulations 2011 (No.3). Those regulations brought in the definition to which I have referred, with effect from 1 July 2011. There has been a subsequent amendment to regulation 1.15C which was brought in by Migration Amendment Regulation 2012 (No.2). However, that regulation applied to applications made subsequently to the application under consideration in this matter.
It seems to me that the Tribunal applied the correct regulation. The applicant simply did not satisfy the relevant criteria. Indeed, he has not yet managed to satisfy the relevant criteria.
In these circumstances, there seems to me to be no reasonable prospect of the applicant succeeding in his substantive application. Accordingly, as there is not an adequate explanation for the applicant’s failure to attend court on 25 October 2013 and as is there is no reasonable prospect of the applicant succeeding in the substantive application, the application to set aside the orders made on 25 October 2013 must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 15 January 2014
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