NAYYAR v Minister for Immigration
[2014] FCCA 2162
•6 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAYYAR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2162 |
| Catchwords: MIGRATION – Application for review of MRT decision – grounds of application not particularised and not identifying any jurisdictional error – applicant failing to provide evidence of competent English – no error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | RAHUL NAYYAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1727 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 August 2014 |
| Date of Last Submission: | 11 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Hibbard |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Amended Application filed 16 October 2013 be dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1727 of 2013
| RAHUL NAYYAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
On 16 October 2013 the applicant lodged an application seeking judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 24 September 2013 and handed down on 26 September 2013. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant to Skilled (Provisional)(Class VC) visa.
The grounds of the application were:
“1. S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised
2. I am not happy with tribunal decision, applying for judicial review for legitimate decision
3. I do have similar case law which is under High court Jurisdiction”
The applicant’s affidavit in support of his application relevantly deposes:
“1. I am not happy with Tribunal Decision, Applying for Judicial review for legitimate Decision
2. I do have exceptional circumstances beyond the application lodgement previously”
Otherwise the affidavit did no more than to annex the decision of the Tribunal.
On 18 December 2003, Registrar Allaway made orders which inter alia permitted the applicant to file any amended application and written submissions. The applicant has filed no such documentation.
The first respondent’s written submissions assert at paragraphs 5.2 and 5.3:
“5.2 The applicant has not advanced any basis on which it might be asserted that the Tribunal’s decision is affected by jurisdictional error. His application does not set out any proper ground of judicial review.
5.3 It is therefore difficult for the Minister to respond to the applicant’s application in any detailed way. Nonetheless, a fair reading of the Tribunal’s decision does not suggest that it is affected by jurisdictional error.”
When the matter came before the Court the applicant, who was self-represented, made some brief submissions. He said he had been misguided, and intended to apply for a work permit. He said his agent was in the city and that he needed money for the work permit. He then went on to say that his agents were no longer where they had previously been. He observed that he had ticked a box saying he would not attend the Tribunal hearing and did not know what to do.
I think the first respondent’s above submission is correct and it follows that the application must be dismissed.
The relevant facts
What follows is taken from the written submissions of the first respondent, which do not appear to me to be controversial.
The applicant applied for a skilled visa on 9 June 2011 and in that application stated that he had not undertaken an English language test within the last 24 months (Court Book “CB” 10). A delegate of the first respondent requested the applicant to provide further information in support of his application on 11 April 2012 and, more particularly, evidence of his English language ability (CB37). The applicant did not do so.
The delegate refused to grant the skilled visa on 25 May 2012 and on 14 June 2012 the applicant applied for review to the Tribunal.
In the application, the applicant appointed a representative and provided an address for that representative, being Owlet Migration & Education Consulting, 274 Victoria Street, Brunswick, Victoria 3056 (CB120).
The applicant set out at CB125-126 a statement concerning his endeavours to obtain the relevant International English Language Testing System (“IELTS”) scores, which inter alia noted the decision of the delegate to refuse the application and stated “I have requested case officer regarding my IELTS booking and how many times I have tried to get IELTS score, every time I get 5.5 in one component”.
On 4 April 2013 and 17 May 2013 the Tribunal received a change of contact details form which restated the applicant’s representative as Owlet Migration & Education Consulting but gave a different address for that organisation.
Subsequently, the Tribunal invited the applicant to appear before it to give evidence and present arguments at a hearing scheduled for 10 September 2013, sent to the representative’s address by registered post. The Tribunal specifically invited the applicant to provide evidence that he had competent English or evidence that he had booked an IELTS test and Occupational English Test (CB154). The letter from the Tribunal at CB154 relevantly stated:
“The Tribunal notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa. If you have booked an IELTS test or an Occupational English Test scheduled to take place before the hearing date, or soon after, please send evidence of the booking.”
The letter also informed the applicant that should he fail to appear, the Tribunal may make a decision without taking further action to enable him to appear before it.
On 9 September 2013 the representative emailed the Tribunal with a medical certificate stating the applicant would be unable to attend on the posited hearing date requesting a postponement. The Tribunal by return (CB167-169) sent a letter agreeing to the adjournment until 24 September 2013.
On 20 September 2013 the representative emailed the Tribunal (CB175-176) stating inter alia:
“As my client doesn’t have intention to attend the hearing, we are requesting the tribunal to take the decision as no further documents submitted. Thanks for granting the extension previously.”
Also forwarded was a letter to the Tribunal from the applicant (CB177) which relevantly stated:
“After the discussion with my agent I have decided to come hearing as extra evidence can’t be provided to support my claims for Tribunal review. Hence, I am requesting the tribunal to take the decision with available documents which have been provided with the application.”
As earlier indicated, on 26 September 2013 the Tribunal handed down its decision rejecting the application.
The Tribunal’s decision
The legislative background is set out at paragraphs 3.1-3.6 of the first respondent’s submissions and it is not necessary to do more than note them as there is, in my opinion, no dispute as to the nature of the matters the Tribunal was required to assess. The question was, as the Tribunal had earlier indicated was the case, whether the applicant had competent English as required by cl.485.215 of Schedule 2 to the Migration Regulations1994.
Having set out the history of the matter, the Tribunal proceeded to consider the claims and evidence at paragraphs 12-17 (CB186-187).
The Tribunal set out the definition of competent English pursuant to r.1.15CA and asserted at paragraphs 15-17:
“15. For r.1.15CA(ii)(A) and (B) the Minister has specified a score of at least ‘B’ in each of the four components of an Occupational English Test (OET). Thus, an applicant can satisfy r.1.15C(a) by achieving the specified score in either an IELTS or an OET, in a test undertaken after the application has been made, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417, Habib v MIAC [2010] FMCA 450.
16. There is no evidence before the Tribunal that the applicant has achieved the specified test score results in a relevant test conducted in the 2 years immediately before the day on which the visa application was made. The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(1).
17. Therefore, the requirements of cl.485.215 are not met. As this is the only relevant subclass in this case, the decision under review will be affirmed.”
Conclusion
The Tribunal’s decision seems to me to be unimpeachable. The Tribunal well understood the task before it and did not, in my view, misconstrue it. It is clear that the applicant was given every proper opportunity to attend and present his case. In circumstances where the applicant’s own materials suggested that he had never passed an IELTS case and had always had a mark of 5.5 at least once (this being sufficient to establish a lack of competent English) the Tribunal’s decision was, to say the very least, open to it.
In my opinion, there is no tenable proposition that the Tribunal fell into jurisdictional error and it follows that the application will be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 6 October 2014
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