Noor v Minister for Immigration & Border Protection

[2014] FCCA 2858

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2858

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

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

Applicant: ALI BASHIR NOOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1874 of 2014

Judgment of: Judge Emmett

Hearing date: 3 December 2014

Date of Last Submission: 3 December 2014

Delivered at: Sydney

Delivered on: 3 December 2014

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1874 of 2014

ALI BASHIR NOOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 7 July 2014, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 2 June 2014 and handed down on 3 June 2014 (“the MRT”).

2. On 12 November 2014, the applicant attended a directions hearing before me. On that occasion, I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake that goes to the jurisdiction of the MRT. I also explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not, by themselves, disclose an error capable of review by this Court.

3. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicant was provided with a copy of the relevant costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him.

5. The applicant confirmed that he wished to continue with his application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 25 November 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 25 November 2014.

6. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was given to the applicant.

7. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

8. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

9. The applicant was unrepresented before the Court this morning.

10. The applicant confirmed to the Court this morning that no further documents had been filed by him, either in accordance with those directions or otherwise.

11. The applicant further confirmed that he relied on the grounds of his application filed on 7 July 2014.

12. The applicant’s application for judicial review, filed on 7 July 2014, stated the grounds of review as follows:

    “1. Migration Review Base on MRT decline.

    2. Continue my bridging visa B which will expired 11/07/20.”

13. The applicant was invited to say whatever he wished in support of those grounds.

14. In relation to Ground 1, the applicant said that he wished to have more time. I understood that to be an application for an adjournment of today’s hearing.

15. However, the MRT’s decision was dated 3 June 2014 and the applicant filed his application for judicial review in this Court on 7 July 2014. At the directions hearing before me on 12 November 2014, the applicant was provided with the contact details of legal services providers in order to assist him. In those circumstances, the applicant has had a reasonable opportunity to seek legal advice and his application for an adjournment was refused.

16. The applicant declined to say anything further by way of explanation of Ground 1 or in support of Ground 1.

17. Plainly, Ground 1, by itself, does not disclose any error capable of review by this Court and is not capable, by itself, of establishing any jurisdictional error.

18. Ground 2 is no more than a bare statement and is also not capable of establishing any jurisdictional error on the part of the MRT.

19. The first respondent’s submissions, filed on 26 November 2014, set out the background of the applicant’s claims and the MRT’s key findings in relation to this matter. Those submissions are as follows:

    “1. The applicant is a citizen of Bangladesh who applied for a Skilled (Residence) (Class VB) visa on 30 June 2011 (Court Book “CB” 1 to 15) together with supporting documentation (CB 16 to 28).

    2. On 18 February 2014, a delegate for the Minister found that the applicant did not have the level of English language proficiency required under reg 1.15C(1) of the Migration Regulations 1994 (“Regulations”). Consequently, the delegate found that the applicant did not meet cl 885.213 of Schedule 2 to the Regulations and refused to grant the visa (CB 90 to 97).

    3. On 7 March 2014, the applicant applied to the Migration Review Tribunal (“MRT”) for review of that decision (CB 98 to 99).  On 9 April 2014 the Tribunal invited the applicant (by his migration agent) to attend a hearing (CB 103 to 106) which the applicant accepted (CB 112 to 113).

    4. On 13 May 2014 the applicant appeared before the Tribunal to give evidence and present arguments in relation to his review (CB 144 to 145).

    5. During the hearing the applicant advised the Tribunal that on 10 May 2014 he had undertaken an IELTS test, the results of which he was yet to receive (CB 149 to 150 at [8]).  The applicant provided the Tribunal with documents which confirmed that the test had been sat on 10 May 2014 (CB 115 to 118) and the Tribunal allowed the applicant some time to provide the test results.  In that regard the following chronology is relevant:

    a. On 23 May 2014 the applicant telephoned the Tribunal to advise that the test results had been delayed but were due to be released that day (CB 124).

    b. Later that day the Tribunal attempted to contact the relevant IELTS testing centre to seek clarification about the delayed results and, thereafter confirmed to the applicant’s representative that an extension would be given to the applicant to provide the results (CB 128).

    c. On 30 May 2014 (following a discussion with the Tribunal on 28 May 2014 (CB 129) the applicant gave the Tribunal his candidate reference number for the Tribunal to access the results of the 10 May 2014 test (CB 130), which it did (CB 131).

    6. The results of the applicant’s IELTS test which he sat on 10 May 2014 were as follows (CB 131):

    a. Listening:  Band 6.0

    b. Reading:    Band 5.0

    c. Writing: Band 5.5

    d. Speaking:  Band 6.5

    7. As is set out below (at [11]), these test results were insufficient to qualify the applicant for the visa under review, as each of the reading and writing scores was below the requisite score of ‘6.0’.

    8. On 2 June 2014 the Tribunal informed the applicant that he would not be granted further time to sit another IELTS test (CB 143) and it affirmed the decision under review (CB 148 to 150).

    The Tribunal's key findings

    9. The Tribunal correctly identified that the relevant issue was whether the applicant had “competent English” at the time of application as required by cl 885.213 (CB 149 at [5]).

    10. The term “competent English” is defined in reg 1.15C as:

    “(1)   A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the test was conducted in the 3 years immediately before the day on which the application was made; and

    (c)  the person achieved a score specified in the instrument.

    (2)  A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.”

    11. The Tribunal also identified that Legislative Instrument IMMI 09/73 was the relevant instrument which specified the language tests and scores required for the purposes of reg 1.15C (CB 149 at 6), although noted that instrument had substantially the same requirements as the current instrument.  That requirement was that the applicant needed scores of 6.0 for each category.

    12. The Tribunal noted that the applicant did not provide the delegate any evidence of a successful test score before the delegate’s decision (CB 149 to 50 at [8]). At the Tribunal hearing, the applicant told the Tribunal that he had undertaken the IELTS test between 15 to 20 times but had been unable to achieve the required results (CB 149 to 50 at [8]).

    13. The applicant told the Tribunal he had undertaken another IELTS test on 10 May 2014 and was awaiting the results. He also said he had a further test scheduled for July 2014. He requested that the Tribunal wait for the results of these tests. The Tribunal agreed to wait for the results of the test undertaken on 10 May 2014, which were ultimately unsuccessful. The Tribunal refused to grant more time to the applicant for further tests because the application was made “nearly three years ago” and it considered the results from the test on 10 May 2014 was a “recent result reflecting his English proficiency” (149 to 150 at [8]).”

20. The MRT’s decision record makes clear that the MRT understood the issue before it, namely, whether the applicant had competent English as required for the visa sought by the applicant. The MRT then identified the relevant regulation, being reg.1.15C(1) of the Migration Regulations 1994 (Cth) (“the Regulations”), and considered whether the applicant met those requirements.

21. Under reg.1.15C(1) of the Regulations, it is mandatory that the applicant provide evidence that he has achieved certain scores demonstrating that he had the required English language proficiency.

22. Following the lodging of his application for review with the MRT, the applicant undertook a further IELTS test and sought an adjournment from the MRT for an opportunity for those test results to be published. The MRT granted that request. However, the test results were not sufficient to satisfy the requirements.

23. The applicant sought a further adjournment from the MRT to allow for further time to undertake another test. However, the MRT noted that the applicant had attempted the IELTS test at least 15 times to date and had not been able to pass. The MRT also noted that the applicant had not provided evidence that he had achieved the specified score in any IELTS test by the time of the MRT decision.

24. The MRT exercised its discretion to refuse a further adjournment based on the number of opportunities that the applicant had had to provide evidence of having fulfilled the requirements of reg.1.15C of the Regulations. There is nothing on the face of the MRT’s decision record to suggest that that the MRT’s exercise of its discretion miscarried in any way.

25. On the evidence before it, the MRT’s finding that the applicant did not satisfy the requirements of reg.1.15C of the Regulations would appear to be open to it on the evidence and material before it and for the reasons it gave.

26. While I make no final decision as to whether or not the MRT’s decision is affected by a jurisdictional error, none is apparent on the face of the decision record and none has been identified by the applicant this morning. The MRT referred to the relevant law in affirming the decision under review. There appears to be nothing on the face of the decision record to suggest that the MRT’s findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave.

27. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

28. Accordingly, the proceeding before this Court, commenced by way of application filed on 7 July 2014 should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:         15 December 2014