Nukala v Minister for Immigration & Anor
[2013] FCCA 2322
•9 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NUKALA v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2322 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – whether dismissal of application for judicial review should be set aside – whether applicant’s explanation for failure to appear at first court date satisfactory – whether ground of application had sufficient prospects of success – application for reinstatement dismissed. COSTS – Circumstances justifying order. |
| Legislation: Migration Regulations 1994, reg.1.15C |
| Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1. |
| Applicant: | AJAYA NUKALA (ALSO KNOWN AS NUKALA AJAYA) |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 499 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 9 December 2013 |
| Date of Last Submission: | 9 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms Randall-Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application in a Case filed on 20 November 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $1,661.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 499 of 2013
| AJAYA NUKALA (ALSO KNOWN AS NUKALA AJAYA) |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for reinstatement of a judicial review proceeding for the review of a decision of the Migration Review Tribunal, made 19 March 2013.
The application was dismissed on the hearing date last set when the applicant failed to attend at court for the hearing. This was on 31 October 2013. On 20 November 2013, the Applicant brought an application effectively seeking a reinstatement of his case under the relevant rule of the Federal Circuit Court Rules, being r.16.05. That rule provides the court with the power to set aside or vary a judgment or order where the order was made in the absence of a party.
There is no question that I have power to set aside the dismissal order on the basis that it was made in the Applicant’s absence. In exercising the discretion to determine whether or not to set aside such an order, it is relevant to have regard to the explanation for the absence of the Applicant at the hearing and, importantly, to look at the prejudice to the parties and whether or not the Applicant can demonstrate an arguable case.
Explanation as to non-appearance
In this case, the Applicant’s explanation is very brief. He simply says that he was suffering from asthma and hay fever and, as he was unwell, he was in bed for the whole week and thought that he was not able to attend court on the court date. He had not filed an outline before that court date. There is no medical certificate provided. He did not contact the court at the time; no-one contacted the court on his behalf. No email was sent; no contact was made.
It seems to me that the Applicant’s explanation is less than satisfactory, however that is not the matter that is determinative in this case; rather, it is the question of whether or not he, in fact, has an arguable case.
Does the Applicant have an arguable case?
The Applicant’s case before the court is that he ought to be allowed a visa, even though the test scores for English that he obtained at the time did not meet the relevant criteria. The Applicant explains his grounds in his affidavit supporting his initial application. In substance, the Applicant seeks to rely upon an English language test more recently completed to show that he can now fulfil the criteria for the visa.
The English language scores that the Applicant obtained in a test on 9 July 2011 were 7, 6, 5.5 and 6, respectively for the various bands of listening, reading, writing and speaking. He has provided today a test result averaging 6.5 with no score being below 6, however those results were obtained in a test in May of this year. The relevant visa criteria, was set out in clause 485.21 headed ‘Criteria to be satisfied at time of application’. Clause 485.215 stated:
The applicant has competent English.
The term “competent English” was defined in reg.1.15C in the following terms:
1.15C Competent English
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.
In this case, there is no question that the language tests – either the one presented by the Applicant today or the test relied upon by the Tribunal and the delegate – were undertaken in a form required by reg.1.15C(a)(i). Subparagraph (2) requires that the test be conducted in the two years immediately before the day on which the application was made.
In this case, the test that was conducted before the application was made showed the lower scores and the test that was conducted after the Migration Review Tribunal decision showed the higher scores. It seems clear that the only test that the Applicant can rely upon for the purpose of reg.1.15C(a)(ii) is the earlier scored test.
The Minister raises, and the Applicant relies upon, the matter of Berenguel v Minister for Immigration & Citizenship [2010] HCA 8; (2010) 264 ALR 417; (2010) 84 ALJR 251; (2010) 114 ALD 1.
In that case, the High Court said a phrase to the effect that the test must be conducted no earlier than two years before the application meant that tests conducted after the application could also be considered. Since then, the relevant regulation is in a different form which makes clear that the test must be conducted in the two years immediately before the day on which the application was made. In my view, the decision of Berenguel does not apply in this case, given the different form of the regulations.
It does not seem to me that it is arguable that Berenguel ought to apply, given that it was a judgment about statutory interpretation of a form of words that are clearly materially different to the form of words currently used.
Turning then to the test scores that are required, subparagraph (iii) refers to the relevant instrument for the specification of the scores that are needed. The instrument is instrument number IMMI 11/036 which commenced on 1 July 2011. The instrument was issued by the Honourable Chris Bowen, Minister for Immigration and Citizenship, on 16 June 2011.
Paragraph (3) of that instrument set out that the test scores required was a score of at least 6 for each of the four test components, which are speaking, reading, writing and listening. The Applicant did not obtain a score of 6 for each of the components: for one of them he obtained a score of only 5.5. His test scores, therefore, do not satisfy the regulation that defines competent English, see: reg.1.15C. As those test scores do not satisfy the regulation, then the Applicant has not satisfied one of the criteria to be satisfied at the time of the visa application, being criterion 485.215.
In these circumstances, it is not a situation where the Applicant has an arguable case. He simply did not fulfil the visa criteria at the time and, upon the evidence that was available, could not have fulfilled that visa criteria. The fact that he may now be able to fulfil the visa criteria, if he applied now, does not alter the requirements at the time that this visa application was dismissed. In these circumstances, I am not persuaded that the Applicant has an arguable case.
Question of prejudice
When turning to the question of prejudice, it seems to me that there is little prejudice to the Minister in this case and what prejudice there is could be dealt with by a costs order. If the Applicant did have an arguable case, there would be considerable prejudice to him because of the nature of the visa application.
In the circumstances, as it seems to me that an arguable case is an important requirement of any application to reinstate or set aside a dismissal order, and I am not persuaded that the Applicant has an arguable case, I therefore dismiss the current application.
[Further argument ensued]
Costs
The applicant has been wholly unsuccessful in the application and a scale fee of $1661 appears appropriate.
I therefore make orders for costs in accordance with the costs scale.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 21 January 2014
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