PALAMONG v Minister for Immigration

[2014] FCCA 634

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALAMONG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 634

Catchwords:
MIGRATION – Skilled migrant visa – English language test.

Legislation:  

Federal Circuit Court Rules2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: CHALIYA PALAMONG

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: DNG 7 of 2013

Judgment of: Judge Harland

Hearing date: 14 March 2014

Date of Last Submission: 14 March 2014

Delivered at: Darwin

Delivered on: 14 March 2014

REPRESENTATION

The Applicant: No Appearance

Counsel for the Respondent: Ms Newman

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. The Applicant shall pay the costs of the Respondent fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNG 7 of 2013

CHALIYA PALAMONG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. The matter was called at 2.00pm.  At 2.05pm, the applicant had not appeared and I dismissed the attendance of the interpreter.  I note that the first respondent filed an affidavit by Justin Penafiel, a legal officer at the Department of Immigration and Border Protection, who outlines in that affidavit that the applicant, in fact, left the country on 15 October 2013.  She has not returned to Australia since that date and she does not hold a visa that would permit her lawful entry into the country. 

2. It is most unfortunate that the applicant did not simply withdraw her application given that she wasn’t going to pursue it and I note that she filed an application in this court for a review of the decision of the Immigration Tribunal on 23 September 2013. She left a few weeks later. The Minister for Immigration and Border Protection has had to go to the expense of still preparing for the hearing and has prepared helpful written submissions. I refer to rule 13.03B of the Federal Circuit Court Rules2001 and note that as the applicant is in default and has not appeared at the hearing today, I could dismiss the proceedings on that basis. 

3. As I indicated to counsel for the Minister, I am of the view, given that it is clear on the facts of this case, that there is nothing that the applicant could put to the court that would have enabled her application to be successful. It is useful to briefly outline the reasons why that is so, rather than simply dismissing it on the basis of non-appearance. I note I have jurisdiction pursuant to section 476(1) of the Migration Act 1958. The applicant applied for a skilled migrant visa. In her application for the visa, which she submitted electronically on 6 September 2012, she indicated that she had not undertaken the English test within 36 months prior to the date she lodged the application form.

4. It is clear on the application form itself and in the legislation that it is a mandatory requirement for the applicant to satisfy the provisions in regulation 1.15C and clause 485.215 of the Migration Regulations 1994.  They refer to the expression “competent English” which is then defined in Regulation 1.15C.  A person has competent English either if they have completed the language test specified by the Minister and have completed that test in the three years immediately before filing the application or a person holds a passport of one of the English-speaking countries which is recognised in the legislation. 

5. There is no evidence that the applicant holds a passport from one of those five countries and, in fact, the applicant is a Thai citizen and had requested the assistance of an interpreter for today’s hearing.  It is clear from the applicant’s own application that the applicant has not undertaken a successful English test at any stage let alone in the three year period before filing the application.  In the affidavit that she filed with her application to this court, she says she needs to extend the time for her visa, for preparing for the English test and needed more time to study for the English test. 

6. This clearly misunderstands the requirement in the legislation which was clearly spelt out in the decision of the delegate and the decision of the Tribunal that it is mandatory that the applicant be able to supply evidence of successful completion of the English test within the three year period leading up to the date of filing the visa application and that date was 6 September 2012.  Therefore to seek an extension of time in which to successfully complete the test is futile because it does not matter whether she is able to successfully pass the test now or not. 

7. In those circumstances, there is no hope of her ever being able to succeed in her application.  It is appropriate therefore to dismiss her application and to order that the applicant pay the first respondent’s costs in accordance with the Federal Circuit Court Rules Part III, Division 1 in the sum of $6,646.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  1 April 2014