Palanisamy v Minister for Immigration & Anor
[2013] FCCA 1779
•10 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALANISAMY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1779 |
| Catchwords: MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – IELTS test completed after application lodged. |
| Legislation: Migration Amendment Regulations 2011 (No.3) Migration Regulations 1994 reg.1.15C, Sch. 2, subclasses 485 and 487 |
| Cases cited: Berenguel v Minister for Immigration and Citizenship(2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8 |
| Applicant: | UDAYAKUMAR PALANISAMY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 705 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 10 October 2013 |
| Date of last submission: | 10 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2013 |
REPRESENTATION
| Advocate for the Applicant: | Srinivas Maganty |
| Solicitors for the Applicant: | T A Fernandez |
| Advocate for the First Respondent: | David Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s oral application for an adjournment be refused.
The application filed on 22 May 2013 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 705 of 2013
| UDAYAKUMAR PALANISAMY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant has appealed from orders refusing an adjournment and dismissing the substantive hearing. Set out below is the settled version of the reasons given orally in both aspects of the matter.
Adjournment
This is an application for an adjournment of an application for review of a decision of the Migration Review Tribunal. The application was filed on behalf of the applicant by a solicitor, Mr Fernandez. There is material that has been sent through to chambers indicating that Mr Fernandez is undergoing tests for a serious illness. Another solicitor, Mr Maganty, sent a letter to the court two days ago seeking an adjournment, because Mr Fernandez is unwell. The first respondent did not consent to that adjournment, so orders could not be made in chambers.
When the matter came on today, Mr Maganty appeared for the applicant and said that he was instructed to seek an adjournment for three months in the expectation that by then Mr Fernandez will be able to continue to represent the applicant.
Mr Maganty was unable to explain why, in the last two days, either he or another legal practitioner were not able to prepare the case for hearing today. Mr Maganty said his instructions were only to seek an adjournment, and that he had not been instructed to run the case if the adjournment application was refused.
The first respondent opposes the application for an adjournment.
It seems to me that the reasons put forward for the adjournment are wholly inadequate. I accept that Mr Fernandez is unwell and that is very unfortunate. However, a medical certificate provided to the court indicates that he was unwell from 7 October to 15 October. That certificate was dated 7 October 2013. He has known since at least then that he would not be able to appear today, 10 October 2013.
It seems to me that, in the two or three days that has been available, it should have been possible for a lawyer, such as Mr Maganty, to prepare this case and be in a position to run the application today.
Written submissions were filed on 11 September 2013 by Mr Fernandez. In migration matters, the written submissions set out virtually the entirety of the case that is to be put forward. I fail to understand why a lawyer, such as Mr Maganty, is not here today to represent the applicant in the substantive application. When asked why, Mr Maganty was only able to say that he did not know. In these circumstances, the application for the adjournment is refused.
Substantive application
This is an application for review of a decision of the Migration Review Tribunal. The applicant made no oral submissions at the final hearing but presumably relied upon his written submissions.
The applicant entered Australia on a sub-class 573 Higher Education Sector Visa on 18 February 2010. He was to study a Postgraduate Diploma in Information Technology at Monash University. The visa was valid until 15 March 2011. The applicant was granted a further sub-class 573 visa on 21 April 2011 to study a Masters in Information Technology (Professional) at Monash University. That visa was valid until 15 March 2012. After completing that course, the applicant applied on 11 March 2012 for a sub-class 485 visa. That application was refused by a delegate of the Minister on 18 October 2012, because the applicant did not have the required IELTS score.
The applicant undertook the relevant IELTS assessment test after lodging his application for the visa. The test was conducted on 31 March 2012. On 11 April 2012, he was told that he had passed the test. However, the delegate refused to grant the visa on 18 October 2012 because the applicant had not achieved the relevant IELTS test result in the two years immediately before the day on which the application was made. The applicant then lodged an application for review with the Migration Review Tribunal. The Tribunal affirmed the delegate’s decision for essentially the same reasons.
The applicant filed an application in this court on 22 May 2013. The first ground in that application is that:
The Tribunal failed to consider the other sub-classes of visas in this class of visa.
In the applicant’s written contentions of fact and law, filed on
11 September 2013, the applicant said that:
The applicant filed an application pursuant to sub-class 485 of the Migration Regulations. Sub-class 485 and Sub-class 487 are under the same class namely, Class VC. In failing to consider the other sub-class of visas in the same class, the Tribunal has made an error. Therefore, it does not lie in the Tribunal to say “having regard to the visa application the relevant sub-class in the case is sub-class 485”. Therefore, it is abundantly clear that the tribunal has failed to consider the other sub-class of visas in this particular class.
The first respondent, in relation to this ground, said in his contentions of fact and law, that were filed on 23 September 2013, that:
The Tribunal did consider the only other subclass within the class of visa sought, finding that the applicant had not made a valid visa application for a Subclass 487 visa, which was the only other subclass of visa in the Skilled (Provisional) (Class VC) visa class, as there was no evidence that he had paid the required fee, or been sponsored or nominated in this subclass, and he had not claimed to have lodged an application for a Subclass 487 visa.
Reference was made by the first respondent to paragraph 29 of the Tribunal’s decision, which is as follows:
The Tribunal finds that the applicant did not make a valid application for a subclass 487 visa, as there was no evidence that he had paid the required fee or been sponsored or nominated in this subclass, and he did not claim to have done so.
In these circumstances it is clear that the Tribunal did consider the other subclass in the class VC visa scheme.
The second ground in the application filed on 22 May 2013 is that:
The Tribunal failed to consider the decision of the High Court in Berengul’s (sic) case, and therefore made a jurisdictional error in saying that the applicant does not meet clause 485.215 of the Regulations.
In the applicant’s written contentions, the applicant said that:
The Tribunal has failed to consider Regulation 1.15C in its correct perspective in that having obtained the necessary score of 6 or more in each of the 4 test components (IELTS) in a test undertaken on the 31st of March 2012 the tribunal has:
i.Failed to give a proper interpretation to the regulation;
ii.Failed to interpret Berenguel’s case in its correct perspective in that the tribunal ought to have accepted the reasoning in Berenguel’s case… .
The first respondent, in his written contentions in relation to this ground, said that:
The Tribunal did consider the Berenguel decision, finding that the Migration Amendment Regulations 2011 (No 3) had introduced the requirement that a specified language test must be conducted “in the 2 years immediately before the day on which the application is made”, effective from 1 July 2011. As a consequence, it was no longer open for visa applicants, who lodged a visa application on or after 1 July 2011, to rely on Berenguel as allowing reliance upon the outcome of a test conducted on a date after the date of lodgement of an application for a visa.
The Tribunal was correct, based on the material before it, to conclude that the applicant had not undertaken one of the specified language tests in the two years immediately before the day on which his visa application was made. He therefore did not meet the competent English requirements as required under reg. 1.15C of the Migration Regulations 1994 (“the Regulations”). As a consequence, he did not satisfy the requirements of subclass 485.215 of Schedule 2 of the Regulations and could not be granted a visa. The applicant’s contentions fail to appreciate that regulation 1.15C has been amended since Berenguel v Minister for Immigration and Citizenship(2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8 was decided by the High Court. The consequence is that an IELTS test undertaken after the lodgement of the application cannot be relied upon for the purposes of obtaining the relevant visa. The Tribunal made no error in this regard.
The third ground raised by the applicant in his application filed on
22 May 2013 is that:
The Tribunal has failed to consider the other decisions made by other Tribunal members.
The applicant, in his written contentions, said, in relation to this ground:
The tribunal is not a court not to follow the decisions in other tribunal matters and in this regard as well the tribunal made such error amounting to a jurisdictional error.
The first respondent said in his written submissions that the Tribunal did give consideration to both Tribunal decisions referred to by the applicant, finding that one decision involved a visa application lodged before 1 July 2011 while the other involved an applicant who provided evidence of an IELTS test in which the required result was achieved in the two years immediately before the visa application was lodged. Neither case assists the applicant’s argument. I accept the first respondent’s contentions that the Tribunal did, in fact, refer to the other Tribunal decisions that the applicant had referred it to.
In any event, the Tribunal is not bound by the decisions of other Tribunals. Although there is a great deal of merit in consistency in decision making, priority must always be given to making the correct decision. There is no substance in this ground.
As none of the three grounds advanced by the applicant has any merit, the application must be dismissed.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 7 November 2013
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