PARMAR v Minister for Immigration

[2014] FCCA 3168

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARMAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3168

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – jurisdictional error not revealed – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Schedule 2, cls.485.215 & 485.221 and r.16.01

Migration Act 1958 (Cth)

SZNBX v Minister for Immigration & Citizenship (2009) 112 ALD 475

Applicant: ROHIT PARMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 132 of 2014

Judgment of: Judge Simpson

Hearing date: 4 September 2014

Date of Last Submission: 4 September 2014

Delivered at: Adelaide

Delivered on: 4 September 2014

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application filed on 17 April 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant do pay the First Respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 132 of 2014

ROHIT PARMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal”) dated 31 March 2014.  The Applicant appears in person, and I have ascertained from him that he has received the court book and also the Outline of Submissions of the First Respondent.  He is satisfied that he has had plenty of time to absorb what has been in those two documents. 

2. The Tribunal, on 31 March 2014, affirmed a decision of the Delegate of the then Minister for Immigration and Citizenship not to grant the Applicant a Skilled (Provisional) (Class VC) (subclass 485) Skilled – Graduate visa.  I should say in giving these reasons that I acknowledge that I have been greatly assisted by the Outline of Submissions that have been provided by the First Respondent, having satisfied myself that what is contained in the outline is accurate. 

3. The background to this matter is that the Applicant, a citizen of India, lodged an application for a visa on 3 February 2011.  The Applicant stated in his visa application form that he had not completed an English test within the period of 24 months before making the visa application.  On 17 February 2012, the Delegate wrote to the Applicant and invited him to provide further information as there was evidence that false and misleading information had been provided in his visa application – namely, that he had provided a skills assessment reference which was not verified. 

4. On 6 March 2012, the Applicant requested, and the Delegate granted, an extension of time to provide relevant documents. The Applicant then sought a further extension on 25 April 2012. It appears, however, that the Applicant failed to provide the Delegate with any materials relating to that issue. On 22 February 2013, the Delegate refused the application on the ground that the Applicant did not satisfy the requirements set out in cl.485.215 dealing with competent English, and cl.485.221 which deals with skills assessment, those clauses being contained in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. The Applicant applied for review of the Delegate’s decision by the Tribunal on 15 March 2013.  On 2 January 2014, the Tribunal invited the Applicant to appear before it.  The hearing invitation expressly invited the Applicant to provide evidence that he had booked an International English Language Testing System, which I will refer to as “an IELTS”, or an occupational English test, which I will refer to as “an OET”.  The Applicant and his representative appeared before the Tribunal on 29 January 2014.  The Tribunal granted the Applicant a short period of time to book an IELTS test for the earliest available date, and indicated that the Tribunal would wait three weeks from the date of that test, and after that, if he managed to obtain the required score for competent English, he could seek a further extension of time from the Tribunal to try and obtain a skills assessment.

6. On 3 February 2014, the Applicant confirmed that he had booked an IELTS test on 8 March 2014.  The Tribunal did not receive any further evidence from the Applicant, nor did the Applicant seek a further extension of time.  On 31 March 2014 the Tribunal affirmed the decision under review, and in its statement of decision the Tribunal had this to say:

   “The issues in the present case are whether the Applicant has competent English, as required by clause 485.215, and whether he satisfies the criteria in relation to skills assessment, clauses 485.214 and 484.22. 

   Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged, either, firstly, an IELTS test score of at least six for each of the four test components;  or, secondly, a score in a test specified by the Minister.  Alternatively, a person has competent English if the person holds a passport of a type specified by the Minister, as is provided for in rule 1.15C(b). 

   … (t)he applicable instrument in this case is IMMI 09/73, the instrument in force when the visa application was lodged. 

   In the present case, the Applicant does not hold a passport of a type listed in IMMI 09/73 and, as such, cannot satisfy rule 1.15C(b). 

   …

   At the hearing, the Applicant said that he used the services of a fraudulent migration agent. … During the course of the hearing the Applicant admitted that he had known since at least April 2012 that there was a problem with the application. 

   The Tribunal said that it would grant the Applicant until the end of the week to book an IELTS test for the earliest available date.  The Tribunal would wait three weeks from the date of that test.  After that, if he managed to obtain the required score for ‘competent English’, he could seek a further extension of time from the Tribunal to try and obtain a skills assessment. 

   …

   As of the date of the decision, the Tribunal has not received any evidence that the Applicant undertook the test and achieved scores of six or more in each band.  No request for a further extension of time has been received. 

   The Tribunal finds that the Applicant does not have competent English as defined in r.1.15C and therefore he does not meet the criterion in clause 485.215. 

   …

   According to the application form the Applicant’s nominated occupation was cook and a skills assessment application had been lodged with Trades Recognition Australia (TRA). 

   At the hearing the Applicant explained that it was SNS Migration who prepared the application for him without taking instructions from him.  He was not qualified as a cook and he did not wish to nominate that occupation. 

   Prior to 1 October 2011 the TRA was not validly specified as the relevant assessing authority (Singh v The Minister for Immigration and Citizenship (2012) FMCA 145).  Therefore, if the Applicant satisfied the other criteria in issue, the Tribunal would have remitted the matter. 

   …

   In the absence of any skills assessment in relation any skilled occupation, the Tribunal finds that the Applicant has not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority. … (d)oes not satisfy the requirements of clause 485.221(1).”

7. The Tribunal concluded by affirming the Delegate’s decision. 

8. On 17 April 2014, the Applicant applied for judicial review.  The Applicant cited the following grounds in his application.  What I propose to do, is to deal with each of these grounds separately. 

9. The first ground is contained in the application that was filed – that the Tribunal did not take into account that the Applicant “had been a victim of fraud”.  Ground 1 would appear to suggest a failure by the Tribunal to have regard to a relevant consideration – namely, that the Tribunal did not take into account that the Applicant had been a victim of fraud. 

10. The First Respondent puts a submission that the alleged fraudulent actions of the Migration Agent, SNS Migration, who allegedly assisted the Applicant and provided a skills assessment reference which was not verified, did not subvert the Tribunal’s decision-making process.  I have come to the same conclusion.  The Applicant was informed of this issue by the Department on 17 February 2013, and was given an opportunity to comment and provide further information.  Any fraud visited on the Applicant was cured by the Tribunal.  

11. The Tribunal granted the Applicant further time to obtain an IELTS test result, and indicated that it would grant a further extension of time for the Applicant to try and obtain a skills assessment.  The skills assessment was the aspect of his visa application affected by the alleged fraudulent actions of the Migration Agent.  So what was anticipated was that he would obtain a skills assessment, and if he obtained the correct score, then he would be granted a further extension of time to put the other information before the Tribunal.  In these circumstances it was clear that the alleged fraud by the third party did not result in the Tribunal’s review function having miscarried. 

12. I turn now to the second ground, which is in these terms:

    “The Tribunal did not contact the Applicant or ask for any reasons why the Applicant did not provide them with his IELTS result and ‘They just sent the decision letter’.  The Applicant states that he did not attend the IELTS exam due to the illness of his wife.”

13. When I invited the Applicant to put submissions in support of his application today, he indicated that he had some evidence of his wife’s health at the applicable time.  I decided to allow the affidavit to be tendered.

14. Ground 2 suggests that the Tribunal acted unreasonably by proceeding to make its decision on the review without first contacting the Applicant.  In my view, the ground fails.  At the hearing of the matter on 29 January 2014, the Tribunal granted the Applicant further time to book an IELTS test and informed the Applicant that it would wait three weeks from the date of that test.  If he obtained the required score, then he could seek a further extension of time to try and obtain a skills assessment.

15. On 3 February 2014, the Applicant confirmed to the Tribunal that he had booked an IELTS test on 8 March 2014.  However, no results were provided to the Tribunal within the specified time, nor did the Applicant ring to request an extension of time before the three week period expired.

16. Ground 2 also contains an assertion that the Applicant did not attend the IELTS test due to the illness of his wife.  There is no evidence that the Applicant advised the Tribunal of this, or otherwise sought a further extension of time.  Consequently, there was nothing for the Tribunal to consider. 

17. As was pointed out by Bennett J in the case of SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475, the Court had this to say:

    “Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims: Abebe at [187] per Gummow and Hayne JJ.  It is not for the Tribunal to make the appellant’s case for him.  The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give, or to act as his ‘nursemaid’: Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 … at [199]-[200] per Allsop and Graham JJ - appeal allowed by the High Court but not on this point.”

18. In the circumstances, and in the absence of any evidence that the Applicant met the English language proficiency requirements of cl.485.215, it was reasonable for the Tribunal to proceed to make the decision on the review.

19. As no jurisdictional error has been identified, the application should be dismissed.

20. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 7 May 2015