Patel v Minister for Immigration
[2015] FCCA 1303
•11 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1303 |
| Catchwords: MIGRATION – Judicial review – refusal to grant skilled migrant visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.353 Migration Regulations1994 (Cth) |
| Minister for Immigration and Citizenship v Li & Anor (2013) 297 ALR 225 Raman v Minister for Immigration and Citizenship [2012] FCA 1312 |
| First Applicant: | BHARATKUMAR AMBALAL PATEL |
| Second Applicant: | URVISHABEN BHARATKUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 698 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 11 May 2015 |
| Date of Last Submission: | 11 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 11 May 2015 |
REPRESENTATION
| The Applicants: | Appeared in person |
| Counsel for the Respondents: | Mr Hutton |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed on 15 April 2014 is dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $4,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 698 of 2014
| BHARATKUMAR AMBALAL PATEL |
First Applicant
| URVISHABEN BHARATKUMAR PATEL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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.
The applicants, Mr and Mrs Patel, filed an application for review of the Migration Review Tribunal’s decision with this court on 2 July 2014. The Registrar made various directions for trial on 2 July 2014. The applicants did not file any further material and did not file any written submissions. The applicants acknowledged receiving the Minister’s written submissions prior to today’s hearing. This is a hearing for judicial review and is not a hearing on its merits.
The applicants applied for a skilled migrant visa on 24 December 2009. On 18 January 2013 a Delegate of the Department refused the applicants’ application for a visa on the grounds that the primary applicant, Mr Patel, did not satisfy clause 885.221 of schedule 2 of the Migration Regulations1994 (Cth), as he did not receive a qualifying score when he was assessed with respect to the visa. The Delegate’s decision, which appears at Court Book (CB) at pages 72 to 84 of the Court Book sets out in detail the requirements under the Act and schedule 6B of the Regulations with respect to the qualifying scores for the skilled visa application. The primary applicant needed to receive a total score of 120 in order to qualify for the visa. He received a qualifying score of 110. The applicant received 60 points for his occupation qualifications. That was the highest score he could receive in his nominated occupation. He received 30 points for his age at the time of his application and, again, that was the highest score that he could receive. He received 15 points for his English language qualifications, and that is because on his English language test he was assessed as having competent English, which provides for a score of 15, and this is set out at part 6B.3 of the Regulations. The highest score possible is 25 points for proficient English. The applicant received five points for his education qualifications in Australia.
It is apparent from CB 21, which is a letter from the primary applicant to his case officer, at the time of making the application for his visa in 2009 that he was aware that it was necessary to receive a score of 7 in the English test and he referred to not being able to supply the English test because it had become damaged. So it’s certainly clear that at that stage he had some sort of awareness about the requirement for the English language test, although it is open to interpretation as to whether he knew about the specific requirements under the legislation.
In any event, that is not critical because it is certainly clear that by October 2012 he was aware that he needed more points in the English test, and this is because of the letter sent by the Department to the applicant on 9 October 2012, which states specifically that in the applicant’s self-assessment he had claimed points for proficient English, whereas the test that he undertook on 22 August 2009 did not meet the requirements for proficient English, which meant that he was unable to claim 25 points based on his English test result.
The applicant wrote to the Department via email on 11 November 2012 with respect to seeking clarification about the English test. The email and the response appears at CB 64 to 66. The letter from the case officer makes it clear that the applicant had 28 days from the date of request from the case officer to explain how he was going to achieve the extra points he needed in order to meet the required points for the skilled visa. Specifically it says that he may be able to do this by providing a new test with a score of seven or better in each of the four bands, or by providing a booking receipt showing that he is booked in for a new test, or by providing evidence of paid work experience in his occupation “for 12 months in the four years before you lodged your application”. That email makes very clear the options open to the applicant and what he needed to do to rectify his situation.
The Delegate then issued its decision on 18 January 2013, which appears at CB 67 to 84, refusing the application. The applicants then lodged an application for review of the Delegate’s decision. At CB 102 there is a letter from the primary applicant to the Tribunal dated 10 December 2013. He refers to the upcoming hearing date and encloses a letter from his psychologist. He says he has been depressed and unable to concentrate and has booked in for another test on 18 January 2014. He asked for an extension of time. Significantly, he states in that letter that he was aware that he was supposed to have his English test score by this time.
At CB 108 there is a case note file which sets out a telephone call from a case worker to the applicants’ representative referring to the hearing response form that the applicants returned, which appears on CB 106 and 107, where the applicants indicated that they did not want to take part in the Tribunal hearing which was scheduled for 11 December 2013. They also indicated that their representative would not be attending that hearing. The case officer rang to clarify the applicant’s position, noting that it seemed that the applicant was asking for additional time to sit for the test rather than seeking a waiver of the hearing requirement.
CB 109 is another case note indicating a phone call from the representative saying that the primary applicant did not want to have a hearing, but did want the Tribunal Member to delay making a decision until after he had sat the English test. The case officer noted telling the representative that there were two options: either to lodge a postponement request in writing if he wanted the hearing to be delayed or a request in writing that the decision be made on the papers after a particular date. The case officer notes telling the representative that if the applicant waived his right to a hearing without requesting the Member delay the decision, then the Tribunal Member could decide the matter at any time.
CB 111 is a letter from the primary applicant to the Tribunal dated 10 December 2013 acknowledging the invitation to appear before the Tribunal and seeking that the Tribunal delay finalising his application until 3 February 2014, noting that he had booked his test for 18 January 2014 and he stated that he would submit his results prior to 3 February 2014.
CB 110 is a further case note from the case worker to the applicant’s representative indicating that the Tribunal Member had noted that the applicant had declined the invitation to attend a hearing and opted to make a further documentary submission and informed the representative that the applicant would have until the close of business on 31 January 2014 to make any final submissions.
CB 112 contains an email exchange between the applicant’s migration agent, who wrote on 4 February 2014 stating that the applicant was unable to achieve the required score and that he was so confident of getting that score that he had applied for a re-evaluation of his test score and sought a further adjournment. The Tribunal Member granted a further extension until 14 March 2014.
There is no evidence that the applicant communicated any further with the Tribunal. The Tribunal Member issued her decision dated 24 March 2014 affirming the Delegate’s decision not to grant the visa. The Tribunal Member sets out the requirements to qualify for the skilled resident visa and sets out the points that the applicant received, which totalled 110 points. That is 10 points short of the qualifying 120 points.
In the applicant’s application for judicial review the applicant complains that the Tribunal did not afford him procedural fairness because the Tribunal proceeded to make its decision without waiting for further documents from the applicant and failed to give the applicants an opportunity to satisfy the points test. He went on to refer to a decision of Minister for Immigration and Citizenship v Li & Anor (2013) 297 ALR 225 in support of his contention that the Tribunal’s decision was unreasonable.
The decision of Minister for Immigration and Citizenship v Li is quite different to the circumstances in this case. In that case the High Court found that the Tribunal had exercised its decision unreasonably because it had failed to grant the applicant an adjournment in circumstances where the applicant had requested an adjournment to the Tribunal pending a review of the Trades Recognition Australia, who had carried out a skills assessment on the applicant and where the applicant had provided a letter stating that there had been errors in that decision and had asked for that decision to be reviewed. She sought an adjournment pending the review of the Trade Recognition Australia’s marks.
When the Tribunal refused the adjournment it did not refer to the legislation and did not refer to the applicant’s specific application for adjournment, but simply said that the applicant had had plenty of opportunities to put her case forward. It was the failure to determine the refusal to grant the adjournment on any other basis other than stating that the applicant had had sufficient opportunities to present her case which made the decision arbitrary and as such unreasonable so as to be a jurisdictional error.
It was clear in that case that the delay was not due to any fault of the applicant, nor of her migration agent, and there was no suggestion that the decision had been based on any balancing of legislative objectives, as set out in section 353 of the Migration Act1958 (Cth), which talks about the Tribunal reviewing a decision being not bound by technicalities and acting in accordance with substantial justice and merits of the case.
The circumstances of that case do not apply here because it is quite clear that the primary applicant sought an adjournment, or more properly a delay in a decision on two occasions and was granted that delay on the two occasions. It is not a case where the applicant sought a further adjournment and that was refused. Even if he had sought a further adjournment, then the decision of Yates J in Raman v Minister for Immigration and Citizenship [2012] FCA 1312 is relevant here, as that was a case that involved several adjournment applications in order for an applicant to sit a National Accreditation Authority for Translators and Interpreters test. In that case the applicant had been granted several adjournments. On the last occasion when he sought a further extension the tribunal refused it. Yates J noted at paragraph 49 of his decision that the Tribunal is not obliged to indefinitely postpone finalising its review and was not obliged to postpone the finalisation of its review whenever the applicant informed the Tribunal that he intended to sit for another test. But looking at it logically, if that was the case, that an applicant would be able to delay a Tribunal’s review ad infinitum.
In this case ground 1 of the application for review must fail because it is clear on the evidence that I have set out that the applicant was accorded procedural fairness and was given two opportunities to satisfy the points test.
The second ground complains that the Tribunal failed to conduct a review of the applicant’s application and refers to the Tribunal failing to consider the applicant’s circumstances and making a decision without giving the applicant an extension of time to provide the test result. It’s clear that that cannot stand because, as I have just indicated, he was given two opportunities to provide the test result. He was unable to provide the score required and there is no evidence that he even sought a further adjournment, let alone was refused one.
He also complains that the Tribunal did not conduct a hearing of the matter. And again, that cannot stand because it is clear from the passages from the Court Book that I set out earlier that the applicant was expressly given the opportunity to attend the hearing and elected not to. Even when that was explained, to the agent, the applicants still elected not to attend the hearing, but simply asked that the decision be postponed. His application to postpone the decision was granted on two occasions.
The applicant also complains that the letter from the psychologist was not considered. Again, that is plainly wrong, because at paragraph 5 of the Tribunal’s decision there is specific reference to the psychologist’s letter, but also the psychologist’s letter was attached to the first letter by the applicant seeking the adjournment and that adjournment was granted.
He then complains that the Tribunal failed to grant further extensions for the applicant to comply and gave the decision in haste. That complaint cannot stand in circumstances where the initial decision of the Delegate was made on 18 January 2013. And the application for a visa had been made over three years previously, and the review decision was not made until 24 March 2014. On that timeline it is impossible to see how it could be said that the Tribunal made the decision in haste. It is also not reasonable to complain that the Tribunal did not grant further extensions when the applicant conceded during this hearing that he did not make any further applications for an extension.
The other issue that the applicant raised during the course of the hearing is that the Tribunal should have given him an opportunity to get 12 months work experience so that he could increase his score. In that regard, as Counsel for the Minister pointed out, he was referring to part 6B.5 of the Regulations, which specifically state that an applicant employed in Australia in the nominated skill, occupation or a closely related occupation for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made, may be able to get 10 points for that experience. It is quite clear that that is a retrospective provision. The 12 months work experience can only be gained in the period four years before the visa application is made, that is, that work experience would have had to have taken place in the four years prior to 24 December 2009. Even if there had been a request to adjourn the decision to enable the applicant to gain the work experience, and there is no evidence that that request was ever made to the Tribunal, it would have been futile for the Tribunal to grant an adjournment on that basis because of the retrospective nature of that regulation. Therefore, ground 2 of the application for judicial review must also fail.
For these reasons I dismiss the application for review and turn to the issue of costs.
The costs that the Minister could ordinarily seek under the scale would be $6825, but the Minister is seeking costs fixed in the sum of $4500 on the basis that that is the actual costs incurred. As costs follow the event in these types of proceedings, I will order the applicants to pay the Minister’s costs in the sum of $4500.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 19 May 2015
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