Patel v Minister for Immigration

[2014] FCCA 641

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 641

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), reg.1.15C, Sch. 2

Federal Circuit Court Rules 2001 (Cth), r.44.12

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18

First Applicant: YOGINIBEN JIGNESHKUMAR PATEL

Second Applicant JIGNESHKUMAR SANKALCHAND PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1577 of 2013

Judgment of: Judge Nicholls

Hearing date: 7 March 2014

Date of Last Submission: 7 March 2014

Delivered at: Sydney

Delivered on: 7 March 2014

REPRESENTATION

Applicants: Appeared in person

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application made on 11 July 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicants pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1577 of 2013

YOGINIBEN JIGNESHKUMAR PATEL

First Applicant

JIGNESHKUMAR SANKALCHAND PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Extempore; Revised from Transcript)

1. I have before today me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act”) on 11 July 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 24 June 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of Skilled (Provisional) (Class VC) visas (“the visas”) to the applicants.

2. The evidence before the Court is the bundle of relevant documents that the Minister has filed in these proceedings (“the Court Book” – “CB”) and Yoginiben Jigneshkumar Patel’s affidavit made on 11 July 2013, filed at the same time as the application to the Court.

Background

1. The applicants, Yoginiben Jigneshkumar Patel (“the applicant”) and Jigneshkumar Sankalchand Patel (“the second applicant”), are wife and husband, and are both citizens of India (CB 1 to CB 3). They applied for the visas on 3 May 2012 (CB 1 to CB 14). Mrs Patel was the “primary” applicant. This meant she sought to satisfy the requirements for the grant of the visa, and her husband, applied as a member of her family unit (CB 2 to CB 3).

2. The Minister’s delegate refused to grant the visas on 16 January 2013 (CB 79). The basis of the delegate’s decision was that the applicant did not satisfy “reg.485.215” of the Migration Regulations 1994 (Cth) (“the Regulations”) as she was required to do such that the visa must be granted. The second applicant’s application was consequently refused because he did not satisfy “reg.485.411” of the Regulations (CB 79 to CB 87).

3. The applicants applied for review to the Tribunal on 1 February 2013 (CB 89 to CB 99). They were represented by a registered migration agent (CB 95). They attended a hearing before the Tribunal on 14 June 2013 (CB 116).

Relevant Legislation

1. There is no dispute before the Court today as to the relevant version of the relevant regulations at the time the application was made. They were in the following terms:

   1)Clause 485.215 of Schedule 2 to the Regulations, required the applicant, or at least the primary applicant, to have competent English:

   “485.215 The applicant has competent English”

   2)Regulation 1.15C of the Regulations stated at the time of the application:

   “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 the type specified by the Minister in an instrument in writing for this paragraph.”

   [Emphasis added.]

2. By letter dated 24 May 2013, the applicants’ registered migration agent wrote to the Tribunal advising that the applicant was unable to study for the International Language Testing System (“IELTS”) due to her mother-in-law’s “serious medical condition” (CB 111). She was therefore unable to “achieve a satisfactory result” (CB 111).

3. The migration agent further advised that the applicant had “booked” a further test for 6 June 2013 where he said she was “confident to achieve satisfactory test result (which will be available by 30th June 2013 and will submit to the MRT once received)” (CB 111 to 113).

4. The applicants attended a hearing before the Tribunal on 14 June 2013 (CB 116). The Tribunal’s references to what occurred at the hearing are set out variously in its decision record ([10] – [12] at CB 124). I note that the applicants were given the opportunity, by order made at the first Court date in this matter on 31 July 2013, to file any further evidence by way of affidavit (see Order 4), including any evidence they may have wished to bring to challenge what the Tribunal said had occurred at the hearing. No such evidence has subsequently been provided to the Court.

5. The Tribunal’s account of the hearing, set out in its decision record, reveals that the following was put to the applicants:

   1)The reason their application had been refused by the delegate was because the applicant had not provided evidence that she had “competent English” ([10] at CB 124).

   2)That to show “competent English” the applicant must either hold a passport of certain specified countries or provide evidence that she had “achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made” ([10] – [11] at CB 124).

   3)The Tribunal recorded that it told the applicant that if she had such evidence she should provide it to the Tribunal ([10] at CB 124).

6. The Tribunal’s decision record indicates that the applicant gave evidence that:

   1)She did not have a valid passport of a specified country, because she had an Indian passport which was not such a country ([11] at CB 124).

   2)Had never sat for an Occupational English Test (“OET”) (noting that this was one of the two sets of tests specified by the Minister for the purpose of reg.1.15C of the Regulations at that time) ([12] at CB 124).

   3)She had sat for IELTS tests previously, but she did not pass in the manner required, and “…the tests were not conducted in the 2 years immediately before the day on which the application (for the visa) was made...” ([12] at CB 124). The Tribunal noted that the application was made on 3 May 2012 and therefore the relevant period for having sat for the IELTS test was from 3 May 2010 to 3 May 2012 ([12] at CB 124).

   4)She had “sat another IELTS test on 8 June 2013”. She asked the Tribunal “to accept the result of this test, which should be published soon, if it is satisfactory.” ([12] at CB 124).

   5)She referred to her ill health as the reason she had not achieved a “satisfactory IELTS result” ([12] at CB 124).

7. What can be reasonably inferred from the Tribunal’s reasoning, on a fair reading, although some express findings would have been helpful, is that the applicant did not satisfy the requirement at cl.485.215 of Sch.2 to the Regulations (as it was at the relevant time) because she had not provided evidence at the time of the application for the visa that she had competent English, with reference to reg.1.15C of the Regulations. The applicant’s husband’s application was refused as a consequence.

The Application to the Court

1. The sole ground of the application to the Court is in the following terms:

   1. Migration Review Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.

2. The relevant parts of that affidavit (see Mrs Patel’s affidavit made on 11 July 2013 at [3]), refer to the applicant’s ill health and to family health problems in India, which she says prevented her from concentrating on her studies and confirms that she did not achieve the required results in the IELTS test due to those health problems. Further, she states that she requested further time from the Tribunal to sit for another IELTS test, but that was refused. The applicant complains that the Tribunal was in error and “unfair” in not allowing her this time.

Before the Court

1. The applicants appeared in person at the first Court date. They were assisted by an interpreter in the Hindi language. I sought to explain to the applicants the advantage of raising “legal arguments” referable to the applicant’s circumstances and the relevant legislation (including the Regulations). I noted, in effect, that the Court could not substitute a different decision for that made by the Tribunal. The applicant said that she had not sought legal advice but intended to do so.

2. Given the nature of the ground of the application and the relevant regulatory requirements (see [6] above) I set the matter down for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). As stated earlier, the applicants were given the opportunity to file any amended application and evidence in support. Nothing further has been filed.

3. At the hearing today the applicants again appeared in person. They were assisted by an interpreter in the Hindi language. Mr M Smith of counsel appeared for the first respondent.

Adjournment Application

1. At the beginning of the hearing today, the applicants sought an adjournment. The adjournment request was put on the basis that they wanted more time to prepare their case. As I understood it, they said that they had tried to contact lawyers, but that their fees were too high. Further, that while they had spoken to a “few people” they were not lawyers, and therefore had not received proper legal advice. The applicant said it was “very hard” to specify a timeframe for how much more time was required, but when pressed nominated four months.

2. When asked for an explanation as to why they had not obtained legal advice in the, at least, seven months since the first Court date, longer if the time from the date of the application is included, available to them, the applicants made some reference to health and family problems and emphasised the lack of sufficient funds.  The applicants stated that their situation had created “tension” and “depression”. I understand that they wished for these matters to take be into account in whether to grant the adjournment. I did take them into account.

3. The Minister opposed the granting of the adjournment, essentially, for two reasons, both flowing from the submission that no useful purpose could be served by granting any further time to the applicants.  First, there was no indication that the applicants would be able to obtain legal advice in the foreseeable future. The applicants had already had approximately seven months, and that, despite their capacity to do so earlier, no adjournment application had been foreshadowed.

4. Second, the Minister said that the proceedings were bound to fail, therefore there was no useful purpose for granting the adjournment application. Given the nature of that submission, I did not rule on the adjournment application at that time, but heard submissions on the legal issue in these proceedings. Having heard those submissions, it was, in my view, appropriate that the application for the adjournment be refused as the proceedings were bound to fail. In that sense also, the application fails to raise an arguable case for the relief sought [see further below].

5. In relation to the Minister’s submissions, I accept the Minister’s position. I note, in particular, that I could not be satisfied that there was any prospect, nor was anything put to me to assist me in reaching a level of satisfaction, that the applicants could do in the next four months what they have not done in the well over seven months that had been available to them. As such, despite the applicant’s submissions, the adjournment request is refused.

Consideration

1. Turning to the substantive issue, I note that the central issue before the Court is whether the application that has been made raises an arguable case for the relief that the applicants seek. Although it is not noted in the orders sought in the application, I accept that the applicants would also be seeking that the matter be sent back to the Tribunal for consideration.

2. The applicant’s sole ground of the application, and the complaint which the applicants have sought to express to the Court, misconceives the relevant requirement at cl.485.215 of Sch.2 to the Regulations (as relevant to the application) and reg.1.15C(a)(ii) of the Regulations. That is, that at the time of making the application the applicant “has competent English”. This requirement could be satisfied, in the applicant’s case, in two relevant ways. The applicant produced no evidence that she could satisfy these requirements. Further, her evidence to the Tribunal had the effect that she could not do so.

3. Regulation 1.15C of the Regulations sets out how an applicant can be said to have competent English. As the applicant did not have a passport from a specified country (see further above), reg.1.15C(a) of the Regulations applied to her. Each of the items set out at regs.1.15C(a)(i), (ii) and (iii) of the Regulations require certain things to be done. I note that the relevant version of the Regulations at the time of the application is set out above (at [6]) and at [7] of the Tribunal’s decision.

4. The applicant’s evidence was that she had only sat for one set of tests (IELTS) and had not achieved a satisfactory result. In any event, these tests had not been conducted in the two years immediately preceding the application for the visas. Thus she did not satisfy reg.1.15C(a)(iii) of the Regulations. This is not a case where the relevant criterion is expressed as allowing evidence to “accompany” the application. This, for example, can be contrasted with the criterion at cl.485.216 of Sch.2 to the Regulations at the relevant time which also, but separately, applied to the applicant.

5. In short, the applicant’s evidence, which is recorded and reported by the Tribunal, was that the applicant only took one of the type of test for the purposes of reg.1.15C(a)(i) of the Regulations. There was no evidence that any such tests, or indeed any tests, were conducted in the two years immediately before the day on which the application was made. This is with reference to reg.1.15C(a)(ii) of the Regulations. The applicant’s evidence with reference to reg.1.15C(a)(iii) of the Regulations was that she had not achieved a score that had been specified as being a “satisfactory” score. In these ways, the applicant could not meet a key part of the requirement for the grant of the visa.

6. In relation to the applicant’s complaint on the procedural fairness issue, as the Minister submits, in these circumstances the Tribunal was not obliged to provide the applicant with a further opportunity to provide evidence of the results of the test that she sat on 8 June 2013. Any such extension of time would have been of no assistance to the applicant as the test had not been conducted in the two years immediately preceding the date of the visa application.

7. The Tribunal in this regard specifically referred to the applicant’s evidence and request for the Tribunal to “wait” and accept the result of that test if it were to be “satisfactory” and consider the applicant’s reference to her ill health (see [12] at CB 125).

8. It must be said that the Tribunal’s reported response to the applicant lacks clarity. Indeed it is also not clear whether the Tribunal made any finding in relation to the applicant’s request. From what is stated at [12] (at CB 125), it appears the Tribunal’s response to the applicant was that it had no discretion to take into account her ill health. While this, in the circumstances of the regulatory requirements at that time that I have already referred to, may be true, it does not address the other aspect of the applicant’s request. Namely that the Tribunal “accept” the results, if satisfactory, of her latest IELTS test.

9. However, it is clear that the “satisfactory” results of any such test could not have assisted the applicant given the clear regulatory requirement. On balance I am prepared to accept, when regard is had to the decision record as a whole, that the Tribunal meant to include in this reference that the Tribunal had no discretion to accept any results of any test unless it was conducted in the relevant period. This view is allowed, on a fair reading, given the Tribunal’s earlier references to the regulatory requirement that any such tests must have been conducted in the relevant two year period.

10. Further, the complaint that appears in the applicant’s affidavit, made on 11 July 2013, that the Tribunal did not afford her further time to take another test fails for the same reason. I note that this is not a matter where the Tribunal in its conduct can be said to have “unreasonably” exercised its discretion to adjourn the conduct of the review (Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18). I agree with the Minister that given the plain requirements of the relevant regulatory scheme at the time of the applicants’ application, any further time provided by the Tribunal would have been a futile exercise.

11. The sole ground of the application, and the broader complaints made in the applicant’s affidavit and by the applicants in Court today do not raise an arguable case for the relief sought.

Conclusion.

1. In these circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly. Further, the Minister’s application for costs rests ultimately with the discretion of this Court. The Rules of this Court set out what would generally be considered to be reasonable in various circumstances. The Minister’s request today is consistent with what is contemplated by the Rules of this Court for matters of this type. The applicants’ lack of funds is not a satisfactory reason not to make the order. The amount the Minister seeks is reasonable in the circumstances. I will also make the order in the amount sought by the Minister.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  3 April 2014

CORRECTIONS:

The catchwords were corrected by replacing “Refugee Review Tribunal” with “Migration Review Tribunal”.