Patel v Minister for Immigration
[2013] FMCA 185
•18 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 185 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled work visa – applicant unable to demonstrate English competency to the required standard – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Applicant: | BHAVESHKUMAR PANKAJBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2528 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 18 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2013 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2528 of 2012
| BHAVESHKUMAR PANKAJBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Migration Review Tribunal (Tribunal). The decision was made on 18 October 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Patel, a skilled (provisional class) VC visa.
The background is that Mr Patel applied to the Minister’s Department for the visa on 19 April 2011. That application was refused by a delegate on 20 April 2012. The delegate refused the visa on the basis that Mr Patel did not satisfy clause 485.215 in Part 485 of Schedule 2 to the Migration Regulations 1994 (Regulations), because he did not have competent English. Mr Patel sought review by the Tribunal on 24 April 2012. On 1 August 2012 the Tribunal invited Mr Patel to attend a hearing on 31 August 2012. Mr Patel responded on 22 August 2012 accepting that invitation and advising that he proposed to undertake at least one further test on 1 September 2012.
At the Tribunal hearing it appears that reference was made to two further tests that Mr Patel proposed to take. The results of those tests unfortunately did not satisfy the visa criterion and were supplied to the Tribunal. The Tribunal noted in its decision at [9] the requirements of clause 485.215[1]:
[1] Court Book (CB 105-106)
‘Competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ under r.1.15C if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The Tribunal also referred to Court decisions bearing on the interpretation of the Regulations. The position is that the Tribunal would be required to take into account any test result prior to its decision that satisfied the competency requirement.
These proceedings began with a show cause application filed on 5 November 2012. Mr Patel continues to rely upon that application. The application contains one ground which asserts that the Tribunal did not give him enough time to re-assess his International English Language Testing System (IELTS) test results. I take this to mean that Mr Patel considers that he should have been given more time to attempt to obtain a passing score.
The application is supported by a short affidavit by Mr Patel made on 25 October 2012. In that, Mr Patel confirms that he considers the Tribunal did not give him enough time to re-assess his IELTS result. He advances the opinion that he was sure to get a better result on re-assessment. I have before me as evidence also, the court book filed on 3 December 2012.
In my view, Mr Patel has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. The simple fact was that at the time of the Tribunal decision Mr Patel was unable to satisfy a necessary criterion for the grant of the visa he sought, namely demonstrated competence in English by an IELTS test score of at least six in each of four test components of speaking, reading, writing and listening.
The Tribunal noted at [33] of its reasons[2] that at the time of the hearing Mr Patel had undertaken the test nine times without obtaining the necessary score results. He made two further attempts after the Tribunal hearing but was again unsuccessful.
[2] CB 108
While Mr Patel held confidence he could have done better if he had more time, there was no obligation on the Tribunal to provide additional time. Indeed, it appears that Mr Patel’s confidence has not been borne out. Mr Patel told me in his submissions today that although he has undertaken the test again he has not yet obtained the scores necessary to satisfy the visa criterion.
I should note that Mr Patel appeared in person by phone today without the assistance of an interpreter. From my exchanges with him I am satisfied that Mr Patel has good conversational English. He told me that at various times he has obtained a score of six or better in one or more elements of the test, but he has been unable to obtain a score of six or better for all four elements of the test in the one test. He puts this down to nervousness and other difficulties he has had at various times.
It is unfortunate that for whatever reason, Mr Patel has to date been unable to satisfy the visa criterion. The criterion is an arbitrary one but some standard needs to be set in order to determine competency in various elements of speaking, reading, writing and listening in English. The necessary criterion having been established in the Regulations, the Tribunal was bound to apply it. It did not do so unfairly in any legal sense.
I will order that the application be dismissed, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Patel did not wish to make any submissions on costs.
I will order that the applicant pay the first respondent’s costs and disbursements of an incidental to the application, in the sum of $3,239 in accordance rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 19 March 2013
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