Sandhu v Minister for Immigration

[2014] FCCA 394

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 394

Catchwords:
MIGRATION – Migration Review Tribunal – Subclass 485 Skilled Graduate visa – English language test – test required to be undertaken in two years immediately prior to lodging the visa application – test undertaken after visa application lodged.

Legislation:

Federal Circuit Court Rules 2001 r.44.12(1)(a)

Migration Regulations 1994 reg.1.15C

SZFDE & Anor v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 96 ALD 510; (2007) 237 ALR 64; [2007] HCA 35

First Applicant: RAJWINDER KAUR SANDHU

Second Applicant: SUKHDEV SINGH BATTH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 996 of 2013

Judgment of: Judge Riley

Hearing date: 6 February 2014

Date of Last Submission: 6 February 2014

Delivered at: Melbourne

Delivered on: 6 February 2014

REPRESENTATION

Counsel for the First Applicant: The first applicant appeared in person

Solicitors for the First Applicant: The first applicant was not represented

Counsel for the Second Applicant: The second applicant appeared in person

Solicitors for the Second Applicant: The second applicant was not represented

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed on 5 July 2013 be dismissed.

2. The applicants pay the first respondent’s costs of the application fixed in the sum of $3,326.

3. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 996 of 2013

RAJWINDER KAUR SANDHU

First applicant

SUKHDEV SINGH BATTH

Second applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is a show cause hearing in an application to review a decision of the Migration Review Tribunal.  The first applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa on 8 February 2012.  The second applicant is her husband.  His application is dependent on the success of the first applicant’s.

2. The first respondent’s delegate refused the application on the ground that the first applicant was not able to demonstrate that she had competent English as that term was defined in r.1.15C of the MigrationRegulations 1994 (“the regulations”).

3. Regulation 1.15C of the regulations provided at the material time that, for Indian passport holders such as the first applicant, competent English was demonstrated by a specified type of English language test conducted in the two years immediately before the day on which the application was made.  It was necessary for an applicant to obtain a score of at least six for each of the four test components.

4. The first applicant in her visa application indicated that she had not undertaken a specified type of test in the two years prior to lodging her visa application.

5. The applicants sought review by the Tribunal of the delegate’s decision.  The first applicant sought various adjournments of the Tribunal’s hearings which were granted.  The first applicant claimed that she had a number of health and obstetric issues which the Tribunal accepted.  There was eventually a hearing before the Tribunal on 4 June 2013 at which the applicants appeared with the assistance of an interpreter.  The Tribunal proceeded to affirm the decision under review.

6. The Tribunal considered that the first applicant had not demonstrated that she had achieved the required score in an English language test of the specified type conducted in the two years immediately prior to lodging the visa application.  The Tribunal noted that the first applicant had completed such a test to the required standard in April 2013.  However, the Tribunal noted that such a test did not fit within the requirements of the regulations that the test be conducted in the two years immediately before the visa application was made.

7. The Tribunal also noted that the first applicant had provided some evidence of her medical conditions and explained to the Tribunal that, because of them, she had not been able to undertake the language test earlier.  However, the Tribunal noted that the regulations required the test to be undertaken in the two years immediately before the day on which the application was made and, in those circumstances, the Tribunal was not able to be satisfied that the first applicant met the relevant criteria for the visa for which she had applied.

8. The applicants filed an application in this court on 5 July 2013.  The application does not set out any grounds except to say that they:

   a)are “not satisfied with the MRT decision”; and

   b)want “to appeal against the Tribunal decision on [their] application.”

   The application was supported by an affidavit which said the same thing.

9. The applicants did not file any written submissions, but did file a letter from the Nicholson Street Specialist Centre which is dated 23 January 2014.  It seems to have been signed by a psychiatrist.  It says that the psychiatrist conducted a psychiatric examination of the first applicant on 9 January 2014 and 21 January 2014.  The letter recounts some of the first applicant’s history and urges the court to take into account the first applicant’s psychiatric condition.  It says that allowing her to get the visa that she seeks would ease a lot of her mental tension and pressure on her and allow her to adjust better to life in Australia.  The psychiatrist said that the first applicant had a history of ongoing acute and subacute severe symptoms and problems of mental tension, worry and fear, anxiety, stress and depression associated with uncertainty over her visa status in Australia.  Otherwise, it simply recounts matters apparently stated by the first applicant to the psychiatrist.

10. Before the court today, the first applicant said that she had told the Tribunal that she had a lot of emotional and psychiatric problems.  The Tribunal referred to those issues in paragraphs 15 and 17 of its reasons for decision.  The Tribunal refers to medical records and the first applicant’s explanation for not being able to undertake the English language test before April 2013.

11. It does not seem to me that there is any error on the Tribunal’s part in the way in which it dealt with the first applicant’s medical conditions.  The Tribunal evidently granted a number of adjournments to the first applicant for reasons connected with her health.  It seems to me that there was little else that the Tribunal could have done in view of the very clear wording of the relevant regulations.

12. The first applicant then said that:

    a)the Tribunal hearing only lasted 30 minutes;

    b)the Tribunal simply focused on the timing of the test; and

    c)the Tribunal said that the legislative scheme had changed.

13. The Tribunal was required by the applicable legislation to be satisfied of certain matters including that a specified type of English language test had been successfully conducted in the two years immediately prior to the lodging of the application.  The Tribunal had to focus on the relevant issues and had to draw them to the first applicant’s attention.  There was no error in the Tribunal making it very clear to the first applicant that the regulations required her to have achieved the requisite score in a relevant test conducted in the two years immediately prior to the lodgement of her visa application.

14. The next factor raised by the applicants today was that the migration agent did not advise them properly.  The applicants have not substantiated that allegation with any evidence.  However, I note that the High Court in the case of SZFDE & Anor v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 96 ALD 510; (2007) 237 ALR 64; [2007] HCA 35 held that mere negligence on the part of a third party would not be sufficient to stultify the Tribunal’s procedure such as to give rise to jurisdictional error. There is no evidence before the court to the effect that the migration agent was negligent. Even if there were, that of itself would not be sufficient to demonstrate jurisdictional error.

15. It is clear from the court book that the first applicant did not undertake the relevant test in the two years immediately prior to lodging her visa application.  She said as much in her application for the visa in answer to a question at CB13.  Her migration agent also implied in a letter at CB80 that the first applicant had completed the relevant test in April 2013, but not previously.  The agent did allude to the possibility that some other tests had been undertaken, but he did not submit them.  There is nothing to indicate that, even if the first applicant did sit other tests, she actually achieved the required score.

16. The first applicant also said to the court today that someone else that she was aware of had done the same thing as her and lodged an application without submitting the test results and he got through.  The first applicant has not provided any details of that case.  In any event, just because there might have been some error made in another case does not mean that the same error should be made in this case.  The regulations are clear.  There needs to be a satisfactory test undertaken in the two years immediately prior to the lodging of the visa application.

17. The second applicant said to the court today that the first applicant was quite unwell.  He said that the difficulties she has suffered have affected her mind and have meant that she is unable to take care of their baby.  He said that the baby has had to be sent to India.  The court is not able to take account of such matters.  The regulations are clear.  They do not give any scope for compassionate factors to be taken into account.  The requirement for competent English to be demonstrated in particular ways are mandatory.  Neither the court nor the Tribunal has any discretion to waive those requirements.

18. In all of the circumstances it seems to me that the first applicant does not have an arguable case.  It seems to me that the application to this court must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 7 March 2014