Sara v Minister for Immigration - [2015] FCCA 348

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 348

Catchwords:
MIGRATION – Judicial review of Migration Tribunal decision not to grant skilled (provisional) (class v) visa – show cause application – refusal of adjournment by Tribunal – consideration of Tribunal process.

Legislation:

Migration Act 1958 (Cth)

MZYZE v Minister for Immigration and Multicultural Affairs & Anor[2013] FCCA 569
NAKX v Minister for Immigration and Multicultural Affairs [2003] FCA 1248
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Applicant:

VINAY KUMAR SARA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 957 of 2014

Judgment of:

Judge McGuire

Hearing date:

12 February 2015

Date of Last Submission:

12 February 2015

Delivered at:

Melbourne

Delivered on:

25 March 2015

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor Advocate for the Respondent:

Mr McDermott

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed 21 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 957 of 2014

VINAY KUMAR SARA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER CONTROL

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 21 May 2014 the applicant applied for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made 30 April 2014 and affirming a decision of the Minister’s delegate (“the delegate”) not to grant the applicant a Skilled (Provisional) (class VC) subclass 485 visa (“the visa”).
The matter is listed as a show-cause hearing before me.
The applicant appears before me unrepresented. He did not require an interpreter and I am satisfied that he understood and could properly conduct his application.
The applicant is from India. He came to Australia on a student visa but, before completion of his studies, he determined to make an application for a visa so as to enable him to work in Australia following the completion of those studies. He was recommended by a fellow student to “S & S Migration Services” who assisted him in lodging his application dated 16 March 2011.
On 15 March 2012 the department requested that the applicant provide documents in support of his application. Copies of correspondence (CB33) suggest that by this time the applicant was communicating directly with the department and them with him. A follow‑up request for documents was made to the applicant personally on 11 May 2012.
The delegate refused to grant the visa on the following bases:
a)the applicant did not provide evidence of English language proficiency being a required criteria pursuant to cl.485.215 of schedule 2 of the Migration Regulations 1994 (“the regulations”);
b)the applicant provided no evidence of skills assessment as required by the regulations; and
c)the applicant had not undertaken a medical assessment as required to satisfy the Public Interest criterion pursuant to the regulations.
The applicant applied to the Tribunal for a merits review on 11 July 2012.
On 18 March 2014 the Tribunal wrote to the applicant via his new agent inviting him to attend the hearing on 22 April 2014.
On 21 April 2014, the applicant submitted a medical certificate citing him being:
...unable to work from 19 April 2014 to 22 April 2014 inclusive.
The hearing was adjourned until 30 April 2014 and the applicant again invited to attend, with notice that no further adjournment would be afforded him without a satisfactory medical certificate.
On 30 April 2014 the applicant provided a response to the hearing invitation indicating that neither he nor his representative would be attending but including a further medical certificate from a different doctor certifying that the applicant would be:
...unable to continue his usual occupation for period 30 April to 1 May 2014.
No particulars of any medical condition were offered in either doctor’s certificate.
On 30 April 2014 the Tribunal proceeded with its consideration and determination of the application and affirmed the delegate’s decision. The Tribunal properly set out the requirements and criteria for the granting of a visa and found that there was no evidence before it that the applicant had successfully undertaken an English test within the prescribed period.
The application for judicial review was filed 21 May 2014. There is a supporting affidavit of the applicant annexing the Tribunal’s reasons and otherwise repeating verbatim the 10 paragraphs set out in his application under the heading “Grounds of Application.” Those “grounds” are:
1. Migration Review Tribunal has not understand the situation where I was coming from and how my life has been ruined by using bogus Migration consultancy is known as “S & S Migration Services”;
2. I have got refusal from the Immigration as well as Migration Review Tribunal, Migration Review Tribunal has not even given us some time to do the submissions.
3. I wasn’t satisfied with Migration Review Tribunal decision as Tribunal has not accept my medical certificate.
4. When I have submitted all documents with my application, there was no response, now they are in rushed me for hearing.
5. Eventually my case has been refused.
6. Just I have been bounced in between DIBP and MRT for two years and Tribunal opens my file without intimation to me and affirmed my not grant visa.
7. I did not have chance to make some submissions in regarding my situation how I wasn’t able to get all evidence to submit at Tribunal.
8. I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money.
9. I hope Federal circuit court has got Jurisdiction in this matter.
10. Or else Apex court might have Jurisdiction in my matter.
The applicant has not provided written submissions and declined the Court’s invitation for him to make oral submissions.
Given that the application is listed for a show-cause hearing and given the apparent lack of particularity in the applicant’s stated grounds of complaint, Mr McDermott, counsel for the first respondent, and out of an abundance of caution and courtesy to the applicant, and with reference to a recent decision of the Full Court in Prodduturi v Minister for Immigration and Border Protection[1], firstly agreed with my suggestion that the applicant be invited to elaborate on his application by way of evidence under affirmation but subject to cross‑examination and, secondly, attempted to consolidate his (Mr McDermott’s) understanding of the applicant’s 10 paragraphs referred to above and into justiciable issues.
[1] [2015] FCAFC 5
Mr McDermott suggested three points of argument from the applicant’s document. This “consolidation” was put to the applicant who agreed that they covered his areas of complaint and so as to allow the Court to properly understand those complaints. Thus, the matter was treated and summarised as follows:
a)that the tribunal should not have determined the review without the applicant being in attendance and that the matter should properly have been further adjourned on the provision of the applicant’s medical certificate;
b)that there was jurisdictional error in the Tribunal’s finding as to why the applicant could not meet the visa requirements; and
c)a consideration as to whether the Tribunal’s process was stultified by the conduct of the applicant’s first agent, S & S Migration Services.

Should the Matter Have Been Further Adjourned

Following the first adjournment, the Tribunal wrote to the applicant (CB101) on 23 April 2014 allocating a further adjourned date of 30 April. The following is included in that letter:
The Tribunal cancelled your hearing scheduled for 22 April 2014 due to your provision of a medical certificate stating that you would be unable to attend work. Please note that the Tribunal will not agree to any further postponement on this basis as such a certificate does not demonstrate that you are not fit to attend a Tribunal hearing. Any further medical evidence supporting a request to postpone will need to address your fitness to attend and participate in a Tribunal hearing.
If you are not able to attend the hearing, you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
As mentioned above, the applicant provided a Response to that advice dated 29 April, signed by his agent, indicating that neither the applicant nor the agent intended to appear at the hearing on the following day. The Response was accompanied by a second medical certificate dated 29 April (CB105) setting out:
Medical Certificate
This is to certify that
Mr Vinay Kumar Sara
3/1260 Glen Huntly Road
Glen Huntly VIC 3163
IS RECEIVING MEDICAL TREATMENT AND FOR THE PEIROD
30.4.14 to 1.5.14 inclusive
HE/SHE WILL BE UNFIT TO CONTINUE HIS/HER USUAL OCCUPATION
Dr S. Mahendran.
Counsel for the first respondent as the model litigant accepted that, at its highest, this correspondence including a medical certificate could constitute an application for an adjournment (although none was specifically sought).
I am of the view that the medical certificate provided is unsatisfactory so as to ground any sucessful application for an adjournment. Lindgren J in NAKX v Minister for Immigration and Multicultural Affairs[2] was confronted with an almost identical situation and his Honour opined at [6]
The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a Court hearing.
[2] [2003] FCA 1248
Further, my colleague Judge Riethmuller observed in MZYZE v Minister for Immigration & Anor[3] at [24]:
Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment.
[3] [2013] FCCA 569
This applicant had been granted an indulgence on what, in my view, was an unsatisfactory and unparticularised document purporting to be a medical certificate of unfitness. The applicant was put on notice when granted that indulgence. Nevertheless, he proceeded to provide a certificate in similarly unparticularised and unsatisfactory form. I am therefore satisfied that the tribunal had justification in exercising its discretion to proceed in the absence of the applicant. No further written or oral submissions were made in support of this argument. Accordingly, I find no merit in this ground.

Was there jurisdictional error in the tribunal finding that the applicant did not meet the requirements of the visa application?

Clause 485.215 of schedule 2 provides in respect of the criterion of an application for the particular visa, that the applicant have “competent English” as follows:
If a person applies for a General Skilled Migration Visa, the person has competent English 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:
1. specified by the Minister in an instrument in writing for this sub-subparagraph; and
2. 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 applicant was on notice as to this requirement by reason of the decision of the Minister’s delegate of 26 June 2012 where the following appears at page 3 (see CB49):
As you have not provided evidence of an IELTS test report with score of at least 6 for each of the 4 components, I am not satisfied that you have competent English as prescribed in regulation 1.5C(a)(i).
In a letter of 18 March 2014 the tribunal invited the applicant to appear at the hearing on 22 April. Specific reference is made in that letter to the English language competency requirement with a request for the provision of evidence.
The tribunal in its reasons correctly notes at [14] that the applicant in his own visa application form said that he had not undertaken an English test within the previous 24 months. No evidence was placed before the tribunal indicating him having undertaken that test at any subsequent time. The tribunal properly then proceeded to find that the applicant did not satisfy the competent English criterion required by r.1.15c. There is no error in the process undertaken by the tribunal. I find no merit in this ground of complaint.

Was the tribunal’s process stultified by the conduct of the applicant’s first migration agent, S & S Migration Services?

The applicant’s oral evidence under affirmation addressed this issue. At its highest that evidence did not allege a fraud by the agent on the tribunal. The applicant’s evidence was in respect of his relationship with the agent which might best be termed non-communicative. He gave evidence that he engaged and paid S & S Migration Services to lodge an application “to allow him to work and obtaining an apprenticeship” after the completion of his studies. The applicant claimed some confusion or naivety as to the precise visa being sought on his behalf but indicated his delegation of the process generally to the agent. The application for a visa itself (see CB21) does not disclose any fraud by reason of inclusion of false facts, dishonesty, or corruptive behaviour. I am satisfied that this applicant was aware of the nature of the application being presented on his behalf and which was confirmed by his evidence in this Court that he wanted a visa to allow him to work. In his letter of 9 July 2012 to the Tribunal, the applicant says (see CB68):
I have submitted all documentation to that consultant which I had thought “I was eligible for work permit”, they have lodged the visa and gave me one reference number and I was told to check through Immigration website for status of my application. I was not aware of anything that was happening until I got refusal from DIAC. I don’t even know that my “lodged visa application was 485 subclass application”; I have spent all time blindly in Australia since my application lodged.
The above statement is inconsistent generally with the correspondence in support of the visa application and of the applicant’s admissions in the witness box and generally incongruous with his receipt of the delegate’s decision.
I am of the view that the applicant himself alleges nothing more than a non-communicative relationship with his agent which at its highest might constitute negligent conduct but is not sufficient to ground a finding of fraud which is necessary to stultify the process of the Tribunal and constitute jurisdictional error. In SZFDE v Minister for Immigration and Citizenship[4] at [53] the Court states:
… There are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.
[4] (2007) 232 CLR 189
I am not satisfied that this ground of a complaint is made out.

Conclusion

Given that I find no merit in any ground of the applicant’s complaint, the application will be dismissed with an order for costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 25 March 2015