Savsani v Minister for Immigration

[2014] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAVSANI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 213

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal unreasonably refused requests by the Applicant to provide evidence of competent English – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), regs.1.03, 1.15C, 485.215

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Border ProtectionvSingh [2014] FCAFC 1
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417

Minister for Immigration v Li (2013) 87 ALJR 618

Rahman v Minister for Immigration [2012] FCA 1312

First Applicant: ANKURKUMAR NARANBHAI SAVSANI

Second Applicant: NIRALI ANKURKUMAR SAVSANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 137 of 2013

Judgment of: Judge Emmett

Hearing date: 12 February 2014

Date of Last Submission: 12 February 2014

Delivered at: Sydney

Delivered on: 12 February 2014

REPRESENTATION

The applicants appeared in person.

Counsel for the Respondents: Mr Patrick Knowles

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 137 of 2013

ANKURKUMAR  NARANBHAI SAVSANI

First Applicant

NIRALI  ANKURKUMAR SAVSANI
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 9 January 2013, and handed down on 10 January 2013.

2. The applicants claim to be citizens of the Republic of India. The second applicant is the wife of the first applicant and her application for a visa is dependent on the outcome of the first applicant (“the Applicant”). The second applicant has not made any application for a visa in her own right.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 14 April 2008, the applicants arrived in Australia having departed legally from India on passports issued in their own names and student visas issued on 20 February 2008.

2. On 12 March 2011, the Applicant lodged an application for Skilled (Provisional) (Class VC) (subclass Skilled Graduate - 485) visas with the Department of Immigration and Citizenship (“the Department”).

3. On 29 March 2012, the Delegate refused the Applicant’s application for Skilled Graduate visas.

4. On 5 April 2012, the applicants lodged an application for review of the Delegate’s decision by the MRT.

5. On 9 January 2013, the MRT affirmed the decision of the Delegate not to grant the visas.

6. On 24 January 2013, the applicants filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. The criteria for the grant of a 485 Visa are set out in Schedule 2 to the Migration Regulations 1994 (the “Regulations”).

2. Clause 485.215 of Schedule 2 established a visa criterion that the Applicant have “competent English”. At the relevant time, the term “competent English” was defined under Regulation 1.15C of the Regulations 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 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 writing for this paragraph.

3. A “General Skilled Migration visa” for the purposes of Reg 1.15C included a 485 visa (see Reg1.03 of the Regulations).

4. It was open for the Applicant to satisfy the “competent English” requirement at any time up until the MRT made its decision (see: Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417).

5. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

6. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 12 March 2011, the applicants applied to the Department for a Skilled Graduate visa.

2. On 28 February 2012, the Department wrote to the Applicant requested evidence of his English language ability which may include a certified copy of an IELTS Certificate.

3. On 26 March 2012, the Applicant emailed to the Department informing it that he did not have an IELTS Certificate because he was not able to concentrate on his IELTS examination for family reasons. The Applicant then stated;

   “I do understand this requirement and their [sic] is no exception…Please grant a few more months to complete my exam. Please consider my situation and grant me a few more time to complete my IELTS exam. Thank you very much for your time and consideration.”

4. Because the Applicant’s email was not sent from his authorised email address, on 27 March 2012, the Department responded to the Applicant that it could not discuss the contents of his email.

5. Thereafter, on 27 March 2012, the Applicant’s migration agent emailed to the Department from the Applicant’s authorised email address, a copy of the same email the Applicant sent to the Department on 26 March 2012. The migration agent’s email concluded “I would request you to please grant an extension so that (the Applicant) can complete his IELTS ASAP.”

6. On 27 March 2012, the Department responded to the migration agent’s request stating as follows:

   “Thank you for your email. No further time will be give to your client to complete IELTS.”

7. On 29 March 2012, the Delegate refused the applicants’ applications for a Skilled Graduate visa on the basis that the Applicant did not meet a relevant requirement for the grant of a Skilled Graduate visa for the reason that the Applicant failed to supply any evidence of his English language ability.  

The MRT’s review and decision

1. On 5 April 2012, the applicants lodged an application for review of the Delegate’s decision by the MRT.

2. On 9 October 2012, the MRT wrote to the applicants informing them that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 8 November 2012 to give oral evidence and present arguments. In that letter the MRT stated as follows:

   “The Tribunal notes that your application for the visas was made in March 2011 and to date you have not presented evidence that Mr Savsani meets the English language proficiency requirement for the visa. Please provide evidence of Mr Savsani’s English proficiency, or evidence that he has booked an IELTS test (next available test is 3 November 2012) …within 14 day of the date of this letter. If you are unable to provide this, the Tribunal will require good reason to grant you additional time to obtain evidence of Mr Savsani’s English language proficiency.”

3. On 23 October 2012, the Applicant informed the MRT in writing that he had booked IELTS examinations for 27 October 2012 and 3 November 2012.

4. On 8 November 2012, the applicants and their migration agent attended the MRT hearing and gave evidence.

5. In its decision record, the MRT noted that at the hearing, the Applicant confirmed that he did not have evidence of ‘competent English.’ The MRT gave the applicant until 20 November 2012 to provide evidence of the results of IELTS examinations sat by the Applicant on 27 October 2012 and 3 November 2012.

6. The MRT noted that the Applicant then asked to wait for the results for further tests. The MRT refused that request on the basis that: it was nearly two years since the applicants lodged their visa applications; the Applicant was aware of the need to provide evidence of competent English; the Applicant had opportunities to sit further IELTS examinations on 27 October 2012 and 3 November 2012; and, the MRT was willing to wait for the results of those tests.

7. On 20 November 2012, the Applicant’s migration agent informed the MRT that the Applicant had sought a remark of the IELTS examinations he had sat on 27 October 2012 and 3 November 2012. The Applicant sought further time to provide the MRT with the results of the remark application. The MRT agreed to wait until 31 December 2012 before making its decision.

8. On 31 December 2012 the Applicant’s migration agent informed the MRT that the Applicant had not achieved the required scores in IELTS examinations to demonstrate competent English. The migration agent’s letter made no further request for any further extension of time to allow the Applicant to provide evidence of competent English.

9. On 9 January 2013, the MRT affirmed the decision under review on the basis that the Applicant did not meet a relevant requirement for the grant of a Skilled Graduate visa for the reason that the Applicant did not satisfy the mandatory language criterion of ‘competent English’ as required by reg.485.215 and defined by reg.1.15C of the Regulations at the time of the applicants’ application to the Department and at the time of the MRT’s decision that day.

The proceeding before this Court

1. The applicants were unrepresented before this Court. The Applicant appeared on behalf of both applicants.

2. On 23 April 2013, the Applicant attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the Applicant that the only complaint that he made about the MRT’s decision, which was contained in his Affidavit, was unsupported by particulars and did not by itself disclose an error capable of review by this Court.

3. At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that would flow to them if a costs order was made against them. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The Applicant confirmed that the applicants wished to continue with the application for judicial review. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

5. At the directions hearing, the Applicant was provided with the contact details of legal services providers and interpreting and translation services.

6. At the commencement of today’s hearing, the Applicant confirmed that no further documents had been filed by the applicants and that he had no further documents to present to the Court this morning in support of the application.

7. The Applicant confirmed that he relied on the ground contained in the affidavit, affirmed by the Applicant and filed on 24 January 2013, as follows:

   “MRT refused application without considering further time extension to re-sit in IELTS exam as I was not satisfied by the way my exam papers was evaluated by IELTS department. I believe everyone should have fair go in this country but unfortunately I did not get such a change from MRT to reappear in IELTS exam one more time as I was very close to achieve required score/bands.”

8. The Applicant was invited to make submissions in support of the ground and in support of the application generally. The Applicant declined to say anything in support of his application.

9. The Applicant’s assertion in his affidavit that the MRT refused his application without considering “further time extension to resit in IELTS exam” is not borne out by the MRT’s decision record.

10. There was no transcript of the MRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the MRT’s decision record is not accurate. At the directions hearing on 23 April 2013, the applicants were given an opportunity to file a transcript of the MRT hearing. The applicants were directed to give notice if they wished to rely on recordings of the hearing. However, no step was taken by the applicants to rely on any such evidence.

11. In the circumstances, the Court accepts as accurate the MRT’s summary of the oral evidence given by the Applicant and exchanges it had with the applicant at the MRT hearing. The Court is entitled to accept the MRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

12. The Applicant’s request for further time to provide the results of IELTS examinations sat on 27 October 2012 and 3 November 2012 was granted. The Applicant’s request on 20 November 2012 for further time to seek a remark of those tests was granted and the Applicant was given to 31 December 2012 to provide any further evidence.

13. The MRT noted the Applicant’s request made at the hearing for further time for further tests. The MRT noted that it told the Applicant it would not give him further time to sit more IELTS test in the light of the opportunities he had already had to sit IELTS tests since his application to the MRT and the MRT’s willingness to wait for the results of both tests sat by the applicant on 27 October 2012 and 3 November 2012. The MRT also noted that the Applicant’s visa application had been made nearly two years earlier and required at that time evidence of competent English and that the Applicant had been informed of that requirement by the Department.

14. In the circumstances, it is clear from the MRT’s decision record that it considered the Applicant’s request for further time to resit unspecified further examinations but refused the request for reasons given. That decision was open to the MRT on the evidence and material before it and for the reasons it gave.

15. The MRT had agreed twice to postpone its decision, first, until 20 November 2012 and, secondly, until 31 December 2012. The MRT is not obliged to postpone its decision indefinitely to afford an applicant every opportunity to present the best possible case and to improve upon evidence (see: Minister for Immigration v Li (2013) 87 ALJR 618 at [82] per Hayne, Kiefel and Bell JJ; Rahman v Minister for Immigration [2012] FCA 1312 at [49] per Yates J.).

16. In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (“Singh”), the Full Court of the Federal Court of Australia stated at [42] that; “whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court including any inferences which may be drawn from that evidence.”

17. Singh involved a case where it was necessary to draw inferences about the reasons for which an adjournment request was refused. No such issue arises in this case. The Applicant made his request orally to the MRT at the hearing. The MRT refused this request and provided reasons. In the circumstances, it could not be said that the MRT decision to refuse the Applicant’s request to wait for the results for further tests was unreasonable. Unlike in Singh, where the reasons for the refusal were supplied some nine days later, the MRT’s reasons in this case were given to the Applicant at the time that it refused his request.

18. Following the unsuccessful remark of the tests sat by the Applicant on 27 October 2012 and 3 November 2012, the Applicant did not make any further request for further time to sit additional examinations.

19. In the circumstances, the MRT cannot be said to have acted unreasonably in refusing the requests made by the Applicant for further time to provide evidence of competent English.

20. The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

21. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

22. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

23. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 February 2014