Schwarz v Minister for Immigration

[2016] FCCA 2031

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHWARZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2031

Catchwords:
MIGRATION – Interlocutory injunction – application premature –question of whether there is a migration question within the meaning of s.476 of the Migration Act – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.15, 476

Federal Circuit Court Act 1999 (Cth), s.15

Cases cited:

Minister for Immigration and Citizenship v Li [2013] HCA 18

First Applicant: KORAN SCHWARZ

Second Applicant: ARDINA SCHWARZ

Third Applicant: ITAY YOUSEF SCHWARZ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1324 of 2016

Judgment of: Judge McNab

Hearing date: 19 July 2016

Date of Last Submission: 19 July 2016

Delivered at: Melbourne

Delivered on: 19 July 2016

REPRESENTATION

Counsel for the Applicants: Mr Aleksov

Solicitors for the Applicants: Holding Redlich

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed 22 June 2016 for interlocutory injunction relief be dismissed.

2. The applicants pay the first respondent’s costs to be taxed in default of agreement.

3. The matter be adjourned to 9 September 2016 at 10.00 am for hearing in Melbourne.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1324 of 2016

KORAN SCHWARZ

First Applicant

ARDINA SCHWARZ

Second Applicant

ITAY YOUSEF SCHWARZ

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX-TEMPORE REASONS

1. By an application filed 22 June 2016, Koran Schwarz (“the first applicant”), Ardina Schwarz (“the second applicant”) and Itay Yousef Schwarz (“the third applicant”) (collectively “the applicants”) seek interim relief by way of injunction or order restraining the respondent from making a decision in case number 1504505 prior to the hearing and determination of the claim for final relief in this application.

2. The first applicant also seeks prohibition preventing the second respondent from making a decision on the review in case number 1504505 prior to the first applicant receiving the results from an IELTS exam that he will sit on 10 September 2016 and seeks mandamus to compel the second respondent to adjourn the review in case number 1504505 until the first applicant receives the results from that IELTS exam. The first applicant seeks a mandatory injunction in similar terms. 

3. A court book has been filed by the first respondent which sets out effectively, the record of the matter and an affidavit has been filed on behalf of the applicants which has been sworn by Maria Jockel on 22 June 2016, which sets out the history of the matter before the Tribunal and the events leading up to the making of this application. 

4. The power to make interlocutory orders sought is under s.15 of the Federal Circuit Court Act 1999 (Cth). The court must be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of an injunction.

Background

1. The first applicant relied upon an affidavit sworn by his solicitor on 22 June 2016. Paragraph 3 of that affidavit provides that the first applicant is the principal applicant for a Temporary Work (Skilled) visa (subclass 457).  He is an Israeli citizen who has been working in Australia for Australian Logistics Solutions as a safety inspector for around seven years.  I am advised that the managing director, Mr Ballott, regards the first applicant as an integral part of the business operations, given his significant skills and experience with gaming and other equipment in the supervisory role that he undertakes on a day-to-day basis.[1] 

   [1] Affidavit of Ms Maria Jockel sworn 22 June 2016 at [3]

2. On 20 March 2015, the first applicant was refused the visa by a delegate of the Minister on the basis that he failed to submit a satisfactory English language test IELTS score and he sought review by the Tribunal on 7 April 2015.[2]  The material in the court book indicates that the first applicant has sat and failed 12 English language tests which he sat in order to achieve compliance with the visa requirements. The first applicant’s test scores have not, thus far, satisfied the English language proficiency criterion. 

   [2] CB 230

3. The history of the matter is set out in the facts in the first respondent’s submissions and I will not recite them verbatim but I am satisfied, having reviewed the court book that they set out an accurate summary of the facts.

4. It is significant that on 24 March 2016, the Tribunal informed the first applicant that it could not indefinitely postpone making its decision and the Tribunal requested that by 31 March 2016, the first applicant lodge submissions regarding any further extension of time to obtain an English language test. 

5. The request by the Tribunal dated 24 March 2016 was made circumstances where there have been a number of applications for adjournment and requests for time to sit further tests. On 31 March 2016, the first applicant lodged submissions with the in which he claimed that he suffered from Attention Deficit Hyperactivity Disorder (“ADHD”) and, as a result, had been unable to obtain a satisfactory English language test result. The basis of the claim in regards to ADHD was based on the opinion of Dr Grech, a clinical psychologist. On 1 April 2016, the applicants’ solicitors commenced to represent the applicants and on that date a further test result was submitted on the first applicant’s behalf, which did not satisfy the English language proficiency criterion. 

6. There was a further adjournment of the proceeding to 25 May 2016. On 25 May 2016, the applicants’ solicitors made detailed submissions to the Tribunal and attached a medical report of Dr Grech and a medical report of Dr Peter Cook.[3] In that letter, the Tribunal was advised that for the purpose of the review, the applicant’s solicitor had arranged for the applicant to be assessed by Dr Peter Cook, a clinical psychologist. Dr Cook had advised that having reviewed Dr Grech’s report, he administered a number of psychometric tests and, in his opinion, the first applicant suffers from a specific learning disorder with impairment in reading and that when faced with English language tests conducted under pressure, his functional capacity becomes completely overwhelmed. 

   [3] CB 349 – 369

7. The writer of the letter enclosed Dr Cook’s report in which he recommended that the review applicant be allowed more time to complete the tests and the Tribunal was advised that Dr Cook would provide a more comprehensive report in the next week or so.[4]  It was sought in that correspondence that an adjournment be granted so that the first applicant could undertake a further English language test and reference was made to the decision of Minister for Immigration and Citizenship v Li.[5]

   [4] CB 352

   [5] [2013] HCA 18

8. The material submitted with the letter of 25 May 2016 also included IELTS results of the first applicant which indicated that he was very close to achieving the proficiency required.[6] In the letter, it was said that a further test had been arranged for 25 June 2016.  

   [6] CB 389

9. By a letter dated 7 June 2016, the Tribunal responded to the first applicant, referring to the material that had been lodged on 25 May 2016 stating:

   As previously requested by the Tribunal on 30 May 2016, please provide evidence confirming you will be undertaking that IELTS test on 25 June 2016.  If confirmation is not received by close of business on 14 June 2016 the Tribunal will proceed to decision on the basis of the material before it.

10. Holding Redlich, the solicitors for the applicants, responded to the Tribunal by a letter dated 10 June 2016.  That correspondence enclosed a full report of Dr Cook dated 1 June 2016 and it also made reference to the fact that the preliminary test of 25 June 2016 was not proceeding as it required at least three months’ notice to arrange the materials for the test.  The letter included a statement that the test had been booked for 10 September 2016 so that the special arrangements required for the first applicant to undertake the test could be made.[7] 

    [7] CB 394

11. On 16 June 2016, the Tribunal responded to the solicitors for the applicants and to the first applicant and stated in that letter (omitting irrelevant parts at CB 394):

    The Tribunal writes in relation to your representative’s correspondence dated 10 June 2016 and advises it is not prepared to wait until an unspecified time beyond 10 September 2016 for you to provide the results of any further English language tests. The reason being it is now almost 12 months since the hearing of this application and the Tribunal has already given you several opportunities to provide evidence that you meet the English language proficiency requirements, but you have been unable to do so. Subject to any further submissions by yourself or your representatives, the Tribunal proposes to make its decision by 30 June 2016.

12. On 21 June 2016, the solicitors for the applicants responded to the letter from the Tribunal of 16 June 2016.  In my opinion, the applicants’ representative appears to have misunderstood the terms of the correspondence from the Tribunal in that it states in the body of the letter:

    We refer to your letter dated 16 June 2016 advising that the Tribunal denies the request for the extension of time and proposes to make a decision on the review by 30 June 2016.

13. That reading of the letter completely ignores the important qualification in the letter of 16 June 2016 which included the words:

    …subject to any further submissions by yourself or your representatives.

14. The letter of 21 June 2016 included further detailed submissions which set out in a comprehensive way the reasons why the first applicant sought an extension of time and I was advised today they were in fact settled by counsel who appeared on behalf of the applicants at this hearing. Importantly, the letter enclosed an email from Derly Sarmiento addressed to Maria Jockel dated 20 June 2016.[8]  Ms Sarmiento is the test centre manager from the organisation conduction the IELTS test. That email confirmed the IELTS requirements of a three month notice period in order to provide a modified version of the test.

    [8] CB 399

15. In effect, the solicitor for the applicants had made further submissions and provided further evidence of the reason for the postponement of the test until 10 September 2016, that being established by the email from Mr Sarmiento which I have referred to earlier.

16. On 22 June 2016, the applicants issued the application in this court. On 23 June 2016, by an email from the Tribunal to Ms Jockel, the Tribunal acknowledged the correspondence dated 21 June 2016 and noted:

    You state you have commenced proceedings in the Federal Circuit Court. Please advise the relevant filing details and where and when service was effected.

    Importantly, the letter then provides:

    We shall respond to your submission as soon as practicable.  You should note in this context that the Tribunal included in its correspondence that it proposed to make its decision prior to 30 June subject to any further submissions (bolded by Tribunal).

    By this, I take it to mean that any proposal to make a decision by 30 June 2016 was made subject to any further submissions being made. These submissions were in fact made by the first applicant as outlined above. 

17. It is in those circumstances that I must consider the application here today, which seeks orders requiring the Tribunal to adjourn the proceeding, or alternatively prohibit the Tribunal from further dealing with the matter until the language test has been completed in September 2016. The jurisdiction of this court in this matter is determined by s.476 of the Migration Act 1958 (Cth) (“The Act”). I must make a decision in relation to a migration decision. In this case, the Tribunal has not yet made a decision whether to adjourn the matter or not. It is on the face of the material before me, still considering whether to accede to the submissions which have been made to it by the first applicant.

18. The first applicant has formulated the basis of the grant of an injunction on the grounds that there is a serious question of an apprehension of a decision, or conduct preparatory to the decision, which is beyond power.  So much was put by counsel for the applicants. In my view, this application is premature. No decision has been made refusing to grant an adjournment or allow the further consideration of a language result on 10 September 2016. In those circumstances there is no migration decision within the meaning of the Act. Therefore, there is no proper basis for the grant of the injunction that is sought. 

19. I am fortified in the correctness of this view having regard to an extract from ‘Judicial Review of Administration,’5^th Edition, Aronson and Groves where the learned authors state at pages 782-783 in reference to a writ of prohibition that:

    The courts are increasingly reluctant to grant judicial review, (including prohibition) against inferior courts of limited jurisdiction or tribunals, until the matter has been finally determined. Not only do they prefer the impugned court or tribunal to come to its own decision, but they also prefer litigants to use their appeals rights (whether to a tribunal or a lower court) before resorting to judicial review.  This is all discretionary but there are excellent reasons for this approach.  A wait and see policy can save superior court time. 

    The impugned body, for example, might well decide the jurisdictional point correctly. Or it may decline on the merits to decide in a certain way, thereby making the jurisdictional point irrelevant.  Further, pre-emptive intervention by way of judicial review can impair the integrity of, and respect for the impugned body. In addition, the judicial review court can be greatly assisted if it has before it a reasoned opinion on the law and the evidence for the impugned body.  This is particularly so where that body has special knowledge or skills.

20. In this case, the Tribunal has before it two medical reports and a statement from the provider of the test that the earliest the test can be sat is in September 2016. It has the detailed submissions of the applicants’ solicitors explaining the need for the test; it is in a position to make a decision based on that material before it; and there is no indication that it has made a decision or that it is not considering the material that has been placed before it. Therefore, in my view, there is no serious question to be tried in this case.

21. Even if there was a serious question to be tried, in my view, the balance of convenience does not favour the grant of an interlocutory injunction.  For the reasons that I have taken you to in the reference from Aronson and Groves, the Tribunal has not completed its review. The Tribunal should be given the opportunity to make its decision. There is no basis for suggesting that it is embarking on the decision-making process in a way that is beyond its jurisdiction. The applicants have a right of judicial review proceedings before this court. In the event that the Tribunal refuses to defer making a decision in the face of the material that has been put before it by the first applicant and proceeds to make a decision, that can be raised before this court on any review.

22. If it becomes necessary, an application can be made to this court if a decision is made by the Tribunal that is unfavourable to the first applicant if it is affected by jurisdictional error. If the Tribunal does not defer its decision until after 10 September 2016, an application could be made to this court for an expedited hearing of the matter.

23. In the circumstances, I am of the view that the balance of convenience does not favour the grant of an injunction. I dismiss the applicants’ application for interlocutory relief.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab.

Date: 9 August 2016