SHAH v Minister for Immigration

[2013] FCCA 1192

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1192

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – Skilled (Provisional) (Class VC) Subclass 485 visa – Applicant did not attend Tribunal hearing – no evidence of competent English test being undertaken by the Applicant – Tribunal made finding that the Applicant did not hold a passport of the type specified to meet the requirements of regulation 1.15C(b) of the Migration Regulations 1994 (Cth) – no jurisdictional error – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360A, 362B, 379A, 379C
Migration Regulations 1994 (Cth), cls.1.15C, 485.215 of Schedule 2

Applicant: VIRENKUMAR SHAH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 511 of 2013

Judgment of: Judge Hartnett

Hearing date: 31 July 2013

Delivered at: Melbourne

Delivered on: 31 July 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The Application filed 18 April 2013 is dismissed.

3. The Applicant pay the First Respondent’s cost fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 511 of 2013

VIRENKUMAR SHAH

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an Application on 18 April 2013 seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 27 March 2013.  The Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) dated 19 July 2012 to refuse to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.

2. The grounds of the Application, as stated by the Applicant, were as follows:-

   “1. Was not mentally prepared for hearing at MRT

   2. Need another chance to provide evidence.”

3. The First Respondent filed a Response on 29 April 2013 seeking that the application be dismissed and asserting that the application for judicial review did not establish any jurisdictional error in the decision of the Tribunal dated 27 March 2013.  The Response noted that the Applicant had not provided any particulars or any legal ground of review and furthermore stated that the Applicant was inviting the Court to undertake a review of the merits of the Tribunal’s decision, which is no part of the function of the Court.

4. The matter came before Registrar Caporale on 5 June 2013 wherein he listed it for final hearing this day.  The Applicant was to, on or before 3 July 2013, file and serve:-

   a)any amended application, including any additional grounds of review with complete particulars of each ground; and

   b)any affidavits. 

   The Applicant has not amended his Application.  The Applicant has not filed any further affidavits to that initially filed by him on 18 April 2013, which annexed the decision under review.

5. Those Orders also provided for each of the Applicant and First Respondent to file and serve written submissions in preparation for the hearing this day.  The Applicant has filed no written submissions and the First Respondent relies upon an Outline of Submissions filed by it on 24 July 2013 and the Court Book filed 20 May 2013, which is in evidence before the Court in these proceedings.

6. The First Respondent also relies upon an Affidavit sworn by Ms Lal on 11 July 2013.  Ms Lal is a solicitor employed by the solicitors for the First Respondent and her Affidavit relevantly said in part:-

   “3. On 10 July 2013, an officer of the Department of Immigration and Citizenship (DIAC) sent an email attaching a copy of the Australia Post ‘Lodgement receipt - Multiple lodgements’ form for the Refugee Review Tribunal (sic) (the Tribunal) for 21 February 2013.

   4.  Annexed hereto and marked ‘A’ is a true copy of the Tribunal’s ‘Lodgement Receipt - Multiple lodgements’ form for 21 February 2013 that was attached to the email.  Information in that form relating to persons other than the applicant has been redacted.

   5. The attached records indicate that the letter dated 21 February 2013 sent by the Tribunal to the applicant with the registered barcode ‘498034484017’ was dispatched to the applicant at the nominated postal address by registered post on 21 February 2013.”

7. I note in the above paragraph 3, the reference to the Refugee Review Tribunal should be to the Migration Review Tribunal.

8. The Applicant is a citizen of India and lodged an application for a Skilled (Provisional) (Class VC) Subclass 485 visa on 2 November 2011.

9. Amongst the primary criteria to be satisfied at the time of decision for the grant of a Skilled (Provisional) (Class VC) Subclass 485 visa was that the Applicant met the requirements of cl.485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 485.215 of Schedule 2 of the Regulations required the Applicant to have “competent English” as defined in regulation 1.15C of the Regulations. At the time of the Delegate’s decision of 19 July 2012, Regulation 1.15C of the Regulations as applicable to applications lodged before 1 July 2012 (and after 1 July 2011) provided as follows:-

   “If a person applies for a General Skilled Migration visa, the person has competent English if the person:

   (a) satisfies the Minister that:

   (i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

   (ii) the test was conducted in the 2 years immediately before the day on which the application was made; and

   (iii) the person achieved a score specified in the instrument; or

   (b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”

10. In the Applicant’s Application for a Skilled (Provisional) (Class VC) Subclass 485 visa, the Applicant answered “No” to the question “Have you undertaken an English test within the last 24 months?”  Accordingly, the Delegate found that the Applicant had not undertaken a language test in the two years immediately before the day on which he lodged his Skilled (Provisional) (Class VC) Subclass 485 visa application, as prescribed in sub-regulation 1.15C(a)(ii) of the Regulations.  The Delegate also found the Applicant had not provided evidence that he met the requirements of Regulation 1.15C(b) of the Regulations.  Accordingly, the Delegate found the Applicant did not meet the requirements of clause 485.215 of the Regulations and refused to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.

11. On 1 August 2012, the Applicant lodged an Application for Review with the Tribunal to review the Delegate’s decision.  The Applicant also submitted copies of pages from his passport.  By letter dated 21 February 2013, the Tribunal wrote to the Applicant inviting him to attend a hearing to give evidence and present arguments, scheduled for 25 March 2013 at 3pm.  In that letter, the Tribunal also advised the Applicant:-

    “Your application for a subclass 485 (Skilled-Graduate) visa was made on or after 1 July 2011. Your visa application was refused by the officer of DIAC because the officer was not satisfied that you have competent English.

    For visa applications made on or after 1 July 2011 and before 1 July 2012, the definition of competent English provides that to show competent English, you must hold a passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issued to a citizen of that country or have achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made. The specified English language tests and scores are: an International English Language Testing (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least ‘B’ in each of the four components.

    For visa applications made on or after 1 July 2012, the definition of competent English is the same, save that the language test was conducted in the 3 years immediately before the day on which the visa application was made.

    If you have evidence of competent English, please provide it to the tribunal as soon as possible prior to the hearing but no later than the hearing date. If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time.”

12. That hearing invitation as submitted by counsel for the First Respondent:-

    a)invited the Applicant to appear before it to give evidence, (s.360(1) of the Migration Act 1958 (Cth)(‘the Act’));

    b)provided notice of the specified day, time and place of the hearing (section 360A(1) of the Act);

    c)was given to the Applicant by one of the means specified in (s.379A of the Act), namely, by prepaid post;

    d)provided a period of time to the Applicant exceeding the prescribed period of seven working days (regulation 4.21 of the Regulations). Notification is to have been received seven working days after the date of the document (s.379C(4) of the Act); and

    e)contained a statement about the effect of s.362B of the Act, namely, the options available to the Tribunal if the Applicant failed to appear before it (s.360A(5) of the Act).

    For c) and d) above, evidence was put before the Court as set out in the Court Book and paragraph 6 of these Reasons.

13. In accordance with s.379A(5) of the Act, the Tribunal also sent, and on 21 February 2013, a “courtesy copy” of that invitation to the Applicant by email at the email address given in his application for review.

14. No response was received to the Tribunal’s hearing invitation, and as noted by the Tribunal member in her statement of decision and reasons, the Applicant did not appear at the scheduled hearing on 25 March 2013. In those circumstances, the Tribunal was empowered by s.362B of the Act to proceed to determine the review without taking any further action to enable the Applicant to appear before it.

The decision

1. On the material before it, and as set out in paragraph 11 of its reasons, the Tribunal said that it was:-

   “…not satisfied that the applicant undertook a language test specified by the Minister for the purposes of r.1.15C(a)(i) or that the applicant achieved the specified test score in a test conducted in the 2 years immediately before the day on which the visa application was made (r.1.15C(a)(ii) and (iii)).  The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.”

2. The Tribunal also found that the Applicant had not provided any evidence of having undertaken an English test within the requisite time period to the Department of Immigration and Citizenship or the Tribunal.

3. The Tribunal also found that the Applicant, an Indian citizen, did not hold a passport of the type specified to meet the requirements of regulation 1.15C(b) of the Regulations. Thus, the Tribunal concluded that the Applicant did not satisfy clause 485.215 of the Regulations for the grant of a Skilled (Provisional) (Class VC) Subclass 485 visa, and affirmed the decision of the Delegate not to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.

Consideration

1. There is no evidence before the Court that the Applicant requested a postponement of the Tribunal hearing, and nor is there evidence that the Tribunal did anything other than comply with its obligation under the Act to invite the Applicant to a hearing. The Tribunal was authorised to proceed to make a decision without allowing the Applicant a further opportunity to appear before it and did so. There is no evidence before the Court that the Applicant submitted any medical evidence as to an inability to appear before the Tribunal at the relevant time and nor does he place any such evidence before the Court this day.

2. There is no jurisdictional error in the Tribunal’s decision.  The factual findings made by the Tribunal on the basis of the evidence before it were clearly open to it, and it is not for this Court to review the merits of the Tribunal’s decision.  The application must be dismissed and costs will follow the event. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  26 August 2013