SHARMA v Minister for Immigration

[2014] FCCA 1169

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1169

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – reg.1.15C Migration Regulations 1994 (Cth) – English language competency – failure to meet English language requirement – no proper grounds of application stated – no jurisdictional error demonstrated – application dismissed – costs awarded.

Legislation:  

Migration Regulations 1994 (Cth) reg.1.15C

Craig v State of South Australia (1995) 184 CLR 163

Applicant: PRIYA SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1032 of 2013

Judgment of: Judge Burnett

Hearing date: 9 April 2014

Date of Last Submission: 9 April 2014

Delivered at: Brisbane

Delivered on: 9 April 2014

REPRESENTATION

The Applicant appeared on her own behalf.

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application filed on 11 November 2013 be dismissed.

2. That the Applicant pay the Respondents’ costs fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1032 of 2013

PRIYA SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By its decision of 10 October 2013, the Migration Review Tribunal (“the Tribunal”) affirmed a decision made by the delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa (“skilled visa”).  The decision turned upon one point: whether or not the applicant had satisfied the competent English requirement provided for under regulation 1.15C(a) of the Migration Regulations 1994 (Cth) (“the Regulations”). That requirement can be established by:

   a)The performance of an International English Language Testing System (“IELTS”) test, with a score of at least six for each of the four test components; or

   b)a score and test specified by the Minister for Immigration and Border Protection (“the Minister”).

   There is an alternate process available, that is, if the person holds a passport of a type specified by the Minister in regulation 1.15C(b).

2. In this instance the applicant relied upon the first of the three possible matters, that is, the IELTS test score.  The applicant’s test score, at the time that the matter came on before both the delegate and the Tribunal, indicated that she had not achieved the requisite pass and, accordingly, had not demonstrated that she had “competent” English as required by the Regulations.

3. At the hearing, the Tribunal indulged the applicant by giving her an opportunity to put further material before it to show that she could satisfy the competency required. The applicant was permitted until 4 October 2013 to provide the Tribunal with results of an IELTS test she was about to undertake.

4. The results were subsequently provided on 9 October 2013. The applicant again failed to achieve the requisite score.  As the Tribunal noted at [12] of its decision, there was no evidence before it that the applicant had undertaken one of the other two specified English language tests and achieved a requisite score. Nor did she hold a passport of the kind specified by the Minister.

5. Accordingly, the Tribunal concluded the requirements of clause 485.215 of the Regulations were not met. It found that the applicant had not made a valid application for a skilled visa, and the delegate’s decision was affirmed.

6. By way of application filed on 11 November 2013, the applicant seeks judicial review of that decision. In her amended application filed 22 January 2014, the grounds of application are expressed as:

   “1. My ielts results still pending.

   2. It will be provide to Court in couple of days.

   3. Requested for bit more time. thanks”

7. The applicant has not detailed any proper grounds for judicial review or expressed any basis for jurisdictional error. I note, from my review of the Tribunal’s decision, that no jurisdictional error appears to arise. The Tribunal properly focused upon the only issue before it that required resolution, namely, whether the applicant had satisfied the English competency requirement.  It identified the means by which that could be established, and it considered the only possible means which was placed before it, namely, the failed IELTS test.

8. The Tribunal correctly concluded that the applicant had not satisfied the strict requirements of the Regulations. In those circumstances, it is difficult to see how it can be contended, in terms of the commonly accepted principles in Craig v State of South Australia (1995) 184 CLR 163, that there has been any jurisdictional error on the part of the Tribunal.

9. The only other matter to which the applicant might point is one that goes to an unfair process. However, there is nothing in the evidence before the court to suggest that the Tribunal did not afford the applicant a fair opportunity to place before it that material which she considered relevant to her application.

10. Indeed, it seems that the Tribunal made every effort to allow the applicant reasonable time to address the deficiencies in her application.  However, notwithstanding that opportunity, she was unsuccessful in passing the further IELTS test which she had been scheduled to sit.  It follows that the situation, as at 10 October 2013 when the Tribunal reconvened to consider the application, was that despite the further material provided her circumstances had not changed.

11. The application must therefore be dismissed. 

12. I will order that the applicant pay the respondents’ costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date: 5 June 2014