Siddique v Minister for Immigration & Border Protection
[2014] FCCA 1028
•21 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIDDIQUE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1028 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Regulations 1994 (Cth), reg.1.15C, 1.15D Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
Cases cited:
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
| Applicant: | NOOR ALAM SIDDIQUE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 112 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 21 May 2014 |
| Date of Last Submission: | 21 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2014 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms Hervee Dejean (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 112 of 2014
| NOOR ALAM SIDDIQUE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth), the applicant seeks judicial review of a decision of the Migration Review Tribunal dated 3 January 2014 and handed down on 6 January 2014 (“the MRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 16 January 2014, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The grounds of the application are as follows:
“1. Time extension for IELTS
(L-8, R-6, W-7, S-7.5 Overall = 7).
2. Time extension for NAATI.”
The applicant attended a directions hearing before me on 5 May 2014. On that occasion, I explained to the applicant 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 that goes to its jurisdiction.
I also explained to the applicant that the grounds of his application made bare particularised assertions that did not disclose an area capable of review by this Court. I explained to the applicant that his matter could be dealt with pursuant to r.44.12 of the Rules on the basis that the application did not raise an arguable case for the relief claimed.
The matter was set down for hearing today pursuant to r.44.12 of the Rules. The applicant was provided with a copy of r.44.12 of the Rules and a copy of the relevant costs schedule. The Court explained to him the consequences that may flow to him if he was unsuccessful in his application.
The applicant confirmed that he wished to continue with his application for judicial review of the MRT’s decisions. The applicant was given leave to file and serve a further amended application giving complete particulars of each ground of review relied upon by 15 May 2014, together with any additional evidence by way of affidavit and submissions in support. I note that the applicant was also provided with the contact details of legal services providers and interpreting and translating services.
The applicant was unrepresented before the Court today. On 5 May 2014, the applicant filed an affidavit in support of his application. That affidavit annexed a handwritten letter by the applicant to the Court in the following terms:
“I am writing this letter to appeal against MRT decision which was made on 3rd of January 2014. MRT decision was unlawful as there was obvious jurisdictional error. First and foremost, my relevant 3 years work experience was ignored by MRT. I am entitled to claim points on the work experience. MRT also had ignored my personal circumstances as I was in serious debt and financial crisis and I explained to MRT that I do not have money to book for IELTS on NATTI test. I have provide my bank statement which showed thats [sic] I was in serious debt when MRT made refusal decision. MRT decision was made against humanity and completed failed to address natural justice including my rights and social justice. It was clear that the MRT decision was structural (format based) rather than addressing my personal claim and circumstances. I did attend to MRT hearing on 14th Nov 2013 and [illegible] to extend some time = as I had a booking for NAATI on 31st of January 2014. MRT refused to extend time and made decision on 3rd of January 2014. I have passed NAATI test on the same date.
It would be greatly appreciated if Federal Circuit Court review my case and kindly send back my case to immigration as I have achieved 115 points.”
The other documents annexed to the affidavit are documents that the applicant acknowledges were not provided to the MRT for its consideration. The first respondent’s solicitor, Ms Dejean, objected to those further documents on grounds of relevance and they were rejected accordingly.
At the heart of the applicant’s complaint about the MRT’s decision is a submission that the MRT failed to consider his personal circumstances in refusing him a further adjournment of his hearing.
The applicant had applied for a skilled visa class 885 which required 120 points to satisfy. In his application for the visa, the applicant identified only 105 points and the delegate of the first respondent found that, in the circumstances, he did not meet the visa requirements. The MRT affirmed the decision under review, and found that the applicant neither had competent English nor proficient English as defined by the Migration Regulations 1994 (Cth) (“the Regulations”). The definition of “competent English” and “proficient English” are set out in regs.1.15C and 1.15D of the Regulations respectively.
The applicant requested the MRT to wait until December 2013 to give him a further opportunity to see if he could meet the requirements of either competent English or proficient English.
In November 2013, the applicant attended a hearing before the MRT and sought further time to sit for a test in December 2013 in relation to proficient English. The MRT allowed that extra time, however, the applicant’s test result was not sufficient. On 2 January 2014, the applicant requested a further adjournment until July 2014 to satisfy the relevant requirements. The MRT refused that request. In refusing the request, the MRT stated that:
“Whilst the applicant explained that he had been undertaking bachelor studies over the past two years and had financial constraints, the Tribunal considers that he has had ample opportunity to attempt the test and achieve the necessary score to obtain additional points under this part of the points test.”
The applicant complains that a further adjournment was not provided to him and that the MRT had failed to consider his personal circumstances. The passage above makes clear that the MRT did consider the applicant’s financial constraints but was not persuaded that they were sufficient reason to grant a further adjournment.
In considering whether to grant an adjournment, the MRT is obliged to display an “intelligible justification” (see: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [76]” per Hayne, Kieffel and Bell JJ). The reasons given by the MRT were an “intelligible justification.” The MRT made clear its reasons as to why it was refusing a further adjournment. The refusal was in the context where earlier requests were made and granted. In the circumstances it was open to the MRT to find that the applicant had had “ample opportunity” to achieve the necessary points. The applicant’s complaint that the MRT did not take into account his circumstances, and that the MRT’s discretion in refusing an adjournment in some way miscarried, has no prospect or no reasonable prospect of success.
The applicant also submitted to the Court today that he now has evidence of work experience. Whilst the first respondent concedes that such a matter may have been relevant to the MRT’s decision, the applicant acknowledged that there was no evidence of his work experience provided either to the delegate of the first respondent or the MRT at the relevant time.
While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The MRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the MRT on the evidence and material before it and for the reasons it gave.
The applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error on the part of the MRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 16 January 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 29 May 2014
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