Sidhu v Minister for Immigration

[2014] FCCA 1323

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1323

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error alleged or identified – application dismissed with costs – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), cl.485.215 of Schedule 2

First Applicant: NARINDER SINGH SIDHU

Second Applicant: NARWINDER KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 287 of 2013

Judgment of: Judge Simpson

Hearing date: 24 April 2014

Date of Last Submission: 24 April 2014

Delivered at: Adelaide

Delivered on: 24 April 2014 (ex tempore)

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms C Deegan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 4 October 2013 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants shall forthwith pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

3. The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 287 of 2013

NARINDER SINGH SIDHU

First Applicant

NARWINDER KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me an application filed 4 October 2013 for judicial review of a decision of the Migration Review Tribunal made on 28 August 2013.  The Tribunal affirmed a decision of a Delegate to the Minister not to grant the applicants the Skilled (Provisional) (Class VC) subclass 485 (Skilled-Graduate) visas that they sought.  They were refused as the first applicant did not provide the Delegate with evidence of competent English by way of a test conducted in the two years immediately before the day on which the application was made as was required by the Migration Regulations.[1]

   [1] Clause 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth).

2. The application filed did not identify a ground relied upon.  It simply said, “See the Affidavit”.  The applicants had filed an affidavit sworn on 4 October 2013.  In the affidavit, the applicant admitted that he had not yet obtained evidence of competent English.

3. The applicant does not dispute that he did not provide the evidence required.  He says that he just needed more time to prove that he could speak English.

4. The Court explained to the applicants that to succeed on the application, the applicants needed to identify a jurisdictional error.  Perhaps not surprisingly, the applicants did not identify any error by the Tribunal let alone a jurisdictional error.  I satisfied myself that the documents did not disclose a jurisdictional error.

5. The Court pointed out to the applicant and his partner the importance of obtaining evidence of competent English before an application is made for the class of visas that they sought.  The applicant said that he could get evidence of competent English in a month or two.

6. Given that the first applicant acknowledged that he did not provide evidence of competent English at the proper time (or at all), and that there is no jurisdictional error disclosed, the application is without merit and should be dismissed.

7. I make the orders to be found at the beginning of these reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  23 June 2014