Sidhu v Minister for Immigration

[2014] FCCA 706

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 706

Catchwords:
MIGRATION – Judicial review of decision of the Migration Review Tribunal – “show cause” hearing – finding that no jurisdictional error made by the Tribunal – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.485.215 of Schedule 2, Part 485 of Schedule 2 and reg.1.15C

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Applicant: KARAMJEET SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 210 of 2013

Judgment of: Judge Simpson

Hearing date: 28 March 2014

Date of Last Submission: 28 March 2014

Delivered at: Adelaide

Delivered on: 28 March 2014

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed

2. The applicant shall pay the first respondent’s costs fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

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 210 of 2013

KARAAMJEET SINGH SIDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application under the Migration Act 1958 (Cth) filed on 17 July 2013, in which the applicant seeks judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 18 June 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a visa, the visa being a Skilled (Provisional) (Class BC) (subclass 485) visa.

2. The applicant has attended today and has had the opportunity to put detailed submissions to me as to why this Court should grant the relief that he seeks in his application.

3. The applicant seeks an order that the decision of the Tribunal be quashed.  The grounds of the application are in these terms and, I read the grounds verbatim:

   MRT refused my review application stating that I don’t satisfy cl.485.215.  Later in MRT I told Member that I want time for IELTS and I have been in Australia for so long and I can communicate easily in English but member failed to consider my English language ability as well as he did not give me extension of time for IELTS.  I have right to improve my English skills but I was denied more time by MRT.  MRT member informed me that my English language ability has to be before visa application but failed to realise that there is a Court decision which clearly stated that if applicant had English after the visa application then it should be considered.

4. The applicant has put submissions to me as I mentioned.  I then heard submissions put by Mr Swan for the first respondent.  I gave the applicant a further opportunity to put whatever submissions that he wanted to, having heard the submissions that were put by the first respondent.  

5. On being asked by the Court, the applicant informed the Court that he had received the first respondent’s Outline of Submissions many weeks prior to today’s date and that he had had a full opportunity to study those submissions and he, as I say, put various submissions to me.

6. The background to this matter is that the applicant applied for the visa on 14 April 2012. On 15 November 2012, the delegate of the Minister refused to grant the visa. The delegate found that the applicant did not satisfy a mandatory requirement for such a visa, namely, cl.485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). That mandatory criteria required that the applicant have competent English. On 5 December, the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 15 May 2013, the Tribunal sent to the applicant, via his migration agent, an invitation to appear before the Tribunal.  The applicant was invited to give evidence and present argument relating to the issues arising in his case.  It that was to occur at the hearing to be held on 18  June 2013 at 10am.  The invitation also identified that the salient issue was whether the applicant had competent English.  The applicant was invited to provide evidence of competent English as soon as possible.

8. The Tribunal received a response to the invitation, but the applicant did not provide evidence in relation to having evidence of competent English. 

9. The applicant attended the Tribunal hearing on 18 June 2013 and, again, was assisted by a registered migration agent.

10. The Tribunal affirmed the delegate’s decision. In its reasons, the Tribunal noted that the criteria for granting the visa were proscribed by Part 485 of Schedule 2 of the Regulations. It identified the determinative criteria as that in cl.485.215, that is the - that the applicant have competent English. Regulation 1.15C provided that a person has competent English if the person:

    Satisfies the Minister that firstly, the person undertook a language test specified by the Minister in writing for this subparagraph.  And secondly, that the test was conducted in the two years immediately before the date on which the application was made.  And thirdly, the person achieve a score specified in the instrument or satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

11. The Tribunal found that the applicant did not have competent English as defined.  It found that there was no evidence before the Tribunal that the applicant had achieved the specified score in a test undertaking in the two years immediately before the day on which the visa application was made and hence, the applicant did not satisfy reg.1.15C (a).

12. Secondly, the applicant did not hold a passport of the type specified in instrument IMMI12-018 and hence, did not satisfy reg.1.15C (b).

13. Accordingly, the Tribunal found that the applicant did not satisfy cl.485.215 and it followed that the Tribunal should affirm the delegate’s decision.

14. On 17 July 2013, the applicant filed his application in this Court.  I have previously identified the grounds that are contained in that application.  The first respondent submits that the second sentence in the grounds of review can be interpreted as an allegation that the member failed to consider the applicant’s English language ability.  That allegation on the part of the applicant, the first respondent submits is wrong.  It is submitted that the Tribunal’s reasons clearly indicated that it considered whether the applicant had competent English.

15. The reasons of the Tribunal are quite brief, but it’s certainly the case that what the respondent submits is correct.

16. The first respondent submits that the second and third sentences of the grounds of the application allege that the Tribunal refused to give the applicant an extension of time to show he had competent English.  The first respondent submits that this is also wrong.  They submit that there is no evidence that the applicant ever sought an extension of time from the Tribunal.  Further, the Tribunal invited the applicant to provide evidence of competent English and indicated that he could seek an extension of time.  The first respondent submits that the applicant failed to do so.

17. This Court enquired of the applicant whether he could point to any evidence in the material that was before me that indicated that the applicant had sought an extension of time from the Tribunal.  He was unable to do so.  In the interchange that the Court had with the applicant, the applicant stated that he really wanted the Court to adjourn the matter for three months, so that he could undertake a test and put that evidence before the Court.  I indicated to the applicant that it would not be appropriate that the Court do so.

18. The first respondent submits that the final sentence in the grounds of application alleges that the Tribunal erroneously applied the law.  The first respondent believes that the case that the applicant may have been considering when he drafted the last few lines of his grounds of review, may be the case of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8. If so, the first respondent submits that Berenguel’s case in some circumstances provides that a visa applicant can provide an English test after the visa application has been lodged. The first respondent goes on to point out that Berenguel’s case is not applicable to this proceeding. They point out that the version of reg.1.15C that applied in the Berenguel case applied to a visa application filed on or before 30 June 2011. They point out that the version of reg.1.15C applicable to the applicant’s application is materially different as it imposes different requirements as to when a person must have completed the English test. The first respondent submits that the Tribunal correctly identified that the definition of “competent English” in the version of reg.1.15C applicable to the applicant required him to have successfully completed an English test before lodging his application. Assuming that Berenguel’s case was the case that the applicant was thinking about or had been advised might assist him, then clearly that advice was wrong. That case does not assist him at all for the reasons that have been mentioned.

19. The first respondent submits that irrespective of the grounds raised by the applicant, he can obtain no useful relief from this Court.  They point out that reg.1.15C(a)(ii) requires that the applicant had successfully completed an English test:

    In the two years immediately before the day on which the visa application was made.

20. They point out that there is no evidence that the applicant did so.  In fact all of the evidence is that he did not undertake a test prior to the filing of the application.  The applicant in fact indicated in the application that he lodged in this Court that he had not undertaken an English test within the last 12 months prior to the filing of the application.[1]  In those circumstances it is not possible for the applicant to be granted a visa. 

    [1]     ‘Have you undertaken an English test within the last 24 months? No’

21. For the above reasons in my view the application fails. It does not raise an arguable case. I should have mentioned previously that this is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Under r.44.12 if I am not satisfied that the applicant has raised an arguable case for the relief claimed I may dismiss the application. I am not satisfied that the applicant has raised an arguable case for the relief claimed and, therefore, the application should be dismissed pursuant to r.44.12 of the Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 8 April 2014