Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 695
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 695
File number: MLG 1387 of 2018 Judgment of: JUDGE RILEY Date of judgment: 11 July 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – 485 visa – application for review – application for summary dismissal – registrar having granted summary dismissal – applicant seeking review of the registrar’s orders – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r.13.13 Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 11 July 2023 Place: Melbourne Advocate for the Applicant: In person Advocate for the First Respondent: Kumar Jeyakkumar Advocate for the Second Respondent: No appearance Solicitor for the First and Second Respondents: Clayton Utz ORDERS
MLG 1387 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BALVEER KAUR SIDHU
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE RILEY
DATE OF ORDER:
11 July 2023
THE COURT ORDERS BY CONSENT THAT:
1.The time for the application for review of the registrar’s decision made on 19 May 2023 to be filed be extended to 9 June 2023.
THE COURT ORDERS THAT:
2.The application for review filed on 9 June 2023 be dismissed.
3.The applicant pay the first respondent’s costs of the application filed on 9 June 2023 fixed in the sum of $500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE RILEY:
This is an application for an extension of time in which to review a decision of a registrar. The registrar granted summary dismissal of an application to review a decision of the Administrative Appeals Tribunal.
As the application before this court is in the nature of a hearing de novo, the court will assess the application as if there had never been an application before the registrar. The question for the court is whether the applicant’s application to this court should be summarily dismissed.
The applicant lodged her application for review 14 days late. However, the Minister consented to an extension of time to enable the matter to proceed. The applicant was unrepresented before the court today and was assisted by an interpreter.
The underlying application before the Tribunal was an application for a 485 visa. One of the requirements for that visa was that the applicant have an English language test score of at least 50 derived from a test undertaken in the three years immediately prior to the lodging of the application.
The applicant raised two points before the court today. The applicant primarily relied on a test that she sat on 1 March 2017 but she also sat another test after she lodged her application for the visa on 8 April 2018. The Tribunal advised the applicant that she could try to get a re-score of the test that she had completed or undertaken on 1 March 2017 but said it could not consider the test she undertook on 8 April 2018 because she did that test after she had lodged the application for the visa.
The applicant asked the test provider to re-score her test. However, the test provider said that the applicant was too late. The applicant seems to have argued before the court today that this outcome was the Tribunal’s fault because the Tribunal should have told her earlier to try to get a re-score. However, this is not an arguable jurisdictional error as it is not the Tribunal’s function to advise the applicant or make the applicant’s case for her.
The second ground that the applicant relied upon before the court today is that the calculation of her test score by the test provider was wrong. The applicant said that if one added certain of the test results and averaged them, the score would be more than 49 and would thus meet the requirements for the visa.
However, the test provider seems to have been aware of this issue because in the test result report, it said:
As many items contribute to more than one communication or enabling skill, the overall score cannot be computed directly from the communicative skill scores or from the enabling skill scores.
The Tribunal took the view that the test report was accurate and there seems to be no reason to doubt that the test provider reported an accurate test result.
It does not seem to me that there is an arguable jurisdictional error in the Tribunal relying on the reported test result of 49 as the applicant’s overall score.
The basis on which the summary dismissal can be ordered is set out in r.13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. That rule permits the court to dismiss a matter which has no reasonable prospect of success. It seems to me in this case that the applicant does not have a reasonable prospect of success. The criteria for the visa are strict in relation to the English language test. I respectfully adopt, in addition, the reasons given by the registrar on 19 May 2023.
All in all, there is no reasonable prospect of the applicant succeeding in the matter before this court. It follows that the application for review filed on 9 June 2023 will be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley. Associate:
Dated: 11 July 2023
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