Singh and Ors and Minister for Immigration and Anor

[2014] FCCA 2043

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS & MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2043

Catchwords:
MIGRATION – Application for skilled visa – Migration Review Tribunal decision – judicial review – condition of visa grant proficiency in English – proficiency of English determined by test mandated by regulation – finding of fact – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.474, 476(1)

Migration Regulations 1994, r.1.15C

Plaintiff 157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280

First Applicant: SATINDERJIT SINGH

Second Applicant: HARSIMERJIT KAUR

Third Applicant: JAPNAAZDEEP SINGH BALWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 117 of 2014

Judgment of: Judge Brown

Hearing date: 1 September 2014

Date of Last Submission: 1 September 2014

Delivered at: Adelaide

Delivered on: 4 September 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Mr Prince

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 8 April 2014 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of six thousand six hundred and forty-six dollars ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 117 of 2014

SATINDERJIT SINGH

First Applicant

HARSIMERJIT KAUR

Second Applicant

JAPNAAZDEEP SINGH BALWA

Third Applicant

And  

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Satinderjit Singh, Harsimerjit Kaur and Japnaazdeep Singh Balwa seek to review a decision of the second respondent, the Migration Review Tribunal (the MRT), which confirmed an earlier decision of a delegate for the Minister for Immigration & Border Protection not to grant them a Skilled (Residence) (Class VB) subclass 885 (skilled-independent) Visa pursuant to section 65 of the Migration Act 1958 (“the Act”).

2. The first applicant, Mr Satinderjit Singh is a citizen of India.  The second applicant Harsimerjit Kaur, also a citizen of India, is Mr Singh’s wife.  They are the parents of Japnaazdeep Singh Balwa born 8 June 2013.

3. Mr Satinderjit Singh is to be regarded as the primary applicant.  Earlier, he completed tertiary studies, in Australia, and now seeks a skilled visa, on the basis that he is currently resident in Australia.  If he is successful in his application, his wife and child will be granted appropriate visas in turn. 

4. The applicable criteria, pertaining to the grant of the visa sought by the primary applicant, are set out in schedule 2 of the (Migration Regulations 1994).  In particular clause 885.213 provides a criterion, which has to be satisfied at the time of application.  It requires that the applicant in question has competent English. 

5. The expression competent English is defined in regulation 1.15C of the Migration Regulations.  The regulation empowers the Minister to specify, in writing, appropriate tests to gauge the proficiency, in the English language, of various categories of applicants, for certain specified visas, including skilled visas. 

6. The Minister has specified the IELTS test as being one such language test.  IELTS is an acronym for the International English Language Testing System.  This provides that a score of at least six, for each of the four test components of speaking, reading, writing and listening, denotes proficiency in English. 

7. It is a further requirement of regulation 1.15C that an IELTS test be successfully concluded in the period of two years prior to the day on which the application for a visa is lodged. 

8. The applicant applied for the visa on 11 January 2012.  In support of his application he supplied an IELTS test report dated 8 September 2009.  As this was completed more than two years prior to the date of his application and did not denote a significant level of proficiency in English, the Minister’s delegate refused to grant the primary applicant the visa in question.  This decision was made on 29 November 2013. 

9. As a consequence of this decision, the primary applicant applied to the MRT for a review of this decision.  The MRT conducted a hearing of this application on 18 March 2014.  The primary applicant gave evidence at this hearing, which was directed largely to the issue of whether the primary applicant had satisfied the criterion relevant to proficiency in English.

10. Under the heading consideration of claims and evidence, the MRT made the following findings:

    “On the visa application form, the applicant indicated he had not undertaken an English test within the last 24 months.  At the hearing, the applicant confirmed this.

    The applicant stated that he had undertaken further tests since the date of application, but had not achieved the requisite score, and indicated that he was to sit another test on 8 March 2014.  I explained to the applicant why the Tribunal could not take a further test into account with regard to the requirements for competent English and for this reason would not be granting an adjournment or delaying the decision.

    There is otherwise no evidence before the Tribunal that the applicant had undertaken one of the two specified English language tests in the relevant period and achieved the requisite score.

    The Tribunal accordingly finds that the applicant does not have competent English as defined in r.1.15C(a).

    On the basis of the above, the applicant does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.”[1]

    [1]  See casebook at page 58-59

11. As a consequence of these findings, the MRT affirmed the decision of the Minister’s delegate not to grant the primary applicant the skilled visa in question and the related visas to his wife and child.  It is this decision, which is the subject of the current application to the court.

The grounds of review

1. The primary applicant filed his application to the court on 8 April 2014.  He has prepared his own application and appeared on his own behalf throughout.  He seeks an order that the decision of the MRT made on the 18^th March 2014 be quashed. 

2. In support of his application, he has provided the following particulars. 

   “MRT did not understand my case properly.  I already explain everything about my file with written proof documents. 

   Letter from the employer where I work from five years.  Company satisfy with my skills and they want me to work for them.

   I am loging [sic] my applications because federal court listen and understand my case properly and I give a positive decision to me.

   I am again attaching my employer letter and living circumstances related to my visa file.”

3. It is apparent from these grounds that Mr Singh is not legally qualified and has had no formal advice in respect of his application.  Essentially, his application is an inchoate appeal for the court to change the decision of the MRT.  No reference is made, in the ground for review, to the basis of the decision, which is grounded on the applicant’s failure to provide satisfactory proof of his proficiency in the English language.

4. More recently again, the primary applicant has provided a further affidavit, which was filed on 22 August 2014.  Annexed to this affidavit are several documents, which provide evidence of the applicant’s current accommodation and employment circumstances.  In addition, there are various testimonials, which attest to the applicant’s good character and his value, as an employee, in his current place of residence, which is Whyalla. 

The legal framework to the court’s decision

1. The decision not to grant the applicant the visa in question is a privative clause decision as defined by section 474 of the Act. This means that the decision is deemed to be final and conclusive. As such, it is not to be called into challenge in any court and is not subject to any prerogative writ.

2. However, the High Court of Australia, in Plaintiff 157/2002 v Commonwealth of Australia[2] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT which are affected by jurisdictional error or have been made in bad faith.

   [2]  Plaintiff 157/2002 v Commonwealth of Australia (2003) 195 ALR 24

3. Jurisdictional error is a difficult concept to explain.  It does not entail a merits review or a re-hearing of the evidence arising in the decision concerned.  It is a concept which goes to the essential fairness of the hearing process itself, not the fairness of the decision concerned.

4. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[3]

   [3]  See Craig v South Australia (1995) 184 CLR 163

5. The hearing before me is not a merits review.  Rather it is a judicial review.  I must be careful not to confuse the two.  It is the function of this Court to determine whether the decision of the Tribunal was within its legal powers.

6. It is not the function to examine the merits of the decision.[4] Accordingly this hearing is not a rehearing of all the available evidence.  Rather the hearing is directed towards the legality of the Tribunal’s decision.

   [4]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

7. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.

8. Accordingly, the Court has jurisdiction to entertain Mr Singh’s application, but only so far as it discloses a jurisdictional error.  As was said succinctly by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tanker Pty Ltd,[5] in respect of the task of judicial review:

   “… the nature of the task of this court is clear.  It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”

   [5]  Collector of Customs v Pozzolanic Enterprise Pty Ltd and Pressure Tankers Pty Ltd [1993] 43 FCR 280

Conclusions

1. It was an essential pre-condition of any grant of the visa, sought by the primary applicant, that he provide satisfactory proof of his proficiency in the English language. 

2. The manner in which he was required to provide this proof is prescribed by regulation.  It requires the production of a satisfactory IELTS test result, which has been completed in the period of two years prior to the application for the visa. 

3. The evidentiary task for the MRT was to determine whether the applicant had satisfied this criterion.  It did so.  The applicant did not establish proficiency in English in the mode stipulated by the regulation.  On the basis of the evidence available to it, the Tribunal could have reached no other conclusion. 

4. The MRT was not vested with a discretion to waive the condition requiring proficiency in English, nor to prescribe another mode by which such proficiency was to be established.  These were matters, which were determined by the legislature. 

5. The Tribunal applied the correct legal provisions to the issue before it – had the applicant proficient English in the terms stipulated by the applicable regulation.  It identified the correct issue and posed the correct question.  As such, it exercised the jurisdiction conferred upon it correctly.

6. Accordingly, I can find no jurisdictional error in the decision of the MRT.  In my view, the Tribunal correctly determined the issue before it according to the applicable legislation.  There is no failure in its jurisdiction.

7. As a consequence of these findings, it must follow that the application in these proceedings must be dismissed and the applicant’s should pay the first respondents costs fixed in the sum of six thousand six hundred and forty-six dollars ($6,646.00).

8. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  4 September 2014