Singh and Ors v Minister for Immigration and Anor (No.2)

[2014] FCCA 2141

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 2141

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application for skilled visa – applicant failed to appear before court at time allocated for judicial review of decision – application dismissed pursuant to Rule 13.03C in default of appearance – applicant now seeks re- hearing – matters to be considered – reasonable explanation of non-appearance – arguable case  – applicant has failed to satisfy criterion attaching to visa – namely proficiency in English – proficiency in English prescribed by regulation – consideration of merits of case –  explanation for non-appearance inadequate – no error found – application dismissed – order for costs made.

Legislation:  

Federal Circuit Court Rules 2001, Rule 13.03C ; Rule 16.05

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

Migration Regulations 1994, Reg.1.15C

Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250

First Applicant: RAJNI SINGH (AKA RAJBIR CHAHAL)

Second Applicant PRABHINDER SINGH (AKA PRABINDER CHAHAL)

Third Applicant KIRAT KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 314 of 2013

Judgment of: Judge Brown

Hearing date: 1 September 2014

Date of Last Submission: 1 September 2014

Delivered at: Adelaide

Delivered on: 15 September 2014

REPRESENTATION

Counsel for the Applicants: In Person

Counsel for the First Respondent: Mr Tredrea

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Applicants pay the costs of the First Respondent fixed at the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00).

2. All outstanding applications be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 314 of 2013

RAJNI SINGH (AKA RAJBIR CHAHAL)

First Applicant

PRABHINDER SINGH (AKA PRABINDER CHAHAL)

Second Applicant

KIRAT KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment need to be read in conjunction with earlier reasons, delivered in the absence of the applicants, on 22 July 2014.[1] 

   [1] Singh & Ors v Minister Immigration & Border Protection and Anor [2014] FCCA 1933

2. On that occasion, an application made by the applicant, to review a decision of the Migration Review Tribunal, not to grant her a skilled graduate visa was dismissed, pursuant to the provisions of rule 13.03(C) of the Federal Circuit Court Rules, on the basis that the applicant had failed to appear. 

Background

1. The decision of the MRT, which the applicant sought to challenge, was made on 30 September 2013.  The Tribunal determined that, as the applicant had failed to provide satisfactory proof of her competency in English, she had failed to satisfy a prescribed criterion relating to the grant of the visa in question.

2. On 22 July 2014, following submissions made on behalf of the Minister for Immigration & Border Protection, I determined that the reasons of the MRT disclosed no discernable jurisdictional error.  Therefore, given the applicant had failed to appear, it was appropriate to dismiss her application.  

3. At the time I foreshadowed that it was likely that the applicant would later apply to the court to set aside this decision and remit her application for further adjudication before the court.  This has proven to be the case.

The application to rehear

1. On 15 August 2014, the applicant filed an application in a case, in which she seeks the following order:

   “To squash [sic] decision of MRT.”

2. In support of this application, the applicant has provided a further affidavit, which reads as follows:

   “I was sick on the day of hearing.  I was unable to attend hearing because of sickness.  I want to appear in court and present my arguments.

   MRT refused my review application stating that I don’t satisfy cl.485.215.  Member asked himself question that at the time of decision I do not satisfy regulation cl.485.215 which states that applicant should have competent English.  I have been in Australia for more than 4 years.  I have studied in Australia and worked here.  It would not have been possible without me having English skills to perform work, study and live in Australia.  The very basis of this English test is wrong and others factors of applicants Australian study.  Work and period of stay in Australia should be considered while assessing applicant English ability.  As tribunal failed to consider all this factors while assessing my application.  The decision of tribunal has jurdictional [sic] error.”

3. The applicant appeared in court to argue her case on her own behalf.  As I indicated in the earlier decision, the concept of jurisdictional error is a difficult one to explain to a lay person.  It does however not include a re-hearing by the court, on the merits, of any earlier administrative decision made by an administrative tribunal or decision maker.

4. For reasons provided in the earlier decision, it is clear that the mandated standard, by means of which an applicant for the visa in question must satisfy the Minister that he or she has proficiency in English, is through the provision of a satisfactory test score under either the IELTS or the OET scheme – the International English Language System or the Occupational English Test respectively. 

5. It is clear from the applicant’s affidavit that she contends that she has proficiency in English as a consequence of her having lived and worked in Australia for more than four years.  It is not the function of this court to engage in a fact finding exercise as to whether this contention is correct. 

6. Rather, the role of the court is to ascertain whether the MRT exercised the jurisdiction conferred upon it, by virtue of the relevant provisions of the Migration Act 1958 and any relevant regulation, without legal error. 

7. In this case, the MRT could only assess the applicant’s proficiency in English in accordance with the criterion prescribed by regulation 1.15(c) of the Migration Regulations (1994).  In my view, it properly acquitted this task, pursuant to the appropriate legislative regime, without error.

8. The granting of such a visa is subject to the satisfaction of a number of criteria as specified in the Migration Regulations (1994) In particular, the primary applicant must satisfy clause 485.215 and regulation 1.15(c) of the regulations that a person has competent English.    

9. As indicated in the earlier decision, the only criterion, provided for by this regulation, for satisfaction of the English language proficiency requirement for persons who do not hold a passport from the United Kingdom, United States of America, New Zealand, or the Republic of Ireland, is the satisfactory completion of a language test as specified by the Minister within a period of two years prior to the date on which the visa application is made.

10. The fact finding task for the MRT was to determine whether the applicant had proved she had the required proficiency in English by reference to her success or otherwise in undergoing the stipulated regime of testing.

Applicable legal considerations

1. Pursuant to rule 16.05(2) of the Federal Circuit Court Rules, the court may set aside its judgment or order, after it has been entered, if the order is made in the absence of a party …” 

2. In Akpata v Minister for Immigration & Multicultural & Indigenous Affairs[2] the Full Court of the Federal Court discussed the provision of the Federal Court Rules, which is analogous to rule 16.05(2)(a) of the Federal Circuit Court Rules.  It said as follows:

   “On such an application [the applicant] would, in a matter such as this, have had to show he had an arguable case in the principle proceedings and to explain his absence at the hearing.”

   [2]  Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250

3. At the hearing of her application in a case, the applicant provided a medical certificate dated 22 July 2014, from Dr Jane Allen, who certifies that she has examined the applicant and found that she would be “unfit for her normal work from 22/07/2014 to 23/07/2014 inclusive.”  No medical condition is specified in the medical certificate. 

4. In her submission to the court, the applicant’s admitted that, on the day in question, she had been suffering from arthritis.  In my view, the medical certificate is totally inadequate and provides no adequate explanation as to why the applicant failed to appear at court on 22 July 2014. 

5. In addition, the applicant has provided no explanation as to why she did not attempt to inform the court of her alleged incapacity by means of a telephone call, fax or some other form of electronic communication.  In my view, the applicant has not provided any adequate explanation of her non-attendance at court.

6. In addition and more importantly, in my assessment, the applicant has failed to establish that she would have had an arguable case in the earlier dismissed principle proceedings.  Her most recent affidavit replicates her earlier submissions which, in my view, do not establish any legal or jurisdictional error in the impugned decision of the MRT. 

7. The MRT was not vested with any 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. 

8. 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.

9. 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.

10. For these reasons, the application in a case must be dismissed.  The first named respondent seeks costs.  I will make an order for costs in the sum of one thousand five hundred dollars ($1,500.00).

11. 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 twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:             15 September 2014