Singh & Anor v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 318

[2015] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M203 of 2015

B e t w e e n -

HARBANS SINGH

First Plaintiff

RAMANDEEP KAUR

Second Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 26 NOVEMBER 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR H. SINGH appeared in person.

MR J.D. BROWN:   Yes, good morning, your Honour, I appear for the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  I see there is a submitting appearance for the second defendant.  Yes, Mr Singh, I have had the advantage of reading your material so I know a little of the case, but if there is anything further that you wish to say or develop now is the time to do so.

MR SINGH:   Your Honour, I should attend the MRT and I get assaulted during my work just 10 days, 11 days before the date.

HIS HONOUR:   I am sorry, you will have to repeat that, I did not quite catch it.

MR SINGH:   Yes, I missed attendance on MRT because ‑ ‑ ‑

HIS HONOUR:   Yes.  I understand, yes.

MR SINGH:   Yes, and because the reason I got assaulted during my work.  I was driving taxi in the night time and there was attack and it was really hard time for me, that is why I missed that ‑ ‑ ‑

HIS HONOUR:   All right, I do understand that.  The difficulty seems to be that the Tribunal concluded that you did not satisfy the requirements for the subclass of visa that you were seeking, so that even if you had been given an opportunity to be heard it would not have made any difference.

MR SINGH:   Yes, then I would like to present my reason that like why I cannot meet English requirement.

HIS HONOUR:   That is the problem, you do not seem to have met the English requirement, or even now do you seem to meet it.

MR SINGH:   I could meet it now because I got six in each now, because as the visa requirement they need like a six bands each…..in IELTS and later I got it.

HIS HONOUR:   Are you telling me that you have now passed the requirement?

MR SINGH:   Yes, sir.

HIS HONOUR:   So you are in a position to satisfy that requirement this minute?

MR SINGH:   Yes, sir.

HIS HONOUR:   Is the Minister aware of that?

MR SINGH:   No, because I missed that date that day.  I have not got the opportunity to present that result later.

HIS HONOUR:   I am sorry, could you repeat that please?

MR SINGH:   Because I missed the opportunity to present that result later, so that is why I never present that result later.  So now I am able to present the IELTS test.  So please if I get a chance to get – go back into the MRT and even ‑ ‑ ‑

HIS HONOUR:   Well, it still will not make any difference to the Tribunal’s decision because when they made their decision you had not satisfied the English test.  So they acted correctly on the basis of the facts as they were at that time.  Are you with me?

MR SINGH:   Yes.

HIS HONOUR:   If you have now complied, or if you can now satisfy the English requirement for the visa it is a matter I think for making another application, if that is possible, to the Minister on the basis of the new material.

MR SINGH:   So I cannot proceed with the same application any further?

HIS HONOUR:   Well, these are proceedings in which you are seeking to establish that the Tribunal made an error.  It made no error because on the basis of the facts that were before it at the time you did not satisfy the English requirement.  Does that ‑ ‑ ‑

MR SINGH:   Yes, sir.

HIS HONOUR:   That is comprehensible?  All right.  What I might do is hear from Mr Brown just to see what the position is there.  Could you have a seat for a moment please, Mr Singh?

MR BROWN:   Yes, thank you, your Honour.  The visa requirement for the 885 visa subclass that the applicant was seeking requires not just that the competent English requirements be met but also that they be met in the two years immediately before an application had been made.

HIS HONOUR:   Yes.

MR BROWN:   Now, that was not the case and this morning the applicant has conceded that that was not the case either in the two years before the application was made or when the Tribunal hearing was conducted some three years or so later.  That being the case, your Honour, there clearly is no basis for a finding that the Tribunal decision was in any way infected by jurisdictional error.

Now, going to your Honour’s point about the future, it would be open to the applicant to make a future application but he would need to do so offshore, so it would be necessary for the applicant to return to his country of origin and start the process over again.  If he did at that stage have the necessary score then, clearly, that would support his application.

HIS HONOUR:   Well, he says he has the right score now; that is not going to go away, is it?  Once he has passed, he has passed.

MR BROWN:   Well, again, it would need to be ‑ ‑ ‑

HIS HONOUR:   In the two years preceding; yes, I see.

MR BROWN:   Yes, that is right.  This is the first that we have heard of this score having been achieved.  All four units of the IELTS test – assuming that is the one he has taken – need to be met at the same sitting.

HIS HONOUR:   Yes, I see.  Thank you, Mr Brown.

MR BROWN:   Thank you, your Honour.

HIS HONOUR:   Mr Singh, you have probably heard what Mr Brown has just said.  I think as you understand, the law is that in order to satisfy the English requirement component of the subclass of visa that you are seeking you must satisfy it within the two years preceding the application and you did not.  There is, therefore, no error demonstrated in what has been done by the Tribunal or either of the two courts that have since considered your applications to review the Tribunal’s determination. 

There is nothing to stop you making a further application based upon your achievement now of compliance with the English requirement, but you are going to have to do that again in accordance with the legislation, as Mr Brown points out, by complying with the test, all four units of it in the one sitting, in the two years preceding the making of the new application.  What is more, unfortunately, you are going to have to do it offshore rather than from this country.

MR SINGH:   Yes, sir.

HIS HONOUR:   There is nothing further you wish to say, is there?

MR SINGH:   That is all.  Thank you.

HIS HONOUR:   Thank you, Mr Singh.  Mr Brown, this application is out of time, is it not?

MR BROWN:   It is, your Honour.

HIS HONOUR:   This is an application for an order to show cause why certiorari should not go to quash a decision of the Migration Review Tribunal dated 2 June 2014 affirming a decision of the Minister’s delegate made on 7 February 2014 to refuse the plaintiffs Skilled (Residence) (Class VB) visas under section 65 of the Migration Act 1958 (Cth). The plaintiffs contend that they were denied natural justice by reason of the Tribunal refusing to adjourn the hearing of their application and so proceeding to hear their application in their absence.

The application was filed more than 10 months out of time and so the plaintiffs would require an extension of time if certiorari were to issue. 

The plaintiffs applied to the Federal Circuit Court (Judge Riethmuller) for judicial review of the Tribunal’s determination, but his Honour dismissed their application when they failed to appear on the day appointed for the hearing.  The plaintiffs later applied to his Honour to set aside his orders but, on 17 April 2015, he declined to do so on the basis that to allow the proposed application for judicial review to proceed would be futile. 

The plaintiffs sought leave to appeal to the Federal Court of Australia (Justice Pagone), but, on 19 August 2015, his Honour dismissed the application for leave to appeal after finding that none of the proposed grounds of appeal or the affidavits submitted in support of the application for leave, or the oral argument advanced in support of the application, disclosed any error in the judgment of the Federal Circuit Court and that there was not otherwise any basis to conclude that the refusal of leave to appeal would be productive of substantial injustice.

This application does not disclose an arguable basis for the relief which is sought.  Nothing in the application or in the materials supplied in support of it, or in the oral submissions made this morning by the first plaintiff provides any reason to doubt the correctness of the Tribunal’s determination, Judge Riethmuller’s judgment and orders or the judgment and orders of Justice Pagone.

It is clear that the first plaintiff failed to satisfy the competent English requirement for the grant of a Class VB (Subclass 885) visa and the second plaintiff’s application was dependent upon the success of the first plaintiff’s application.  Even now there is nothing which suggests that the first plaintiff could satisfy the competent English requirement, other than what I have been told this morning by the first plaintiff.

It is apparent from Judge Riethmuller’s reasons for judgment that the first plaintiff acknowledged before his Honour that he had failed a reading band of the IELTS test and sought some indulgence.  As his Honour held, therefore, the proposed application for review of the Tribunal’s determination was bound to fail.

For these reasons, this application will be dismissed.

MR BROWN:   Your Honour, if the Minister can seek his costs in this proceeding?

HIS HONOUR:   Is there any point?

MR BROWN:   Well, I think there is, your Honour.

HIS HONOUR:   Mr Singh, there is an application for costs of the application.  Costs ordinarily follow the event.  Is there anything you want to say against that?

MR SINGH:   Sir, I spend a lot of – a long time in this country.  Please give me one more chance to go back into the MRT and then I can satisfy them by failing to present ‑ ‑ ‑

HIS HONOUR:   I am afraid I do not have the power to do that, Mr Singh.  My abilities are limited by the law.  They do not extend that far.

MR SINGH:   Yes, I respect the law, sir, but I spent almost 10 years in this country.  I did my school and uni in this country, so I do not want to leave.  So one – at least one more chance to go back and present the reason why I failed to do that.

HIS HONOUR:   Yes, I do understand, but as I say to you, I have no power to assist you, I am sorry.  The application is dismissed with costs.

AT 9.44 AM THE MATTER WAS ADJOURNED