SINGH v Minister for Imigration

[2013] FCCA 2392

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMIGRATION & ANOR [2013] FCCA 2392

Catchwords:
MIGRATION – Ex tempore judgment – application for judicial review of Migration Review Tribunal decision – applicant not attending court – application facing insuperable difficulties – application dismissed. 

Legislation:  
Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), cl.485.215

Applicant: JASVIR SINGH

First Respondent:  MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:  MIGRATION REVIEW TRIBUNAL

File Number: MLG 784 of 2013

Judgment of: Judge Burchardt

Hearing date: 20 December 2013

Date of Last Submission: 20 December 2013

Delivered at: Melbourne

Delivered on: 20 December 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Ms Bosnjak

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 784 of 2013

JASVIR SINGH

Applicant

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

First Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. By an application filed on 31 May 2013, the applicant sought review of a decision of the Migration Review Tribunal (“Tribunal”) dated 1 May 2013.  The only ground of application specified was, and I quote, “to challenge MRT decision for refuse subclass 485”.  The affidavit filed contemporaneously with the application relevantly states:

   “2. I am in court against MRT DECISION. For Refuse my Subclass 485.”

2. It goes on to say:

   “I would like to say that I have always given preference to studies and have always been career oriented in my life.  Studies have been my first passion.  In order to attain a bright future, I made a huge investment and planned to come to Australia.  After finish my study in Australia. Then I lodged Professional Skilled Visa after finishing my studies.  I fulfilled all the requirements other than English as I required 6 each in IELTS. 

   Please note that I Lodged my file on the basis of booking of IELTS.  I was very confident that I will attain the required score in IELTS. I attempted exam many times. But each time I attained great scores in all band but only in Reading I got 5.5.  I was very shocked as whole of my study was in English Medium; but unfortunately I was lagging behind in Reading.

   At last my visa was refused only due to English requirement.  I was very depressed to realise that though I have worked very hard whole of my life; yet due to English requirement I was unable to settle my life. I was requested to MRT FOR my medical certificate to extend my date but I was shocked to find that MRT had already made MRT decision. Without any further communication with me

   I hope that you would understand my circumstances and how devastating effect it would have on me and my little child who is studying here.  This decision would have a huge negative impact on my husband’s and child’s lives.”

3. It is signed by the applicant.

4. Registrar Allaway made orders on 7 August 2013 giving the applicant leave to file any amended application and written submissions amongst other things, but the applicant has not filed any such documentation.  This is not said as a criticism of the applicant but rather goes to show what little the Court has to go on other than the application itself, which says that the applicant failed the test of competent English, and the material in the Court Book (“CB”). 

5. Relevantly at CB96 and following, and it is a short decision, the Tribunal set out its reasons. The Tribunal noted that this was an Application for Review of a decision of the delegate to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under section 65 of the Migration Act 1985 (Cth) (“the Act”). The Tribunal pointed out that the application was refused because the applicant did not meet the required English language proficiency. 

6. The Tribunal referred at paragraph 4 of the decision to the terms of the regulation, clause 485.215, as it was at the relevant time, and the requirement to have a test score in IELTS for each of the 4 test components. As the applicant’s affidavit and the materials in the CB made clear, very unfortunately for the applicant, the applicant did not meet the test in those four required subjects. That means that the decision to refuse to grant a visa was unchallengeable and plainly correct. It is a mandatory requirement and one for which there is no discretion to grant relief.

7. I note that the applicant suggests in her affidavit that she was refused an extension of time of some sort.  The Tribunal notes at paragraph 9 that on the day of the scheduled hearing at 11.07 am the applicant’s representative wrote to the Tribunal requesting a postponement on the basis that the applicant was unable to attend due to medical reasons.  A certificate was enclosed.  The Tribunal considered the request and decided not to grant a postponement because the medical certificate did not sufficiently describe why the applicant was unable to attend, and the applicant’s representative was informed of this on the same day. 

8. The Tribunal noted that it had a discretion to reschedule the matter because the applicant, in fact, failed to appear, but the Tribunal noted that, because of the findings that were made, there was no value in doing so.  In my view, whatever the force of the applicant’s request for an adjournment, the fact is that her application was doomed to fail because of her failure to meet a required criterion in the Regulations and it is therefore, I am afraid, quite inescapable that the application should be dismissed with costs, and I so order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 19 February 2014