Singh v Minister for Immigaration

[2015] FCCA 694

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGARATION & ANOR [2015] FCCA 694

Catchwords:
MIGRATION – Application for judicial review of determination of Migration Review Tribunal refusing the grant of a Skilled Provisional (Class VC) Visa – application for adjournment refused – no error in the tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth),

Migration Regulations 1994 (Cth)

Applicant: SATINDER JEET SINGH

First Respondent: MINISTER FOR IMMIGARATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 815 of 2014

Judgment of: Judge McGuire

Hearing date: 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Melbourne

Delivered on: 25 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Kowalewska

Solicitors for the Respondents: Australian Government Lawyers

ORDERS

1. The application for an adjournment be refused.

2. The application filed 2 May 2015 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $6825.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 815 of 2014

SATINDER JEET SINGH

Applicant

And

MINISTER FOR IMMIGARATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Application for an Adjournment.

1. There is a substantive application before me seeking judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) refusing the applicant the grant of a Skilled Provisional (Class VC) Visa (“the visa”).

Procedural Issues.

1. The applicant is not currently at Court.

2. This matter was called at approximately 10.05am this morning. The applicant did not answer the call and was not otherwise represented.

3. The applicant had previously corresponded with my chambers by email which I interpreted as being an application seeking an adjournment to allow him to instruct a barrister to act for him without costs.

4. Any application for adjournment is opposed.

5. In the absence of the applicant, Counsel for the Minister presented submissions and I commenced giving my reasons whereupon at 10.25am this morning the applicant appeared in Court, still unrepresented.

6. Counsel for the Minister conceded, properly in my view, that the hearing should be continued and reconvened. It then eventuated by reason of omission of the Registry that an interpreter was not at Court. The applicant had indicated in his application that he required an interpreter. My staff went to considerable trouble to obtain the assistance of an interpreter who has, at some inconvenience to himself, arrived at Court this afternoon.

7. The matter was stood down this morning while these issues were dealt with.

8. The applicant chose to leave the confines of the Court despite the matter being stood over until 2.15PM this afternoon and the applicant being made well aware of that.

9. I am aware that the applicant understood that the matter has been stood down because he has since corresponded yet again with my chambers in response to an email to him confirming the 2.15PM hearing where upon the applicant says:

   This is Satinderjeet singh.i am sorry ,I ran away from the court,i was feeling very nervous without my lawyer.i breached the law,sorry for it.I need some time about 14 days to arrange some one who can represent my case.

10. The applicant is not now at Court to make any submissions in respect of his request for adjournment.

11. The application is opposed on the following basis that;

    …this matter was first listed for a hearing as long ago as 6 August 2014. It was then listed for hearing in November 2014 where upon an adjournment was granted to the applicant. The matter was adjourned until today.

    There has now been, on my calculation, some eight months for the applicant to arrange some legal representation.

12. The material I have before me, whilst suggesting he requires a short adjournment, does not assist in explaining what, if anything, the applicant has done for the last eight months in respect of obtaining legal assistance or representation.

13. I must consider the prejudice to the applicant in not granting an adjournment and similarly balance that to any prejudice to the first respondent Minister in the granting of an adjournment.

14. As I have recently said in another matter, the issues of the public purse should not be ignored and the Minister, like any litigant, has a general right and expectation to have their litigation disposed of prudently.

15. Another matter to consider here is the prima facie strength of the applicant’s substantive argument.

Background.

1. The applicant is from India and he holds an Indian passport.

2. His applications before both the Minister’s delegate and the Tribunal were dealt with on the basis that the applicant had not provided the statutory requisite evidence in respect of a skills assessment and English language proficiency tests.

3. It followed that neither the delegate nor the Tribunal were left with any discretion in respect of the application given those statutory requirements and their remission. Therefore, the matters were disposed of accordingly and, in my view, the only Order available to the Tribunal.

4. That being the case and on the material before me, it could not be seen that the applicant has a strong prima facie case before the Court.

Conclusion.

1. In all of the circumstances, including with some consideration of the applicant’s behaviour today, and with some weight to the chronology in that he has had some eight months to deal with this matter and provides no explanation for him not doing so, I am not persuaded that an adjournment should be granted and therefore is refused.

Substantive matter.

1. This matter has proceeded to a hearing in the absence of the applicant who left the confines of the Court as indicated in my reasons for refusing an adjournment application.

2. The substantive application is one for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) affirming a determination of the Minister’s delegate refusing to grant the applicant a Skilled Provisional (Class VC) Visa (“the visa”).

Background

1. The applicant is from India and holds and Indian passport.

2. The application before me was filed 2 May 2014 and is accompanied by a short affidavit.

3. The applicant did not lodge further written submissions pursuant to the Registrar’s procedural orders of 6 August 2014 and although attended at Court this day, is not currently here to make any oral submissions.

4. The first respondent provided written submissions on 31 October 2014.

5. The applicant applied for a skilled visa on 24 November 2011.

6. The Delegate refused the application on 17 August 2012 on the basis of:

   i) That the applicant had not provided evidence of a successful English language proficiency test conducted in the requisite two year period; and

   ii) The applicant did not provide evidence of a skills assessment for his relevant nominated occupation.

7. On 24 August 2012 the applicant applied to the Migration Review Tribunal for a review on the merits of his application.

8. The hearing was listed for 26 March 2014. By letter of 25 February 2014. The applicant was invited to attend the hearing and to provide evidence in respect of the statutory requirements in the granting of a visa.

9. The applicant did not attend at the hearing and did not provide the requested materials.

10. The Court Book at page 46 discloses a communication made at 10.52am on 14 April 2014 by the applicant with the Tribunal and noted as follows:

    The RA called to inquire whether a decision had been made in this matter. I advised that it had not, and confirmed that we have his correct contact details. The RA requested a copy of the decision be sent to his email. I said that I would note this on file, he thanked me and the call ended.

11. The Tribunal affirmed the delegate’s decision on the same basis as the delegate, of non-compliance with the statutory requirements and specifically non-compliance with clause 485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) in respect of competency in English and clause 485.221 subparagraph 1 of the Regulations in respect of the skills assessment.

12. The applicant before me sets out one ground of appeal which states:

    I applied of Temporary Residency Skilled (Provisional) (Class VC) VISA but it got rejected.

    I submitted all the documents but few of the documents they asked for, I asked them for sometime extension but they were very rude and they did not give me just 4 more days, and decided my entire Career in just a blink of a eye. I want to challenge it, now I have all my documents and ready to provide them as if they wanted from me. Thanx.

13. The applicant’s affidavit sworn/affirmed 2 May 2014 is brief in its contents and says:

    I applied for SKILLED (PROVISIONAL) (CLASS VC) visa. It was rejected and I want to revoke it.

14. If the claim of the applicant is with respect to lack of procedural fairness, as I interpret from the materials and I have just read into the reasons, then I reject that argument.

15. Firstly there is simply no evidence of a request for an adjournment. The communication that I have already cited is after the hearing before the Tribunal. Secondly, the applicant was properly invited to appear before the Tribunal. Thirdly, there is no evidence of communication to the Tribunal from the applicant prior to the hearing. The applicant’s affidavit filed with the application does not depose to seeking an adjournment before the Tribunal and the applicant’s ground of complaint does not adequately particularise any request for an adjournment. And, of course, given the matters I have just mentioned, there was no further evidence or submissions forthcoming today in respect of any alleged application for an adjournment before the Tribunal.

16. Taking all those matters into account I am satisfied that proper procedural fairness was afforded to the applicant.

17. The granting of a skilled visa has a number of prerequisite statutory requirements referred to already in these reasons but particularly in respect of there being evidence of English language proficiency and of an appropriate skills assessment. Failure to provide such evidence left no discretion in the Tribunal. The only decision available to the Tribunal was the one that it made being to affirm the decision of the delegate in refusing the application.

18. Finally, if the one complaint set out in the application can be interpreted as a request for a further hearing on the merits before me, noting the last sentence, “…now I have all my documents and ready to provide them…” then such is not available to the applicant. The function of this Court is to consider whether the Tribunal’s decision or process is affected by an error of law. A merits review is not available in this Court.

Conclusion:

1. The Order I make is that the application filed 2 May 2015 be dismissed.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  14 April 2015