SINGH v Minister for Immigration
[2018] FCCA 1415
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1415 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – minister asserted application incompetent for only seeking a writ of certiorari and not additionally seeking writs of mandamus or prohibition, or an injunction – sole ground of application an historic recital of the refusal of the application, which did not point to propositions of fact or law that grounded jurisdictional error – no arguable case raised – application summarily dismissed. |
| Legislation: Migration Regulations 1994, reg.1.15E, Sch 2, cls.485.215, 487.224, Instrument IMMI 09/073 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 118 Craig v South Australia (1995) 184 CLR 163 Spencer v Commonwealth (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 |
| Applicant: | SATBIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1096 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Mills Oakley |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Mills Oakley |
ORDERS
This proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1096 of 2017
| SATBIR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
Pursuant to orders made by a registrar of this court on 24 January 2018, this proceeding was ordered to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.
The show cause procedure
Under the show cause procedure, unless an applicant for judicial review satisfies the court that, in his application, he advances an arguable case for the relief claimed, the court possesses an array of powers, including the power to summarily dismiss the proceeding. Cases at the highest level, such as Spencer v Commonwealth[1] and AMF15 v Minister for Immigration and Border Protection,[2] have held that a court should not lightly make an order for the summary dismissal of a proceeding, and I have proceeded in this case with that instruction in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 118
In addition, two decisions of the Federal Court have held that, irrespective of the court concluding that an applicant may not have an arguable case for the relief that he seeks, the court nevertheless possesses a residual discretion to refuse to grant an order summarily dismissing a proceeding under the Migration Act. Those cases include Sidiqque v Minister for Immigration and Border Protection[3] and SZTTW v Minister for Immigration and Border Protection.[4]
[3] [2014] FCA 1352
[4] [2014] FCA 837
In forming the conclusions at which I have arrived in this case, I have kept steadily in mind that on the hearing of this application I possessed a residual discretion to refuse to summarily dismiss this proceeding.
Relevant factual setting
On 21 October 2016, a delegate of the minister refused to grant the applicant the skilled (provisional) (class VC) (subclass 487) visa for which he applied on 19 May 2010. In essence, the applicant did not demonstrate to the satisfaction of the delegate that he met cl.487.224 of Sch.2 to the Migration Regulations. The delegate found that the applicant had not provided any evidence of concessional competent English. The delegate also determined that the applicant had not satisfied cl.485.215 of Sch.2 to the Migration Regulations.
Being dissatisfied with the decision of the delegate, on 8 November 2016 the applicant applied for a merits review before the Administrative Appeals Tribunal. On 24 February 2017, the tribunal invited the applicant to attend a hearing before the tribunal scheduled for 24 March 2017. A few days earlier, on 20 March 2017, the applicant’s migration agent requested an adjournment on the basis that the applicant was overseas due to his father’s medical condition and that the applicant needed to stay there until his father’s health improved.
The applicant provided a medical certificate from Dashmesh Hospital in India stating that the applicant’s father was admitted on 15 March 2017 due to a heart attack. On the same day, the tribunal sent an email to the applicant refusing the request and indicating that the applicant had failed to inform the tribunal when the applicant intended to return. The tribunal said it was not prepared to indefinitely delay the hearing of the application for review.
On 20 March 2017, the applicant’s migration agent provided the tribunal with a copy of the applicant’s return airfare ticket indicating a return date of 4 April 2017. The tribunal responded on the same day, acknowledging receipt of the copied air ticket and said it intended to proceed with the hearing scheduled for 24 March 2017. The tribunal requested the applicant’s telephone number. The applicant’s mobile telephone number was provided on 22 March 2017.
On 24 March 2017, the applicant attended the scheduled hearing and gave evidence by telephone. The tribunal gave the applicant an opportunity to provide further IELTS[5] results by 29 April 2017. On 5 May 2017, the tribunal affirmed the delegate’s decision.
[5] International English Language Testing System
The tribunal’s path of reasoning was short. The tribunal –
a)identified that the applicant needed to demonstrate “concessional competent English” at the time of the application as required by cl.487.215 of the regulations, or at the time of the decision pursuant to cl.487.224 of the Migration Regulations;
b)regulation 1.15E of the Migration Regulations defined concessional competent English and require the applicant to have achieved in a test conducted no more than two years before the date of the application, an IELTS average band score of at least 6.0 for the four test components of speaking, reading, writing and listening, or a specified score in a language test specified by the minister in writing, relevantly here, the test identified in instrument IMMI 09/073;
c)the tribunal indicated that the issue in this case was whether the applicant met the requirement of concessional competent English;
d)the tribunal stated that the applicant said he had undertaken several tests, yet he had not achieved the required score, that he had booked another test for 8 April 2017 and he asked the tribunal to await the results of that test before the tribunal made a decision;[6]
e)the tribunal agreed to wait until 29 April 2017 for the applicant to provide the test results;
f)the applicant failed to provide those test results to the tribunal;
g)on that basis, the tribunal found there was no evidence before the tribunal that the applicant had concessional competent English at the time of the application or at the time of the decision;
h)the applicant failed to meet cl.487.215 or cl.487.224 of Sch.2 to the Migration Regulations; and
i)the tribunal addressed the alternative criteria of cl.485.215 and found that there was no evidence the applicant had “competent English”.
[6] Court book, filed on 14 December 2017, 149 at [14]
The Tribunal affirmed the decision under review.
In this court
By application filed 25 May 2017, the applicant commenced an application in this court for judicial review of the tribunal’s decision. He relied on one discursive paragraph that was as follows –
My 487 application was refused for not satisfying the criteria under clause 487.224 under the schedule 2 of the Migration Regulations 1994 for not providing evidence of English proficiency. The decision record points out to the 6 overall requirement in each of the four module of the test, but the actual requirement was 6 overall; so my application was assessed in terms of score in each module of the test rather than overall average score achieved. The IELTS test was booked for 10 July 2012 ; the evidence of the same was provided to the Department while the application was under processing and the decision was to be made. I had made specific arrangements under clause 487.215(b) to ensure that efforts were made to book a test and come up with the prescribed score; but the Review Tribunal has failed to consider the given documentation and no consideration was given to entire scale of efforts; and my wait since 2010 has also gone ignored too . Please accept my judicial review application in terms of the considerable amount of time I had waited since my file has finalized.
(errors in original)
Several things must be said of the alleged ground of application.
The first sentence was an historic recital of the refusal of the application. That recital was correct. However, it did not point to propositions of fact or law that grounded jurisdictional error of the sort raised in Craig v South Australia[7] or Kirk & Anor v Industrial Court of New South Wales & Anor.[8]
[7] (1995) 184 CLR 163
[8] (2010) 239 CLR 531
Next, in the second sentence of the applicant’s ground, he recorded his points score for his language test. That was not a valid ground of review.
Next, in the third sentence of his ground of review, the applicant referred to the booking he made for an IELTS test on 12 July 2012. That was not a proper ground of review. It was a narration of factual events that had since passed. However, the applicant appeared to contend that the tribunal failed to consider the effort he made to book an IELTS test.
The minister cast a different complexion on the wording of the applicant’s ground of review. The minister contended that the sole ground of review was a contention that the tribunal misapplied the definition of “competent English” in reg.1.15E of the Migration Regulations by requiring a score of 6.0 for each of the four test components of speaking, reading, writing and listening, as opposed to an overall score of six. The minister argued that such a contention could not succeed, because reg.1.15E of the Migration Regulations required a score of 6.0 in each test component. Additionally, the minister contended that the complaint could not succeed in any event, because the applicant did not provide any IELTS results to the delegate or to the Tribunal.
There is considerable force in the minister’s submissions. I accept that the applicant’s construction of reg.1.15E of the Migration Regulations was erroneous.
The minister addressed the applicant’s contention that he made “specific arrangements” to undergo a test, and that the tribunal failed to consider “the given documentation” and “the entire scale of efforts” the applicant made. The minister said that such an argument was erroneous because, irrespective of the magnitude of his effort, the applicant nevertheless failed to provide evidence of concessional competent English at the time of the decision. The minister said the tribunal did not have any discretion to take into account the matters advanced by the applicant, whether described as the scale of his efforts or the length of time he took in the process to apply.
Again, I agree there was no merit to the last point advanced by the applicant.
At a technical level, the minister contended that the only order the applicant sought was a writ of certiorari for the tribunal decision to be quashed. The minister said that the applicant had not additionally sought a writ of mandamus or prohibition or an injunction, with the consequence that his application was incompetent and ought to be dismissed summarily.
The minister may or may not be correct in that contention although I express no view about it because on other bases the application for judicial review failed.
In my view, the applicant did not raise an arguable case for the relief that he sought in this proceeding. This case is the very type of case suited for summary dismissal under the show cause procedure. I have not lightly made the decision to summarily dismiss this proceeding. However, in view of the applicant’s failure to raise an arguable case, that result must follow.
In accordance with the decisions in Sidiqque and SZTTW, I retain a residual discretion to refuse to summarily dismiss this proceeding. There being no valid basis for the exercise of my discretion in the applicant’s favour, I see no purpose in doing anything but summarily dismiss this proceeding.
I dismiss this proceeding and order the applicant to pay the minister’s costs fixed in the sum of $3,667.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 31 May 2018
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