SINGH v Minister for Immigration

[2016] FCCA 2527

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2527

Catchwords:
MIGRATION – Application for Skilled (Residence) (Class VB) visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, s.474

Migration Regulations 1994, reg.1.15C, cl.885.213 of sch.2
Migration Amendment Regulation 2012 (No.2), reg.2, items 12 and 124 of sch.1, items 26 and 29 of sch.2
Federal Circuit Court Rules 2001, r.44.12

Cases cited:

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: HARMIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1509 of 2014

Judgment of: Judge Cameron

Hearing date: 5 September 2016

Date of Last Submission: 5 September 2016

Delivered at: Sydney

Delivered on: 5 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr N. Buck of Sparke Helmore

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1509 of 2014

HARMIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, who is a citizen of India, lodged an application for a Skilled (Residence) (Class VB) subclass 885 visa on 18 September 2011. On 8 February 2014 a delegate of the first respondent (“Minister”) refused the applicant’s application on the basis that he did not have “competent English” as required by cl.885.213 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondents.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot re-hear the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

RELEVANT LEGISLATION

1. Part 885 of sch.2 to the Regulations contained the criteria for the grant of a subclass 885 visa. Although pt.885 was omitted from the Regulations on 1 July 2013, it continued to apply to visa applications made before that date: reg.2, items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2). 

2. A primary criterion which the applicant had to satisfy at the time of the application was cl.885.213, which required him to have “competent English”. The version of reg.1.15C which applied to the applicant defined “competent English” in the following terms:

1.15C     Competent English

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

(a)satisfies the Minister that:

(i)the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

(ii)the test was conducted in the 2 years immediately before the day on which the application was made; and

(iii)the person achieved a score specified in the instrument; or

(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

Although reg.1.15C was amended on 1 July 2012, the terms quoted above continued to apply to visa applications made before that date: reg.2 and items 12 and 124 of sch.1 to the Migration Amendment Regulation 2012 (No.2).

1. At all relevant times, the language tests specified by the Minister for the purposes of reg.1.15C(a)(i) were the International English Language Test System (“IELTS”) and the Occupational English Test (“OET”).

2. At all relevant times for the purposes of reg.1.15C(b), a passport specified by the Minister was a passport issued by the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland.

BACKGROUND FACTS

1. As previously indicated, the applicant’s visa application was refused by the Minister’s delegate on 8 February 2014 because she was not satisfied that the applicant met the requirements of reg.1.15C. The delegate noted in this regard that:

   a)in his visa application form of 18 September 2011 the applicant indicated that he had not undertaken an English test in the two years immediately before the day on which his application was lodged;

   b)on 13 April 2013 the applicant provided an IELTS test report for a test which was conducted on 21 July 2012.  As this test was not conducted in the two years immediately before the day on which the application was made, it could not be considered;

   c)no further evidence had been provided by the applicant to show that he had undertaken an IELTS or OET test and had obtained the specified score; and

   d)the applicant held an Indian passport, which was not a relevant passport for the purposes of subparagraph (b) of reg.1.15C.

2. As the applicant did not have “competent English” according to the definition provided in reg.1.15C, the delegate found that he did not satisfy the requirements of cl.885.213 for the grant of a subclass 885 visa.

3. The applicant’s review application to the Tribunal was lodged on 26 February 2014.  At a hearing on 13 May 2014 the applicant submitted that he had not been able to undertake an English language test during the relevant period because he had been ill and because his grandfather had had cancer.  He submitted that he nevertheless had “competent English” as he had achieved the necessary scores in IELTS test results in 2005 and on 21 July 2012. 

4. In considering the applicant’s claims and evidence, the Tribunal noted that neither of the tests referred to by the applicant had been conducted in the two-year period before the visa application was made and, consequently, did not meet the definition in reg.1.15C(a)(ii). The Tribunal also had regard to the applicant’s circumstances but found that it did not have any discretion in relation to the requirements imposed by reg.1.15C. As no evidence had been provided that the applicant met the requirements of that regulation, the Tribunal found that the applicant did not have “competent English”. Consequently, he had not satisfied cl.885.213 for the grant of the visa.

PROCEEDINGS IN THIS COURT

1. In his application commencing these proceedings the applicant alleged:

   I came to Australia in 2006, finished my course with excellent marks.  Then I applied for 485 visa, then 885 visa, after that I went to overseas because my grandfather had a cancer and nobody was their to look after him.  Inspite of that, I had a breathing problem.  I was admitted in the hospital for couple of weeks.  After my recovery I had taken an IELTS test and got 6 each.  But my case officer refused my permanent residency. (Errors in original)

2. In his submission to the Court today, the applicant repeated his statements made in his visa application and during the Tribunal review process that he had been ill in the period prior to the lodgement of his visa application and that his grandfather in India had suffered cancer.  The applicant also said that he had travelled to India to be with his grandfather four months before his death.  There is no reason to doubt the genuineness of these claims but, unfortunately for the applicant, they can have no effect on the outcome of this case.

3. The law is clear and even if I were to return the matter to the Tribunal for re-hearing the outcome would be the same as before. That is, because there is no evidence that the applicant sat an IELTS test in the two years before he lodged his visa application and achieved the necessary score, indeed, there is no evidence that he sat an IELTS test at all in that period, the outcome could be no different because the provisions of the Regulations are relevantly intractable. I say that accepting that in the period after the applicant lodged his visa application, he successfully sat an IELTS test and there is no reason to think that he could not have done the same in the two-year period prior to the lodgement of his visa application. However, as I say, the Regulations are intractable.

CONCLUSION

1. On the material before me I conclude that there is no arguable case that the Tribunal applied an incorrect test or applied the relevant test incorrectly. 

2. Consequently, I find that the applicant does not have an arguable case for the relief that he seeks and the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 29 September 2016