Singh v Minister for Immigration

[2015] FCCA 3062

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3062

Catchwords:
MIGRATION – Application to reinstate – substantive application dismissed for non-attendance at Court – application wholly deficient in merit – application dismissed.

Legislation:

Federal Circuit Court of Australia Rules 2001, r.16.05

Migration Regulations 1994, sch.2, reg1.15C(b)

Applicant: GURKAMAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION DIVISION)

File Number: MLG 782 of 2014

Judgment of: Judge Burchardt

Hearing date: 8 September 2015

Date of Last Submission: 8 September 2015

Delivered at: Melbourne

Delivered on: 7 December 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Not applicable

Counsel for the First Respondent: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application in a case filed on 20 August 2015 is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 782 of 2014

GURKAMAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION DIVISION)

Second Respondent

REASONS FOR JUDGMENT

1. By an application in a case filed 20 August 2015 the applicant seeks, pursuant to r.16.05 of this Court’s rules, to reinstate a substantive application lodged on 29 April 2014.  The substantive application was dismissed following the applicant’s non-attendance at Court on

   
   

   4 August 2015.  On that day I also declined a written request on the applicant’s part to adjourn the matter and gave reasons.  This judgment will both further address my reasons for not granting the adjournment and also address the application to reinstate.

2. It is not possible to understand the outcome of the proceeding without an understanding of its history.  The application originally filed on

   
   

   29 April 2014 sought judicial review of a decision of the second respondent, the then Migration Review Tribunal, dated 26 March 2014.  That decision affirmed a decision of the delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. 

3. A copy of the decision is annexed to the applicant’s affidavit in support filed contemporaneously with the original application.  The relevant text of the affidavit reads:

   I am not satisfy with MRT decision on my application.  Therefore, I want to appeal against the decision in federal court. 

4. The grounds asserted in the original application are:

   I am not satisfy with MRT decision on my application.  My visa was refused because at the time of application lodgement I did not meet english proficiency criteria.  moreover my degree was not assessed from assessing authority.  Therefore I want to appeal against the decision in federal court. 

5. The Tribunal’s decision is brief. I note that from paragraph 4 thereof, notwithstanding that the applicant was apparently sent an invitation to attend the Tribunal hearing, he did not do so. The Tribunal noted that the applicant had applied for a Skilled (Provisional) (Class VC) visa, and at the time the application was lodged there were two subclasses of that visa, namely, 485 (Skilled – Graduate) and 487 (Skilled - Regional Sponsored). The Tribunal noted that the relevant subclass in that particular case was subclass 485, the criteria for which are set out in Part 485 of schedule 2 to the Migration Regulations 1994.

6. The Tribunal observed in paragraph 6 that:

   … the issue in the present case was whether the applicant had competent English, as required by cl.485.215.  Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the four test components; or (ii) a score in a test specified by the Minister.  Alternatively, a person has competent English if the person holds a passport of the type specified by the Minister (r.1.15C(b)).

7. Having dealt with some issues arising out of subsequent amendments to the legislation, the Tribunal noted at paragraph 7 that in both relevant instruments the specified scores, tests and passports are substantially the same. The Tribunal noted that the applicant held an Indian passport and there was no evidence that he held a passport of any other country. He did not hold a passport of a type listed in IMMI 09/73. He was thus unable to satisfy reg.1.15C(b).

8. The Tribunal further noted at paragraph 9 the requirements to meet the test of competent English, and at paragraphs 10 and 11 said:

   In the visa application form it is stated that the applicant has not undertaken an English test within the previous 24 months.  He has not submitted to the Tribunal or the department any evidence that he has ever undertaken an IELTS test or an OET and the Tribunal is not satisfied that he ever has or that he has achieved the necessary score in either test.  The Tribunal finds that he does not have competent English as defined by r.1.15C, and the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a). 

   On the basis of the above, the applicant does not meet the requirements of cl.485.215 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a subclass 485 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed. 

9. The applicant then applied to the Court, as earlier indicated, on

   
   

   29 April 2014.  On 16 July 2014, Registrar Caporale made orders by consent which gave the applicant an opportunity to file any amended application and written submissions.  He has not done so.  This is not put as a matter of criticism, given his evident lack of English and lack of familiarity with the law in this country, but it means that he has not advanced his case materially in any way ever since. 

10. The first respondent filed written submissions in anticipation of the hearing which Registrar Caporale had set as long ago as 16 July 2014, for 4 August 2015.  The written submissions traverse the history of the matter, including the failure of the applicant to provide proof of competent English.

11. The written submissions noted that the applicant had been sent an invitation to attend the Tribunal hearing which expressly informed the applicant that the Tribunal could make a decision in his absence if he failed to attend.  The written submissions essentially submit that the Tribunal’s decision was clearly open to it and the procedure adopted likewise.  The submissions asserted that the application was devoid of merit. 

12. As I have earlier indicated, the applicant failed to attend the court hearing on 4 August 2015 but he did seek an adjournment. 

13. This is a matter addressed by the affidavit of Emily Charlotte Wilde, filed by the first respondent on 2 September 2015.  I note that in Annexure ECW1 to that affidavit, in a letter dated 9 May 2014 sent to the applicant – and there is no suggestion he did not receive it – the applicant was strongly advised to obtain legal representation.  He was also advised of the requirement to appear at Court.  He was further advised of his obligations to comply with court orders and the possible consequences of failure to do so were made very clear in this correspondence.

14. The applicant forwarded to the first respondent, and also to the Court, an email dated 3 August 2015 the day before the posited hearing.  The email that the applicant forwarded included a certificate from the Kookora surgery asserting that:

    Gurkamal Singh has been unable to work due to illness from 3/8/2015 until 3/11/2015inclusive. 

15. A handwritten letter from the applicant asserts, relevantly:

    In this application I want to explain about my health.  Nowadays I am suffering with heart disease.  I am living in Griffith NSW so I can’t drive or travel due to my problem.  I have also a appointment with heart specialist Dr Aarti in Griffith Hospital on 4 August 2015. 

    So I want that please extend my hearing date because I am not able to attend.  So please give me little more time to attend the court.  I will be great thankful to you for this. 

16. The first respondent replied to the applicant forthwith upon the receipt of that documentation on 3 August 2015 by exhibit ECW3.  That letter to the applicant relevantly asserted:

    We refer to the above matter and confirm receipt of a medical certificate from Kookora surgery dated 3 August 2015 and your letter in which you request an adjournment of tomorrow’s hearing. 

    The medical evidence that you have provided does not demonstrate that you are unable to attend the hearing tomorrow for the reasons set out in your letter.  Further we have made enquiries with Griffith Hospital and note that, contrary to what you have stated in your letter, Dr Arthisakthy Sivagnanam is not a heart specialist but is a GP. 

    In the circumstances, we are instructed to oppose your adjournment request and advise that the hearing tomorrow will remain listed for 10.15 am, unless otherwise ordered by the Court.

17. As Ms Wilde’s letter makes clear, albeit on a hearsay basis, enquiries had been pressed with the Griffith Hospital and it appears that the relevant doctor may be a GP rather than a heart specialist.  This is hearsay and although this is an interlocutory hearing, in the circumstances I will give no weight to the apparent discrepancy in the character of the doctor’s professional standing and qualifications. 

18. When the matter was called on before the Court today, the applicant appeared on his own behalf with the assistance of an interpreter. In his opening submission he said he was sick and could not appear and could not think what to do. He said he does not have money but he sought another chance for this matter to proceed and said, “Only just give me one more chance.” Counsel for the Minister had already filed submissions in opposition to the application but gave a digest of those submissions so that the applicant would clearly understand what was put against him. The submissions conceded, as do the written submissions, that the Court has power to set aside the order made on 4 August 2015.

19. The relevant matters were submitted to be a reasonable excuse for absence, whether there is any prejudice to the respondent and whether the applicant has arguable prospects of success.  Counsel submitted that the excuse was not reasonable and the application lacks merit.  In any event, counsel noted that the applicant has raised depression for the first time in his oral submissions before the Court and that there was no medical evidence to corroborate this.  Counsel took the Court to exhibit ECW1 and the matters I have already traversed as to what the applicant was told.

20. Counsel noted that the applicant said he was unfit for work for three months only four weeks ago and unable to travel, but he was now here today with no explanation for this apparent change of position.  Counsel conceded that there was no prejudice to the first respondent if the matter was reinstated other than costs, but counsel pointed to the failure of the applicant to comply with court orders or appear at the Tribunal, and further submitted, by incorporating the written submissions originally filed, the contention that the application itself lacked merit. 

21. In reply, the applicant asserted that the only question was to be given more time. 

22. My conclusions can be stated shortly. I ruled on the adjournment application on 4 August 2015. I refer to and incorporate what I then said about the medical evidence provided by the applicant.  It is wholly inadequate. It is, furthermore – although this is a matter I only note in passing – inconsistent with the fact that the applicant has been able to come to Court today. The more vital consideration in the circumstances is the total absence of merit in the substantive application itself.

23. It is not, in my view, in the interests of justice to reinstate this application in circumstances where, on the materials before the Court which the applicant has not as yet put in issue in any meaningful way, the applicant simply did not have competent English at the time of his application. He was required to have competent English by the nature of the visa he was seeking and the regulations that applied to it at the time. His application is utterly devoid of merit insofar as the materials reveal anything, and indeed it is difficult to see what conceivable matters the applicant could point to to grant his application in any event.

24. In all the circumstances, I therefore decline to exercise my discretion to reinstate the application.  The application in a case will be dismissed with costs. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  7 December 2015