Singh v Minister for Immigration

[2015] FCCA 2704

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2704

Catchwords:
MIGRATION – Application for judicial review – no evidence to satisfy competent English requirement – no error in the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: PALWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1867 of 2014

Judgment of: Judge McGuire

Hearing date: 5 October 2015

Date of Last Submission: 5 October 2015

Delivered at: Melbourne

Delivered on: 29 October 2015

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Ms Briffa

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The name of the second respondent be amended to read ‘Administrative Appeals Tribunal’;

2. The application filed 15 September 2014 is hereby dismissed;

3. The applicant pay the first respondent’s costs set in the quantum of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1867 of 2014

PALWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) made 22 August 2014 affirming a decision of the Minister’s delegate to refuse the grant of a Skilled (Residents) (Class VB) Subclass 885 Visa (“the visa”).

2. The applicant represents himself before this Court.  He has not filed any written submissions.

3. The application filed 15 September 2014 raises two grounds of complaint as follows:

   (1) The member did not consider the fact that in all IELTS exams that I undertook, I was able to prove competent English.

   (2) The member also did not consider that all mine (sic) education since primary level has only been in English.

Background

1. The applicant is from India.  He applied for his visa on 17 August 2011.

2. On 25 October 2013 the department wrote to the applicant seeking evidence of his English language proficiency with such letter detailing the statutory requirements in this respect.  There was no response from the applicant.

3. The delegate refused the grant of the visa on 23 April 2014 not being satisfied that the applicant had competent English as required by cl.885.213 of schedule 2 of the Migration Regulations 1994 (“the Regulations”).

4. The applicant made application for a merits review to the Tribunal on 7 May 2014.

5. On 7 July 2014 the Tribunal invited the applicant to appear at the hearing.  That invitation contained a detailed explanation of the competent English requirement.

6. The applicant appeared together with his migration agent representative on 5 August 2014 before the Tribunal.

7. At [26] of the Tribunal’s reasons it discloses that the Tribunal agreed to adjourn the review for a period of two weeks to allow the applicant the opportunity to provide information satisfying the English language proficiency requirements.

8. The Tribunal affirmed the delegate’s decision refusing the grant of the visa on 22 August 2014.

Relevant legislation

1. Clause 885.213 of the Regulations requires an applicant for a Skilled visa to have “competent English” pursuant to relevant criteria to be satisfied at the time of the application.

2. The applicant, being from India, did not have a passport specified in IMNI 11/036 for the purpose of reg.1.15C(b).  Consequently, reg.1.15C requires: 

   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 within the two years immediately before the day on which the application was made;  and

   (iii) the person achieved a score specified in the instrument.

The Tribunal’s decision and reasons

1. The applicant confirmed to the Tribunal that he held an Indian passport thereby enlivening reg.1-15C.[1] 

   [1] Migration Review Tribunal’s Reasons, 22 August 2014, at [9]

2. At [10] of the reasons, the applicant confirmed that he had lodged his visa on 17 August 2011 and had taken two IELTS tests, being on 31 January 2009 and 10 May 2014 (and apparently on other dates).  At [11] the Tribunal noted that the tests were taken outside of the statutory two-year period.  The applicant claimed to have relevant and compliant test results.  He was, therefore, given a two-week period to provide those materials.  No such information was provided to the Tribunal.

3. The Tribunal found: 

   (1) that the applicant did not hold a passport of a type specified by the Minister, but, on his own evidence, held only an Indian passport; 

   (2) that the applicant had not achieved the requisite score in a specified test conducted within the two-year period immediately prior to the date of lodging the visa application.

Proceedings in this Court

1. As mentioned above, the applicant did not provide any written submissions or argument.  He was invited to provide oral submissions to the Court.  He thereupon attempted to tender what purported to be further test results.  The applicant was advised of the function of this Court being one of judicial review and not a further forum for a merits hearing.  The applicant made no further submissions.

2. I am satisfied that, despite opportunity and some indulgence, the applicant did not provide the Tribunal with the statutory required information in respect of English language proficiency.  Indeed, Mr Singh conceded before me that the necessary criteria had not been satisfied before the Tribunal.  This issue is abundantly apparent from the Tribunal’s reasons and notable in the indulgence granted to the applicant.  Contrary to ground 1 of his complaint, the applicant was unable to prove competent English pursuant to the statutory criteria.  Consequently, there is no merit to ground 1 of the application.

3. Similarly, I find no merit to ground 2 of the application.  The applicant held an Indian passport.  Consequently, the statute required evidence of competent English in a prescribed form and those requirements could not be substituted by any other considerations such as that set out in the application now before me.

4. In conclusion and consequently, there being no merit to either ground of the complaint, the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 29 October 2015