Singh v Minister for Immigration

[2015] FCCA 499

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 499

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.353, 360, 363, 366
Migration Regulations 1994 (Cth)

Berenguel v Minister for Immigration (2010) 264 ALR 417
Minister for Immigration v Dhillon [2014] FCAFC 1587

Minister for Immigration v Li (2013) 297 ALR 225

Applicant: NAVDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1801 of 2014

Judgment of: Judge Driver

Hearing date: 5 March 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

The Applicant appeared in person via telephone

Solicitors for the Respondents: Ms S Given of Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1801 of 2014

NAVDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Migration Review Tribunal (Tribunal) made on 4 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Singh, a skilled residence visa.

2. Background facts relating to the visa application and the Tribunal decision on it are set out in the Minister’s outline of submissions, filed on 25 February 2015.   

3. By letter dated 6 May 2014, the Tribunal invited Mr Singh to a hearing pursuant to s.360 of the Migration Act 1958 (Cth) (Migration Act) scheduled to take place on 3 June 2014[1]. The hearing invitation advised Mr Singh that he was yet to present evidence that he met the competent English language proficiency requirement for the visa.  Mr Singh was asked to provide that evidence, or evidence that he had booked an International English Language Testing System (IELTS) test scheduled to take place no later than 24 May 2014, at or before the hearing[2].

   [1] Court Book (CB) 97

   [2] CB 97

4. On 13 May 2014, Mr Singh sought to have the hearing postponed: first, because his father was scheduled to undergo surgery in India and he wanted to be with his family and, secondly, because he was investigating available dates to sit a further IELTS test[3]. In support of his request for postponement, Mr Singh attached a medical certificate from a hospital in Amritsar, India[4].

   [3] CB 99

   [4] CB 100

5. By letter dated 15 May 2014, the Tribunal informed Mr Singh that it had decided not to postpone the hearing[5].

   [5] CB 101

6. On 28 May 2014, Mr Singh again sought to have the hearing postponed, informing the Tribunal that his father was scheduled to undergo surgery on 3 or 4 June 2014.  Mr Singh also advised the Tribunal that he had booked an IELTS exam for 7 June 2014[6].  Mr Singh did not provide any documents in support of this further request for adjournment; neither a medical certificate in support of the claim that his father was scheduled for surgery, nor a booking receipt in support of the claim that he had booked an IELTS test.

   [6] CB 106

7. Mr Singh did not provide evidence of competent English before the hearing[7].

   [7] CB 112 at [5]

8. On 3 June 2014, Mr Singh appeared before the Tribunal by telephone[8] and, on 4 June 2014, the Tribunal affirmed the delegate’s decision not to grant Mr Singh a subclass 885 visa[9].

   [8] CB 107

   [9] CB 111

9. The Tribunal noted that to be eligible for the grant of a subclass 885 visa Mr Singh was required to have competent English for the purpose of clause 885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal noted the definition of “competent English” provided in rule 1.15C of the Regulations and found that the applicable instrument in this case (that is, for an application lodged before 1 July 2011) was IMMI 09/73.

10. The Tribunal noted that, in accordance with Berenguel v Minister for Immigration[10], Mr Singh was required to satisfy regulation 1.15C(a)[11]:

    by achieving the specified score in either an IELTS or an OELT, in a test undertaken after the application has been made, but not more than 2 years earlier.

    [10] (2010) 264 ALR 417

    [11] CB 113 at [11]

11. At the hearing, Mr Singh stated that he had sat the IELTS test about six times, but had not been able to achieve the required score.  Mr Singh also stated that he had sat the latest IELTS test on 24 April 2014[12].

    [12] CB 113 [13]

12. Mr Singh requested that the Tribunal adjourn the review “so he could sit another IELTS test soon.”  In denying Mr Singh’s request, the Tribunal stated that he had had plenty of opportunity to obtain the required test result[13].

    [13] CB 113 at [13]

13. In making its decision, the Tribunal noted that it had declined Mr Singh’s request for postponement (prior to the hearing) because the supporting medical evidence was not reliable[14].

    [14] CB 113 at [16]

14. The Tribunal ultimately found that Mr Singh did not meet the requirements of clause 885.213 of Schedule 2 to the Regulations and, therefore, did not satisfy the criteria for the grant of a subclass 885 visa[15].

    [15] CB 113 at [15]

The present application

1. These proceedings began with a show cause application filed on 30 June 2014.  The grounds of that application are:

   1. MRT made decision while I was overseas.

   2. MRT held my interview on 3rd of June on phone while I was overseas. Before my hearing I have requested MRT please allow me extension for few days to provide my IELTS result. I have some family health issues overseas. So I couldn’t concentrate on my IELTS exam and MRT refused my application for GSM.

2. The matter came before me for first court date directions on 29 July 2014.  At that time I gave Mr Singh an opportunity to file and serve an amended application and additional evidence.  He has not taken up that opportunity.  I also listed the matter for a show cause hearing today. 

3. I received Mr Singh’s short affidavit filed with the application. 

4. I also have before me as evidence the Court Book filed on 13 August 2014.

5. This morning my associate received from the Minister’s solicitors an email enclosing a communication received from Mr Singh.  Mr Singh had informed the Minister’s solicitors that he was unwell and provided a medical certificate dated yesterday from the Glenwood Medical Centre.  That medical certificate states, relevantly, that Mr Singh is unfit to attend work for two days on 4 and 5 March 2015.  The certificate was not provided by Mr Singh to the Court directly.  My associate advised the parties that the medical certificate did not state any unfitness to attend Court, and that if an adjournment were to be requested an attendance would be required.  Mr Singh subsequently indicated to my associate that he could be contacted by telephone.

6. Mr Singh was telephoned before I came on the bench.  He requested an adjournment on the basis of his state of health, which appears to be a lower back injury, and also referred generally to the possibility at providing further documents.  In discussion with him, however, there were no particular documents that appeared to have any potential bearing on the issues before the Court.  I offered Mr Singh the opportunity of a hearing by telephone, which he accepted.

7. Mr Singh made oral submissions in which he referred to his poor state of mind at the time of the review before the Tribunal, and his wish to have an adjournment of the review so that he could travel overseas for family reasons, and attempt to pass the IELTS test within a short period of time.  It is apparent from page 103 of the Court Book that the Tribunal declined that request.

8. In relation to Ground 2, pursuant to s.363(1)(b) of the Migration Act, the Tribunal may adjourn the review from time to time. The exercise of this power is guided by s.353(2)(b) of the Migration Act, which provides that the Tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case.

9. In Minister for Immigration v Li[16], the High Court held that a discretionary power must be exercised reasonably, judged by reference to the subject matter, scope and purpose of the legislation under which the discretion is conferred[17]. The High Court stated that while unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification[18], it will be a rare case in which a court will find a discretion given to an administrative decision-maker has been exercised unreasonably[19].

   [16] (2013) 297 ALR 225

   [17] at [23] per French CJ

   [18] at [76] per Hayne, Kiefel and Bell JJ

   [19] at [113] per Gageler J

10. In this case, the Tribunal considered Mr Singh’s request for a hearing postponement, but ultimately refused it because the supporting medical evidence was not reliable.  The evidence in the Tribunal’s letter to Mr Singh of 15 May 2014[20] and the decision record[21] indicates the Tribunal actively considered Mr Singh’s request and, having made its decision, gave its reasons for refusing the adjournment.  In these circumstances, the Tribunal’s exercise of power was reasonable.

    [20] CB 101

    [21] CB 111

11. The Tribunal’s reasons in relation to the review generally are set out relevantly at [12], [13], and [16] of its reasons[22].

    [22] CB 113

12. Mr Singh had made six attempts to pass the IELTS test and had not been able to do so.  The last of those attempts had been only a short time before the Tribunal hearing.  The Tribunal reasoned that no useful purpose would be served by delaying its decision.  The Tribunal offered Mr Singh a hearing by telephone while he was overseas and that offer was accepted.  There is no reason to believe that any procedural unfairness resulted from the hearing being conducted by telephone.  This is not a case where the Tribunal’s refusal to adjourn lacked intelligible justification.  On the contrary, the Tribunal has set out clearly its reasons for declining to adjourn the review.  The case is therefore readily distinguishable from cases such as the Minister for Immigration v Li.

13. This ground of application may be read as a challenge to the Tribunal’s decision to decline Mr Singh’s original request for postponement of 13 May 2014 (prior to the hearing), and not his further request at the hearing.

14. While the Tribunal did not set out its reasons for declining Mr Singh’s request for postponement (of 28 May 2014) prior to the hearing, the Tribunal had already considered and declined Mr Singh’s original request (which was made on similar grounds) and, on 15 May 2014, commenced making arrangements for Mr Singh to appear at the hearing by telephone, which he did. The Tribunal noted in its decision that[23]:

    [i]n any case, the applicant attended the hearing and the hearing was conducted without any problem.

    [23] CB 113 at [16]

15. Insofar as Mr Singh alleges that the Tribunal acted unreasonably in exercising its discretion to conduct the hearing by telephone, I note that pursuant to s.366(1)(a) of the Migration Act, the Tribunal may allow an appearance by the applicant before the Tribunal to be by telephone. In exercising its statutory discretion to proceed by way of telephone, in my opinion, the Tribunal acted reasonably[24].

    [24] Minister for Immigration v Dhillon [2014] FCAFC 1587 at [28] per Allsop CJ, Murphy and Pagone JJ

16. I conclude that Mr Singh has been unable to demonstrate any arguable case of jurisdictional error by the Tribunal. I will accordingly dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,326.  Mr Singh indicated that he understood.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  11 March 2015