Singh v Minister for Immigration
[2015] FCCA 44
•20 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 44 |
| Catchwords: MIGRATION – Applicant seeking to reinstate application to review decision of the Migration Review Tribunal – substantive application dismissed after applicant failed to attend directions hearing at Court – applicant did not attend Tribunal hearing either – applicant’s explanation for non-attendance at Court inadequate – applicant’s substantive case hopeless – application to reinstate dismissed. |
| Legislation: Migration Regulations 1994, cls.485.221, 485.215 |
| MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 |
| Applicant: | HARBHAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1202 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms Bosnjak |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application in a Case dated 30 September 2014 seeking to reinstate the substantive application pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1202 of 2014
| HARBHAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 18 June 2014 the applicant sought judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 15 May 2014. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. The grounds of application are set out at the application as:
“1. My application was refused due to inadequate IELTS.
2. I can proof (sic) my English ability if given chance.
3. I had work hard to enhance my English skill.”
The affidavit in support merely says:
“1. All information I will provide to court is true.
2. I am in Court against MRT DECISION. For Refuse my Subclass 820.”
On 17 September 2014 the matter came before Registrar Caporale, who dismissed the application with costs because the applicant did not attend Court. On 6 November 2014 the applicant filed an application in a case that asserted, under the heading Orders Sought:
“I was sick, due to my medical condition i couldn’t attend the hearing. please give me a chance to attend the hearing and explain my situation.”
An affidavit sworn on 22 September 2014, likewise filed on 6 November 2014, relevantly deposes:
“1. I couldn’t attend the hearing last time due to my medical condition.
2. I am in Court against MRT DECISION. (For the refusal of my Skilled Provisional visa application.)”
The affidavit annexes, without any formalities, a medical certificate from Dr Bowen Huang which relevantly says:
“To Whom it May Concern:
This is to certify that Harbhal Singh attended Primary Healthcare Forest Hill on the 17 Sep 2014 and will be unfit to attend work from 17/9, to 18th/9 due to personal illness.”
There is also an attached statutory declaration from the applicant declared on 22 September 2014 which relevantly declares:
“I couldn’t attend the hearing due to my medical reasons.
Please find the attached letter.
Please give me an opportunity to attend the hearing and be able to explain the circumstances as my whole life and its future is based on it.”
In the circumstances I will treat the application in a case as an application made pursuant to Rule 16.05 of this Court’s rules.
The first respondent has filed an outline of written submissions, to which I will return shortly.
At the hearing before this Court, the applicant appeared in person with the assistance of an interpreter. I note, although it is a matter I note only in passing, that when I asked the applicant if he had any capacity to understand or speak English, he replied, through the interpreter, “only a very little”. The matter was stood down so that the Minister’s submissions could be interpreted to the applicant and in his brief address to the Court, the applicant said that he was trying to learn English and should be given some time.
The Minister was thereafter content to rely upon the written submissions and in reply, the applicant said:
“I should be given time. I want to stay here, I’m trying.”
The Minister’s written submissions note the failure of the applicant to attend Court on 17 September 2014 and they put the filing of the application in a case as 30 September 2014, which is not the date on the Court file. In my view, nothing turns upon this discrepancy. The written submissions note the reliance upon the medical certificate and the terms of the medical certificate. The written submissions refer the Court to the substantive law in relation to applications of this sort. In my view, the submissions correctly address the matter.
The applicant needs to explain his failure to appear and he needs to demonstrate that there is an arguable case or question to be tried in the substantive application. I note that the Minister concedes that if the applicant satisfies each of those matters, the Minister does not suggest that there is any prejudice, of itself, sufficient to dismiss the application. The written submissions go on to refer to case law dealing with adequacy or otherwise of medical certificates. It is submitted that the explanation offered by the applicant for his non-appearance on 17 September 2014 is not sufficient.
At paragraph 8, the written submissions assert:
“Medical certificates must address why the medical condition or treatment would prevent the applicant from travelling to the court and participating effectively in the hearing: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 [6] (Lindgren J); Al Mamun v Minister for Immigration and Citizenship [2011] FCA 1394 [8], [13] (Gray J); SZSRM v Minister for Immigration [2013] FCCA 1613 5 (Barnes J); MZYZE v Minister for Immigration [2013] FCCA 569 [24] (Riethmuller J); Nayeck v Minister for Immigration and Citizenship [2013] FCA 512 [5] (Bromberg J); Singh v Minister for Immigration [2014] FCCA 1828 [11]-[12] (Whelan J).”
Those are not, by any means, the only authorities that have reached this conclusion. I would refer to the judgment of Davies J in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488.
Regrettably for the applicant, it is clear that the Minister’s submission in this regard is correct. The certificate provided does not provide any explanation of what the illness that the applicant was said to be suffering with was, nor does it identify why it is that such illness prevented the applicant from attending Court and participating in the proceeding.
Turning to the second aspect of the task facing the applicant, I now consider the merits of the application. In the circumstances, once again, I will closely follow the first respondent’s written submissions. The applicant is a 34 year old citizen of India who applied to the department for a visa on 17 August 2011 (Court Book “CB” 1-11). In his application for the visa, the applicant stated that he had not undertaken an English test within the past 24 months (CB 10). The first respondent, by his delegate, requested the applicant to provide further information, including evidence of his English language ability and of his skills assessment on 21 May 2012 (CB 12-17).
No such further information was provided by the applicant. The delegate refused to grant the visa on 2 July 2012 on the basis that the applicant had not provided satisfactory evidence of competent English as required by cl.485.215 of schedule 2 to the Migration Regulations 1994 and had not provided evidence that his skills had been assessed as suitable for his nominated occupation of pastry cook (ANZSCO Code 351112) as required by clause 485.221 of the Regulations and further, had not paid the required fee which would have allowed him to lodge a valid application for a VC-487 Skilled Regional Sponsored visa.
I note the finding at CB 84 in the following terms, the delegate said:
“On 21 May 2012, a request was made for evidence of a Competent English level being obtained.
No evidence has been provided to show that you have undertaken an IELTS test.
As you did not provide evidence that you achieved an IELTS test score of at least 6 for each of the 4 test components, I am not satisfied that you have competent English, as prescribed in Regulation 1.15C(a)(i).”
On 23 July 2012 the applicant applied to the Tribunal for merits review. He was invited by letter dated 25 February 2014 to appear at a hearing scheduled for 26 March 2014. The applicant did not attend the hearing on 26 March 2014 and did not request an adjournment or otherwise contact the Tribunal. As earlier indicated, the Tribunal affirmed the delegate’s decision on 15 May 2014. The Tribunal’s decision is at CB 133-135. The Tribunal noted that the applicant had not appeared before it, notwithstanding that the invitation to appear had been sent to the applicant’s address for service.
The Tribunal correctly, in my view, identified the first issue as being whether the applicant had competent English within the meaning of regulation 1.15C as required by cl.485.215. Given that the applicant had not provided any evidence of competent English to the delegate or the Tribunal, the Tribunal’s finding that the applicant did not have competent English, as defined in rule 1.15C, and therefore did not meet the requirements of cl.485.215 (paragraph 15, CB 134) was clearly correct.
The Tribunal then went on to consider the skills assessment component already referred to and once again, the Tribunal’s finding at paragraph 24 (CB 135) that the applicant did not satisfy the criteria for a grant of a Subclass 485 visa was correct. It should be noted that the applicant’s submissions to the Court only go to buttress the decision that the Tribunal reached. The applicant made it very plain that what he wants is more time to obtain competent English. Unfortunately, the requirement for competent English cannot be put off in the fashion that the applicant seeks.
The reasons for judgment of the Tribunal not only do not demonstrate jurisdictional error, but show that the Tribunal reached the only decision it could possibly have reached on the materials before it. The applicant did not appear at the Tribunal and seek any adjournment to enable him to improve his English as he has indicated to the Court he is endeavouring to do. In any event, in these circumstances it is clear that the applicant cannot possibly succeed and the application must be dismissed with costs, and I will so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 20 January 2015
0
7
4