Singh v Minister for Immigration

[2014] FCCA 3132

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3132

Catchwords:
MIGRATION – Decision of the Migration Review Tribunal – application for judicial review – no appearance by applicant – applicant has supplied a generic medical certificate shortly prior to hearing – no error disclosed in primary decision – application dismissed in default of appearance.

Legislation:  

Federal Circuit Court Rules 2001: r.13.03C

Applicant: SATINDERPAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 291 of 2014

Judgment of: Judge Brown

Hearing date: 3 December 2014

Date of Last Submission: 3 December 2014

Delivered at: Adelaide

Delivered on: 3 December 2014

REPRESENTATION

Counsel for the Applicant: No Appearance

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Applicant pay the costs of the First Respondent fixed at SIX THOUSAND AND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

2. The application filed on 1 August 2014 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 291 of 2014

SATINDERPAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Migration Review Tribunal made on 8 July 2014 not to grant the applicant a skilled provisional (class VC) visa.

2. The applicant has not appeared at court today to pursue his application and the first respondent, the Minister for Immigration and Border Protection seeks the dismissal of the application.  The applicant has provided a medical certificate as the reason why he asserts he has not been able to attend court.

3. The applicant applied for a skilled graduate visa on 17 May 2011.  The visa has conditions attached to it which have been described as being time of application criteria, one such criterion is proof of competency in English.

4. As I understand it, under the applicable regulations, such competency can be established in one of two ways.  In this matter, the relevant mechanism is through the IELTS or International English Language Testing System.

5. The evidence, which was available to the Migration Review Tribunal, at the time of hearing, was that the applicant had not provided evidence that he had passed the test satisfactorily.

6. It is apparent from the decision of the MRT that the reviewer was of the view that the applicant was on notice that it was an essential condition of the grant of the visa that proof of competency in English be provided as required by the regulations. 

7. The reviewer also found that the applicant had had ample time to complete the test required and even if he had not passed the test at the time of the visa application, he had had ample time to do so after his application for a visa had been made.

8. This is an unusual case in one sense, in that a decision relating to the application in question, has been made previously.  That decision was quashed by this court, with the consent of each of the parties, because on the first review application, that is, the one that was quashed, the applicant sent in a medical certificate, which seems to have been in similar terms to the one relevant for today,  which indicates that the applicant is unwell. 

9. On that basis the first hearing date was deferred to another date.  Not any great period of time, but a fresh invitation letter, I think, was sent, inviting the applicant to attend the new hearing and provide details.  But there was no satisfactory chain of evidence or satisfactory proof that it had got to the applicant and the decision was apparently quashed on that basis. 

10. Although Mr Singh was informed that another reviewer would deal with the matter, in the letter, it in fact went to the same reviewer at the MRT, who reached the same conclusion, as had been reached in respect of the first review.  I think, from memory, and I can be corrected if I am wrong, but Mr Singh did not attend the second hearing either.

11. Anyway, he did not send the information request about his competency in English. This information was patently required, both from the Tribunal’s point of view and indeed, from the applicant’s point of view, to found the visa application.  Without proof that the applicant had sufficient English proficiency neither the Minister nor the Tribunal could grant the visa in question. 

12. On that basis the Tribunal affirmed the decision of the delegate of the Minister not to grant the skilled provisional class VC visa.  That led to this application, which was filed in time on 1 August 2014 and the applicant seeks an order that that decision of the tribunal be quashed.

13. The ground of the application is as follows:

    MRT refused my review application stating that I don’t satisfy clause 485.215 as I do not hold competent English 1.15C(a).  I have been living and working in Australia since 2008.  I have been living and working in Australia more than five years.  I have been able to live and work for such a long time as I have good English skills.  This matter should have been considered by tribunal member while making decision on my application.  When I had English skills, then and only then am I able to work and live in Australia and it should be considered while making the decision and that member failed to put on this fact and thus made an error in his decision, as is well known to members of the legal profession and those who practise in this particular jurisdiction, though perhaps not to members of the public in general. 

14. The decision of the MRT in question is of course a privative clause decision.  Therefore this court’s jurisdiction to review any decision of the MRT is closely confined and arises only as a result of the various decisions of the High Court, which hold that a decision which is vitiated by jurisdictional error is no decision at all and is subject to correction by issue of prerogative writ. 

15. Now, the concept of jurisdictional error is a hard one to explain to a layperson, but it does not mean that there is a re-hearing or that I am able to substitute my discretion for that of the Tribunal.

16. In any event, the reviewing role of the Tribunal is in itself closely confined.  It had to apply the relevant regulations and proof of competency in English can only be established only by provision of a satisfactory score in an English language test prescribed by the Minister.

17. In my view, the application for review, which the applicant has filed, is an inchoate appeal for a re-hearing of the visa application on the basis that he speaks good English, as a consequence of his long residence in Australia.  Therefore there is no need for him to provide a satisfactory IELTS test. 

18. At first blush I can see no error in the decision of the tribunal.  The applicant was invited to attend and there is no flaw that is pointed to in respect of that invitation.  That invitation was not taken up and in my view, the MRT had really no – there is no really about it – had no alternative open to it other than to find that the essential precondition of the visa had not been satisfied. 

19. The Tribunal was required to apply the definition of competent English arising from regulation 1.15C of the Migration Regulations.  As such, it had no authority or jurisdiction to conduct its own independent assessment of the applicant’s proficiency in English in the absence of an IELTS test result.  I can find no jurisdictional error in what the Tribunal decided.

20. The application had its first directions hearing on 12 September of this year.  The applicant appeared with an interpreter at that hearing.  The order made on that day listed the matter for hearing today at a quarter past 2. 

21. So it would appear clear that the applicant knew of the date for the hearing, when it was fixed.  He was required to do certain things.  He has not filed any further material.  He has not filed an outline of submissions. 

22. The only thing that has occurred is that he has provided yesterday a medical certificate under the hand of a doctor, Dr Sanjay Saluja, who practices in Virginia in South Australia, which reads as follows:

    This is to certify that I have today examined Mr Satinderpal Singh –

    and then there is his address:

    In my opinion, this person will be unfit for normal work from 2 December 2014 to 5 December 2015 inclusive.

23. Of course, the period of the certificate surrounds the date fixed for this hearing.  There is no indication on the medical certificate as to what is the ailment from which Mr Singh is said to suffer.  In addition, it is not indicated how long Mr Singh has had the unspecified illness. 

24. In my view, the medical certificate is wholly unsatisfactory, and regrettably, follows the applicant being less than acceptably proactive in pursuing his application.  Certainly, in my view, the certificate is not sufficient to ground an adjournment application. 

25. Mr d’Assumpcao, for the Minister, asserts that it is a mechanism to delay the inevitable, and given what I have found about the grounds of review and the ostensible failure of the applicant to delineate some species of jurisdictional error, it is hard to quibble with such a submission.

26. I have authority, pursuant to rule 13.03C of the Federal Circuit Court Rules to dismiss an application if an applicant is absent and Mr d’Assumpcao, counsel for the first respondent, seeks that I do so or I gather it would be his preference that I dismiss the application on the basis that it has no reasonable prospects of success. 

27. In some ways, the distinction may be a semantic one.  However, there is provision in the rules, in particular rule 16.05, for the court to set aside its order after it has been entered if an order is made in the absence of a party.  That rule is a means of remedying potential injustice and also avoiding a person who has failed to attend court, perhaps for some legitimate reason, being put to the expense of having to appeal.  The rationale for any application of the rule, of course being that is in the interests of justice for it to be utilised.

28. Whether Mr Singh will seek to avail himself of that rule, I do not know, but I have come to the conclusion that, firstly, I should not defer the proceedings and they need to be finalised. At this juncture I think it is appropriate that I dismiss the application pursuant to rule 13.03C in default of the applicant’s appearance.

29. Like all discretions, that is a discretion which must be exercised judicially and one of the factors, of course, is why a person purportedly has not appeared, and as I have said already, I view the medical certificate as entirely unsatisfactory. 

30. Then I have to make some sort of assessment of the claim, and for the reasons I have provided, I can see no realistic ground of review. So, for those reasons, I will dismiss the application pursuant to rule 13.03C of the Federal Circuit Court Rules.  Costs should follow in the amount sought by the Minister.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date:              10 March 2015