SINGH v Minister for Immigration

[2014] FCCA 2772

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2772

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal (“MRT”) – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.885.213, Schedule 2, reg.1.15C

First Applicant: VEERPAL SINGH

Second Applicant: POOJA SHARMA

Third Applicant: NIMAR RANDHAWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 40 of 2014

Judgment of: Judge Simpson

Hearing date: 11 November 2014

Date of Last Submission: 11 November 2014

Delivered at: Adelaide

Delivered on: 11 November 2014

REPRESENTATION

The First Applicant: In person

Solicitors for the First Respondent: Mr d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application for judicial review filed 7 February 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 40 of 2014

VEERPAL SINGH

First Applicant

POOJA SHARMA

Second Applicant

NIMAR RANDHAWA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an application filed on 7 February 2014 for judicial review of a decision of the Migration Review Tribunal (“MRT”), which decision was made on 14 January 2014. 

2. The first applicant is a citizen of India. 

3. On 1 November 2012, the first applicant made an online application for a Skilled Residence Class VB subclass 885 Skilled Independent visa (“the visa”).  The application was refused by a Delegate of the Minister on 31 October 2013. 

4. On review by the MRT on 14 January 2014, it too refused the applicant’s application and affirmed the Delegate’s decision.

5. The applicants’ grounds are as follows (I will read these verbatim):

   “1.MRT refused my review application stating that I don’t satisfy cl.885.213. Member asked himself question that at the time of application I had satisfy Migration regulation r.1.15C(1). Migration regulation cl.885.213 states that applicant should have competent English in 36 months before the date of visa application. This regulation is flawed in itself. I studied a two year diploma course and have lived in Australia since July 2007. I was able to study a diploma level course and survive and work in Australia as I have competent English. Member failed to put weight on this fact. While making a decision on English requirement, Applicant qualifications and length of stay in Australia should be considered.”

6. Ground 2 is in these terms:

   “2.Department of Immigration and border protection has flawed outline visa system.  I being an applicant of subclass 885 visa filled an online application.  In the application for it clearly asks a question “Have you appeared for IELTS in last 36 months”.  I had ticked “NO” in response to this question.  The application further continued and asked me further several questions.  If Department has defined 885.213 stating that an applicant should have English requirement 36 months before the application then when I clearly ticked and option “NO” then application should have not moved further and informed me that it’s a mandatory requirement to apply for this visa.  It clearly shows that subclass 885.213 is flawed and also that it’s not properly followed in online visa system.  This is error in immigration system which should been considered and put weight on.  Tribunal failed to put weight on this fact and hence made error in its decision.” (sic)

7. Prior to applying for the visa, on 16 June 2012, the applicant undertook an International Language Testing System test known as an IELTS test. Schedule 2, reg.885.213 of the Migration Regulations 1994 (Cth) (“the Regulations”) sets out one of the mandatory requirements to be met for a grant of the visa. It provides that the applicant must have competent English. Regulation 1.15C deals with competent English, and states as follows:

   “1.A person has competent English if:

   (a)The person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)The test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)The person achieved a score specified in the instrument.

   2.A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.”

8. It is common ground in this case that the applicant does not have the type of passport that is referred to in subparagraph (2). 

9. An IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening are required.  It is not disputed that the applicant undertook an IELTS test on 28 June 2012 and, therefore, prior to his application for the visa on 1 November 2012.  Whilst the applicant achieved a score of 6 or more in relation to listening, reading and speaking, he failed to achieve a score of 6 or more in relation to writing.  His score was 5.5.  He, therefore, did not meet the necessary requirements to qualify for the visa.

10. In ground 1, the applicant asserts that cl.885.213 is itself flawed. He does not state how it is flawed, nor does he suggest that the Tribunal misapplied the provision or somehow asked itself an incorrect question or identified a wrong issue. Instead, he says that he has competent English by reason of his ability to study and work in Australia since 2007 and that the Tribunal failed “to put weight on this fact”. 

11. The applicant’s complaint misses the point, in my opinion. The only issue which the Tribunal identified as centrally relevant, and which the applicant conceded before the Tribunal that he did not satisfy, was whether he had competent English. The applicant has not proved that the Tribunal was bound to take into account, in the sense of a relevant consideration, his study and work in Australia when determining whether cl.885.213 was met.

12. The applicant’s allegation that the Tribunal failed to give proper weight to a particular matter just because mere preference for a different result is sought is not a valid reason to challenge the Tribunal’s decision.  The assertion in ground 2, that the Department has a flawed online system, is similarly misconceived. 

13. The applicant has failed to show that he had satisfied the competent English requirement at the time of the Tribunal’s decision. 

14. Directing attention to what occurred before the Delegate does not advance the applicant’s case any further in so far as he seeks an order quashing the Tribunal’s decision for jurisdictional error.  The Tribunal clearly considered this submission made at the hearing when the Tribunal had this to say:

    “The Tribunal explained that the relevant period was, in fact, 36 months before the application was lodged, but the applicant conceded that he had not attained the requisite score in a prescribed test conducted during that period or at all.  He also took the opportunity to denounce the practice of the Department accepting online applications from applicants such as himself, who were clearly ineligible for the visa in question.”

15. In my opinion, if the applicant considered that he was clearly ineligible, then it is surprising that he nevertheless applied for the visa, knowing that he did not comply. 

16. Ground 2 of the applicant’s grounds have no merit and clearly should be dismissed.

17. The application is without merit and should be dismissed.

18. I make the orders to be found at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 27 November 2014