Singh v Minister for Immigration

[2014] FCCA 3100

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3100

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal not to grant skilled visa – applicant has failed to satisfy condition attaching to visa – namely proof of competency in English – proceedings before MRT adjourned to allow applicant to attempt further IELTS test – applicant failed to establish proficiency at further test – MRT declined to adjourn proceedings to allow further test – no jurisdictional error established –applicant failed to appear on hearing – no explanation provided for non-appearance – Minister has provided evidence applicant has departed Australia – application dismissed as a consequence of applicant’s non-appearance.

Legislation:  

Federal Circuit Court Rules 2001, Rule 13.03C ; Rule 16.05

Migration Act 1958 (Cth), ss.474 and 476

Migration Regulations 1994, Reg.1.15C

Plaintiff 157/2002 (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Re Minister for Immigration & Citizenship: ex parte Lam (2003) 195 ALR 502

Applicant: BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 331 of 2013

Judgment of: Judge Brown

Hearing date: 24 September 2014

Date of Last Submission: 24 September 2014

Delivered at: Adelaide

Delivered on: 24 September 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Not applicable

Counsel for the 1^st Respondent: Mr Tredrea

Solicitors for the 1^st Respondent: Sparke Helmore

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 7 November 2013 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 331 of 2013

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This morning, I have an application for judicial review, which has been filed by Bhupinder Singh “the applicant”.  The respondents to the application are respectively the Minister for Immigration & Border Protection “the Minister” and the Migration Review Tribunal.  The Migration Review Tribunal has not taken part in these proceedings and the Minister is represented by counsel, Mr Tredrea.

2. The applicant is a citizen of India.  On 25 May 2010, he applied, with the assistance of a migration agent, for a Skilled (Residence) (Class VB) Subclass 885 visa.  It’s convenient to refer to that as “the skilled visa”. 

3. In general terms, the skilled visa is a permanent visa for which certain overseas students, with Australian qualifications may apply, if they satisfy certain conditions specified in Regulations promulgated pursuant the provisions of the Migration Act 1958 (Cth) “the Act”.

4. By way of background, the applicant has a Bachelor of Arts degree from the Punjabi University in India.  That degree was conferred in 2003.  The applicant entered this country on a student visa granted in 2007. 

5. As a consequence of the grant of the student visa, the applicant undertook a Diploma of Community Welfare Work at Cambridge College, which is located in Adelaide.  He completed that diploma in November of 2009 and thereafter, as I say, applied for the skilled visa.

6. Basically, there are two conditions which must be satisfied before a skilled visa can be granted.  Firstly, the applicant concerned must nominate an occupation relevant to the visa in question and thereafter his or her skills have to be assessed as to whether they are suitable to support the performance of the skill so nominated.  In this case there is no doubt that the applicant undertook the necessary skills assessment.

7. The second consideration relates to proficiency in English.  An applicant must demonstrate that he or she has competent English.  The expression, competent English, is defined in regulation 1.15C of the Migration Regulation. 

8. In essence, a person must demonstrate that he has competent English by satisfying the Minister that, in a test prescribed by the Minister under the regulations, concluded not more than two years before the day on which the application was lodged, that he or she had successfully completed that test.

9. There are two such modes of testing.  In this matter, the relevant system of testing is the International English Language Testing Scheme or IELTS test system.  Regulation 1.15C of the regulations requires that an applicant have a score of 6 for reach of the four test components set out in IELTS of speaking, writing, reading and listening in English in order to demonstrate that he or she has competent English. 

10. The applicant undertook the IELTS test but did not, at first instance, pass it.  His application came before a Delegate of the Minister on 10 July 2013 or thereabouts.  The delegate noted that the overall score was unsatisfactory and therefore the applicant did not meet the mandatory requirements attaching to visa in question.  Therefore the delegate declined to grant the visa in question.

11. Thereafter, on 25 July 2013, the applicant applied, as he was entitled to do, for a review of the decision in question to the Migration Review Tribunal “the Tribunal”.  The applicant was invited to appear before the tribunal on 17 September 2013.  However, on 2 September 2013 he wrote to the tribunal requesting that the case be adjourned.  He wrote as follows:

    I am writing this letter to request you that I am going to do IELTS test on 7 September 2013 and the results will come on 20 September.  Please give more time so that I can provide you IELTS certificate.  This time I am quite sure I will get 6 band for each module.  Moreover, I am also taking coaching class from a good tutor.  I hope you will accept my request and give more time to provide – [I think it is] – IELTS documents.

12. The Tribunal quite properly regarded that as an application to defer the applicant’s hearing and, as a consequence his review application was re-scheduled to 1 October 2013.  This deferral took place on the basis that applicant was going to undertake another IELTS test on 7 September 2013.

13. As is clear from the reasons of the Tribunal in question, from the applicant’s point of view, the test he undertook on 7 September 2013 was not successful, as once again, he did not achieve the perquisite score of 6 in each of the components of the IELTS. 

14. For that reason, the Tribunal, after considering regulation 1.15C, determined that the applicant did not have competent English and therefore it affirmed the decision of the Minister’s Delegate not to grant the visa in question.

15. The applicant commenced the application for review of that decision in this court on 7 November 2013.  He has prepared his own application.  He formally seeks a declaration that the recommendation of the Independent Protection Assessment Review was not made in accordance with law. 

16. That terminology is, of course, not applicable to the applicant’s situation.  It demonstrates that he is not familiar with the court’s processes and has had limited assistance, if any at all, in preparing his application to the court.

17. However, it is I think clear that what the applicant wants is an order in the nature of certiorari so that the Tribunal’s decision is quashed and the appropriate prerogative writ is issued directing the Tribunal to reconsider the matter according to law. 

18. What is more germane, at this stage, I think, to the nature of the applicant’s case is the grounds put forward by him in support of his application.  The grounds are simple, although not easy to decipher as they are hand written.  They are as follows: 

    They should give me enough time to do – submit my documents within one month, gave – make a decision out of rule that – [and I can’t read that] – notionally three to 18 months to make a decision.

19. The applicant appeared before the Tribunal, on 1 October 2013, by telephone.  It was his understanding that his application would take between three and eighteen months to be completed and in this context he expressed some surprise that his application for review had been dealt with so quickly. 

20. The Tribunal explained to the applicant that it was working hard in order to process the applications coming before it as soon as possible.  No doubt, from the perspective of the administration of this country that is laudable attitude.  But Mr Singh, as I say, anticipated that it would take longer for his application to be dealt and, by necessary implication, this would give him longer to complete the IELTS test successfully.

21. I do not think it can be said that a tribunal dealing with an application expeditiously is, of itself, a jurisdictional error.  The issue of whether a particular type of application has been brought on prematurely, by the tribunal concerned, is one which must be viewed in the context of what is procedurally fair to the applicant concerned.  It must turn on the circumstances prevailing.

22. It is to be inferred, I think, that the applicant is aggrieved that he did not get more time to, perhaps, try and do a third IELTS test and it was therefore unfair to him that his application for review was dealt with before he had had this opportunity.  In this context, I note that the proceedings were initially adjourned from 2 September 2013 until 1 October 2013 so that the applicant could attempt his second IELTS test, which was not successful.

23. Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.

24. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.

25. The decision of the MRT, which the applicant seeks to review in this case, is such a “privative clause decision” as defined by section 474 of the Act.

26. Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ. 

27. However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[1]

    [1]  See Plaintiff 157/2002 (2003) 211 CLR 476

28. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the tribunal’s power.[2]

    [2]  See Craig v South Australia (1995) 184 CLR 163

29. Jurisdictional error is a complex concept.  It does not entail a merits review or a re-hearing of the facts of the case concerned.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.

30. It is clear from regulation 1.15C that it is a mandatory criterion, that an applicant for the visa in question has competent English.  The manner in which a visa applicant is to satisfy that criterion is prescribed. It turns on the provision of a satisfactory IELTS test.

31. The Tribunal, in my view, considered this issue properly and in the absence of a satisfactory IELTS test, from the applicant, it was bound to refuse the application.  The regulation in question granted it no discretion.

32. A subsidiary issue arises, in the sense that, after having granted one adjournment, albeit a brief one, but which did have the consequence of allowing the applicant to provide more evidence in respect of his competency in English, has the Tribunal been procedurally unfair to the applicant by not giving him more time to undertake a further IELTS test. 

33. That, of course, must be a question of degree, but there is no requirement that a tribunal is to hold its decision-making responsibility indefinitely in abeyance. In my assessment there has been no procedural unfairness to the applicant in question.

34. There has been, in my assessment, no practical injustice afforded to the applicant in the terms envisaged the High Court in Lam. [3]  The Tribunal considered deferring the proceedings, as the applicant requested, to allow a further IELTS test but declined to do so. 

    [3]  Re Minister for Immigration & Citizenship: ex parte Lam (2003) 195 ALR 502

35. In my view, this was not unreasonable given that the Tribunal had already given the applicant some more time to undertake a further IELTS test.  That test did not assist the applicant.  The Tribunal thereafter was not obliged to defer its decision-making process again.

36. In its decision, the Tribunal noted that the applicant had first applied for the visa in May 2010, following an unsuccessful IELTS test in April of that year.  His second unsuccessful attempt was in September of 2013. 

37. In this context, the Tribunal noted that three years had elapsed since the original visa application was made and had the applicant had known the mandatory nature of the IELTS criterion since at least July 2013.  As such, the Tribunal considered that the applicant had had ample time to make the necessary arrangements to make the necessary arrangements to meet the criteria for a subclass 885 visa.

38. This was a finding of fact, which in my view, was reasonably open to the Tribunal to make and supported its conclusion that it was not obliged to defer indefinitely its decision-making processes.  I do not consider that this amounts to an error of law.

39. There is a further complexity in the matter.  The application has been listed before the court for some time.  The applicant has not attended court today.  I have an affidavit which was filed yesterday from William Adam Sharpe, who is a solicitor employed by the solicitor instructed in this matter, by the Minister, Sparke Helmore. 

40. It is the understanding of Mr Sharpe, on the basis of information which has been provided to him by officers of the Department of Immigration that the applicant departed Australia on 10 December 2013.  I have been provided with the microfiche, which evidence that departure. 

41. When the applicant departed he was the holder of a Bridging A visa, which apparently does not entitle him to return to this country.  So the applicant is not here today to argue his case. 

42. On that basis Mr Tredrea, counsel for the Minister, seeks that this application be dismissed pursuant to the provisions of rule 13.03C of the Federal Circuit Court Rules.  That empowers the court, if a party to a proceedings is absent, if that absent party is an applicant, to dismiss the application. 

43. The discretion provided by the rule must be exercised judicially and generally the two important considerations, in the exercise of that discretion, are the strength of the case of the applicant concerned and any explanation which has been provided by him or her for the non-appearance.

44. For the reasons which I have provided, it is my view that the application does not provide any discernable grounds for review or disclose any jurisdictional error in the reasoning of the tribunal.

45. The applicant has not provided any information about his non-attendance.  It might be, I think, be easily construed from the fact that he has left this country voluntarily that, in effect, he has abandoned his application because he regards it as being hopeless. 

46. Whether that is so or not, I do not know, but it is, in my view, certainly evidence that he has not engaged in his application with any degree of energy.  Certainly he has not provided any submissions to the court as he was ordered to do or sought an adjournment of the proceedings on the basis that he would not be in the country.

47. In those circumstances, it is my view that I can exercise my discretion to dismiss the application and that is what I propose to do. It is also my view that costs should follow that dismissal, as is the normal course.  So I will award costs in favour of the Minister in the sum of $6,646.00.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:              5 February 2015