SINGH v Minister for Immigration
[2014] FCCA 2219
•4 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2219 |
| Catchwords: MIGRATION – Judicial review – whether applicant had competent English – findings of fact not amenable to review – application for adjournment – medical certificate not include details of illness or a statement that applicant cannot attend the hearing – insufficient to support adjournment – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.13.03C(1)(e) Migration Act 1958 (Cth), s.65 Migration Regulations 1994, reg.1.15C, Sch.2 cl.485.215, 487 |
| Abebe v Commonwealth (1999) 197 CLR 510 Kim v Witton (1995) 59 FCR 258 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208 Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | GURDAVINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 506 of 2013 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 4 September 2014 |
| Date of Last Submission: | 4 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2014 |
REPRESENTATION
| The Applicant did not appear |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
Pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Court proceeds to deal with the claim in the absence of the applicant.
The application for judicial review filed 17 April 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 506 of 2013
| GURDAVINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 27 March 2013. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.
By orders of Registrar Caporale dated 5 June 2013, the applicant was to file and serve written submissions. None have been filed.
The matter was listed for hearing on 29 May 2014, but the applicant presented a medical certificate. As a result, the hearing was adjourned. Yesterday a letter from the applicant and a further medical certificate were delivered to the registry with a request for another adjournment. The medical certificate provided has no description of any illness or injury to the applicant. It states the applicant is “unfit for work duties from 3/9/14 to 4/9/14”. There is no statement that the applicant is unable to attend Court today.
The first respondent opposes an adjournment. The Court finds the medical certificate is inadequate and does not justify an adjournment. The applicant was advised by email yesterday that the matter will proceed today and his presence is required. The applicant has not appeared. The Court will proceed with the hearing generally pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (the “Rules”).
As stated, the applicant has not appeared today. Mr Petrie represents the first respondent.
The applicant for a Skilled Provisional visa Subclass 485 on
19 October 2011 (Court Book “CB” p.1). A delegate refused to grant the visa on 13 July 2012 because the applicant did not satisfy cl.485.215 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”). That clause required that the applicant have ‘competent English’ which is defined in reg.1.15C of the Regulations. Those provisions at the time were as follows:
Regulation 485.215
The applicant has competent English.
Regulation 1.15C
(1)If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a)satisfies the Minister that:
(i)the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii)the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii)the person achieved a score specified in the instrument; or
(b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The applicant applied to the Tribunal for a review of the decision of the delegate (CB p.36). The Tribunal invited the applicant to appear before it on 25 March 2013 to give evidence and present arguments (CB p.77). The letter advised the applicant that the Tribunal was unable to make a favourable decision on the information before it and requested the applicant to provide evidence that he had competent English as soon as possible (CB p.78.3). The applicant failed to attend the hearing (CB p.85).
When the applicant failed to attend the hearing and accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) per Downes J at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
In SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Reeves J at [21] to [22] stated:
“The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.
Further at [22], his Honour stated:
“…the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.”
The Tribunal found that there was “no evidence” that “the applicant has sat an English language test in the two years prior to the date of the application” (CB p.94.2). The Tribunal then found that the applicant did not have competent English as defined in reg.1.15C, and therefore, could not satisfy cl.485.215 or meet the criteria for a 487 visa (CB p.94.4).
Section 65 of the Migration Act 1958 (the “Act”) requires that a visa be refused if an applicant does not meet the criteria for the visa. The Tribunal affirmed the decision of the delegate not to grant the applicant a visa (CB p.94.5).
The applicant’s ground for judicial review is set out in the application filed on 17 April 2013 as follows:
(1)The decision of the tribunal was made without jurisdiction or is affected by an error of jurisdiction;
Particulars
The applicant says that he believes he has undertaken an English test in the past.
Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:
“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.
The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish that matter, include that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.
The first respondent filed and served written submissions on
31 October 2013. The first respondent notes that in the application for a visa made on 19 October 2011, the applicant stated that he had not undertaken an English language test within the last 24 months. That appears on CB p.8.
The applicant’s ground alleges that he believes that he has undertaken an English language test in the past. However, he stated in his application for a visa that he has not undertaken an English language test within the last 24 months and the applicant has failed to produce any evidence that he has undertaken such a test. The Tribunal found as a fact that the applicant did not have competent English as defined.
“Whether the applicant has “complied substantially” with a [visa] condition… is a question of fact, to be determined having regard to the particular circumstances of the case”: see statements in Kim v Witton (1995) 59 FCR 258 at p.271 followed in Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. Findings of fact are not amenable to judicial review.
The Court finds that that principle applies to compliance with a criteria for a visa, not just substantial compliance, so that the Court reads it in this case “whether the applicant has complied with a visa condition is a question of fact to be determined having regard to the particular circumstances of the case”. That finding that the applicant has not complied with the criteria is a finding of fact that is not amendable to review.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court... Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
The Court refers to the following decisions:
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
In the applicant’s Affidavit filed on 17 April 2013, he asserts that he has competent English and had sat for an English language test in the past. The applicant did not provide evidence to the Tribunal that he had undertaken an English language test in the 24 months prior to his application for a visa. The Tribunal dealt with the issue of whether the applicant had competent English and found that he did not (CB p.94 [11]). That finding of fact was open to the Tribunal on the material before it and is not amenable to review: NAHI, Wu Shan Liang and Abebe (supra).
The Tribunal found that there was no evidence before it that the applicant sat an English language test in the two years prior to the date of application (CB p.94 [11]). That was a requirement in reg.1.15C at the time (CB p.93 [2]).
The statement in the applicant’s affidavit of 17 April 2013 was inconsistent and in conflict with his statement in his application at p.8 of the CB. The Tribunal then considered whether the applicant satisfied the criteria for a subclass 487 visa and gave reasons why he did not (CB p.94 [13]). The statement in the applicant’s affidavit that he had sat a test is an attempt to review the merits of the Tribunal’s decision which is not allowable in a judicial review: NAHI and Wu Shan Liang (supra).
An error of law by the Tribunal has not been established. The application for judicial review is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 24 September 2014
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