SINGH v Minister for Immigration

[2014] FCCA 2068

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2068

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – Application for a Skilled (Provisional) (Class VC) Subclass 485 visa – Applicant failed to provide evidence of competent English – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359(2), 359C(1), 360, 362B

Migration Regulations 1994 (Cth), reg. 1.15C , Schedule 2, cl. 485.215

Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1

Applicant: HARPAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2222 of 2013

Judgment of: Judge Hartnett

Hearing date: 2 September 2014

Delivered at: Melbourne

Delivered on: 2 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Mr Petrie

Solicitors for the respondents: Clayton Utz Lawyers

ORDERS

1. The Application filed 12 December 2013 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2222 of 2013

HARPAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings commenced on 13 December 2013 when the Applicant filed an Application seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 21 November 2013 (‘the Decision’).  The grounds of application as set out in that Application are as follows:-

   “1. I have applied for subclass 485 visa on 13.05.2011, with relevant documents, only IELTS was missing and delegate refused my visa on 20/05/2012.

   2.  I have applied to Migration Review Tribunal on 08/05/2012 to consider my application, and submitted document, Honourable refused my application stating ... (sic) I haven’t met requriment (sic) of cl.485.215, but I explained why this happened.

   3.  I have applied for IELTS exam during this period and booked my date also on 03/08/ 2013, but I was sick that time and wasn’t able to attend exam, and due to this I haven’t received my IELTS result, attaching you all the documents for your reference.  I will attend IELTS exam soon and will produce the result to honourable court at earliest.

   I hereby humbly request you to please consider my application and grant me visa.”

2. The First Respondent filed a Response on 7 January 2014.  The First Respondent opposed the application on the grounds that the Decision was not affected by jurisdictional error. 

3. The matter came before the Court on 5 March 2014 before Registrar Allaway.  On that date, the Court made orders by consent which provided, amongst other orders, for the Applicant to file an amended application, if any, and written submissions.  The Applicant has not filed an amended application nor has he filed written submissions.  The grounds of his application thus remained as stated above which are, in essence, no grounds of judicial review in this matter.  This application is entirely misguided and cannot succeed.  Costs will follow the event.

History

1. The Applicant is a citizen of India with an Indian passport.  On 13 May 2011, he applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for the grant of a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa.  The visa class applied for by the Applicant included two subclasses of visa: Subclass 485 (Skilled–Graduate) and Subclass 487 (Skilled–Regional Sponsored).

2. Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) sets out the criteria to be met for the grant of a Skilled (Provisional) (Class VC) Subclass 485 visa. Clause 485.215 of Schedule 2 of the Regulations sets out one of the mandatory requirements for the grant of the visa and being that the Applicant has “competent English”. Competent English is defined in Regulation 1.15C of the Regulations and it states:-

   “If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

   (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii) a score:

   (A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B) in a language test specified by the Minister in the instrument; or

   (b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”

3. I note the expression competent English as defined by Regulation 1.15C of the Regulations is expressed by reference to the time at which the Applicant applied for the visa. Although the requirement for a visa Applicant to have competent English appears under the heading “Criteria to be satisfied at time of application”, given the wording of Regulation 1.15C the criteria may be satisfied at any time prior to the date on which the application is decided.[1]

   [1] Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 at 25.

4. In his visa application, the Applicant stated that he had not undertaken an IELTS test in the 24 months preceding the date on which the visa application was lodged. On 22 March 2012, the Department requested the Applicant provide evidence that he had competent English. At the time of the delegate’s decision, being 20 April 2012, the Applicant had supplied no evidence of his English language ability. As he had not supplied any evidence that he had achieved an IELTS test score of at least six for each of the four test components, nor had the Applicant provided any results from an OET language test, the delegate was not satisfied that he had competent English as prescribed in Regulation 1.15C(a)(i) of the Regulations. The Applicant was not the holder of a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland. Thus, the delegate was not satisfied that the Applicant met the requirements of Regulation 1.15C of the Regulations in its entirety.

5. On 8 May 2012, the Applicant applied to the Tribunal for review of the delegate’s Decision. 

6. Under “Part F-Representative details” of his Application to the Tribunal, the Applicant stated that any correspondence from the Tribunal should be sent to his representative at “38 Wattlevalley Drive Hillside Victoria 3037” and provided the email address  “[email protected]”.

7. On 9 May 2013, the Tribunal sent a letter to the Applicant, care of his representative’s address, in which it noted, amongst other things, that if the Applicant wished to provide material or written argument for the Tribunal to consider he should do so as soon as possible. 

8. By letter dated 18 June 2013 and sent to the representative’s address, the Tribunal invited the Applicant pursuant to s.359(2) of the Migration Act 1958 (Cth) (‘the Act’) to provide the following information in writing:-

   “Evidence that you meet the definition of ‘competent English’ in regulation 1.15C of the Migration Regulations 1994 (the Regulations).”

9. Further, Regulation 1.15C of the Regulations was set out in the body of the ‘invitation to provide information’ letter forwarded to the Applicant’s authorised representative.  The Applicant was requested to provide such information to the Tribunal by 25 July 2013.  The letter noted the Applicant could seek an extension of time if he required one.  Importantly, the Tribunal also noted:-

   “If the tribunal does not receive the information within the period allowed or as extended, the tribunal may make a decision on the review without taking any further action to obtain the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.”

10. By email dated 22 July 2013, the Applicant’s representative informed the Tribunal the Applicant had arranged to sit an IELTS test on 3 August 2013.  By letter dated 24 July 2013, the Tribunal granted the Applicant an extension of time to respond to its letter of 18 June 2013 to 16 August 2013. 

11. By email dated 16 August 2013, the Applicant’s representative informed the Tribunal that the Applicant was not able to sit the IELTS test on 3 August 2013 due to illness.  A medical certificate was attached to the representative’s email, although no illness was specified.  The representative sought a further extension to provide the results of an IELTS test that the Applicant had scheduled to sit on 17 August 2013. 

12. By email dated 20 August 2013 and sent to the representative’s address, the Tribunal informed the Applicant no further extension of time would be granted in respect to its letter of 18 June 2013.  However, the Tribunal informed the Applicant that it would defer making a decision until the week beginning 2 September 2013 to enable the Applicant to provide the results of the IELTS test of 17 August 2013. 

13. By email dated 5 September 2013 and sent to the representative’s address, the Tribunal informed the Applicant that it had not yet received the results of the IELTS test the Applicant had scheduled to sit on 17 August 2013.  The Applicant was advised that the Tribunal would make a decision in the week commencing 9 September 2013, and that the results from the test undertaken on 17 August should therefore be provided by this date. 

14. By letter dated 25 September 2013 and sent to the representative’s address, the Tribunal invited the Applicant to attend a hearing on 20 November 2013, the Tribunal having formed the view that the email sent by the authorised representative on 22 July 2013 constituted a response for the purposes of s.359C(1) of the Act.

15. The Applicant failed to appear at the hearing on 20 November 2013, and did not seek any adjournment of that hearing. 

16. On 21 November 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa.  In its Decision the Tribunal, as accurately summarised by Counsel for the First Respondent:-

    a)noted the various correspondences referred to in the Reasons above;

    b)noted that the Applicant failed to appear at the hearing as scheduled for 20 November 2013;

    c)exercised its discretion pursuant to s.362B of the Act to proceed to make a decision;

    d)found that the Applicant failed to provide evidence that he had competent English within the meaning of Regulation 1.15C of the Regulations;

    e)found that the Applicant did not satisfy the requirements of cl.485.215 of Schedule 2 of the Regulations;

    and, therefore, affirmed the earlier decision of the delegate not to grant the visa. 

Consideration

1. The Applicant has not particularised any proper grounds of review in his application. The Tribunal’s decision was not affected by jurisdictional error. The Tribunal’s decision was the only one open to it on the evidence before it. The Tribunal had clearly put the Applicant on notice that he was required to demonstrate competent English for the purposes of Regulation 1.15C of the Regulations. The Tribunal had gone to some lengths to make that position clear to the Applicant. The Tribunal had granted the Applicant a number of opportunities to provide the necessary evidence. The Applicant failed to provide any such evidence. The failure of the Applicant to give the evidence necessary, as required by Regulation 1.15C of the Regulations, was dispositive of his application for review before the Tribunal.

2. The Tribunal complied with its obligation under s.360 of the Act to invite the Applicant to a hearing. The Tribunal is empowered by s.362B of the Act to exercise its discretion to make a decision without taking any further steps to allow or enable the Applicant to appear before it. There is nothing in the decision that suggests a failure to afford procedural fairness to the Applicant, nor any decision or conduct of the Tribunal that would lead to the decision being attended by jurisdictional error. The application is entirely without merit.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  5 September 2014