SINGH v Minister for Immigration
[2014] FCCA 2047
•1 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2047 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – application for Skilled (Provisional) (Class BC) Subclass 485 visa – “show cause” hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.362B Federal Circuit Rules 2001 (Cth), r.44.12 |
| Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 Habib v Minister for Immigration and Citizenship [2010] FMCA 450 |
| Applicant: | INDERJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1717 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 1 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2014 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the respondents: | Mr Hornsby |
| Solicitors for the respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the Application filed 15 October 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1717 of 2013
| INDERJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
This application commenced on 15 October 2013 wherein the Applicant filed an Application seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 12 September 2013 (‘the Decision’). The Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Skilled (Provisional) (Class VC) subclass 485 visa.
The matter proceeded as a show cause hearing this day pursuant to r.44.12 of the Federal Circuit Rules 2001 (Cth) (‘the Rules’) which is as follows:-
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
The issue for determination before the Court this day is whether the application made by the Applicant raises an arguable case for the relief claimed[1]. In satisfying the Court, the Applicant is confined to the relief sought and the grounds mentioned in the application for judicial review. If the Court is not satisfied, it may dismiss the application.
[1] r.44.12(1) of the Federal Circuit Rules 2001 (Cth).
The grounds as set out by the Applicant in his Application filed 15 October 2013 are as follows:-
“1. My visa is refused by MRT, u/s.65 of Migration Act, I am currently preparing for my IELTS and will submit, IELTS score of 6 each to the Honourable court before hearing date.
I hereby request to honourable court to please consider my request and extend my application, so that I can get favourable result.”
The First Respondent filed a Response on 23 October 2013 seeking that the application for judicial review be dismissed on the basis that the Applicant was inviting the Court to undertake a review of the merits of the Decision; that the application for judicial review did not establish any jurisdictional error in the Decision; and that the application did not raise an arguable case for the relief claimed and should accordingly be dismissed pursuant to r.44.12 of the Rules.
The First Respondent filed an Affidavit on 5 December 2013 sworn by Ms Sharon Sangha, a solicitor employed by Sparke Helmore Lawyers, the solicitors for the First Respondent, wherein she deposed as to the registered post correspondence of 14 August 2014 of the Department of Immigration and Border Protection to the Applicant, at his nominated postal address. I note that Affidavit went to service of the invitation to appear before it by the Tribunal upon the Applicant’s authorised recipient, being his registered migration agent.
Registrar Allaway made Orders on 18 December 2013 providing for the Applicant to file and serve any amended application including any additional grounds of review with complete particulars of each ground and any other affidavits on or by 5 March 2014. The Applicant was also, pursuant to those Orders, at liberty to file and serve any written submissions before this hearing. The Applicant has failed to provide any amended application or put any further grounds of judicial review before the Court this day.
Background
The Applicant is a citizen of India who is now aged 36 years. He arrived in Australia on a passport issued in India and on 29 March 2011 applied to the Department of Immigration and Citizenship (as it then was) for a Skilled (Provisional) (Class VC) visa. At the time the visa application was lodged, Skilled (Provisional) (Class VC) visas contained two subclasses; Subclass 485 (Skilled-Graduate) and Subclass 487 (Skilled-Regional Sponsored). The relevant subclass in the Applicant’s case is subclass 485, the criteria for which are set out in Reg.485, Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate refused the Skilled (Provisional) (Class VC) subclass 485 application on 22 May 2012, because the Applicant did not have the required English language proficiency. That was as set out in Reg.1.15C of the Regulations wherein “competent English” was defined as follows:-
“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.”
The Applicant did not hold the passport of a type specified by the Regulations as referred to, that applying to passports issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland.
On 8 June 2012, the Applicant through his authorised representative applied to the Tribunal for review of the delegate’s decision. On 13 August 2013, the Tribunal wrote to the Applicant via his authorised representative to invite him to appear at a hearing on 10 September 2013 to give evidence and present arguments. In that invitation, the Tribunal expressly noted that the Applicant had not yet provided evidence that he had competent English. No response to the invitation was received and the Applicant did not appear before the Tribunal at the scheduled hearing on 10 September 2013.
Tribunal hearing
The Applicant had been advised in his hearing invitation that if he did not attend the scheduled hearing, the Tribunal may make a decision on his case without taking any further action to allow or enable him to attend before it. The invitation to appear was sent by the Tribunal to the Applicant’s representative’s address for service provided in connection with the application for review, by registered mail (receipt number 490251090019).
Pursuant to s.362B of the Migration Act 1958 (Cth), the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it. The Tribunal was entitled to so proceed.
The Tribunal noted that the Applicant held a passport which did not satisfy Reg.1.15C(b) of the Regulations.
The Tribunal noted the issue in the case was whether the Applicant had “competent English” as required by cl.485.215 of Schedule 2 of the Regulations.
The Tribunal noted that an applicant could satisfy Reg.1.15C(a) of the Regulations by achieving a specified score in either an International English Language Testing System test (‘IELTS’) or an OET in a test undertaken after the application has been made but not more than two years earlier.[2] The Tribunal found however at paragraph 14 of the Decision:-
“There is no evidence before the Tribunal that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted not more than 2 years before the day on which the visa application was lodged or that the applicant achieved a score of at least ‘B’ in each of the four components of an Occupational English Language test conducted not more than 2 years before the day on which the visa application was lodged.”
The Tribunal was therefore not satisfied the Applicant met Reg.1.15C(a)(i) or 1.15C(a)(ii) of the Regulations. The Tribunal thus affirmed the decision not to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.
[2] Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; Habib v Minister for Immigration and Citizenship [2010] FMCA 450.
The grounds as set out in the Applicant filed 15 October 2013 do not raise any arguable case. They seek merits review which is not a function of this Court and also indicate a misunderstanding of this Court’s role. The results of an IELTS test undertaken after the Tribunal’s decision are not relevant to an identification by this Court of a jurisdictional error on the part of the Tribunal.
The application should be dismissed and costs will follow the event.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 5 September 2014
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