SINGH v Minister for Immigration

[2014] FCCA 3155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3155

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – although Applicant passed test for competent English, it provided too late for current application – no jurisdictional error – application dismissed with costs.

Legislation:

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

Migration Act 1958 (Cth)

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

Berenguel v The Minister for Immigration and Citizenship [2010] 114 ALD 1; [2010] HCA 8

Applicant: SHAMINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 385 of 2013

Judgment of: Judge Simpson

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Adelaide

Delivered on: 26 August 2014 (ex tempore)

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitor

ORDERS

1. The Applicant’s application is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 385 of 2013

SHAMINDER SINGH

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 for judicial review of a decision of the Migration Review Tribunal made on 3 December 2013.  The Applicant has appeared before me today.  He has not needed the services of an interpreter.  I have given him the opportunity of putting submissions to me in support of his application.  I have attempted to explain to the Applicant what the obligation of the Court is in relation to applications such as this, and I have explained that it is not possible for me to simply allow him to have a visa, and that what I am required to do is to closely examine what the Tribunal did and to see whether there has been a jurisdictional error.  The Applicant has certainly not indicated a jurisdictional error.

2. The background to this matter is as follows (and I should say that I am relying heavily here on the submissions of the First Respondent). The background is that on 1 July 2011, the Applicant lodged an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa. He lodged his application with the Department of Immigration and Citizenship, as it was then known. It was a criterion for the grant of such a visa that the Applicant have competent English, as is required by cl.485.215 of the Migration Regulations 1994 (Cth) in Schedule 2 and reg.1.15C. On 8 June 2012, the Delegate refused the Applicant’s application.

3. On 19 June 2012, the Applicant applied for review by the Tribunal.  On 29 April 2013, he provided a copy of an IELTS (which is the test that says whether he has English competency) test result dated 6 April 2013 which showed that he obtained a score of at least six for each of the four components, the components being: listening; reading; writing; and speaking.  On or about 19 August 2013, the Applicant made written submissions to the Tribunal which largely focused on his attempts to establish English competency.

4. On 7 November 2013, the Tribunal invited the Applicant to appear before it. It conducted a hearing on 3 December 2013, and on that day affirmed the decision of the Delegate. In its statement of decision and reasons, the Tribunal identified the issues as whether the Applicant had competent English. The Tribunal set out the definition of reg.1.15C, as it appeared at the relevant time; namely, after the amendment of the Regulations made by the Migration Amendment Regulations 2011 (No. 3) (Cth).

5. The particular clause that we are talking about is in the following terms.  Regulation 1.15C provides that a person has “competent English” if the person: (a) satisfies the Minister that, firstly, the person undertook a language test specified by the Minister in writing for this subparagraph; and, secondly, the test was conducted in the two years immediately before the day on which the application was made; and, thirdly, the person achieved a score specified in the instrument. 

6. An alternate way would be for the Applicant to satisfy the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.  That portion of cl.1.15C has no applicability in this case. 

7. The Tribunal then required the Applicant’s evidence at hearing that he had not undertaken an English test prior to the application and achieved the required score.  It found that it was unable to take into account the test score undertaken by the Applicant on 6 April 2013.  The Tribunal found that the High Court’s reasoning in the case of Berenguel v The Minister for Immigration and Citizenship [2010] 114 ALD 1; [2010] HCA 8, did not apply because the High Court considered an earlier version of reg.1.15C.

8. Unfortunately, this Applicant does not have the benefit of it being determined pursuant to that old clause, but it has to come under the clause that I just dictated a little earlier in these reasons. The present version of reg.1.15C, so the Tribunal reasoned, provides a clear temporal period within which the relevant test must be undertaken; namely, the two year period prior to the lodgement. With there being no evidence before the Tribunal that the Applicant had undertaken the test in the relevant two year period immediately before the day he lodged the visa application, the Tribunal found that the Applicant did not have competent English.

9. The Tribunal concluded by affirming the decision under review, which it did on 3 December 2013.  The application that the Applicant lodged on 24 December 2013 indicates that the challenge is to the decision of the Tribunal made on 3 December 2013.  The relief sought by the Applicant is that there be an order that the decision of the Tribunal be quashed.  The grounds of the application are as follows:

   “I went to office of the department on 30 July 2011 with an VC485 application ready for lodgement, and was advised that I was unable to lodge this application by hand.  I posted the same application by Australia Post, as advised by department officer that they will count that for 30 July 2011 date.  My application was later refused on 8 June 2012.  I passed my English test of IELTS taken on 6 April 2013.  My IELTS test results were not accepted by MRT on 3 December 2013, so I would like to lodge my case with Federal Circuit Court to get a favourable decision.”

10. That is the only ground that the Applicant had in his application. 

11. I have invited the Applicant to point to any jurisdictional error that he is able to and, not surprisingly, he was not able to assist the Court in any way insofar as jurisdictional error is concerned. 

12. Although the Applicant is unrepresented, it seems clear from the application, and what the Applicant has said, that the Applicant is seeking merits review.  He has not, however, explained on what basis he challenges the Tribunal’s decision.  The Applicant’s attack on the Tribunal’s decision as presently characterised does not fall within the accepted boundaries of judicial review as it does not allege a jurisdictional error.  In my opinion, there was no jurisdictional error.

13. The Tribunal applied the relevant principles.  It made the only finding which was open to it, given that the Applicant was incapable of producing evidence that he satisfied the English competency requirements, in particular, to have passed a competent English test in the two years prior to filing the application. 

14. In the circumstances, the only course open to me is to dismiss the application and make an order for costs.

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

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  29 April 2015