Singh v Minister for Immigration

[2014] FCCA 1828

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1828

Catchwords:
MIGRATION – Application under Rule 16.05(2) Federal Circuit Court Rules 2001 to reinstate application for judicial review; unsatisfactory explanation for non-appearance; no merit in application; application under Rule 16.05(2) of the Federal Circuit Court Rules 2001 dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.885.213, reg.1.15C
Federal Circuit Court Rules 2001 (Cth), Rule 16.05(2)

MZYZE v Minister for Immigration & Anor [2013] FCCA 569
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559

Applicant: JASPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 704 of 2014

Judgment of: Judge Whelan

Hearing date: 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Melbourne

Delivered on: 24 July 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr B. Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application in a Case filed 9 July 2014 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,932.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 704 of 2014

JASPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

1. This is an Application in a Case (“the application”), under Rule 16.05(2) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) seeking reinstatement of an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”), which refused the Applicant a Skilled (Residence) (Class VB) visa.[1] 

   [1] Application in a Case filed 9 July 2014.

2. The substantive application (“the substantive application”) was set down for a directions hearing on 2 July 2014.[2] The Applicant failed to appear, and the application was therefore dismissed. In his affidavit in support of this application, the Applicant says:

   I was genuinely got [sic] very sick early in the morning of

   
   

   2nd July[3]

   [2] Application filed 15 April 2014.

   [3] Affidavit of Jaspreet Singh filed 9 July 2014 at p.1.

3. The Applicant attached a medical certificate (“the certificate”) dated

   
   

   3 July 2014, which certified that he had attended a DR ANSARI on

   
   

   3 July 2014.[4] It concluded that, because of having a medical condition, the Applicant was unable to attend work from 2 July 2014 to 4 July 2014 inclusive.

   [4] Affidavit of Jaspreet Singh filed 9 July 2014.

4. The substantive application itself is supported by an affidavit, which states:

   I want to apeal [sic] against the decions [sic] to refuse skilled resident class VB visa.[5]

   [5] Affidavit of Jaspreet Singh filed 15 April 2014, p.1 at para.2.

5. The grounds given for the substantive application are as follows:

   1.  I consider myself eligible to be granted subclass 885. 

   2.  I want to apeal [sic] against the decision made by MRT, as I am not satisfied by the claims they have made under their decion [sic] decord [sic].

   3.  Further documentation will be provided later.[6]

   [6] Application filed 15 April 2014 at p.3.

6. The reasons for decision given by the Tribunal refer to the requirements of cl.885.213 of Sch.2 of the

   
   Migration Regulations 1994

   (Cth) (“the Regulations”), that requires that the applicant have competent English which, in turn, is defined by Reg.1.15C of the Regulations. Regulation 1.15C, provided, at the relevant time, that:

   (1)    A person has competent English if:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the test was conducted in the 2 years immediately before the day on which the application was made, and

   (c)the person achieved a score specified in the instrument.

   2.  A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.[7]

   [7] Outline of the First Respondent’s Submissions in Relation to the Application in a Case filed 9 July 2014, filed 24 July 2014, pp.3-4 at para.16.

7. In this case, there is no doubt that the Applicant undertook a language test specified by the Minister in writing for the purposes of subcl.1(a) of reg.1.15C of the Regulations. The issue that was before the Tribunal was that the Applicant had provided the Department of Immigration and Citizenship (“the Department”) with three test results, none of which met the requirement of reg.1.15C of the Regulations. The Applicant then provided a copy of an International English Language Testing System (“IELTS”) test report dated 11 April 2012 which did show that he had achieved the requisite score. That test however, was completed after the application had been lodged, and for this reason, the Tribunal found that it therefore did not meet the requirements of reg.1.15C(a)(ii) of the Regulations. The Tribunal therefore found that the Applicant did not meet the requirements for the granting of the visa.

8. The Court has the power to set aside a judgment where the order was made in the absence of a party, but only if the Court considers that it is in the interest of justice to do so. In deciding whether to grant the application, the Court must be satisfied:

   ·There was adequate reason for the non-appearance of the applicant;

   ·There was an arguable case on the merits of the substantive application; and

   ·It is in the interests of justice to allow the application to proceed.

9. The Applicant says he was ill on 2 July 2014 and provided a medical certificate. The certificate says nothing about the Applicant’s capacity to attend Court. As Judge Riethmuller noted in the matter of

   
   MZYZE v Minister for Immigration

   [2013] FCCA 569:

   Of course, it will be a rare case where a person is so ill as to prevent their attendance at a Tribunal hearing. Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment. [8]

   [8] [2013] FCCA 569, p.8 at para.24.

10. His Honour then referred to a number of cases on adjournment, in particular, the matter of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559.

11. Lindgren J said, in that matter, with respect to a certificate that was in similar terms:

    [6] The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the court and participating effectively in a court hearing.

    [7] I do not accept that either of the medical conditions referred to would make the sufferer ‘unable to attend court’ — apparently each was able to attend upon the medical practitioner.

    [8] If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a court hearing, they do not in fact say that and do not explain why the medical condition would have that effect.

    [9] I take into account the fact that the two medical certificates are structured identically, use the expression ‘he/she’, and are dated the same day, which was only two days before the hearing. The certificates have the appearance of being pro forma certificates which are available for the asking.

    [10] In any event, even accepting the certificates on their face, I find them unpersuasive for the reasons given at [6]–[8] above.

    [11] I refuse the application for an adjournment.[9]

    [9] [2003] FCA 1559, at p.2.

12. In those cases, the matters concerned applications for adjournment. This is an application to reinstate proceedings, but I accept, and the First Respondent has made submissions in that respect, that similar principles should apply. The certificate in this case suffers from the same deficiencies as those referred to by Lindgren J and by

    
    

    Judge Riethmuller. I am not satisfied, on that basis, that the Applicant has established an adequate reason for his non-appearance. I then turn to the grounds for review of the substantive application. 

13. The grounds in themselves do not indicate that the Tribunal made an error of jurisdiction. The grounds actually suggest that the Applicant is seeking a review on the merits of the Tribunal’s decision. The Tribunal was bound to apply the provisions of cl.885.213 and reg.1.15C of the Regulations. On the material before the Tribunal, the Applicant was unable to provide evidence that he had achieved the specified score on an IELTS test conducted in the two years immediately before the day on which the application was made.

14. The visa application was made on 10 November 2011. A score achieved in the test conducted after that date was therefore not relevant for the requirement of the Regulations. On that basis, I am satisfied the Tribunal did not make a jurisdictional error in rejecting the application. Having found those two matters, I am therefore satisfied that this is not a matter where the Court should exercise its discretion to reinstate the application for judicial review of the decision by the Tribunal.

15. The application is therefore dismissed.

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

Associate: 

Date:  14 August 2014