Singh v Minister for Immigration

[2014] FCCA 1933

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1933

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application for a skilled visa – applicant failed to appear before MRT in respect of invitation to give evidence – applicant has failed to satisfy criterion attaching to visa – namely proficiency in English – proficiency in English prescribed by regulation – consideration of merits case – no explanation provided as to why applicant has failed to appear – no error found – application dismissed – order for costs made.

Legislation:  

Federal Circuit Court Rules 2001, Rule 13.03C

Migration Act 1958 (Cth), ss.474 and 476

Migration Regulations 1994, Reg.1.15C

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

First Applicant: RAJNI SINGH (AKA RAJBIR CHAHAL)

Second Applicant PRABHINDER SINGH (AKA PRABINDER CHAHAL)

Third Applicant KIRAT KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 314 of 2013

Judgment of: Judge Brown

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Adelaide

Delivered on: 22 July 2014

REPRESENTATION

Counsel for the Applicants: No Appearance

Counsel for the First Respondent: Mr Tredrea

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 28 October 2013 be dismissed pursuant to Rule 13.03C of the Federal Circuit Court Rules 2001.

2. The Applicants pay the costs of the First Respondent fixed at the sum of FIVE THOUSAND AND EIGHT HUNDRED DOLLARS ($5,800.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 314 of 2013

RAJNI SINGH (AKA RAJBIR CHAHAL)

First Applicant

PRABHINDER SINGH (AKA PRABINDER CHAHAL)

Second Applicant

KIRAT KAUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

MIGRATION REVIEW TRIBUNAL

Respondent

REASONS FOR JUDGMENT

1. This morning I am dealing with an application in which Rajni Singh, Prabhinder Singh and Kirat Kaur are the applicants.  They are each citizens of India and travel on passports issued by that country.

2. The first applicant applies for a skilled provisional class VC subclass 485 skilled graduate visa pursuant to the provisions of the Migration Act 1958 on 18 August 2011. The second and third respondents sought to satisfy the requirements for the grant of the aforesaid visa as members of the first applicant’s family unit, a partner and child respectively.

3. The granting of such a visa is subject to the satisfaction of a number of criteria as specified in the Migration Regulations (1994) In particular, the primary applicant must satisfy clause 485.215 and regulation 1.15(c) of the regulations that a person has competent English. 

4. The statutorily provided basis for competent English is that a person who does not hold a passport from the United Kingdom, United States of America, New Zealand, or the Republic of Ireland, must undertake a language test as specified by the Minister.  India is not one of the countries specified, which escapes that proviso.  The relevant test must be taken within a period of two years prior to the date on which the visa application is made.

5. The Minister is authorised to specify a mechanism by which an applicant may establish that he or she has competent English.  In this case the mechanism concerned was successful completion of a test designed to assess English language skills.

6. The Minister’s delegate declined to provide the visa sought on the basis that the applicant in question had not provided proof that she had successfully undertaken one of the language tests prescribed under the regulations – that is, the International English Language Test System, or the Occupational English Test.  Accordingly, the Minister’s delegate declined to provide or issue the visa in question. 

7. This decision was subject to a review to the Migration Review Tribunal.  The applicant was provided with an invitation to attend the tribunal hearing on 30 September 2013 to provide any submissions she wished to make. 

8. However, the applicant failed to respond to the written invitation within the prescribed period.  In those circumstances, the MRT elected to proceed with the hearing, in her absence, and affirmed the decision not to grant the applicants the visas in question. 

9. As a consequence of this decision on 28 October 2013 the applicants made application to this court.  They seek an order that the decision of the Migration Review Tribunal be quashed.  The grounds of the application are as follows:

   MRT refused my review application, stating I don’t satisfy clause 485.214.  Member asked himself question, that at the time of decision I do not satisfy regulation clause 485.215, which states the applicant should have competent English.  I have been in Australia for more than four years.  I have studied in Australia, and worked here.  It would not have been possible without me having English skills to perform work, study and live in Australia.  The very basis of this English test is wrong.  Another fact is that the applicant’s Australian study, work and periods of stay in Australia should be considered whilst assessing applicant’s English ability.  As tribunal failed to consider all this factor while assessing my application, the decision of tribunal has jurisdictional error. 

10. The applicant has not sought to enlarge upon this ground, and has not submitted any written submissions in support of that application.  The matter was listed before the court for a call-over on 21 May 2014, on which occasion it was allocated a hearing date today, 22 July, 2014, at 10.15 am. 

11. In those circumstances, it seems clear that the first applicant, and those associated with her, were formally informed of the date of today’s hearing.  It is now about 10.50 am on 22 July 2014.  The applicants have not appeared at court, and I have not been advised that they have attempted to contact the court in any way and provide some explanation as to why they are not here.

12. Counsel for the Minister seeks that I should dismiss the application pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules, which provides that, if an applicant to a proceedings before it is absent from a hearing, the court may dismiss the application in question.  It is the submission of the Minister that I should exercise this discretion in the Minister’s favour and against the applicants concerned. 

13. The basis for this submission is, basically, twofold.  Firstly, it is the submission of Mr Treadrea, the Minister’s counsel, that the application is wholly without merit and so has no prospects of success.  Secondly, that, as a matter of public policy, the court should not extend any leniency or accommodation to applicants in migration matters who fail to appear before it.

14. It being the Minister’s contention that, as there are currently many applications before the court, which seek judicial review of decisions of the MRT concerning migration matters, the court has a duty not only to individual litigants, but to the probity of the system as a whole, to deal with applications for judicial review expeditiously and not allow applicants to clog up the system by failing to appear, particularly if they provide no explanation for their non-appearance.

15. In terms of the nature of the application itself, pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has the same original jurisdiction in relation to the migration decisions as the High Court under section 75(v) of the Constitution.

16. However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Migration Act, which are of an administrative nature, are privative clause decisions.  Such privative clause decisions are expressed, by the section, to be not amenable to review by the court or to the application of any of the prerogative writs.

17. The decision of the MRT relevant to this matter is such a privative clause decision.  However, as is well known, the High Court in the case of Plaintiff S157 of 2002[1] has held that the provisions of section 474 do not prevent the review of decisions made by a tribunal, which are affected by jurisdictional error or have been made in bad faith.

    [1] Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

18. Jurisdictional error is a difficult concept to explain.  It does not entail a merits review or a re-hearing of the evidence arising in the decision concerned.  It is a concept which goes to the essential fairness of the hearing process itself, not the fairness of the decision concerned.

19. In general terms, an administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding, or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the tribunal’s power.

20. In this case, the issue before the MRT was not a complicated one.  It was a mandated requirement of the grant of the visa in question that the primary criteria associated with that visa be satisfied by at least one applicant. 

21. One of those criteria was proficiency in English.  The regulations provide the only means by which proficiency in English can be established, it is by the provision of satisfactory test results pursuant to one of the prescribed testing methods.  In this case, the applicant was not able to provide the required proof and, as a consequence, the MRT confirmed the decision not to grant the visa in question.

22. In my view, it is axiomatic, on the material available to me, that there is no jurisdictional error vitiating the decision of the MRT or the Minister’s delegate.  It matters not that the applicant now asserts that she has proficient English.  This court is not the fact finder in respect of that issue.  This was a task for the MRT, which it had to complete with the legislative and regulatory framework provided to it.

23. The regulations are clear that the mandated evidence of any proficiency in English is provision of the test result in question with the mandated score indicating satisfactory proficiency in English.  This was a simple question of fact.  The evidence available to the MRT indicated unequivocally that the applicant had not provided the required test result in question.  Accordingly, in the absence of any discretion, it was obliged to dismiss the application for the visa.

24. Given that the applicant has failed to appear and given my view that her application is ostensibly without merit, it is my view that I should engage the powers provided by the rules, when a party fails to attend court for a hearing – that is dismiss the application. 

25. It is, I think, becoming a relatively common phenomenon that applicants in proceedings of this type fail to appear to argue their cases.  Later they seek to apply to set aside orders which have been made in their absence. 

26. This of itself constitutes a burden for the court.  What the applicants will do in this case, in future, is, of course, unknown to me.  But I think, as Mr Tredrea asserts, there are public policy considerations which behove the court to deal with matters of this kind expeditiously and not provide undue latitude to any applicants. 

27. So for those reasons, I will dismiss the application filed on 28 October 2013.  The Minister seeks an order for costs in the sum of $5,800.00.  I will make an order for costs in this sum.

28. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:             22 July 2014