Singh v Minister for Immigration

[2014] FCCA 1059

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1059

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – application for a skilled visa – application for an extension of time – applicant failed to appear before MRT in respect of invitation to give evidence – MRT concluded that applicant knew of invitation to appear – is it in the interests of the administration of justice to extend time – applicant fails to appear – consideration of merits of substantive 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.262B, 362B, 474, 476 and 477

Migration Regulations 1994, Part 4A to 5 of Schedule 2, Reg 1.15C

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Craig v South Australia (1995) 184 CLR 163
Rahman v Minister for Immigration & Citizenship [2012] FCA 1312

Applicant: SUKHBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 209 of 2013

Judgment of: Judge Brown

Hearing date: 5 May 2014

Date of Last Submission: 5 May 2014

Delivered at: Adelaide

Delivered on: 23 May 2014

REPRESENTATION

Counsel for the Applicant: No Appearance

Solicitors for the Applicant: Not Applicable

Counsel for the Respondents: Ms Deegan

Solicitors for the Respondents: Australian Government  Solicitor

ORDERS

1. The application will be dismissed.

2. The applicant pay the costs of the application fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY-SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 209 of 2013

SUKHBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Sukhbir Singh, seeks an extension of time in which to review a decision of the Migration Review Tribunal (the “MRT”) not to grant him a Skilled (Provisional) (class VC) subclass Skilled – Graduate 485 Visa (“the Visa”).

2. The MRT decision, made on 2 November 2012, affirmed a decision of a delegate of the first respondent (then entitled the Minister for Immigration, Multicultural Affairs and Citizenship) not to grant the visa on the basis that the applicant did not satisfy one of the necessary requirements for such a visa, namely that he had not provided sufficient evidence of proficiency in the English language.

3. The delegate’s decision was made on 18 November 2011. An application for review of the decision was lodged with the MRT on 6 November 2011. The applicant completed a residential and email address on the pro forma application for review, for contact purposes.

4. On 11 September 2012, a letter was sent to the applicant, by mail, to his residential address, as earlier advised, inviting him to appear before the MRT on 1 November 2012.  The letter was returned unclaimed.

5. As a consequence, an officer of the MRT sent an email to the applicant on 20 September 2012 requesting an urgent response and, in particular, current contact details.

6. This resulted in an email, from the applicant, to the officer concerned, on 21 September 2012, which indicated a new address for the applicant and provided a mobile telephone number, on which he could be contacted.

7. On 15 October 2012, the MRT received a letter from Mr Singh requesting an adjournment of the hearing scheduled for 1 November 2012.  The basis of the request for adjournment was the illness of the applicant’s father, who is a resident of India. A medical certificate was supplied in support of this request.

8. Records of the MRT indicate that the presiding member, in the applicant’s case, was disinclined to adjourn the hearing on the basis of the material provided.

9. Accordingly, the same officer of the Tribunal telephoned the applicant and advised that the only options available to him were to either retain the hearing date of 1 November 2012 or schedule an earlier hearing date.

10. The relevant case note, extracted from the Tribunal’s file, reads as follows:

    “He [the applicant] considered the options for the moment, and then decided that 1 November suited him better.  He then asked what would happen if he did not appear for his hearing.  I explained to him that the member could, in that case, make a decision based on the papers in front of him (anything in the DIAC file, the MRT file and further submissions made by the PRA).  I explained to him that he was more than welcome to send in any submissions relating to his application.”[1]

    [1] See Court book at page 39

11. The applicant failed to attend the hearing in question.  The presiding member was satisfied that the applicant was aware of the hearing date but had elected not to attend it.

12. In these circumstances, the Tribunal considered that it was empowered to finalise the applicant’s review application, in his absence, on the basis of the evidence then available to it.

13. This was as a consequence of the provisions contained in s.362B of the Migration Act 1958 (Cth), which provides that if an applicant is invited to appear before the Tribunal and does not appear on the date so scheduled, the Tribunal may make a decision, on the review, without taking any further action to allow or enable the applicant in question to appear before it.

14. The Tribunal was satisfied that the applicant had not provided evidence to demonstrate that he had competency in the English language, which was one of the required prerequisites of the visa concerned.  The Tribunal also declined to defer making its decision, in regards to this issue, in order to afford the applicant more time in which to undertake the prescribed English language proficiency test or provide further evidence of his English skills.

15. In these circumstances, the Tribunal affirmed the decision not to grant the visa to the applicant in question.  It is this decision, which is subject to review by the Court.

The nature of the application

1. The applicant commenced the current proceedings on 17 July 2013. He seeks that the decision of the MRT be quashed and in lieu thereof, he be given further time to undertake an English language proficiency test. The grounds of the application are as follows:

   “I had applied for Subclass 485 visa on 18/06/2011. My visa was refused on 18/11/2011.  The delegate refused my visa stating that I did not satisfy cl.485.215.  Late in MRT I told Member that I want time for IELTS and I have been in Australia for so long and I can communicate easily in English but member failed to consider my English language ability as well as he did not give me extension of time for IELTS.  Member should have considered length of my stay in Australia and my communication skills before making a decision.  If after considering all this information he was not satisfied then he should have given time to appear for IELTS.  Member made error in his decision.”

2. The application was initially listed for directions before Registrar Christie on 5 May 2014.  The applicant appeared in person, on this date, with the assistance of a Punjabi interpreter.  The case was allocated for hearing, on 5 May 2014 and orders were made for the filing of submissions.

3. The applicant failed to appear at the date and time scheduled for the hearing. In addition, he failed to file any further evidence or submissions in support of his application.  He has provided no explanation to the court in respect of his failure to appear.

4. Given the non-appearance of the applicant, I am satisfied that I have authority to dismiss his application pursuant to the provisions of Rule 13.03C (c) of the Federal Circuit Court Rules 2001.  The rule provides that if a party is absent from a hearing the court may approach the non-appearance in a number of ways, including if the absent party is an applicant – dismiss the application.

5. Notwithstanding this power, I propose to examine the application more carefully, particularly to see if there is any apparent defects in the processes which have led up to the application.

6. Pursuant to section 477 of the Migration Act, any application to this Court, in relation to a migration decision, must be made within 35 days of the date of that decision.  In the case of the current matter, the application was filed more than seven months after the time prescribed.

7. Pursuant to section 477(2) of the Migration Act, the court has a discretion to extend the applicable time frame, if it considers that it is necessary to do so in the interests of the administration of justice. 

8. In order for an applicant to avail himself of such an extension, it is necessary for a written request to be made as to why the applicant in question considers that it is necessary, in the interests of the administration of justice, to make such an order extending time.  This requirement is prescribed by the section concerned.

9. In the current case, it appears to be the case that the applicant made an application seeking to review the MRT decision of 2 November 2012 by way of an application filed on 12 November 2012, but discontinued this application on 10 January 2013.

10. In his current application, the applicant indicated as follows:

    “I had no idea about my rights to go to court and fighting my case. I went to court and withdraw my application without any knowledge. I have consulted any people and being advised that I have right to go to court and fight against the decision. I wanted to apply but had no money but now I know no money cost to apply. Please consider my case.”

11. I am satisfied that this represents a written request for an extension of time in which to seek a review of the decision of the MRT.

12. The Minister opposes the extension of time application.  As previously indicated, the applicant has not appeared at court and so has not provided any further evidence in support of his application for an extension of time.

13. SZMFJ v Minister for Immigration & Anor[2] Nicholls FM (as he then was) considered that the following considerations were relevant to the second limb arising from s.477(2):

    ·The extent of the delay and the reason for the delay;

    ·The merits of the substantive application itself;

    ·Any prejudice which would be created to the respondent, if the application was granted;

    ·The impact on the applicant;

    ·The interests of the public at large;

    ·The Court’s discretion itself.

    [2] SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [9]

14. The exercise of the court’s discretion, as to what is in the interests of the administration of justice, should not be exercised lightly.  However, the applicant himself has not appeared at court to agitate the issue. Accordingly, I have no means of assessing the potential prejudice to the applicant other than I assume he will be required to leave this country.

15. Nonetheless, I propose to consider the substantive nature of the applicant’s claim that the decision of the MRT was vitiated by the legal error.

16. Prior to so doing, it is necessary to outline the jurisdiction of the Court to review decisions of the MRT.

17. Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has the “same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution”.

18. 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 administration nature are “privative clause decisions”.

19. The decision, which the applicant seeks to review, is such a “privative clause decision” as defined by section 474 of the Act. The High Court, in Plaintiff S157/2002 v Commonwealth of Australia [3] has held that the provisions of section 474 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error or have been made in bad faith.

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

20. 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.[4]

    [4] See Craig v South Australia (1995) 184 CLR 163

21. The current hearing before me is not a merits review or a re-hearing of the evidence presented. Rather, it is a judicial review. I must be careful not to confuse the two. It is the function of this Court to determine whether the decision of the MRT was within its legal powers and jurisdiction.

The substantive application

1. The applicable criteria pertaining to the grant of the visa, sought by the applicant, are set out in Parts 4A to 5 of Schedule 2 of the Migration Regulations 1994.

2. They include that, when the application was made, it was accompanied by evidence that the application concerned had competent English.

3. The expression competent English, is defined in Regulation 1.15C, which empowers the Minister to specify, in writing, appropriate tests to gauge the proficiency of various categories of applicants for certain specified visas, including skilled visas, in the English language.

4. In the case of the applicant, the required proof of competency in English was through the provision of successful test results pursuant to the International English Language Testing System (IELTS) with a score of at least six for each of the four test components.

5. In November 2011, the delegate of the Minister found that the applicant had not provided the department with an IELTS test report form.  No such test result was provided by the applicant to the MRT.  In these circumstances, the Tribunal considered that the issues for its determination in the case before it included the following:

   “The issue in the present case is whether the applicant has provided evidence of the relevant level of English ability for the grant of this visa, and if not, whether the Tribunal should adjourn its proceedings so as to afford the applicant further time to do so.”[5]

   [5] See Court book at 41

6. In the MRT’s invitation letter of 11 September 2012, the applicant was requested to provide any evidence, on which he wishes to rely, that demonstrated that he had competent English. In particular, he was advised of the applicability of an IELTS test score of at least six in the various tests specified, in this regard.

7. In its decision, the Tribunal noted that the applicant had not provided any evidence of competency in English.  It further noted that, prior to the decision of 1 November 2012, the applicant had not asked for further time to undertake an IELTS test.

8. Against this background, the MRT found that there was no evidence before it to demonstrate that the applicant had competent English.  As such, it was satisfied that the applicant had not satisfied the requirements of the visa sought by him.  In addition, the Tribunal considered that there was no good reason to defer making its decision on review.

Conclusions

1. In my view, there is no error in the decision of the MRT, in so far as it concluded that the applicant had failed to demonstrate a competency in English.  In addition, in my view, there has been no breach of procedural fairness accorded to the applicant by the Tribunal.

2. The applicant was requested to provide evidence, in the form of an IELTS test, that he had competent English skills.  In addition, the Tribunal considered whether it should adjourn the proceedings to enable the applicant more time to undertake the test in question.  After considering the issue, it declined to do so.

3. In my view, this decision cannot be described as an error of jurisdiction as a consequence of a lack of procedural fairness, because, as the Tribunal identified, the applicant himself had provided no evidence or indication as to when he proposed to undertake the necessary testing in question.

4. In these circumstances, the comments of Yates J in Rahman v Minister for Immigration & Citizenship [6] appear apposite.  His Honour said as follows:

   “The plain fact is that the tribunal was not under an obligation to indefinitely postpone the finalisation of its review.  Similarly, it was not under an obligation to postpone the finalisation of its review whenever the applicant informed it of his intention to sit for another test. If it were under such an obligation, the review process could be postponed indefinitely by the expedient of the appellants simply providing the tribunal with evidence that he had applied to sit for the test again.  On the rationale of the applicant’s argument, he could always ask, rhetorically, what prejudice there would be to the Minister if an extension of time of a few weeks were granted compared to the prejudice to him if such an extension were not granted?”

   [6] Rahman v Minister for Immigration & Citizenship [2012] FCA 1312 at [49]

5. In all these circumstances, notwithstanding the lack of appearance by the applicant and his failure to provide further submissions, I have come to the conclusion that his substantive application is devoid of merit.

6. In these circumstances, I do not consider that he should be granted an extension of time to proceed with his application.  In all the circumstances, I do not think that such an extension of time would be in the interests of the administration of justice.

7. Accordingly, the application will be dismissed. It also appropriate that the applicant pay the costs of the application, which will be fixed in the sum of $6,646. 00.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  23 May 2014