SINGH v Minister for Immigration

[2014] FCCA 3159

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3159

Catchwords:
MIGRATION – Review of Migration Review Tribunal – Subclass 885 visa – IELTS test result not satisfactory – no matter of principle.

Legislation:

Migration Act 1958 (Cth), cl 885.213

Migration Regulation 1994 (Cth), Regulation 1.15C
Federal Circuit Court Rules 2001 (Cth), Rule 16.05

First Applicant: HARBANS SINGH

Second Applicant: RAMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1277 of 2014

Judgment of: Judge Riethmuller

Hearing date: 17 April 2014

Date of Last Submission: 17 April 2014

Delivered at: Melbourne

Delivered on: 17 April 2014

REPRESENTATION

Counsel for the First Applicant: In person

Counsel for the Second Applicant: In person

Counsel for the Respondents: Ms Ngo

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application in a Case filed 5 February 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1277 of 2014

HARBANS SINGH

First Applicant

RAMANDEEP KAUR

First Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside orders that I made dismissing the application for judicial review of a decision of the Migration Review Tribunal. On 28 January, I dismissed the Applicants’ application when they did not appear. The First Applicant (‘the Applicant’) now seeks to have that order set aside under Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) to enable him to pursue his application for judicial review of the decision of the Migration Review Tribunal. The Applicant sets out an explanation for his nonappearance, however, the key question for me in this application is whether or not he has an arguable case.

2. Turning firstly to the decision of the Migration Review Tribunal which was made on 2 June 2014. The Applicants had applied for skilled residence visas on 9 November 2011. At the time that the applications were lodged, cl 885.213 of the Migration Regulations 1994 (‘the Regulations’) provided that competent English was a necessary condition for the grant of a Subclass 885 visa.  That is, the Department of Immigration (‘the Department’) could only issue the visa if the Applicant showed that he had competent English. 

3. In order to show that he has competent English, the Applicant is required to comply with Regulation 1.15C which requires that in the two years immediately preceding the day on which he made application for the visa, he had achieved a test score in the appropriate test at the level required by the Regulations. In this case, the testing method that he undertook was the International English Language Testing System (‘IELTS’) which is the common form of English language test taken by people applying for visas.

4. The regulations require that a test score of at least six in each of the four test components must be obtained in order to show competent English.  In simple terms, unless a person has a test score of six in each of the IELTS test components, they cannot obtain the visa for which the Applicant applied.  The test results showing six in each of the components must be obtained in the two years before the day on which the application for the visa is made.  The Applicant did not obtain such test score results in the two years before applying for the visa. 

5. The Applicant does not argue that he has test results of six in each band.  The Applicant explained that he suffers from anxiety which interfered with his reading and caused his results in the reading band of the IELTS test to fall below the required amount. The Applicant sought an indulgence in this regard.  The Migration Act 1958 (Cth) (‘the Act’) does not provide for any power to the courts to waive any of the visa conditions that are set out in the regulations. The Regulations are established by the government as elected and form the law on this topic. It is not open to the courts to vary or alter the Regulations which have been passed in accordance with the Act of Parliament.

6. In the circumstances of this case, the Applicant can never obtain the visa that he has applied for on this visa application.  Whether in the future, once he has passed his IELTS test, he can then apply for this visa category again is not something that I have turned my mind to nor is it appropriate for me to make a ruling about that today.  It is sufficient to conclude that he cannot obtain the visa that he has applied for, given his lack of IELTS score. 

7. In these circumstances, any application for judicial review must necessarily be futile.  It is not appropriate to reinstate proceedings on an application that ultimately must fail. 

   [Further discussion ensued]

8. In this matter, the Applicant has been entirely unsuccessful.  Costs ought ordinarily follow the event.  The costs sought by the lawyer for the Minister for Immigration are $500, which is less than the scale of fees for similar items and, in the circumstances of this case, appears to me to be an entirely reasonable fee on party/party basis. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  4 May 2015