SINGH v Minister for Immigration

[2014] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 569

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – English language test – competency requirement – time frame within which to produce English language test results.

Legislation:

Migration Act 1958 (Cth), ss.65, 476

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

Craig v The State of South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Applicant: VIRENDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 179 of 2013

Judgment of: Judge Antoni Lucev

Hearing date: 25 March 2014

Date of Last Submission: 25 March 2014

Delivered at: Perth

Delivered on: 25 March 2014

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Mr A Gerrard

Solicitors for the First Respondent: Australian Government Solicitor

For the Second Respondent: Submitting appearance, save as to costs.

ORDERS

1. That the name of the first respondent be amended to “Minister for Immigration & Border Protection”.

2. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 179 of 2013

VIRENDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies to this Court for judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the Migration Review Tribunal[2] affirming a decision of a delegate[3] of the first respondent, the then Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection,[4] refusing to grant the applicant a Skilled (Provisional) (Class VC) visa.[5]

   [1] “Migration Act”.

   [2] “Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”)

   [3] “Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 41-44.

   [4] “Minister”.

   [5] “Visa”.

The Visa application

1. The applicant is a citizen of India.

2. The applicant applied for the Visa on 12 January 2012.[6] In his Visa application the applicant was asked “Have you undertaken an English test within the last 24 months?” The applicant answered “No”.[7]

   [6] CB 1-12.

   [7] CB 10.

Delegate’s Decision

1. On 29 August 2012 the Delegate refused the Visa application because the applicant had not satisfied the Visa requirement to demonstrate competent English.[8]

   [8] CB 41-44.

The Tribunal proceedings

1. On 6 September 2012 the applicant lodged an application for review by the Tribunal of the Delegate’s Decision.[9]

   [9] CB 45-55.

2. On 9 May 2013 the Tribunal wrote to the applicant inviting him to appear at a hearing. In that letter the Tribunal advised:

   Your application for a subclass 485 (Skilled – Graduate) visa was made on or after 1 July 2011. Your visa application was refused by the officer of DIAC because the officer was not satisfied that you have competent English.

   For visa applications made on or after 1 July 2011 and before 1 July 2012, the definition of competent English provides that to show competent English, you must hold a passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issued to a citizen of that country or have achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made. The specified English language tests and scores are: an International English Language Testing System (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least ‘B’ in each of the four components.

   If you have evidence of competent English, please provide it to the tribunal as soon as possible prior to the hearing but no later than the hearing date. If you are unable to provide the relevant evidence, the tribunal will require good reason to grant you additional time.[10]

   [10] CB 75-76.

3. The Tribunal hearing was held on 17 June 2013.[11] At the Tribunal hearing the applicant gave evidence that:

   a)the only passport he holds is a passport from India;

   b)he has never sat an OET in his life;

   c)he had sat an IELTS test in the relevant period but had not achieved the specified score; and

   d)due to misguidance he applied for the Visa before having the evidence of competent English.[12]

   [11] CB 85-87.

   [12] CB 93 at paras.10-11.

Tribunal Decision

1. The Tribunal identified that the relevant issue was whether the applicant had competent English as required by cl.485.215 of sch.2 of the Migration Regulations1994 (Cth)[13] and as defined in reg.1.15C of the Migration Regulations.[14]

   [13] “Migration Regulations”.

   [14] CB 92 at para.6.

2. The Tribunal noted that reg.1.15C of the Migration Regulations, read in conjunction with the relevant legislative instrument, IMMI 11/036, provided that a person demonstrates competent English if the person satisfies the Minister that:

   a)the person undertook a specified language test conducted in the two years immediately before the day on which the application was made and achieved a specified score with the specified languages tests and scores being:

   i)a test score of at least 6 for each of the 4 components of speaking, reading, writing and listening in an IELTS test; or

   ii)a test score of at least ‘B’ for each of the 4 test components in an OET;[15] or

   b)holds a specified passport, namely, a passport from the UK, USA, Canada, New Zealand or the Republic of Ireland.[16]

   [15] CB 92 at paras.7 and 9.

   [16] CB 92 at para.8.

3. Taking into account:

   a)the applicant’s evidence;

   b)the legislative criteria; and

   c)the absence of any available discretion,

   the Tribunal affirmed the Delegate’s Decision on 25 June 2013.[17]

   [17] CB 91-94.

Application for judicial review

1. On 23 July 2013 the applicant applied to this Court for judicial review of the Tribunal Decision.

2. The application contained no grounds.

3. An affidavit of the applicant was filed on 23 July 2013 with the application. The affidavit is not an affidavit as such as it contains no factual material, but rather two paragraphs as follows:

   1.that the decision of the tribunal is wrong in law.

   2.that I want to consider seeking judicial review in the Federal Circuit Court of Australia.

4. When the matter came before a Registrar of this Court on its first court date on 21 August 2013 the Registrar made orders including the following:

   3.Other than the Court Book, all evidence relied upon by the parties must be presented by way of affidavit and in the event that a party seeks to rely on evidence of the contents of any sound recording, the party must file and serve a transcript verified by affidavit.

   4.The applicant shall file and serve on or before 16 October 2013:

   4.1any amended application giving particulars of the grounds of review; and

   4.2any affidavits upon which he intends to rely at the hearing.

   7.The applicant file and serve an outline of submissions not less than 14 days before the hearing.

5. The applicant filed no amended application, no further affidavits and no submissions.

6. At the hearing of the application earlier today the applicant submitted that he had, subsequent to the Tribunal hearing, passed an IELTS test.

7. The applicant also asserted that he had been misguided by his “immigration lawyer” into making his Visa application before he had passed an IELTS test.

Consideration

1. Section 65 of the Migration Act requires that a decision-maker be satisfied that the criteria for the visa being applied for have been satisfied before granting that visa. If the decision-maker is not so satisfied then the visa must be refused. Section 65 does not confer a discretion as to the exercise of the power.

2. The Visa is a subclass 485 visa. The relevant criteria for a subclass 485 visa are set out in the Migration Regulations. At the relevant time, cl.485.215 of sch.2 of the Migration Regulations, read in conjunction with the relevant legislative instrument, IMMI 11/036, provided as mandatory criteria to be met at the time of application that the applicant have competent English, defined as set out in paragraph 9 above.

3. The application contains no grounds of review. Insofar as the applicant’s affidavit asserts that the Tribunal Decision is wrong in law, that is insufficient, as a decision may be wrong in law, but still not demonstrate jurisdictional error.[18] In any event, the allegation that the Tribunal Decision is wrong in law is not particularised, and was not particularised in any manner at hearing. Effectively, there were no grounds of review which alleged jurisdictional error on this application. Further, and fundamentally, there was no evidence before the Tribunal demonstrating that the applicant satisfied the competent English requirement. As the Tribunal noted, the applicant:

   a)held a passport from India, which is not a country specified for the purposes of reg.1.15C(b) of the Migration Regulations;

   b)had never sat an OET; and

   c)had not achieved the required score in an IELTS test.[19]

   [18] Craig v The State of South Australia (1995) 184 CLR 163 at 178-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 141 per Hayne J; [2000] HCA 57 at para.163 per Hayne J.

   [19] CB 93 at paras.10-11.

4. The Tribunal Decision was one which was open to the Tribunal. Indeed, as the applicant did not produce evidence that he satisfied the requirement of competent English, it is the only decision that the Tribunal could have reached on the evidence before it.

5. Because the IELTS test must be passed in the two years before the application was made the fact that the applicant has passed an IELTS test subsequent to the Tribunal hearing is irrelevant, and does not and cannot establish jurisdictional error by the Tribunal.

6. The fact (if it be such) that the applicant was misguided by a lawyer into making a Visa application prematurely does not assist him to establish jurisdictional error by the Tribunal, for the fundamental fact remains that the applicant did not satisfy the Visa criteria at the time of making his application for the Visa. If the lawyer was professionally negligent and the applicant has suffered damage as a result, he may have remedies elsewhere.

7. There is nothing to indicate, nor is it alleged by the applicant, that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with the Migration Act. The Tribunal’s letter of 9 May 2013 made it clear that the applicant would need to provide evidence of competent English, as defined, as soon as possible prior to the Tribunal hearing.[20]

   [20] CB 76.

8. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[21] An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[22]

   [21] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [22] Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.

9. No jurisdictional error has been demonstrated in relation to the Tribunal Decision by the applicant. Indeed, no error at all, either factual or legal, has been demonstrated.

Conclusion and orders

1. The Court has concluded that there is no jurisdictional error demonstrated in the Tribunal Decision, and the application must therefore be dismissed. There will be an order accordingly.

2. There will also be an order amending the name of the Minister to read “Minister for Immigration & Border Protection”.

1. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 25 March 2014

91-94.