SINGH v Minister for Immigration

[2014] FCCA 1145

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1145

Catchwords:
MIGRATION – Competent English required – not achieved – no arguable case – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.359C, 360

Migration Regulations 1994, cl.485.215, reg.1.15C

SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

Applicant: KULBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1503 of 2013

Judgment of: Judge F. Turner

Hearing date: 25 February 2014

Date of Last Submission: 25 February 2014

Delivered at: Melbourne

Delivered on: 25 February 2014

REPRESENTATION

The Applicant did not appear at the hearing

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (“the Rules”), the Court proceeds with the hearing in the absence of the applicant.

2. Pursuant to r.44.12(1)(a) of the Rules the Application for Judicial Review filed 13 September 2013 is dismissed.

3. The applicant pay the first respondent’s costs of $3,326.00.

4. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1503 of 2013

KULBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 8 August 2013. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The grounds for the application for judicial review are set out in the application as follows:

   (1)I request to the court, that grant me extention to submitting outstanding documents.

   My MRT case no. is 1205955. According to regulation r.1.15C(a), I will required competent english. I am trying to achieve this course, I will submit as soon as I get the required score.

   Hereby I request department to consider my application carefully before coming to any decision.

3. By order dated 20 November 2013, Registrar Caporale ordered the applicant to file and serve any written submissions on or before

   
   

   11 February 2014. That has not been done. The applicant has failed to appear today. Also by order of Registrar Caporale, the matter is listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”). The first inquiry for the Court is whether the applicant has raised an arguable case. As, if no arguable case is raised the Court can proceed pursuant to r.44.12(c) to make final orders in the matter relating to the claim for relief and grounds mentioned in the application.

4. The issue before the Tribunal was whether the applicant had “competent English”, as required by cl.485.215 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) and reg.1.15C of the Regulations, which require that the Minister be satisfied that the applicant had achieved competent English. That is also a requirement under cl.485.215 of Schedule 2 to the Regulations. That achievement must be in a test conducted no more than two years immediately before the day on which the application was made [reg.1.15E(1)(b)].

5. The Tribunal wrote to the applicant on 18 June 2013, requesting that he provide evidence that he had competent English, as required by the Regulations, and advising the applicant that he could seek an extension of time prior to 12 July 2013 (Court Book “CB” pp.30–31). No response was received to that letter.

6. Accordingly, the Tribunal found, pursuant to ss.359C and 360(3) of the Migration Act 1958 (the “Act”) that the applicant was not entitled to appear before it. Section 359C has effect that, in those circumstances, where an applicant is invited to give information and does not give it – the Tribunal can make a decision without taking any further action to obtain the information.

7. The Tribunal affirmed the decision of the delegate not to grant the applicant a Skilled (Provisional) (Class VC) visa (CB p.36) for reason that the applicant had failed to provide evidence of having undertaken an OET or an IELTS test in which he achieved the required scores (CB p.35.7). The applicant, therefore, did not have competent English as defined in reg.1.15C(a). Therefore, the requirements of cl.485.215 had not been met. That is a criteria for that class of visa.

8. The grounds for judicial review recognise the applicant did not provide evidence of competent English, that he is still trying to achieve it and:

   …will submit it as soon as he gets the required score.

9. The Court notes that cl.485.215 had to be complied with at the time of application. Clause 485.21 states criteria to be satisfied at time of application. Also, the General Skilled Migration Applicant Form includes that statement (CB p.9)

10. The application was made on 12 March 2011 (CB p.1). The applicant seeks an extension of time from the Court to submit documents that were not submitted at the time of application and were not before the Tribunal.

11. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:

    “An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:

    It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

12. The new evidence sought to be tendered, if, in fact, it exists, does not bear on jurisdictional error. Even if the Court could grant an extension of time, the Court would not accept the new material.

13. The decision of the Tribunal was correct on the material before it.

14. The applicant has not raised an arguable case for the relief claimed.

15. The Court dismisses the application for judicial review, pursuant to r.44.12(1)(a) of the Rules

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

Associate: 

Date: 2 June 2014