SINGH v Minister for Immigration

[2014] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 422

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – show cause hearing – application dismissed as without merit – no matter of principle.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.15C(a) and 44.12

Migration Act 1958 (Cth)

First Applicant: RANJIT SINGH

Second Applicant RAMANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 225 of 2013

Judgment of: Judge Simpson

Hearing date: 11 February 2014

Date of Last Submission: 11 February 2014

Delivered at: Adelaide

Delivered on: 11 February 2014

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 29 July 2013 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The name of the first respondent be changed from Minister for Immigration, Multicultural Affairs and Citizenship to Minister for Immigration and Border Protection.

3. The applicants do pay the first respondent’s costs fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 225 of 2013

RANJIT SINGH

First Applicant

RAMANDEEP KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application for judicial review filed on 29 July 2013 by the two applicants who appear before me today.  The application for review seeks an order that the decision of the Migration Review Tribunal (“the Tribunal”) of 2 July 2013 be quashed.  The grounds of the application are expressed in these terms, and I read it verbatim:

   “I wish to apply for review through Federal Magistrate Court because my visa application for temporary residence was refused by DIAC and then by MRT, because the IELTS results were not provided.  I requested them to provide me some time but the request was refused.”

2. The matter came before a Registrar of this Court on 22 August 2013. At that stage, the following orders were made: firstly, that the respondent to file and serve a bundle of relevant documents (Court Book) by 12 September 2013; secondly, that the applicants have leave to file and serve an amended application by 17 October 2013; thirdly, that the applicants have leave to file and serve any further material, including the transcript of the proceedings before the second respondent, that he may rely upon at the hearing by 17 October 2013; next, that the application be listed for a show-cause hearing, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on 11 February 2014 at 10.00am.

3. Further orders were made for the applicants to file and serve an outline of submissions 10 business days prior to the hearing, the respondent to file and serve by no later than three business days prior to the hearing, and there be liberty to either party to apply to the court for a listing for further directions.

4. The first applicant (“the applicant”) declined to take advantage of the opportunity to file and serve an amended application.  The applicant did not file the transcript of the proceeding before the Tribunal nor did he file any other documents.  The applicant did not file an outline of submissions, and no application was made by him for any further directions.  The applicants appear to have done nothing to prepare for today’s hearing.

5. The green book that has been prepared and provided by the first respondent includes the Tribunal’s Statement of Decisions and Reasons.  The Tribunal’s reasons include the following passage:

   “The applicants applied for visas on 15 November 2011.  At the time the visa application was lodged, Skilled Provisional Class VC contained two subclasses:  the skilled graduate and the skilled regional sponsored. … Having regard to the visa application, the relevant subclass in this case is subclass 485, the criteria for which are set out in Part 485 of Schedule 2 of the Migration Regulations.  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit of any who are applicants for the visa need satisfy only secondary criteria.”

6. The Tribunal pointed out that the delegate had previously dealt with the matter and declared that the applicant had not undertaken an English test within 24 months.  It was for this reason that the Delegate refused the visas.  The delegate refused the visas on 24 July.  The applicant applied for review to the Tribunal on 10 August.

7. The Tribunal found that evidence of satisfactory completion of an English test was still not before it. 

8. An examination of the Tribunal’s reasons disclose all the efforts that they made to ensure that the applicant had every opportunity to put evidence before it, so that the order that the applicant wanted might be made. 

9. A Tribunal letter dated 14 August 2012 was sent to the applicants.  In the letter the Tribunal acknowledged receipt of the review application and invited the applicants to provide any material or written arguments that they wished the Tribunal to consider.  The applicants did not provide any further material or written submissions in support of the review. 

10. On 20 May, the Tribunal sent a letter by registered post to the applicant’s nominated authorised recipient address, advising that it had considered all of the material before it relating to the application, but was unable to make a favourable decision on that information alone.  The letter invited the applicant to provide evidence that he had achieved competent English.  The applicant again declined to provide evidence in support of the review application.

11. The Tribunal took further action.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing, at 9.30 on 21 June.  The letter advised the applicant that if he failed to attend the scheduled hearing, the Tribunal might make a decision without taking any further action. 

12. On 3 June 2013, the applicant responded to the hearing invitation and advised that he was in India with his father, who was unwell.  The applicant requested that the hearing be rescheduled to a time after he returned to Australia. 

13. On 21 June 2013, the Tribunal emailed the applicant and advised that it had agreed to reschedule the hearing to 27 June 2013, and that he would be able to give evidence by telephone. 

14. I find that the Tribunal did everything that it reasonably could be expected to do to accommodate the applicant.  Still no evidence was provided to the Tribunal by the applicant to address the concern that the Tribunal had about his language competency.

15. The Tribunal conducted the hearing by telephone with the applicant.  The Tribunal explained in that telephone call that the issue was whether he had competent English as defined by regulation 1.15C of the Regulations.  The applicant confirmed that he understood the issue, and said that he had sat the IELTS exam in 2008.  He could not recall the score, but thought it was 5.  That test, even if it was carried out, was too old and the score that he received was also too low.  The Tribunal explained this to the applicant.  The Tribunal asked him whether there were any other English tests that he had done, and he said that he could not remember. 

16. The Tribunal found that the applicant did not have competent English as defined by r.1.15C(a), and that therefore, the requirements of cl.485.215 were not met.

17. At a show cause hearing such as this, I must consider r.44.12(1) of the Federal Circuit Court Rules which says:

    “At a hearing of an application for an order to show cause, the court may:

    (a)If it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application.

    (b)…”

18. In my view, this is clearly a case where it can be said that the application does not raise an arguable case for the relief claimed.  On that basis, the application should be dismissed. 

19. I make the orders to be found at the beginning of these reasons.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 27 March 2014