Singh v Minister for Immigration

[2013] FCCA 2155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2155

Catchwords:
MIGRATION – Show cause hearing – decision of Migration Review Tribunal to confirm decision of a delegate of the Minister to not grant a visa – judicial review – no jurisdictional error – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.65

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

Applicant: JASWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 203 of 2013

Judgment of: Judge Simpson

Hearing date: 2 December 2013

Date of Last Submission: 2 December 2013

Delivered at: Adelaide

Delivered on: 2 December 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms S Sangha

Solicitors for the  Respondents: Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.44.12 of Federal Circuit Court Rules2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY SIX DOLLARS ($3,326).

3. The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 203 of 2013

JASWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore Reasons Settled)

1. This matter comes before me for a ‘show cause’ hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). If I am not satisfied that the application raises an arguable case for the relief claimed, I am to dismiss the application.

2. The application is brought by Jaswinder Singh who seeks judicial review of a decision of the Migration Review Tribunal (“The Tribunal”) made on 17 June 2013. The Tribunal affirmed a decision of a delegate of the first respondent, dated 22 May 2012, to refuse to grant the applicant a Skilled (Provisional) (Class VC) Visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).

3. When the matter was called on earlier today I asked the applicant whether he required the assistance of an interpreter.  He indicated that he did not.  The applicant put his submissions to me in English and it is clear to me that he does not need an interpreter. 

4. Although I invited the applicant to identify a jurisdictional error and explained in simple terms what this means, the applicant was unable to do so.

5. In his submission the applicant informed the Court that prior to the hearing before the Tribunal, he had the assistance of a person by the name of Saurabh Aggarwal that he had met at an Indian restaurant.  He said that although Mr Aggarwal was not a lawyer, he gave legal advice about the application for a visa.  Mr Aggarwal requested $3,000 from the applicant to lodge the documents necessary for the visa.  The applicant paid the sum sought in two instalments over a number of weeks.

6. The applicant blames Mr Aggarwal for the predicament that he is now in by not ensuring that all necessary documents were provided to the Tribunal.

7. I informed the applicant that history was not evidence that was before me but even if it was, it would not assist him with his case.

8. The applicant’s application for a visa was first dealt with by a delegate of the Department of Immigration.  The delegate refused to grant a visa on the basis that the applicant did not meet cl.485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).  This clause identified the primary criterion for the grant of a visa.  The delegate found that there was no evidence of “competent English” that had been provided by the applicant. 

9. The matter then went before the Tribunal.  In its decision dated 19 June 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Skilled (Provisional) (Class VC) Visa. 

10. In my view, the Tribunal correctly addressed the requirements of “competent English” as defined in reg.1.15C as was required that he have as at the date of lodgement of the application for a visa. It found that the applicant did not hold a passport of the type specified to meet the requirements of reg.1.15C(b). It found there was no evidence before it that the applicant had achieved a score of six in each of the four test components of an IELTS test or, at least, a B in an OET test conducted not more than two years before the date of the application as was required by reg.1.15C(a)(i)(ii). For these reasons the Tribunal found that the applicant did not satisfy cl.485.215 for the grant of a sub-class 485 visa.

11. The Tribunal also considered the claim (later also made before me) that the applicant received incorrect advice and that he was not informed that he was required to achieve a score of six in each of the IELTS test components. 

12. The Tribunal found that the evidence given at the hearing by the applicant was inconsistent with his written statement.  These findings were plainly open to the Tribunal on the evidence before it.  This Court cannot review the merits of the findings made in the Tribunal’s decision.

13. It is clear that the applicant was informed by the Tribunal by a letter dated 14 May 2013 that he was required to provide the Tribunal with evidence of “competent English”.  The Tribunal gave him a proper opportunity to provide this evidence.  He failed to provide any such evidence.  Without evidence that he had competent English the applicant simply could not meet the criteria for the grant of a visa. 

14. The application does not raise an arguable case for the relief claimed and should be dismissed.

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

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

Associate: 

Date:  13 January 2014