SINGH v Minister for Immigration

[2013] FCCA 1826

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1826

Catchwords:
MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – applicant an Indian national who seeks a Skilled (Provisional) (Class VC) visa – no jurisdictional error alleged and none found – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.65 and 362B

Migration Regulations 1994 (Cth), cls.485.215 and 485.221

Applicant: DAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 81 of 2013

Judgment of: Judge Simpson

Hearing date: 15 October 2013

Date of Last Submission: 15 October 2013

Delivered at: Adelaide

Delivered on: 15 October 2013 (ex tempore)

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

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

3. The applicant do pay the first respondent’s costs fixed in the sum SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 81 of 2013

DAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. The application that is before me is without merit and should be dismissed.  The application is an application for a judicial review of a decision made by the Migration Review Tribunal on 5 March 2013.  At that time the tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The applicant is an Indian national. On 23 February 2011 he lodged the visa application with the Department of Immigration and Citizenship. He gave an email address that he said he could be contacted on. The delegate to the Minister, acting under s.65 of the Migration Act 1958 (Cth) (“the Act”) refused the application as it relevantly related to a subclass 485 visa. In particular the delegate found that the applicant did not meet the criteria provided for in cl.485.215 of the Migration Regulations 1994 (Cth) (“the Regulations”), that is the ‘competent English’ requirement, and cl.485.221, the ‘skills assessment’ requirement in Schedule 2 to the Regulations and the delegate did not grant the visa.

3. The matter then went on to the Tribunal.  The Tribunal had certain communications with the applicant.  That by letter dated 4 February 2013 the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.  The letter also invited the applicant to provide by 1 March 2012 (it should have been 2013) any evidence upon which he relied to demonstrate that he had competent English and that he satisfied the skills assessment requirement.

4. The letter further stated as follows:

   “The Tribunal will only change the hearing date for good reason.  Please contact the Tribunal immediately if you are unable to attend the hearing on this date.  Please note that if you fail to attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”

5. On 16 February 2013 the applicant sent a facsimile to the Tribunal in the following terms:

   “Subject:  To postpone MRT case date.

   I writing this letter to postpone my Tribunal date which is scheduled on 5 March 2013.  Presently I am offshore and I am going through medical treatment.  As doctor advised me rest until 15 March I have attached my medical certificate with this letter, so I request if you can postpone my MRT case date for one month, that would really be appreciable.  Hope to hear you soon.  Please reply me on my email address.”

6. The email address that the applicant had previously provided was repeated.  On 19 February 2013 the Tribunal dispatched a letter by email to the applicant.  The letter stated in part:

   “The presiding member has refused to reschedule your hearing but will agree to have the hearing proceed via telephone.  Please provide the Tribunal with a reliable telephone number to contact you at the allocated time for the hearing.  As to your medical condition the presiding member indicates that the hearing will be relatively brief, and as the hearing will be by telephone you are free to take any necessary measures to make yourself comfortable.  The presiding member also again draws your attention to the evidence requested in your hearing invitation letter.  Please ensure that any documentary evidence you intend to rely on to demonstrate competent English and that you have applied for and obtained an assessment of your skills from the relevant assessing authority is provided to the Tribunal in advance of the hearing.”

7. The Tribunal did not receive a reply to that letter from the applicant. The hearing was scheduled for 5 March 2013. The applicant failed to appear on that occasion. The Tribunal decided to exercise its power under s.362B to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. In so doing the Tribunal said the following in its reasons:

   “I have reached this decision because I am satisfied that the applicant is aware of the scheduled hearing date and time based on his request to postpone it, and as the Tribunal promptly communicated to the applicant via the means he nominated that the hearing was not postponed I am satisfied that the applicant is aware of this decision.  I also consider that given the very limited matters in issue and that the hearing would have been brief as a consequence the tribunal offered a reasonable alternative manner of proceeding in all the circumstances to accommodate the applicant’s absence from Australia and his medical condition.  I am also satisfied that I have clearly indicated to the applicant what evidence is required form him and that he has had in any event ample opportunity to provide that evidence to the Tribunal prior to the scheduled hearing.”

8. The Tribunal relevantly found there was no evidence before it that the applicant had competent English and therefore that the applicant did not meet cl.485.215. On this footing alone the Tribunal concluded that the applicant did not meet an essential criterion for the grant of a visa and it accordingly affirmed the delegate’s decision.

9. The applicant then lodged an application to this Court for judicial review of that decision of the Tribunal.  The applicant says before me today that he does not consider that the Tribunal made any mistake.  He says that he has attempted to obtain a certificate of competent English, but has been unable to do so.  The position is therefore that he still does not have the certificate that he has competent English.  The applicant does not argue that the Tribunal made any error let alone a jurisdictional error.

10. In those circumstances I see no other course than to dismiss the application.  There will be an order to that effect.  There will be a further order that the applicant pay the first respondent costs fixed in the sum of $6,646.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  11 November 2013