SINGH v Minister for Immigration
[2012] FMCA 335
•19 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 335 |
| MIGRATION – Migration Review Tribunal – IELTS test – failure to provide satisfactory results – whether Tribunal erred. |
| Migration Act 1958 ss.359A, 362B Migration Regulations 1994 Sch.2 cl.485.215 |
| Applicant: | DALJEET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1584 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 19 April 2012 |
| Date of Last Submission: | 19 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2012 |
REPRESENTATION
| Counsel for the applicant: | The applicant was not represented |
| Solicitors for the applicant: | The applicant was not represented |
| Counsel for the first respondent: | Ms Hamnett |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 4 November 2011 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1584 of 2011
| DALJEET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision made by the Migration Review Tribunal. The applicant is a citizen of India. He came to Australia on 5 January 2006 on a student visa, which was valid until
30 October 2007. He was subsequently granted a further student visa, which was valid until 22 April 2008. The applicant then applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa on 14 April 2008. He was granted a bridging visa while his application was under consideration.
A delegate of the minister refused the Subclass 485 visa application on 22 November 2010. The delegate was not satisfied that the applicant possessed vocational English as required by cl.485.215 of sch.2 of the Migration Regulations 1994. The delegate noted that the applicant had undertaken an IELTS test on 14 June 2008 but that he did not obtain the required score of five for writing. Consequently, he did not meet the minimum requirements under the Regulations.
The applicant sought review of the delegate’s decision by the Tribunal by an application dated 3 December 2010. The Tribunal wrote to the applicant on 25 May 2011 saying that a hearing was scheduled for
21 June 2011. The Tribunal also said in the letter that, if the applicant obtained evidence that he did satisfy the English requirements of the Regulations before the hearing, he should provide the evidence to the Tribunal and in that case the Tribunal might not proceed with the scheduled hearing.
On 16 June 2011, the applicant wrote to the Tribunal saying that he was going to India from 17 June 2011 to 18 July 2011 because his mother was unwell. The Tribunal responded to the applicant’s representative saying that the Tribunal intended to conduct the hearing on
21 June 2011 by telephone. The applicant did in fact attend the Tribunal hearing by telephone from India. The applicant stated at that time that he was in the process of lodging an application to undertake another IELTS test in India on 25 June 2011.
The Tribunal asked the applicant to provide evidence of the booking receipt by 27 June 2011 and evidence of the test results by
21 July 2011. The Tribunal duly received the booking receipt for the test on 25 June 2011. However, the results were not forthcoming. The applicant told the Tribunal by letter on 21 July 2011 that the hard copy of his IELTS results had gone missing. He provided a print out of what he said were his IELTS test results from a test on 16 April 2011.
The Tribunal wrote to the applicant on 22 July 2011 noting that the test results from the test on 25 June 2011 had not been provided and requesting information to verify the accuracy of the print out of the IELTS test results for 16 April 2011. The applicant wrote to the Tribunal on 29 July 2011 seeking further time to provide the information. On 5 August 2011, the Tribunal contacted the information centre of the British Council in India to verify the applicant’s IELTS test results. On 17 August 2011, the Council responded to the Tribunal saying essentially that it believed another person had attempted to impersonate the applicant at the test on 25 June 2011 and as a result, the test result was disqualified or cancelled.
On 23 August 2011, the Tribunal issued the applicant with a hearing invitation for 13 September 2011.
On 26 August 2011, the Tribunal received a letter from a body called IDP Education Australia Proprietary Limited, which said that the applicant could request that body to send verification to the Tribunal in relation to the test results of 16 April 2011.
The Tribunal sent the applicant a letter pursuant to s.359A of the Migration Act 1958 on 29 August 2011. It invited the applicant to comment on and respond to information received from the British Council and IDP Education.
The Tribunal particularly noted in the s.359A letter that the applicant had not provided his TRFN number that would allow the Tribunal to verify the results submitted for 16 April 2011 and stated that, in the absence of verification, the Tribunal could not accept the results of
16 April 2011 as correct. The Tribunal also asked for any other evidence that would establish that the applicant had achieved the necessary scores in his IELTS.
The applicant’s representative wrote to the Tribunal on
12 September 2011 at 5.35pm saying that the applicant would not be appearing for the hearing scheduled for the following day. On
13 September 2011, the Tribunal contacted the applicant’s representative and said the scheduled hearing had not been postponed and the applicant was required to appear. However, the applicant did not attend.
On 4 October 2011, the applicant responded to the s.359A letter saying that his representative had not given him the Tribunal’s second hearing invitation and had advised him that the hearing would not be proceeding. In relation to the test on 25 June 2011, he said that he did not sit the test as his mother was ill. He also said that he did not sit the test because he had already previously achieved the required scores of five for each of the relevant test components.
The Tribunal decided not to grant any further adjournment to the applicant and decided under s.362B of the Act to proceed to deal with the application in the applicant’s absence. The Tribunal’s decision is dated 7 October 2011.
The Tribunal noted that the central issue was whether the applicant had satisfied the English language requirements of the visa that he had sought. He was required to establish under subcl.485.222 that he had either vocational English or competent English. For vocational English, he needed to provide evidence that he had achieved an IELTS test score of at least five for each component of the test. For competent English, he needed to provide evidence he had achieved an IELTS test score of at least six for each component of the test.
The Tribunal noted that it had been unable to verify the test results that the applicant had provided for a test that he claimed to have sat on
16 April 2011 and therefore gave those results no weight. The Tribunal noted that the applicant did not sit the test scheduled for 25 June 2011. Consequently, there was nothing before the Tribunal to indicate that the applicant satisfied an essential requirement or criteria for the grant of the relevant visa. In the circumstances, the Tribunal considered that it had no option but to affirm the decision under review.
The applicant filed an application for judicial review in this court on
4 November 2011. He has not filed any written submissions and he has appeared without legal assistance in court today.
The one ground of review set out on the application is:
That the member of the Migration Review Tribunal (a) made a decision which was unreasonable and in denial of natural justice and (b) That the tribunal did not adequately consider evidence presented, (c) The tribunal did not allow the applicant time to provide material.
The applicant provided no particulars of those grounds. I am unable to accept that the Tribunal’s decision was unreasonable. An essential criterion for the grant of the visa was that the applicant had vocational or competent English as defined. The applicant needed to provide an IELTS test result indicating that he had achieved a score of at least five, or, alternatively six, in each of the various components of the test. He did not do so. Therefore, the Tribunal could have made no other decision. The decision was not unreasonable.
As regards the question of natural justice, it must have been obvious to the applicant that he needed to provide satisfactory IELTS test results. The absence of appropriate test results had led the delegate to refuse the visa. The Tribunal in its s.359A letter dated 29 August 2011 clearly spelt out what was required of the applicant and clearly alerted him to the consequences of not providing it. I am unable to see any basis upon which it could be said that the applicant was denied natural justice.
As to the applicant’s claim that the Tribunal did not adequately consider the evidence that was presented, it seems to me that the contrary is the case. The Tribunal went to some pains to try and verify the results of the 16 April 2011 test. However, the relevant body was unable to provide information directly to the Tribunal. The Tribunal clearly notified the applicant in the s.359A letter of what he needed to do to get the appropriate verification. The applicant did not take the necessary steps and the appropriate verification was not obtained by the applicant.
It is difficult to see what other evidence the Tribunal could possibly have failed to adequately consider. The bottom line is that the applicant needed to provide the relevant test results and he did not do so.
As to the evidence about the applicant’s mother being ill, it makes no difference whether she was ill or not. The applicant needed to provide satisfactory test results. If he did not do so, the Tribunal was unable to decide the case in his favour.
As to the final ground specified in the application, namely that the Tribunal did not allow the applicant time to provide material, the reality is that this case was pending for a very long time. The application for the relevant visa was made on 14 April 2008 and the Tribunal did not make its decision until 7 October 2011. That is over three years. In that time, the applicant could, at any stage, have sat the test, got the appropriate results and provided them to the department or the Tribunal. It seems that he would then have got the visa that he sought. I do not consider that there is any basis for saying that the Tribunal erred in not giving the applicant further time. The applicant had in fact been given more than adequate time to provide the necessary evidence to support his application.
Before the court today, the applicant said that he wanted to show the court a medical certificate indicating that his mother was having surgery on 25 June 2011 and that is why he was unable to sit the test on that date. The court is not able to take into account material that was not before the Tribunal. In any event, the simple step that the applicant needed to take was to provide adequate test results. Notwithstanding the considerable period of time the applicant had to do that, he failed to do so.
The applicant also claimed before the court today that his ex-agent did not send to the Tribunal all of the documents the applicant provided. That statement was made from the bar table. It was not verified on affidavit. In any event, the applicant did not suggest that there was material such as a satisfactory IELTS test result that could have been provided.
The applicant also told the court today that he did not receive the second hearing invitation. He said that his agent told him that he did not have to attend and told him that the date had been changed. He said that therefore he did not attend. This is not supported by affidavit. In any event, it does not impact on the Tribunal’s decision. The applicant needed to provide satisfactory evidence of completion of the IELTS test. He did not do so. The Tribunal’s decision could not have been different in any event.
In all the circumstances, the applicant has not been able to demonstrate to the court that the Tribunal made a jurisdictional error. Consequently, the application must be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 1 May 2012
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