SINGH v Minister for Immigration and Anor (No.2)

[2017] FCCA 2698

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2698

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) subclass 485 visa – application dismissed for non-appearance – reinstatement application – inadequate explanation for non-appearance – no prospect of success in substantive application – requirement for English competence – IELTS test to be passed in the three years prior to the lodgement of the visa application – applicant not having satisfactory IELTS test results in the three years prior to his visa application being lodged, or at all.

Legislation:
Federal Circuit Court Rules 2001, r.16.05(2)(a)
Migration Regulations 1994, Sch 2, cl.485.212
IMMI 15/062, English Language Tests, Scores and Passports 2015 (Clauses 476.213 and 485.212), 16 April 2015

Applicant: JASVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 55 of 2017

Judgment of: Judge Riley

Hearing date: 26 October 2017

Date of last submission: 26 October 2017

Delivered at: Melbourne

Delivered on: 26 October 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Emily Wilde

Solicitors for the first respondent: Clayton Utz

Advocate for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz

ORDERS

1. The application for reinstatement filed on 16 October 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 55 of 2017

JASVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application to reinstate a proceeding that was dismissed for non-appearance on 2 October 2017.  The applicant filed the reinstatement application on 16 October 2017. 

2. The application was supported by an affidavit sworn on 16 October 2017, in which the applicant said that:

   a)he was unable to attend the hearing;

   b)prior to the hearing he had emailed the Minister’s solicitors seeking an adjournment;

   c)he told the solicitors that he was suffering from depression due to an illness being suffered by his mother;

   d)he planned to return to India to see his mother; and

   e)the Minister did not consent to the adjournment. 

3. The applicant attached to his affidavit sworn on 16 October 2017 a copy of his email that he sent to the Minister’s solicitor.  The email was dated 28 September 2017.  In his email, the applicant said that:

   a)he was unable to attend the hearing on 2 October 2017 because he had received a call from his family about his mother;

   b)his mother was seriously ill in hospital;

   c)he was sending her medical certificate;

   d)he was very close to his mother;

   e)since hearing the news he was “in depression”; and

   f)he wanted to travel back to India on 2 or 3 October 2017 to see his mother.

4. In the email dated 28 September 2017 to the Minister’s solicitor, the applicant asked the Minister to agree to an adjournment.  The Minister did not agree, for the reasons that:

   a)the medical certificate in respect of Ms Kaur did not say that she was seriously ill and her son needed to attend upon her;

   b)there was no medical evidence to the effect that the applicant was unable to attend court; and

   c)there was no reason given that the applicant could not travel to India after the hearing on 3 October 2017.

5. The applicant did not attach to his affidavit sworn on 16 October 2017 the medical certificate referred to in the email of 28 September 2017.  However, that medical certificate was attached to the email sent to chambers.  It said that someone of the name, Kuldeep Kaur, aged 50 years, who might be the applicant’s mother, was suffering from acute osteoarthritis of the right knee and was advised to have bed rest for 10 days from 26 September 2017 to 5 October 2017. 

6. When the matter came before the court on 2 October 2017, the court was not satisfied that there was a proper basis for adjourning the matter, as there was no medical evidence that the applicant was suffering from depression and that he could not attend court.  It was also unclear why the applicant had said that he planned to go back to India on 2 or 3 October 2017 when this matter was listed for hearing on 2 October 2017.  Presumably, the applicant could have returned to India on 3 October 2017. 

7. The applicant told the court today that he had actually been told about his mother’s illness on 1 October 2017, at 3am, rather than prior to 28 September 2017.  However, he now says that he heard that his mother was in hospital.  He said that he tried to call the court at 3:30pm or 4pm, but the court was closed.  The applicant told the court that his mother is still sick.  He sent to chambers this morning a number of medical certificates for Kuldeep Kaur.  They were dated 19 August 2016, 13 October 2017 and 21 October 2017.  It is difficult to read the writing in these certificates. 

8. The certificate dated 21 October 2017 says:

   Rest for 10 days.  Need support and caring atmosphere. 

   There is otherwise reference to restlessness, anxiety and panic attacks.  Otherwise, I cannot read the certificate. 

9. The certificate dated 13 October 2017 says Ms Kuldeep Kaur:

   a)has blood pressure of 160 over 98;

   b)has a pulse of 75; and

   c)weighs 84 kilograms.

   Otherwise, I cannot read the certificate. 

10. The certificate dated 19 August 2016 also mentions Ms Kaur’s blood pressure, pulse and weight, but otherwise I cannot read it. 

11. These medical certificates, which presumably relate to the applicant’s mother, do not explain why the applicant was unable to attend court on 2 October 2017. 

12. The applicant claims that he had depression.  He acknowledged that he has not provided any medical evidence relating to his depression.  He told the court that, as of today, he is just a little bit depressed.  He said that he was unable to obtain medical evidence because he lives in a town in New South Wales, called Hillston, which is about 110kms from Griffith.  He said he was unable to find a doctor. 

13. The applicant also confirmed that he has not travelled back to India since 2 October 2017, notwithstanding his mother’s illness. 

14. In the present case, the applicant applied for a Skilled (Provisional) subclass 485 visa. Under cl.485.212 of Schedule 2 to the Migration Regulations 1994, the applicant was required to provide satisfactory evidence of his English language ability.  The applicant sought to satisfy that requirement by providing IELTS[1] test results.  The relevant instrument was IMMI 15/062.[2]  That commenced on 18 April 2015, and was in force when the applicant filed his visa application on 24 November 2015. 

    [1] International English Language Testing System

    [2] IMMI 15/062, English Language Tests, Scores and Passports 2015 (Clauses 476.213 and 485.212), 16 April 2015

15. The instrument required, in relation to IELTS tests, a minimum overall score of 6 and a minimum score of 5 for each component of the test.  The instrument also required that the IELTS test be undertaken within three years before the day on which the visa application was lodged. 

16. In the present case, the applicant said in his visa application that he had not undertaken an IELTS test in the three years prior to lodging his visa application.  The delegate refused the application on the basis that the applicant had not passed an IELTS test in the relevant period. 

17. The applicant sought review by the Tribunal.  The applicant was invited to a hearing before the Tribunal.  The applicant attended the Tribunal hearing, which was on 22 November 2016.  He told the Tribunal that he was booked to sit an IELTS test on 26 November 2016.  The applicant asked the Tribunal to defer its decision until the results were known.  The Tribunal told the applicant that the relevant instrument required the IELTS test to be undertaken in the three years prior to the visa application being lodged. 

18. On 14 December 2016, the applicant telephoned the Tribunal and spoke to a case officer.  The case note is at CB142.  It said that the applicant had telephoned and said that he had new IELTS test results.  The officer said that the applicant could send them through to the Tribunal up until the decision was made.  Later, on 14 December 2016, the applicant sent to the Tribunal the results of an IELTS test conducted on 26 November 2016.  It indicated that the applicant had an overall score of 5, and a score of 4.5 in reading, 5.0 in writing and 5.5 in each of listening and speaking. 

19. The Tribunal considered that the applicant had not met the English language requirement because the relevant instrument required the test to be undertaken in the three years before the day on which the visa application was made, and because the test results from 26 November 2016 did not achieve the required scores in any event. 

20. The court attempted to explain the nature of jurisdictional error, and asked the applicant to say what he considered the Tribunal had done that was in some way wrong.  The applicant said he did not want to say anything about such matters.  He said that he just wanted the court to give him two more months to study, so that he could do another IELTS test and get an overall result of six. 

21. The grounds of the substantive application filed on 11 January 2017 are:

    1.My Subclass 485 visa which was applied on 24.11.2015 was initially refused and I appealed with MRT and unfortunately they affirmed the decision and.I hereby wish to apply for judicial review as I believe that I was given the wrong guidance during my visa application and that I should be given an opportunity to provide supporting documents and evidence for my visa grant.

    2.I was unable to provide the required English language results in time.  It was unfortunate that my application was refused and the decision was affirmed by MRT/AAT

    3.MRT had requested me to attend a hearing on 16.12.2016, but I believe that it was an unfair decision and that the decision must be overturned

    4.There have been many applications in the past when English language was accepted after the visa application.  It is unfair that we are not given the same opportunity as the previous applicants.

    5.I believe that my IELTS results should be considered and that I should be given an opportunity to provide my side of the case in a hearing.

    6.Kindly reconsider my request and reconsider the MRT / AAT decision and remit my application to the M & R Division and oblige.

22. It does not seem to me that there was any procedural unfairness in the Tribunal’s decision-making process.  The applicant was invited to a hearing, which he attended.  He asked for further time to submit a further test, which was given to him.  The Tribunal told the applicant during the hearing that it could only take into account tests undertaken in the three years prior to the visa application being lodged. 

23. I was somewhat concerned that a Tribunal officer had told the applicant in a telephone conversation that he may lodge new IELTS test results at any time up until the decision was made.  This was potentially misleading.  However, the Tribunal officer only said that the results could be lodged, not that they would be taken into account.  Moreover, even if the Tribunal officer had said the wrong thing, that could not override the requirements of the relevant legislation.  Nor could statements by a Tribunal officer override what the Tribunal itself said to the applicant during the hearing, which was that the relevant instrument specified that the Tribunal could only take into account an IELTS test undertaken in the three years prior to the visa application. 

24. In relation to the applicant’s claim that he was given the wrong guidance during his visa application, there was no suggestion of any fraud that could amount to a jurisdictional error.  The applicant seems to be simply saying that he was not told when he needed to have passed the IELTS test.  He has not elaborated in any way on any issue in relation to wrong guidance.  He certainly did not raise that issue with the Tribunal. 

25. In relation to the applicant’s claim that many other applications in the past have been accepted when the English language test was undertaken after the visa application was lodged, that may well be so.  However, that would be because there was a different legislative instrument in force in relation to those applications. 

26. All in all, it does not seem to me that there is an arguable basis upon which it could be said that the Tribunal made a jurisdictional error.  The Tribunal has given the applicant procedural fairness.  The Tribunal appears to have correctly applied the law.  It seems to me that there was no other decision that the Tribunal could have come to in all the circumstances of this case. 

27. In addition, I am not persuaded that the applicant provided a good explanation for his non-attendance at court on 2 October 2017.  He has not provided any medical evidence that he was unable to attend court on that day.  I consider that, in the absence of such evidence, it is not possible for the court to accept the applicant’s claims in that regard. 

28. Consequently, the application for reinstatement will be refused. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:       3 November 2017