Singh v Minister for Immigration and Border Protection

[2015] FCA 479

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 479

Citation:	Singh v Minister for Immigration and Border Protection [2015] FCA 479
Appeal from:	Application for leave to appeal: Singh v Minister for Immigration and Border Protection [2014] FCCA 3132
Parties:	SATINDERPAL SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	SAD 333 of 2014
Judge:	MANSFIELD J
Date of judgment:	12 May 2015
Date of hearing:	12 May 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondents:	P D’Assumpcao
Solicitor for the Respondents:	Australian Government Solicitor

Table of Corrections:
20 May 2015	Solicitor for the Respondents on the cover page has been amended from Sparke Helmore Lawyers to Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 333 of 2014

BETWEEN:

SATINDERPAL SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	12 MAY 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay to the first respondent costs of the application fixed in the amount of $1756.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 333 of 2014

BETWEEN:

SATINDERPAL SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	12 MAY 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal to the Court from a decision of the Federal Circuit Court made on 3 December 2014. The Federal Court on that date dismissed the applicant’s application of 1 August 2014 to set aside a decision of the Migration Review Tribunal (the Tribunal) of 8 July 2014 not to grant to him for a Skilled (Provisional) (Class VC) visa for which he applied on 17 May 2011. He applied for a Subclass 485 (Skilled-Graduate) visa. It is not necessary to refer to the history of the application prior to its ultimate rejection by the Tribunal on 8 July 2014. When the matter came before the Federal Circuit Court the applicant did not appear and his application was dismissed pursuant to r 13.03C of the Federal Circuit Court Rules 2001 (Cth).

2. The consequence is that an interlocutory order from which leave to appeal is sought in this Court.  The principles upon which leave might be given are well known but, relevantly, for present purposes the questions are whether the decision of the Court below is or is not attended by sufficient doubt to warrant its reconsideration by this Court and, secondly, whether to refuse the leave to appeal would expose the applicant to substantial prejudice.  The applicant has not appeared today.  There is no reason given for his nonappearance.  As I have indicated, I propose to proceed in his absence under r 33.33(a)(i) of the Federal Court Rules (2011) (Cth). 

3. In my view, there is nothing on the material available to this Court to support any contention that the decision of the Federal Circuit Court was in error.  The circumstances in which the matter proceeded in that Court are set out in some detail in the reasons for judgment of Judge Brown.  The Court properly considered the considerations whether to proceed in the absence of the applicant, including the data that was available to it as to whether or not it should do so.  The discretion to proceed in those circumstances and then the discretion to dismiss the claim was for reasons involving the exercise of a judicial discretion on a matter of practice and procedure.  In my view, nothing is shown as to why that discretion was exercised in a way which might be upset by this Court on appeal:  see House v The King (1936) 55 CLR 499 at 504-505.

4. In any event or in addition, I do not think the applicant has demonstrated that he has any prospect of succeeding on the application before this Court because there is nothing to indicate that the decision of the Tribunal which he seeks to review, both in the Federal Circuit Court and now in this Court, is in error.  The Migration Act 1958 (Cth) and the Migration Regulations 1994 (the Regulations) proscribe the criteria for the grant of the various classes of visa.  Relevantly, cl 485.215 of Sch 2 of the Regulations, specified a criterion for eligibility for the visa for which the applicant required him to have “competent English” as defined by Regulation 1.15C of the Regulations. 

5. At the relevant time Regulation 1.15C required the applicant to have undertaken a test not more than two years before the day on which the visa application was lodged and in which he had attained a score of six for each of the test elements for an international English language test system (IELTS) test.  There was no evidence to support his visa application that he had satisfied such a test or, indeed, that he had undergone such a test.  By operation of regulation 1.15C he had not, therefore, competent English as required by the relevant criterion for the grant of the visa.  His ground of appeal to this Court and to the Federal Circuit Court was based upon that decision.  He says:

   I have been living and working in Australia since 2008.  I have been living and working in Australia more than five years.  I have been able to live and work for such a long time as I have good English skills.  This matter should have been considered by the tribunal member while making a decision on my application.  When I had English skills then and only then I am able to work and live in Australia and it should be considered while making the decision.  The member failed to put on this fact and, thus, made an error in his decision.

6. All of what the applicant says may be correct as a matter of fact but that does not explain how he satisfied or could have satisfied the criterion of demonstrating competent English as required by the criterion and as defined by Regulation 1.15C.  It is not for this Court to determine whether he has “competent English” except as the regulation defines it.  Whether that is an appropriate legislative or regulatory prescription is not a matter that the Court is concerned with.  Its function is to determine whether the applicant has an arguable case that he has competent English as required by the Regulations. 

7. For the reasons which I have given, I do not see any basis upon which he can do so.  In those circumstances, obviously, putting aside the exercise of the discretion in the Federal Circuit Court, there is no basis for thinking that the refusal of the present application for leave to appeal would work any significant or any injustice to him.  The application for leave to appeal is refused.  The applicant should pay to the Minister costs of the application.  The Minister has asked for the costs to be fixed in the sum of $1756, the sum proposed in the table to the costs rules.  I propose to fix those costs ordered to the Minister in that amount, having regard to the work involved in preparing the relevant documents, taking instructions in relation to the application, preparing the outline of submissions and counsel fees on the attendance today.  I fix the costs in that amount.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:        18 May 2015