Singh v Minister for Immigration and Border Protection
[2015] FCA 173
•27 February 2015
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2015] FCA 173
Citation: Singh v Minister for Immigration and Border Protection [2015] FCA 173 Appeal from: Singh v Minister for Immigration & Anor [2014] FCCA 2469 Parties: RANDEEP SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 635 of 2014 Judge: BEACH J Date of judgment: 27 February 2015 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – dismissal of application for judicial review of decision of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa application – requirement of competent English under Migration Regulations 1994 (Cth) – no error – appeal dismissed Legislation: Migration Regulations 1994 (Cth) reg 1.15C, cl 485.215 of Sch 2 Date of hearing: 27 February 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms N Bosnjak of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 635 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RANDEEP SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE OF ORDER:
27 FEBRUARY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 635 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RANDEEP SINGH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BEACH J
DATE:
27 FEBRUARY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The appellant has appealed a judgment of her Honour Judge Hartnett of the Federal Circuit Court of Australia delivered on 17 October 2014. Her Honour dismissed an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 2 December 2013 under the Migration Act 1958 (Cth) (the Act). The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Skilled (Provisional) (Class VC) visa. The Minister was represented before me; the Tribunal filed a submitting appearance.
The appellant’s notice of appeal filed on 28 October 2014 identified only one ground of appeal being:
I am not satisfy with the Judge’s decision because she did not give me chance to explain my circumstances. [sic]
In my view, the appellant has not established any error on the part of her Honour. For the reasons that follow the appeal will be dismissed.
Application for visa and delegate’s decision
On 24 June 2011, the appellant applied for a Skilled (Provisional) (Class VC) visa (the visa). In his application, the appellant stated that he had not undertaken an English test within the previous 24 months. He also said that he had applied for a skills assessment.
On 17 February 2012, the then Department of Immigration and Citizenship (the Department) invited him to comment on certain adverse information in its possession.
On 28 May 2012, the appellant was further invited to comment on information that he had provided regarding his application for a skills assessment. The application for the visa had been filed with the assistance of a migration agent who allegedly had been found to have previously lodged applications with the Department containing false or misleading information. The Department informed the appellant that the reference number that he had provided was referred by the Department to the Trades Recognition Australia for verification, but it had no record of the appellant applying for any skills assessment.
On 22 June 2012, the appellant replied to the Department’s invitations. Nevertheless, the appellant did not provide any evidence that he had satisfied the requirement to have competent English. Indeed, he has never put forward such evidence at any stage of the four levels of consideration (including before me) of this matter.
On 26 February 2013, a delegate of the Minister refused the visa application on the basis that the appellant had not provided evidence that he had competent English. The delegate found that he did not meet the criteria for the grant of the visa as he did not satisfy the “competent English” requirement set out in cl 485.215 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).
Decision of the Tribunal
On 8 March 2013, the appellant applied to the Tribunal for a review of the delegate’s decision.
By letter dated 13 March 2013 sent to the appellant, the Tribunal indicated that if the appellant desired to provide material or written arguments for the Tribunal to consider, then he should do so.
By letter dated 23 September 2013 sent to the appellant, the Tribunal invited the appellant to appear before it on 23 October 2013. The Tribunal invited the appellant, by reference to the delegate’s decision, to provide all relevant documents and other information to establish that he had met the criteria.
On 23 October 2013, the Tribunal hearing took place. The appellant attended. Nevertheless, at that hearing no further evidence was provided by the appellant to demonstrate that he met the competent English requirements.
On 2 December 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the appellant the visa. In its decision the Tribunal:
(a)identified the appellant's English competency as being in issue: [9];
(b)found that the appellant did not hold a passport of the type listed in IMMI 09/73, and therefore could not satisfy reg 1.15C(b) of the Regulations: [11];
(c)identified that the holding in Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 applied to the visa application, and accordingly that the appellant could satisfy reg 1.15C(a) by achieving the specified score in a test undertaken after the visa application had been made, but not more than 2 years earlier: [12];
(d)found that there was no evidence before it that the appellant had achieved the requisite score in an IELTS test: [13] (the Tribunal’s expression in this respect was too narrowly framed, but this is inconsequential as even after the visa application was filed, no satisfactory results for an IELTS test or even an OET test carried out after the application was made were put forward); and
(e)found that the appellant did not have competent English as defined in reg 1.15C(a): [14] and accordingly found that the appellant did not satisfy cl 485.215: [15].
Accordingly, the Tribunal affirmed the decision not to grant the visa: [17].
I note that the form of reg 1.15C that applied in relation to the visa has now altered and that the present form requires the relevant test to be undertaken and results achieved prior to the making of the application for the visa. But the present matter is to be disposed of on the old form of reg 1.15C. Her Honour set out the relevant history in [10] to [13] of her reasons.
Federal Circuit Court decision
On 23 December 2013, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The appellant sought relief on the following grounds:
1. My visa was refused for not having IELTS.
2. I am confident that I am capable of achieving better score in IELTS.
On 19 March 2014, Registrar Caporale ordered by consent that the application be listed for a final hearing before Judge Hartnett.
On 17 October 2014, the matter was heard by her Honour. Her Honour found the following:
(a)First, cl 485.215 required the appellant to have “competent English” as defined in reg 1.15C: [12].
(b)Second, at the time of the visa application, reg 1.15C was satisfied if a person had achieved a test conducted “not more than 2 years before the day on which the application was lodged”, one such test being an IELTS test of a score of at least 6 for each of the 4 test components: [12]. Before the Tribunal, the appellant had confirmed that he had not achieved the requisite IELTS score and had never applied for a skills assessment: [18].
(c)Third, the Tribunal's decision that the delegate's decision be affirmed was the only decision that was open to it on the evidence before it: [20].
(d)Fourth, the appellant was unable to point to any jurisdictional error affecting the Tribunal decision: [22].
(e)Fifth, that although the appellant stated that his current visa difficulties were the fault of his earlier migration agent who applied for the wrong visa for him, the Tribunal had no discretion to waive the requirements of the visa for the appellant: [22].
In summary, there was no jurisdictional error on the part of the Tribunal. Accordingly, the application for review before her Honour was dismissed with costs.
Appeal
In my opinion, there is no substance to the appellant’s appeal.
My review of her Honour’s reasons indicates that her Honour dealt fairly with the appellant’s arguments and gave him the requisite opportunity to put his submissions; the appellant’s ground of appeal (see at [2] above) is not made out.
Her Honour, at [22] to [25], set out the following matters:
22.On the hearing this day, the Applicant appeared in person. He submitted that his current visa difficulties were the fault of his earlier immigration agent who applied for the wrong visa for him. Essentially, that is what he put before the Tribunal as described above. He pointed to no jurisdictional error attending the Tribunal decision and could not in any way particularise the grounds of his application further. The Tribunal had no discretion to waive the requirements of the visa for the Applicant. Whatever mistake may have been made by the Applicant’s migration agent, if one had, the Tribunal’s decision is not thereby affected, save for a fraud on the Tribunal (See SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64).
23.No error of law is apparent on the face of the Tribunal’s decision. The Tribunal understood the nature of its decision-making task. It set out the relevant law and it reached a conclusion open to it on the evidence before it.
24.The Tribunal invited the Applicant to attend a hearing and give evidence and present arguments in accordance with s.360 of the Migration Act 1958 (Cth). The issues arising on the decision under review were made known to the Applicant in both the delegate’s decision itself of 26 September 2013, and in the invitation to the Tribunal hearing forwarded to the Applicant and dated 23 September 2013.
25.The Tribunal’s decision was the only decision available to it on the evidence before it. The Applicant’s failure to provide any evidence that he had competent English was dispositive of the application for review to the Tribunal. There is no jurisdictional error attending the Tribunal’s decision and this application is dismissed with costs following the event.
As her Honour correctly found on the material before her, no jurisdictional error had been established.
The appellant again raised before me the asserted error made by his migration agent. But both the Tribunal and the Federal Circuit Court reviewed that question. No error is established in their analysis.
No error has been demonstrated. The appeal will be dismissed.
I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.
Associate:Dated: 4 March 2015
0
2
1