Singh v Minister for Immigration and Border Protection

[2015] FCA 85

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 85

Citation:

Singh v Minister for Immigration and Border Protection [2015] FCA 85

Appeal from:

Singh v Minister for Immigration and Border Protection [2014] FCCA 2219

Parties:

GURDAVINDER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION  and MIGRATION REVIEW TRIBUNAL

File number(s):

VID 552 of 2014

Judge(s):

DAVIES J

Date of judgment:

9 February 2015

Catchwords:

MIGRATION – application for judicial review refused – no error of law

PRACTICE AND PROCEDURE – adjournment refused – inadequate medical certificate provided morning of hearing

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(e)

Migration Regulations 1994 (Cth) reg 1.15C, Sched 2
cl 485.215
Migration Act 1958 (Cth) s 65

Date of hearing:

9 February 2015

Place:

Melbourne

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

9

Counsel for the Appellant:

The Appellant did not appear

Counsel for the First Respondent:

Ms E Holt

Solicitor for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 552 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

GURDAVINDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	9 FEBRUARY 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal filed 22 September 2014 be dismissed.

2.The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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 552 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

GURDAVINDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	9 FEBRUARY 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant (“Mr Singh”) has appealed the decision of a Federal Circuit Court (“FCC”) judge dismissing his application for review of a decision of the second respondent (“the Tribunal”). In its decision the Tribunal affirmed a decision of a delegate of the first respondent (“the delegate”) refusing Mr Singh’s application for a Skilled Graduate (Temporary) (Class VC, sub-class 485 Visa) (“the visa”). Mr Singh did not attend the hearing of his application before the FCC and the FCC dealt with the substantive merits of Mr Singh’s application in his absence pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

2. This morning the Court received a fax from Mr Singh stating that he is sick and unable to attend the hearing. He attached a medical certificate from a doctor who states that Mr Singh consulted him on 8 February 2015 and that in the doctor’s opinion:

   … from Sunday 8, February 2015 to Monday 9, February 2015, [Mr Singh] will be unable to attend his usual duties.

3. Although not expressly stated, it may be inferred that the fax is to be treated as an adjournment request. As the medical certificate does not explain the nature of the appellant’s condition nor explain why that condition would prevent him from attending and participating effectively in the Court hearing, I do not accept it as providing a satisfactory reason as to why the appellant is not here today. Accordingly, the adjournment application is refused and Mr Singh’s appeal must be dismissed as no error has been shown in the FCC’s decision.

4. Mr Singh’s visa application was refused by the delegate on the ground that Mr Singh did not satisfy cl 485.215 of Sched 2 to the Migration Regulations 1994 (“the regulations”). That clause required Mr Singh to have “competent English” which is defined in reg 1.15C of the regulations. The provisions at the relevant time were as follows:

   Regulation 485.215

   The applicant has competent English.

   Regulation 1.15C

   (1)If a person applies for a General Skilled Migration visa, the person has competent English if the person:

   a.satisfies the Minister that:

   i. the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

   ii.           the test was conducted in the 2 years immediately before the day on which the application was made; and

   iii.          the person achieved a score specified in the instrument; or

   b.satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

5. Mr Singh applied to the Tribunal for a review of the decision of the delegate. The Tribunal found that there was no evidence that Mr Singh had sat an English language test in the two years prior to the date of his application. The Tribunal found that Mr Singh did not have competent English as defined in reg 1.15C and therefore could not satisfy cl 485.215 and did not meet the criteria for a Skilled Provisional Visa Subclass 485. Section 65 of the Migration Act 1958 (Cth) requires that a visa be refused if an applicant does not meet the criteria for the visa. The Tribunal affirmed the decision of the delegate not to grant a visa to Mr Singh.

6. Mr Singh’s sole ground for judicial review was as follows:

   1. The decision of the Tribunal was made without jurisdiction or is effected by an error of jurisdiction;

   PARTICULARS

   The applicant says that he believes that he has undertaken an English test in the past.

7. The FCC found that no error of law by the Tribunal had been established and that the application for judicial review amounted to an attempt to review the substantive merits of the Tribunal’s decision, which as the FCC stated, is not allowable in judicial review.

8. Mr Singh raises the same ground in his appeal from the FCC. The ground advanced amounts to an impermissible attempt to seek merits review by challenging the finding of fact by the Tribunal that there was no evidence that he had sat the requisite English test. The FCC was correct to hold that the finding made by the Tribunal was open to the Tribunal on the material before it and is not amenable to a judicial review.

9. The appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated: 9 February 2015