Singh v Minister for Immigration and Border Protection

[2014] FCA 719

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 719

Citation:	Singh v Minister for Immigration and Border Protection [2014] FCA 719
Appeal from:	Singh v Minister for Immigration & Anor [2014] FCCA 569
Parties:	VIRENDER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	WAD 75 of 2014
Judge:	MCKERRACHER J
Date of judgment:	4 July 2014
Legislation:	Migration Act 1958 (Cth) s 65
Cases cited:	Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 R v Gray; Ex parte Marsh (1985) 157 CLR 351
Date of hearing:	27 May 2014
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The appellant represented himself
Counsel for the First Respondent:	Mr A Gerrard
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent submits to any order the Court may make in the proceeding save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 75 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: VIRENDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	4 JULY 2014
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant to pay the first respondent’s costs, to be taxed if not agreed. 

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 75 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: VIRENDER SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	4 JULY 2014
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant, Mr Singh (a citizen of India), appeals from an order of the Federal Circuit Court of Australia (FCC) (Singh v Minister for Immigration & Anor [2014] FCCA 569) in which the Court dismissed a judicial review application.

   BACKGROUND

2. Mr Singh applied for a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (Act) on 12 January 2012.  He was asked whether he had undertaken an English test within the previous 24 months, he answered ‘no’.

3. On 29 August 2012, a delegate refused Mr Singh’s application because he had not satisfied the English competency requirements.  Mr Singh lodged an application for review of the delegate’s decision in September 2012, which was considered by the Migration Review Tribunal (Tribunal) in June 2013.  Before considering his application, the Tribunal invited him to appear by letter of invitation dated 9 May 2013.  The letter underlined the fact that the requisite English language test score must have been attained within the two years immediately before the day on which the visa application was made.  He was invited, if he had evidence of competent English, to provide it to the Tribunal as soon as possible prior to the hearing.  The hearing was held on 17 June 2013.  Mr Singh did not provide any such evidence prior to or during the course of the hearing.  On 25 June 2013 the Tribunal affirmed the delegate’s decision. 

   THE TRIBUNAL DECISION

4. The relevant issue for the Tribunal was whether Mr Singh had competent English as required by cl 485.215 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations), and as defined in reg 1.15C.

5. The Tribunal noted that reg 1.15C read together with the relevant legislative instrument IMMI 11/036, provided that a person demonstrates competent English if he or she satisfies the Minister that the person undertook a specified language test conducted in the two years immediately prior to the day on which the application was made and achieved a specified score or if the person holds a specified passport, namely, a passport from the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland. 

6. The Tribunal correctly noted that Mr Singh did not hold one of the specified passports and that it was necessary for him to satisfy the Minister’s delegate that he had a test score of at least 6 for each of the four components in the International English Language Testing System (IELTS) test or a test score of at least ‘B’ for each of the four test components in an Occupational English Test (OET). 

7. Mr Singh has never sat an OET.  He did sit an IELTS test in the relevant period but did not achieve the required score.  He applied for the visa before having evidence of competent English. 

8. The Tribunal affirmed the delegate’s decision.

   JUDICIAL REVIEW APPLICATION

9. On application to the FCC for judicial review of the Tribunal decision, that Court dismissed the application, confirming the Tribunal’s decision was the only decision that was open to it.  Additionally, Lucev J added (at [22]), to the extent it was relevant, that it was irrelevant that Mr Singh may have subsequently passed an IELTS test as at the time of application, the requirement was that Mr Singh had passed the test in the two years prior to making an application.  Also (at [23]), his Honour noted that it was not to the point that he may have been ‘misguided’ by a lawyer as to the timing of his application, as the fundamental fact remained that Mr Singh did not satisfy the visa criteria at the time of making the application. 

   APPEAL TO THE FEDERAL COURT

10. Mr Singh appeals to this Court on the following grounds:

    I was not aware about the rules of immigration when I applied for visa 485, I have been misguided by immigration lawyer and I have filled the requirements.  So I don’t know why I still got unsuccessful result in court. 

    I have got the English requirement so that was the condition, so I have got the requirement. 

11. Mr Singh contends that at the relevant time of making his application, he could satisfy the necessary English language requirements. 

    CONSIDERATION

12. Section 65 the Act provides:

    Decision to grant or refuse to grant visa

    (1)       After considering a valid application for a visa, the Minister:

    (a)       if satisfied that:

    (i)the health criteria for it (if any) have been satisfied; and

    (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv)any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b)       if not so satisfied, is to refuse to grant the visa.

    …

13. It can be seen that s 65 of the Act requires decision-makers to be satisfied of certain matters before granting a visa, in particular, that the criteria for the visa in issue have been satisfied. If the decision-maker is not so satisfied then the visa must be refused. Section 65 does not confer a discretion as to the exercise of power.

14. The relevant criteria for a subclass 485 visa are set out in the Regulations. At the relevant time, cl 485.215 of Sch 2 read together with the relevant legislative instrument, IMMI 11/036, provided as a mandatory criteria to be met at the time of application that the applicant has competent English.

15. ‘Competent English’ is defined in reg 1.15C.  At the relevant time it provided:

    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.

    (emphasis added)

16. The relevant legislative instrument at the time Mr Singh applied for the visa was IMMI/036 which provides:

    2.SPECIFY for the purposes of subparagraph 1.15C(a)(i) the following language tests:

    -         An … (IELTS test); and
    -         An … (OET test).

    3.SPECIFY for the purposes of subparagraph 1.15C(a)(iii) the following scores:

    -an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

    -a score of at least ‘B’ in each of the four components of an OET.

    4.SPECIFY for the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country. 

17. Mr Singh seeks to identify jurisdictional error on the part of the Tribunal.  A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error:  see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (at [76]).

18. Broadly speaking, a jurisdictional error can only be shown where the Tribunal:

    (a)identifies a wrong issue;

    (b)asks the wrong question;

    (c)ignores relevant material; or

    (d)relies on irrelevant material,

    in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ (at [82]). Jurisdictional error has also been described as the purported exercise by a tribunal in excess of that which has been conferred upon it. It may lead to a superior court issuing constitutional or prerogative writs – certiorari to quash a decision made in excess of jurisdiction, or prohibition to prevent the tribunal from proceeding to act in excess of its jurisdiction:  see R v Gray; Ex parte Marsh (1985) 157 CLR 351. Because the purported decision lacks legal foundation it is properly regarded, in law, as no decision at all: see Craig v South Australia (1995) 184 CLR 163.

19. I accept the Minister’s submission that the notice of appeal contains no meaningful grounds.  The fundamental problem with the appeal is that there was simply no evidence before the Tribunal demonstrating that Mr Singh satisfied the competent English requirement. 

20. The decision of the Tribunal was one which was clearly open to it in the circumstances.  Mr Singh did not produce evidence that he satisfied the requirement of competent English.  It is difficult to see how any other decision could have been reached. 

21. As Lucev J in the FCC noted, the fact that Mr Singh may have now passed an IELTS test is irrelevant as the requirement was that evidence be produced that the requisite score had been achieved within the two years prior to the application for the visa.  Similarly, Lucev J was entirely correct in finding that any reliance on poor advice by a lawyer was irrelevant given Mr Singh simply did not satisfy the criteria for the grant of the visa he sought. 

22. Nothing indicates that the Tribunal failed to accord Mr Singh procedural fairness or failed to carry out a review in accordance with the Act. In particular, the Tribunal made very clear in its letter of 9 May 2013 that Mr Singh would need to provide evidence of competent English.

    CONCLUSION

23. There is no error in either the decision of the Tribunal or the FCC.  The appeal must be dismissed with costs.  The following orders are made:

    1.The appeal is dismissed.

    2.The appellant is to pay the first respondent’s costs, to be taxed if not agreed. 

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:        4 July 2014