Singh v Minister for Immigration and Border Protection - [2014] FCCA 1403

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1403

Catchwords:
MIGRATION – Judicial review – applicant’s failure to prove he has competent English – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Berenguel v MIAC [2010] HCA 8
Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11

Applicant:

VIKRAM DEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2111 of 2013

Judgment of:

Judge McGuire

Hearing date:

1 July 2014

Date of Last Submission:

1 July 2014

Delivered at:

Melbourne

Delivered on:

13 August 2014

REPRESENTATION

Solicitors for the Applicant:

Unrepresented

Counsel for the First Respondent:

Mr Sharpe

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application be dismissed.
The Applicant pay the costs of the first Respondent in a quantum of $5, 800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2111 of 2013

VIKRAM DEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Pursuant to his application filed 3 December 2013 the Applicant applies for a judicial review of the determination of the second Respondent (the tribunal), which was to affirm a decision of the Minister’s delegate (the delegate) to refuse his application for a Skilled (Provisional) (Class VC, subclass 485) visa (the visa).
The Applicant appeared at the hearing on 1 July 2014 unrepresented. He did have the assistance of an interpreter. Both the interpreter and the Applicant confirmed my inquiry that they spoke a common language and understood each other.
Prior to taking submissions the Applicant made an oral application for an adjournment. He advised that he had given notice by way of an email request to the solicitors on the record for the First Respondent of his intention to seek an adjournment by an email sent the previous week. The parties agree that the email was received. They agree that a response, also by email, rejecting the request for an adjournment was provided by the solicitors on 26 June 2014.
The application for the adjournment was heard and refused. Oral reasons were given, taken out and placed on the court file. In summary, the Applicant said that he had no money to instruct a legal representative. He said that he had made a request of members of his family in India but that they were otherwise engaged in a “property dispute”, which he later enlightened me to be property litigation in India. He said that he had made his request approximately “two months ago” but had not wished to pressure his family in those circumstances. He indicated that he hoped that the litigation in India would be resolved “within two or three months” and that he anticipated receiving some financial assistance.
The application was opposed on the following bases:
(1)that the application had been filed as long ago as 3 December 2013, being some seven months prior to the hearing date;
(2)that on 6 December 2013, as a courtesy, the Respondent’s solicitors had provided the Applicant with written information as to options for his legal assistance, including Victoria Legal Aid and community legal centres and including the addresses and contact numbers of those places;
(3)that directions for trial were made by consent by Registrar Allaway on 19 February 2014, providing a timetable, including that the Applicant file and serve his written submissions and list of authorities 14 days prior to the final hearing. He has not complied with that direction whereas the Respondent has complied;
(4)that the Applicant has shown no reasonable excuse for the delay and, in particular, that he has made no reasonable effort in all of the circumstances to obtain legal assistance, including free legal assistance available to him following advice from the Respondent’s solicitors.
My reasons effectively accepted the submissions of the Respondent and the adjournment was refused.
The Applicant was then invited to make oral submissions in support of his application. That invitation was made to him on no less than three separate occasions. He declined to make submissions.
The Applicant’s application filed 3 December 2013 does not indicate an application that time for making of the application be extended under section 477 of the Migration Act 1958 (“The Act”).
The application seeks a writ of mandamus directed to the tribunal or Minister requiring them to determine the Applicant’s application according to law. He seeks further specific orders as follows:
i)a declaration that the decision of the tribunal is “invalid, unlawful and void and of no force and effect”;
ii)an order “directing the MRT to hear the review again according to law”;
iii)an injunction restraining the Respondent, his servants and agents from acting on an invalid decision
iv)“such further order as the court deems fit and proper”.
I take the Applicant’s argument, absent any written or oral submissions, to be particularised in his application as follows:
(1)The Tribunal failed to accord the applicant procedural fairness and natural justice.
Particulars:
(a)On 9 March 2012 the applicant applied to the MRT for a review of the delegate’s decision;
(b)There was no hearing fixed by the MRT;
(c)The applicant requested for an extension of time to meet the definition of competent English under the Regulations;
(d)The Tribunal’s decision to proceed and make a decision without hearing was unreasonable in the circumstances;
(e)The decision-maker has failed to give an opportunity to the applicants [sic] to be heard and to address the issues and grounds upon which the visa was refused;
(f)The Tribunal’s exercise of the decision under s363(1)(b) of the Migration Act 1958 (the Act) was unreasonable, applying the case of MIAC v Xyjuan Li & Anor [2013] HCA 18;
(g)The Tribunal’s exercise of the decision went against the case of Berenguel v MIAC[1], which says a test can be undertaken after the application has been made;
[1] [2010] HCA 8
(h)The Tribunal made a decision in the absence of the applicant;
(i)The Tribunal failed to accord the applicant procedural fairness.
(2)The Tribunal failed to comply with section 362(b)(2) of the Act, in that it failed to invite the applicant before it to enable the applicant to appear and present her [sic] case.
Particulars:
(a)The applicant refers to and repeats the particulars at paragraph (1) above.
(b)The Tribunal erred in not having regard to the fact that the applicant wanted time to complete the IELTS test and ought to have rescheduled the hearing to enable the applicant to attend the hearing and to provide evidence and information and present arguments before making a decision.
(c)The decision-maker has failed to identify and consider the elements of the case.
(3)The Tribunal failed to comply with section 348 of the Migration Act 1958 (the Act), in that it failed to conduct a review of the applicant’s application.
Particulars:
(a)The applicant refers to and repeats the particulars of paragraph (1) above.
(b)There was no “available information” before the Tribunal to make a decision.
(c)The Tribunal could not have reviewed the application on the available information.
(d)The Tribunal failed to consider the applicant’s circumstances and proceeded to decide in the absence of the applicant.
(e)The Tribunal did not conduct a hearing of the matter as contemplated under the Act.

Background

The Applicant is a citizen of India. He arrived in Australia on 12 June 2008 holding a student visa (class TU).
The Applicant applied for a Skilled (Class VC, subclass 485) visa on 8 December 2010. The visa application was made online. The application posed a question, “Have you undertaken an English test within the last 24 months?” The Applicant’s response was “yes”. He advised that the test was dated 7 December 2010, being the day before his application.
On 16 December 2011 the Department wrote to the Applicant advising that consideration of his application had begun and requesting specific additional information and documents set out in an attachment to the letter.
The delegate refused the Applicant’s application on 28 February 2012, on the ground that the Applicant had not provided evidence of having competent English, given that he was not the holder of a passport referred to in regulation 1.15C(b) of the Migration Regulations 1994 (the regulations).
The Applicant lodged an application for a review on the merits by the Tribunal. That application was lodged on 10 March 2012.
On 3 April 2013 the Tribunal wrote to the Applicant inviting him to provide:
Evidence that you meet the definition of “competent English” in regulation 1.15C of the Migration Regulations 1994 (the Regulations).
That information was required by 10 May 2013. Importantly, that letter also provided:
If you cannot provide the information by 10 May 2013, you may ask the tribunal for an extension of time in which to provide the information. If you make such a request, it must be received by the tribunal before 10 May 2013 and you must state the reason why the extension of time is required.
The tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the tribunal does not receive the information within the period allowed, or as extended, the tribunal may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.
If you have any questions, please contact me on the number listed below or telephone the tribunal’s national inquiry line…
On 6 May 2013 the Applicant did write to the Tribunal seeking an extension of time to provide evidence of competent English. His letter says:
Pl refer to your letter I received dated 3 April 2013 to submit the IELT result.
I have booked the IELT and the exam is on 6 July, as I could not find an earlier date.
I have attached a booking receipt.
I request you very kindly allow me this time, as this is a question of my career, and I shall be very thankful.
Regards…
The Tribunal granted the applicant an extension of time on 13 May 2013. That extension ran until 19 June 2013. This was the maximum extension time available to the Tribunal under reg.4.17(4) of the regulations. In advising of the extension, the tribunal also noted:
However, the tribunal will not proceed to finalise the review before 22 July 2013, to provide you the opportunity to provide your IELTS results following your test on 6 July 2013.
The Tribunal determined the application on 7 November 2013. As of that date, it was not armed with the requested evidence in respect of the IELTS results.
The Tribunal affirmed the decision of the delegate, refusing the applicant’s application for a visa. The Tribunal made the following findings in its written reasons:
(1) The applicable visa Subclass is S485;
(2)An invitation was sent to the applicant in accordance with S359(2) of the Act, the applicant requested an extension of time on 6 July 2013, no further communication was received from the applicant. In the circumstances, s359C of the Act applies, and pursuant to s360(3) of the Act, the applicant is not entitled to appear before the Tribunal.
(3)The applicant did not hold a passport of a type listed in IMMI09/73, being the instrument in force at the time of the applicant’s visa application, and therefore did not satisfy reg 1.15C(b).
(4)There was no evidence that the applicant had achieved the specified score in a specified language test, conducted not more than two years before the visa application was lodged. Accordingly, the applicant did not have “competent English” as defined in reg 1-15C(a), and therefore the requirements of cl 485.215 were not met.
At paragraph 12 of its reasons, the Tribunal properly, in my view, noted:
The current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C, as in force before 1 July 2011, and there are no specifications for r.1.15C(a)(ii), although there are specified tests and scores for the equivalent provision as substituted on 1 July 2011. The tribunal considers that this instrument should be construed as specifying scores, tests and passports for r.1.15C, as in force on and after 1 July 2011, and that the applicable instrument in this case is IMMI09/73, the instrument in force when the visa application was lodged. The tribunal notes, however, that in both instruments the specified scores, tests and passports are substantially the same.
At paragraph 14 of its reasons the Tribunal noted that the Minister has specified a score of at least “B” in each of the four components of an Occupational English Test (OET), and:
Thus, an applicant can satisfy r.1.15C(a) by achieving the specified score in either an IELTS or an OET, in a test undertaken after the application has been made, but not more than two years earlier.
Given the circumstances set out above, the Tribunal concluded at paragraph 15:
On the basis of the evidence before it, the tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).
It followed that the Tribunal affirmed the decision of the delegate not to grant the Applicant’s visa.
I accept that counsel for the First Respondent properly summarises the applicant’s three grounds for a judicial review as follows:
(1)that the tribunal failed to accord the applicant procedural fairness and natural justice;
(2)the tribunal failed to comply with s.362B(2) of the Act, in that it failed to invite the applicant before it to enable the applicant to appear and present his case;
(3)the tribunal failed to comply with s.348 of the Act, in that it failed to conduct a review of the applicant’s applications.
The First Respondent argues against each of the three grounds.

Ground 1

The Applicant says that he was denied procedural fairness or natural justice by the tribunal failing to hold a hearing. He relies on the decision of Berenguel v MIAC (Supra).
The Respondent says that the tribunal acted correctly in deciding that it did not have the power to conduct the hearing as the Applicant had lost that entitlement.
The Respondent relies on s.359 of the Act, which provides:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
Section 359C of the Act provides that the tribunal may make a decision on the review without taking further action to obtain information from the Applicant if the applicant does not provide that information on the prior invitation and within the time prescribed.
Section 360(1) of the Act obliges the tribunal to invite the Applicant to appear before it to give evidence and present argument. Nevertheless, that section must be read subject to section 359C(1) which sets:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
I accept the submission of counsel for the Respondent that the facts now before me can be distinguished from those in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd.[2] In that matter the Applicant had responded to a letter pursuant to section 359A of the Act. In the matter before me, the Applicant was requested to give information pursuant to s.359C(1) as opposed “comment or response” pursuant to section 359A(1)(c).
[2] (2011) 194 FCR 11
I am satisfied, on the evidence before me, that the tribunal sent an invitation to the Applicant in proper terms pursuant to section 359(2) of the Act.
The Applicant responded by letter of 6 May 2013 advising that he was sitting an exam on “6 July” and requesting an extension of time. I am satisfied that this request does not constitute a response to the Tribunal’s request for information of the Applicant’s competency in English. I accept the submission of the Respondent that the Applicant’s response does not, in any way, establish that the applicant will achieve the required results of “competent English” and that consequently ss.359C(1) and 360(2)(c) of the Act were properly activated.
I accept that the Tribunal effectively acceded to the Applicant’s request for an extension of time so that he could provide the requisite information to the tribunal.
The Applicant’s failure to provide the information properly activated section 360(3) which provides:
If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the tribunal. [Hasran v Minister (2010) 183 FCR 413]
It follows that I am satisfied that the tribunal properly determined that the Applicant had no entitlement to appear before it and that the tribunal was able to determine the application without holding a hearing. I am satisfied that the circumstances in Berenguel v MIAC[3] can therefore be distinguished in that the Applicant at no time provided any evidence of “competent English”. It then follows that the Applicant was not, pursuant to the legislation, denied procedural fairness or natural justice.
[3] (supra)
In addition, I accept the tribunal did not act unreasonably in all of the circumstances. The Applicant was given an extension of time until 19 June 2013 to provide the information. An indication was given to him that the matter would not be determined prior to 22 July 2013. It eventuated that the tribunal’s decision was not made until 7 November 2013 by which time, in any event, the requested information had still not been provided.

Ground 2

The applicant argues that the tribunal failed to invite him to the hearing pursuant to section 362B(2).
I accept the submission of counsel for the Respondent that this section has no application where the applicant had lost his entitlement to appear before the Tribunal as set out above.

Ground 3

The Applicant says that the tribunal failed to comply with section 348 of the Act in that it did not conduct a review of his application and that it had no “available information” before it and determined the matter in his absence.
The role of the tribunal was to conduct a review on the merits of the Applicant’s application for a visa. There are certain necessary requirements and criteria provided for in the regulations. That “the applicant has competent English” is one such criteria [Regulation 1.15C Migration Regulations].
The tribunal did conduct a review. It was properly appraised of the relevant and necessary criteria. The Applicant had failed to provide of evidence of “competent English”. As such, I am not satisfied that the tribunal fell into error or could fall into error given the Applicant’s failure in this regard.

Conclusion

I find no error in the tribunal’s process. The application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 13 August 2014