Sutikno v Minister for Immigration
[2015] FCCA 686
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUTIKNO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 686 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled residence visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.353 |
| Minister for Immigration (2013) 249 CLR 332 Thapaliya v Minister for Immigration [2013] FCCA 456 |
| First Applicant: | IDA SURJATI SUTIKNO |
| Second Applicant: | PETRUS HERMAN SUSILO |
| Third Applicant: | NATASHA VALESKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1107 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2015 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Mr S Speirs of Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, including costs thrown away, fixed in the sum of $3,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1107 of 2014
| IDA SURJATI SUTIKNO |
First Applicant
PETRUS HERMAN SUSILO
Second Applicant
NATASHA VALESKA
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application seeking review of a decision of the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants’ skilled residence visas. There are three applicants, who are a husband and wife and their child. The first applicant, Mrs Sutikno, who made the relevant visa claims, is the applicant mother. Any reference to the applicant in these reasons is intended to be a reference to her.
Background facts relating to the visa application and the Tribunal decision are set out in the Minister’s written submissions filed on 3 December 2014.
The criteria for the skilled visas were set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The critical criterion flowed from clause 485.215, which required Ms Sutikno to have “competent English”.
This expression was defined by regulation 1.15C of the applicable version of the Regulations[1], and stated that a person has “competent English” if the person “satisfies the Minister that the person”:
[1] The applicable version of regulation 1.15C was introduced by the Migration Amendment Regulations 2007 (No. 7) which was in force prior to the amendments made by the Migration Amendment Regulations 2011 (No 3). The changes made by the latter did not apply to visa applications made before 1 July 2011.
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
For the purposes of regulation 1.15C, Ms Sutikno could satisfy the competent English requirement if she:
a)undertook and achieved the requisite test score in the following language tests:
i)an International English Language Test System (IELTS test), which requires a test score of at least 6 for each of the four components of speaking, reading, writing and listening; or
ii)an Occupational English Test (OET), which requires a score of at least 'B' in each of the four components of an OET; or
b)held a passport of a type specified by the Minister, i.e. the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
Tribunal proceedings
In its invitation to the hearing, the Tribunal invited Ms Sutikno to provide evidence of, among other things, competent English. No evidence was provided prior to the hearing.[2]
[2] CB 147, [8].
At the Tribunal hearing on 15 October 2013, Ms Sutikno provided evidence of her latest scores from an IELTS test that she had undertaken on 29 August 2013.[3] Ms Sutikno had failed to attain a score of at least 6 in each of the four required components. Ms Sutikno told the Tribunal that she was taking English classes and had undertaken several IELTS tests in which she had been unable to attain the requisite scores. The Tribunal agreed to allow her until 15 November 2013 to submit further evidence.[4]
[3] CB 148, [14].
[4] CB 147, [14].
Following the hearing, Ms Sutikno provided the Tribunal with receipts for an IELTS test scheduled for 30 November 2013 and the dates of her English courses.[5] The Tribunal agreed to wait until 18 December 2013 before making its decision. On 23 December 2013, Ms Sutikno advised the Tribunal that there was a delay with production of her results and requested a further extension. The Tribunal agreed to allow until 9 January 2014.[6]
[5] CB 147, [15].
[6] CB 147, [15].
On 8 January 2014, Ms Sutikno requested additional time as she claimed to have still not received the results. On 20 February 2014, having received nothing further from Ms Sutikno, the Tribunal contacted her and advised that it would allow until 28 February 2014 for the production of the November IELTS results. On 28 February 2014, Ms Sutikno provided results which demonstrated a score of 5.5 for listening, 4.5 for reading, 4.5 for writing and 5.5 for speaking. She advised that she had booked another test for 8 March 2014, and requested additional time.
On 18 March 2014, the Tribunal contacted Ms Sutikno for the results and advised that it required them by 22 March 2014. On 31 March 2014, the Tribunal again contacted Ms Sutikno, and advised that it would make a decision based upon the material before it on 4 April 2014.[7]
[7] CB 147, [15].
Ms Sutikno responded by email on 31 March 2014 requesting that the Tribunal give her “extra time to take the IELTS tests every two weeks” and to “give (her) daughter opportunity to finish her year 12 until this year”. The results of the March IELTS test were attached, which indicated scores of 6.0 for listening, 4.5 for reading, 5.5 for writing and 5.5 for speaking.[8]
[8] CB 147, [15].
The Tribunal considered that Ms Sutikno had “ample time and opportunity” to demonstrate that she had competent English, noting that approximately three years had passed since her visa application was made. Almost six months had passed since the Tribunal hearing, following which the Tribunal had allowed her several extensions of time. The last adjournment sought was effectively indefinite. Having regard to the scores that she had previously attained, the Tribunal considered that there was nothing to suggest that a satisfactory IELTS result was “just around the corner”.
Accordingly, the Tribunal refused the adjournment request and affirmed the decision of the Delegate.[9]
[9] CB 149, [22].
The present proceedings
These proceedings began with a show cause application filed on 23 April 2014. There is one ground in that application:
The Applicant is entitled to a Skilled (Provisional) (Class VC) 485 visa application in accordance with the relevant provisions of the Migration act and Regulations.
The application is supported by a short affidavit filed with it. I accepted [1]-[3] of that affidavit as evidence. I received [4] and [5] as submissions. Relevantly, the applicant says:
I believe that I will be eligible to be granted for a Skilled (Provisional (Class VC) Subclass 485 visa application.
I respectfully submit that MRT should have given thorough consideration on aspect of possibility of the application decision can be reversible by way of other methodology other than MRT application such as GFU internal review and/ or Ombudsmen and / or Ministerial Intervention, etc…
The matter came before me for first court date directions on 19 June 2014. At that time, Mr Busby appeared for the applicants. I provided the applicants with the opportunity to file and serve an amended application and additional evidence. They have not taken up that opportunity.
By consent, the matter was listed for a show cause hearing on 10 December 2014. On 10 December 2014, Mr Norbert Kelvin appeared for the applicants. He sought and obtained an adjournment of the show cause hearing. More recently, Mr Kelvin filed a Notice of Intention to Withdraw. That was filed on 5 March 2015. That Notice was purportedly served on the applicants. I note, however, that Ms Sutikno, during the course of oral argument, asserted that she was unaware of the withdrawal of Mr Kelvin. As it will appear, however, I do not accept that the applicants have been disadvantaged in the circumstances.
I received as evidence the Court Book filed on 4 July 2014. Plainly, the class of visa which the applicants sought required them to establish competence in the English language. At the time of the visa application, they were able to satisfy that criterion up to the time of the Tribunal decision. Relevantly, they needed to establish a passing score of 6 in each of the elements of an IELTS test.
Before the Tribunal, Ms Sutikno stated that she had made several attempts, but had not obtained a passing score in all elements of the test. She sought and obtained several adjournments of the review to give her a further opportunity to pass the test. Ultimately however, the Tribunal found that it had given Ms Sutikno sufficient time. The Tribunal’s reasoning is relevantly set out at [18].[10]
[10] CB 149
On the basis of Ms Sutikno’s IELTS test results, the Tribunal found that she had not achieved a passing score. That meant that none of the visa applicants could receive the class of visa sought.
Ms Sutikno appeared in person today and made oral submissions. She told me that she is continuing with her English studies. She has apparently still not achieved a passing English language score. She recognises that she has difficulties in that regard, partly due to her age. She is hopeful that she will ultimately be successful with the support of friends. She seeks more time to achieve a passing score. That difficulty, however, only underscores the conclusion that the Tribunal did not act unreasonably in proceeding to a decision when it did.
No arguable ground of legal unreasonableness
On my consideration of the application and the available material, I am confidentially satisfied that there is no arguable case of jurisdictional error by the Tribunal. In that regard, I have had regard to and agree with the Minister’s submissions.
The Minister submits that no recognisable error is identified by the statements asserted in the affidavit filed on 23 April 2014.
Further, the Minister submits that the Tribunal was under no obligation to give “thorough consideration” of “possibility of the application decision can be reversible by way of other methodology”. There is no basis, in the Migration Act or otherwise, for imposing such an obligation upon the Tribunal.
The Tribunal decision record reflects that the Tribunal allowed Ms Sutikno numerous adjournments in respect of Ms Sutikno receiving her IELTS results or re-sitting additional IELTS tests. The Minister submits that no legal unreasonableness ground of the kind found in Minister for Immigration[11] (Li) is open on the facts of this case. I agree.
[11] (2013) 249 CLR 332
Unlike in Li, there was clearly an “intelligible justification” for the Tribunal's refusal of an adjournment in the present case. Indeed, the Tribunal's reasoning in this regard was set out in its decision record. In summary:
a)the Tribunal had express regard to s.353(1) of the Migration Act, which refers to the role of the Tribunal in providing a review that is “fair, just, economical… and quick”;[12]
b)having considered Ms Sutikno’s previous results, in which she had received 6 in no more than one test component of any test, there was nothing to suggest that a successful IELTS test result was attainable in the near future;[13]
c)the Tribunal had already allowed Ms Sutikno a number of adjournments to assist her sitting additional tests and receiving IELTS results; and
d)the adjournment sought was of indefinite duration.
[12] CB 149, [17].
[13] CB 149, [16] and see: Thapaliya v Minister for Immigration [2013] FCCA 456 at [31]-[32].
Further, the Minister submits that this was clearly a case in which the Tribunal was entitled to conclude that “enough was enough”.[14] I agree.
[14] See Li at [82].
I conclude that there is no arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs. On 10 December 2014 I ordered the applicants to pay the Minister’s costs thrown away by reason of the adjournment at that time. The Minister seeks an order for costs fixed in amount of $3,500, including such costs thrown away.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of an incidental to the application, including costs thrown away, fixed in the sum of $3,500.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 30 March 2015
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