Syed v Minister for Immigration

[2017] FCCA 1865

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYED & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1865

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicants raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Regulations 1994 (Cth), reg.1.15C, Schedule 2, cl. 886.213

Cases cited:

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28

First Applicant: ISMAIL ZABI AHMED SYED

Second Applicant: MEHARUNNISA MEHARUNNISA

Third Applicant: SYEDA AFIYAH FATIMA SYEDA AFIYAH FATIMA

Fourth Applicant: ALYAN AHMED SYED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1394 of 2016

Judgment of: Judge Manousaridis

Hearing date: 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Sydney

Delivered on: 11 August 2017

REPRESENTATION

First applicant appeared for and on behalf of the applicants assisted by an interpreter

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1394 of 2016

ISMAIL ZABI AHMED SYED

First Applicant

MEHARUNNISA MEHARUNNISA

Second Applicant

SYEDA AFIYAH FATIMA SYEDA AFIYAH FATIMA

Third Applicant

ALYAN AHMED SYED

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r. 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed because the application does not raise an arguable case for the relief it seeks. By that application, the first applicant, his wife, the second applicant, and their two children, the third and fourth applicants, seek judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the first applicant a Skilled (Residence) (Class VB) visa (Skilled visa).

2. Although named as applicants in the application, the second, third, and fourth applicants did not themselves apply for the Skilled visa, either on their own behalf or as members of the applicant’s family unit.

Criteria

1. To have been entitled to the grant of a Skilled visa, the first applicant had to satisfy the criterion specified in cl. 886.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). On 8 June 2010, when the first applicant applied for the Skilled visa, clause 886.213 of Schedule 2 to the Regulations required an applicant to have “competent English”.  Regulation 1.15C of the Regulations provides that a person has competent English if:

   … the person satisfies the Minister that the person:

   (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.

2. Regulation 1.15C was subsequently amended, but this version continues to apply to the first applicant because the first applicant lodged his application for a Skilled visa before 1 July 2012. For ease of expression, in the remainder of these reasons I will refer to the Regulations as they applied to the first applicant in the present tense.

3. As the first applicant’s application was lodged before 1 July 2012 there is in effect an instrument in writing made for the purposes of reg. 1.15C of the Regulations, namely IMMI 15/005. At the time the first applicant applied for the Skilled visa, in order to satisfy reg. 1.15C of the Regulations, the first applicant was required to provide evidence of obtaining the requisite score, as specified in the Regulations, in an International English Language Test System (IELTS) or an Occupational English Test (OET); or, the first applicant had to be the holder of 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.

Background

1. On 8 June 2010 the first applicant applied for a Skilled visa but did not provide any satisfactory evidence that he had competent English with his visa application.[1]

   [1] CB40-60

2. On 6 August 2015 the delegate requested the first applicant provide, among other things, evidence that he had competent English. [2] On 4 September 2015 a file titled “request for time extension” containing a medical certificate for the first applicant’s mother was uploaded to the first applicant’s visa application account.[3] I infer the delegate provided the first applicant the requested extension because on 30 September 2015 the delegate made a second written request for further information, including evidence that the first applicant had competent English.[4] The first applicant, however, did not respond to the delegate’s request.

   [2] CB66-77

   [3] CB84

   [4] CB87-95

3. On 19 November 2015 the delegate refused the first applicant’s application for a Skilled visa because the first applicant did not satisfy the criterion for the grant of a Skilled visa. In particular, the first applicant did not provide evidence that he had competent English as provided for under the Migration Act 1958 (Cth) and the Regulations.

4. The first applicant applied to the Tribunal for review on 10 December 2015.  In a letter sent on 28 January 2016 to the applicant, the Tribunal invited the first applicant to attend a hearing before the Tribunal on 16 February 2016 to give evidence and present arguments relating to his case. The Tribunal further directed the first applicant to provide all documents on which he intended to rely to establish that he meets the criteria for a Skilled visa including evidence that he has competent English.[5] The Tribunal also asked the first applicant that if he had booked an IELTS or OET test scheduled to take place before or shortly after the hearing date to provide evidence of such a booking. [6]

   [5] CB19-21

   [6] CB19-21

5. On 12 February 2016 the first applicant appointed a representative, who wrote to the Tribunal requesting a postponement of the hearing scheduled on 16 February 2016 because the first applicant was required to travel back to his home country to visit his critically ill mother.[7] On 16 February 2016 the Tribunal responded to the first applicant’s request by offering to conduct a hearing by telephone in three to four weeks’ time as “the issue is whether or not the [first applicant] has “competent English” which only involves [an] objective criterion”. The Tribunal stated it did not consider the first applicant would be “at any disadvantage due to “emotional state””.[8] On 18 February 2016 the Tribunal granted the first applicant’s request to postpone the hearing and advised the first applicant that the hearing was scheduled for hearing on 17 March 2016.

   [7] CB23

   [8] CB38-39

6. On 16 March 2016, through his representative, the first applicant requested a postponement of the 17 March 2016 hearing because the first applicant was “not in a state to face the hearing as of now, due to having to face dying mother”. The first applicant, however, advised the Tribunal that he had booked a PTE (that is, Pearson Test of English) for 31 March 2016 to show the Tribunal that he was “planning to [cooperate] with the AAT”.[9]

   [9] CB108

7. On 17 March 2016 the first applicant’s representative had a telephone conversation with an officer of the Tribunal. The Tribunal officer said the presiding Tribunal member advised that if the first applicant is declining the hearing invitation and wants the Tribunal to await the outcome of the PTE test, the member will give the first applicant until 21 April 2016 to provide the test results, but if the Tribunal receives no such request the Tribunal member will proceed “as scheduled” and may proceed to make a decision any time after that date.[10] On 17 March 2016 the first applicant’s representative confirmed in writing that the first applicant was waiving his rights to a hearing and that he would provide to the Tribunal the results of his PTE by 21 April 2016.[11]

   [10] CB115

   [11] CB116

8. On 20 April 2016 the first applicant’s representative wrote to the Tribunal and requested further time to provide the results of the first applicant’s PTE results because the first applicant’s mother had recently passed away.[12]  The first applicant’s representative said:

   We ask for consideration that the critical health of their Mother in recent weeks has affected both Applicants mentally and attempts to finalise IELTS has naturally been impacted. . . . We respectfully ask for further time to allow the Applicants to be in a position whereby their focus and attention can be addressing [sic] the requirements of AAT. It is expected that upon completion of funeral arrangements, personal family matters in India the Applicants will be returning to Australia.

   [12] CB119

9. In an email sent on 21 April 2016, the Tribunal informed the first applicant’s representative that at “the present time the Tribunal is not prepared to extend” and that, before the Tribunal will consider any “further extension”, the Tribunal wished to know the following in relation to each of the applicants:[13]

   [13] CB127

   (1) What IELTS (or OET) tests has the applicant done since 8 June 2008? and with what results?

   (2) In what periods has the applicant been physically in Australia since 1 July 2015?

   (3) Has the applicant had any bookings for IELTS or OET tests which have been cancelled since 1 July 2015?

   (4) You were asked for evidence of competent English on 2 occasions in the latter half of 2015. Why did you not provide that evidence?

   The Tribunal advised the first applicant’s representative that it would consider the grant of a further extension in light of the first applicant’s responses to these    questions.[14]

   [14] CB126

10. On 21 April 2016 the first applicant’s representative responded to the Tribunal’s request for further information and advised the Tribunal that those questions had been “forwarded directly to the [first applicant]…[who] is in the middle of funeral/last rites and we cannot make assumptions of the [first applicant’s] ability to respond during this period”. The representative said he “will of course follow up with this client to gain the required information”.[15]

    [15] CB126

11. On 2 May 2016 the Tribunal sent the first applicant’s representative an email in which it stated as follows:

    At this stage no extension has been granted, and Member proposes to make the decision on the basis of evidence available at 9 May 2016. Member may reconsider the request for further extension in light of any responses to the recent request dated 21 April 2016 received by close of business, but may elect to made [sic] the decision.

12. The first applicant did not provide any further information and on 10 May 2016 the Tribunal made its decision.

Tribunal’s decision

1. The Tribunal affirmed the decision of the delegate because the first applicant did not have competent English as defined in reg.1.15C(a) of the Regulations.[16] The Tribunal referred to the invitation the Tribunal had issued to the first applicant to attend a hearing, to the previous unanswered requests the delegate had made of the first applicant to provide evidence that he had satisfactory English, to the first applicant’s requesting the Tribunal for further time, and to the first applicant’s failure to provide the information the Tribunal requested in its email of 21 April 2016.

   [16] CB136.

2. The Tribunal said:[17]

   The applicant applied for the visa on 8 June 2010. He has thus had almost 6 years to demonstrate that he has competent English. In particular, as indicated in the decision under review provided to the Tribunal by the applicant without comment, he was asked to provide evidence of competent English on 6 August 2015 and given 28 days to respond. On 4 September 2015 requested an extension of time because of his mother’s health. On 30 September 2015, the Department made a second request and, again, he was given 28 days to respond but he had not responded as at the date of the delegate’s decision, 19 November 2015.

   As noted above, the Tribunal requested him to provide relevant evidence in its letter of 28 January 2016, and a further 3 months have elapsed. The applicant has not provided any of the information requested on 21 April 2016 as at the date and time of decision. While the Tribunal understand that the applicant has recently lost his mother and that she had been in poor health for some time, it considers that he has had more than enough time to demonstrate the required level of English language proficiency particularly since 6 August 2015 when he was placed on notice by the Department’s request that relevant evidence was required.

   [17] CB136, [17], [18]

Grounds for review

1. The application for review contains the following grounds (errors in original):

   Tribunal were advised of MOTHER ILLNESS and Subsequend Death.

   Did not provide extension for hearing or Time to provide English Result was force to Travel to IWPIA due to mother illness and was unable to meet Deadline due to mothers Death.

   Requested AAT to await Return to Australia to hold hearing and provide evidence but was Refused.

Arguable case?

1. On their face, the grounds stated in the application raise no arguable case for the relief the applicants seek. The grounds simply refer to the first applicant’s having requested the Tribunal to await his return to Australia to hold its hearing, and to the Tribunal’s not providing to the first applicant an extension of time to enable him to provide English test results.

2. At the hearing before me, the first applicant, who is not legally represented, submitted that the Tribunal did not consider the first applicant’s circumstances, and in particular that the first applicant’s mother had been ill and had passed away.[18] This is not arguable. The Tribunal was aware that the first applicant’s mother had been ill and that she had passed away, and it took those matters into account in deciding to make its decision on 10 May 2016. The Tribunal considered those matters together with other matters, including the time that had passed after the first applicant applied for the Skilled visa, the first applicant’s not having responded to requests made by the delegate and by the Tribunal to provide evidence that he was competent in English, and the first applicant’s not responding to the Tribunal’s request for further information made in its email of 21 April 2016.

   [18] The applicant appeared by telephone from India. That arose because on 31 July 2017, two days before the scheduled hearing, the applicant applied for an adjournment of the hearing on the ground of his wife’s medical condition in India which required him to travel to India. I dismissed that application but directed that the applicant could appear by telephone from India.

3. The Minister treated the applicant as claiming that the Tribunal acted unreasonably by not granting the first applicant further time. It is beyond argument that it was open to the Tribunal not to grant the first applicant further time than it did for the reasons it gave. It is not arguable that the Tribunal’s deciding the first applicant’s application for review on 10 May 2016 was ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””.[19]

   [19] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]

4. The first applicant also submitted that he acknowledged he had been granted 6 years to do what he was required to do, but he was mentally not up to do that which was expected of him. Had he been given three months, the first applicant submitted, he would have done everything expected of him.

5. These matters do not raise an arguable case of jurisdictional error by the Tribunal. These were not matters the first applicant had put to the Tribunal after the Tribunal requested the information identified in its email of 21 April 2016, or after the Tribunal, in its email it sent on 2 May 2016, indicated it would make its decision on the basis of the evidence as at 9 May 2016, subject to its reconsidering any further extension in the light of responses the first applicant might make to its email of 21 April 2016. The first applicant does not suggest he informed the Tribunal that he was not in a fit mental state to provide the information the Tribunal requested of him in its email of 21 April 2016. On their face, the Tribunal’s request for information was not extensive, and could easily have been provided.

6. At the hearing before me the first applicant asked rhetorically: “doesn’t the law consider life and emergency”? I take this to be a submission that the Tribunal did not consider the impact on the first applicant of his mother’s illness and passing away. As I have already concluded, it is beyond argument the Tribunal did take into account these matters, together with other matters, when deciding to make its decision on the review on 10 May 2016, and that it is beyond argument that, for the reasons it gave, it was reasonably open to the Tribunal to so decide.

Conclusion and disposition

1. The application discloses no arguable case for the relief it seeks. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 August 2017