Thapaliya v Minister for Immigration

[2013] FCCA 456

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAPALIYA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 456

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error  – whether the Migration Review Tribunal properly exercised its discretion in refusing a further adjournment to the applicant to provide evidence of competent English being a mandatory criterion of his visa  – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474, Pt.8
Migration Regulations 1994 (Cth), reg.1.15C, cl.458.212

Cases Cited:
Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618

Applicant: HARI KUMAR THAPALIYA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2521 of 2012

Judgment of: Judge Emmett

Hearing date: 5 June 2013

Date of Last Submission: 5 June 2013

Delivered at: Sydney

Delivered on: 5 June 2013

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2521 of 2012

HARI KUMAR THAPALIYA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 12 October 2012 and handed down on the 15 October 2012 (“the MRT”).

2. The issue before this case is whether the Migration Review Tribunal properly exercised its discretion in refusing a further adjournment to the applicant to provide evidence of competent English being a mandatory criterion of his visa.

3. The applicant is a citizen of Nepal.

4. On 25 August 2010, the applicant applied for a Skilled Provisional class VC subclass 485 (Skilled Graduate) visa with the Department of Immigration and Citizenship under the Act.

5. Clause 485.215 of the Migration Regulations 1994 (Cth) (“the Regulations”) requires that the applicant have competent English. Clause 485.215 was a mandatory criterion required to be satisfied by the applicant. Regulation 1.15C of the Regulations provided that a person satisfied that criterion if that person, relevantly, has achieved a satisfactory International English Language Testing System (“IELTS”) test score conducted not more than 2 years before the day on which the application was lodged.

6. On 20 October 2011, the Department of Immigration and Citizenship (“the Department”) wrote to the applicant requesting evidence of his English language proficiency, requiring a response within 28 days. The applicant sought and was granted an extension of time until December 2011 to provide such evidence. However, no such evidence was provided.

7. On 29 February 2012, a delegate of the first respondent (“the Delegate”) refused the applicant’s visa application on the basis that cl.485.215 of the Regulations had not been satisfied.

8. On 16 March 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

9. On 6 August 2012, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 7 September 2012 to give oral evidence and present arguments. In that letter, the MRT requested that the applicant provide evidence within 14 days of his English language proficiency or evidence that he has booked an Occupational English Test or IELTS test for no later that 1 September 2012.

10. On 7 August 2012, the applicant’s agent wrote to the MRT requesting to postpone the hearing until after 24 September 2012 because the agent had scheduled to go to Nepal on a business trip and would not return until the following day. On 10 August 2012, the MRT wrote to the applicant informing him that the MRT had considered the request but had decided not to postpone the hearing.

11. On 4 September 2012, the MRT received a receipt for an IELTS test booking for a test to be undertaken on 1 September 2012.

12. At the hearing before the MRT on 7 September 2012, the MRT advised the applicant that he must provide the result of his IELTS test by 15 September 2012.

13. On 13 September 2012, the applicant wrote to the MRT requesting an extension of time to provide the results of his IELTS test on the basis that he had been unable to perform satisfactorily on the test undertaken on 1 September 2012. The applicant sought an extension of time to 22 September 2012 and provided a receipt for an IELTS test booked for that date.

14. On 13 September 2012 the MRT wrote to the applicant informing him that it had considered the request for an extension of time to provide the results of an IELTS test scheduled for 22 September 2012. The MRT granted an extension of time and the results were to be received by 10 October 2012.  However, no further evidence of his English language proficiency was provided by the applicant.

15. On 11 October 2012, the MRT affirmed the decision under review on the basis that the applicant had failed to satisfy cl.485.215 of the Regulations, because he did not have competent English as defined in reg.1.15C of the Regulations.

The proceeding before this Court

1. The applicant was unrepresented before this Court. 

2. On 14 February 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

3. At the directions hearing, the applicant was also provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remained unpaid it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. I then confirmed with the applicant that he wished to continue with his application.

4. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

5. At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the ground contained in an application filed on 2 November 2012 as follows:

   “The Tribunal has committed jurisdictional error in construing cl. 485.215(c) so as not to consider my forthcoming IELTS test. I believe given the opportunity I could have provided my IELTS results in satisfaction of the Department’s requirements. I respectfully request this court to consider the High Court decision in Berenguel v MIAC [2010] HCA 8 when making a decision on my application. ”

7. The applicant was invited to make submissions in support of the ground and in support of the application generally.

8. The applicant sought an adjournment of today’s hearing for two months because he hoped to receive a job offer during that time. The adjournment application was opposed by the solicitor for the first respondent on the basis that this was a collateral purpose not relevant to the hearing before this Court. Further, the applicant provided no evidence to the Court of a booking for any further IELTS test. In relation to his prospective job, the applicant conceded that he had recently had an interview, but had not at this stage received any offer of a job. In the circumstances, the application for an adjournment was refused.

9. The applicant made no relevant submission in support of the ground of his application other than to express his frustration at past test results.

10. I asked the applicant whether he would be assisted if the solicitor for the first respondent made submissions first which may clarify for him the reasons why the first respondent opposed his application for relief. The applicant agreed that may be helpful. Following the first respondent’s oral submissions, the applicant was again invited to say whatever he wished in response to anything said by the solicitor for the first respondent or in support of his application generally. The applicant made no further submission.

11. At the heart of the first respondent’s submissions is a contention that the MRT properly exercised its discretion to proceed to make its determination on 11 October 2012; and, that in circumstances where there was no evidence to satisfy it that the applicant had competent English, the only conclusion to which the MRT could arrive was that the applicant had failed to satisfy the mandatory criterion of his visa that he had competent English as prescribed by cl.485.215 of the Regulations as defined in reg.1.15C of the Regulations.

12. The solicitor for the first respondent, Mr Pinder, submitted that the applicant’s reference to Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 (“Berenguel”) did not assist the applicant. Berenguel is authority for the proposition that the relevant decision maker may have regard to IELTS test results lodged after the application is made. By giving the applicant further opportunities to provide satisfactory IELTS results, the MRT in the case before this Court did so clearly in accordance with the principles espoused in Berenguel.

13. Mr Pinder also addressed the recent High Court decision in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 (“Li”). In Li, the High Court found that the exercise of its discretion by a tribunal to refuse the applicant an adjournment to obtain evidence of a skills assessment had miscarried. This was because, inter alia, it was conceded that the result was likely to be favourable and the tribunal had acted beyond its jurisdiction in refusing an adjournment. The Court held that the tribunal’s conduct demonstrated that the tribunal had either given too much weight to the fact that the applicant had had an opportunity to present her case without giving weight to her need to present further evidence; or, that the tribunal had not had proper regard to the purposes for which the statutory discretion is provided. The ratio of the High Court can be summarised as follows:

14. Per Hayne, Kiefel and Bell JJ at 641:

    “[85] The tribunal’s error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.”

15. Per Gageler J at 647:

    “[122] It is difficult to disagree. Ms Li had been in Australia for some years. The review by the MRT had been on foot for nearly a year without any delay on her part. What she sought was an adjournment of the review for a highly specific purpose clearly articulated by her migration agent: to await the outcome of the review she had already sought of TRA’s second skills assessment, which she contended to have been erroneous for reasons the migration agent explained to the MRT. Those reasons were, as the minister concedes, “coherent on their face and might well have justified an expectation that a favourable skills assessment would be obtained”. Indeed, the evidence before Burnett FM showed that a favourable skills assessment did in fact eventuate, 3 months later. Nothing in the MRT’s reasons for decision suggests that the MRT took a different view of Ms Li’s prospects and there was no reason to infer that the MRT considered that the adjournment would be likely to have been unduly protracted. The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the minister.”

16. The circumstances in Li were different to those before this Court. I accept Mr Pinder’s submission that the MRT made clear to the applicant prior to the hearing that he needed to provide evidence of competent English. When the applicant failed to provide that evidence at the hearing, the MRT gave the applicant two further extensions of time to provide satisfactory IELTS test scores. On no occasion did the applicant provide that evidence. Further, the Department had also made clear to the applicant that it required evidence of his language proficiency and gave the applicant a fixed date by which to provide that evidence. In the circumstances, there was nothing before the MRT and no evidence before this Court to suggest that it should have been apparent to the MRT that a satisfactory IELTS test score was just around the corner.

17. The MRT found that the applicant had ample opportunity to undertake and provide evidence of competent English and recorded in its decision record all the opportunities given by it and the Department to the applicant to provide that evidence. The MRT’s findings were open to it on the evidence and material before it, and for the reasons it gave.

18. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

19. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

20. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  5 June 2013