THIRUNAVUKARASU v Minister for Immigration

[2014] FCCA 2763

FEDERAL CIRCUIT COURT OF AUSTRALIA

THIRUNAVUKARASU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2763

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – Skilled (Provisional) (Class VC) Visa – application dismissed.

Legislation:  
Migration Act 1958, ss.99-101

Applicant: SASIKUMAR THIRUNAVUKARASU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 462 of 2014

Judgment of: Judge Riethmuller

Hearing date: 15 October 2014

Date of Last Submission: 15 October 2014

Delivered at: Melbourne

Delivered on: 15 October 2014

REPRESENTATION

Counsel for the Applicant: The Applicant appearing in person

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed 17 March 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 462 of 2014

SASIKUMAR THIRUNAVUKARASU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent  

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal made on 19 February 2014.  The applicant had applied for a visa under the Skilled (Provisional) (class VC) category on 21 January 2011.  Back at that time the requirements for competency in English simply required the applicant to demonstrate through an IELTS test score of at least six in each category his competency in English at some time prior to the granting of the visa, or the decision being made about the visa.

2. The applicant failed to provide a test result showing that he obtained at least six in each category at the time that the matter was before the delegate who refused his application on 1 March 2013.

3. The applicant then applied for a review by the tribunal and appeared before the tribunal on 9 October 2013, some one year and nine months after his application for the visa, to give evidence and present arguments.  His representative did not appear on that occasion.  The applicant explained that he had been studying programming in IT, and thought that he would be able to get another skills assessment, and the tribunal granted him a period of time to effectively put his case in order until 6 December, some two months later in that year.

4. The applicant told the tribunal at that time that he had sat an IELTS test in India in September 2013 but had not achieved the requisite scores, and provided evidence that he had another IELTS test booking for 9 November which also bore upon the tribunal deciding to give him until 6 December so as to provide the test results from that test.  On 6 December 2013 he emailed the tribunal, including a skills assessment, but said that he was still waiting for IELTS test results which were due on 17 December, and that he was also booked for another IELTS test on 14 December as he had been going to some classes, and requested the tribunal to extend his deadline, to provide the results to the Tribunal, to 6 January 2014.  He provided receipts for the IELTS test that he had done and the booking, and the tribunal agreed to give him an extension of time to the date he had requested, 6 January, to provide his IELTS test results. 

5. On 3 January, the tribunal received another email from the applicant with results from the IELTS test he sat on 4 December which showed six or more in three of the four categories, but only 5.5 in the reading category.  He said that he had applied for a re-mark of the test which takes six to eight weeks, and that he had booked yet another IELTS test for 18 January.  On this occasion he requested an extension of time until 14 February 2014 to provide the results.  The tribunal agreed to that extension. 

6. The tribunal did not receive anything more from the applicant.  That is, the applicant did not apply for any further extensions, nor did he provide any IELTS test results.  The tribunal, no doubt out of an abundance of caution, did not make a decision on 14 February, but waited until 19 February (which would have allowed anything posted close to the date to have reached the tribunal).  However, the tribunal ultimately decided against him.  There was nothing before the tribunal which would have enabled it to possibly find for him.  The tribunal has effectively allowed the applicant a period of in excess of three years to provide the IELTS test, that is, three years from the date of his visa application.

7. The tribunal allowed extensions to enable him a number of further opportunities to sit the IELTS test in order to establish that he was able to satisfy the English language requirement of the visa application.  The tribunal is not required to grant extensions forever.  Indeed, the time frames in this case seem to me to have been particularly generous by the tribunal.  In circumstances where they have already been generous in the extensions of time they have granted him, and where he had not sought any further extension of time, they quite properly made a decision. 

8. The applicant’s case is pleaded on the basis that the decision was made with jurisdictional error as the tribunal failed to consider ss.99 and 101 of the Migration Act 1958.  Those sections provide:

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)  all questions on it are answered; and

   (b)  no incorrect answers are given or provided.

9. The applicant argues that these sections apply because he says the application form that he filled out did not formally notify him that he was required to have passed the English language test at the time of lodging his application. He is quite right in that regard, however had the form set that out it would have, in his case, been misleading because the regulations at that time enabled him to provide a test result at any time up until the decision. The particulars proceed on a wrong premise. In any event, ss.99 to 101 of the Migration Act provide no arguable basis for the applicant to succeed in this case.

10. On the facts before the court, there is nothing in this matter to indicate any arguable basis for judicial review. 

11. In the circumstances I therefore dismiss the applicant’s application.

Costs

1. In this matter, the First Respondent has been entirely successful.  The first respondent seeks costs in the scale amount of $3,326, and I do so order. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  27 November 2014