Tummala v Minister for Immigration
[2014] FCCA 844
•5 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TUMMALA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 844 |
| Catchwords: MIGRATION – Judicial review – student visa – competent English required – failure to achieve – invitation to attend hearing – failure to attend – no obligation to enquire about reason for non-attendance – whether application raised arguable cause – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.65(1)(b), 363(1)(b), 477 Migration Regulations 1994, reg.1.15C, Sch.2 |
| Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383 Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208 NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295 SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 |
| Applicant: | KRANTHI KUMAR REDDY TUMMALA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1740 of 2013 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 24 March 2014 |
| Date of Last Submission: | 24 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 May 2014 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001, the application for judicial review filed 17 October 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1740 of 2013
| KRANTHI KUMAR REDDY TUMMALA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 24 September 2013 (the “Decision”). The Tribunal affirmed the decision of a delegate to the Minister for Immigration & Border Protection on 18 May 2012 not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 visa.
A requirement of the relevant class of visa is that the applicant has “competent English”
Regulation 1.15C to the Migration Regulations 1994 (the “Regulations”) provided:
1.15C Competent English
If a person applies for a General Skilled Migration Visa, the 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.
The Tribunal stated in its Decision at [7] that:
“a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Alternatively, a person has competent English if the person holds a passport of a type specified by the Minister (r.1.15C(b)).”
The delegate to the Minister refused the visa because the applicant did not have “the required English language proficiency” (Decision [3]).
The Court refers to the Decision at [4] to [6]:
4. By letter dated 21 August 2013 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the review application, but that it was unable to make a favourable decision on that information alone. In particular, this letter noted that the applicant had not presented evidence that he had ‘competent English’.
5. Accordingly, the applicant was invited to appear before the Tribunal on 17 September 2013 to give oral evidence and to present arguments in support of the review application. In addition, he was invited to provide any evidence that he had booked to undertake an English language test.
6. On 16 September 2013 the applicant’s representative wrote to the Tribunal advising that the applicant will not attend the scheduled hearing and asking the Tribunal to make decision based on the documents before it”.
The Tribunal therefore was asked to make a decision on material before it without proof of ‘competent English’.
When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).
It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ per Downes J at [5].
By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
The application today is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”).
Rule 44.12(1)(a) provides if the Court “is not satisfied that the application has raised an arguable case for the relief claimed”, the Court may “dismiss the application”.
The grounds for the application for judicial review are set out in the application filed 17 October 2013 as follows:
(1)S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised
(2)I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3)I do have exceptional circumstances beyond the application lodgement previously
At the hearing on 24 March 2014, the applicant represented himself; the Minister was represented by Mr McDermott.
The Court invited the applicant to put submissions. The applicant submitted that he had a further IELTS test on 5 April 2014 and wants to put the results to the Tribunal.
After hearing the parties, the Court reserved its decision.
Ground One
Section 477 of the Migration Act 1958 (the “Act”) provides that an application to this Court in relation to a migration decision must be made within 35 days of the date of decision. The decision of the Tribunal is dated 24 September 2013. The application for judicial review was made on 17 October 2013. The application was therefore made within time.
Ground one raises no ground for judicial review and is dismissed.
Ground Two
Ground two seeks a review of the merits. That is impermissible.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
The Court refers to the following decisions:
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
Ground two is dismissed.
Ground Three
Ground three claims that the applicant has “exceptional circumstances beyond the application lodgement (sic ‘lodged’) previously”. The only circumstances raised by the applicant are that he has sat and failed 4 IELTS tests and has arranged for a further test on 5 April 2014; and wants to put those results before the Tribunal.
An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:
“An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”
The applicant accepted at the hearing on 24 March 2014 that the IELTS scores put to the Tribunal showed that he had failed.
An applicant must establish their case. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40], it states:
“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial[1], and that there is an onus upon neither an applicant nor the Minister[2]. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.”
[1] See, eg, Muin v Refugee Review Tribunal(2002) 76 ALJR 966 at 985 [98]; 190 ALR 601 at 625 per McHugh J (citing, among others, Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82 at 115 [76] per Gaudron and Gummow JJ); at 1001 [208]; 648 per Kirby J; at 1008 [246]; 658 per Hayne J; at 1014 [287]; 666 per Callinan J.
[2] See, eg, Minister for Immigration and Ethnic Affairs v Guo(1997) 191 CLR 559 at 573-574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Abebe v The Commonwealth(1999) 197 CLR 510 at 544-545 [83] per Gleeson CJ and McHugh J; Minister for Immigration and Multicultural Affairs v Eshetu(1999) 197 CLR 611 at 673 [195] per Callinan J.
Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:
“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.
·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.
The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish that matter, included that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.
Here, the applicant failed to establish that he had competent English. “He did not do that” (Decision [12] and [13]), and had “not provided any indication that he has made any arrangements to sit an IELTS test within a reasonable period of the Tribunal hearing date.” (Ibid [15]). The Tribunal did not defer “its decision making any further to allow the applicant additional time in which to undertake an IELTS examination and to submit the results to the Tribunal.” (Ibid [18]). The Tribunal set out its reasons for that at Decision [14] to [18]. No error of law is established.
Section 363(1)(b) provides the Tribunal with a discretion to adjourn a review. The power in s.363(1)(b) of the Act is couched in permissive and not mandatory terms. In NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118, his Honour Flick J observed at [14] that:
“The tribunal unquestionably has a discretionary power to adjourn proceedings… Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which “is fair, just, economical, informal and quick”. Procedural decisions of tribunals… should not be lightly disturbed.”
The Tribunal is generally under no duty to use its permissive statutory powers: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24] and [25]. The Tribunal is also not required to give reasons for its exercise of discretion: see SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295. But in any event, the first respondent contends that the Tribunal did in fact provide reasons as to why it decided to not adjourn. In the Full Federal Court decision in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383, which upheld a decision of Conti J in Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617, the applicant complained that the Tribunal should have waited for a related decision. Conti J concluded at [31]:
“The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunal’s decision on the JNZ application… there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled.” (emphasis added)
There is no provision for an applicant to submit “exceptional circumstances” in relation to this type of visa.
By s.65(1)(b) of the Act, if the Minister is not satisfied that the relevant criteria specified in the Act and Regulations have been met, the Minister “is to refuse to grant the visa”. This is what occurred (Decision [19] and [20]).
The applicant attached a letter to the Tribunal dated 21 May 2012, to his Affidavit before this Court. The letter sets out personal matters. The letter raises no grounds for judicial review.
Pursuant to r.44.12(1)(a), the Court is not satisfied that the application has raised an arguable case, and therefore orders that the application for judicial review is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 5 May 2014
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