Uddin v Minister for Immigration
[2013] FCCA 906
•23 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UDDIN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 906 |
| Catchwords: PRACTICE AND PROCEDURE – There is no legal impediment to the Migration Review Tribunal conducting a running list of applications with multiple applicants in a hearing room at one time. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Habib v Minister for Immigration & Anor [2010] FMCA 450 |
| Applicant: | KHAJA MIFTAH UDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 984 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
INTERLOCUTORY ORDERS
The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 984 of 2013
| KHAJA MIFTAH UDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Migration Review Tribunal (Tribunal) made on 22 April 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a skilled provisional (class VC) visa.
I will direct that the title of the first respondent be changed to the Minister for Immigration, Multicultural Affairs and Citizenship.
The applicant, Mr Uddin, applied for the visa on 7 March 2011. At the time the visa application was lodged the visa category contained two subclasses. It appears that the relevant subclass in this case was subclass 485, the criteria for which are set out in part 485 of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, need only satisfy the secondary criteria.
The Minister’s delegate refused the visa application on 21 May 2012 because Mr Uddin did not have the required English language proficiency, and for other reasons. Mr Uddin applied to the Tribunal for review of that decision on 7 June 2012. He was represented in relation to the review by a migration agent. The Tribunal was unable to make a favourable decision on the papers and invited Mr Uddin to a hearing. Mr Uddin attended that hearing. It appears that the hearing was brief and that other matters were listed before the Tribunal at the same time. Mr Uddin sought an adjournment in order to sit English language tests which he had booked for the period after the hearing but the Tribunal declined to delay its decision in the matter. The Tribunal decided that Mr Uddin had not been able to demonstrate that he has competent English. He had not been able to achieve scores in at least six of each of the four test components of the required International English Language Testing System (IELTS) test.
These proceedings began with a show cause application, filed on 8 May 2013. Mr Uddin now relies upon an amended application, filed on 10 July 2013. There are three particularised grounds in the amended application:
1. The Tribunal made a mistake that the Tribunal did not … act fairly. The applicant had circumstances and the Tribunal had the knowledge about his health condition. The review applicant did not get natural justice from the Tribunal. The Tribunal failed to extend the time for the review applicant.
Particulars:
At the hearing the applicant confirmed he did not have evidence of competent English. He indicated he has sat the IELTS test several times but he has not been able to achieve scores of at least 6 in each of the 4 test components of an IELTS test. The Tribunal asked if he had booked another IELTS. He said he had booked tests on 11 and 25 May 2013. The Tribunal noted he was asked in the hearing invitation to book a test no later than 23 March 2013. It asked why he has booked tests in May. The applicant indicated that last year he was injured at work and had a sore back. He was recovering for a year and did not start studying until after that (CB-77).
He had trouble in the past because he could not sit for more than 30 Minutes (CB-77).
It did not agree to wait for the results of the tests booked for May 2013 (CB-77).
2. The Tribunal made a procedural mistake that the Tribunal did not review the review application. The Tribunal already made up its mind that my application will be rejected. The Tribunal commenced hearing at 14.59pm Court Book (CB) – 69 and the Tribunal closed hearing at 15.06pm (CB-70). There was no hearing at all. The Tribunal closed the hearing within 7 minutes of commencement of hearing. The hearing only lasted for 7 minutes, the applicant paid $1,540.00 hearing fees to the Tribunal but the Tribunal did not do its job properly and it was only took time to reject the review application. The Tribunal allowed time to provide the test knowingly that the applicant won’t b able to provide IELTS test result within its given time.
3. The Tribunal made a procedural mistake that it commenced hearing in the presence of other review applicants inside the Tribunal (there were 8/9 review applicants present at the hearing with this review applicant, video footage of the hearing before the Tribunal can prove it). The applicant was not able to explain his circumstances to the Tribunal. The Tribunal was motivated. The applicant had six IELTS tests and average score of each test is more than six. The Legislative Instrument (Instrument) was made for IELTS test was not made within the Migration Act 1958 (the Act). The Instrument was made not for the interest of Australia. The objective of the Act is that to regulate in the interest of Australia but the Instrument does not serve that purpose. The applicant spent 5 years in Australia and he spent plenty of money for his study. His time, money, experience and education, he can use for the interest of Australia and that is possible when he stay in Australia permanently. Limiting his options or making such type of Instrument will not serve the purpose of the object of the Act.
The application is supported by an affidavit, filed on the same day, which I received.
I also received as evidence the book of relevant documents filed on 17 June 2013.
Mr Uddin also relied upon written submissions, filed on 16 July 2013, as well as making oral submissions today. The Minister’s solicitor made oral submissions.
In my view, Mr Uddin is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. First, Mr Uddin complains of asserted procedural unfairness. Mr Uddin submits that it was unfair that the Tribunal refused to adjourn the hearing or delay its decision to permit him to take further IELTS tests. The Tribunal dealt with this issue at [11] of its reasons[1]:
At the hearing the applicant confirmed he did not have evidence of competent English. He indicated he has sat the IELTS test several time but he has not been able to achieve scores of at least 6 in each of the 4 test components of an IELTS test. The Tribunal asked if he had booked another IELTS. He said he had booked tests on 11 and 25 May 2013. The Tribunal noted he was asked in the hearing invitation to book a test no later than 23 March 2013. It asked why he has booked tests in May. The applicant indicated that last year he was injured at work and had a sore back. He was recovering for a year and did not start studying until after that. He sat tests in December 2012 and February 2013 but did not achieve the required scores. He thinks if he can have some more time he will be able to pass the test. He had trouble in the past because he could not sit for more than 30 minutes. The applicant confirmed that he continued to work with the back injury. The Tribunal indicated it had taken into account his evidence but it was not willing to wait for the results of the tests in May. It noted he made his visa application over 2 years before, he has had several opportunities to sit the IELTS test and the Tribunal has no discretion to waive the requirement that the applicant has evidence of competent English. It also noted he continued to work after the back injury. It did not agree to wait for the results of the tests booked for May 2013.
[1] Court Book (CB) 77
Mr Uddin’s affidavit before me contains his test results in a series of English language tests undertaken between 2007 and 2013. All of those test results were before the Tribunal. It was apparent that in all of those tests Mr Uddin was consistently unable to achieve a passing score in English reading. There does not appear to be any significant change in his performance before or after his asserted back injury. In my view, there was nothing unfair or unreasonable in the circumstances in the Tribunal declining to delay its decision in the matter to permit Mr Uddin to undertake further IELTS tests. There was no reason to believe that such a delay would be productive.
Secondly, Mr Uddin asserts pre-judgement. He asserts the Tribunal hearing only lasted seven minutes, and that the Tribunal had already made up its mind. It is true that the hearing invitation[2], in bold type, directed Mr Uddin’s attention to the fact that he had not presented evidence that he met the English language proficiency requirement for the visa. He was warned that he would need to provide evidence of that by the time of the hearing. He was unable to do so. The English language proficiency requirement is a straightforward and objective test. An applicant either meets the requirement or he does not.
[2] reproduced at CB 66
A seven-minute hearing, although brief, was probably all that was reasonably required in order to deal with that straightforward issue. The Tribunal was plainly aware of Mr Uddin’s difficulty before the hearing but it was up to him to demonstrate to the Tribunal that he was able to overcome that difficulty. He was not so able. I am not persuaded that there is any evidence of pre-judgement on the part of the Tribunal.
Thirdly, Mr Uddin complains that other applicants were present in the hearing room at the time of his Tribunal hearing. Section 365 of the Migration Act 1958 (Cth) (Migration Act) provides that Tribunal hearings must be in public, unless the Tribunal directs that particular oral evidence is to be taken in private. The position of the Migration Review Tribunal (MRT) is different to that of the Refugee Review Tribunal, which is required by s.429 of the Migration Act, to conduct hearings in private.
The MRT is a busy tribunal. In order to deal with its substantial workload, it may be necessary for it to conduct what might be described as running lists with a number of applicants in the hearing room at any one time. Busy courts follow a similar procedure. There is no legal objection to such a procedure in the Migration Act in the case of the MRT. I reject the contention that the mere fact that other applicants were in the hearing room with Mr Uddin pointed to a procedural error.
Finally, Mr Uddin refers to the legislative instrument relied upon by the Tribunal. He asserts that the instrument is invalid. The Tribunal refers at [8]of its reasons[3] to regulation 1.15C and a legislative instrument:
The current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C as in force before 1 July 2011 and there are no specifications for r.1.15C(a)(ii), although there are specified tests and scores for the equivalent provision as substituted on 1 July 2011. The Tribunal considers that this instrument should be construed as specifying scores, tests and passports for r.1.15C as in force on and after 1 July 2011, and that the applicable instrument in this case is IMMI 09/73, the instrument in force when the visa application was lodged. The Tribunal notes, however, that in both instruments the specified scores, tests, and passports are substantially the same.
[3] CB 76
I do not have before me the text of any instrument made under the regulation but the text of the regulation, apparently applied by the Tribunal, is reproduced in the decision of the delegate at CB 48. The solicitor for the Minister submitted to me, and I accept, that that form of the regulation was that which applied prior to 1 July 2012. Given that Mr Uddin applied for the visa prior to that date, the application of the earlier form of the regulation to his visa application was, in my view, the appropriate approach[4]. As I understand it, the regulation has been amended from July 2012 to convert what was taken to be, in effect, a time of decision criterion by reason of the Court decisions in Berenguel v Minister for Immigration[5] and Habib v Minister for Immigration & Anor[6] into a time of application criterion[7]. The Tribunal, correctly, in my view, continued to apply the earlier form of the Regulation.
[4] That approach avoided any issue arising from s.12(2) of the Legislative Instruments Act 2003 (Cth)
[5] (2010) 264 ALR 417
[6] [2010] FMCA 450
[7] Having read, after the hearing in this matter, the regulation in its forms before and after 1 July 2012, it is not obvious that such an objective, if intended, has been achieved.
There is nothing before me to persuade me that the regulation in that earlier form is, in any sense, arguably invalid.
I conclude that the application should be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks costs in accordance with the Court’s scale. Mr Uddin did not wish to be heard on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 July 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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Statutory Construction
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