Uppal v Minister for Immigration

[2014] FCCA 3156

FEDERAL CIRCUIT COURT OF AUSTRALIA

UPPAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3156

Catchwords:
MIGRATION – Judicial review of a decision of Migration Review Tribunal – Applicant did not have evidence of competent English – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), r.1.15C, cl.485.215 of Schedule 2

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

First Applicant: KULJEET KAUR UPPAL

Second Applicant: BALDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 383 of 2013

Judgment of: Judge Simpson

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Adelaide

Delivered on: 26 August 2014 (ex tempore)

REPRESENTATION

The Applicants: In person

Solicitors for the Respondents: Mr d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The Applicants’ Application is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicants shall pay the First Respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 383 of 2013

KULJEET KAUR UPPAL

First Applicant

BALDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. I have before me an Application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 27 November 2013.  The Tribunal affirmed a decision of the Delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) Graduate visa (“the visa”). 

2. To succeed, the Applicant must show that the Tribunal committed jurisdictional error.  The background to this matter is that the First Applicant is an Indian national.  She lodged an application for the visa on 10 May 2011.  The Second Applicant is the dependant partner of the First Applicant.

3. On 30 April 2012, the Delegate refused the application on the ground that the Applicant did not satisfy the competent English requirement in the Migration Regulations 1994 (Cth) (“the Regulations”), in particular reg.1.15C and cl.485.215 of Schedule 2.

4. At the relevant time, a person was taken to have competent English if the person had successfully undertaken a test under the International English Language Testing System, known as IELTS, and achieved a score of at least six for each of the four components: speaking; reading; writing; and listening. This is required by reg.1.15C(a)(1) of the Regulations.

5. On or about 17 May 2012, the Applicant applied for a review of the Delegate’s decision.  The application was made to the Migration Review Tribunal. 

6. On 9 September, 2013, the Applicant appeared before the Tribunal at a hearing.  There, the Applicant provided a copy of an IELTS test result, which showed that she came very close to achieving the required scores.  Very close, but not close enough, unfortunately.

7. The Applicant requested that the Tribunal defer its decision to allow her time to have the IELTS test remarked.  The Tribunal granted that request and indicated that a decision would not be made before 5 November 2013.

8. On 4 November 2013, the Applicant sought a further month’s deferral of the decision on the basis that on 26 October 2013 she had undertaken another IELTS test and was expecting the result by 9 November 2013.

9. The Applicant also provided evidence of two subsequent IELTS test results, which showed that she had again come close but not achieved the required scores.  On 7 November 2013, the Tribunal wrote to the Applicant, advising that a decision would not be made before 15 November 2013.

10. On 27 November 2013, the Tribunal affirmed the decision under review. It had, by that date, received no further evidence from the Applicant relevant to the English competency criterion. In reaching its conclusion, it is suffice to say that the Tribunal decided that there was no evidence before it that the Applicant satisfied cl.485.215 of Schedule 2 of the Regulations.

11. On 23 December 2013, the Applicant applied to this Court for a judicial review.

12. The only ground advanced in the application that has been filed reads as follows:

    “My skilled graduate 485 visa got rejected on 30.04.2012 by DIBP as the evidence of competent English proficiency was not provided.  Later, Migration Review Tribunal affirmed the decision on 28.11.2013.  I am lodging my application to Federal Circuit Court so that I can get some more time to provide competent English.”

13. The reference to, “getting more time to provide competent English” indicates that the Applicant misapprehends the Court’s role on judicial review.  In the case of Minister for Immigration v SZJSS, a decision of the High Court, with the reference of (2010) 243 CLR 164, particularly at para [23], the Court had this to say, under the heading: ‘Was there jurisdictional error?’

    “General principles governing the limited role of the courts in reviewing administrative error have long been identified.  As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Limited “mere reference for a different result when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review.  Further, Brennan J said, in Attorney General for New South Wales v Quinn, “The merits of administrative action to the extent that they can be distinguished from legality are for the repository of the relevant power and subject to political control for the repository alone.”

14. That role is even more circumscribed in the context of an application made under s.476 of the Migration Act 1958 (Cth). The Applicant must not only show an error of law. He or she must demonstrate that it is of a particular quality, namely, a jurisdictional error.

15. The Applicant’s stated intention of using this proceeding to “buy time” is a misuse of the Court’s function and processes.  Since the Applicant has not otherwise directed attention to a jurisdictional error, the application should be dismissed.

16. It should also be dismissed because the Tribunal’s decision was manifestly correct.  Because the Applicant was unable to produce evidence which went to an essential criterion for the grant of the visa, the Tribunal was left with no option but to affirm the decision.  And in saying “no option” I mean no option after affording a reasonable time to enable the Applicant to produce such evidence, which, in this case, it clearly did. 

17. In my opinion, the application must be dismissed as no jurisdictional error is apparent.

18. I make the orders to be found at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 29 April 2015