Vaghari Aka Vaghela and Ors v Minister For Immigration and Anor (No.2)

[2013] FCCA 1345

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAGHARI AKA VAGHELA & ORS v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2013] FCCA 1345

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error. 

Legislation:  

Migration Act 1958 (Cth), ss.360, 360A, 362B, 363, 379A
Migration Regulations 1994 (Cth), reg.1.15C

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Vaghari aka Vaghela & Ors v Minister for Immigration & Anor [2013] FCCA 1344

First Applicant: MAHENDRAKUMAR PRAHLADBHAI VAGHARI AKA VAGHELA

Second Applicant: PRAGNA RAJESHKUMAR CHUNARA

Third Applicant: VIYAN MAHENDRAKUMAR VAGHELA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 452 of 2013

Judgment of: Judge Barnes

Hearing date: 20 August 2013

Delivered at: Sydney

Delivered on: 20 August 2013

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 452 of 2013

MAHENDRAKUMAR PRAHLADBHAI VAGHARI AKA VAGHELA

First Applicant

PRAGNA RAJESHKUMAR CHUNARA

Second Applicant

VIYAN MAHENDRAKUMAR VAGHELA

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 20 February 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Skilled Provisional (Class VC) visas. 

2. The first named Applicant, referred to for convenience as the Applicant, was the only applicant who made substantive claims in relation to the class of visa for which the applicants applied. He lodged an application for a Subclass 485 (Skilled – Graduate) Class VC visa on 2 August 2011. One of the criteria for such visa is that the applicant have competent English as defined in reg.1.15C of the Migration Regulations 1994 (Cth).

3. The Applicant’s application referred to the fact that he had sat an International English Language Testing System (IELTS) test on 11 December 2010.  He provided a test reference number. 

4. In his reasons the delegate recorded that he checked a database containing the results of that test.  The delegate found that the Applicant’s test results were not such as to satisfy him that the Applicant had competent English.  On 5 June 2012 the delegate refused the visa application. 

5. The Applicants sought review of the delegate’s decision on 25 June 2012.  The Tribunal wrote to the Applicants on 26 June 2012 acknowledging receipt of their application by letter sent to the address provided.  In that letter the Tribunal also advised that:

   If [the Applicants] wish to provide material or written arguments for the tribunal to consider, [they] should do so as soon as possible. 

   By letter dated 17 January 2013 the Tribunal invited the Applicant to a hearing scheduled for 18 February 2013.  There is no suggestion, and nor is it apparent, that the Tribunal in any way failed to comply with its obligations in relation to such a hearing invitation letter, either as to the form and content of that letter or as to the manner in which it was sent to the Applicant care of his authorised recipient.  The hearing invitation gave more than the requisite time required under the Migration Act 1958 (Cth) and Regulations. That letter also advised the Applicant of the opportunity to provide further evidence at or before the hearing if he had evidence of competent English.

6. The letter reminded the Applicant that his visa application had been refused because the delegate was not satisfied that the Applicant had competent English.  The Tribunal explained that it was necessary that he show that he had achieved specified scores in an approved language test conducted in the two years immediately before the day on which the visa application was made.  The English language tests and scores were specified. 

7. The Tribunal also advised that it would only change the hearing date for good reason and that the Applicant should contact the Tribunal immediately if he was unable to attend.  It informed him that if he failed to attend, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. 

8. The letter enclosed a response to hearing invitation form and asked the Applicant to complete this form.  It gave him a further opportunity to attach additional information if he had new information he wished the Tribunal to consider. 

9. It appears from case notes in the Courtbook and the Tribunal reasons for decision that the Applicant did not respond to the hearing invitation.  An officer of the Tribunal contacted the Applicant’s migration agent by telephone on 14 February 2013 (the Thursday before the Monday on which the hearing was scheduled) and enquired as to whether the Applicant would attend the Tribunal hearing. 

10. A case note records that the advisor indicated that he would need to check his records and that it may be that the Applicant would wish to withdraw the application.  The advisor telephoned the Tribunal later that day.  A case note records that he told a Tribunal officer that the Applicant wanted to postpone the hearing by two weeks and that the Tribunal officer told the advisor that any such request must be made in writing.  The advisor said he “would further discuss with the [Applicant] due to the circumstances regarding the legislation and get back to the Tribunal”. 

11. On Friday, 15 February 2013, the Tribunal received a facsimile letter from the Applicant’s migration agent advising that the Applicant would “not be able to attend the hearing” and requesting that the hearing be set for another day to allow him the opportunity to attend.  The letter provided no reason for the asserted inability of the Applicant to attend the hearing. 

12. On the same day, a Tribunal officer again contacted the Applicant’s migration agent and advised that as no reason for the postponement had been given the Tribunal member had refused the request and that the hearing would go ahead on 18 February 2013.  The advisor then indicated that the Applicant could not attend the hearing due to a doctor’s appointment.  The Tribunal officer advised the advisor that this had to be put in writing and that there had to be evidence showing that the Applicant was unfit to attend the scheduled hearing.  The advisor said he would contact the Applicant and get back to the Tribunal.  The officer repeated that without a valid reason the Tribunal hearing would go ahead as scheduled. 

13. There is no evidence of any further contact by the Applicant or his advisor with the Tribunal.  The Applicant did not appear at the time at which the Tribunal hearing was scheduled.  In those circumstances, as it recorded in its reasons for decision, the Tribunal decided to make its decision on the review without taking further action to enable the Applicant to appear before it. 

14. In its reasons for decision the Tribunal set out the competent English criterion for a Subclass 485 visa and the definition of competent English in the Migration Regulations. The Tribunal explained that the issue was whether the Applicant had provided evidence of the relevant level of English language ability for the grant of the visa, being evidence that in a test conducted in the two years immediately before the date of his visa application the Applicant had achieved the requisite score.

15. The Tribunal acknowledged that there was evidence that the Applicant had undertaken an English language IELTS test on 11 December 2010 (which was within the two years before his visa application of 2 August 2011). However, having regard to the results of that test, the Tribunal was not satisfied that the Applicant had achieved the requisite score of at least 6 for each of the 4 test components of speaking, reading, writing and listening required under reg.1.15C of the Migration Regulations. The Tribunal observed that there was no other evidence that the Applicant had undertaken any other English language test of the approved kind in the two years immediately before his visa application.

16. The Tribunal was not satisfied that the Applicant had competent English as defined in the Migration Regulations and on that basis found that he did not satisfy cl.485.215 of Schedule 2 to the Regulations.

17. The Tribunal also found that having regard to the visa application charge paid, it appeared that the application was not a valid application for a Subclass 487 visa.  Hence it did not go on to consider whether the Applicants met the requirements for the grant of a visa of that subclass.  Given such findings, the Tribunal affirmed the decision under review not to grant the Applicant Class VC visas. 

18. The Applicants sought review by application filed in this court on 8 March 2013.  The only ground in the application is that the Tribunal “did not consider the [Applicant’s] application to reschedule of hearing and so made decision in absence of any evidence which is extremely unacceptable and unfair”. 

19. In addition, in an affidavit accompanying the application the Applicant elaborated on his claim that he was unable to attend the scheduled Tribunal hearing as he had “some prior appointments (sic) to see a doctor”.  He claimed he had explained his situation to his migration agent who requested the Tribunal to reschedule the hearing.  He repeated his contention that the Tribunal did not consider this request and made the decision in the absence of evidence and claimed that it was unfair to make an adverse decision without giving an appropriate opportunity to him.  The Applicant also contended that the Tribunal did not give him an opportunity to produce evidence as required. 

20. The Applicant did not make any oral submissions today after his application for a further adjournment of the hearing was refused (see Vaghari aka Vaghela & Ors v Minister for Immigration & Anor [2013] FCCA 1344).

21. Before considering the ground in the application it is convenient to consider the contention in the accompanying affidavit that the Tribunal did not give the Applicant an opportunity to produce evidence.  There is no substance in any contention that the Tribunal erred in a manner constituting jurisdictional error by failing to give the Applicant an opportunity to produce evidence as required. 

22. First, there is no evidence that the Applicant sought an opportunity to produce evidence, except insofar as he sought an adjournment of the Tribunal hearing.  There is no indication of any request to the Tribunal to provide further time to provide evidence of a particular nature.  While the Applicant did make such a request to the delegate, that request was refused.  However the decision under review is the decision of the Tribunal.

23. Furthermore, both in the letter acknowledging receipt of the review application and in the hearing invitation letter, the Tribunal gave the Applicant the opportunity to provide further information if he wished to do so.  In addition, the Tribunal specifically drew the Applicant’s attention to the need for evidence of competent English at or before the Tribunal hearing.  He was informed that if he was unable to provide such evidence, the Tribunal would require good reason to grant him additional time to obtain it.  There is no evidence of any request to the Tribunal by the Applicant for further time to provide evidence of competent English. 

24. No jurisdictional error is established on the basis contended for in paragraph 2 of the affidavit of 8 March 2013.

25. As to the ground in the application as elaborated on in the affidavit, contrary to what is asserted by the Applicant it is apparent from the Tribunal reasons for decision that it did consider the Applicant’s application to reschedule the Tribunal hearing.

26. The Tribunal referred to the fact that the Applicant did not complete the response to hearing invitation form and provide it to the Tribunal.  Rather, a Tribunal officer contacted his migration agent a few days before the scheduled hearing to check whether he would attend.  Subsequently on 14 February 2013 the agent advised the Tribunal officer that the Applicant wanted to postpone the hearing for two weeks.  He was informed of the need for a request in writing.  Such request was made on 15 February 2013.  However, as the Tribunal indicated in its statement of reasons, no reason was given in that letter as to why the Applicant was unable to attend the scheduled hearing. 

27. The Tribunal also referred to the fact that an officer of the Tribunal again contacted the advisor who then stated that the Applicant was unable to attend due to a doctor’s appointment.  The Tribunal observed that further information was requested regarding the Applicant’s inability to attend, but that nothing was provided.

28. In those circumstances when the Applicant did not appear the Tribunal decided to make its decision without taking any further action to enable the Applicant to appear before it. 

29. Insofar as the Applicant says that the Tribunal did not consider his application to reschedule the hearing, such contention is not made out.

30. The Applicant also contended that the decision was made in the absence of any evidence.  That is not the case.  There was evidence before the Tribunal in relation to the English language test the Applicant had undertaken and that he did not achieve satisfactory test results.  Moreover, it is for an Applicant to establish that he meets the criteria for the class of visa for which he has applied.  In the absence of such evidence the inevitable result was that his application would be refused.

31. As the Applicant is self-represented, I have also considered whether any other jurisdictional error is apparent in relation to the Tribunal decision not to reschedule the Tribunal hearing. There is nothing in the material before the Court to suggest that the Tribunal in any way failed to comply with its obligations, in particular under s.360 of the Migration Act 1958 (Cth), to invite the Applicant to a hearing. Nor is there anything to suggest that the Tribunal failed to comply with the procedural requirements in relation to such invitation (see in particular s.360A and s.379A of the Migration Act) or that the notice failed to contain the necessary statement as to the effect of s.362B of the Act.

32. Section 362B provides that if an Applicant is invited under s.360 to appear and fails to do so, the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it. This does not prevent the Tribunal from rescheduling the Applicant’s appearance before it or from delaying its decision on the review to enable the Applicant to appear. In addition, the Tribunal has power under s.363(1)(b) to adjourn the review from time to time.

33. As indicated, the Applicant did not specifically ask the Tribunal for further time to provide information.  Insofar as the Tribunal decided to make its decision on the review without taking further action to enable the Applicant to appear before it, there is nothing to suggest that the Tribunal failed to exercise such power or discretion reasonably, consistent with the principles discussed by the High Court (particularly the judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18).

34. First, the circumstances in this case are quite different from those in Li.  In Li what was in issue was whether there should be an adjournment in order to allow the Applicant to provide evidence of the results of a pending internal review of a skills assessment for the Applicant by Trades Recognition Australia.  In contrast, in the present case the Applicant sought an adjournment of the hearing in order to attend a doctor’s appointment, but did not provide evidence of such appointment or information regarding his inability to attend as requested by the Tribunal.

35. This is not a case in which it can be said that the decision of the Tribunal lacked an “evident and intelligible justification” in the sense considered in Li at [76].  As the plurality pointed out in Li (at [82]), it “cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence”.  It may decide in an appropriate case that “enough is enough”.

36. It has not been established that the Tribunal unreasonably exercised its discretion in this case in relation to the application for an adjournment having regard to the particular circumstances as considered in the Tribunal’s reasons for decision.

37. No jurisdictional error is established on the basis of the ground as pleaded in the application or more generally in relation to the Tribunal’s decision not to grant the adjournment requested by the Applicant.  As no jurisdictional error has been established, the application must be dismissed.

38. Before I make the orders I will hear submissions in relation to costs.

RECORDED  :  NOT TRANSCRIBED

1. The Applicants have been unsuccessful and the Minister seeks that the adult Applicants pay costs in the sum of $4,000. This amount is well below the suggested costs provided for in the Schedule to the Federal Circuit Court Rules.

2. The Applicant indicated that he could not pay that amount in one go and sought the opportunity to pay it in instalments.  I am not of the view that it is appropriate to order payment by instalments on specified dates in this matter.  However the Applicant’s financial situation may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The Applicant’s offer to pay by instalments has been drawn to the attention of the solicitor for the First Respondent.  The amount sought is appropriate and reasonable having regard to the nature of this and other similar matters. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  13 September 2013