VERMA v Minister for Immigration

[2015] FCCA 878

FEDERAL CIRCUIT COURT OF AUSTRALIA

VERMA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 878

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – show cause hearing – applicant failing to satisfy mandatory criteria of “Competent English” – applicant not having arguable case.

Legislation:  
Federal Circuit Court Rules 2001, r.44

Migration Regulations 1994, Schedule 2, cl.885.213, reg.115C

Applicant: AMIT VERMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 961 of 2014

Judgment of: Judge Burchardt

Hearing date: 20 March 2015

Date of Last Submission: 20 March 2015

Delivered at: Melbourne

Delivered on: 17 April 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Mitchell

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001. 

2. The applicant pay the first respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 961 of 2014

AMIT VERMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter is a show cause application pursuant to r.44 of the Federal Circuit Court Rules 2001 (“the FCC Rules”). The hearing was ordered by Registrar Allaway by consent on 20 August 2014. The first respondent has filed written submissions but the applicant has elected not to do so.

2. Pursuant to r.44, it is for the first respondent, as the moving party, to establish to the Court’s satisfaction that the application has not raised an arguable case for the relief claimed.

3. For the reasons that follow, in my view the first respondent’s submissions are correct, and it follows that the application should be dismissed.

The history of the matter

1. On 17 November 2011, the applicant filed a General Skilled Migration Applicant Form (Court Book (“CB”) 1-13).  The application specified a Skilled Independent (class VB, subclass 885) class of visa.  The form itself informed the applicant that to obtain the visa, certain steps must have already been taken by the applicant, and that if those requirements were not met, they might not be granted a visa (CB 1). 

2. The material also disclosed that the applicant had been living in Australia from 5 June 2007 onwards (CB 8).  The application disclosed that his then visa was a Skilled visa issued on 25 June 2010 (CB 9).  The nominated occupation was that of cook (CB 11) and, most importantly, on CB 12, the applicant responded to the question, as to whether he had taken an English test within the last 24 months, that he had taken an IELTS test on 9 July 2011, giving the reference for that test and that he had been assessed as competent. 

3. A delegate of the first respondent refused the application on
   13 November 2013. The decision record is at CB 112-115. The delegate’s decision sets out the relevant legislative background. Relevantly, cl.885.213 of Schedule 2 of the Migration Regulations 1994 required the applicant to have competent English.  Competent English is defined by reg.1.15C.  This requires a person to undertake a language test conducted in the two years immediately before the day on which the application was made, and achieve a specified result.  Relevantly, for these purposes, it required an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening.

4. The decision went on to refer to the IELTS test nominated by the applicant.  The test reference number that the applicant had given showed that he had received a score in writing of 5.5.  Accordingly, the delegate refused the application. 

5. The applicant applied for review before the Tribunal and was represented by an agent.  I note that in material apparently forwarded to the Tribunal (CB 131) the applicant indicated on 18 November 2013 that he had, on various occasions, missed out on one module of the IELTS test by half a point.  The letter said, in part:

   “I respect the decision you have made on my application, however may I request you to please re-consider my IELTS result as I have been working on achieving the required result in IELTS for the past few years.”

6. On 18 December 2013, the Tribunal wrote to the applicant’s agent, inviting the applicant to appear before the Tribunal for hearing on

   
   

   24 January 2014.

7. On 21 January 2014, the applicant’s agent emailed the Tribunal seeking an adjournment as the agent was then in Queensland and would be returning on 25 January 2014.  The application for an adjournment was refused (CB 158) and it is clear from the terms of the decision that the applicant did, indeed, attend. 

8. The decision record, dated 17 April 2014, is at CB 168-171. 

The Tribunal’s decision

1. After some introductory remarks, the Tribunal set out the matter as follows (paragraph 7, CB 169):

   “7.    The issue in the present case is whether the applicant has competent English as required by cl.885.213.  Regulation 1.15C provides that a person has ‘competent English’ if the person:

   (a)   satisfies the Minister that:

   (i) the person undertook a language test, specified by the Minister in writing for this subparagraph; and

   (ii)     the test was conducted in the 2 years immediately before the day on which the application was made; and

   (iii)    the person achieved a score specified in the instrument.”

2. Having noted that the specified requirement for the IELTS test was at least 6 for each of the 4 test components, the Tribunal recorded, at paragraph 10 (CB 169-170), what it had told the applicant at the Tribunal hearing.  I note inter alia the Tribunal made it clear to the applicant that test results outside the relevant period (the two years before the application) were irrelevant. 

3. At paragraphs 11-15 (CB 170-171), the Tribunal recorded:

   “11.  The applicant conceded that he had not achieved the required score in a relevant test during the above relevant period.  It was carefully explained to him that that period ended on the day he made this application and the tribunal had no discretion to extend that period, and that it was futile for him to sit another test for the purposes of this application. 

   12.  He was given until 15 February 2014 to obtain the results for a 2011 English test he claimed he had taken in India.  By that date, and until now, he had not furnished any further evidence and has made no contact with the tribunal.  The tribunal contacted him on 27 March 2014 to follow up, and he informed the tribunal that he was ‘ok’ with the tribunal proceeding to decision, and he had not ‘got his IELTS’. 

   13.  On the evidence, the applicant has not demonstrated that he had competent English.  It would be futile for him to sit another English language test now or in the future for this application as the test has to have been sat in the two years immediately before the date he applied for the visa.  He was informed that the tribunal had no discretion or power to waive or alter the requirement of competent English due to the personal circumstances he claims affected his ability to achieve the required marks in an English test during the relevant period. 

   14.  The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a). 

   15.  On the basis of the above, the applicant does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.”

The grounds of application and the matters advanced in oral submissions

1. The grounds of application set out in the application filed 21 May 2014 are:

   “1.    I DO NOT AGREE WITH THE DECISION

   2.    THE MEMBER DID NOT CONSIDER THAT, I HAVE BEEN LIVING IN ENGLISH SPEAKING COUNTRY FOR NEARLY 7 YEARS NOW.”

2. Counsel for the first respondent, who addressed first, relied heavily on the written submissions filed, and took the Court through what was submitted to be the relevant extracts of the Court Book. It is not necessary to traverse those submissions in any detail, thorough and competent though they were. They can be encapsulated by the proposition that the applicant’s case in the face of his demonstrated failure to satisfy the test of competent English meant that he had no arguable case.

3. The applicant’s oral submissions were brief.  He said he had been in Australia since 2007.  He referred to numerous IELTS tests, but said that he had always had half a mark short in every test he had done.  He said that only half a mark would ruin his whole future.  I note that the tests to which he referred were all apparently undertaken in 2013, (well after his application), in any event.  

4. The applicant said he was still working as a cook and, words to the effect, “If you can give me another chance, hopefully I’ll do my best.”

5. I should note that I told the applicant, as was the fact, that I fully accepted he had undertaken numerous IELTS tests, that on occasions he had received scores of 6 for writing (in respect of which he had received 5.5 in the test referred to in his original application for the visa).  Indeed, the applicant seemed to me to be relatively fluent in his command of the language in his appearance before me. 

Conclusion

1. The requirement for competent English is a mandatory one for the sort of visa for which the applicant applied.  There is no suggestion that the Tribunal was other than correct to say there were no other visas types relevant to this application. 

2. The applicant quite clearly did not satisfy the requirements for competent English, in that he had not undertaken a test within the period of two years before his application in which he had received a score of not less than 6 in each of the 4 IELTS test components.  His application cannot, therefore, possibly succeed.  He simply does not have an arguable case.  The application will be dismissed with costs. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  17 April 2015