Verma v Minister for Immigration
[2015] FCCA 846
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERMA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 846 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Federal Circuit Court Act 1999, s.17A Migration Act 1958, s.476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; 286 ALR 680 Trivedi & Ors v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2013] FCCA 578 |
| Applicant: | PRASHANT KUMAR VERMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 571 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 2 April 2015 |
| Date of Last Submission: | 2 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Respondent: | Mr S. Speirs Clayton Utz |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 571 of 2015
| PRASHANT KUMAR VERMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal made on 9 February 2015 affirming a decision of the delegate not the grant the applicant a Skilled (Residence) (Class VB) visa. The application identified the following grounds:
1. The Tribunal decision was affected by a breach of natural justice or procedural fairness.
Particulars
a) Conduct of the British Council in not informing the applicant of the reasons why, and the information upon which, the published results of his IELTS test, taken in New Delhi in May 2011 may be cancelled before they were actually cancelled.
b) Alternatively to Particular (a) the conduct of the British Council in not informing the applicant of the reasons why, and the information upon which, the published results of his IELTS test, taken in New Delhi in May 2011 may be cancelled before the records of its investigations were destroyed.
The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.
The Court raised with Mr Karp of Counsel for the applicant its concern that the application failed to disclose an arguable jurisdictional error. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].
This is a case where the British Council issued an IELTS test on 7 May 2011 which the applicant claims he sat for, with remarkable success in relation to the scores that were achieved. A British Council subsequently cancelled that test performance on the basis that it had been an impersonator who had sat for the test. The Tribunal found, as it was entitled to within its jurisdiction, that the document that was provided in support of the application by the applicant was a bogus document. The Tribunal took into account the principles identified in Trivedi & Ors v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2013] FCCA 578 as to whether the document was one which was purposely untrue. It is clear in this case that the findings made by the Tribunal were reasonably open on the material before the Tribunal, relevantly as follows:
55. Nevertheless, on the material before it the Tribunal finds that there is evidence before it that the TRF document which the applicant provided to the Department of Immigration was a bogus document. This is because according to the Brutish Council it was not the applicant who undertook the test. The Tribunal has no expertise in facial recognition. It cannot make its own determination whether it is the applicant who undertook the test or not. It is possible that the applicant did undertake the test on 7 May 2011. However, the Tribunal finds that British Council’s determination that another person undertook the test constitutes probative evidence that another person took the test.
58. Based on the evidence from the British Council, the Tribunal is not satisfied that there is no evidence that the applicant gave to the Minister or an officer a bogus document.
Mr Karp sought to advance the contention that the British Council had to afford the applicant a level of procedural fairness which required them to hear him before cancelling the document that they issued on the basis of an impersonator sitting for the test. I do not accept that the principles of procedural fairness that inform the Migration Act are ones that apply to, and have application in relation to, the processes of the British Council. But, in any event, I am not satisfied that there was any denial of procedural fairness by the British Council to the extent that it identified that a test purportedly taken by the applicant appeared to have been taken by an impersonator.
I do not accept that there is any arguable jurisdictional error on the grounds identified in the application or on the argument advanced by Mr L. Karp. I agree with the submissions of the respondent, that Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30; 286 ALR 680 at [49] is clearly distinguishable because what occurred in that case was part of the decision-making process in respect of which the Minister was bound to rely upon an expert, which required the Tribunal to be satisfied that the expert had complied with the requirements of the relevant provisions of the regulations.
I am clearly satisfied the proceedings are doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 April 2015
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