Wickramasinghe v Minister for Immigration
[2015] FCCA 3008
•23 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WICKRAMASINGHE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3008 |
| Catchwords: MIGRATION – Application for adjournment – judicial review – student visa requirements not met – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175 Rana v Minister for Immigration and Anor [2009] FMCA 553 Patel v Minister for Immigration and Citizenship [2012] FCA 376 |
| First Applicant: | WICKRAMA ARACHCHIGE DONA WICKRAMASINGHE |
| Second Applicant: | CHAMILA LASANTHE SAMARAD HERATH MUDIYANSELAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2646 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 23 October 2015 |
| Date of Last Submission: | 23 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 23 October 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr Gordon |
| Solicitor for the Applicant: | Ronald Gordon |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 24 December 2014 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicants pay the first respondent’s costs in the sum of $3,416.
The name of the second respondent be amended to the Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2646 of 2014
| WICKRAMA ARACHCHIGE DONA WICKRAMASINGHE |
First Applicant
CHAMILA LASANTHE SAMARAD HERATH MUDIYANSELAGE
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicant attended today with legal representation. Her legal representative did not file a notice of address for service and did not notify the Court or the Minister that he would be appearing today, which means the Court unnecessarily incurred the expense of having an interpreter attend Court today to assist the applicant. The Court provides interpreters for unrepresented litigants, not litigants who are legally represented.
The applicant’s lawyer sought an adjournment of today’s proceeding. The adjournment was refused because the application was filed on 24 December 2014, directions were made on 15 April 2015 listing the matter for a show cause hearing and, in fact, originally, the show cause hearing was listed for 2 October 2015. Due to the public holiday on 2 October 2015, the hearing was postponed until today, 23 October 2015. In those circumstances, the applicant had ample time to seek legal advice, to put material before the Court and to seek a transcript of the proceedings.
When considering whether or not to grant an adjournment application, the Court has to consider not just the implications for this case, but for case management generally, and the impact that adjournments have on the management of the Court’s docket and other cases, and in this regard I refer to AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175. The Minister opposed the adjournment and I refused to grant the adjournment.
The applicant says that the Tribunal decision was unreasonable. It is quite clear that there was a single issue before the Tribunal. It is also clear that this issue had been specifically identified by the Delegate in the Delegate’s decision made on 1 May 2014. Clause 5A404 of the Migration Regulations 1994 (Cth) deals with English language proficiency. It is set out as follows:
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course—will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa—successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
There is no doubt that in this case, the applicant had completed the IELTS test within the appropriate timeframe and that she had achieved an overall band score of 5, which means that 5A404(b) applied. The provision refers to, in the introduction to the provision as a whole:
The applicant must give evidence that one of the following applies...
That is mandatory. There’s no discretion about that.
The applicant satisfied subsection (b)(ii). The issue is with respect to subsection (b)(i), which says:
...will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course.
The applicant was on notice from the Delegate decision as to what the issue was with respect to her visa application. I also note, at Court Book page 139, that again, the Tribunal had written to her, referring to the issue.
The applicant applied for a review to the Tribunal. The applicant was invited to attend the Tribunal and to give evidence, which she did. The applicant had the assistance of a migration agent at the Tribunal hearing. At the Tribunal hearing, the applicant said that the Delegate had overlooked the fact that she had completed a 20 week course of English study in Australia. The migration agent submitted that that satisfied the visa requirements, and at paragraph 13, the Tribunal member says:
“The Tribunal explained that the requirement is that the applicant will undertake an ELICOS of no more than 20 weeks and achieved at least 5.0 in a relevant IELTS test. The Tribunal said the applicant has not provided evidence that she will undertake an ELICOS, rather, she has provided evidence that she has undertaken an ELICOS”.
It is clear from that paragraph that the Tribunal member raised the issue with the applicant at the hearing. There is nothing on the face of the decision that indicates that the applicant sought an adjournment in order to put on evidence about that requirement. Paragraph 20 is also significant and says:
“As discussed above, she provided the Tribunal with evidence that she undertook the ELICOS courses in Australia in 2010 and 2011. She did not give evidence that she will undertake an ELICOS of no more than 20 weeks’ duration before commencing her principal course. The Tribunal therefore finds that she does not satisfy clause 5A404(b) of Schedule 5A.
The applicant’s lawyer submits that the applicant is a genuine student and had shown a commitment to undertaking the course, because she had undertaken the course previously.
It is very clear that in the area of migration, it is a technical area of law and the legislation, whilst complex, clearly spells out the requirement for the applicant to satisfy that visa. It is not a matter of discretion and there was no ambiguity in that clause, and it cannot be said that the applicant was not on notice that that was the issue.
The applicant relies on the decisions of Rana v Minister for Immigration and Anor [2009] FMCA 553, and refers to paragraph 36 in particular, where Cameron FM, as he then was, refers to this second step as being a commitment to undertake or not undertake that course once the result of the IELTS test is known. However, paragraph 38 then refers to making the ELICOS undertaking. The fact is, when looking at the provision of the regulation, it makes clear that it is mandatory to provide evidence of the undertaking. It is not about showing a commitment to giving an undertaking, but providing evidence. The fact that she had done the course in the past, cannot be surmised as automatically meaning she has a commitment to doing it in the future. It was a simple issue.
Furthermore, paragraph 24 of the Federal Court decision of Patel v Minister for Immigration and Citizenship [2012] FCA 376 also makes this requirement in the regulation very clear, at paragraph 24:
“Further, the Federal Magistrate did not err in finding that the Tribunal had correctly applied cl 5A404(b). This clause requires a visa applicant with an Overall Band Score of 5.0 on the IELTS test, to provide evidence that he or she “will undertake” the relevant ELICOS course. It does not, therefore, avail a visa applicant to provide evidence that he or she has already undertaken such a course. The rationale for this sequence is somewhat elusive, but the construction of the requirement is clear, and Mrs Patel did not satisfy the requirement. Also, the Federal Magistrate did not err in relation to his finding that the department had advised Mrs Patel of the cl 5A404 requirements.”
In those circumstances, any complaint that the decision of the Tribunal was unreasonable cannot stand. It is necessary, in these matters, to look closely at what the actual evidence was before the Tribunal and what the Tribunal actually said, as well as the requirements of the specific regulations that apply. It is not a matter where it is possible for this Court to find a jurisdictional error based on broader considerations or submissions that are not founded or grounded in the specific legislative requirements.
I find that the applicant has not raised an arguable case and therefore, I will dismiss the application pursuant to r.44.12 of the Federal Circuit Court Rules.
The applicants are to pay the first respondent’s costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 9 November 2015
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