Singh v Minister for Immigration and Border Protection & Anor [2015] HCATrans 127 (21 May 2015)

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Singh v Minister for Immigration and Border Protection & Anor [2015] HCATrans 127 (21 May 2015)

Last Updated: 12 June 2015

[2015] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2015

B e t w e e n -

INDERJIT SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MAY 2015, AT 9.38 AM

Copyright in the High Court of Australia

HIS HONOUR: Could you call the matter outside, please?

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you, Madam Registrar.

MR A. ALEKSOV: Your Honour, I appear for the first defendant. (instructed by Sparke Helmore Lawyers)

HIS HONOUR: Thank you.

MR ALEKSOV: There is nothing I would wish to add to our written submissions.

HIS HONOUR: Thank you, Mr Aleksov.

MR ALEKSOV: Unless I can assist your Honour further.

HIS HONOUR: On 29 March 2011, the plaintiff applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa. To be eligible for the visa he had to satisfy the criteria set out in clause 485 of Schedule 2 of the Migration Regulations 1994 (Cth) of which one was that he have “competent English”. On 22 May 2012, the delegate of the Minister refused to grant the visa because it was determined that the plaintiff did not have competent English.

On 8 June 2012, the plaintiff applied to the Migration Review Tribunal for review of the delegate’s decision and, on 12 September 2013, the Tribunal affirmed the delegate’s decision on the basis that there was no evidence that the plaintiff had competent English.

On 15 October 2013, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision and, on 1 September 2014, Judge Hartnett dismissed the application after concluding that the grounds set out in the application did not raise an arguable case for the relief which was claimed.

On 25 September 2014, 10 days out of time, the applicant applied for leave to appeal to the Federal Court and, on 16 February 2015, her Honour Justice Gordon refused to extend time because her Honour determined that there would be no utility in the matter proceeding any further.

On 5 March 2015, the applicant filed an application in this Court for an order to show cause why certiorari should not go to quash the judgment and orders of Justice Gordon and why mandamus should not go to compel the Minister to reassess the applicant’s application for visa. The grounds of application are:

“1. If the Court determines that vitiating error has been demonstrated, then the plaintiff is entitled to the declaratory relief from court costs and get 485 visa grant or give permission to further studies with 572 subclass;

2. A delegate behalf of the Minister has taken and misused section 65 of the Act without giving appellant to comment on his exceptional circumstance beyond his control how he has lodged the 485 visa application;
   
3. Writ of certiorari of Federal Court decision made on 16 February 2015 by Justice Gordon;
   
4. Nor is mandamus available to compel the exercise of those powers.”
   

As appears from the affidavit filed in support of the application, the nub of the plaintiff’s complaint is that:

“legislative instrument IMMI 09/703 specified scores in accordance with version of regulation 1.15C that applied to the applicant’s visa application. It specified a test score of at least B in each of the four components of an occupational English language test for the purposes of regulation 1.15C(1)(ii)(A) and (B). The MRT did not identify the correct instrument – see paragraph 11 of the MRT’s reasons.”

Thus, in substance, the applicant appears to be contending that the Tribunal made a jurisdictional error by applying the incorrect test of English competency; the Federal Circuit Court erred in failing to detect the error; and the Federal Court erred in concluding that an appeal to the Federal Court on that basis would be inutile.

Notably, that was not a ground of appeal before the Federal Court, although in determining whether there would be any utility in granting an extension of time in which to appeal, Justice Gordon noted that the Tribunal had erred in the identification of the applicable legislative instrument and that the Federal Circuit Court had erred by adopting the Tribunal’s analysis of the relevant instrument. The applicable legislative instrument was IMMI 12/018, whereas the Tribunal and the Federal Circuit Court proceeded on the basis that the applicable legislative instrument was IMMI 09/073.

As Justice Gordon then went on to observe, however, the error was not a jurisdictional error because, despite referring to the wrong instrument, the Tribunal had asked itself the correct question, falsa demonstratio non nocet cum de corpore constat. The requirement that an applicant for visa have competent English was the same under each instrument, namely, that the applicant have obtained the requisite score in either an IELTS test or an Occupational English test. The substance of the law as applied was, therefore, correct.

There is no reason to doubt the correctness of her Honour’s conclusion. As at the date of the plaintiff’s application for visa, regulation 1.03 defined “competent English” by reference to regulation 1.15C and regulation 1.15C required an applicant to demonstrate that he or she had achieved, in a test conducted not more than two years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening or that he or she held a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. The plaintiff did not satisfy that test and it is not contended that he could have done so or even that he could do so now. In the result, the application will be dismissed.

MR ALEKSOV: If it please the Court, your Honour, the Minister would seek the usual order as to costs.

HIS HONOUR: The application is dismissed with costs.

AT 9.46 AM THE MATTER WAS CONCLUDED