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Singh v Minister for Immigration & Anor [2014] FCCA 2469 (17 October 2014)

Last Updated: 30 October 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The Application filed 23 December 2013 is dismissed.
(2) The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

MLG 2324 of 2013

Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. By way of Application filed 23 December 2013, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (‘Tribunal’) dated 2 December 2013 (‘the Decision Record’).
2. The decision of the Tribunal was to affirm the decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa.
3. The grounds of application as set out by the Applicant in his Application filed on 23 December 2013 are as follows:-
   • “1. My visa was refused for not having IELTS.
   • 2. I am confident that I am capable of achieving better score in IELTS.”
4. As can be observed, there are no particularised grounds of application and indeed on its face, no proper grounds at all.
5. The Applicant was given an opportunity to amend his Application by Order of Registrar Caporale made on 19 March 2014. The Applicant did not file any amended application.
6. The Applicant was also to file and serve written submissions on or before 35 days prior to this date. The Applicant failed to do so.
7. The Applicant thus relies on an unparticularised and groundless application for judicial review of a decision of the Tribunal made some 10 months ago. In the interim period, the Applicant has been on a bridging visa. It is not the Court’s obligation to construe grounds of application for the Applicant.
8. The application is entirely without merit and will be dismissed. Costs shall follow the event. My reasons are as set out herein.
9. The Applicant is a citizen of Sri Lanka. On 24 June 2011, the Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for a Skilled (Provisional) (Class VC) visa (‘the visa application’).
10. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa contained two subclasses: 485 (skilled-graduate) and 487 (skilled-regional sponsored).
11. Having regard to the visa application, the relevant subclass in respect of the Applicant was subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria must be satisfied by the Applicant. The primary criteria are set out in Division 485.2 of the Regulations.
12. In Division 485.21 of Schedule 2 to the Regulations, Clause 485.215 requires that the Applicant have “competent English”. The expression “competent English” is defined in Regulation 1.15C of the Regulations. At the time the Applicant applied for the visa, Regulation 1.15C of the Regulations provided that a person had competent English if:-
    • “If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
      • (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
        • (i) an IELTS test^[1] score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
        • (ii) a score:
          • (A) specified by the Minister in an instrument in writing for this subsubparagraph; and
          • (B) in a language test specified by the Minister in the instrument; or
      • (b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”^[2]
13. The delegate refused the Skilled (Provisional) (Class VC) visa on 26 February 2013 because the Applicant did not have the required English language proficiency and because he did not provide evidence that his skills had been assessed as suitable by the relevant assessing authority for his nominated occupation.
14. On 8 March 2013, the Applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 13 March 2013 to the Applicant, the Tribunal noted, among other things, that if the Applicant wished to provide material written arguments for the Tribunal to consider, he should do so as soon as possible.
15. By letter dated 23 September 2013 and sent by registered post to the Applicant, the Tribunal invited the Applicant to appear before it. In that invitation, the Tribunal specifically invited the Applicant to refer to the decision made by the Department which set out the reasons why he did not meet the criteria, and to provide all relevant documents to establish he met the criteria.
16. The Applicant appeared before the Tribunal on 23 October 2013 to give evidence and present arguments. The Applicant said, in evidence, that he went to S&S Migration to get his student visa extended and they suggested he get a working visa. Shortly after he received notice from S&S Migration of a bridging visa being granted. About 10 months later, he received an email from the Department about their concerns with S&S Migration. He then went to the office of S&S Migration but it was closed. This is as set out in paragraph 5 of the Decision Record.
17. The Applicant, as set out in paragraph 6 of the Decision Record, asked if the Tribunal would consider granting him another student visa. The Tribunal explained that it only had power to make a decision in regard to his Skilled (Provisional) (Class VC) Subclass 485 visa application, not in relation to other subclasses.
18. Before the Tribunal, the Applicant confirmed that he had not achieved the requisite score in any International English Language Testing System (‘IELTS’) tests or other relevant test and had never applied for a skills assessment.
19. Although the requirement for a visa Applicant to have “competent English” appears under the heading: “Criteria to be Satisfied at Time of Application”, given the wording of Regulation 1.15C of the Regulations the criteria could be satisfied at any time prior to the date on which the application was decided.^[3]
20. The Applicant however failed to provide the Tribunal with evidence of having achieved “competent English” in accordance with Regulation 1.15C of the Regulations. The Tribunal’s decision accorded with the only decision that was open to it on the evidence before it. It concluded the decision under review should be affirmed.
21. In its Decision Record, as accurately set out in paragraph 21 of the Outline of the First Respondent’s Submissions filed 9 October 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant the Skilled (Provisional) (Class VC) Subclass 485 visa. In its Decision Record the Tribunal:-
    • “(a) identified the applicant’s English language proficiency as being an issue;
    • (b) found that the applicant did not hold a passport of the type listed in IMMI 09/73, and therefore could not satisfy reg. 1.15C(b);
    • (c) identified that Berenguel applied to the Visa application, and that the applicant could satisfy reg. 1.15C(a) by achieving the specified score in a test undertaken after the Visa application had been made, but not more than 2 years earlier;
    • (d) found that there was no evidence before it that the applicant achieved the specified score in an IELTS test conducted not more than 2 years before the day on which the Visa application was lodged;
    • (e) found that the applicant did not have competent English as defined in reg. 1.15C(a);
    • (f) therefore found that the applicant did not satisfy cl. 485.215; and
    • (g) therefore affirmed the decision not to grant the Visa.”

Consideration

22. On the hearing this day, the Applicant appeared in person. He submitted that his current visa difficulties were the fault of his earlier immigration agent who applied for the wrong visa for him. Essentially, that is what he put before the Tribunal as described above. He pointed to no jurisdictional error attending the Tribunal decision and could not in any way particularise the grounds of his application further. The Tribunal had no discretion to waive the requirements of the visa for the Applicant. Whatever mistake may have been made by the Applicant’s migration agent, if one had, the Tribunal’s decision is not thereby affected, save for a fraud on the Tribunal.^[4]
23. No error of law is apparent on the face of the Tribunal’s decision. The Tribunal understood the nature of its decision-making task. It set out the relevant law and it reached a conclusion open to it on the evidence before it.
24. The Tribunal invited the Applicant to attend a hearing and give evidence and present arguments in accordance with s.360 of the Migration Act 1958 (Cth). The issues arising on the decision under review were made known to the Applicant in both the delegate’s decision itself of 26 September 2013, and in the invitation to the Tribunal hearing forwarded to the Applicant and dated 23 September 2013.
25. The Tribunal’s decision was the only decision available to it on the evidence before it. The Applicant’s failure to provide any evidence that he had competent English was dispositive of the application for review to the Tribunal. There is no jurisdictional error attending the Tribunal’s decision and this application is dismissed with costs following the event.

I certify that the preceding 25Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-fivetwenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 28 October 2014

^[1] ‘IELTS test’ is defined in Regulation 1.03 of the Regulations to mean “the International English Language Testing System test”.
^[2] Regulation 1.15C of the Regulations was repealed and substituted by the Migration Amendment Regulations 2011 (No. 3) (Cth) (‘the Amending Regulation’). The Amending Regulation amendments applied only in relation to an application for a general skilled migration visa made on or after 1 July 2011 (Reg.3(2)). Regulation 1.15C of the Regulations was again amended by the Migration Amendment Regulations 2012 (No.2) (Cth) (‘the Further Amending Regulation’). However, the new version of Regulation 1.15C of the Regulations only applied to applications for visas made on or after 1 July 2012 (see Items 43 and 124 of Sch 1 to the Further Amending Regulation).
^[3] Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 114 ALD 1 at [25].
^[4] See SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64.