Singh v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from orders of a judge of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal, which affirmed a decision of a delegate of the Minister not to grant a skilled visa to the appellant, Mr Singh. 2 In one point of analysis, if I may put it this way, the case is straightforward, in that reg 1.15C of the Migration Regulations 1994 (Cth) (the Regulation) which was required to be satisfied for the appellant to demonstrate competent English inserted by the Migration Amendment Regulations 2007 (No. 7) and subsequently amended, required a person in Mr Singh's position to have, in the three years immediately prior to the day on which his application was made, undertaken a language test specified by the Minister and achieved a score specified in the instrument in writing by the Minister. 3 Mr Singh had undertaken a test. He had, by a small margin in one component of his test (that is, written English) failed to reach the relevant standard required. To that extent, the Regulation gives no leeway for discretion. This was the view taken by the delegate of the Minister, the Tribunal, and the Federal Circuit Court judge, and I do not see any way around the clear terms of the Regulation. 4 Mr Singh expresses a sense of unfairness and injustice about this situation. He does not do so in any attempt to assert that the Court should go beyond the Regulation and assess his English for itself, though he has addressed the Court today without the benefit of written submissions in a way which has exhibited clarity of expression and thought. 5 His complaint is that when he applied online for his visa whilst in Australia, he filled out the form which asked whether he had undertaken an English test within the last 36 months, to which he answered no. In discussion with Mr Singh today in Court, I understood him to explain that answer by indicating that he had some knowledge of the test results required, and that the "no" was a reference to not a successful test result. Leave that question aside. 6 Looking at the form found on pages 24 and 25 of the Court Book, what is not made clear by the form is that, without a successful test result prior to filing the form, on the Regulation as then in force, there was no possibility a visa being granted. Mr Singh parted with a sum of money for this application, an application which, according to the terms of the Regulation, he could never be granted. His unhappiness, however, is not directed to that apparent waste of money. He has been in the country in the three years since his application in 2012 on a bridging visa attempting to overturn the position and obtain the skilled visa. 7 I do not have the provisions at hand, but counsel for the Minister reminded me of their substantive effect. Mr Singh, because of the failure of the application in the circumstances to which I've referred, cannot make another application for the same visa in this country without first leaving the country. Thus, his position cannot be remedied by sitting for another test and passing (recalling that he did not achieve the required result on one component of the test by a very narrow margin), and applying again based on that further test, without first leaving the country. 8 This application form may well have been in the same form it was when the prior Regulation, which was dealt with by the High Court in earlier litigation, was in force. I am not sure whether this form has kept pace with the content of the Regulation which speaks to it, specifically reg 1.15C. 9 None of the comments I have made above go to the central issue before the Court, being the correctness of the Federal Circuit Court judge's conclusion. 10 By way of explanation, for the benefit of Mr Singh, it is understandable that that form might be seen to have led him into a position whereby, not only did he pay a fee of a not inconsiderable sum for a visa he could never obtain (a fact not made clear by the form), but also that the consequences of his failure mean that he cannot make an application for this kind of visa without leaving the country. 11 To the extent that there is power or may be power in the Executive to enable Mr Singh to sit for a test and make an application without his needing to leave the country, that, I would have thought, should be considered, given the nature of the form which he was allowed to move on. For the avoidance of doubt, reg 1.15C (which governed the application when made by Mr Singh) was in the following terms: (1) A person has competent English if: (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and (b) the test was conducted in the 3 years immediately before the day on which the application was made; and (c) the person achieved a score specified in the instrument. (2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation. 12 For the above reasons, I do not see any error in the learned Federal Circuit Court judge's decision and the appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.