Singh v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Revised from transcript) 1 The applicants seek leave to appeal from the judgment of the Federal Circuit Court given on 17 April 2015 dismissing an application for judicial review of a decision of the Migration Review Tribunal made on 2 June 2014. The applicants require the Court's leave to bring the appeal against the decision of the Federal Circuit Court because its dismissal was an interlocutory decision: see Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38, [17]; Federal Court of Australia Act 1976 (Cth), s 24(1A). 2 The test for whether leave to appeal from an interlocutory decision should be granted is whether in all the circumstances of the case the decision is attended with sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice will result if leave was refused supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9. 3 The first applicant lodged an application for a Skilled (Residence) (Class VB) visa on 9 November 2011. The second applicant was included in the visa application as a dependent of the first applicant. A requirement for the visa was an ability to meet the requisite English language proficiency for the grant of the visa. A delegate of the Minister refused to grant the visa on 7 February 2014 because the first applicant was unable to provide evidence of meeting the requisite proficiency. 4 The applicants were represented by a migration agent and sought a review of the delegate's decision by the Migration Review Tribunal. To that end the Tribunal invited the applicants to appear at a hearing arranged for 30 May 2014 to give evidence and to present arguments. The first applicant sought an adjournment of the hearing the day before the scheduled hearing because he had been assaulted at work some 11 days previously and was suffering from mental stress and a lack of confidence and was receiving treatment from a psychologist. The Tribunal, however, refused to adjourn the hearing because it had not received a medical certificate to the effect that either of the applicants was unfit to participate in the hearing in person or by telephone. Attempts were made on behalf of the Tribunal to inform the applicants and their migration agent of the Tribunal's refusal to grant the adjournment and messages were left on the telephone answering services of the applicants and of their migration agent indicating that the Tribunal would contact them by telephone the following day if the applicants did not appear at the hearing in person. An email was sent to the migration agent during the afternoon on 29 May 2014. Neither the applicants nor their migration agent responded to the messages which had been left on several message machines and there was no appearance in person at the hearing on 30 May 2014 by the applicants or by their migration agent. The telephone number which had been provided by the applicants with their application for review was rung on behalf of the Tribunal on the day appointed for the hearing of their application but the number was not answered. The Tribunal then proceeded to make its decision pursuant to s 362B(1) of the Migration Act 1958 (Cth) in view of the lack of response to the Tribunal's messages and email which had been left the day before. 5 The Tribunal's decision on 2 June 2014 was to affirm the decision of the delegate on the basis that there was no evidence before the Tribunal that the first applicant had met the requisite English language proficiency for the grant of the visa. Clause 885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) required that an applicant for the visa satisfy a decision-maker that he had competent English. Regulation 1.15C required a person to satisfy the Minister of having "competent English" by, relevantly, having achieved a minimum score in an English language test specified by the Minister in writing and conducted in the two years immediately before the visa application was lodged. Legislative Instrument IMMI 12/018 specified that a test score of at least 6 in all four components of the International English Language Testing System ("IELTS"), or a score of at least "B" in each of the four components of an Occupational English Test, was required to meet the requisite English language proficiency for the grant of the visa. The first applicant had not provided any evidence to the delegate or to the Tribunal of his having achieved a sufficient test score in a prescribed English language test in the two years immediately prior to the visa application being lodged as required to meet the requisite English language proficiency for the grant of the visa. The Tribunal said at [11]-[17] in its reasons: 11. The issue in the present case is whether the applicant has competent English as required by cl.885.213. Regulation 1.15C provides that a person has 'competent English' if the person: (a) satisfies the Minister that: (i) the person undertook a language test, specified by the Minister in writing for this subparagraph; and (ii) the test was conducted in the 2 years immediately before the day on which the application was made; and (iii) the person achieved a score specified in the instrument; or (b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph. 12. In the present case, there is no evidence that the applicant has held a passport of a type specified in IMMI 12/018, and as such r.l.15C(b) is not met. 13. For r.1.15C(a)(i) and (iii), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least 'B' for each of the 4 test components: Legislative Instrument IMMI 12/018. 14. In his visa application the applicant stated that he had undertaken an English language test on 3 November 2011 and had been assessed as competent however no evidence of this was supplied either at the time of the application or in response to later requests from the delegate. Consequently, as recorded in the delegate's decision, a copy of which was provided with the application for review, the visa application was refused. 15. When the Tribunal invited the applicants to a hearing it also requested such evidence however none was provided. As noted above, the applicant did not attend the hearing nor did he respond to telephone calls from the Tribunal. 16. In the circumstances there is no evidence that the applicant has met the requirements of r.l.15C and accordingly the Tribunal is not satisfied that at the relevant time he had competent English. 17. The Tribunal finds that the applicant does not have competent English as defined in r.l.15C(a) and therefore does not meet cl.885.213. An application for a judicial review of that decision was made on 27 June 2014. 6 Orders were made by the Federal Circuit Court on 17 September 2014 listing the matter for a "show cause" hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The hearing was listed for 28 January 2015 before his Honour Judge Riethmuller. The applicants failed to appear at the "show cause" hearing listed on 28 January 2015 and the application was on that day dismissed by his Honour under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 7 On 5 February 2015 the applicants applied to his Honour to have set aside under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) the orders which his Honour had made the previous week. His Honour heard the application and considered it on the basis of whether or not the first applicant had an arguable case. His Honour considered the material and determined that the applicant did not satisfy the requirement of competent English and could never obtain the visa that he applied for. At [3]-[6] of his Honour's reasons for judgment his Honour said: 3. In order to show that he has competent English, the Applicant is required to comply with Regulation 1.15C which requires that in the two years immediately preceding the day on which he made application for the visa, he had achieved a test score in the appropriate test at the level required by the Regulations. In this case, the testing method that he undertook was the International English Language Testing System ('IELTS') which is the common form of English language test taken by people applying for visas. 4. The regulations require that a test score of at least six in each of the four test components must be obtained in order to show competent English. In simple terms, unless a person has a test score of six in each of the IELTS test components, they cannot obtain the visa for which the Applicant applied. The test results showing six in each of the components must be obtained in the two years before the day on which the application for the visa is made. The Applicant did not obtain such test score results in the two years before applying for the visa. 5. The Applicant does not argue that he has test results of six in each band. The Applicant explained that he suffers from anxiety which interfered with his reading and caused his results in the reading band of the IELTS test to fall below the required amount. The Applicant sought an indulgence in this regard. The Migration Act 1958 (Cth) ('the Act') does not provide for any power to the courts to waive any of the visa conditions that are set out in the regulations. The Regulations are established by the government as elected and form the law on this topic. It is not open to the courts to vary or alter the Regulations which have been passed in accordance with the Act of Parliament. 6. In the circumstances of this case, the Applicant can never obtain the visa that he has applied for on this visa application. Whether in the future, once he has passed his IELTS test, he can then apply for this visa category again is not something that I have turned my mind to nor is it appropriate for me to make a ruling about that today. It is sufficient to conclude that he cannot obtain the visa that he has applied for, given his lack of IELTS score. His Honour concluded that in these circumstances an application for judicial review "must necessarily be futile" and, in those circumstances, it was not appropriate to reinstate the proceedings of an application "that ultimately must fail". 8 The grounds upon which leave to appeal is sought to this Court are: that the Tribunal made a decision without considering all facts and information and disregarding the evidence it had on file; that the Tribunal erred in not having considered the fact that the first applicant had studied and worked in an English speaking environment over a considerable number of years and that he had lived in Australia and that English was never a problem for him in the development of his career; that the Tribunal had failed to consider the applicants' circumstances and proceeded to decide the application in the absence of the applicants; that the Tribunal had failed to accord the applicants procedural fairness and natural justice; and that the applicants had not appeared at the first hearing on 28 January 2015 before the Federal Circuit Court due to personal circumstances but that they had appeared at the re-hearing on 17 April 2015 but are not satisfied with the decision from which they seek leave to appeal. The application to this Court for leave to appeal is accompanied by an affidavit made by the first applicant which does not add materially to the facts or grounds in the application. The application itself was largely directed to complaints about the decision by the Tribunal but added claims that the Federal Circuit Court "failed to make [a] satisfactory decision", "failed to make natural justice", and had dismissed the applicants' application in a case filed on 5 February 2015 which the applicants wish to have re-heard in the Federal Court. The applicants were asked at the hearing of the appeal for submissions on their application but did not add to the evidence already before the Court. 9 None of the grounds in the application for leave to appeal, or found in the affidavit, or the oral submissions at the hearing disclose any error in the judgment of the Federal Circuit Court. His Honour was correct to find that the applicant could not meet the mandatory criteria for the grant of the visa and that the further pursuit of the judicial review proceeding would be futile. Nothing in the application or in the evidence suggests that the fundamental finding of the Tribunal was wrong or that the applicants could establish that they satisfied the requirement of language proficiency. The fundamental finding of the Tribunal had been that the first applicant had been unable to meet the competent English language proficiency requirement as defined under reg 1.15C of the Regulations for the grant of the visa. The Federal Circuit Court was correct to find that he could not satisfy the requirement prescribed under cl 885.213 of Schedule 2 of the Regulations and that it would be futile for the judicial review proceedings to continue. The position of the second applicant depends upon the success of the application of the first applicant. There is no reason to doubt the correctness of the decision of the Federal Circuit Court and no basis to conclude that there would be substantial injustice to refuse leave to appeal supposing the decision to be wrong. 10 Accordingly, the application will be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.