FEDERAL COURT OF AUSTRALIA

Poovaiah v Minister for Immigration and Border Protection [2015] FCA 458

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The orders not be sealed until 4:00 pm on Friday, 15 May 2015.

3.    Liberty to apply by 12:00 pm on 15 May 2015 to re-list the matter for hearing.

4.    If the applicant makes an application to re-list the matter for hearing, the orders not be sealed until the matter is listed for hearing and heard on a date to be fixed.

5.    The applicant pay to the first respondent the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In this matter, the applicant for leave to appeal has not appeared. I am satisfied that he was appropriately notified of the hearing by correspondence of 31 March 2015 to his residential address and to his electronic address. The Minister has appeared and has sought for the application to be dismissed for non-attendance. In the exercise of my discretion I would be prepared to do that, having regard to the apparent lack of merit in the application. In my view, however, the matter is so clear that I should deal with the application on the merits in any event.

2    The applicant, although he has not appeared, filed an affidavit in support of his application sworn on 23 February 2015, which relevantly complains:

[t]he major factor was not considered, which is my progress in IELTS results is [sic]. I have been performed better by 0.5 in subsequent attempts for IELTS

and he then gives the details. He then continues in his affidavit:

And the other factor is that I have scored required results in every other modules (writing, speaking, and listening) in every attempt. I request the court to consider all my hard work so far and provide me opportunity to get required results in my next attempt. I am very close to my goal but the court’s decision can halt my progress and my hard work so far will be wasted and my future will be ruined.

3    Neither of those two matters, even accepting them to be accurate, can affect the lawfulness of the decision of the Migration Review Tribunal (the Tribunal) of 9 May 2014. That is, it is clear that that decision was made on the basis that the applicant had failed to satisfy the mandatory requirement of cl 485.215 of Sch 2 to the Migration Regulations 1999 (Cth) (Migration Regulations), namely, that he had submitted evidence as to his English language competency that would meet the requirements of reg 1.15C as relevantly in force.

4    It was a mandatory requirement of clause 485.215 that the applicant have competent English. Regulation 1.15C defines competent English in the following terms:

Competent English

(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

(2)    A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

5    The relevant Ministerial specification for the purposes of reg 1.15C(1) and (2) in the case of the applicant was IMMI 12/018, dated 12 June 2012. It relevantly provided in cls 3D and 3E as follows:

3D    For the purposes of paragraph 1.15C(1)(a) the following language tests:

•    An IELTS test; and

•    An OET

3E    For the purposes of paragraph 1.15C(1)(c) the following scores:

•    An IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

•    A score of at least ‘B’ in each of the four components of an OET.

6    In addition, cl 3.F provided:

For the purposes of subregulation 1.15C(2) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

7    The applicant did not contest before the Tribunal that he had not produced evidence of satisfactory completion of an IELTS test for the purposes of evidence in compliance with IMMI 12/018, and in turn reg 1.15C(1)(a), and cl 485.215 of Sch 2 of the Migration Regulations at the time of his visa application. His affidavit implicitly acknowledges that and indicates that he is endeavouring to improve that rating and should be given a further opportunity to do so.

8    The regulation requires that he should have produced that evidence at the time of his application. In my view, on the material before the Tribunal, it is not shown to have been an error in deciding that he did not comply with that regulation. Consequently, there was no error on the part of the primary judge in the Federal Circuit Court in deciding that the Tribunal had not erred in any way, and leave to appeal from that decision should be refused: compare the observations of Besanko J in Kaur v Minister for Immigration and Border Protection [2014] FCA 1297 at [7].

9    I note that because the Federal Circuit Court order was an interlocutory by reason of summary dismissal of the claim, it is necessary for the applicant to have sought leave to appeal from that Court. I have treated his application as doing so, but there is no suggestion – no arguable proposition – that any substantial injustice would result if leave to appeal were refused, because in my view the decision is plainly correct: see Decor Corporation Proprietary Limited v Dart Industries Inc. (1991) 33 FCR 397 at pp 398 to 399.

10    For those reasons, rather than simply exercise the discretion to dismiss the application for non-attendance, I have considered it preferable to deal with it on the merits and to dismiss the application for leave to appeal. It will be dismissed with costs.

11    As the applicant has not attended today, even though he has been notified of the hearing, I will direct that the orders made today not be sealed until 4 pm on Friday 15 May 2015, in case the applicant’s non-attendance today was caused by some circumstance beyond his control, and I will give him liberty to apply by 12 noon on 15 May 2015 to relist the matter for hearing if he chooses to do so. If he makes such an application, the order will lie unsealed in the Registry until his application has been able to be heard and determined. The applicant should pay to the Minister costs of the application.

Associate:

Dated:    13 May 2015