FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 2114

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The Applicant pay the First Respondent’s costs, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application for leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 17 May 2018 in Singh v Minister for Immigration [2018] FCCA 1415. In that decision the primary Judge determined, adversely to the applicant, a show cause procedure prescribed by r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) requiring the appellant to satisfy the Court that he advanced an arguable case for the relief he claimed (in this case, quashing the decision of the Administrative Appeals Tribunal (Tribunal)).

Background

2    The applicant is a citizen of India. On 19 May 2010 he applied to the Minister for Immigration for the grant of a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth). At the time the applicant lodged the visa application, that visa class contained the following subclasses: Subclass 485 (Skilled - Graduate) and Subclass 487 (Skilled – Regional Sponsored).

3    A delegate of the Minister refused the visa application on 21 October 2016 on the basis that he did not satisfy cl 487.224 in Pt 487 of Sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations) and, alternatively, cl 485.215, because he had not provided evidence of his required English language proficiency.

4    The applicant applied to the Tribunal for review of the delegate’s decision, and appeared before the Tribunal by telephone on 24 March 2017 to give evidence and present arguments. He was represented in relation to his review by his registered migration agent, who however did not attend the hearing.

Decision of the Tribunal

5    The Tribunal noted that the visa was being sought on the basis of the applicant’s sponsorship by an eligible relative, and accordingly the application would be initially assessed against the criteria for a Subclass 487 visa. The Tribunal noted that the criteria for a Subclass 487 visa were set out in Pt 487 of Sch 2 to the Migration Regulations, and a primary criterion to be met at the time of application was cl 487.215 which required that:

    the applicant has concessional competent English (cl 487.215(a)); or

    the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl 487.215(b)).

6    The Tribunal noted that where the application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, at the time of decision the applicant must also satisfy cl 487.224 which requires that the applicant has concessional competent English. “Concessional competent English” is defined in reg 1.15E.

7    At material times, reg 1.15E provided that a person has “concessional competent English” if the person satisfies the Minister that he or she has achieved, in a test conducted not more than two years before the date of the application:

    an IELTS test average band score of at least 6 for the four test components of speaking, reading, writing and listening; or

    a specified score in a language test specified by the Minister in writing.

8    The Tribunal said:

13.    … the applicant’s visa application indicated that he had not undertaken an English test within the 2 previous years. The decision further records that on 5 January 2012 he provided an invoice which indicated that he had booked an IEL TS test for 10 July 2010. The results of that test were not provided to the Department and, notwithstanding further claims of further test bookings, no results were supplied. On that basis the delegate was not satisfied that the applicant met cl.487.224. The delegate also assessed the application against cl.485.215 but, in the absence of any evidence that the applicant had competent English, found he did not meet the requirements for either visa and the application was refused.

14.    At the hearing the applicant said he had undertaken several tests but had not achieved the required score. He said he had booked another test for 8 April 2017 and asked the Tribunal to wait for his results before making a decision. The Tribunal indicated to the applicant that the legislation required, in the absence of evidence of concessional competent English at the time of application, that his application had been accompanied by evidence that he had made arrangements to undergo a specified language test (cl.487.215(b)). On the information on the Departmental file, no such evidence relevantly ‘accompanied’ the application, the evidence of a booking not being provided until some years later. On that basis, the Tribunal told the applicant, even if he achieved the required scores in his IEL TS test on 8 April 2017, it may still not be satisfied that he met the relevant criteria. It allowed the applicant until 29 April 2017 to provide the results of his English language test and any further submissions in support of his application.

15.    As of today’s date, there has been no further communication or information supplied by the applicant or his representative.

(Emphasis added.)

9    The Tribunal observed at [16] that the issue in the present case was whether the applicant had provided evidence that either,

    at the date of his application he had concessional competent English; or

    if his visa application had been accompanied by evidence that he had made arrangements to undergo a specified language test at the time of decision – he had concessional competent English.

10    The Tribunal found that there was no evidence before it that the applicant had concessional competent English as defined either at the time of application or the time of decision. Accordingly, the Tribunal was not satisfied that the applicant met cl 487.215 or cl 487.224 of the Migration Regulations.

11    At [19] the Tribunal also noted the consideration given by the delegate to the question whether, alternatively, the applicant met the equivalent provisions for the grant of a Subclass 485 visa which required that, at the time of the application, the applicant has “competent English”. As the Tribunal pointed out, “Competent English” is defined in reg 1.15C of the Migration Regulations and provides that, for a General Skilled Migration visa applicant, the applicant has achieved, in a test conducted not more than two years before the date of application, an IELTS a score of at least 6 for each of the four tests components of speaking, reading, writing and listening. Alternatively, reg 1.15C provides that an applicant can achieve a score in another language test as specified by the Minister in writing or hold a specified passport. The Tribunal found:

20.    The relevant instrument at the time of application was IMMI 09/073. It specified a score of at least ‘B’ in each of the four components of an Occupational English Language test (OET) or a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland, to a citizen of that country.

21.    Documents on the Department’s file confirm that the applicant is an Indian citizen and holds an Indian passport. There is nothing before the Tribunal evidencing results of any IEL TS or OET tests undertaken by the applicant.

22.    On this basis the Tribunal is not satisfied that the applicant meets cl.485.215.

12    In the circumstances the Tribunal affirmed the decision of the delegate not to grant a Skilled (Provisional) (Class VC) visa.

Federal Circuit Court decision

13    By application filed in the Federal Circuit Court on 25 May 2017, the applicant sought judicial review of the Tribunal’s decision. However, the primary Judge noted that, pursuant to orders of a Registrar of that Court of 24 January 2018, the proceeding was to go forward under the show cause procedure prescribed by r 44.12 of the FCC Rules. His Honour noted at [2] that, in light of the authorities, the Court should not lightly make an order for the summary dismissal of a proceeding pursuant to the exercise of its discretion in r 44.12.

14    His Honour at [5]-[11] summarised the factual background and the decision of the Tribunal, noting that the Tribunal had affirmed the decision under review. His Honour then noted that the applicant had commenced an application in the Federal Circuit Court for judicial review of the Tribunal’s decision, relying on the following paragraph:

My 487 application was refused for not satisfying the criteria under clause 487.224 under the schedule 2 of the Migration Regulations 1994 for not providing evidence of English proficiency. The decision record points out to the 6 overall requirement in each of the four module of the test, but the actual requirement was 6 overall; so my application was assessed in terms of score in each module of the test rather than overall average score achieved. The IELTS test was booked for 10 July 2012; the evidence of the same was provided to the Department while the application was under processing and the decision was to be made. I had made specific arrangements under clause 487.215(b) to ensure that efforts were made to book a test and come up with the prescribed score; but the Review Tribunal has failed to consider the given documentation and no consideration was given to entire scale of efforts; and my wait since 2010 has also gone ignored too. Please accept my judicial review application in terms of the considerable amount of time I had waited since my file has finalized.

(Errors in original.)

15    In relation to this ground of review the primary Judge made, in summary, the following observations.

16    The first sentence was a correct historic recital of the refusal of the application by the Tribunal. It did not identify any jurisdictional error on the part of the Tribunal.

17    In the second sentence the applicant recorded his points score for his language test. That was not a valid ground of review.

18    In the third sentence the applicant referred to the booking he made for an IELTS test on 12 July 2012. That was not a proper ground of review – rather it was a narration of factual events which had since passed. His Honour noted however that the applicant appeared to contend that the Tribunal failed to consider the effort the applicant made to book an IELTS test.

19    In respect of the third sentence the Minister had submitted before his Honour that, in substance, the sole ground of review advanced by the applicant was a contention that the Tribunal misapplied the definition of “competent English” in reg 1.15E of the Migration Regulations by requiring a score of 6.0 for each of the four test components of speaking, reading, writing and listening, as opposed to an overall score of 6. The Minister submitted further that such a contention could not succeed, because reg 1.15E of the Migration Regulations required a score of 6.0 in each test component, and in an event the complaint could not succeed because the applicant did not provide any IELTS results to the delegate or the Tribunal. The primary Judge agreed that the applicant’s construction of reg 1.15E of the Migration Regulations was erroneous.

20    The primary Judge noted that the Minister addressed the applicant’s contention that he made “specific arrangements” to undergo a test, and that the Tribunal failed to consider the “given documentation” and “the entire scale of efforts” the applicant had made. The Minister submitted further that such an argument was erroneous because, irrespective of the efforts made by the applicant, the applicant nonetheless failed to provide evidence of concessional competent English at the time of the decision. Accordingly the Tribunal did not have discretion to take into account the matters advanced by the applicant (including relating to the scale of his efforts or the length of time he took in the process to apply).

21    The primary Judge concluded that the applicant did not raise an arguable case for the relief that he sought in this proceeding. His Honour noted that the Court retained a residual discretion to refuse to summarily dismiss the proceeding, but that there was no valid basis for the exercise of his discretion in the applicant’s favour. Accordingly, the primary Judge summarily dismissed the proceeding with costs.

Application to the Federal Court

22    It is not in dispute that the decision of the primary Judge was interlocutory, and accordingly the applicant requires leave to appeal that decision. The grounds of the applicant’s application are set out in his application for leave filed on 29 May 2018, and are as follows:

1.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by summarily dismissing the Applicant’s application.

2.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them;

Particulars

i)    By discounting the evidence that indicated that Minister’s delegate had incorrectly assessed Applicant’s eligibility for a Skilled Provisional (Class VC) visa;

ii)    By failing to consider the evidence in totality and cumulatively;

iii)    By displaying bias against the Applicant.

23    On 29 May 2018 the applicant also filed an affidavit in support of his application for leave to appeal. Relevantly the applicant deposed:

    he attended the hearing before the primary Judge without legal representation;

    he has subsequently sought legal advice with respect to his appeal options and chances of success;

    he now seeks leave to appeal; and

    he strongly believes that the decision of the primary Judge was affected by jurisdictional error.

24    The proposed grounds of his appeal were identical to the grounds of his application for leave to appeal, being:

1.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by summarily dismissing the Applicant’s application.

2.    The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them;

Particulars

i)    By discounting the evidence that indicated that Minister’s delegate had incorrectly assessed Applicant’s eligibility for a Skilled Provisional (Class VC) visa;

ii)     By failing to consider the evidence in totality and cumulatively;

iii)     By displaying bias against the Applicant.

Consideration

25    At the hearing the applicant appeared in person without the aid of an interpreter. The Minister was represented by Counsel.

26    The applicant submitted that he had had personal issues, including in respect of the illness of his father, which had contributed to his presentation of material before the Tribunal. He also submitted that he had a family, and sought the continuation of his chance in Australia.

27    It is well-established in light of such cases as Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 that in considering whether the Court should grant leave to appeal, the Court must be satisfied that there is sufficient doubt as to the correctness of the judgment below and that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

28    Rule 44.12 of the FCC Rules provides:

Show cause hearing

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

29    The nature of a decision of a Judge of the Federal Circuit Court of Australia made pursuant to r 44.12 was explained by Beach J in SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 in the following terms:

22.    The primary judge’s decision dismissing the applicant’s application was because she was not satisfied that the applicant had raised an arguable case for the relief sought. An appeal against a finding of an absence of satisfaction as to a matter is subject to similar principles that apply to an appeal from a decision involving the exercise of discretion. As Gleeson J said in SZTGS at [23]-[24]:

In other contexts, an appeal against a finding of satisfaction [or an absence of satisfaction] as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27].

…

23.    The primary judge’s decision to dismiss the application, after not being relevantly satisfied, is itself an exercise of discretionary power under r 44.12 (1)(a), thereby requiring identification of appealable error of the type discussed in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ (House v The King) (SZSLD v Minister for Immigration and Citizenship [2013] FCA 547 (SZSLD) at [21] per Griffiths J).

30    I respectfully adopt Beach J’s summary as applicable to the decision of the primary Judge in this case.

31    It follows that, in order to substantiate a grant of leave by this Court against the decision of his Honour, the applicant is required to demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge in summarily dismissing the application acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, did not take into account some material consideration or reached a result that was plainly unreasonable or unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

32    Ground 2 as advanced by the applicant is particularised, and it is useful to consider it first.

33    In particulars (i) and (ii) of ground 2, the applicant complains that the primary Judge himself fell into jurisdictional error by discounting the applicant’s evidence and failing to consider the evidence in its totality. In particular (iii) of ground 2, the applicant complains of bias on the part of the primary Judge. For present purposes a question then arises as to whether there is merit in the argument that, in exercising his discretion to summarily dismiss the proceeding, the decision of the primary Judge was tainted either by a failure to take into account relevant evidence or by bias.

34    In respect of particulars (i) and (ii) of ground 2, and the applicant’s claim that the primary Judge discounted the evidence indicating the Minister’s delegate had incorrectly assessed the applicant’s eligibility for the visa, I understand that this ground also raises a criticism of the approach of the delegate (and subsequently the Tribunal) in the assessment of the applicant’s eligibility for the visa for which he had applied. However:

    The applicant does not particularise what evidence was before the primary Judge supporting the alleged incorrect assessment of eligibility on the part of the Tribunal, (other than by identifying the Tribunal’s decision)

    If this ground relates to the applicant’s contention that there was evidence of the booking for his 10 July 2012 IELTS test and the specific arrangements he made under cl 487.214(b) to ensure that efforts were made to book a test – I note that his Honour examined circumstances and submissions relating to these issues at [16]-[20] of the primary judgment. No submissions are advanced by the applicant particularising how the Tribunal erred in respect of the assessment of the applicant’s eligibility for the visa under the Migration Regulations, more specifically how the Tribunal erred in its construction of reg 1.15E of the Migration Regulations, or how the primary Judge erred in finding that there was no relevant error on the part of the Tribunal.

    So far as I can ascertain from the material before me, the applicant made no complaint to his Honour that either the Minister’s delegate or the Tribunal assessed the applicant against the wrong visa criteria.

    The mere assertion by the applicant that the primary Judge failed to consider the evidence in totality and cumulatively is inadequate in the absence of particularisation of such error.

35    In respect of the applicant’s claim of bias on the part of the primary Judge, this is a serious allegation which must be properly pleaded: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). There is no material before me constituting evidence of actual bias on the part of the primary Judge, nor anything on the face of the decision which gives rise to any apprehension of bias. The fact that the primary Judge did not find in the applicant’s favour is not, of itself, indicative of bias. In the absence of any evidence as to the conduct of the Tribunal at the hearing (or otherwise) no bias should be inferred simply from factual findings that were open to the Tribunal: Jia Legeng at [69]-[72].

36    In relation to ground 1, I agree with the submission of the Minister that this ground is a bland assertion that the primary Judge fell into jurisdictional error and, without particulars, cannot be made out.

Conclusion

37    The decision of the Tribunal comprehensively addressed the applicant’s circumstances. The applicant’s claims in respect of that decision were examined carefully by the primary Judge in the context of the show cause procedure prescribed by the FCC Rules. His Honour found both that the applicant had not advanced arguments warranting findings in his favour, and that there was no basis on which his Honour should exercise a discretion not to summarily dismiss the proceedings. Before this Court the applicant was required to establish that there was sufficient doubt as to the correctness of the primary Judge’s findings and related exercise of discretion against the applicant, such that the applicant ought be granted leave to appeal. I am satisfied that no such sufficient doubt exists as to the correctness of his Honour’s findings or the decision to summarily dismiss the proceedings.

38    The appropriate order is to dismiss the application for leave to appeal, with costs.

Associate:

Dated:    22 November 2018