FEDERAL COURT OF AUSTRALIA

Ajaya v Minister for Immigration and Border Protection [2014] FCA 718

THE COURT ORDERS THAT:

1.    The application for an extension of time for an application for leave to appeal either or both of the decisions in the Federal Circuit Court is refused.

2.    The applicant is to pay the costs of the first respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1        Mr Ajaya is an Indian citizen married to Mrs Shahnaz Begum Syed, whose visa application is dependent on Mr Ajaya’s application. On 23 August 2011 Mr Ajaya applied for a Skilled (Provisional) (class VC) subclass 485 (Skilled Graduate) Visa (Skilled Graduate Visa). His application was refused. He sought review in the Migration Review Tribunal and then in the Federal Circuit Court of Australia (FCC). On each occasion he was refused. He now seeks leave to appeal, or alternatively, appeal from two decisions of the FCC.

BACKGROUND

2        Mr Ajaya identified in his visa application that he had undertaken an English test within the preceding 24 months. He recorded that he had been assessed as ‘competent’ under the International English Language Testing System (IELTS).

3        However, on 30 July 2012, a delegate of the first respondent (Minister) refused to grant the visa as Mr Ajaya did not satisfy the criteria for ‘competent English’ as prescribed in reg 1.15C of the Migration Regulations 1994 (Cth) (Regulations). The satisfaction of that criteria was a necessary requirement for the purpose of cl 485.215 of Sch 2 to the Regulations. The delegate also concluded that the secondary visa applicant also did not meet the requirements for the grant of the visa.

4        On 13 August 2012 Mr Ajaya sought review of the delegate’s decision before the second respondent (Tribunal). On 15 February 2013, Mr Ajaya was invited to appear before the Tribunal at a hearing scheduled for 18 March 2013. He was informed of the need to provide evidence of competent English including the requisite scores in the relevant English language test specified in the Regulations. He was told how he could provide this material to the Tribunal.

5        On 18 March 2013, neither Mr Ajaya nor his wife appeared before the Tribunal and on 19 March 2013 the Tribunal affirmed the delegate’s decision not to grant the visa.

6        Mr Ajaya then applied for review of the Tribunal’s decision in the FCC pursuant to s 476(1) of the Migration Act 1958 (Cth) (MA).

7        On 31 October 2013 there was no appearance by Mr Ajaya or anyone on his behalf in the FCC. The application was dismissed. Mr Ajaya then pursued an application on 20 November 2013 to reinstate the application. An affidavit was filed indicating why Mr Ajaya did not attend the scheduled hearing.

8        On 9 December 2013 the reinstatement application was heard and dismissed.

9        Mr Ajaya seeks an extension of time to seek leave to appeal from various orders made in the FCC by his Honour, Judge Riethmuller (Nukala v Minister for Immigration & Anor [2013] FCCA 2322). He has also filed a notice of appeal from that court which attaches the two sets of orders made in the FCC by his Honour.

10        It is not entirely clear to which of the two orders the application relates but as the applicant was unrepresented and consistently with the approach taken by the Minister I treat the application as relating to both orders.

GROUNDS OF THE PRESENT APPLICATION

11        Several grounds have been advanced in writing. On his appearance before me, Mr Ajaya simply stressed that he had worked hard to attain his education qualifications which were such that he should be considered suitable to stay in the country to advance his prospects. He wanted an opportunity to have his position reconsidered.

12        In an affidavit filed on 23 December 2013, Mr Ajaya referred to and relied upon the High Court decision of Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251. Other imprecise grounds for the application were not addressed at all in the course of argument. Berenguel was not addressed by Mr Ajaya, but certainly was addressed by the Minister in both written and oral submissions.

LEGISLATIVE FRAMEWORK

13        Before a Skilled Graduate Visa can be issued, it is necessary for the applicant to establish that at the time of the visa application, he or she had what is described as ‘competent English’: cl 485.215 of Sch 2 to the Regulations. Competent English is defined in reg 1.15C of the Regulations. It provides:

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

(a)    satisfies the Minister that:

(i)    the person undertook a language test, specified by the Minister in an instrument 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.

14        On 16 June 2011, the former Minister specified in an instrument in writing the IELTS test and the Occupational English Test (OET) for the purpose of reg 1.15C(a)(i) of the Regulations and scores of at least six for each of the four test components of listening, reading, writing and speaking for the IELTS test and a score of at least B in each of the five components of an OET (IMMI11/036 commencing on 1 July 2011).

BEFORE THE FCC

15        The October decision of Judge Riethmuller was simply a dismissal for non-appearance. There was no consideration of the merits. In December, when the matter came before his Honour, he noted that the application before him was effectively an application to set aside the earlier October orders dismissing the application.

16        His Honour approached the exercise of his discretion to determine whether or not to set aside such an order by taking into account the explanation for Mr Ajaya’s non-attendance, by considering relative prejudice to each of the parties and whether or not an arguable case for review could be made.

17        Essentially the matter boiled down to whether Mr Ajaya had an arguable case, as the explanation for Mr Ajaya’s non-appearance in October was described as being less than satisfactory but not a determinative issue. Prejudice was accepted as being greater to Mr Ajaya than to the Minister if Mr Ajaya had an arguable case. The arguable case, however, was not made out. The only English test that Mr Ajaya could rely upon as having completed before the lodgement of the visa application was a test taken by him on 9 July 2011, the results of which did not satisfy the Regulations. His Honour concluded that Berenguel was distinguishable as the High Court had considered whether a test conducted two years before the application meant that tests conducted after the application could also be considered. The definition of ‘competent English’ in the Regulations was in very different terms at the time Berenguel was decided. In short, the test score presented by Mr Ajaya was not satisfactory for the purposes of reg 1.15C of the Regulations, such that the Regulations could not be satisfied. This meant that no arguable case was presented as the relevant visa criteria could not be fulfilled.

18        Although this is an application for leave to appeal, the Minister argues that it is expedient for the Court, in the interests of justice, to hear and determine the appeal by way of rehearing by determining for itself whether the Tribunal’s decision is infected by jurisdictional error. The Minister accepts that if, contrary to the Minister’s submissions, I conclude that it is attended by such error, I should set aside the FCC orders and issue prerogative writs that would quash the Tribunal’s decision and require it to re-determine the application for review according to law.

Were the orders interlocutory or final?

19        Although it is a matter of indifference to Mr Ajaya, there is a threshold procedural question. It does not affect Mr Ajaya’s application as whichever answer is given to the procedural question, the substantive merits of the decision below require consideration. That being so, the requirement on an application for leave would be to establish an arguable case that would support an appeal, which is perhaps a lower test.

20        There are two recent decisions on this point. In Perera v Minister for Immigration and Border Protection [2013] FCA 1417, Bromberg J held (at [4]) that leave to appeal from an order made under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) is necessary because the order is, in essence, no different to an order refusing an application to set aside a default judgment as both kinds of judgment involve a refusal to set aside an interlocutory order. In Perera (at [5]) Bromberg J stated:

There is longstanding authority for the proposition that an order refusing to set aside an interlocutory order does not have the legal effect of finally determining the rights of the parties. That is because the refusal of an application to set aside the interlocutory judgment is not a bar to a further application being made to set aside the interlocutory judgment: Carr v Finance Corporation of Australia Limited (No.1) (1981) 147 CLR 246 at 248 (Gibbs CJ) and 254-257 (Mason J).

21        However, in Singh v Minister for Immigration and Border Protection [2013] FCA 1353, Davies J concluded (at [14]) that a dismissal under r 13.03C(1)(e) of the FCC Rules, which is in slightly different terms, was a ‘judgment [that] finally determines the substantive rights of the parties’ such that leave to appeal was therefore not required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

22        The difference between these cases is that r 13.03C(1)(c) of the FCC Rules is a rule entitling the FCC to dismiss an application in the absence of a party, whereas r 13.03C(1)(e) of the FCC Rules entitles the FCC to proceed with the hearing generally or in relation to any claim for relief in the proceeding if a party fails to attend. Both rules apply to first court dates as well as other dates. A decision made under (c) is a decision which does not address the merits at all. It is sometimes thought to be a decision more favourable to a non-attending applicant as there is at least a potential basis for applying to set aside an interlocutory decision if the appropriate grounds can be made out. On the other hand, a decision under (e) is a decision in which the hearing is ‘proceeded with’ generally even though a party may be absent. If that course is taken, and the Court concludes, after consideration of the merits, that the case should be dismissed, there is a final decision from which there is an appeal as of right.

23        In this case, the October dismissal for non-appearance which occurred at the first hearing was a decision of the first character, that is, made pursuant to r 13.03C(1)(c) FCC Rules. As a consequence, the December application for reinstatement was effectively an application for leave to appeal from the decision to dismiss. His Honour approached the matter this way by taking into account the criteria which would apply on an application for leave to appeal. Although his Honour considered the merits, he was expressly considering whether there was an ‘arguable case’, not proceeding with the case generally. His Honour concluded that there was not an arguable case. It seems to me that in these circumstances the December decision is interlocutory rather than final and thus it is appropriate and necessary that Mr Ajaya should proceed by way of application for leave to appeal.

CONSIDERATION

24        The application for leave to appeal must be refused. For the reasons expressed in the FCC and set out below (at [27]-[29]), Mr Ajaya has no prospects of success in this matter.

25        There is a further complication. Mr Ajaya’s notice of appeal was filed within 21 days of the orders of 9 December 2013. While that notice was in time for the purposes of r 36.03(a) of the Federal Court Rules 2011 (Cth) (FCR), he required an extension of time to seek leave to appeal from the orders of 31 October 2013 (see r 35.13(a) and r 35.14 FCR)).

26        Whether or not an extension of time should be granted depends largely on the view taken as to the substantive merits of the application for leave to appeal. That discretion is to be determined having regard to whether an applicant has demonstrated that the decision is attended by sufficient doubt to warrant reconsideration and whether substantial injustice would result if leave were refused supposing the decision below was wrong: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

27        There was no error in the decision of the Tribunal or in the decision of the delegate. Pursuant to s 65 MA, the Tribunal has no discretion to grant a visa to an applicant unless it is satisfied that the person meets the criteria for the grant of the visa. Berenguel is of no assistance to Mr Ajaya. The wording of reg 1.15C of the Regulations is in different terms from reg 1.15B(5) which was considered in Berenguel. The wording in the former being ‘not more than two years before the day on which the application was lodged’ and in the regulation as applicable here ‘in the two years immediately before the day on which the application was made’. The amendment to the wording was a deliberate policy change as evidenced in the Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) which inserted reg 1.15C. The Minister explained:

These amendments ensure that an applicant for a [General Skilled Migration] visa is assessed as holding the relevant English language test score before the application for a [General Skilled Migration] visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the [General Skilled Migration] visa may satisfy the relevant Schedule 2 criterion.

(emphasis added)

28        The only issue is the correctness of the Tribunal’s conclusion that Mr Ajaya did not demonstrate that he had ‘competent English’ in the relevant timeframe before the visa application was lodged. This was the approach taken by Barker J in Singh v Minister for Immigration and Border Protection [2014] FCA 185 where his Honour dealt with circumstances very similar to the present as follows (at [12]-[16]):

12    As his Honour noted, at [12], the purpose of the amendment to the Regulations was to clarify the timeframe within which an English language test must have been conducted for the purpose of a visa application, following the decision of the High Court of Australia in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 264 ALR 417 in which it was held that an earlier version of reg 1.15C allowed for a test to be taken after a visa application had been lodged.

13    While, perhaps understandably, Mr Singh feels aggrieved that he was adjudged according [to] a different test from that which earlier applied, the law plainly is that the new reg 1.15C as amended in 2011 was required to be applied in this case. Thus, the primary judge was correct to find that the MRT and the delegate had not committed any jurisdictional error in dismissing the application made by Mr Singh.

…

15    The requirement under the current applicable Regulations is that an applicant for such a visa demonstrates he or she has competent English. To do this, the Regulations require an IELTS score of at least 6 for each of the four components of speaking, reading, writing and listening: reg 1.15C(a) and Legislative Instrument IMMI12/018. Unless that can be done a visa must be refused.

16    The fact that Mr Singh may have since obtained an IELTS score that meets the regulatory requirements is irrelevant, in circumstances where the Regulations also require, as the primary judge in the Court below emphasised, that the score must have been achieved in a test taken “in the two years immediately before the day on which the application was made”.

(emphasis added)

29        It follows that there was no error on the part of the Tribunal. It correctly interpreted the requirement in the Regulations. It correctly concluded that Mr Ajaya did not meet the requirements in cl 485.215 and that was the only conclusion open to it on the materials. It follows that there is no arguable error such that the decision below was correct and, equally, there is no prospect of any appeal from that decision succeeding.

CONCLUSION

30        In those circumstances, the application for an extension of time for an application for leave to appeal either or both of the decisions in the FCC is refused.

31        The applicants are to pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    4 July 2014