FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2014] FCA 823

THE COURT ORDERS THAT:

1.    Pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth), the applications for an extension of time and for leave to appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

1    Before the Court are applications for an extension of time and for leave to appeal from the judgment and orders of the Federal Circuit Court made on 7 March 2014. Those orders dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application made to that Court on 11 July 2013.

2    When the matter was called at about 2.15 pm today there was no appearance by or on behalf of the applicants. I directed that the matter be called again at approximately 2.30 pm but again there was no appearance.

3    The first respondent, the Minister, applied for the applications to be dismissed pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) which provides, relevantly, that a single judge may make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal.

4    I admitted into evidence two notices from the Court to the first applicant and to the solicitors for the Minister and one letter from the solicitors for the Minister to the first applicant serving the Minister’s written submissions. That correspondence made clear the date and time for the hearing of the applications and the consequences of non-appearance.

5    By virtue of s 25(2BA), in s 25(2B) a reference to an appeal includes a reference to an application of the kind mentioned in s 25(2). The relevant applications there mentioned are: (a) an application for leave to appeal to the Court; and (b) an application for an extension of time within which to institute an appeal to the Court.

6    The order that I make is that, pursuant to s 25(2B)(bb) of the Federal Court of Australia Act, the applications for an extension of time and for leave to appeal be dismissed, with costs.

7    It may also save time either in this Court or in another court if I shortly state my reasons for concluding that, since an appeal has no prospects of success, I would in any event have dismissed the applications.

8    The applications concern “competent English” within the meaning of r 1.15C of the Migration Regulations 1994 (Cth) (the Regulations) in their application to an application for a General Skilled Migration visa made on or after 1 July 2011. It was to applications made on or after 1 July 2011 that the amendment to r 1.15C made by the Migration Amendment Regulations 2011 (No 3) (Cth) Sch 1, item 2 applied: see r 3(2) of those regulations.

9    There are two applicants, wife and husband, but in what follows I shall for convenience refer only to the wife’s application and to a single applicant since the husband’s application is as a member of the wife’s family unit and is dependent on the success of the wife’s application.

10    A short chronology of events is that on 3 May 2012 the applicant applied for a Skilled (Provisional) (Class VC) subclass Skilled – Graduate (subclass 485) visa. That application was refused by the delegate on 16 January 2013 because the applicant did not satisfy r 485.215 of the Regulations in that she had not provided to the Department evidence that she had achieved competent English in a test that was conducted in the two years immediately before the day on which the application was made.

11    The form of the relevant Regulations, as at the date of application on 3 May 2012, was as follows.

Clause 485.215 in Pt 485 of Sch 2:

485.215    The applicant has competent English.

Regulation 1.15C:

1.15C     Competent English

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.

By r 1.03, “General Skilled Migration visa” included a subclass 485 visa.

12    An instrument specified for the purposes of r 1.15C(a)(i) an International English Language Test System (IELTS) test and an Occupational English Test. Instrument number IMMI 11/036 (see Federal Register of Legislative Instruments F2011L01233), commencing on 1 July 2011, immediately after the commencement of the Migration Amendment Regulations 2011 (No 3), provided:

I, CHRIS BOWEN, Minister for Immigration and Citizenship, acting under regulations 1.15C, 1.15D, 1.15E and 1.15EA and clause 487.215 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”):

1.     REVOKE Instrument number IMMI 09/073 signed on 25 June 2009 specifying scores for the purposes of regulations 1.15C and 1.15D, passports for the purposes of regulation 1.15C and English tests for the purposes of paragraph 487.215; AND

2.     SPECIFY for the purposes of subparagraph 1.15C(a)(i) the following language tests:

•    an International English Language Test System (IELTS test); and

•    an Occupational English Test (OET).

3.     SPECIFY for the purposes of subparagraph 1.15C(a)(iii) 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.

4.     SPECIFY for the purposes of paragraph 1.15C(b) 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.

…

13    An application for review to the Migration Review Tribunal (the Tribunal) was made in early February 2013. The applicant was invited by letter dated 6 May 2013 to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

14    On 14 June 2013, the Tribunal conducted a hearing in relation to the applicant’s application. The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa on 24 June 2013.

15    The applicant appeared before the Tribunal on 14 June 2013 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent.

16    The findings of the Tribunal were as follows:

11.     The applicant has not provided evidence to the Tribunal before the hearing that the applicant has competent English by way of satisfactory IELTS or OET scores or by way of holding a passport from the specified countries. The visa application informs that the applicant holds a passport from India. At the hearing the applicant confirmed that she holds a passport from India and from no other country.

12.     The applicant gave evidence at the hearing that the applicant has never sat an OET. The applicant gave evidence that showed that the applicant does not have competent English on the basis of IELTS result. The applicant has sat IELTS tests previously but the scores were not at least 6 in each of the 4 test components and the tests were not conducted in the 2 years immediately before the day on which the application was made (that is, not within 3/5/10 to 3/5/12 (the application was lodged on 3/5/12)). The applicant gave evidence that the applicant sat another IELTS test on 8 June 2013 and requested the Tribunal to accept the result of this test, which should be published soon, if it is satisfactory. The applicant stated that because of ill mental health the applicant could not achieve satisfactory IELTS result yet. The Tribunal then stated that the applicable law provides no discretion for the Tribunal to factor in any special circumstance in determining whether the applicant has competent English within the meaning of r.1.15C.

13.     Therefore the requirements of cl.485.215 are not met. As this is the only relevant subclass in this case, the decision under review will be affirmed.

17    The applicant applied to the Federal Circuit Court seeking review of the decision of the Tribunal made on 24 June 2013. The applicant sought an order that the decision of the Tribunal be quashed.

18    It appears that the sole ground of the application to that Court was as follows:

1.    Migration Review Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.

19    The relevant parts of the affidavit (filed 11 July 2013) were as follows:

3.    I was not well since May 2011 due to my Pregnancy and family Health problem in India and so was not able to concentrate to study/Preparation of my IELTS Test examination. Unfortunately I did not achieve required bands because of due to my Pregnancy and my family health problem. I again requested migration review tribunal to give some more time to appear in another IELTS Test but again my request was refused. I think I am become a victim of a procedure fairness issue/matter here as migration review tribunal has an error in my decision by not allowing enough time. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects and give enough time to produce documents.

20    As I have said, on 7 March 2014 the Federal Circuit Court dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

21    The judge of the Federal Circuit Court noted that at the beginning of the hearing the applicant sought an adjournment for four months to give her more time to prepare the case. This application was refused on the basis that the proceedings were bound to fail. The application also failed to raise an arguable case.

22    Turning to the substantive issue, the Court said that the case brought misconceived the relevant requirements of the Regulations. The applicant produced no evidence that she could satisfy the requirements of the Regulations. Evidence to the Tribunal had the effect that she could not do so. The IELTS tests had not been conducted in the two years immediately preceding the application for the visa. The applicant’s evidence was that she had not achieved a score that had been specified as being a “satisfactory” score. The applicant could not meet a key part of the requirement for the grant of the visa. In these circumstances, the Tribunal was not obliged to provide the applicant with a further opportunity to provide evidence of the results of the test that she sat on 8 June 2013 as the test had not been conducted in the two years immediately preceding the date of the visa application. The Court agreed with the submission made by the Minister that, given the plain requirements of the relevant regulatory scheme at the time of the application, any further time provided by the Tribunal would have been a futile exercise.

23    The applications for extension of time and leave to appeal to this Court state that the applicant’s file was dismissed on 7 March 2014 “without considering fact of natural justice and without considering Migration Regulation 1958 (Cth) & Judiciary Act 1903 (Cth)”.

24    The draft notice of appeal states the grounds, relevantly, as follows, in effect restating the contents of the affidavit before the Federal Circuit Court, which I have set out above:

2.    I was not well since May 2011 due to my Pregnancy and family Health problem in India and so was not able to concentrate to study/Preparation of my IELTS Test examination. Unfortunately I did not achieve required bands because of due to my Pregnancy and my family health problem. I again requested migration review tribunal to give some more time to appear in another IELTS Test but again my request was refused. I think I am become a victim of a procedure fairness issue/matter here as migration review tribunal has an error in my decision by not allowing enough time. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects and give enough time to produce documents.

3.    I applied appeal decision of MRT to The Federal Circuit Court of Australia on 11 July 2013 which was dismissed on 07 March 2014 without considering facts of natural justice and without considering Migration Regulation 1958 (Cth) & Judiciary Act 1903 (Cth)

25    The applicants filed no written submissions.

26    The first respondent submitted that there was no explanation for the delay (4 days) on the part of the applicant in the present case in applying for leave to appeal. It was for the Court to assess whether the application for leave to appeal demonstrated that the decision of the Federal Circuit Court was attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong. The first respondent submitted that the Court was unlikely to be satisfied that doubt attended the decision of the Federal Circuit Court, particularly in the absence of the applicant having provided proposed grounds of appeal.

27    The first respondent submitted that the effect of the applicant’s own evidence was that she did not have “competent English” as defined. Had the Tribunal granted the applicant further time to provide the results of her IELTS test sat on 8 June 2013, such evidence would not have been able to establish that she had successfully completed an English language test in the two years immediately before making her visa application for the purpose of satisfying the competent English requirement. Any extension of time would therefore have been futile.

28    The first respondent submitted that the Federal Circuit Court had so reasoned at [31] and [32].

29    The first respondent submitted there was no basis to warrant the extension of time to the applicant or leave to appeal to this Court. He submitted that the application should be dismissed with costs.

30    In my opinion, for the reasons given by the judge of the Federal Circuit Court, an appeal has no prospects of success. The relevant facts are uncontroversial and, on the basis of those facts, no error on the part of the judge of the Federal Circuit Court could be established. The Tribunal made no error in not being satisfied that the applicant achieved a score, specified in the relevant instrument, in a test conducted in the two years immediately before the day on which the application for the visa was made. Having found those facts, the Tribunal had no discretion: see Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [12]–[16] per Barker J and Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 at [28] per McKerracher J. I agree with the judge of the Federal Circuit Court that any extension of time by the Tribunal would have been futile.

Orders

31    As I have said, the order I make is that, pursuant to s 25(2B)(bb) of the Federal Court of Australia Act, the applications for an extension of time and for leave to appeal be dismissed, with costs.

Associate:

Dated:    7 August 2014