FEDERAL COURT OF AUSTRALIA

Vatti v Minister for Immigration and Border Protection [2014] FCA 893

THE COURT ORDERS THAT:

1.    The time in which the applicant may file and serve an application for leave to appeal from the orders of the Federal Circuit Court is extended to 13 May 2014.

2.    The application for leave to appeal from the orders of the Federal Circuit Court dated 28 April 2014 is refused.

3.    The applicant is to pay the first respondent’s costs of and incidental to the application for leave to appeal.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

INTRODUCTION AND SUMMARY

1        This proceeding concerns a purported appeal from a decision of the Federal Circuit Court made on 28 April 2014. On 23 September 2013, the applicant filed in the Federal Circuit Court an application for judicial review of a decision of the Migration Review Tribunal, affirming the decision of a delegate of the Minister to refuse to grant a visa. On 20 November 2013, Registrar Caporale made orders that the matter be set down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). On 28 April 2014, Judge Hartnett dismissed the application pursuant to r 44.12(1)(a).

2        A decision of the Federal Circuit Court to dismiss an application pursuant to r 44.12(1)(a) is interlocutory: see r 44.12(2). In Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17] the Full Court confirmed the character of a dismissal under r 44.12(1) as interlocutory.

3        Therefore leave to appeal is required: Federal Court of Australia Act 1976 (Cth) s 24(1A). The applicant has not filed an application for leave to appeal from the decision of the Federal Circuit Court but, with the consent of the Minister, the hearing was conducted on the basis that leave to appeal should be taken to have been sought by the applicant when the notice of appeal was filed.

4        Rule 35.13 of the Federal Court Rules 2011 (Cth) requires an application for leave to appeal to be filed within 14 days from the date on which judgment was pronounced or the order was made. The applicant’s notice of appeal was filed with the Court on 13 May 2014. The application for leave to appeal was therefore made one day out of time and an extension of time is required.

5        Again, the proceeding was conducted on the basis that the applicant sought, pursuant to r 35.14 of the Federal Court Rules, an extension of time in which to file an application for leave to appeal to 13 May 2014.

6        For the reasons I set out below, the time in which the applicant may file and serve an application for leave to appeal from the orders of the Federal Circuit Court will be extended to 13 May 2014. However, the application for leave to appeal from the Federal Circuit Court’s orders will be refused.

BACKGROUND

7        The applicant is an Indian national who, on 23 September 2011, applied through his migration agent for a Student (Temporary) (Class TU) visa. On 28 September 2011, the Department wrote to the applicant, requesting he provide within 28 days documentation demonstrating he met the relevant criteria in Sch 5A to the Migration Regulations 1994 (Cth) including, relevantly, cl 5A404 relating to English language proficiency.

8        The applicant had provided an International English Language Testing System (IELTS) certificate for a test completed on 10 January 2008, demonstrating an overall score of 5.0. He also provided a certificate of completion for a certificate III in English as a second language (ESL) and a transcript demonstrated he had undertaken, but had not yet completed, a certificate III in printing and graphic arts. The delegate found these documents to be insufficient evidence to meet the requirements set out in cl 5A404. In considering whether the appellant met the criterion in cl 572.223 of Sch 2 to the Regulations that he be a “genuine student”, the delegate found the appellant had a study gap from 8 July 2010 to 26 September 2011. The delegate concluded that the applicant failed to meet the criteria for a grant of a Student (Temporary) (Class TU) (Subclass 572) visa set out in cl 572.223.

9        On 1 December 2011, the applicant applied for review to the Tribunal. On 21 June 2013 the Tribunal sent the appellant, through his migration agent, an invitation to appear before the Tribunal on 22 July 2013. The Tribunal invited him to supply, by no later than 15 July 2013, the following information to the Tribunal:

    a current certificate of enrolment for a registered course and evidence of any previous enrolments or academic achievements since arrival in Australia; and

    current evidence that the applicant satisfied the English language, financial capacity and other requirements set out in Sch 5A.

10        On 19 July 2013, for reasons which are not relevant to the issues on the application for leave to appeal, the applicant’s migration agent sought a postponement of the Tribunal hearing. That request was granted and, on 22 July 2013, the Tribunal wrote to the applicant to advise the hearing had been rescheduled to 30 August 2013. In that letter, the Tribunal repeated its invitation to provide documentary evidence of enrolment, English language and financial capacity, extending the deadline for provision of such documents to 23 August 2013.

11        Through his migration agent, the applicant provided some documentation to the Tribunal on 29 August 2013.

THE TRIBUNAL’S DECISION

12        The applicant attended the hearing at the Tribunal on 30 August 2013, accompanied by his migration agent. The applicant was assisted by a Telugu interpreter at the Tribunal, as he was before the Federal Circuit Court and on the application for leave to appeal in this Court.

13        At the hearing the Tribunal raised with the applicant its concerns that he had two significant study gaps, one of almost two years and another from November 2012 to August 2013. Since coming to Australia in 2009, the Tribunal observed, the applicant had managed to complete only one one-year diploma in 5 years. The Tribunal raised with the applicant its concerns he may not be a genuine applicant for entry and stay as a student.

14        The Tribunal also raised with the applicant the fact that the applicant had not provided any further evidence to demonstrate the requisite level of English language proficiency. It pointed out to the applicant that his 2008 International English Language Testing System (IELTS) test overall band score was only 5.0, and in the August 2013 IELTS test he produced to the Tribunal his overall band score remained at 5.0, which was not only below the required 5.5 in cl 5A404(a) but had not changed after five years of residence in Australia, indicating there had been no improvement in his English language skills over that time. Invited to respond, the applicant’s migration agent conceded the applicant did not satisfy this requirement.

15        The applicant asked the Tribunal for “another chance” because he had started another course. He also asked the Tribunal to adjourn the review so he could sit for another IELTS test. The Tribunal refused to adjourn the review, at least in part because of its opinion that the applicant did not meet the separate genuine student criterion in any event, due to his long periods without study in Australia. In that sense, even if the applicant obtained a subsequent test score of 5.5, the Tribunal’s lack of satisfaction about the “genuine student” criterion would lead it to affirm the delegate’s decision in any event.

16        At the conclusion of the hearing, the Tribunal gave an oral decision affirming the delegate’s decision. It delivered written reasons several days later, on 5 September 2013. In those reasons, it found:

The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223…

To meet this criterion, the applicant must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter.

…

In this case, the applicant holds a passport of India. The assessment level for the holder of such a passport for Subclass 572 … is assessment level 4: IMMI 11/011, 7 March 2011. In this case, the highest assessment level to which the applicant is subject is assessment level 4. The English language proficiency requirements for this assessment level for Subclass 572 are set out in Part 4 of Schedule 5A…

The applicant sought to rely on an IELTS test he completed on 3 August 2013, in which he achieved an overall band score of 5.0. However, cl.5A404(a) requires an overall band score of 5.5. Accordingly, the applicant does not meet the requirements of cl. 5A404(a).

Although the applicant sought an extension of time to sit another IELTS test, the Tribunal considered that he had been on notice since November 2011 that he did not meet the English language proficiency requirement. Further, the applicant had sat an IELTS test as recently as 3 August 2013, but was unable to achieve the required band score. In addition, the Tribunal had unresolved concerns about the applicant’s study history in Australia and, therefore, his ability to meet the requirements of cl.572.223(2)(a)(ii). Accordingly, the Tribunal did not wish to falsely raise the applicant’s expectations of a successful outcome by granting an extension of time. For these reasons, the Tribunal refused the applicant’s request for an extension of time.

The applicant did not give evidence that he met any of the other alternative methods of demonstrating his English language proficiency for the purposes of cl.5A404. On that basis, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to the requisite English language proficiency. Accordingly, the applicant does not satisfy the requirements of cl 572.223(2)(a)(i).

…

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

17        On 23 September 2013, the applicant applied for judicial review of the decision of the Tribunal in the Federal Circuit Court. The applicant’s grounds of review were as follows:

S.477, Judicial review can be lodged after 35 days after tribunal review has been finalised

I am not happy with tribunal decision, applying for judicial review for legitimate decision

I do have exceptional circumstances beyond the application lodgement previously

18        An affidavit was filed in support of his application, sworn by the applicant on 20 September 2013. In that affidavit the applicant reiterates ground 2 of his grounds of review, and states: “I really want to study in Australia, I can’t go to my home country without my qualification”.

19        On 20 November 2013, Registrar Caporale directed pursuant to r. 44.11 that the matter be set down for a show cause hearing under r 44.12 of the Federal Circuit Court Rules. On 28 April 2014, the Federal Circuit Court found the applicant had failed to raise an arguable claim for the relief sought, and dismissed the application: Vatti v Minister for Immigration and Border Protection [2014] FCCA 958. Her Honour stated:

The grounds, as set out in the Application before this Court, I accept at their highest seek impermissible merits review. The Tribunal had no discretion to take into account any “exceptional circumstances” as claimed by the Applicant, in finding that the Applicant did not satisfy cl.572.223(2)(a)(i) of Schedule 2 of the Regulations. No error is apparent in the approach taken by the Tribunal, and the Tribunal gave fulsome reasons as to its refusal of the Applicant’s request for an adjournment. That, in any event, was a matter for the discretion of the Tribunal member. The Tribunal was under no obligation to delay making its decision until after the Applicant had booked and undertaken a further IELTS test (Rahman v Minister for Immigration and Citizenship [2012] FCA 1312 at paragraph 49). Further, the Tribunal’s exercise of discretion to refuse to grant the Applicant additional time was not unreasonable, as submitted by counsel for the First Respondent, in the sense considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18.

APPLICANT’S NOTICE OF APPEAL

20        On 13 May 2014, the applicant filed with this Court a notice of appeal. As I have observed, it should be treated as a draft notice of appeal for the purposes of first, an application for extension of time and second, an application for leave to appeal. The proposed grounds of appeal are expressed in the following way:

The applicant visa 572 TU was refused by DIBP on the basis of student visa criterion under the Migration Act 1958; Applicant, PRADEEP KUMAR VATTI has lodged the application in timeframe before his visa expiry. As Department of Immigration And Border protection (DIBP) has information in its records that Applicant is not satisfying the 572 visa subclass criterion. However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent, according to that letter he has lodged the review at Migration review Tribunal. But tribunal says he is out of the time frame because of Tribunal has found the information in this regard that applicant has been notified by e-mail which wasn't received to applicant. Here, there is no mistake has been found from applicant side, it should haven't been. Differently, tribunal making his application as an invalid application for review. Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge HARTNETT has been misguided by solicitors of DIBP, it has been found by applicant on hearing date on 28/04/2014.

The applicant has not had any control of his situations which became very bad in Australia to provide reasons at Tribunal, but Migration Review Tribunal has made applicant ineligible to lodge the review application in Australia. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection)

Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier “Judicial review has been made which has not been provided by applicant to make it Valid application”, but he has exceptional circumstances beyond his control.

21        Filed with this document was an affidavit of the applicant, sworn 13 May 2014, in which he deposes:

I am not happy with decision made by Migration review Tribunal

(a) As well as DIAC decision

I am not happy with decision of Federal Circuit court of Australia

22        On its face, this affidavit bears the name of an appellant in another matter currently before this Court on appeal, who was represented by the same migration agent before the Tribunal as the present applicant. The text purporting to be the grounds of the appeal also bears a striking similarity to the text in two other notices of appeal currently before the Court Much of the text and the notice of appeal fails to disclose any understandable argument. Who was responsible for the content of these documents is unclear. The circumstances in which the applicant and the other appellants have come to rely on them and whether any breaches of the law, professional standards and ethics might be involved are matters of some concern to the Court. However, there is insufficient evidence for any conclusions to be drawn.

THE APPLICANT’S ARGUMENTS AT THE HEARING

23        The applicant submitted, on the hearing of the application for leave to appeal, that he had done the IELTS course and he thought it would be enough to extend his student visa. He accepted the Tribunal found the IELTS score was not enough and he accepted that he had study gaps. However, he stated that he wanted to try and get a visa to stay in Australia to complete his studies. As I explained to the applicant at the hearing of the appeal, these are not matters the Court can take into account.

EXTENSION OF TIME AND LEAVE TO APPEAL: APPLICABLE PRINCIPLES

24        The discretion conferred upon the Court to grant an extension of time is available in order to “do justice between the parties”: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. When an extension of time is sought for leave to appeal from an interlocutory decision, the prospects of success of the application for leave will be a significant factor: Deighton v Telstra Corporation Ltd [1997] FCA 1568. Leave will only be granted where the applicant is able to show a sufficient explanation for the delay (Croker v Philips Electronics Australia Ltd [2000] FCA 1731) and that substantial injustice or prejudice would ensue were leave to appeal not be granted, such that an extension of time should be given. In circumstances where the delay is minimal, such as in this case, an extension of time would usually be granted, unless the Court considered the appeal to be plainly hopeless: Ford v La Forrest [2002] 2 Qd R 44 at [4] per Thomas JA (McMurdo P and Cullinane J agreeing).

25        The discretion to grant leave to appeal conferred by s 24(1A) of the Federal Court Act is broadly expressed: see generally, DÉcor Corporation 33 FCR 397 at 399. In Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101, the Full Court stated (at [20]):

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

CONSIDERATION

26        Authorities may be found to support the general contention that matters such as ignorance of time limits, the fact of being unrepresented, or ignorance of court processes are insufficient explanations for non-compliance with a statutory time limit. It is preferable not to consider these matters at such a general level. I have explained elsewhere why I do not consider that to be a satisfactory approach, and why careful and particular analysis of the factual circumstances in each case should be undertaken: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203.

27        In this case, the delay of one day is very short. There is no evidence as to the explanation for the delay because it appears no-one had detected the applicant had filed his documents out of time and therefore no-one had alerted the applicant to the need to provide an explanation. He could not be expected to have realised this himself, in the circumstances. Since the applicant requires leave to appeal in any event, the merits of his proposed appeal and questions of prejudice can appropriately be dealt with at that stage. An extension of time should be granted.

28        As to the question of leave, in my opinion in this case the applicant’s appeal has no reasonable prospects of success. The Federal Circuit Court’s decision is not attended by doubt, let alone sufficient doubt. There is no substantial injustice to the applicant in refusing leave to appeal. Whether his contentions about the Federal Circuit Court’s decision and the Tribunal’s review are considered at the leave stage, or the appeal stage, the content of what he says is the same. None of his contentions, in his notice of appeal or submissions, provide any basis to suggest error in the Federal Circuit Court’s judgment nor in the Tribunal’s decision.

29        The Tribunal’s decision to affirm the delegate’s refusal to grant the student visa was ultimately based only on the failure of the applicant to provide evidence to meet the criterion in cl 572.223(2)(a)(i) and cl 5A404 concerning English language proficiency. The applicant has never that suggested the evidence he provided to the Tribunal was capable of meeting this criterion. It plainly was not capable. On that basis, the terms of s 65 of the Migration Act 1958 (Cth) required the Tribunal to affirm the refusal to grant the visa.

30        Rather, all the applicant could contend to the Tribunal and on appeal is that he should have been given an adjournment by the Tribunal so he could have another chance to sit a fresh IELTS test.

31        The Federal Circuit Court was correct to find that the applicant’s invocation of “exceptional circumstances” could not have affected the Tribunal’s consideration of whether he satisfied the criteria for the grant of a student visa, especially not whether he satisfied the English language proficiency criteria. What the applicant means in his notice of appeal by “exceptional circumstances” has never been explained, and there is no evidence he tried to explain to the Tribunal that he had any exceptional circumstances going to the grant of an adjournment or otherwise. There is no evidence the Tribunal denied him an opportunity to explain in more detail what those circumstances were, if he had wished to.

32        The Federal Circuit Court was correct to apply the High Court decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, and to identify in the Tribunal’s reasons an intelligible justification for its decision not to grant the applicant an adjournment so he could sit another IELTS test. As the Tribunal explained, the applicant had had opportunities to obtain a further English language test over two years. The Tribunal was entitled to rely, as it did, on the lack of improvement in his English in the five years between the two tests he did sit. Most critically, the Tribunal was not, in any event, satisfied the applicant was a genuine applicant for entry and stay as a student because of his very considerable study gaps. Compare the very different circumstances in the Full Court case of Minister for Immigration and Border Protection v Singh (2014) 39 ALD 50; [2014] FCAFC 1, in respect of the review of an IELTS score.

33        The application for leave to appeal from the Federal Circuit Court’s decision should be refused. There is no basis in the evidence for anything other than the usual orders as to costs to be made.

Associate:

Dated:    21 August 2014