FEDERAL COURT OF AUSTRALIA

Bedi v Minister for Immigration and Border Protections [2014] FCA 1197

THE COURT ORDERS THAT:

1.    The appellant’s appeal be treated as an application for leave to appeal.

2.    The application for leave to appeal be refused.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is a purported appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”): see Bedi v Minister for Immigration and Border Protection & Anor [2014] FCCA 1660. The Tribunal affirmed the decision of the first respondent (“the Minister”) not to grant the appellant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2    The Federal Circuit Court dismissed the application for judicial review at a show cause hearing pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Although it has not been sought by the appellant, leave is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the decision is interlocutory in nature: see r 44.12(2) of the Rules.

BACKGROUND AND THE LEGISLATION

3    The appellant is a national of India. He first arrived in Australia in January 2008 with a Class TU Student visa. On 8 June 2010 he applied for a Skilled (Provisional) (Class VC) visa (“Skilled visa”). At that time, the Skilled visa contained two subclasses: 485 (Skilled – Graduate) and 487 (Skilled – Regional Sponsored). The subclass relevant to the appellant was Subclass 485, the criteria for which are set out in Part 485 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 485.215, as it then was, contained one of the mandatory requirements for the grant of the visa. It required that “[t]he applicant has competent English.” Regulation 1.15C(a) set out the requirements for ‘competent English’ as follows:

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

(a)    has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(i)    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

(ii)    a score:

(A)    specified by the Minister in an instrument in writing for the sub-paragraph; and

(B)    in a language test specified by the Minister in the instrument; or

(b)    holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.”

4    The appellant indicated on his visa application that he had not undertaken the relevant English test within the last two years.

5    On 20 March 2012 a delegate of the Minister refused to grant the appellant a Skilled visa on the basis that the appellant did not satisfy reg 1.15C(a) as he failed to provide IELTS or other test results as evidence of his English competence. He also failed to satisfy reg 1.15C(b) as he did not hold a passport of a type specified by the Minister.

THE TRIBUNAL’S DECISION

6    On 26 March 2012, the appellant applied for review of the delegate’s decision by the Tribunal.

7    The issue before the Tribunal was whether the appellant had competent English as required by cl 485.215. The Tribunal wrote to the appellant pursuant to s 359 of the Act seeking evidence of his English competence. The appellant failed to provide the information requested. By reason of ss 359C(1) and 360(3) of the Act, the appellant was no longer entitled to appear before the Tribunal. The Tribunal affirmed the decision under review.

THE FEDERAL CIRCUIT COURT’S DECISION

8    The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court on 15 November 2013. He raised two grounds. They were that:

“1.    I am not satisfy with the decision, I was expecting a trial in the Court where I could explain myself.

2.     I am very close to get my English IELTS 6 each.”

9    Judge Jones found that there was no jurisdictional error on the part of the Tribunal. The appellant’s failure to provide information requested pursuant to s 359(2) of the Act engaged ss 359C(1) and 360(3) disentitling the appellant from appearing before the Tribunal.

10    In relation to the second ground her Honour noted that the appellant being close to achieving the requisite IELTS result was “neither here nor there.” The appellant admitted that he did not have the requisite IELTS score for the purposes of demonstrating ‘competent English’ before or at the time of the Tribunal’s decision.

11    The Court dismissed the application for judicial review.

THE APPEAL PROCEEDINGS

12    The appellant’s notice of appeal appears to raise four grounds. They are:

(1)    The Minister refused the appellant’s application for a Skilled visa without providing him with sufficient time to organise the IELTS test;

(2)    The Tribunal did not provide the appellant with enough time to provide submissions in support of his application;

(3)    The Federal Circuit Court was misled by the solicitor for the Minister; and

(4)    There has been “false and misleading evidence and manifest error.”

13    The appellant filed submissions in support of his application. He conceded that there has been no error on the part of the Tribunal or the Federal Circuit Court.

14    The appellant submitted that he was not aware that he was required to demonstrate his English competence by providing IELTS test results together with his visa application. Accordingly, he submitted his visa application before he had achieved the relevant test result. The appellant referred to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, in which the High Court held that a visa applicant can rely on an IELTS score achieved two years prior to the visa application and also during the decision-making process: see at [24]-[27].

15    The appellant sat the IELTS test 17 times. He did not achieve the requisite result until well after the Minister determined to refuse the visa. The Minister is not required to delay making a decision because the appellant might, or had told the Minister that he intends to provide further information: see s 55(2) of the Act. The Tribunal had regard to and correctly applied the decision in Berenguel.

16    The appellant also referred to Gajjar v Minister for Immigration and Citizenship (2013) 141 ALD 236. This decision considered the application of s 57 of the Act which is not of present relevance.

17    In his written submissions, the Minister opposed the granting of leave to appeal and contended that there was nothing in the appeal grounds which suggested that the Federal Circuit Court’s decision was “attended by sufficient doubt to warrant reconsideration.”

18    The Court has a broad discretion to grant leave to appeal. The exercise of this discretion requires consideration of the factors established in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399.

19    One important consideration in the exercise of the discretion is the appellant’s prospects of successfully prosecuting an appeal should leave be granted. In the absence of such prospects leave should not normally be granted: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

20    It is first to be observed that none of the grounds appearing in the appellant’s notice of appeal (save, perhaps, the third) alleged any appealable error on the part of the Federal Circuit Court.

21    The first ground of appeal invites the Court to undertake merits review of the Tribunal’s decision. It is not within this Court’s jurisdiction to undertake such a task.

22    Ground 2 alleges that the Tribunal fell into error by denying the appellant procedural fairness. This was alleged to have arisen by the Tribunal’s failure to provide the appellant with “enough time to provide submissions in support of his application.” I do not accept this complaint. The proceeding before the Tribunal commenced on 26 March 2012. The Tribunal made findings on 7 November 2013. The appellant had more than 18 months within which to provide the Tribunal with evidence of his IELTS results. The appellant was granted two extensions within which to provide the material and the Tribunal made it clear that it would proceed to determine the application if the material was not provided within the relevant period.

23    The third ground asserts that the Federal Circuit Court was misled by the solicitors for the Minister. The appellant did not provide particulars of this ground in his notice of appeal. At the hearing this morning the appellant withdrew any suggestion that he had been misled by the Minister’s solicitors. He said that the substance of his complaint was that he had not understood the Tribunal’s processes when he appeared before it.

24    The fourth ground alleges “false and misleading evidence” had been given to the Tribunal and “manifest error” on its part. Again, the appellant did not particularise this ground in his notice of appeal. In oral submissions the appellant withdrew these allegations. He said that he had been given some misleading advice by his migration agent about how to prosecute his applications and appeal. When asked he was unable to be more specific about the nature of this advice.

25    None of these grounds, as clarified, could have established appealable error on the part of the Federal Circuit Court.

26    It is also notable that the applicant, in the Federal Circuit Court, effectively conceded that the decision to refuse his application for a visa was justified because he did not meet the competency requirement in the English language. The trial judge recorded (at [19]) that:

“The applicant agreed, in his submissions today, that in fact he does not and did not have at the time of the Tribunal hearing, competent English within the meaning of the Act. He says that he is very close to getting it. He has some tests to complete. He understood that a criteria [sic] for the visa that he sought was that he have competent English and he conceded that he did not have so [sic] at the time of the Tribunal hearing. He said that he was advised by his migration agent to make this application for judicial review.”

27    In these circumstances there would be no point in granting the applications for an extension of time or for leave to appeal.

disposition

28    The applicant has not been legally represented. I am, therefore, prepared to treat his notice of appeal as an application for leave to appeal. For the reasons given leave to appeal should be refused with costs.

Associate:

Dated:    7 November 2014