FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 1297

THE COURT ORDERS THAT:

    1. The application for an extension of time lodged on 9 September 2014 be dismissed.

    2. The applicant pay the first respondent’s costs of and incidental to the application for an extension of time.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time within which to seek leave to appeal pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (“the Rules”). Leave to appeal will not be granted unless the decision the applicant wishes to challenge is attended with sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused supposing the decision to be wrong: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400. In this case, there is nothing to suggest that it is reasonably arguable that the decision the applicant wishes to challenge is wrong and the application for leave to appeal has no merit. In those circumstances, an application for an extension of time within which to seek such leave should be refused.

2    The decision which the applicant wishes to challenge was made by the Federal Circuit Court on 13 August 2014, and the applicant’s application for an extension of time was lodged on 9 September 2014. The period within which the application for leave to appeal must be made is 14 days (see r 35.13 of the Rules).

3    On 11 July 2012, the applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa. The applicant’s application was refused by a delegate of the Minister on 5 December 2012 on the ground that the applicant did not have the required English language proficiency (cl 485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) and reg 1.15C). On 21 December 2012, the applicant made an application to the Migration Review Tribunal (“the Tribunal”) for a review of the decision. On 11 November 2013, the Tribunal made a decision to affirm the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

4    The Tribunal referred to the definition of competent English in reg 1.15C:

1.15C    Competent English

(1)    A person has competent English if:

(a)    the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)    the test was conducted in the 3 years immediately before the day on which the application was made; and

(c)    the person achieved a score specified in the instrument.

(2)    A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

5    The Tribunal found that the applicant did not fall within the terms of sub-clause (2). The Tribunal noted that the delegate had reported that a check of the IELTS website showed that the applicant had achieved a score of 5 for listening, 4.5 for reading, 5.5 for writing, and 6.5 for speaking. Those scores were not the scores specified for each of the four test components. The Tribunal said that it was not satisfied on the evidence that the applicant had achieved the requisite scores in tests conducted in the three years immediately before the day on which the application was made.

6    The applicant made an application for judicial review to the Federal Circuit Court. On 20 December 2013, the Registrar made an order for an immediate hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The matter came on for hearing before a Federal Circuit Court judge. The judge noted that the application filed by the applicant did not identify any grounds of the application. He noted that the applicant had not indicated any proper basis for the order sought. He said that he had looked at the material to see whether there was any arguable case that was available to the applicant, and that he had come to the firm conclusion that there was not. In the circumstances, he considered that it was appropriate to make an order under r 44.12(1)(a) of the Federal Circuit Court Rules dismissing the application. By reason of r 44.12(2) of the Federal Circuit Court Rules, the order of dismissal is interlocutory and hence the need to obtain leave to appeal.

7    In the documents filed before the hearing this morning, the applicant accepted that she had not passed the appropriate tests, but she asked for more time to do so. She repeated that request this morning. Nothing was said to suggest that the Federal Circuit Court had erred in not holding that the Tribunal had committed a jurisdictional error (see Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [12]-[16] per Barker J; Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 at [27]-[28] per McKerracher J; and Patel v Minister for Immigration and Border Protection [2014] FCA 823 at [30] per Robertson J). The application for leave to appeal would be hopeless. In those circumstances, the application for an extension of time within which to seek leave to appeal should be refused.

8    The orders of the Court are that the application for an extension of time lodged on 9 September 2014 be dismissed, and that the applicant pay the first respondent’s costs of and incidental to the application for an extension of time.

Associate:    

Dated:    5 December 2014