FEDERAL COURT OF AUSTRALIA

Mann v Minister for Immigration and Border Protection [2015] FCA 65

THE COURT ORDERS THAT:

1.    The application 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    This is an application for an extension of time in which to apply for leave to appeal from orders made on 10 September 2014 in the Federal Circuit Court. That Court dismissed Mr Mann’s application to it for writs of certiorari and mandamus directed to the Migration Review Tribunal (‘the Tribunal’) on a summary basis under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Mr Mann requires leave to appeal to this Court because that order is taken to be interlocutory by r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth), and an appeal does not lie to this Court from interlocutory orders made by the Federal Circuit Court, except by leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). He requires an extension of time because such an application must be brought within 14 days of the pronouncement of the orders in the court below: see r 35.13(a) of the Federal Court Rules 2011 (Cth).

2    When the matter was called on for hearing, Mr Mann was not present. I am satisfied that he was aware that the matter was listed for hearing today. This is because there was placed before me by the Minister’s representative, Mr Speirs, two letters which were sent to Mr Mann at his address. Both of these letters indicated that the matter was listed at 2:15 today for hearing. The second of the letters is dated 3 February 2015, and it is apparent that it was sent by registered post by the Minister’s representatives. I was informed from the bar table by Mr Speirs when the matter was called on that shortly before it commenced, he had telephoned Mr Mann and Mr Mann had informed him that he would not be present today because he was feeling sick.

3    It would be possible in those circumstances for me to proceed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) to dismiss the proceeding due to the absence of Mr Mann. However, out of more abundant caution it is useful to consider the matter on its merits. Because leave is required, and because an extension of time is required, Mr Mann’s application must pass through the exercise of two discretions. The issues which are thrown up by those two discretions may, however, be concertinaed together. This is because, unless there is a reason to grant leave to appeal, there would be no point in extending the time in which to make that application. Consequently, Mr Mann’s application, or at least an assessment of its merits, devolves to a consideration of whether Mr Mann ought to be granted leave to appeal.

4    He will be granted leave to appeal if it appears that some error may have been made in the court below which, if not corrected, may lead to substantial injustice: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Bienstein v Bienstein (2003) 195 ALR 225. The Federal Circuit Court correctly recognised that it could not grant the relief which Mr Mann sought unless he first demonstrated that the Tribunal had committed a jurisdictional error. The Federal Circuit Court concluded, however, that no such error had been demonstrated by Mr Mann to exist. I agree.

5    Mr Mann had applied for a Skilled (Residence) (Class VB Subclass 885) visa (‘skilled visa’) on 14 February 2012. One of the requirements Mr Mann had to satisfy in order to be eligible for the skilled visa was that he had demonstrated competent English. This was required by cl 885.213 of Schedule 2 to the Migration Regulations 1994 (Cth). In addition, reg 1.15C of those regulations specifies when a person will be taken to have competent English in these terms:

‘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.’

(emphasis in original)

6    Mr Mann did not hold a passport of the kind referred to in subcl (b), so that that aspect of the definition had no application. He was therefore obliged, if he was to qualify for the visa, to proceed under the strictures of subcl (a). The text of subcl (a) contemplates that the Minister may specify particular kinds of tests for the determination of competence in English. In fact, the Minister has specified two such tests. These are the International English Language Testing System (‘IELTS’) test and the Occupational English Test (‘OET’) test.

7    The applicant’s application for the skilled visa was made on 14 February 2012, so that reg 1.15C required him to produce the results of either of those tests, provided they had been conducted after 14 February 2010. In his application, Mr Mann said that he had not undertaken such a test in the previous 24 months before the making of the application. If matters had rested there, this would have had the inevitable result that he was ineligible for the skilled visa. The delegate, perhaps unsurprisingly, rejected the application and on 8 February 2014 Mr Mann applied for a merits review before the Tribunal.

8    On 13 March 2014 the Tribunal, no doubt perceiving that Mr Mann’s application made it plain that he was not eligible for the skilled visa, wrote to him and requested that he provide evidence of competent English within the meaning of reg 1.15C within seven days. Mr Mann did not provide such evidence. The Tribunal then conducted an oral hearing on 14 April 2014. At that hearing Mr Mann informed the Tribunal that he had no test results with him, but that in 2011 he had gone to India and had undertaken the IELTS test there. He contended that the results were at his family’s home. They had moved house, apparently, but they would be returning to the house where the test results were shortly.

9    The Tribunal then determined to give Mr Mann a further two weeks to produce the results of that test, that is, until 28 April 2014. Mr Mann did not provide those results by that date and on 30 April 2014 the Tribunal affirmed the delegate’s earlier decision to refuse him the skilled visa. Mr Mann’s application for writs came before the Federal Circuit Court for hearing on 10 September 2014, at which time Mr Mann indicated that he needed further time to produce the IELTS test results from India. Of course by that time many months had passed. As the Federal Circuit Court correctly observed, the fact that he wanted more time now to provide IELTS test results was really beside the point. The real question was whether the Tribunal itself had erred in only giving him 14 days.

10    As that Court also correctly observed, the only issue was whether the Tribunal had committed any kind of error in requiring the applicant to produce the IELTS results with 14 days. The Federal Circuit Court thought that 14 days was a reasonable time. I agree. 14 days is more than enough time to get a set of test results from India to Australia. The Tribunal committed no error in fixing 14 days as the relevant time and the Federal Circuit Court made no error in reaching the same conclusion. In those circumstances, it will be apparent that the application for leave to appeal has insufficient prospects of succeeding to justify extending the time in which any such application might be brought. In those circumstances, the application for an extension of time will be dismissed with costs.

Associate:

Dated:    13 February 2015