FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 80

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal, and leave to appeal, filed on 25 September 2014 is refused.

2.    The Applicant pay the First Respondent’s costs of the application referred to in paragraph 1.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to seek leave to appeal from orders made by the Federal Circuit Court of Australia (FCC) on 1 September 2014 (Singh v Minister for Immigration [2014] FCCA 2047), and an application for leave to appeal from those orders.

2    The primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (MRT). The decision to dismiss the application was made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). That dismissal was interlocutory: r 44.12(2) of the FCC Rules. Leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

3    The applicant applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa on 29 March 2011 (visa). The applicant must meet certain criteria in order to be granted the visa: ss 31(3) and 65(1)(a) of the Migration Act 1958 (Cth) (Act), including the requirement set out in cl 485 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). The requirements included competent English: cl 485.215 of Sch 2 of the Regulations. At the time, reg 1.15C defined 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 this sub-subparagraph; 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 applicant is from India and did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand or Ireland. He was therefore required to demonstrate that he had achieved the requisite language test score. A delegate of the first respondent (Minister) refused to grant the applicant the visa on 22 May 2012 because the applicant did not have the required English language proficiency.

5    The applicant applied to the MRT for review of that decision by application received by the MRT on 8 June 2012. On 13 August 2013, the MRT wrote to the applicant and invited him to give evidence and present arguments at a hearing on 10 September 2013. That letter recorded that the MRT “notes to date you have not presented evidence that you meet the English language proficiency requirement (‘competent English’) for the visa”. The MRT asked the applicant to send evidence of any English language tests he had booked. The MRT also warned that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

6    The applicant did not attend the scheduled hearing. On 12 September 2013, the MRT proceeded under s 362B of the Act and affirmed the decision not to grant the visa. The MRT found that the applicant did not hold a passport of the type specified in relation to reg 1.15C(b). The MRT also found that the applicant had provided no evidence of having undertaken an IELTS test (or other test specified by the Minister) in which he achieved the required scores and that the applicant did not have competent English as defined in reg 1.15C(a)(i) or (ii). The MRT was not satisfied that the applicant had competent English and found that he did not meet the requirements of cl 485.215 of Sch 2, and so the requirements for the visa were not met.

Proceedings before the Federal Circuit Court

7    The applicant commenced proceedings seeking judicial review of the MRT decision in the FCC by application filed on 15 October 2013. The application was for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the MRT’s decision. The application identified the following ground:

1.    My visa is refused by MRT, u/s.65 of Migration Act, I am currently preparing for my IELTS and will submit, IELTS score of 6 each to the Honourable Court before hearing date.

I hereby request to honourable court to please consider my request and extend my application, so that I can get favourable result.

The application was accompanied by an affidavit in which the applicant repeated that ground, and annexed a copy of the MRT’s decision.

8    On 23 October 2013, the Minister responded that the application should be dismissed pursuant to r 44.12 of the FCC Rules because the application invited the Court to undertake a review of the merits of the MRT’s decision, the application did not establish any jurisdictional error in the MRT decision and the application did not raise an arguable case for the relief claimed.

9    On 18 December 2013, the applicant was ordered to file and serve any amended application including any additional grounds of review with complete particulars of each ground and any affidavits by 5 March 2014. Both parties were ordered to file written submissions. The Minister filed submissions but the applicant did not.

10    On 1 September 2014, the matter proceeded to a show cause hearing pursuant to r 44.12 of the FCC Rules. The applicant did not attend that hearing. The reasons of the primary judge recorded that, as at that day, the applicant had failed to provide to the Court any amended application or put forward any further grounds of judicial review: reasons at [7]. The primary judge recorded that the issue for determination at a show cause hearing was whether the application raises an arguable case for the relief claimed: r 44.12(1) of the FCC Rules and reasons at [3].

11    After considering the background of the matter, and the hearing before the MRT, the primary judge concluded that the applicant’s grounds (see [7] above) did not raise any arguable case but instead sought merits review which is not a function of the FCC: reasons at [16]. The primary judge noted that the results of an IELTS test undertaken after the MRT’s decision were not relevant to the identification by the FCC of jurisdictional error on the part of the MRT. The primary judge dismissed the application. Ex tempore reasons were given and Orders were made on 1 September 2014. Written reasons were delivered on 5 September 2014.

Application for an extension of time to seek leave to appeal and leave to appeal

12    The dismissal of the application by the primary judge was an interlocutory decision, and consequently leave to appeal is required: see [2] above. An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: r 35.13(a) of the Federal Court Rules 2011 (Cth). The application for an extension of time to seek leave to appeal and for leave to appeal was filed on 25 September 2014. It was 10 days late.

13    The application was supported by an affidavit affirmed by the applicant in which he explained “why the application for leave to appeal was not filed within time”:

I have been to federal circuit court for reopen the Judicial review Application as I have not attended previous guidelines hearing at Melbourne Registry. However, application was submitted without any hesitation. Without guidelines hearing, straight away on 1st September 2014, without hearing as I was sick and even no idea of the hearing at the hearing date.

All of sudden, judge has taken the decision without my attendance, with in hour without any arguments or oral statement for me case has been dismissed. What is the use of I am coming to Federal circuit court to appeal the Migration Review tribunal decision, no time for submission and no time given for even thinking. Applicant should wait for call, but court could take on me any time Immigration Lawyers want to have. It was totally unjust and unfair as well.

Here, I haven’t thought of Federal court has dismissed my case until I came to solicitors to know by showing the papers from the Federal circuit court. Money is also matter bring the appeal to Federal circuit court at Federal court, there is no money left on me, and totally broke and no one was giving me free service. In this manner my time wasted merely and finally I came to Federal circuit court in this regard to ask whether there is any solution for this. Officer said to me that I can lodge the Federal court review by requesting the fee waiver.

Someone say “Yes” others say “No”; I was totally confused and I could not lodge the review as my documents have not been prepared for lodgement. Besides I was sick with spinal cord ache and having some issues with girlfriend where I could not attend the Federal court to lodge the review application.

As I was having exceptional circumstances beyond my control to lodge the review application on the basis of lack of knowledge, financial hard ship and health issues encompassed me to this situation where I could not lodge the application.

14    The grounds of the application were described as follows:

The applicant visa 485 subclass was REFUSED by DIBP on the basis of IELTS is not submitted which is to 6.0 in each under the Migration Act 1958;It has been long time applicant is trying to get IELTS score which is for 6.0 in each in individual band.

One on other applicant is having situation where he could not sit IELTS test or attending the tribunals or Federal circuit court and federal court. However, Department has sent a letter to applicant regarding Refusal of visa through the migration agent; according to that letter applicant has lodged the review at Migration review Tribunal. Even applicant is intent to do further submission in regarding IELTS and other submissions. Here, there is no mistake has been found from Immigration side or applicant side, it was miscommunication

Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge Hartnett has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 15th October 2013, he is not known any information that Federal circuit court has been requesting the further amended affidavits to be submitted to the court.

In the Federal Circuit court decision showing that on 18th December 2013 Registrar Allaway made orders to submit applicant file and amended application including any additional grounds of review with complete particulars of each ground, applicant has not known any of these information. However, applicant has not been able to attend the hearing with health reason.

The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. 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 proved by applicant to make it Valid application”, but he has exceptional circumstance beyond his control.

15    The application was accompanied by a draft notice of appeal which listed the grounds of application (see [14] above) as the appeal grounds. The parties were ordered to file written submissions, however the applicant did not comply with this order. At the hearing, the applicant advised the Court that he wished to apply for a student visa, however it was explained that the Court could only deal with the application before it – for an extension of time in which to seek leave to appeal, and leave to appeal, from the orders of the FCC.

Consideration

Introduction

16    There are two aspects to this application. First, the delay in making the application, the reasons for that delay, any prejudice to the other parties: Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 at [24]-[25] and the authorities cited.

17    The second relates to the merits of the proposed appeal: whether the applicant for the grant of leave to appeal can demonstrate that:

(1)    In all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered by the Court; and

(2)    Substantial injustice would result if leave were refused, supposing the decision to be wrong:

Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [26]-[30].

18    Each aspect will be considered.

Delay, reasons for it and prejudice to the other parties

19    The delay in filing the application for leave to appeal is just a few days. The applicant has provided numerous reasons for it: see [13] above. The Minister accepted that the delay, and any prejudice from the delay, is minimal. If delay was the only consideration, then given the shortness of the period and the stated reasons, I would be minded to grant an extension of time for the applicant to seek leave to appeal. The problem for the applicant, in relation to the application for both an extension of time to seek leave to appeal and leave to appeal, is that he cannot satisfy the next aspect.

Whether decision attended by sufficient doubt and substantial injustice

20    The FCC decision is not attended by sufficient doubt to warrant it being reconsidered by the Court. The proposed grounds are difficult to understand. Taken at its highest, the proposed appeal grounds appear to suggest that the applicant could not sit an IELTS test and that he was intending “to do further submission in regarding IELTS and other submissions”. There are difficulties with that submission. The difficulties include the fact that the applicant did not provide evidence of “competent English” to the MRT, did not respond to the MRT’s request for that evidence and did not make any submissions to the MRT at the hearing or otherwise. The proposed appeal grounds also refer to the applicant not attending the FCC for health reasons but provide no details.

21    One aspect of the MRT’s decision should be noted. A number of legislative instruments have been made by the Minister under reg 1.15C of the Regulations:

(1)    IMMI 09/073, which commenced on 1 July 2009;

(2)    IMMI 11/036, which commenced on 1 July 2011 and revoked IMMI 09/073; and

(3)    IMMI 12/018, which commenced on 1 July 2012, revoked IMMI 11/036 and specifies certain requirements for applications lodged before 1 July 2012, and another set of requirements for applications lodged on and after 1 July 2012.

22    Legislative instrument IMMI 09/073 specified scores in accordance with the version of reg 1.15C that applied to the applicant’s visa application: see [3] above. It specified a test score of at least ‘B’ in each of the four components of an Occupational English Language test for the purposes of reg 1.15C(1)(ii)(A) and (B).

23    For visa applications lodged before 1 July 2012, both IMMI 11/036 and IMMI 12/018 relevantly specified an IELTS test score of at least 6 for each of the components of speaking, reading, writing and listening or an “OET” score of ‘B’ in each of its four components.

24    The MRT did not identify the correct instrument: see [11] of the MRT’s reasons. The primary judge in the FCC fell into error by adopting the MRT’s analysis of the relevant instrument. IMMI 12/018 was and is the legislative instrument applicable to the applicant’s visa application. That error does not however assist the applicant. It does not assist the applicant because the erroneous reference to IMMI 09/073 was not an error that went to the MRT’s jurisdiction. The MRT nevertheless asked itself the correct question. It was the correct question because the requirement for a visa applicant to have “competent English” (being whether the applicant had obtained the requisite score in either an IELTS test or an occupational English test) remained the same: cf Farook v Minister for Immigration and Border Protection [2014] FCA 1017. The substance of the law applied was correct.

25    The applicant’s proposed appeal grounds do not provide any foundation for an argument that the FCC was wrong to find that the application for review should have been dismissed or that the MRT was wrong to determine that the applicant did not satisfy the requirements of reg 1.15C and cl 485.215 of Sch 2 of the Regulations. The proposed appeal grounds seek merits review which is not a function of the FCC or this Court. There is no identifiable appellable error in the reasons of the primary judge to warrant a grant of an extension of time to seek leave to appeal or leave to appeal. The decision is not attended by sufficient doubt to warrant it being reconsidered by Court and therefore the question of substantial injustice if leave were refused, supposing the decision to be wrong, does not arise.

Conclusion

26    As noted above, although the delay in filing the application for leave to appeal is just a few days and reasons for that delay were provided, there is no identifiable appellable error in the reasons of the primary judge to warrant a grant of leave to appeal. For that reason, there is no utility in granting the applicant an extension of time to seek leave to appeal. The grant of the extension is not justified as the decision of the FCC is not attended by sufficient doubt and there is no substantial injustice.

27    The application for an extension of time to seek leave to appeal and for leave to appeal is refused. The applicant should pay the Minister’s costs of the application.

Associate:

Dated:    16 February 2015