FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 81

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal filed on 30 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 appeal from orders made by the Federal Circuit Court of Australia (FCC) on 2 September 2014 dismissing an application for judicial review of the decision of the Migration Review Tribunal (MRT): Singh v Minister for Immigration [2014] FCCA 2068. The FCC affirmed a decision of the MRT made on 21 November 2013 not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa (visa).

BACKGROUND

2    The applicant applied for the visa on 13 May 2011. The applicant had to 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 cl 485 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). One mandatory criterion for the grant of the visa was that the applicant has “competent English”: cl 485.215 of Sch 2 of the Regulations.

3    At that 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. He 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. In his visa application, the applicant stated that he had not undertaken an English test within the last 24 months. On 22 March 2012, the applicant was requested to provide evidence of his English language ability. He did not do so.

5    A delegate of the first respondent (Minister) refused to grant the visa on 20 April 2012 because the applicant had not supplied any evidence of his English language ability, and as such, the delegate was not satisfied that the applicant had competent English as prescribed in the Regulation.

6    The applicant applied to the MRT for review of that decision by application dated 7 May 2012, which the MRT received on 8 May 2012. On 18 June 2013, the MRT wrote to the applicant, care of his nominated representative, inviting the applicant to provide evidence in writing that he met the definition of “competent English” in reg 1.15C. The letter stated that the information should be received at the MRT by 25 July 2013, and advised that if the information could not be provided before that time, the applicant could ask the MRT for an extension of time in which to provide that information.

7    On 22 July 2013, the applicant’s representative advised that the applicant had booked an IELTS test on 3 August 2013, and requested an extension until the result of the test was available. On 22 July 2013, by letter and covering email, the MRT extended the deadline until 16 August 2013. In the letter, the MRT advised that if it did not receive the information requested by that time, it may make a decision on the review without taking any further action to obtain information, and the applicant would lose any entitlement he might have had to appear before the MRT to give evidence and present arguments. The covering email confirmed:

The Presiding Member has agreed to grant a further extension of a prescribed period, but it is of the view that no extension to respond is legally possible. Failure to provide the requested information by the new due date will result in the applicant losing his right to a hearing.

8    On 16 August 2013, the applicant’s representative wrote to the MRT and advised that “the applicant could not complete his test on 03rd August due to his medical condition”. The representative provided a medical certificate certifying that the applicant was “unfit for his usual normal occupation” from 2 August to 5 August 2013, an invoice from the doctor, a treatment plan and a copy of a new IELTS test booking for 17 August 2013. The representative also provided a note from the IELTS test centre signed by the applicant on the test day which recorded “During Test Time, I have sick so I [unclear] not able to sit in Test. I am leaving after listening Test”.

9    On 20 August 2013, the MRT advised that “no further formal extension of time” was possible and that the applicant had lost his entitlement to a hearing as he had not provided the information by the deadline. However, in light of the advice that the applicant sat an IELTS test on 17 August 2013, the MRT agreed to defer its decision until the week beginning 2 September 2013. The MRT stated that the applicant should provide the test results as soon as possible.

10    On 5 September 2013, the MRT wrote to the representative advising that it still had not received the test results and that the MRT would make a decision in the week commencing 9 September 2013. The MRT advised that the applicant should provide the MRT with his results by that date or the MRT would have to make a decision based on available evidence only.

11    On 25 September 2013, the MRT invited the applicant to appear before the MRT at a hearing on 20 November 2013:

The [MRT] had previously formed the view that you lost your entitlement to a hearing after you failed to provide the information requested in the [MRT’s] letter of 18 June 2013 by the due date (as extended at your request).

However, the [MRT] considers that you did respond by stating that you were to undertake an IELTS test on 3 August 2013 (despite the fact that you did not complete this test). Therefore it has decided to invite you to a hearing.

In that letter, the MRT noted that it had considered the information before it but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the MRT to give evidence and present argument relating to the issues arising in his case. The letter also requested that any additional documents or information be provided to it by 13 November 2013, and that the applicant return a ‘Response to hearing invitation’ form. The MRT further advised that if the applicant did not attend the hearing, the MRT might make a decision without taking any further action to allow or enable the applicant to appear before it.

12    The applicant did not provide further information, did not respond to the hearing invitation, did not attend the hearing on 20 November 2013 and did not seek any adjournment of the hearing. On 21 November 2013, the MRT affirmed the decision not to grant the visa as it found that the applicant did not have competent English, as prescribed in the Regulations. The applicant had failed to provide evidence of having undertaken a relevant English test.

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

13    On 13 December 2013, the applicant filed an application in the FCC seeking judicial review of the MRT’s decision. The application was for an order that the respondents show cause why a remedy should not be granted in exercise of the FCC’s jurisdiction under s 476 of the Act in respect of the MRT’s decision. The grounds of the application were:

1.    I have applied for subclass 485 visa on 13.05.2011, with relevant documents, only IELTS was missing and delegate refused my visa on 20/05/2012.

2.    I have applied to [MRT] on 08/05/2012 to consider my application, and submitted document, Honourable refused my application stating tat (sic) I haven’t met requirement of cl.485.215, but I explained why this happened.

3.     I have applied for IELTS exam during this period and booked my date also on 03/08/2013, but I was sick that time and wasn’t able to attend exam, and due to this I haven’t received my IELTS result, attaching you all the documents for your reference. I will attend IELTS exam soon and will produce the result to honourable court at earliest.

I hereby humbly request you to please consider my application and grant me visa.

14    On 7 January 2014, the Minister opposed the application for an order to show cause on the grounds that:

the [MRT] decision dated 21 November 2013 is not affected by jurisdictional error and is therefore a privative clause decision within the meaning of s 474(2) of the Migration Act 1958. The [MRT’s] decision, therefore:

(a)    is final and conclusive;

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

15    By consent of the parties, on 5 March 2014, the show cause hearing was dispensed with, and the application was listed for final hearing. The applicant was ordered to file and serve an amended application, if any, a supplementary court book, if any, and written submissions. The Minister was also ordered to file and serve written submissions.

16    The final hearing in the FCC took place on 2 September 2014. Ex tempore reasons were given and orders were made on that day. Revised written reasons were provided on 5 September 2014. After outlining the history of the matter, the primary judge turned to consider the applicant’s grounds, at [20]-[21] of her reasons, under the heading “Consideration”:

The Applicant has not particularised any proper grounds of review in his application. The Tribunal’s decision was not affected by jurisdictional error. The Tribunal’s decision was the only one open to it on the evidence before it. The Tribunal had clearly put the Applicant on notice that he was required to demonstrate competent English for the purposes of Regulation 1.15C of the Regulations. The Tribunal had gone to some lengths to make that position clear to the Applicant. The Tribunal had granted the Applicant a number of opportunities to provide the necessary evidence. The Applicant failed to provide any such evidence. The failure of the Applicant to give the evidence necessary, as required by Regulation 1.15C of the Regulations, was dispositive of his application for review before the Tribunal.

The Tribunal complied with its obligation under s.360 of the Act to invite the Applicant to a hearing. The Tribunal is empowered by s.362B of the Act to exercise its discretion to make a decision without taking any further steps to allow or enable the Applicant to appear before it. There is nothing in the decision that suggests a failure to afford procedural fairness to the Applicant, nor any decision or conduct of the Tribunal that would lead to the decision being attended by jurisdictional error. The application is entirely without merit.

17    The FCC dismissed the application for review, with costs.

APPLICATION FOR EXTENSION OF TIME TO APPEAL

18    Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) requires that an appellant file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or orders made. The decision of the FCC and the orders were made on 2 September 2014: see [16] above.

19    This application for an extension of time in which to appeal from the FCC’s decision was filed on 30 September 2014. It was accompanied by an affidavit made by the applicant which provided the following reasons “why the application for notice to appeal was not filed with in time”:

1.     Case was dismissed on 2nd September 2014, however, I have no idea to lodge further appeal in Federal court and even about time frame to lodge the notice of appeal application in the time frame of 14 days. However, I have struggled a lot in Australia for my education and then after I have paid lot of money for lawyers and peripherals in Australia.

2.     Due to wrong address and lack of knowledge I have been scooped in to wrong hands and ended up with this situation where I have been roaming around with courts. Finally, I have spoken with lot of lawyers in this regard, everyone was asking AUD 7600.00 or more, that is the reason I was keep going to other lawyers to lodge the Federal court application for notice of appeal.

3.     Lack of knowledge and financial hard ship were mina factors behind my failure to lodge the application of notice of appeal.

20    The appeal grounds were identified as follows:

I have been to federal circuit court for judicial review where I have brought the application from Migration review tribunal as tribunal has affirmed not to grant the 485 visa subclass. There are such grounds Tribunal has made to affirm the decision not to grant my visa The applicant visa 485 subclass was REFUSED by DIBP on 20th April 2012 on the basis of applicant has not had competent English, at the time of the application there was strong myth from Immigration officers sitting at Melbourne Regional office, Migration agents and other peripherals that applicant can apply for 485 Subclass by providing with IELTS test reference no. Therefore, applicant has applied the application with somebodies help, somebody is a migration agent or legal representative not yet known to applicant till now.

Applicant has been in Australia for seven years and studied for three years, in Australia working for six years as part time and full time, on-off employee in English speaking atmosphere. Tried for many times to get IELTS score but applicant has been failed to achieve IELTS score with unknown reason.

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 12th December 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 02 September 2014 Justice Hartnett 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 by email or by mail, other party defendant (clayton Utz lawyers) have not informed any information about submissions, I came to Federal circuit court for hearing and Judge has dismissed with reason of no submission.

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?

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.

21    The affidavit made by the applicant included the following “facts on which the application relies”:

1.    Application relies on Migration act 1958, according to Migration Regulations 1994, For applications made on or after 1 January 2010 clause 485.215 require that at the time of visa application the applicant have competent English. 1.15 C is crucial here and

2.     Amendment was in effect of the High Court in Berenguel, applicants for this visa subclass have until the time of visa decision to provide evidence of their English language ability.

3.     But applicant argument is “what is the time of the decision? What is the processing period of 485 Subclass? When can case officer make decision on the visa applicant?” applicants have been waiting for more than year sometimes they used to take more than two years as well”, here my case has been opened and decided in April 2012. Therefore, if there is an exceptional circumstance at the time of the decision offcourse applicant entitled to get the extension to submit the IELTS score card.

22    The affidavit also included paragraphs under the heading “Why the application for leave to appeal was not filed within time”. However, as leave is not required to appeal from the decision, these paragraphs can be left to one side.

23    The application was accompanied by a draft notice of appeal which listed the grounds of application as the appeal grounds: see [20] above. The only difference was that the first paragraph in the notice of appeal commenced with the words “The applicant visa 485 subclass was REFUSED by DIBP”, and omitted the preceding text that was included in the grounds of application.

24    By orders dated 6 October 2014, the applicant was required, amongst other things, to file and serve a written outline of submissions in support of his application for an extension of time, and in support of any appeal were an extension of time granted, at least ten business days before the hearing date. The applicant did not file any submissions.

25    At the hearing, the applicant clarified that his “grounds” of application and appeal were limited to those set out in his draft notice of appeal.

CONSIDERATION

26    The principles to be considered in an application for an extension of time are well established: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. Six factors were identified as guiding the exercise of the Court’s discretion in determining whether an extension of time should be granted:

(1)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored;

(2)    There must be some acceptable explanation for the delay;

(3)    Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension;

(4)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension;

(5)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted; and

(6)    Considerations of fairness as between the applicants and other persons otherwise in a like position.

See also SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] and Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 at [24]-[25].

27    First, the delay in filing the application for an extension of time was not significant and the applicant provided an explanation for the delay. In his affidavit made 30 September 2014, the applicant refers to a lack of knowledge and financial hardship, as the main reason for the delay. The applicant also referred to seeking legal advice in relation to the appeal from a number of lawyers. If delay was the only factor, I would have been minded to grant the extension of time.

28    However, the applicant faces an insurmountable hurdle. There is no identified or identifiable appellable error in the reasons of the primary judge and therefore there is no merit in the appeal (if one was brought).

29    The primary judge did not err in finding that the MRT’s decision was open to it on the material before it and that the decision was not affected by jurisdictional error: see [16] above. That conclusion was not surprising. The MRT found, and there is no identifiable error in that finding, that the applicant did not satisfy cl. 485.215 in Pt 485 of Sch 2 to the Regulations because:

(1)    The applicant did not hold a passport specified for the purposes of reg 1.15C(b) of the Regulations;

(2)    There was no evidence that the applicant had sat an OET or IELTS English test in which he had achieved the required scores; and

(3)    It could not be satisfied that the applicant had competent English, as defined in reg 1.15C.

30    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.

31    Legislative instrument IMMI 09/073 specified scores in accordance with the version of reg 1.15C that applied at the time the applicant originally made the visa application: see [2] and [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).

32    The applicable legislative instrument was then changed. Legislative instrument IMMI 09/073 was revoked. 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.

33    The MRT did not identify the correct instrument: see MRT’s reasons at [17]ff. It referred to IMMI 09/073 when, in fact, IMMI 12/018 was and is the legislative instrument applicable to the applicant’s visa application. The primary judge in the FCC fell into error by adopting the MRT’s analysis of the relevant instrument. 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” (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.

34    In the present case, the MRT’s decision was not affected by jurisdictional error and the FCC was correct to order that the review application be dismissed. The Federal Court can, on appeal, exercise its powers if it is satisfied that the orders the subject of the appeal are the result of some legal, factual or discretionary error on the part of the FCC. Where the Federal Court is satisfied that such error exists, it may give the judgment that, in its opinion, should have been given at first instance: cf s 28(1)(c) of the Federal Court of Australia Act 1976 (Cth). Here, despite the FCC’s reference to and reliance upon the wrong legislative instrument, the orders are not the result of some legal, factual or discretionary error on the part of the FCC that would provide any basis for this Court to interfere with those orders. The primary judge noted that the criteria may be satisfied at any time prior to the date on which the application is decided: see [5] and [6] above and Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 at [25]-[26]. The primary judge did not err in finding that the applicant had failed to provide any evidence to the MRT that he had competent English, as required by reg 1.15C of the Regulations: see [16] above. The substance of the law applied by the FCC was correct.

35    The applicant faces another difficulty. The MRT’s findings in relation to the applicant’s claim were findings of fact and were a matter for the MRT: see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[67]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

36    Finally, it is necessary to consider the FCC’s finding that the MRT complied with its obligation under ss 360 and 362B of the Act: Singh v Minister for Immigration [2014] FCCA 2068 at [21]. There is no appellable error in that finding. The MRT complied with its procedural fairness obligations under the Act. In the circumstances of this matter, it was entitled to proceed to make a decision without taking any further action to allow or enable an applicant to appear, in accordance with s 362B(1) of the Act: see also SZOZO v Minister for Immigration and Citizenship [2011] FCA 944 at [21].

CONCLUSION

37    The primary judge’s decision was not infected by any legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]-[14].

38    The application for an extension of time for leave to appeal that decision is refused. Any appeal would be futile. If, contrary to the view formed, the applicant should have been granted an extension of time in which to appeal, that appeal would have been dismissed for the reasons set out at [28]-[36] above. The application is dismissed with costs.

Associate:

Dated:    16 February 2015