FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 87

THE COURT ORDERS THAT:

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

2.    The first 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

INTRODUCTION

1    This is an application for an extension of time to seek leave to appeal and leave to appeal from orders made by the Federal Circuit Court of Australia (FCC) on 24 July 2014 dismissing an application for judicial review of a decision of the Migration Review Tribunal (MRT): Singh v Minister for Immigration [2014] FCCA 1880. The MRT found it had no jurisdiction under the Migration Act 1958 (Cth) (Act) to review the decision made by a delegate of the Minister refusing the applicants’ visa application as the applicants had filed their application for review outside of the prescribed period.

2    The FCC decision to dismiss the application was made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Rule 44.12(2) of the FCC Rules provides that dismissal was interlocutory. As such, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicants now seek an extension of time in which to seek leave to appeal and leave to appeal from those orders made by the FCC.

BACKGROUND

3    The applicants are citizens of India. On 21 November 2012, the first applicant applied for a Skilled (Residence) (class VB) subclass 885 (Skilled - Independent) visa (Visa Application). The first applicant, who is the principal applicant, lodged the Visa Application on behalf of himself and the second applicant, his wife.

4    The criteria to be satisfied at the time of application for a Skilled (Residence) (class VB) subclass 885 (Skilled - Independent) visa (Visa) include those set out in cl 885.21 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). One of the essential requirements was that the applicant had competent English: cl 885.213 of Sch 2 of the Regulations.

5    At the time of the Visa Application, reg 1.15C of the Regulations defined “competent English” as follows:

(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.

6    In the Visa Application, the first applicant stated that he had completed an English test on 4 August 2012 (within the last 36 months), that his level of English was “competent” and provided a test reference number. However, he provided no results of that test. On 21 November 2013, a delegate of the first respondent (Minister) refused the Visa Application on the basis that the first applicant did not meet the criteria set out in the Migration Act 1958 (Cth) (Act) and the Regulations. The reasons of the delegate record that, at the time of the decision, the first applicant had not provided the Minister with evidence that he had competent English. Absent that evidence, the delegate was not satisfied that the first applicant met the requirements for the grant of the Visa.

7    On the same day, 21 November 2013, pursuant to s 494B(5)(b) of the Act, the first applicant was emailed a copy of the delegate’s decision. The email address used was the address provided in the Visa Application. The first applicant later told the FCC that he received the decision on that day: reasons at [4].

8    On 17 December 2013, the applicants applied to the MRT for review of the Minister’s decision to refuse to grant the Visa (MRT Review Application).

9    The decision by the Minister to refuse the visa was an MRT-reviewable decision: s 338(2) of the Act. Pursuant to s 347(1)(b)(i) of the Act, an application for review by the MRT must be given to the MRT within the prescribed period, being a period ending not later than 28 days after the decision under review. Regulation 4.10(1)(a) provides that the relevant prescribed period is 21 days after notification of the decision. An email is taken to have been received at the end of the day on which it is sent: s 494C(5) of the Act. Accordingly, the applicants were taken to have received the Minister’s decision on 21 November 2013. The MRT Review Application should have been filed by 12 December 2013. The applicants were five days late.

10    On 23 December 2013, an officer of the MRT wrote to the applicants advising them that she was “of the view that [the] applications [were] not valid as they were not lodged within the relevant time limit”. The applicants were invited to make any comments on whether a valid application for review had been made. The MRT officer stated that the MRT Review Application and any comments made would then be referred to a member of the MRT to make a decision.

11    The first applicant responded on 20 January 2014 stating that he had difficulties with his migration agent and suffered from medical issues at the relevant time. He attached supporting medical documents.

12    On 28 January 2014, the MRT determined that it did not have jurisdiction in the matter. The MRT determined that as the MRT Review Application was not received by the MRT within time, it was not made in accordance with the requirements of the legislation. The MRT further noted that it had no discretion to extend the time within which a valid application for review must be lodged.

PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

13    An application was made to the FCC on 18 February 2014 seeking judicial review of the MRT decision (FCC Review Application). The grounds of the FCC Review Application were:

1.    S.447, Judicial review can be lodged within 35 days after tribunal review has been finalised

2.    I am not happy with tribunal decision, applying for judicial review for legitimate decision

3.    I do have exceptional circumstances beyond the application lodgement previously

4.    I have missed the time frame to apply the review at Migration Review Tribunal

5.    I don’t have hope that Tribunal will accept my application as valid application, please see my MRT application receipt

The FCC Review Application was supported by an affidavit sworn by the first applicant stating that he was “not happy with the Delegate Decision from Department of Border protection, Applying for Judicial review for legitimate Decision” and that he had “exceptional circumstances beyond the application lodgement previously”.

14    The Minister submitted that the FCC Review Application should be dismissed as the decision under review was not affected by jurisdictional error.

15    On 24 July 2014, the matter proceeded to a show cause hearing pursuant to r 44.12 of the FCC Rules. Rule 44.12(1) relevantly provides:

At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; ...

16    At that hearing, the first applicant relied upon a number of medical certificates “indicating that the first applicant was unwell at the relevant time”: Singh v Minister for Immigration [2014] FCCA 1880 at [9]. An International English Language Testing System (IELTS) Test Report dated 1 February 2014 was also provided to the Court. That test result evidenced competency in English but it was provided too late.

17    Section 347 of the Act provides that an application for review must be given to the MRT within the prescribed period (being a period ending not later than 28 days after notification of the decision). The period prescribed is 21 days: reg 4.10(1)(a) of the Regulations. The MRT must review an application “properly made”: s 348(1) of the Act.

18    The primary judge considered the time constraints prescribed by the Act and the Regulations: [10]-[13] of the reasons. The primary judge found that the MRT had correctly calculated the deadline for any application to be made to the MRT as 12 December 2013. The primary judge found that the Review Application had been lodged out of time and the MRT was correct to find that it had no jurisdiction.

19    The primary judge addressed the question of whether the first applicant had competent English at [14]:

[T]he court is not able to take into account his recently obtained test score and there is nothing to be gained by remitting the matter to the [MRT] because the [MRT] will not be able to take into account the first applicant’s recently obtained IELTS test score. The requirement was that the test be satisfactorily undertaken in the three years prior to lodging the application with the Department. So, although the applicant was only a few days late with his application to the [MRT] and although he might now satisfy the IELTS requirements, it can make no difference to this particular case.

20    For those reasons, the primary judge was not satisfied that the first applicant had an arguable case and dismissed the FCC Review Application pursuant to r 44.12 of the FCC Rules. Ex tempore reasons were given and Orders were made on 24 July 2014. Written reasons were delivered on 21 August 2014.

APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AND LEAVE TO APPEAL

21    The primary judge’s decision was interlocutory and the applicant requires leave to appeal: see [2] above. An application for leave to appeal is to 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).

22    The applicants filed an application for an extension of time to seek leave to appeal and leave to appeal in this Court on 1 September 2014. That application was supported by an affidavit sworn by the first applicant on 14 August 2014 in which he stated he was “not happy” with the Minister’s decision, the MRT’s decision, or the primary judge’s decision. The first applicant stated that he thought he had 21 days to file the application with the Federal Court after the decision because “there are always 28 days to appeal when the case is refused”.

23    However, the documents lodged on 1 September 2014 were not the first documents filed by the applicants in the Federal Court in relation to the MRT’s decision and the decision of the FCC. On 14 August 2014, the applicants filed a draft notice of appeal in VID 472 of 2014. In error, the document was accepted for filing. VID 472 of 2014 was discontinued on the basis that the Registry had erroneously accepted the draft notice of appeal for filing. The significance of this event is that if the applicants had filed the correct form on 14 August 2014 (21 days after the orders were made), they still would have been out of time.

24    The draft notice of appeal, provided in this proceeding, states the following “grounds”:

The applicant visa 885 subclass was REFUSED by to Immigration Department & border protection (DIBP) on the basis of genuine temporary entrant requirement, by delegate under the Migration Act 1958; I came to Australia in 30th April 2007 on 572 subclass which student visa. According to situation of my education in Australia, I have finished my Diploma of hospitality Management, it has been finished in July 2009. This is how I am eligible to apply for 485 subclass visa on the basis of previous qualification in Australia, gradually when my 485 visa subclass is finishing with migration agent advice I have applied the 885 subclass before my visa expires. But only one problem was IELTS test criterion, I have applied 885 subclass with booking reference no, this was known valid requirements to lodge the application in 21st November 2012.

Having regard to the onshore visa application under the 885 visa criterion, I am eligible to apply the 885 subclass by satisfying the criterion of schedule 1. So, I have really astonished myself as Department comes and refuse the application without giving time frame to provide the documents and reason behind the IELTS booking reference no given to the department at the time of the application. Refusal of DIBP has turned my situation in to chaotic situation where I went in to trauma that I could not understand what to do. Since then, I have lost valuable time and lost lot of money, I should have been allowed to prove myself in front of Immigration that would have been legitimate than direct refusal.

I have received the refusal letter from DIBP through the agent after I have missed time frame to apply, there I was in the situation of having severe pain with gallbladder stones. Soon after I have received the email from agent I was rushed to the Migration Review Tribunal and applied for further appeal. Finally I went to hearing to explain my situation why I wanted to apply for student visa. I have clearly submitted all documents with explanation. Even though I have provided my all documents and claims to tribunal in this regard. My question is “what else I need to do a part of this?” and I did this to Federal circuit court alike.

I have not had any control of my situations which became very bad in Australia to provide reasons at tribunal, but Migration Review Tribunal has made applicant ineligible to review application in Australia. According to letter received by mail applicant has lodged the review application in time frame. I have provided enough explanation with Federal circuit application which was not considered by Tribunal member and applicant wasn’t given chance explore his outcry in front of justice. As new argument/hope came to light which demonstrates the unsatisfactory evidence hasn’t been done by me, according to the legislation applicant may satisfy the 885 subclass English language criterion and could be accepted by High court, I have intention to bring the Federal circuit court decision to Federal court for further review with new argument as explanation has been submitted by Migration agent but not 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 I am ready to provide valid reasons why I had to have unsatisfactory of substantial compliance at my previous studies of previous visa long time ago, and how I am eligible to lodge the review application at Migration review tribunal if I am 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 my claims as there was big barrier “Judicial review has been made which has not been proved by me how I had to submit the application with booking reference no and how I was missed my Migration Review Tribunal application to appeal the application within outline timeframe after the refusal. And also I would like to explain my eligibility of English language criterion. I have exceptional circumstance beyond my control.

25    The applicants filed written submissions on 5 February 2015. These written submissions provide evidence of the first applicant’s medical condition (both at around the time of the Minister’s decision and the appeal to the FCC) and evidence of English competency exam results.

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

27    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].

CONSIDERATION

28    There are no realistic prospects that an appeal would succeed. That hurdle is insurmountable.

29    As noted earlier, s 347 of the Act provides that an application for review must be given to the MRT within the prescribed period and, in this case, the period prescribed is 21 days: reg 4.10(1)(a) of the Regulations. The MRT has power to review an application “properly made”: s 348(1) of the Act. An application is not properly made if it is filed out of time.

30    In the present case, the Minister complied with the requirements of the Act in notifying the applicants of the delegate’s decision (see [7] above). Unfortunately, the applicants filed their application for review with the MRT out of time (see [8] above). The MRT was bound to find that it had no jurisdiction. The FCC was correct to find that the applicants did not have an arguable case. The medical evidence provided by the first applicant to this Court does not and cannot change the result as the MRT had no discretion to allow extra time under the Act.

31    Finally, although the first applicant later provided evidence that he received the requisite scores showing he has competent English, that fact is irrelevant. It is irrelevant because the MRT Review Application was filed out of time: cf Berenguel v Minister for Immigration & Citizenship (2010) 114 ALD 1 and Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [12]-[16].

32    This application concerns a man and his wife. The result affects their three year old daughter. The circumstances are unfortunate. The MRT application was filed five days late. At the time of the application to the MRT and at the time of the MRT hearing, the first applicant was unwell. He has demonstrated that he has competent English. Consistent with the object of the Act to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens (Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 87 ALJR 682 at [44] and s 4(1) of the Act), the Minister should consider whether to exercise any discretion he holds under the Act to grant these applicants a visa: eg under ss 29 and / or 351 of the Act.

CONCLUSION

33    The application for an extension of time to seek leave to appeal and leave to appeal is refused. The first applicant will pay the first respondent’s costs of the application.

Associate:

Dated:    17 February 2015