FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2015] FCA 905
IN THE FEDERAL COURT OF AUSTRALIA | |
First Appellant KAMALJIT KAUR Second Appellant | |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The appellants pay the respondents’ costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 167 of 2015 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA |
BETWEEN: | KULDEEP SINGH First Appellant KAMALJIT KAUR Second Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent |
JUDGE: | PAGONE J |
DATE: | 20 AUGUST 2015 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT (Revised from transcript)
1 The appellants seek to appeal from a decision of the Federal Circuit Court made on 17 March 2015. The Federal Circuit Court on that day dismissed an application for review of a decision of the Assistant Minister for Immigration and Border Protection on the basis that it had no jurisdiction to hear that application. The Court also dismissed an application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) in which to apply for judicial review of the decision of the Migration Review Tribunal (the name of which has now been changed to the Administrative Appeals Tribunal).
2 The appellants applied on 19 December 2010 to the Department of Immigration and Citizenship (as it then was) for visas. The appellants are both citizens of India and the first appellant stated in the application that he had not undertaken an English test within the 24 months preceding the application for the visa. On 24 February 2012 the application for the visa was refused by a delegate of the Minister on the basis that the first appellant did not satisfy cl 485.215 of Schedule 2 of the Migration Regulations 1994 (Cth) because he did not have “competent English” within the meaning of reg 1.15C. The appellants then appealed to the Tribunal on 16 March 2012 for a review of the delegate’s decision giving an address in Swan Hill, Victoria, for correspondence to them from the Tribunal.
3 The Tribunal wrote to the appellants at the Swan Hill address and invited them to provide evidence that they met the requirement of competent English within the meaning of reg 1.15C. The letter to the appellants reproduced reg 1.15C and informed the appellants that the information was to be received at the Tribunal by 13 May 2013. That date was emphasised in the letter to the appellants.
4 On 10 May 2013 the Tribunal received a letter from the first appellant which, in effect, sought an extension of time. The letter from the first appellant referred to the letter from the Tribunal in his case and said that he was not then able to provide documents like the International English Language Testing System (“IELTS”) test. The letter also said that he had tried on many occasions to achieve success in the test but could not do so and sought a period of 4 to 5 weeks “to clear” the test and asked for an extension of time for that length. The letter from the first appellant to the Tribunal enclosed an IELTS test booking receipt indicating that the first appellant had paid for a test to be held on 25 May 2013.
5 The Tribunal responded by letter dated 10 May 2013 to the letter from the first appellant which the Tribunal had received on that day. The Tribunal’s letter of 10 May 2013 informed the appellants that the Tribunal had “agreed to grant an extension of time” for the appellants to provide the information required to 18 June 2013. The Tribunal’s letter of 10 May 2013 was sent to the appellants’ Swan Hill address but did not reach them. However, the first appellant phoned the Tribunal on 15 May 2013 to inquire about his request for an extension of time in which to provide the information which had been required by the Tribunal. He was informed in that telephone conversation that “an extension had been granted to 18 June 2013 and that a letter confirming this had been sent by registered post to him”.
6 The Tribunal’s letter of 10 May 2013 was returned on 28 May 2013 to the Tribunal undelivered, but the appellants had been told on 15 May 2013 in the telephone conversation of the adjournment to 18 June 2013. On 28 May 2013 the Tribunal sent an email to the appellants to the email address which had been provided in the appellants’ application for review. The email sent on 28 May 2013 attached a copy of the 10 May 2013 letter.
7 On 17 June 2013 the first appellant informed the Tribunal by email that he had changed his address to an address in Griffith, New South Wales. The information, however, which the Tribunal had required to be provided by 18 June 2013 was not received by the Tribunal. In the circumstances, the Tribunal affirmed the delegate’s decision on 11 July 2013 not to grant the appellants the visas which they had applied for. The Tribunal found that the appellants did not have evidence that they satisfied the “competent English” requirements under reg 1.15C of the Migration Regulations 1994 (Cth) and that, accordingly, they did not meet the requirements of cl 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth). The Tribunal sent its decision to the appellants at the Griffith address on 15 July 2013.
8 On 17 February 2014 the appellants applied for an extension of time in which to seek judicial review of the Tribunal’s decision, and for judicial review of a decision of the Assistant Minister for Immigration and Border Protection not to exercise her power under s 351 of the Migration Act 1958 (Cth). The ground in the application stated:
First of all my decision (MRT) is based on the English test. I tried my best but now I have hope to gain high score in English so Please I want Review the decision again.
The Federal Circuit Court dismissed the appellants’ application on 17 March 2015. The application for an extension of time was dismissed because there was no acceptable reason given for the delay and because the substantive application was without merit.
9 The appellants have filed a notice of appeal seeking to appeal from the whole of the judgment of the Federal Circuit Court. The ground of appeal stated a belief that jurisdictional error occurred in the proceeding without identification of any error. Under the heading “Ground of Appeal” the appellants stated that: on 17 March 2015 they received a decision from the Court in which the Court declared that it had no jurisdiction to review the decision; that the Federal Circuit Court had made jurisdictional errors; that the appellants had sent “the documents” in time before the hearing date; that the Court did not ask the appellants to provide documentation before making a decision on the day the Court decided the matter; and that the appellants appeared at the hearing but that the judge did not listen to the second appellant who is the wife of the first appellant.
10 The application for an extension of time made to the Federal Circuit Court was dismissed by that Court pursuant to s 477(2) of the Migration Act 1958 (Cth). This Court does not have jurisdiction to hear an appeal from a judgment of the Federal Circuit Court refusing to make an order under s 477(2): see Migration Act 1958 (Cth), s 476A(3)(a). The appeal to this Court must to that extent be dismissed as incompetent: see SZTES v Minister for Immigration and Border Protection [2015] FCA 719, [2]; Bandi v Minister for Immigration and Border Protection [2014] FCA 1290, [8].
11 The Federal Circuit Court also ordered that it lacked jurisdiction to entertain the application to review the decision of the Assistant Minister not to exercise her power under s 351 of the Migration Act 1958 (Cth). In that regard the decision of the Federal Circuit Court said at [19]:
The application insofar as it relates to the decision by the Assistant Minister not to exercise her power under s.351 of the Act is misconceived as it is not within the jurisdiction of this Court to review such a decision. With respect to the extension of time, the grounds relied upon do not address the matters to which the Court should give consideration. Those matters were correctly identified by the First Respondent in the written submissions by reference to the case of Hunter Valley Developments.
No error has been shown in the conclusion of the Federal Circuit Court that it lacked jurisdiction to review the decision made by the Assistant Minister under s 351. The Assistant Minister’s decision had been not to exercise her power under s 351 of the Migration Act 1958 (Cth). Such a decision comes within the meaning of “privative clause decision” in ss 474(2) and (7), which by s 474(1) is made final and conclusive and is not able to be challenged. Section 476(2)(c) specifically provides that the Federal Circuit Court has no jurisdiction in relation to a privative clause decision of the kind sought to be challenged. No error has been shown in the Tribunal’s reasoning or conclusion.
12 There is, in any event, no basis to consider that the decision of the Assistant Minister or that of the Tribunal was erroneous. The basis of refusal of the visa was an inability to establish success in the English language test. The appellants have not shown any error in that conclusion. The appellants appeared in person at the hearing of the appeal and did not challenge the facts upon which the decisions were made, but, rather, sought further time to satisfy the requirements.
13 Accordingly the appeal will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. |
Associate:
