FEDERAL COURT OF AUSTRALIA

Dhariwal v Minister for Immigration and Border Protection [2015] FCA 915

REASONS FOR JUDGMENT

1    The applicants in this proceeding seek leave to appeal from the judgment of the Federal Circuit Court given on 8 May 2015. That was a decision by Judge Burchardt dismissing an application pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside orders which had been made by Judge Vasta on 16 January 2015. Judge Vasta had refused an application under s 477(2) of the Migration Act 1958 (Cth) and an appeal to this Court may not be brought from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2): see Migration Act 1958 (Cth), s 476A(3)(a).

2    The applicants had applied on 18 April 2010 for Skilled (Provisional) (Class VC) visas. A delegate of the Minister decided on 14 November 2011 to refuse to grant the visas and notified the applicants of the decision and their review rights. The delegate’s refusal had been on the basis of the first applicant not having satisfied cll 485.213, 485.215, 485.221 or 485.224 in Schedule 2 to the Migration Regulations 1994 (Cth) because the first applicant had not provided evidence of meeting the Australian study requirement or of having competent English or of having obtained a suitable skills assessment for the grant of the visa or of meeting the relevant public interest criterion relating to health.

3    The applicants applied to the Migration Review Tribunal, now called the Administrative Appeals Tribunal, on 1 December 2011 to review the decision made by the delegate. The Tribunal found that the delegate’s decision was reviewable but affirmed the decision under review by decision of the Tribunal dated 21 February 2013. In its findings and reasons the Tribunal said:

25.    The issue in the present case is whether the applicant met the Australian study requirement at the time of application.

26.    On the evidence before the Tribunal, the applicant nominated the occupation of ‘cook’ which is a skilled occupation specified in IMMI 12/068.

27.    The applicants conceded at the Tribunal hearing that the applicant never completed her cookery or hospitality course in Australia. There is no evidence before the Tribunal to indicate that the applicant completed any other degree, diploma or other trade qualification in the six month period ending immediately before the application was lodged. The Tribunal has taken into consideration the applicants’ evidence relating to them being defrauded by their former migration agent and the Tribunal has sympathy for their situation. However, the Tribunal has no discretion to waive or extend this 6 month requirement imposed under cl.485.213(a).

28.    In these circumstances, the Tribunal is not satisfied that the applicant has completed a degree, diploma or other trade qualification in the 6 months immediately before the application was made. It follows that, as at the time of application, the applicant did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. She therefore does not meet the requirements of cl.485.213(a) and, accordingly, does not meet cl.485.213.

29.    Given that cl.485.213 is a mandatory requirement for the grant of the visa, it is unnecessary to consider the other criteria for the visa which also led to the delegate’s refusal of the application.

30.    In relation to the subclass 487 visa, for the same reasons set out in the decision record of the delegate, the Tribunal finds that [the] applicant did not pay the applicable fee for a subclass 487 visa application under Item 1229 and, accordingly, the application was not valid with respect to that subclass. In any event, as there is no claim or evidence that the applicant was nominated by a State or Territory government agency or sponsored by a relevant Australian relative, as required by cl.487.213, the applicant cannot meet the criteria for a Subclass 487 visa.

The decision of the Tribunal recorded details of the first applicant confirmed during the hearing including never having completed any study whilst in Australia, achieving insufficient scores in an IELTS test, never obtaining a skills assessment and claiming of having been misled by the applicants’ former migration agent.

4    The applicants’ application to the Federal Circuit Court was filed 10 January 2014 seeking an extension of time to review the decision of the Tribunal which had been made nearly 11 months previously. The grounds of the application for the extension of time were:

1.    I WAS GIVEN INCORRECT INFORMATION FROM FRAUD AGENT

2.    I AM A VICTIM OF SCAM RUN BY A FAKE MIGRATION AGENT

3.    DUE TO FINANCIAL PROBLEM I APPLIED FOR MINISTERIAL INTERVENTION

Please see further attachment A.

The contents in attachment A identified the relevant migration agent maintaining that he had agreed to arrange a work visa for the first applicant. The grounds of the application for an extension of time also set out the grounds of an application for judicial review if the extension were granted. Those grounds said simply that the first applicant was not happy with the Tribunal’s decision and had exceptional circumstances beyond the application. Critically, however, none of the material filed with the application indicated any basis upon which the applicants would satisfy the requirements to obtain the visas. The application to extend time came for hearing before Judge Vasta in the Federal Circuit Court on 16 January 2015. The Court had notified the applicants by letter on 23 December 2014 that the matter would be heard on that day. The matter was called for hearing but there was no appearance for the applicants. In those circumstances his Honour proceeded to determine the application saying at [20]:

In all the circumstances, it is, in my view, in the interests of justice for me to act pursuant to Rule 13.03C(1)(e) and proceed to final determination of this matter today, given that it has been three months short of five years since this application was first submitted to the Department. The interests of justice, in my view, demand that this Court determine the matter once and for all today. Notwithstanding the non-appearance of the Applicants, there is nothing that could have been said on their behalf that was not contained in the material they filed with the Court.

In reaching that conclusion his Honour referred to the requirements that the applicants needed to satisfy to obtain the visa and said at [18] that the applicants “simply cannot fulfil the criteria and there could never be shown that there was any kind of jurisdictional error on the part of the Migration Review Tribunal”.

5    The applicants applied on 30 January 2015 to the Federal Circuit Court to re-open their case maintaining that the hearing and decision on 16 January 2015 had been without notice to the applicants. That application came before Judge Burchardt who refused to grant the application to reinstate the application for an extension of time. His Honour dismissed the application because the underlying application had no prospects of success. Relevantly his Honour said at [26]-[29]:

26.    In the ultimate, it is not necessary for me to determine this aspect of the matter conclusively. That is because the applicants’ prospects of success are, I regret to say, quite hopeless.

27.    As earlier indicated, the Tribunal had multiple reasons to reject the applicant’s application. She did not meet the mandatory criterion relating to completion of study. She did not, on her own version of the events, meet the time of application requirement of competent English. She had never received a skills recognition assessment. She had not, unfortunately, even attended to the health examination required.

28.    In these circumstances, in my view, it is not in the interests of the administration of justice to extend time to enable all the applicants to bring their application. There is, therefore, simply no utility in setting aside the orders of Judge Vasta as the applicant’s substantive application for an extension of time is clearly hopeless and has no prospects of success because the applicants’ substantive case has no prospects of success.

29.    In the circumstances, therefore, and notwithstanding that the applicants were not present on 16 January 2015, and moved promptly when they were made aware of the orders made on that date, it is simply wholly inappropriate to grant the applicants the reinstatement of their proceeding that they seek. The application will be dismissed with costs.

His Honour had previously observed that for the applicants to succeed in setting aside the orders of Judge Vasta the applicants needed to establish both a satisfactory explanation for non-attendance on 16 January 2015 and to demonstrate arguable prospects of success in the application. It was his Honour’s findings on the latter that led his Honour to dismiss the application to set aside the orders of Judge Vasta.

6    The appeal to this Court is in form from the decision of Judge Burchardt not to set aside the orders of Judge Vasta. An appeal to this Court could not be brought from the decision of Judge Vasta because the jurisdiction of this Court is limited by excluding an appeal from orders made by the Federal Circuit Court under s 477(2): see s 476A(3)(a). There is, however, no basis to allow the appeal from the orders of Judge Burchardt. His Honour was correct to observe that the applicants were required to demonstrate that there was an arguable case or question to be tried in the substantive application as well as to provide an adequate reason for the non-appearance at the hearing on 16 January 2015. It was also necessary for the applicants to show that it was in the interests of justice to reinstate the application for an extension of time. His Honour did not err in the statement of principle or in its application to the applicants: see Lee v Minister for Immigration and Multicultural Affairs [2001] FCA 1448, [10]; Singh v Minister for Immigration & Anor [2014] FCCA 1828, [8]. The application for visas required the applicants to satisfy the Australian study requirement, to have competent English skills within the meaning of the regulation, to have obtained a suitable skills assessment, and to have met the public interest criterion health assessment. There was no material about any of those matters before Judge Burchardt at the hearing on 16 March 2015, or before Judge Vasta in the application determined on 16 January 2015, or the Migration Review Tribunal in its hearing decided on 21 February 2013. In those circumstances there is no prospect that the application has any prospects of success or that there is any point in allowing leave to appeal: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9; Duncan v Secretary, Department of Family and Community Services (2007) 99 ALD 241, 246 [18], 249-50, [32] (French J).

7    The applicants submitted orally at the hearing of their application that their migration agent had wrongfully applied for the incorrect visa and that they were able to satisfy the requirements for a different visa. This, if established, may justify the grant of a different visa but does not establish error or a basis for this Court to grant the application for leave to appeal. The applicants also made an oral submission that the costs orders which had been made ought to be set aside as being unreasonable. There was no basis established to set aside any of those orders although it may be appropriate for the Minister to waive those costs if the applicants were hereafter to satisfy the Minister that they are otherwise entitled to a visa and that the costs were fairly attributable to the wrongdoing or error of their former migration agent.

8    Accordingly, the application for leave will be dismissed.

Associate:

Dated:    21 August 2015