FEDERAL COURT OF AUSTRALIA

Wickramasinghe v Minister for Immigration and Border Protection [2016] FCA 593

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 10 November 2015 be dismissed.

2.    The applicants pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    On 19 March 2014, Mrs Wickrama Arachchige Dona Wickramasinghe, the first applicant, a citizen of Sri Lanka, applied for a Student (Temporary) (Class TU) visa. The relevant subclass of visa was subclass 572. Her husband, the second applicant, was also included in the visa application.

2    A delegate of the first respondent (the Minister) refused the application on the basis that the first applicant had not provided evidence to satisfy the English language proficiency requirements applicable to this subclass of visa.

3    The applicants applied to the Migration Review Tribunal (the Tribunal) for review of that decision. On 27 November 2014, the Tribunal decided to affirm the decision of the delegate not to grant the Student (Temporary) (Class TU) visas.

4    On 24 December 2014, the applicants commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. A ‘show cause’ hearing was listed to take place on 23 October 2015. At this hearing, the applicants, who were legally represented, sought an adjournment. That application was refused, for the reasons set out in paragraphs [3] and [4] of the reasons for judgment of the Federal Circuit Court. The judge then dealt with the ‘show cause’ application and concluded that the applicants had not raised an arguable case, and therefore the applicant’s application filed 24 December 2014 should be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

5    As the decision of the Federal Circuit Court to dismiss the application was interlocutory, the applicants need leave to appeal that decision: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The decision to refuse the adjournment cannot be appealed to this Court: see s 24(1AA) of that Act.

6    The applicants did not file an application for leave to appeal within the time prescribed. Rather, four days after the prescribed time, they filed an application for extension of time and leave to appeal.

7    The two issues to be determined are whether the application for an extension of time should be granted and, if so, whether leave to appeal should be granted.

Applicable principles

8    The principles applicable to each of these applications are well established. In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.

Application of principles to the present case

9    The period of time between when the application for leave should have been filed and when it was filed is very short, only four days. The applicants have provided an explanation for the delay, in summary that they were waiting for the written order and reasons for judgment and these were not available within the 14 day time period. The applicants and their lawyer were aware of the application time limit and could and should have filed the application for leave to appeal without waiting for the written order and reasons. However, the Minister does not oppose an extension of time being granted on the basis that there is no acceptable explanation for the delay (or on the basis of prejudice to the Minister), instead relying on a contention that the substantive application for leave to appeal has no merit.

10    It is convenient to deal next with the merits, or otherwise, of any appeal from the decision of the Federal Circuit Court, this being relevant to both issues that the Court has to determine.

11    The issue before the Federal Circuit Court was whether the decision of the Tribunal was affected by jurisdictional error.

12    The issue before the Tribunal was whether the first applicant satisfied the English proficiency requirements for a Subclass 572 visa.

13    The relevant criteria were set out in cl 5A404(b) of Schedule 5A, which is in the following terms:

The applicant must give evidence that one of the following applies:

…

(b)    the applicant:

(i)    will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and

(ii)    achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Bank Score of at least 5.0.

14    It seems that the first applicant did satisfy sub-paragraph (ii) of paragraph (b). This is recorded in paragraph [8] of the Federal Circuit Court’s reasons. The issue, however, was whether the first applicant satisfied sub-paragraph (i) of paragraph (b).

15    The Tribunal concluded that this sub-paragraph was not satisfied.

16    The focus of the submissions on behalf of the applicants today was that the Tribunal should have squarely raised the issue with the first applicant, asked her whether she was willing to enrol and undertake an ELICOS (English Language Intensive Course for Overseas Students), and given her a further opportunity to formulate a response. It is not clear whether such a submission was advanced in the Federal Circuit Court. Nevertheless no objection was taken to the submission on this basis.

17    In my view, the issue of whether the first applicant had satisfied the relevant requirement was squarely raised with the first applicant (who was represented at the hearing before the Tribunal by a migration agent).

18    Paragraphs [11]-[13] of the Tribunal’s reasons are as follows:

11.    The following relevant documents were provided:

a.    Certificates of enrolment for a Certificate III (21 April 2014 to 12 April 2015) and IV in Commercial Cookery (20 April 2015 to 20 September 2015);

b.    General Certificate of Education (Advanced Level) Examination, Sri Lanka;

c.    The results of an IELTS test taken on 5 April 2014 with an overall band score of 5.0;

d.    Evidence that she undertook an English course from 15 March 2010 to 4 June 2010 and from 28 February 2011 to 13 May 2011; and

e.    Financial evidence.

12.    The Tribunal said the evidence she provided in relation to English language proficiency do not appear to satisfy the requirements of Schedule 5A for her assessment level. The agent submitted that the applicant satisfies the English requirements because she has achieved an overall band score of 5.0 and has completed ELICOS of no more than 20 weeks.

13.    The Tribunal explained that the requirement is that the applicant will undertake an ELICOS of no more than 20 weeks and achieved at least 5.0 in a relevant IELTS test. The Tribunal said the applicant has not provided evidence that she will undertake an ELICOS, rather she has provided evidence that she has undertaken an ELICOS. The agent submitted that the Department has accepted such evidence in the past.

19    No issue was taken with the accuracy of these paragraphs as a record of what transpired at the hearing before the Tribunal.

20    In my view, these paragraphs record that the Tribunal did squarely raise the issue with the first applicant. I note also that the first applicant was already on notice of the issue from the decision of the delegate. It was clearly open to the agent to seek some time in which to provide further information to the Tribunal to satisfy the relevant requirement. It is surprising that this did not occur. But it was not incumbent on the Tribunal to do more than squarely raise the issue with the first applicant, which it did. The Tribunal was not required (pursuant to s 359AA of the Migration Act 1958 (Cth) or otherwise) to ask the first applicant whether she was willing to enrol or undertake an ELICOS or to offer her an opportunity to formulate a response: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]-[48].

21    For these reasons, in my view, the applicants’ argument, as put today, does not demonstrate that the Tribunal’s decision was affected by jurisdictional error.

22    The applicants in their submissions today did not advance a contention that the Tribunal’s construction of the relevant criteria was incorrect. However, for completeness, I will briefly address this issue.

23    The key conclusion of the Tribunal is expressed in paragraph [20] as follows:

As discussed above, [the first applicant] provided the Tribunal with evidence that she undertook ELICOS courses in Australia in 2010 and 2011. She did not give evidence that she will undertake an ELICOS of no more than 20 weeks duration before commencing her principal course. The Tribunal therefore finds that she does not satisfy cl.5A404(b) of Schedule 5A.

24    The Federal Circuit Court concluded that the Tribunal’s approach was correct. The judge relied in this regard on Patel v Minister for Immigration and Citizenship [2012] FCA 376 at [24] per Siopis J. That case was an appeal from a decision of the Federal Magistrates Court involving the same provision. In paragraph [24], Siopis J said:

Further, the Federal Magistrate did not err in finding that the Tribunal had correctly applied cl 5A404(b). This clause requires a visa applicant with an Overall Band Score of 5.0 on the IELTS test, to provide evidence that he or she “will undertake” the relevant ELICOS course. It does not, therefore, avail a visa applicant to provide evidence that he or she has already undertaken such a course. The rationale for this sequence is somewhat elusive, but the construction of the requirement is clear, and Mrs Patel did not satisfy the requirement. Also, the Federal Magistrate did not err in relation to his finding that the department had advised Mrs Patel of the cl 5A404 requirements.

25    On the basis of this decision, the primary judge concluded that the Tribunal’s construction was correct.

26    In my view, the primary judge was correct in so concluding. The construction of the relevant provision adopted by the Tribunal was in accordance with the decision in Patel.

27    In light of the above, any appeal from the decision of the Federal Circuit Court would have no merit. It follows that the applications for an extension of time and for leave to appeal should be refused. There is no reason why costs should not follow the event. There will, therefore, also be an order that the applicants pay the Minister’s costs of the applications.

Associate:

Dated:    25 May 2016