FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration and Border Protection [2016] FCA 751

ORDERS

THE COURT ORDERS THAT:

1.    The application is 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

BROMBERG J:

1    This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders quashing or setting aside orders made by the Federal Circuit Court on 29 January 2016. The primary judge refused to extend the time in which the applicants could bring judicial review proceedings under s 476 of the Migration Act 1958 (Cth) (the Migration Act) in relation to a decision made by the former Migration Review Tribunal (the Tribunal) to affirm a decision made by a delegate of the first respondent (the Minister) to reject the applicants’ application for Skilled (Provisional) (Class VC) visas. The reasons for judgment of the primary judge are published as Ahmed v Minister for Immigration [2016] FCCA 370.

2    The orders made by the primary judge were made pursuant to the discretionary power given by s 477(2) of the Migration Act. Section 477(2) of the Migration Act provides:

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3    There is no issue, and I am satisfied, that this Court has jurisdiction to entertain the application (see Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [2]-[11]). As the Minister correctly contends, the function of this Court on an application of this kind is limited to examining whether the judgment of the primary judge is affected by jurisdictional error. This is not an appeal from the Federal Circuit Court. The Court has no jurisdiction to entertain such an appeal: s 476A(3)(a) of the Migration Act.

4    In order for the applicants to succeed, I would need to be satisfied that, in applying s 477(2) of the Migration Act to the application before her, the primary judge exceeded her jurisdiction. I will say more about that shortly. First, I should set out the ground upon which the applicants relied in seeking the orders that they seek. The ground is this:

1.    The decision of the Federal Circuit Court and the Tribunal is affected by jurisdictional error.

PARTICULARS

a.    We say that the Court has erred in failing to grant me an extension of time and I also say that I have met the requirements of cl. 485.215 of Schedule 2 to the Regulations and that I do satisfy the criteria for the grant of a subclass 485 visa.

b.    The Appellants also seek an extension of time.

5    In terms, the ground relied upon does not identify any error, let alone any jurisdictional error, made by the primary judge. The applicants are not legally represented. They relied upon a written submission which also failed to identify any error on the part of the primary judge. Despite my explanation to them as to the nature of this proceeding and the nature of the error that I would need to be satisfied was made by the primary judge for their application to succeed, the applicants’ oral submissions have also failed to identify any error, let alone any jurisdictional error, in the judgment of the primary judge.

6    The immediate reason for that failure may well be the applicants’ lack of legal representation. In any event, and for the reasons that follow, there is no basis that I can see for thinking that the primary judge exceeded her jurisdiction.

Background Facts

7    I commence with the background facts. The backgrounds facts were set out by the primary judge at [9]–[18] of her Honour’s reasons for judgment, as follows:

[9]    … It is appropriate to note, in a general way, the background. On 31 December 2012, the First Applicant applied for the visa (CB 1 to 18). He indicated on his application that he had not undertaken an English test in the last 24 months. The Second Applicant, his wife, was included as a member of the family unit.

[10]    One of the primary criteria that the First Applicant was required to satisfy, at the time of the application, in order for the visa to be granted, was set out in cl.485.215 of Sch.2 to the Migration Regulations 1994 (“the Regulations”), which required that the First Applicant had competent English. Regulation 1.15C of the Regulations provides that a person has competent English if, amongst other things:

(1)    (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.

[11]    There was a Ministerial instrument for the purpose of r.1.15C of the Regulations, which was IMMI 12/018. It specified in writing, two language tests and scores, one of which was the International English Language Test System (“the IELTS”), and that a test score of at least six be achieved for each of the four test components.

[12]    There was a request from the Department of Immigration (“the Department”), regarding the IELTS test that he had undertaken in the three years prior to his application. The Applicant provided a range of documents on 12 July 2013, including medical records and evidence that he completed a Masters degree (CB 29 to 55). He did not provide an IELTS test score.

[13]    Another request by the Department was made on 17 October 2013 asking for further documents, including an IELTS test (CB 173 to 174). On 17 October 2013, the First Applicant emailed the Minister his medical records (CB 56 to 170). On the same day, he sent another email, explaining that he had been constantly unfit due to abdominal pain and unable to take an IELTS test. Attached to the email were a number of requests for refund or test date transfer forms signed by the Applicant’s doctor (CB 175 to 179).

[14]    The delegate refused to grant the First Applicant the visa, because he did not have competent English, as required by cl.485.215 of sch.2 to the Regulations. This decision being made on 22 October 2013. The Applicants then applied for merits review from the Tribunal on 6 November 2013. On 11 December 2013, the Tribunal invited the Applicants to attend a hearing before it on 17 January 2014. In that invitation, the Tribunal noted that the First Applicant had not yet provided evidence of competent English and explained how he could do so (CB 203 to 204).

[15]    On 16 December 2013, the First Applicant sought an adjournment of the hearing, on the basis that his wife was pregnant and may be required to enter hospital at the time of the scheduled hearing. This application for adjournment was refused by the Tribunal on 17 December 2013 (CB 205 to 209).

[16]    On 18 December 2013, the Applicant contacted the Tribunal, this time by phone and by email, and requested an adjournment, with copies of his wife’s medical records. The Tribunal, on 19 December 2013, agreed to the Applicants’ request, and postponed the hearing to 27 February 2014. Again, the First Applicant emailed copies of his medical records to the Tribunal on 24 February 2014 (CB 223 to 279).

[17]    On 26 February 2014, the First Applicant provided further documents to the Tribunal, including two IELTS test report forms dated 1 February 2014 and 12 January 2013 (CB 282 to 283). He also provided written submissions, stating that he had twice taken an IELTS test and had been unable to achieve the required score, due to his medical conditions (CB 292 to 293). He provided copies of an IELTS request for refund or test date transfer forms signed by his doctor and his hospital.

[18]    The Applicants attended the Tribunal hearing on 27 February 2014. ...

Tribunal’s Decision

8    I now turn to the Tribunal’s decision. The Tribunal’s decision was recounted by the primary judge at [18]–[19] of her reasons for judgment:

[18]    … The Tribunal’s decision is short. It affirmed the decision under review (CB 401 at [12]).

[19]    The Tribunal noted that in his visa application, the First Applicant indicated that he had not taken an English test in the past two years (CB 401 at [9]). The Tribunal noted that along with a considerable volume of medical evidence, the First Applicant had also submitted the results of two IELTS tests conducted after the date of the visa application, for which he received a score of 5.5 for reading (CB 401 at [9]). The Tribunal, however, noted that the English language requirements are mandatory, that the Tribunal has no discretion and consequently on this basis was not satisfied, on the evidence available, that the First Applicant achieved the requisite score of at least six in the four test components of an IELTS test, conducted in the three years prior to the visa application being made (CB 401 at [9]).

Reasons of the Primary Judge

9    Next, I should outline the reasons of the primary judge in order to explain the approach taken by the primary judge to the application that was before her. Her Honour identified the requirement of s 477(1) of the Migration Act, namely, that an application in relation to the Tribunal's decision was required to have been made within 35 days. She identified that the applicants were some 390 days out of time. The primary judge then recognised that s 477(2) provided that the Federal Circuit Court could extend the 35-day period if satisfied that that was necessary in the interests of the administration of justice.

10    The primary judge (at [4]) identified the factors that she regarded as ordinarily considered by courts in determining whether an extension of time is in the interests of the administration of justice. She identified the following factors:

(a)    the extent of the delay;

(b)    the reasons for the delay;

(c)    the merits of the proposed substantive application;

(d)    any prejudice to the respondent;

(e)    the impact on the applicant, if time is not extended;

(f)    the public interest; and

(g)    considerations of fairness, as between the applicants and other persons otherwise in similar positions.

11    At [6]–[8], the primary judge dealt with the question of delay. She identified the delay involved as substantial. She noted the explanation provided by the applicants in relation to the delay and concluded that she was not convinced by that explanation, because the delay was for such a long period of time. She said at [8], however, that had the merits of the case been strong, she would have been prepared to overlook the lengthy delay. At [9] and following, her Honour set out the relevant background, to which I have already referred.

12    She also set out at [18] and [19] an outline of the Tribunal’s decision. Her Honour identified at [22] the essence of the submissions which were made by the applicants to her. Those submissions are in large part not dissimilar to the written submissions made by the applicants to this Court. The applicants contended before the primary judge that, rather than dealing with and rejecting the application made by the applicants for the visa, the Minister’s delegate should have recognised that the application was fundamentally flawed and not dealt with it.

13    As to whether there was any merit in the substantive application made, the primary judge at [24] concluded that there was none. Her Honour said this:

[24]    I would have to say that if I were to deal with this matter on a substantive basis at a hearing, I would find that the Tribunal’s decision disclosed no jurisdictional error. In other words, the Tribunal correctly applied the law, however unfair that may appear to the Applicants. Consequently, in terms of the merits of the substantive application, which I must consider, in deciding whether to grant an extension of time, I would have to say that the merits simply do not exist. It is not a question of them being minimal. They just would not exist, because of the way the law operates.

14    The approach taken by the primary judge to determining whether it was “necessary in the interests of the administration of justice” to extend time pursuant to s 477(2) was relatively straightforward. Her Honour identified the delay as substantial, which clearly it was. She recognised that an explanation for the delay had been provided but found it unconvincing. She indicated a preparedness to overlook the extent of the delay and the applicants’ failure to adequately explain it if there was sufficient merit in the substantive application which the applicants sought to commence.

15    The primary judge considered the substantive merit of the application and determined that there was none. Or, in other words, her Honour’s view was that the substantive application had no prospect of success.

16    The primary judge’s reasons do not reveal any misunderstanding or misapprehension of the function and discretionary power conferred upon her by s 477(2) of the Migration Act. The primary judge correctly identified the nature of her discretion and exercised that discretion by reference to relevant considerations commonly applied by courts when considering whether to grant an extension of time.

17    There is no basis for a contention that there was a legally-unreasonable exercise of power in the sense set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, or that the primary judge’s conclusion was reached by some legally-irrational reasoning as described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. No denial of procedural fairness has been raised, nor is any apparent. In short, there is nothing raised by the applicants nor apparent from the reasons of the primary judge to suggest (let alone substantiate) an error or misunderstanding resulting in an excess or want of jurisdiction of the kind identified by the High Court in Craig v the State of South Australia (1995) 184 CLR 163 at 177–178, bearing in mind that, at 179–180, the Court made the following observations about the circumstances in which an inferior court will exceed its jurisdiction:

… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well of questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

18    For those reasons the application must be dismissed. It follows that the applicants should pay the Minister’s costs of the application.

Associate:

Dated:    28 June 2016