FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection (No 2) [2016] FCA 1088

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application to be agreed or assessed, such costs not to exceed the amount of $1,756.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for an extension of time in which to appeal from a judgment of the Federal Circuit Court published as: Kaur v Minister for Immigration & Anor [2014] FCCA 2112.

2    The Federal Circuit Court dismissed an application for judicial review of a decision of the then-named Migration Review Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister, to refuse to grant the applicant a Skilled (Provisional) (Class VC) Visa (Visa).

3    For the reasons given below, the application should be dismissed.

background

4    The applicant applied for the Visa on 19 May 2011.

5    The Minister was required to grant the Visa if satisfied that, among other things, the criteria prescribed in s 65(1)(a) of the Migration Act 1958 (Cth) (Act) for the grant of that particular visa had been met. The Act requires that the Minister refuse to grant the Visa if not so satisfied: s 65(1)(b) of the Act.

6    A relevant criterion for the grant of the Visa was prescribed in cl 485.221(1) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). It required that the applicant’s skills for her nominated occupation have been assessed by the relevant assessing authority as suitable for that occupation.

7    In her application for the Visa, the applicant stated that her nominated occupation was that of a cook. The relevant skills assessing authority for that occupation was Trade Recognition Australia. The application form stated that Trade Recognition Australia had assessed the applicant’s skills as a cook on 16 May 2011.

8    The applicant did not provide any skills assessment for her nominated occupation, despite a request made by a delegate of the Minister that she do so. Her application for the Visa was refused for that reason. The applicant made an application to the Tribunal for review of that refusal on 2 July 2012.

9    On 25 June 2013, the Tribunal wrote to the applicant requesting information about whether those skills had been assessed as suitable for her nominated occupation. The applicant did not respond to that request.

10    By a letter dated 4 September 2013, the Tribunal invited the applicant to attend a hearing and give evidence and present arguments, scheduled for 27 September 2013. The invitation was made in accordance with s 360 of the Act and was sent to the address that the applicant had nominated as her address for the service of correspondence. On the same form in which she nominated the address, the applicant stated that she did not wish to appoint a representative to act on her behalf or to be her authorised representative or recipient of correspondence.

11    The invitation issued by the Tribunal pursuant to s 360 of the Act was returned to the Tribunal unclaimed on 3 October 2013, that is, after the date of the Tribunal’s hearing.

12    The applicant did not appear before the Tribunal on the hearing date. The Tribunal elected to proceed to make its decision without taking any further action to enable the applicant to appear before it. It elected that course under s 362B(1A) of the Act, which provided:

362B    Failure of applicant to appear before Tribunal

Scope

(1)    This section applies if the applicant:

(a)    is invited under section 360 to appear before the Tribunal; but

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

(1A)    The Tribunal may:

(a)    by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

(b)    by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:    Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2:    Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

13    The Tribunal affirmed the Minister’s decision of the delegate not to grant the Visa. It did so on the ground that the applicant had not provided any evidence at the time of the delegate’s decision, or at the time of the Tribunal’s decision, of any suitable skills assessment by Trades Recognition Australia and that, as a consequence, she did not satisfy the criterion in cl 485.221 of Sch 2 to the Regulations.

14    On 30 October 2013, the applicant made an application for judicial review of the Tribunal’s decision to the Federal Circuit Court. That court dismissed the application on 25 September 2014.

15    The applicant gave sworn evidence before the Federal Circuit Court concerning, among other things, the form that had been provided to the Tribunal which nominated her address for correspondence. The effect of her evidence is summarised by the learned primary judge as follows:

[12]    In sworn evidence provided by her to this court, the applicant has indicated that she personally signed the form in question and that the address and other contact details on it relating to her are correct.

[13]    However, also in her sworn evidence, the applicant has asserted that a migration agent, whom she approached to convert her student visa into some form of visa allowing permanent residence in Australia, completed the form in question and did not properly inform her of its contents.

[14]    It is currently the applicant’s position that she signed the form in question, at the direction of the migration agent in question, who effectively filled in the form as well, as the earlier electronic application, after she informed him of some of her particulars.

16    The applicant has not filed any written submission in this court nor relied on any evidence to the effect that the evidence she gave in the Federal Circuit Court was not to the effect stated in the reasons of the learned primary judge. When invited to make submissions before this court, the applicant, for the most part, declined to do so. She did not bring to the court a copy of the reasons of the learned primary judge and did not make submissions to the effect that any findings of the learned primary judge were affected by appealable error.

THE application for AN extension of time

17    The time to commence the appeal expired on 16 October 2014.

18    This application was filed on 6 April 2016 and it is accompanied by draft grounds of appeal.

19    This court may, in its discretion, extend the time in which to commence the appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules). The principles guiding the exercise of the discretion are well settled. The relevant considerations include the length of the delay, the adequacy of any explanation given for the delay, the prejudice that might be suffered by the respondent should an extension be granted, and that prospects of success of the proposed appeal: Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344. Where an adequate explanation is given for the delay and where the respondent would suffer no prejudice by reason of the delay, an extension of time should ordinarily be granted if the applicant can demonstrate that the grounds of appeal are at least arguable: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.

20    The delay in commencing the proposed appeal amounts to 540 days. That is a very substantial delay.

21    The applicant filed a brief affidavit in support of her application for an extension of time. It states as follows:

1.    I am the applicant.

2.    On 25 September 2014 my application to the Federal Circuit Court filed on 30 October 2013 was dismissed.

3.    At all material times, I was an applicant/litigant in person.

4.    After my application was dismissed I did not know what to do.

5.    I was depressed and upset.

6.    My bridging visa conditions did not allow me to work and I was unemployed and had no money.

7.    I could not afford to hire a private lawyer to give me advice.

8.    I tried to get advice from community law centres and legal aid but they told me that they could not assist me.

9.    I was advised by my friends to approach the Minister for Immigration to help me.

10.    I contacted the Department of Immigration to obtain a copy of my file with them so that I could then approach the Minister to help me.

11.     I then approached the Minister for Immigration to help me.

12.    By letter dated 18 March 2016 the Minister for Immigration wrote to me and said that he would not be helping me in my matter.

13.    I now wish to appeal the 25 September 2014 Federal Circuit Court of Australia decision that dismissed my application filed in the Federal Circuit Court on 30 October 2013.

14.    I seek an extension of time to file such appeal.

(Original grammar retained)

22    The affidavit does not state when the applicant first came to realise that she had a right of appeal against the judgment of the Federal Circuit Court nor does the affidavit state when the applicant first came to realise the time limit in which such an appeal should be commenced. Insofar as the applicant has made an application for Ministerial intervention pursuant to s 417 of the Act, the affidavit does not state when that application was first made. This court has previously held that the making of an application for Ministerial intervention does not provide an adequate explanation for the delay in exercising a right of appeal in any event: see M211 of 2003 v Refugee Review Tribunal and Another (2004) 82 ALD 24 and MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 (at [15]).

23    Counsel for the Minister acknowledges that the Minister will not suffer prejudice by the grant of an extension of time. That circumstance does not, of itself, justify the grant of leave. It is important that litigants before this court observe the time limits in which applications and appeals are to be commenced.

24    The grounds of appeal are as follows:

1.    The court erred in law and/or in fact in dismissing the Appellants application on 25 September 2014;

2.    The court erred in law and/or in fact when it took into account irrelevant information and/or evidence in deciding to dismiss the Appellants application on 25 September 2014;

3.    The court erred in law and/or in fact when it failed and/or refused to take into account relevant information and/or evidence in deciding to dismiss the Appellants application on 25 September 2014;

4.    The Learned Judge erred in law and/or in fact in failing and/or refusing to find that the Migration Review Tribunal did not act in a way that was fair and just;

5.    The Learned Judge erred in law and/or in fact in refusing to grant an adjournment of the hearing on 25 September 2014 when taking into account all fact and circumstances;

6.    The Learned Judge erred in law and/or in fact in failing and/or refusing to find that the Migration Review Tribunal was unfair in all the circumstances of the case;

7.    The Learned Judge erred in law and/or in act in failing to find that the decision of the Migration Review Tribunal was affected by jurisdictional error and/or that the Migration Review Tribunal had misapplied the Migration Regulations and/or the Migration Act.

Orders sought

1.    That the decision and/or orders of the Federal Circuit Court be quashed and/or set aside;

2.    That the Appellants application for judicial review be remitted to the Administrative Appeals Tribunal for the Appellants application to be heard according to law;

3.    Costs;

4.    Such further or other or alternative relief that the Appellant may be entitled to in law in all the circumstances of the case.

(original spelling and grammar retained)

25    Counsel for the Minister complains justifiably, in my view, that the proposed grounds of appeal lack particulars. They may be fairly described as template grounds broadly alleging error without specifying precisely the error or giving sufficient details to put the Minister on notice of the case to be met.

26    I turn first to consider an allegation that the learned primary judge erred in failing to grant an adjournment of the hearing before that court on 25 September 2014. The applicant has not sought to adduce evidence and has not made submissions before this court that would enable any assessment of the merits of that proposed ground of appeal. The reasons of the Federal Circuit Court on their face do not indicate that any application for an adjournment was made, let alone refused.

27    In respect of the remaining proposed grounds of appeal, the applicant, in my view, faces the insurmountable obstacle of having adduced no evidence before the delegate of the Minister, nor before the Tribunal and nor before the Federal Circuit Court, demonstrating that she satisfied, or was at any relevant time in a position to satisfy, an essential criterion of the grant of the Visa contained in cl 485.221 of Sch 2 to the Regulations. As I have said, if the Minister was not satisfied that the criteria for the grant of the visa were met, the Minister had no choice but to refuse the application under s 65 of the Act. None of the proposed grounds of appeal before this court suggests that the Tribunal committed jurisdictional error in finding that that essential criterion was not met at the time of its decision. There is no admissible evidence before this court to the effect that the applicant could satisfy the criterion for the grant of the Visa should the Court grant the relief sought on the draft notice of appeal, namely, the remittal of her application for review to the Tribunal for reconsideration. In those circumstances, grant of relief on the appeal would be liable to be refused on the grounds of futility. In my opinion, it is not reasonably arguable otherwise.

28    Before the Federal Circuit Court, the applicant did not seek to be granted the particular class of visa with the nominated vocation being that of a cook. She claimed to be unaware that the visa application had been made in such terms. In that regard, the applicant alleged before the Federal Circuit Court that the Tribunal proceedings had been affected by fraud. The applicant gave evidence before the learned primary judge to the effect that she had participated in the preparation of the visa application, as well as the form submitted to the Tribunal nominating her address for correspondence, but stated that she was not responsible for filling in those particular documents. After carefully reviewing the authorities, the learned primary judge determined that the Visa application was validly made and that the Minister’s delegate and, for that matter, the Tribunal were bound to consider and determine the application on its terms. The learned primary judge found (at [70] – [71]) that:

[70]    The application, on its face, originated with the applicant personally, as in answer to the question did you receive assistance in completing this form a negative answer is provided. The applicant concedes that she was present during the process in which the electronic visa application form was completed and provided correct information, germane to her, in respect of many of the questions posed on the form.

[71]    If this evidence is correct, on her own case, it seems to me that the applicant was, at best, recklessly indifferent to the entire contents of the form or was negligent in not checking the form’s contents prior to its dispatch. As such, it seems difficult to draw any other conclusion than that the applicant was complicit in any deception visited upon the Tribunal.

29    None of the proposed grounds of appeal alleged before this court seek to impugn the critical finding of the learned primary judge, particularly his Honour’s conclusion that the Tribunal’s decision was not effected by fraud so as to warrant the decision of the Tribunal being quashed on judicial review. There is in my opinion, no reasonable basis to argue that the learned primary judge erred in rejecting the applicant’s claim that the Tribunal’s proceedings were affected by fraud in any event.

30    Even putting aside the want of merits on the proposed appeal, I am not satisfied in all of the circumstances that the applicant has demonstrated an adequate explanation for the very long delay in commencing the appeal.

31    The application should accordingly be dismissed.

32    Having heard the parties as to costs, I will order that the applicant pay the first respondent’s costs to be agreed or assessed, such costs not to exceed the amount of $1,756 in accordance with Item 15.1(b) of Sch 3 to the Rules.

Associate:

Dated:    29 August 2016