FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2018] FCA 140

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal is dismissed.

2.    The applicants pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicants are citizens of India. The first applicant, Mrs Kumar obtained a student visa on 2 August 2014. The second applicant is the husband of the first applicant and was granted a visa as a member of the first applicant’s family on the same day. On 6 December 2016 the applicants applied for the visas the subject of these proceedings.

2    This is an application for an extension of time to seek leave to appeal and an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 29 September 2017.

3    That application was filed on 23 October 2017.

4    As to the application for extension of time, the first applicant says in an affidavit sworn on 23 October 2017 that the reasons for judgment in the FCCA were provided to her only on 10 October 2017. The first applicant then referred to her “impression and understanding” that the time limit was 21 days, starting only from the date of “detailed judgment”.

5    Having regard to the short time period and the first applicant’s explanation for the delay, I would grant the extension of time if there were sufficient substance in the application for leave to appeal which the applicants seek to bring.

The statutory provisions

6    The applicants applied for Skilled (Provisional) (Class VC) visas on 6 December 2016. The relevant criteria at that time under the Migration Regulations 1994 (Cth) included:

485.212

The application was accompanied by evidence that:

(a)    the applicant:

(i)    has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

(ii)    has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

(b)    …

7    By Migration Regulations 1994 - Specification of English Language Tests, Scores and Passports 2015 - IMMI 15/062 dated 16 April 2015, the Assistant Minister specified for subparagraph 485.212(a)(i) of the Migration Regulations an International English Language Test System (IELTS) test; for subparagraph 485.212(a)(ii) the requirement that the IELTS test must be completed in a single test sitting; for subparagraph 485.212(a)(ii) the minimum required overall test score and the minimum required scores for each of the test components for the IELTS test as follows:

and for subparagraph 485.212(a)(ii) the IELTS test must have been undertaken within the three years before the day on which the application was made.

8    The undisputed facts are that the first applicant provided to the Department a copy of an IELTS test report showing that she had successfully undertaken an IELTS test on 22 June 2013. On review, the first applicant provided a copy of an IELTS test report showing that she had successfully undertaken an IELTS test on 4 March 2017. As I have said, the application was made on 6 December 2016.

The Tribunal’s decision

9    The Tribunal found that although the first applicant had achieved the specified scores in the IELTS tests undertaken on 22 June 2013 and 4 March 2017, these scores were not achieved in a test undertaken within three years before the day on which the application was made. The test on 22 June 2013 was undertaken in a period greater than three years before the day on which the application was made and the test on 4 March 2017 was undertaken after the day on which the visa application was made.

10    The Tribunal accepted that the first applicant had demonstrated that she had the required English language proficiency in the test undertaken in June 2013 and the test undertaken on 4 March 2017 after the application was lodged. The Tribunal acknowledged the harshness of the provision, particularly given the likelihood that the first applicant would have met the English requirement had she sat the English language proficiency test in the period specified. However, the Tribunal said it had no discretion and cl 485.212 was a mandatory requirement.

11    The Tribunal found that the application was not accompanied by evidence that the first applicant had undertaken the specified language test within the specified period of three years before the day on which the application was made. Consequently, the first applicant did not satisfy the requirement in cl 485.212 (a).

12    The Tribunal affirmed the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Proceedings in the Federal Circuit Court

13    In the FCCA the primary judge dismissed the application for judicial review and did so pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

14    His Honour said that it was plain that the applicants were unable to advance an arguable case of jurisdictional error by the Tribunal. The visa criterion requiring an English language test not more than 36 months before the date of lodgement of the application was an inflexible one and was strengthened in order to deal with the decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417. The result was, the primary judge said, an inflexible criterion that has harsh consequences, as was explicitly recognised by the Tribunal in its reasons. His Honour found no arguable case was disclosed by either Ground 1 or Ground 2 of the application for judicial review, those grounds being, first, that the Tribunal erred in failing to consider all the material before it and, second, that the Tribunal misconstrued the requirements of cl 485.212 and denied the applicants procedural fairness.

The draft notice of appeal

15    The draft notice of appeal to this Court is in the following terms, omitting particulars:

1.    His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as the online form prescribed under item1229 of Schedule 1 reg2.07(5) of Migration regulations, was defective thus leading to valid form being lodged but in conflict with the requirements of clause 485.212 of Schedule 2 of the Migrations regulations causing miscarriage of justice.

2.    His Honour the Federal Court (sic) Judge erred in not holding that the Tribunal made jurisdictional error. by (sic) misconstruing the provisions clause 485.212 of the Migration Regulation 1994 relating to the definition of Competent English.

Submissions

16    The applicants filed written submissions as follows. Relevant to the merits of the draft notice of appeal the applicants submitted that their case was similar to Gowda & Ors v Minister For Immigration & Anor [2016] FCCA 3491. The applicants submitted that the primary judge failed to consider the adverse consequences of the visa refusal on the applicants’ lives. The applicants submitted that the law was to make sure that the first applicant took an English test to prove her competency in English. There was ample proof of the first applicant’s English competency.

17    In oral submissions, the first applicant said she had the required English bands and that the online application system allowed her to go further despite her answering “no” to the question whether she had undertaken the IELTS test within the specified period.

18    The Minister filed written submissions. The Minister submitted there was no legal error in the decision of the primary judge and no prospect of success on the proposed appeal. It would therefore be futile to allow an extension of time for leave to appeal.

19    The Minister submitted that proposed Ground 1 corresponded to a submission made in relation to Ground 1 below, namely that the online visa application form was deceptive and misleading because it did not inform the first applicant that a particular result in an IELTS test undertaken within the specified period was a prerequisite for the visa and it was inherently unfair that the first applicant was able to continue to make her online visa application notwithstanding her answer “no” to the question whether she met that prerequisite. The Minister submitted the primary judge was correct to find that the complaint against the online visa form did not amount to a jurisdictional error in the decision of the Tribunal and that the form was not relevant to the Tribunal’s finding that the applicants did not satisfy the requirements for the visa. There was no arguable substance in proposed Ground 1.

20    Proposed Ground 2 repeated the complaint in Ground 2 below. There was no reason to doubt the correctness of the primary judge’s consideration of that ground of review. As noted by the primary judge, the High Court in Berenguel was considering an entirely different form of the provision. There was no arguable substance in proposed Ground 2.

21    In oral submissions, the Minister’s legal representative submitted that the first applicant had accepted the legal correctness of the decision of the primary judge. The Minister’s legal representative also submitted that the decision in Gowda was distinguishable as dealing with statutory provisions in a different form to those presently relevant.

Consideration

22    I turn to consider these submissions.

23    In my opinion there is no basis for considering that proposed Ground 1 has any prospects of success. What the applicants understood from the online form allowing the first applicant to lodge the completed form despite answering “no” to the question whether she met the language requirements has no bearing on whether the first applicant met the Minister’s specification for the purposes of cl 485.212(a)(ii) of Sch 2 to the Migration Regulations that the IELTS test must have been undertaken within the three years before the day on which the application was made.

24    In relation to proposed Ground 2, there is no basis for considering that this ground has any prospects of success. In my opinion, there is no arguable ambiguity in the terms of either cl 485.212 or IMMI 15/062. It is therefore not arguable that the Tribunal misconstrued the provisions or that the primary judge erred in so holding.

25    In my opinion, Gowda does not assist the applicants. This is because it is apparent, at least from [16] of the judgment in that case, that the relevant provisions did not involve a requirement that the applicant must have the appropriate score prior to making the application for the visa. It also appears that the decision of the Tribunal in that case was set aside on the basis that it made a jurisdictional error in not granting an adjournment.

Conclusion

26    The application for an extension of time and for leave to appeal is dismissed, with costs.

Associate:

Dated:    21 February 2018