FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration and Border Protection [2018] FCA 1182

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

Introduction

1    This is an application, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules), for an extension of time within in which to appeal against a decision of the Federal Circuit Court dated 8 March 2018. The Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (formerly the Migration Review Tribunal) (the Tribunal) to affirm a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the applicant a Skilled (Residence) (Class VB) visa.

Background

2    The applicant applied for a Subclass 885 visa on 1 September 2011. That application was refused by a delegate of the Minister on 12 May 2015. In order to be granted a Subclass 855 visa, the applicant was required to satisfy the criteria in cl 885 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Specifically, the delegate was not satisfied that the applicant met the English language requirement under cl 885.221 of Sch 2 to the Regulations, which in turn required the applicant to meet the “points test” under Sch 6B or Sch 6C to the Regulations.

The Tribunal proceedings

3    The applicant sought review by the Tribunal of the delegate’s decision and appeared before the Tribunal in relation to the review on 25 November 2016. The applicant was represented by her migration agent. The Tribunal identified the issue that it was to determine as whether the applicant satisfied cl 885.221, which requires that the applicant has the “qualifying score” when assessed under Subdiv B of Div 3 of Pt 2 of the Migration Act 1958 (Cth) (Act), specifically ss 92 to 96 of the Act. This subdivision establishes a points system under which the applicant receives a certain number of point for each prescribed qualification that is satisfied in relation to the applicant. The prescribed number of points for prescribed qualifications are set out in Sch 6B to the Regulations, and also in Sch 6C to the Regulations in relation to applications for a points tested General Skilled Migration filed on or after 1 July 2011 but prior to 1 January 2013. The Tribunal was required to consider both points systems in relation to the applicant.

4    At the hearing on 25 November 2016, the Tribunal granted a request by the applicant that the Tribunal postpone the making of its decision until the applicant was able to provide the results from a further International English Language Testing System (IELTS) test. The applicant undertook the two IELTS tests in December 2016 and the applicant’s representative provided the results of those tests to the Tribunal on 6 January 2017. At that time, the applicant also indicated that she was seeking to have the tests remarked and that she would provide those results to the Tribunal within two months. In the absence of additional documentation provided in relation to any remarked test results, the Tribunal proceeded to make its decision on 23 March 2017.

5    On the basis of the material before it, which included the results from 34 IELTS tests, the Tribunal considered that the applicant’s test results showed that she had “competent English”, but not the minimum requirement of “proficient English”. The Tribunal assessed the applicant’s score under Sch 6B as 115 points, which was less than the required score of 120. The Tribunal then considered the applicant’s qualifications in accordance with the Sch 6C scoring system and concluded that the applicant had a score of 50, where the qualifying score was 65 points.

6    Accordingly, the Tribunal concluded that the applicant did not have the requisite score either under Sch 6B or Sch 6C, such that she did not meet the criteria under cl 885.221 of Sch 2 to the Regulations. The Tribunal affirmed the decision of the delegate on 23 March 2017.

The Federal Circuit Court proceedings

7    The applicant filed an application to show cause in the Federal Circuit Court on 18 April 2017. The orders sought by the applicant and the grounds of the application set out in the attachment to the application were:

Orders sought by Applicant

1.    I disagree with Immigration and AAT’s decision. They did not consider that I have a genuine intention to apply for subclass 885.

2.    In fact, I have been always trying to pass IELTS 7 with each component and I did explain my situation with AAT for my special situation.

3.    I could not obtain the working experience due to situation beyond my control.

The Grounds of the Application are:

1.    I am a Chinese citizen and as completed relevant qualifications for subclass 885.

2.    AAT did not well consider my actual situation for not being able to achieve my IELTS score due to situation beyond my control

3.    I wish the court could give me a fair decision and allow me to apply for subclass 885 onshore.

8    The primary Judge held that paragraphs 1 and 2 under “Orders” and paragraph 2 under “Grounds” did not reveal any jurisdictional error by the Tribunal because they did not relate to the task of the Tribunal in considering the criteria under cl 885.221 of Sch 2 to the Regulations. The primary Judge considered that the Tribunal had not expressed any doubt as to the genuineness of the applicant’s intentions in applying for the visa and simply recorded the applicant’s scores in accordance with the points systems.

9    As to paragraph 3 under “Orders”, the primary Judge found that there was nothing in either of the points systems under Sch 6B and Sch 6C that allowed the Tribunal to allocate points for genuinely attempting to obtain work experience.

10    In relation to paragraph 1 under “Grounds”, the primary Judge found that the Tribunal had considered and accepted the applicant’s study qualifications and had allocated the maximum number of points to those qualifications.

11    Finally, the primary Judge did not consider that paragraph 3 under “Grounds” established any jurisdictional error on the part of the Tribunal.

12    The primary Judge, therefore, dismissed the application for review.

Application for an extension of time

13    Rule 36.03 of the Rules requires that an appeal be filed and served within 21 days after the date when the orders or judgments were pronounced. However, the Court has power to extend that period under r 36.05 of the Rules and, in considering whether to extend time, the Court is to have regard to the following:

    the extent of the delay;

    whether the applicant has given an adequately explanation for the delay;

    any prejudice to the respondent(s); and

    whether there is merit in the proposed grounds of appeal.

The extent of and explanation for the delay

14    In these circumstances, the last day on which the applicant could have duly filed a notice of appeal was 29 March 2018. The application was filed on 3 April 2018, making it five days out of time. That delay is by no means significant; however, I note the comments of Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3] that:

… the time limits prescribed by the Court Rules are not mere aspirational guidelines. They are intended to mark out the period in which it is expected that any appeal might be lodged. Once that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs.

15    In the affidavit of Wei Lu dated 29 March 2018, Ms Lu deposes that her reason for the delay in filing the appeal is her financial hardship. The applicant deposes that she cannot afford her legal costs and asks that the Court consider her difficult situation and accept her application for further appeal.

Prejudice to the respondent

16    The Minister does not contend that there would be any particular prejudice if the Court were to grant the extension of time sought.

The draft notice of appeal

17    The Minister’s primary contention is that the application for an extension of time should be dismissed because the draft grounds of appeal do not establish that the decision of the primary Judge is attended by sufficient doubt.

18    The draft grounds of appeal set out in the affidavit accompanying the affidavit are as follows:

1.    AAT and Federal Circuit Court failed to consider my explanation and supporting documents to support my appeal which I believe it is a legal error

2.    I am a Chinese overseas student with genuine intention studying in Australia and never breached my visa condition.

3.    AAT member and the Federal court did not well consider my actual situation with IELTS test.

19    The Minister makes the following submissions in relation to the substantive merits of the applicant’s proposed grounds of appeal:

    Ground 1: the appellant has failed to particularise what explanation and supporting documents the Tribunal, or the primary Judge, failed to consider. The Tribunal considered the evidence provided by the applicant and even postponed the making of its decision until the applicant was able to provide further and remarked test results. The Minister further submitted that the primary Judge had considered all of the applicant’s claims.

    Ground 2: the criteria in cl 885.221 did not require that the applicant to have a genuine intention to study in Australia, so the primary Judge was correct in finding that the Tribunal was not required, nor permitted, to have regard to this in making its decision.

    Ground 3: the Tribunal clearly had regard to the applicant’s situation regarding her IELTS scores. The primary Judge was correct in considering that there was no criteria as to the genuineness of the applicant’s attempts under cl 885.221 of Sch 2 to the Regulations.

Consideration

20    Although I have had regard to the fact that prescribed time limits are not to be viewed as “mere aspirational guidelines”, I do not consider that the delay in this instance is of such significance that I should dismiss the application for an extension of time on this basis. Further, the applicant has provided at least some explanation for the short delay and it is not suggested that there will be any prejudice to the Minister if the short extension is granted.

21    However, in an application for an extension of time, it is critical that the applicant demonstrate that their appeal has sufficient prospects of success. I do not consider that the applicant has been able to do so in these circumstances and I consider that the proposed grounds of appeal are without merit for the following reasons.

22    In relation to ground 1, the applicant has not identified any specific considerations that the Tribunal should have taken into account, and simply asserts broadly that the Tribunal and the Federal Circuit Court failed to consider her “explanation and supporting documents”. As regards the Tribunal, the primary Judge was correct at [20] to find that the Tribunal had considered her evidence. In this respect, it is also of significance that the Tribunal postponed making its decision on multiple occasions to allow the applicant to provide it with additional or amended test results. Further, the primary Judge in his reasons for his decision addressed all of the matters raised by the applicant in the material filed in the Federal Circuit Court. In the absence of any particularised error on the part of the primary Judge, this proposed ground has no merit.

23    Proposed ground 2 does not assert any error on the part of the primary Judge. The Minister correctly submitted that this ground misapprehends the task of the Tribunal in making its decision regarding the criteria in cl 885.221 of Sch 2 to the Regulations. Clause 885.221 does not contain any reference to a criterion that the applicant’s intentions to study in Australia are genuine, and so proposed ground 2 reveals no jurisdictional error. For that reason, this ground is without merit.

24    Finally, ground 3 is also without sufficient merit to warrant the grant of an extension. As the Minister identified in his submissions, the Tribunal had regard to the applicant’s numerous IELTS scores at [10]-[12], [17]-[18] and [40]-[41] of its reasons for decision. The primary Judge also made specific reference to the applicant’s results in each of the skills of Listening, Speaking, Reading and Writing of the various IELTS tests undertaken by the applicant at [5]-[10] of the reasons for decision.

25    In conclusion, I note that, at the hearing, the applicant represented herself without an interpreter, and was able to speak English authoritatively, capably and fluently on her own behalf, and on complex issues associated with this application, for a significant period of time. It is a matter of some surprise that the applicant has not been considered proficient in her English skills. I note, however, that the requisite standard requires satisfaction of certain tests, pursuant to a strict and technical regime under the Regulations. It may well be that, notwithstanding her obvious skill in speaking and understanding English, both colloquially and technically, the applicant has simply not tested well. This, of course, is an issue of fact, and is potentially one in respect of which the Minister could exercise his discretion in the applicant’s favour.

26    The appropriate order, however, is to dismiss the application with costs.

Associate:

Dated:    8 August 2018