Ahmed v Minister for Immigration

[2016] FCCA 370

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 370

Catchwords:
MIGRATION – Whether in the administration of justice an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) should be granted – application for an extension of time refused.

Legislation:

Migration Act 1958 (Cth), s. 477
Migration Regulations 1994 (Cth), r.1.15C, cl.485.215 of sch.2
Instrument number IMMI 12/018 “Language Tests, Scores and Passports”, legislative instrument F2012L01287

First Applicant: NAEEM AHMED

Second Applicant SARA ZAFER KHAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 913 of 2015

Judgment of: Judge Jones

Hearing date: 29 January 2016

Date of Last Submission: 29 January 2016

Delivered at: Melbourne

Delivered on: 29 January 2016

REPRESENTATION

Solicitors for the Applicants: Self-represented

Solicitor Advocate for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application for an extension of time for the Applicants’ judicial review is refused.

3. The Applicants pay the First Respondent’s costs fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 913 of 2015

NAEEM  AHMED

First Applicant

SARA ZAFER KHAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for an extension of time to apply for judicial review in relation to a decision of the Second Respondent (“the Tribunal”), dated 27 February 2014, affirming a decision of the delegate of the First Respondent (“the delegate”) not to grant the First Applicant, Naeem Ahmed, a Skilled (Provisional) (Class VC) visa (“the visa”).

2. The substantive application was filed on 28 April 2015. Any application in relation to the Tribunal decision was required to have been made within the 35-day period, specified by s.477(1) of the Migration Act 1958 (“the Act”).  That would be, by the calculations of the Minister for Immigration (“the Minister”), and I am satisfied that that is correct, by 3 April 2014.  The Applicant is therefore 390 days out of time.

3. Section 477(2) of the Act, however, provides that the Court may, in certain circumstances, Order that the 35-day period be extended. It provides that the Court, if it considers it appropriate, can extend the time, if an application for that Order has been made in writing to the Court, which the Applicants have done, and if the Court is satisfied that it is necessary in the administration of justice to make the Order.

4. There are various decisions of the Courts about the non-exhaustive list of factors to be considered by a Judge in determining whether an extension of time is in the interests of the administration of justice.  They are well-settled, and they include:

   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 Applicant and other persons otherwise in similar positions.

5. The Minister’s submission is that in this case the delay, the lack of sufficient reasons for the delay and the lack of merit in the proposed substantive application, means that the Court should refuse to grant an extension of time.  The Applicants, who are husband and wife, have provided grounds for why they seek an extension of time.  They have provided contentions of fact and law, which largely go to the question of delay and the explanation for it.

6. I will firstly deal with the delay itself.  It is a substantial delay, as I have indicated to the Applicants, because the application was not made until 390 days out of time.  That is more than one year.  The explanation of the Applicants was that following the Tribunal decision, the First Applicant suffered depression.  A person informed him that he could apply to the Minister to have his decision dealt with in an appropriate way.  This is stated in their application and contentions of fact and law. I appreciate this is not an affidavit, but I am satisfied that I can treat it as their reasons.  The First Applicant developed reactive depression, as a result of his chronic relapsing pancreatic difficulties.  I am not sure what the pancreatic issue is, but I am satisfied it is not pancreatic cancer.  Nevertheless, I accept that any pancreatic medical issue is very difficult to deal with.

7. The First Applicant was informed by a person, who I assume is a colleague or a friend, that he should be requesting the Minister to exercise his discretion.  He says he was not told about the possibility of judicial review, he is a foreigner and does not understand the law.  He applied to the Minister in 2014, and the Minister made his decision on 16 April 2015.  Shortly thereafter, he filed his application for judicial review.

8. I must say that, whilst I am sympathetic to the Applicant’s medical condition, there are many Applicants who are in the position of these Applicants, who are foreigners, who do not know the law, but do take steps to ascertain the law from various legal centres that are available on a community basis.  I am not convinced by this explanation, because the delay was for such a long period of time.  However, had the merits of their case been strong, then I would have overlooked the lengthy time of delay and reasons, which I have not found convincing.

9. It is appropriate now that I turn to the merits of the application.  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.  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]).

20. The Applicants in their application for judicial review, which was filed on 28 April 2015, provide grounds for judicial review as follows:

    1.  The decision of the Migration Review Tribunal is made without jurisdiction and is affected by jurisdictional error.

    Particulars

    a. I say that the tribunal has erred and I 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.

21. As the Applicants were self-represented, I explained the nature of the proceedings today, the matters that the Court must be satisfied of and explained to the Applicants that the Court’s function is solely to look at the Tribunal decision and decide whether it has made a jurisdictional error or, as I described it to the Applicants, a serious legal mistake.  I asked the Applicants, both the First Applicant and also his wife, to explain to the Court the basis for their grounds of judicial review. 

22. The Applicants’ submission essentially sets out the medical health issues that have affected the First Applicant after he made the application.  Their submission is that the First Applicant in completing the application for the visa on 31 December 2012, in the box which asks if you have undertaken an IELTS test, he said no.  They argue that given this is a requirement, which is compulsory for the grant of a visa, at that point, the application should have been rejected and not considered by the delegate.  In essence, they argue that the systems in place, by the Department, for the online filing of applications, are fundamentally flawed, given that the applicants, who apply for this visa, are foreign Applicants, who generally will not have any understanding of the law. 

23. They also set out, and I accept this submission, that they have suffered extreme hardship during the process that they have engaged in, from the application to the Tribunal and now here.  However, the fact is that the Court can only apply the law.  It is Parliament who enacts the law.  The Department sets up the systems with which to enable Applicants to file applications.  The only thing that the Court can look at, unfortunately for the Applicants, and I say very unfortunately, is whether, in fact, the Tribunal applied the law correctly. 

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.

25. For these reasons I refuse to grant an extension of time.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 24 February 2016