Ashraf v Minister for Immigration and Border Protection

[2015] FCA 167

FEDERAL COURT OF AUSTRALIA

Ashraf v Minister for Immigration and Border Protection [2015] FCA 167

Citation:	Ashraf v Minister for Immigration and Border Protection [2015] FCA 167
Appeal from:	Application for extension of time and leave to appeal: Ashraf v Minister for Immigration and Border Protection & Anor [2014] FCA 2758
Parties:	HAROON ASHRAF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	VID 657 of 2014
Judge:	PAGONE J
Date of judgment:	24 February 2015
Catchwords:	MIGRATION – Application for extension of time and leave to appeal against decision of Federal Circuit Court dismissing application for judicial review – where Migration Review Tribunal refused to grant applicant visa – where applicant failed to provide evidence of ‘competent English’ – whether arguable basis for judicial review.
Legislation:	Migration Regulations 1994 (Cth) reg 1.15C
Date of hearing:	24 February 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr A Solomon-Bridge
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 657 of 2014

BETWEEN:

HAROON ASHRAF
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	24 FEBRUARY 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 657 of 2014

BETWEEN:

HAROON ASHRAF
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	PAGONE J
DATE:	24 FEBRUARY 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application by Haroon Ashraf dated 5 November 2014 for leave to appeal and an extension of time in which to apply for leave.  The grounds in the application do not reveal any basis for Mr Ashraf’s application.  Three grounds are stated but each indicates that he is not able to make out a ground of appeal.  They are:

   1.        I have received only the order of the court dated 15^th October 2014.

   2.        I have not received any written judgment of the court.

   3.I do not know whether I need leave to appeal the decision of the court but to the extent that I do need leave of this court, then I seek leave on the basis that I do not have an understanding of the law, I do not know what time was permitted to seek leave and I have not received any written decision of the court other than the attached orders.

   What is attached to the application are the orders made by the learned Federal Circuit Court judge.  It is clear from the grounds stated that what Mr Ashraf was saying was that he did not know, or did not have information available to him to determine, the grounds upon which an appeal could be made.

2. The learned Federal Circuit Court judge made his decision on 15 October of 2014 and gave oral reasons for his decision in precisely the same way that I am doing now.  The transcript of those reasons was then corrected, and on 24 November 2014 reasons were typed, and some time after that, the reasons were supplied to Mr Ashraf, as can be seen from the fact that Mr Ashraf this morning handed me some papers, including two pages from those reasons.

3. It is clear that the reason that Mr Ashraf is aggrieved by the decision is that he had not been able to prove that he had undertaken an English test within two years of the date of his visa application as required by reg 1.15C of the Migration Regulations 1994 (Cth). Mr Ashraf does not contest that fact, but says that he was not aware that he could not rely upon a test completed after the 24-month period. Judge Riethmuller in his written reasons, no doubt reflecting what was said orally, said in paragraph [7]:

   A careful review of these provisions indicates that they do not make a representation that a test score obtained after the date of the visa application would be sufficient.

   However, his Honour went on to say that, as a matter of law, it did not appear that these matters were sufficient to enable the applicant to succeed in an application for judicial review, or ultimately to succeed in obtaining a visa, and therefore that it seemed to his Honour that the applicant’s case was not arguable, and that it was, in fact, doomed to fail.  That position has not changed for the purposes of today.

4. It is unfortunate that Mr Ashraf was not able to comply with the requirements at the time that he needed to comply with the requirements, but it is clear that he needed, but failed, to supply IELTS test results showing at least six in every category obtained within the 24 months prior to the day of the application for the visa, as required by reg 1.15C.

5. I have only limited information available to me about Mr Ashraf’s application, but it does seem that this is a case that might have gone differently if he, as he says, had not misunderstood the requirements.  It is clear from the form set out on page 3 of his Honour’s reasons that Mr Ashraf was asked whether he had undertaken an English test “within the last 24 months”.  That plainly is a reference to the 24 months preceding the date of the application.  The erroneous answer given by Mr Ashraf to that question was ‘yes’.

6. As I have said, the learned Federal Circuit Court judge reviewed the provisions and formed the view that they did not make a representation that a test score obtained after the date of the application would be sufficient.  Nonetheless, it is conceivable, and I have no reason to doubt Mr Ashraf when he says, that he was labouring under a misapprehension of what he was required to do, and on the limited information available to me, it would seem as though there might be some conceivable basis for the Minister to consider an exercise of discretion if an appropriate application were made. These, however, are matters that I am not able to take into account in an application for the review of the decision, and indeed, I touch upon those matters only because they were the burden of Mr Ashraf’s submissions, and to explain to him that have understood his point, but that his point is not something which bears upon the matter which I am bound to consider under law.

7. Accordingly, the application for extension of time and leave to appeal must be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate: 

Dated:        24 February 2015