Chahal v Minister for Immigration and Border Protection

[2015] FCA 181

FEDERAL COURT OF AUSTRALIA

Chahal v Minister for Immigration and Border Protection [2015] FCA 181

Citation:	Chahal v Minister for Immigration and Border Protection [2015] FCA 181
Appeal from:	Application for extension of time: Singh & Ors v Minister for Immigration and Border Protection & Anor (No 2) [2014] FCCA 2141
Parties:	RAJBIR CHAHAL (AKA RAJNI SINGH), PRABINDER CHAHAL (AKA PRABHINDER SINGH) and KIRAT KAUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION  and MIGRATION REVIEW TRIBUNAL
File number:	SAD 250 of 2014
Judge:	ALLSOP CJ
Date of judgment:	2 March 2015
Legislation:	Federal Court Rules 2011 (Cth) rr 35.13, 36.03 Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) reg 1.15C
Cases cited:	Singh & Ors v Minister for Immigration & Anor [2014] FCCA 1933 Singh & Ors v Minister for Immigration and Border Protection & Anor (No 2) [2014] FCCA 2141
Date of hearing:	2 March 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicants:	The applicants did not appear
Counsel for the First Respondent:	Mr R Knowles
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 250 of 2014

BETWEEN:

RAJBIR CHAHAL (AKA RAJNI SINGH)
First Applicant

PRABINDER CHAHAL (AKA PRABHINDER SINGH)
Second Applicant

KIRAT KAUR
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	2 MARCH 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The first applicant pay the costs of the first respondent.

3.The first respondent make the first applicant aware of the terms of these orders by serving on her a copy of the orders and the reasons for decision once they are made available to the first respondent by the Chief Justice’s Associate.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 250 of 2014

BETWEEN:

RAJBIR CHAHAL (AKA RAJNI SINGH)
First Applicant

PRABINDER CHAHAL (AKA PRABHINDER SINGH)
Second Applicant

KIRAT KAUR
Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP CJ
DATE:	2 MARCH 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal from orders made by a Federal Circuit Court judge dismissing an application for review in that Court.  The better construction of the application is probably that it is an application for an extension of time in which to file and serve an application for leave to appeal.  The precise form of the application before me is of no significant consequence.  Whether an application for leave to appeal or a notice of appeal is the proper process – either was out of time under the Federal Court Rules 2011 (Cth) (the Rules), being r 35.13 (14 days) for an application for leave to appeal or r 36.03 (21 days) for a notice of appeal.

2. The gist of the complaint of the applicants will be described in a moment.  The first-named applicant is the person primarily the focus of the decision of the Migration Review Tribunal (the Tribunal). The second and third are her family members, whose application for a visa is dependent upon hers. The relevant facts, to the extent that they need to be stated today, are contained in the decision record of the Tribunal made 30 September 2013. The application before the Federal Circuit Court was for review of a decision made by a delegate of the Minister to refuse the grant of Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The essential problem for the applicants for those visas is the failure to establish before the Tribunal what was required for the conclusion that the first applicant had competent English for the purposes of reg 1.15C of the Migration Regulations 1994 (Cth) (the Regulations), which was in the following terms as at 18 August 2011 (the date of the applicants’ visa applications):

   If a person applies for a General Skilled Migration visa – the person has competent English if the person:

   (a)       satisfies the Minister that:

   (i)the person undertook a language test specified by the Minister in an instrument in writing for this subparagraph;  and

   (ii)the test was conducted in the 2 years immediately before the day on which the application was made;  and

   (iii)      the person achieved a score specified in the instrument;  or

   (b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

3. The types of passports referred to in paragraph (b) were passports issued by the United States of America, Canada, the United Kingdom, New Zealand and the Republic of Ireland.  Therefore, to establish competent English, an objective test result achieved within the two years immediately prior to the application needed to be produced to the satisfaction of the Minister.  There was no evidence before the Tribunal that this had been done, although Mrs Singh – or Chahal, being the same person – said she spoke competent English and had worked in this country for a number of years.  The question of competent English was a matter to be proved pursuant to the Regulations.  Before the Federal Circuit Court, Mrs Chahal (Singh) complained about the decision-making of the Tribunal. The matter came before the Federal Circuit Court twice, once on 22 July 2014 (Singh & Ors v Minister for Immigration & Anor [2014] FCCA 1933) and again on 1 September 2014 (Singh & Ors v Minister for Immigration and Border Protection & Anor (No 2) [2014] FCCA 2141).

4. On the first occasion, Mrs Chahal (Singh) did not appear.  And on the second occasion the Federal Circuit Court judge refused to set aside the orders dismissing the application that had been made on the first occasion.  There were two bases for not setting aside those orders.  There had been, it was thought, an inadequate explanation for the failure to appear, but also the difficulty with  of the absence of evidence to which I have referred.  An application for an extension of time was filed in this Court.  That application and the draft notice of appeal both complain about the Tribunal decision.  In those documents Ms Chahal (Singh) says that she has studied in Australia and worked here, she had been here for more than four years, and it would not have been possible without having English skills to perform work, study and live in Australia.   She says that the basis of this English test is wrong, and her Australian study, work and period of stay should be considered when assessing her English ability.  That is the gist of her complaint. 

5. The difficulty she faces in the substance of any appeal, subject to any argument she may put, is that reg 1.15C appears to require objective testing or proof of citizenship of a prescribed country to be the basis of the Minister’s satisfaction.

6. At 11.42 am on 28 February 2015 (a Saturday), the Court received a one-line medical certificate from a Dr Natalia Katsikitis in Hindmarsh Square, practising under the name Globe Medical (Adelaide) Pty Limited, stating that it is her professional opinion that Mrs Rajni Singh will be unfit for her normal work from today to 4 March 2015 inclusive. It purports to be signed by Dr Katsikitis. No other explanation was given. I note that the date of the medical certificate is Saturday, 28 February 2015. It is not clear whether it was provided to the Minister, but the Minister’s representative was not aware of it when the matter was called at 2.15pm. In those circumstances, I am not prepared to accede to any adjournment request implied by Mrs Chahal (Singh) who was absent when the matter was called. Mrs Chahal (Singh) will have a right under the Rules to seek to set aside any order made in her absence that is unfavourable to her. That is an application she can make if she wishes.

7. There being no adequate explanation as to why the matter is out of time, but most particularly because of the apparent insuperability of reg 1.15C making the application futile, I will dismiss the application for an extension of time, whether it be made for an extension of time to file and serve an application for leave to appeal or to file and serve a notice of appeal.

8. The orders of the Court are that:

   (1)The application for an extension of time be dismissed.

   (2)The first applicant pay the costs of the first respondent. 

   (3)The first respondent make the first applicant aware of the terms of these orders by serving on her a copy of the orders and the reasons for decision when they are made available to the first respondent by the Chief Justice’s Associate.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop .

Associate:

Dated:        6 March 2015