De Silva v Minister for Immigration
[2019] FCCA 2558
•4 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DE SILVA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2558 |
| Catchwords: MIGRATION – Skilled (Residence)(Class VB) visa – Subclass 885 (Skilled – Independent) – application for extension of time in which to seek review of AAT decision – application filed some 21 months out of time – very substantial delay as a result of refusal of Ministerial intervention – whether an extension of time should be allowed in the interests of the administration of justice – claim destined to fail – no utility in extending time – extension of time refused – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 351, 476, 477 Federal Circuit Court Rules 2001 (Cth), r.44.05 |
| Cases cited: Huiyang Li v Minister for Immigration & Anor [2011] FMCA 12 Kaur v Minister for Immigration and Border Protection [2015] FCA 584 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 SZMFJ v Minister for Immigration and Citizenship [2009] FMCA 771 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 WZASC v Minister for Immigration and Anor [2013] FCCA 1452 |
| First Applicant: | WIJAYAMUNI MANOJ SRIVANKA DE SILVA |
| Second Applicant: | RAMMINI NIROSHA DE SILVA DHARMAWICKRAMA |
| Third Applicant: | WIJAYAMUNI CHAMATH DEAUMIN DE SILVA |
| Fourth Applicant: | WIJAYAMUNI RAYAN NIMSARA DE SILVA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1457 of 2016 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 9 May 2018 |
| Date of Last Submission: | 9 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2019 |
REPRESENTATION
| First Applicant: | In person |
Second, Third and Forth Applicants: No Appearance
| Counsel for the Respondents: | Ms Nyabally |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The Application is dismissed.
The Applicants pay the First Respondent’s costs fixed at $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1457 of 2016
| WIJAYAMUNI MANOJ SRIVANKA DE SILVA |
First Applicant
| RAMMINI NIROSHA DE SILVA DHARMAWICKRAMA |
Second Applicant
| WIJAYAMUNI CHAMATH DEAUMIN DE SILVA |
Third Applicant
| WIJAYAMUNI RAYAN NIMSARA DE SILVA |
Fourth Applicant
and
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants filed an application dated 8 July 2016 (Application) for an order pursuant to s.476 of the Migration Act 1958 (Cth) (MigrationAct). The First Applicant is the primary applicant and the others apply as family members. I refer to the First Applicant as the Applicant for convenience.
The Applicant is a citizen of Sri Lanka. On 30 September 2013 a delegate of the First Respondent (Delegate) refused to grant the Applicant a Skilled (Residence)(Class VB) visa (Visa) under s.65 of the Migration Act (Delegate’s Decision)[1]. On 18 October 2013 the Applicant applied to the Administrative Appeals Tribunal (then the Migration Review Tribunal) (Tribunal) for a review of the Delegate’s Decision[2]. On 28 August 2014 the Tribunal affirmed the Delegate’s Decision (Tribunal Decision)[3].
[1] Court Book (CB) [98]-[107].
[2] Ibid; [108]-[118].
[3] Affidavit of the Applicant, filed 18.7.16, Annexure.
In the Application the Applicant now seeks an extension of time pursuant to s.477(2) of the Migration Act (Extension of Time Application) to enable him to proceed with an application to review the Tribunal Decision (Substantive Application).
The Substantive Application and the Extension of Time Application were filed in this Court on 8 July 2016. The Substantive Application should have been made within the 35 day period as specified in s.477(1) of the Migration Act. The Applicant is therefore some 21 months out of time. Section 477(2) of the Migration Act provides however that the Court may order that the 35 day period be extended if the conditions in s.477(2)(a) and (b) are satisfied. The Applicant seeks an extension of time pursuant to s.477(2) of the Migration Act. Section 477(2) provides:
The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the administration of justice to make the order.
The Extension of Time Application is supported by the Affidavit of the Applicant, filed on 8 July 2016 (Applicant’s Affidavit). The Applicant’s Affidavit provides evidence required by r.44.05 of the Federal Circuit Court Rules 2001 (Cth), which requires that if an extension of time is sought, the application must be supported by an Affidavit including:
(2)…
…
(c)[…] the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The reason posited for the delay in filing the Application, as expressed in the Application, is:
“The Administrative Appeal Tribunal referred this matter to the minister for Immigration for his consideration under sec.351
of the Migration Act 1958 without giving the applicant an opportunity to place his argument before the Administrative Appeal Tribunal and the applicant was awaiting a favourable decision from the Minister as indicated by the member of the AAT (sic)”[4].
[4] Application, Grounds of application for extension of time.
Construing this as favourably to the Applicant as one can, it would seem that the reason posited for the delay is that reference to the First Respondent (Minister) pursuant to s.351 of the Migration Act.
As the written submissions on behalf of the Minister point out, matters usually considered by the Court in respect of applications for extensions of time include the extent and reason for delay, whether there is any merit in the application, and whether there is any prejudice to the respondents (SZMFJ v Minister for Immigration and Anor [2009] FMCA 771 at [44]; Huiyang Li v Minister for Immigration & Anor [2011] FMCA 12 at [35]; WZASC v Minister for Immigration and Anor [2013] FCCA 1452 at [7]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. Also see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 per Mortimer J at [63] and MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 per Murphy J).
The only explanation for the delay proffered
by the Applicant in the Application is the reference to the Minister pursuant to s.351 of the Migration Act. Correspondence from the Minister’s Department is annexed to the Applicant’s Affidavit. This correspondence is dated 1 July 2016 and notified the Applicant that the request for public interest intervention under s.351 of the Migration Act had been rejected.
The Minister’s submissions detail a number of authorities for the proposition that an intervention request is not of itself an acceptable explanation for the delay in lodging an appeal (e.g. MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [15]). Given the Applicant’s lack of English and lack of legal understanding, I would be prepared to give the Applicant in this case the benefit of the doubt as to why it was he did not immediately seek to review the Tribunal Decision. Nonetheless, it needs to be borne in mind that the period of the delay is of itself extremely lengthy.
The real difficulty the Applicant faces, however, is that his claim is destined to fail. It should be noted that despite having been given the opportunity to file any further submissions by Orders of Registrar Caporale on 21 December 2016, the Applicant has filed no further documentation to elaborate his position.
At the hearing before the Court, the Applicant clarified that the reason for the delay was because:
“The Tribunal referred the matter to the Minister so I was expecting a decision from the Minister. I didn’t know during which time period the decision would be delivered. That is the reason for the delay”[5].
[5] Transcript T3:31-33.
It should be noted that at the hearing, I raised with the Applicant the Minister’s primary point that the Tribunal had no discretion to waive the criteria that was required for competency in English for a subclass 885 visa[6]. The Applicant did not respond meaningfully to the question[7].
I accept that that is understandable given his circumstances, but it does not address the issue.
[6] Ibid; T4:33-36.
[7] Ibid; T4:37-42.
The Tribunal set out the application and its history (which go back as long ago as November 2011), noting that the only relevant subclass visa for which the Applicant could apply was subclass 885 (Skilled – Independent). The Delegate refused to grant the Visas because the Applicant did not have the required English language proficiency.
The Tribunal made the relevant findings as follows:
“11. At the hearing, the applicant conceded that he had not been able to achieve the scores of 6 or above in each band in a single IELTS test undertaken during the relevant period. He told the Tribunal that he had tried 8 times before lodging the application.
12.There is no evidence before the Tribunal that the first named applicant undertook an IELTS or OET test in the 2 years immediately before the day on which the applicant was made and achieved the requisite score. The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).
13.On the basis of the above, the applicant does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed”[8].
[8] CB [161].
The Tribunal went on to consider Ministerial intervention and determined that it should occur.
It is on that footing that I have some measure of sympathy for the Applicants in relation to the delay.
The Applicant’s grounds of application simply do not engage with the failure to satisfy the mandatory requirements for the grant of a visa to which the Tribunal referred. As the Minister’s written submissions correctly assert at paragraph 11:
“… The applicant was required by cl 885.213 to satisfy the Minister he had “competent English”, namely that he had achieved the requisite score in a language test conducted in the two years immediately before the day on which the application was made: reg 1.15C.”
It was on this basis that the Delegate refused to grant the Visas, because the Applicant did not have competent English. Given the Applicant’s concession that he had failed to achieve the relevant score in his IELTS courses, the Tribunal had, as the Minister correctly submits, no discretion to waive the criterion of competent English.
In these circumstances, the Applicant’s case is destined to fail, and there would be no utility in providing an extension of time. This being so, it is plainly not in the interests of justice pursuant to s.477(2)(b) of the Migration Act to extend time.
I therefore refuse the Extension of Time Application and I will dismiss the Application accordingly.
It should be noted that I have not dealt with an aspect of the Applicant’s claims, discussed in the Minister’s submissions, relating
to whether or not the Tribunal’s referral for Ministerial intervention was appropriate or otherwise. Given the salient point made just previously, it is not necessary to do so. Similarly, I have not traversed the Applicant’s grounds of application in terms. It is sufficient to note, as I repeat, that they do not engage with the critical point upon which the Applicant did not and could not ever have succeeded. They are indeed further and in any event misconceived for the reasons given in the Minister’s submissions, which I refer to, but need not set out.
The Application will be dismissed with costs.
In this regard, I note that in Kaur v Minister for Immigration and Border Protection [2015] FCA 584, Mortimer J described show cause proceedings as interlocutory in nature. These proceedings do not appear to have been subject to Orders by Registrar Caporale that designated the proceeding as a show cause hearing. Looked at in the light of my experience in these matters, I think that this hearing was properly described, notwithstanding the fact that it sought an extension of time, as a final hearing, and costs will be ordered as sought by the Minister in the sum of $5,400, this being a figure reasonable in any event in the light of the scope and scale of the matter.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC.
Associate:
Date: 4 October 2019
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