DHALIWAL v Minister for Immigration

[2017] FCCA 2178

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHALIWAL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2178

Catchwords:
MIGRATION – Application to extend time for the making an application –  application 16 months out of time – repeated failure to establish requisite English language proficiency – no reasonable explanation for delay – no reasonable prospects of successfully challenging the Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.477

Migration Regulations 1994, r.1.15C

MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426

First Applicant: PRABHJOT DHALIWAL

Second Applicant: KANWARJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2522 of 2015

Judgment of: Judge McNab

Hearing date: 13 July 2017

Date of Last Submission: 13 July 2017

Delivered at: Melbourne

Delivered on: 13 July 2017

REPRESENTATION

The First Applicant in person
Solicitors for the First Respondent:	Ms Groves, Australian Government Solicitor

ORDERS

1. The application filed 11 November 2015 be dismissed.

2. The First Applicant pay the First Respondent’s costs fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2522 of 2015

PRABHJOT DHALIWAL

First Applicant

KANWARJIT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 12 November 2015, the Applicants made an application in this Court seeking judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 18 June 2014. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection in refusing to grant the Applicants Skilled (Residence) (Class VB) visas. The application was filed about 16 months out of time. The Applicants make an application to extend the time for making the application, pursuant to s.477(2) of the Migration Act1958 (Cth) (‘Migration Act’).

2. The Court has discretion to extend the 35 day period in which to lodge an application if it is of the view that the interests of justice require such an extension. The relevant factors that the Court takes into account in the exercise of its discretionary power under s.477(2) are: the extent of the delay; whether there is a reasonable explanation for the delay; whether there is any prejudice to either party in granting or refusing the grant of an extension; and whether the application has reasonable prospects of success.

3. In relation to the Applicants’ grounds of review, the grounds of application set out in its application are that:

   1. The Refugee Review Tribunal did not afford procedural fairness.

   2. The Refugee Review Tribunal applied the wrong legal test.

4. In submissions before the Court and as set out in the first named Applicant’s affidavit in support of the application, she refers to a letter from the Minister dated 24 September 2014, notifying the Applicants that the Minister had declined to intervene in their case. The first named Applicant’s explanation for the delay before the Court was that she had made an application to the Minister and was not aware of the time requirement to file the application within 35 days of the making of the decision by the Tribunal.  In my view, the explanation provided for the very significant delay is not satisfactory.  In that regard, I refer to the decision of the Federal Court in MZZYC v Minister for Immigration and Border Protection [2015] FCA 1426 at [4].

5. In relation to whether the application for review has any reasonable prospects of success, I note that the application itself does not set out the grounds of review in any detail.  I do understand that the Applicants are self-represented, however, no ground was advanced which would persuade me that there was any reasonable prospects of successfully challenging the Tribunal’s decision.

Background

1. The Applicant applied for a visa on 27 June 2010.  On 20 September 2013, a delegate of the Minister refused that application on the basis that the first named Applicant did not have requisite English language proficiency to satisfy the visa criteria.  The Applicants applied to the Tribunal for review of the delegate’s decision on 8 October 2013.  The first named Applicant attended a hearing before the Tribunal on 24 January 2014 to give evidence and present arguments, and on 18 June 2014, the Tribunal affirmed the delegate’s decision not to grant the visa.

2. The Tribunal considered the requirements of cl.885.213 of sch. 2 to the Migration Regulations 1994, and identified that the first named Applicant was required to demonstrate the she had competent English as defined by r.1.15C. At paragraph [7] of the decision,[1] the Tribunal identified that the issue in the case before it was whether the Applicant had competent English as required by cl.885.213. Regulation 1.15C(a) provides that a person has competent English if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged, either:

   i)an IELTS score of at least six for each of the four test components; or

   ii)a score in a test specified by the Minister.

   [1] Tribunal decision dated 18 June 2014.

3. At paragraph [11],[2] the Tribunal stated that more than two years had passed since the visa application was lodged and competent English had not been demonstrated (for example, by achieving the minimum scores in an English test and then submitting the results).  The Tribunal noted that neither the Department nor the Tribunal was required to wait indefinitely for the required evidence and that more than two years seemed to be a sufficient time to attempt an English language test (numerous times, if necessary) to demonstrate competent English language skills.

   [2] Ibid.

4. The Tribunal informed the Applicant that despite the long passage of time since the application was lodged, it could provide an extension of time as follows: 

   the Applicant has until 31 January 2014 to provide evidence that a relevant language test has been booked or that competent English has been achieved (if no evidence was provided by that date, the Tribunal would proceed with a decision); if a test has been booked, the results were to be provided to the Tribunal by 26 March 2014, and if not, and competent English is not otherwise demonstrated, the Tribunal would proceed with a decision.  The Applicant was finally informed that, given the very substantial time the Applicant had already had to demonstrate competent English, the above deadlines would be strictly adhered to by the Tribunal.[3]

   [3] Tribunal decision dated 18 June 2014 [11].

5. At paragraph [13],[4] the Tribunal noted that after the hearing the parties submitted evidence of one or more further English test bookings, the last booking date of which was 3 May 2014. At the date of the Tribunal decision, on 18 June 2014, no test results or further communication had been received by the Tribunal, and it was noted to be approaching three months beyond the final date given to the parties at the hearing, and more than a month after the last test date informed to the Tribunal. The Tribunal held that the Applicant did not have competent English as defined by r.1.15C(a).

   [4] Ibid [13].

6. No material has been put before the Court that would suggest that the Tribunal was wrong in finding that the Applicant had not established competent English as defined in the regulation.

7. In relation to a suggestion there had been a failure to accord procedural fairness, I note that there had been a hearing and an extension of time provided, and a further extension beyond the time set by the Tribunal.  It would appear that there has been every opportunity provided to the Applicant to establish competency in the English language to the level required by the regulation.

8. For these reasons, the Court is of the view that there is no reasonable prospect of the Applicants succeeding in an a challenge to the Tribunal’s decision. There is no utility in granting an extension of time pursuant to s.477(2) of the Act. In those circumstances, the Court dismisses the application.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 8 September 2017