Dhanoa v Minister for Immigration
[2014] FCCA 1535
•16 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHANOA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1535 |
| Catchwords: MIGRATION – Application for an extension of time for a show cause application – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.351, 477 |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Habib v Minister for Immigration & Anor [2010] FMCA 450 SZTSZ v Minister for Immigration & Anor [2014] FCCA 298 Younas v Minister for Immigration & Anor [2013] FCCA 595 |
| Applicant: | RANCHANDER SINGH DHANOA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1629 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Manille Sparke Helmore |
INTERLOCUTORY ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1629 of 2014
| RANCHANDER SINGH DHANOA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application for an extension of time for a show cause application filed on 16 June 2014. The show cause application seeks review of a decision of the Migration Review Tribunal (Tribunal) made on 9 January 2014. Section 477 of the Migration Act 1958 (Cth) (Migration Act) prescribes a 35 day period for the filing of a judicial review application following a decision of the Tribunal. It follows on my calculation that the deadline for the filing of the judicial review application was 13 February 2014. The delay involved is a delay of approximately four months.
The applicant, Mr Dhanoa, was alert to the need for an extension of time and sought it at the time he filed his application to the Court. He explained in that application that he had applied for ministerial intervention but that the Minister had declined to intervene. His affidavit filed at the same as his application, which I have before me, made the same point. The affidavit annexes the decision of the Tribunal as well as a letter from the Minister’s Department dated 3 June 2014 advising that the Assistant Minister for Immigration and Border Protection had decided not intervene.
When the matter came before me today, I explained to Mr Dhanoa the issues confronting him and enquired whether he would be willing to give oral evidence today on the question of the extension of time. He agreed to do so. He appeared initially with the assistance of a Punjabi interpreter but it was obvious that the interpreter was not required. Mr Dhanoa has an excellent command of spoken English. In his oral evidence, Mr Dhanoa stated that he came to Australia in 2008 to study and in 2010 he sought permanent residence. He was required to demonstrate English proficiency which at the time of his visa application relevantly required that he pass an English language International English Language Testing System (IELTS) test with a score of at least six in each element of the test. The delegate refused to grant the visa because Mr Dhanoa did not have the required English language proficiency.
Mr Dhanoa and other members of his family who had applied as members of his family group sought review before the Tribunal. Mr Dhanoa appeared before the Tribunal on 13 December 2013 to give evidence and present arguments. The Tribunal in its decision at [6]-[14] set out succinctly the principles to be applied and its decision on them:
The issue in the present case is whether the first named applicant has 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 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Alternatively, a person has competent English if he or she holds a passport of a type specified by the Minister (r.1.15C(b)).
The current instrument for r.1.15C is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C as in force before 1 July 2011 and there are no specifications for r.1.15C(a)(ii), although there are specified tests and scores for the equivalent provision as substituted on 1 July 2011. The Tribunal considers that this instrument should be construed as specifying scores, tests and passports for r.1.15C as in force on and after 1 July 2011, and that the applicable instrument in this case is IMMI 09/73, the instrument in force when the visa application was lodged. The Tribunal notes, however, that in both instruments the specified scores, tests, and passports are substantially the same.
In the present case, the first named applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b).
For r.1.15C(a) the Minister has specified a score of at least ‘B’ in each of the four components of an Occupational English Language test (OELT). Thus, an applicant can satisfy r.1.15C(a) by achieving the specified score in either an IELTS or an OELT, in a test undertaken after the application has been made, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417, Habib v MIAC [2010] FMCA 450.
In the visa application, the first named applicant indicated that he had not undertaken an English test within the previous 24 months. The applicants lodged with the Tribunal a copy of the Department’s Decision Record dated 16 October 2013. It indicates that on 21 June 2013 the delegate requested evidence that the first named applicant had competent English and that on 27 September 2013 the applicants lodged an IELTS Test Report Form in relation to an IELTS test undertaken by the first named applicant on 7 September 2013. The Test Report Form indicates that the first named applicant achieved scores of 6.0 for listening, 5.5 for reading, 5.5 for writing and 6.5 for speaking with an overall band score of 6.0.
At the hearing, the first named applicant gave evidence that he had booked an IELTS test on 14 December 2013 and the results of that test would be available on 2 January 2014. The Tribunal granted the first named applicant until 8 January 2014 to provide the Tribunal with the results of the IELTS test to be undertaken on 14 December 2013.
The first named applicant has not provided the Tribunal with the results of the IELTS test undertaken on 14 December 2013. There is therefore no evidence before the Tribunal that the first named applicant has competent English.
The Tribunal finds that the first named applicant does not have competent English as defined in r.1.15C(a).
On the basis of the above, the first named 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.
Mr Dhanoa in his evidence said that he received the Tribunal decision about a week after their decision was made. There were other documents which he received in correspondence from the Tribunal which provided him with information about his options. Mr Dhanoa, who had represented himself before the Tribunal, consulted friends who suggested that he seek ministerial intervention. Mr Dhanoa was aware that the Minister’s power of intervention under s.351 of the Migration Act was a broad one and that no fee would be required.
In contrast, Mr Dhanoa was aware that a fee of some $600 would be required to apply to the Court. He chose the option of seeking ministerial intervention. Unfortunately, that was unsuccessful. Mr Dhanoa, having received the Minister’s letter of 3 June 2014, consulted his family and decided to come to court. Mr Dhanoa also said that he considered that the rules applicable to the class of visa he had applied for are unfair because they had been tightened about six months before he applied for his visa on 25 June 2010. He acknowledged, however, that he was in one sense advantaged in that at the time he applied for the visa, it was possible for him to satisfy the English language test requirement at any time up to the date of decision on his visa. This had the result that he had approximately four years to satisfy the requirement, taking into account the initial decision and the review by the Tribunal. Mr Dhanoa said that he had sat some 14 IELTS tests and had not been able to pass any of them. While his spoken English is very good, he has had more difficulty with the reading, writing and listening elements.
The grounds in the application assert that Mr Dhanoa did not have sufficient time to satisfy the English language requirement. Secondly, they assert that he should be able to demonstrate his English language proficiency in some other way. Thirdly, that he has booked another IELTS exam. Those grounds do not provide a platform for any arguable challenge to the legal validity of the Tribunal decision.
I have come to the view that Mr Dhanoa’s application for an extension of time should be refused. First, the delay of some four months is not insignificant. Parliament has prescribed a period for the filing of judicial review applications and, in general, that time limitation should be adhered to.
Secondly, I do not accept that the approach to the Minister for intervention provides a sufficient explanation for the delay. I note that the issue was addressed by this Court in SZTSZ v Minister for Immigration & Anor[1]. I respectfully agree with the views there expressed by Judge Emmett. I have reached a similar conclusion myself in a number of cases, including Younas v Minister for Immigration & Anor[2]. The only distinguishing feature in that case was that Mr Younas had the benefit of professional legal advice.
[1] [2014] FCCA 298 at [15]-[20]
[2] [2013] FCCA 595, in particular at [28]
While Mr Dhanoa did not have that advantage, he is in my view an intelligent and articulate man who made a considered and informed choice after consulting friends and family to seek ministerial intervention rather than come to court. Finally, the proposed application does not raise a serious question to be tried. There is nothing in this case which could support the contention that the interests of the administration of justice call for an extension of time.
I will order that the application for an extension of time, pursuant to s.477(2) of the Migration Act be refused.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale in the sum of $1,331. That is the amount prescribed for a matter disposed of at the first court date. I have acted in this matter quickly at the first court date with the full cooperation of Mr Dhanoa. He has already been put to the expense of the significant filing fee for his judicial review application in circumstances where the attempt has proved futile. The Minister, by the cooperation of Mr Dhanoa, has been saved the additional expense of preparation for a hearing on an extension of time involving a court book and other things at a later date.
Mr Dhanoa recognises that he is left at this point with no real options other than to return to India and to seek a further visa to come to Australia in three years time. That is an unhappy prospect for him. In all the circumstances, I have decided in the exercise of my general discretion not to impose upon him the additional burden of a cost order.
I will order that there be no order as to costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 July 2014
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