Islam v Minister for Immigration & Anor
[2013] FCCA 1687
•23 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISLAM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1687 |
| Catchwords: MIGRATION – Judicial review – skilled visa – English language test – competency requirement. |
| PRACTICE AND PROCEDURE – Extension of time in which to file judicial review application. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477(1) and (2) Migration Regulations 1994 (Cth), regs.1.15C(a) and (b), Schedule 2, cl.485.215 |
| ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142; [2011] FCA 639 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335; [2010] FMCA 932 BZABK v Minister for Immigration & Citizenship& Anor (2012) 205 FCR 83; [2012] FCA 774 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Mpunzwana v Minister for Immigration & Anor [2009] FMCA 901 SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 |
| Applicant: | MD RUHUL ISLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 105 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 23 October 2013 |
| Date of Last Submission: | 23 October 2013 |
| Delivered at: | Perth |
| Delivered on: | 23 October 2013 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr M Smith |
| Solicitors for the First Respondent: | Sparke Helmore |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent be changed to “Minister for Immigration & Border Protection”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
The applicant pay the first respondent’s costs in the sum of $6646 by 30 October 2013.
The Court’s Reasons for Judgment in relation to this matter are to be published from Chambers at a later time.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 105 of 2013
| MD RUHUL ISLAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application filed on 20 May 2013, seeks an extension of time under s.477 (2) of the Migration Act 1958 (Cth),[1] in which to institute proceedings in relation to a decision of the second respondent, the Migration Review Tribunal[2] dated 10 April 2013[3] in which the Tribunal affirmed a decision of a delegate[4] of the first respondent, then the Minister for Immigration, Citizenship & Multicultural Affairs, now the Minister for Immigration & Border Protection[5] not to grant the applicant a subclass 485 visa. An order will issue to give effect to the Minister’s name change.
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate’s Decision” and “Delegate” respectively.
[5] “Minister”.
The applicant did not attend the hearing before the Court earlier today, and the Court made orders, including an order for Reasons for Judgment to be delivered at a later time. These are those Reasons for Judgment.
Legislative requirements
In order to be granted the visa that was sought by the applicant, it was necessary for the applicant to satisfy, as at the date of his visa application, the primary criterion prescribed by clause 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth),[6] which required that the applicant had “competent English”. The expression “competent English” was defined in reg.1.15C (in its then form)[7] of the Migration Regulations as follows:
[6] “Migration Regulations”.
[7] Changes to the definition of “competent English” in reg.1.15C were introduced by the Migration Amendment Regulations2011 (No 3) (Cth), but only apply to visa applications made on or after 1 July 2011.
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
For the purposes of reg.1.15C(a)(ii) of the Migration Regulations, the Minister has specified a score of at least B for each of the components of an “Occupational English Language Test”,[8] and for reg.1.15C(b) of the Migration Regulations, the relevant passports are those issued by the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland.
[8] “OELT”.
Background facts
The background facts are as follows:
a)the applicant applied for a subclass 485 visa on 12 March 2010;[9]
[9] CB 1.
b)on his visa application, the applicant indicated that he had undertaken an IELTS on 6 March 2010;[10]
[10] CB 9.
c)the applicant later provided to the Delegate an IELTS test report dated 7 July 2011 in respect of a test conducted on 25 June 2011;[11]
d)the applicant did not receive an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening in respect of the 25 June 2011 IELTS test.[12]
e)on 9 November 2011, the Delegate refused to grant the applicant a subclass 485 visa on the basis that the applicant had not demonstrated that he had “competent English”;[13]
f)on 30 November 2011, the applicant applied to the Tribunal for review of the Delegate’s Decision;[14]
g)on 8 March 2013 the applicant:
i)provided to the Tribunal a copy of an IELTS report for a test the applicant had undertaken on 5 November 2011, but once again the applicant did not receive an IELTS test score of at least six for each of the four components of the IELTS test, although he did receive an overall band score of 6.0;[15] and
ii)requested that the Tribunal hearing, scheduled for 11 March 2013, be postponed as the applicant was returning to his home country to get married and meet family members;[16] and
h)the application for an adjournment was refused by the Tribunal, and the letter advising of the refusal also noted that the applicant had not provided to the Tribunal evidence of having met the competent English requirement.[17]
[11] CB 62.
[12] CB 62.
[13] CB 69-72.
[14] CB 73.
[15] CB 83 and 84.
[16] CB 83.
[17] CB 86.
The applicant appeared at the Tribunal hearing on 11 March 2013 by telephone. The applicant’s evidence at the Tribunal hearing was that he “had not yet achieved a score of at least 6 in each of the 4 test components” and that he had “not booked a further test”.[18] The applicant also provided no evidence that he had achieved a score of at least “B” in each of the four test components of an OELT.
[18] CB 92 at para.11.
On 10 April 2013, the Tribunal affirmed the Delegate’s Decision, finding that the applicant had not demonstrated that he had “competent English”.
In the Tribunal Decision the Tribunal said as follows:
CLAIMS, EVIDENCE AND FINDINGS
9.The … [the Delegate’s Decision] indicates that although the applicant provided an IELTS test report to the Department for a test he undertook on 25 June 2011, he did not achieve a score of at least 6 in each of the 4 test components in that test.
10.No further evidence was provided to the Tribunal when the application was lodged.
11.During a hearing, held on 11 March 2013 by telephone, the applicant stated that he has not booked a further test and has not yet achieved a score of at least 6 in each of the 4 test components.
12.For the purposes of determining whether the applicant has competent English, the Tribunal finds that the applicant, as the holder of a passport from Bangladesh, did not hold a passport specified by the Minister in an instrument in writing for the purposes of r.1.15C(b). The Tribunal finds, therefore, that the applicant does not meet r.1.15C(b).
13.The Tribunal is not satisfied that the applicant has provided any evidence to indicate that he has achieved a score of at least 6 in each of the 4 components of an IELTS test or a score of at least B in each of the 4 test components of an Occupational English Language Test. As discussed with the applicant during the hearing, he made the application on 12 March 2010 and has therefore had some 3 years in which to achieve the relevant score. The Tribunal considers that this is ample opportunity and is not satisfied that any further time to enable the applicant to undertake additional tests is warranted. Accordingly, on the evidence before it the Tribunal finds that the applicant has not achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test or at least ‘B’ in each of the 4 test components in an Occupational English Language Test conducted not more than 2 years before the day on which the visa application was lodged. The Tribunal finds that the applicant does not meet r.1.15C(a). The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.
14.The Tribunal finds that the applicant does not satisfy cl.485.215.
15.The applicant does not meet Schedule 1 criteria in relation to an application for a Subclass 487 visa and did not, therefore, make a valid application for a Subclass 487 visa.
CONCLUSIONS
16.Given the findings above, the Tribunal affirms the decision under review.
Consideration – extension of time application
Section 477(1) of the Migration Act provides that an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision, which in this case is the Tribunal Decision.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth)[19] provides that:
[19] “FCC Rules”.
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – 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 applicant commenced these proceedings on 20 May 2013, after the expiration of the time limit prescribed by s.477(1) of the Migration Act, which had expired on 15 May 2013. Accordingly, the application is incompetent unless the Court grants an extension of time pursuant to s.477(2). An extension of time will only be granted if:
a)an application for an order for an extension of time has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
b)the Court considers it necessary, in the interests of the administration of justice to make an order for an extension of time.[20]
[20] Mpunzwana v Minister for Immigration & Anor [2009] FMCA 901 at paras.19 and 21 per Cameron FM.
The applicant has satisfied the first requirement of seeking an extension of time in writing by ticking the relevant box for an extension of time in his application for judicial review.
In relation to the second requirement, the non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
a)the extent of the delay;
b)the reasons for it;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion, and
g) the merits of the proposed substantive application.[21]
[21] HuiyangLi v Minister for Immigration & Anor [2011] FMCA 12 at para.35 per Nicholls FM; WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at para.7 per Judge Lucev (“WZASC”).
Extent of and reasons for delay
In this matter the delay is just five days. The delay, therefore, is not substantial.
The applicant has not filed any affidavit explaining the reasons for the delay as required by r.44.05(2)(c) of the FCC Rules. In Comcare v A’Hearn[22] the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”.[23] In this case there is, however, a rule, and the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”.[24] Therefore, the FCC Rules prescribe that there must be an explanation provided on affidavit as to the delay and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time. In this case there is no such explanation on affidavit. The applicant has therefore failed to satisfy the legislatively prescribed criteria for the Court to grant an extension of time. On this basis alone the extension of time application must fail.
[22] (1993) 45 FCR 441 (“A’Hearn”).
[23] A’Hearn at 444 per Black CJ, Gray and Burchett JJ.
[24] Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors (2010) 244 FLR 335 at 346-347 per Lucev FM; [2010] FMCA 932 at paras.35-40 per Lucev FM, and cases there cited, applied in WZASC at para.9 per Judge Lucev.
Even without the mandatory requirements of r.44.05(2) of the FCC Rules, there is no satisfactory explanation for the delay. Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay.[25] As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay….[26]
[25] SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at para.38 per Foster J (“SZSDA”).
[26] SZSDA at para.38 per Foster J.
In this case there is no evidence as to the reason for the delay, and no evidence that the applicant is in any different a position to all of the other persons applying for visas around Australia, the vast majority of whom file any judicial review application under s.476 of the Migration Act with this Court within time.
In all of the above circumstances, the Court does not consider that there has been any satisfactory explanation for the delay.
Prejudice to first respondent
The Minister does not assert that he has suffered any prejudice as a result of the applicant’s delay. The mere absence of prejudice is not, however, enough to justify the grant of an extension of time.[27]
[27] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 per Wilcox J; ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at 163 per Katzmann J; [2011] FCA 639 at para.88 per Katzmann J.
Merits of Proposed Substantive Application
It is well established that a court should not exercise a discretion to extend time, even for a short period, if the proposed substantive application has no prospect of success.[28] This principle applies to the extension of time application.[29]
[28] SZQGO v Minister for Immigration & Citizenship (2012) 125 ALD 449 at 454 per Murphy J; [2012] FCA 177 at para.29 per Murphy J, and the authorities there cited.
[29] SZSDA at para.39 per Foster J; SZRUG v Minister for Immigration and Anor [2013] FCCA 142 and the discussion of the merits of the grounds at paras.32-87 and the conclusion at para.88 per Judge Nicholls.
The grounds of review
The grounds of review are as follows:
1.The Tribunal made an error of law by misinterpreting my English language requirements.
2.I have scored overall 6.00 in IELTS and I do not consider a lower in one band should not disqualifying me for success of 485 visa
3.I am working in the same sector more than 3 years in where completed my certificate as cook from TAFE.[30]
[30] Transcribed without amendment from the Application filed 20 May 2013.
The applicant appears to be asserting that the Tribunal misapplied cl.485.215 of Schedule 2 of the Migration Regulations and also failed to take into account the fact that the applicant had achieved an overall score of 6 in an IELTS test.
The only issue for consideration is the correctness of the Tribunal’s conclusion that the applicant had not demonstrated that he had “competent English”.
Regulation 1.15C(a)(i) of the Migration Regulations plainly required the applicant to achieve a score of at least 6 for each of the 4 test components, not an overall score of 6. The applicant’s contention that that the Tribunal fell into jurisdictional error ignores the applicant’s own evidence at the Tribunal hearing that he “had not yet achieved a score of at least 6 in each of the 4 test components”.[31] It is irrelevant that the applicant had an overall band score of 6. Given the applicant’s evidence, it was not open for the Tribunal to reach any conclusion other than the one it reached. No jurisdictional error is therefore disclosed by the Tribunal Decision. The grounds of review therefore have no merit, no prospect of success, and do not warrant time being extended.
[31] CB 92 at para.11.
Other criteria generally
Whilst any impact on the applicant is a consideration in relation to the extension of time application, there is no evidence of any impact on the applicant, and, in any event, it would arguably be of little weight or relevance given that the application has no prospect of success. Furthermore, it would be unfair to grant this applicant an extension of time in circumstances where other applicants have not been granted an extension of time in similar circumstances, and where future applicants in a similar position to the applicant are unlikely to be granted an extension of time based on the law as it currently stands. It would not, therefore, be in the public interest to make an exception for this applicant.
Conclusions and orders
The Court considers, in all the circumstances, that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act, particularly given that the substantive application has no prospect of success; and
b)the application to extend time ought to be dismissed.
It is unnecessary to make a further order that the proposed substantive application be dismissed as incompetent.[32]
[32] BZABK v Minister for Immigration & Citizenship& Anor (2012) 205 FCR 83 at 92 per Foster J; [2012] FCA 774 at para.43 per Foster J; WZASC at para.23 per Judge Lucev.
As to costs, the Minister seeks costs in the sum set out in the costs schedule to the FCC Rules. In the circumstances, there is no reason why the Minister ought not have his costs of $6646 to be paid by 30 October 2013.
There will be orders that:
a)the name of the first respondent be amended to: “Minister for Immigration and Border Protection”;
b)the application under s.477(2) of the Migration Act for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed; and
c)the applicant pay the Minister’s costs in the sum of $6646 by 30 October 2013.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 23 October 2013
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