Kasarla v Minister for Immigration

[2014] FCCA 1442

FEDERAL CIRCUIT COURT OF AUSTRALIA

KASARLA v MINISTER FOR IMMIGRATION
& ANOR [2014] FCCA 1442

Catchwords:
MIGRATION – Application to extend time – application for judicial review – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Applicant: PRIYATHAM REDDY KASARLA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2312 of 2013

Judgment of: Judge McGuire

Hearing date: 4 July 2014

Date of Last Submission: 4 July 2014

Delivered at: Melbourne

Delivered on: 31 July 2014

REPRESENTATION

Solicitors for the Applicant: Unrepresented

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the First Respondent:

Solicitor for Second Respondent:

Australian Government Solicitors

Migration Review Tribunal

ORDERS

1. The application for an extension of time to file pursuant to section 476 of the Migration Act 1958 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2312 of 2013

PRIYATHAM REDDY KASARLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. In his application filed 23 December 2013 the applicant seeks an order that the decision of the Migration Review Tribunal (“the Tribunal”) made 14 June 2013 be quashed. The Tribunal’s decision affirmed that of the 1^st Respondent (the delegate) refusing the grant to the Applicant of a Skilled (Provisional) (Class VC) Visa (“the visa”).

2. The Applicant also seeks an extension of time for the making of his application pursuant to section 477 of the Migration Act 1958 (“The Act”).

3. The Applicant applies for an order that the Respondents show cause why a remedy should not be granted him under section 476 of the Act. The First Respondent says that the application should be dismissed in that it does not raise an arguable case for the relief claimed and pursuant to rule 44.12 (1)(a) of the Federal Circuit Court Rules 2001.

4. The Applicant appeared before this court unrepresented. He did not require the assistance of an interpreter. He relied on his application filed 23 December 2013 together with his affidavit sworn and filed on that day.

5. On 28 September 2012 the Applicant made an application to the Department of Immigration and Border Protection (“the department”) for a Skilled (provisional (class VC) visa.

6. The delegate refused the application by decision by 25 February 2013.

7. On 28 September 2012 the applicant made application to the tribunal for a review of the delegate’s decision.

8. The hearing before the tribunal took place on 7 June 2013.

9. By a decision of 14 June 2013, the tribunal affirmed the delegate’s decision refusing the grant of the visa.

Relevant legislation

1. Part 485 of schedule 2 of the Migration Regulations 1994 (“the Regulations”) provide the primary criteria to be met for granting of the visa is that the applicant have competent English.[1]

   [1] Clause 485.215 of the Regulations

2. Rule 1.15C of the Regulations defines competent English as:

   (1) a person has competent English if:

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

   (b) the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c) the person achieved a score specified in the instrument; or satisfies the minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this sub regulation.

Hearing before the tribunal

1. In his affidavit[2] the Applicant indicates that he had been unable to attend the hearing before the Tribunal due to health issues but did not intend to avoid the hearing and that his non-attendance “happened accidentally”.  The implication is that the Tribunal proceeded to hearing and determination in the Applicant’s absence.

   [2] See letter 2012/2013 from the Applicant to Federal Circuit Court and annexed to applicant’s affidavit 23.12.13.

2. The Reasons of the Tribunal of 14 June 2013 indicate that the Applicant did attend the hearing and made submissions[3].  The Applicant was asked if he had submissions to this Court in respect of this apparent conflict. He confirmed that he had been in attendance at the hearing before the Tribunal.

   [3] See Tribunal statement of decision and reasons [6]

3. The Tribunal’s reasons disclose that the Applicant informed it that he had undertaken an IELTS test on 13 April 2010 but that he did not achieve the requisite score of at least 6.0 in each of the 4 test components. The Applicant confirmed to the Tribunal that he had taken no subsequent IELTS test or OET.

4. The Tribunal’s reasons at [10] note:

   The applicant produced evidence that he has completed Bachelor of Information Technology and a Master of Information Technology Management studies in Australia, and that his graduation ceremony will be held on 11 December 2013. He stated that he would like to be able to remain in Australia so he can attend the ceremony. The Tribunal has considered the Applicant’s request, but has decided to proceed to make a decision.

5. The Tribunal then concluded that the Applicant had not provided requisite evidence that he met the competent English criteria for the required period and therefore did not have competent English as defined in r1.15C and that the requirements of clause 485.215 were not satisfied. The Tribunal proceeded to affirm the delegates’ decision to refuse the grant of the visa.

Proceedings before this court

1. Orders and directions were made by Registrar Caporale on 19 March 2014. The Applicant did not file any written submissions. When invited to do so before this Court, the Applicant made no oral submissions in support of either his argument for extension of time or the substantive issue.

I. Application for extension of time

1. The Tribunal’s determination is dated 17 June 2013. The application before this Court was not filed until 23 December 2013 and is consequently some five months out of time.

2. In his application the Applicant raises three grounds being:

   (1) I have visited a lawyer to lodge the Judicial review Application, but he has delayed due to non-payment;

   (2) I was in deep financial Hardship where I could not take the advice from Solicitor ; and

   (3) And also Lack of Knowledge is the main factor which is beyond my control not lodging the Judicial review Application in timeframe.

3. The application for an extension of time is opposed on the following bases:

   a)that there is no adequate or particularised explanation for a delay of five months in failing the application;

   b)that, in any event, the Applicant’s grounds of review are without merit and do not disclose jurisdictional error in the Tribunal’s decision.

II. Grounds of review

1. The application raises four grounds of review as follows:

   (1) under Migration Act 1958 Judicial review can be lodged 35 days, time frame after Tribunal review has been finalised in case of compassionate and compelling reasons beyond by control

   (2) I am not happy with Tribunal decision, applying for judicial review for legitimate decision.

   (3) I do have exceptional circumstances beyond the application lodgement previously.

   (4)There is a Decision in in (sic) High Court which is similar to effect on my decision in to positive outcome

2. The Applicant’s letter addressed to this Court dated 20 December 2013 and annexed to his affidavit sworn 23 December 2013 elaborates his argument which can be summarised as follows:

   a)that the department did not request the Applicant to provide documentation;

   b)that the Applicant was unable to attend the hearing before the Tribunal and was therefore denied a natural justice;

   c)that he was confused as to what documents were to be provided to he Tribunal and had requested an extension of time for the submitting of documents; and

   d)that his request was not considered and that the tribunal member was rude.

Findings and conclusions

1. Insofar as the Applicant is unhappy with the Tribunal’s decision, this does not constitute a proper ground for review before this Court. It does not in itself disclose a jurisdictional error. That is the sole question before this Court. It is not for this Court to conduct a further merits review.[4]

   [4] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6

2. As mentioned above, any assertion by the Applicant that he did not or could not appear before the Tribunal is clearly erroneous.

3. The Applicant says that he was denied the opportunity to put documents before the Tribunal. As best as I can decipher, the Applicant, being aggrieved by the decision of the Tribunal, proceeded to contact the Tribunal and provide further documents. He does not, however, particularise any such documents. He readily conceded before the Tribunal non-compliance with the criteria for “competent English”.

4. I accept the submission for counsel for the First Respondent that the only finding reasonably open to the Tribunal was to affirm the delegates decision to refuse the Application for a visa.

Conclusions

1. I am not satisfied that the extension of time for the filing of the Application should be granted. No reasonable explanation has been provided for the delay of some five months. Further, I am satisfied that no arguable case is made out in support of the substantive application. Consequently, the application for leave to extend time and the substantive application are dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 July 2014