Kaur v Minister for Immigration and Border Protection

[2015] FCA 480

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2015] FCA 480

Citation:	Kaur v Minister for Immigration and Border Protection [2015] FCA 480
Appeal from:	Application for an extension of time: Kaur v Minister for Immigration and Border Protection [2015] FCCA 285
Parties:	HARDEEP KAUR and RAGHVIR SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	SAD 48 of 2015
Judge:	MANSFIELD J
Date of judgment:	13 May 2015
Date of hearing:	13 May 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Applicants:	The applicants did not appear
Counsel for the Respondents:	S McDonald
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 48 of 2015

BETWEEN:

HARDEEP KAUR
First Applicant

RAGHVIR SINGH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	13 MAY 2015
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time for leave to appeal be refused.

2.The applicants pay to the first respondent the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 48 of 2015

BETWEEN:

HARDEEP KAUR
First Applicant

RAGHVIR SINGH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	13 MAY 2015
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to seek leave to leave, and then an application for leave to appeal, from a decision of the Federal Circuit Court (FCC) given on 19 February 2015. The FCC on that day, pursuant to r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth), dismissed an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 7 May 2014. Because that was an interlocutory decision of the FCC, leave to appeal from that decision is necessary. And because the application for leave to appeal was made nine days late, an extension of time to apply for leave to appeal is also necessary.

2. The application was called on for hearing this morning.  Neither applicant has appeared.  The Minister has applied for the application to be dismissed.  I propose to accede to that application.  These are my reasons for doing so.  In relation to the extension of time application, although there is no explanation for the delay, the delay is short and the Minister accepts that the delay has not caused any particular prejudice to the Minister’s capacity to resist the application for leave to appeal.  However, in the absence of an explanation for leave to appeal and because there is no foundation for thinking that the application for leave to appeal – or if leave were granted, an appeal might be successful. 

3. It would be an inappropriate exercise of the discretion to allow the extension of time in the particular circumstances.  I explain briefly below why the application for leave to appeal and the proposed appeal has no prospect of success.  The criteria for granting leave to appeal are well established:  see Decor Corporation Proprietary Limited v Dart Industries Inc (1991) 33 FCR 397. In my view, the decision of the FCC is plainly correct. It is not attended by sufficient doubt to warrant its reconsideration. I will not refer at length to the decision of the FCC, save to note that the reasons why that judge considered that there was no foundation for the applicants’ claims to have sought and to have been refused an adjournment by the Tribunal in circumstances which might have amounted to procedural fairness is clearly a correct decision on the basis of the material to which the Tribunal refers. Secondly, the decision of the circuit court judge that the decision of the Tribunal on the merits of the application, namely that that decision of the Tribunal was clearly correct, is also without error.

4. It is appropriate to make one or two comments about the ultimate merits of the issue.  The female applicant applied for a Skilled Provisional Class VC subclass 485 visa on 18 September 2011.  And at the same time, the male applicant as a dependent of the female applicant or as a member of the family unit applied for the same visa.  The criteria for granting such a visa required firstly that the applicant satisfies the “Australian study requirement” as prescribed in Regulation 1.15F(1) of the Migration Regulations 1994 (Cth) (the Regulations). And secondly, that the applicant satisfies the requirement that she have competent English, also defined by Regulation 1.15C. The relevant definitions are set out in the reasons for the decision of the Tribunal and I will not repeat them.

5. In short, however, the applicants – and in particular the female applicant – clearly did not satisfy either of those requirements.  She did not satisfy the Australian study requirement because she did not adduce any evidence that she could satisfy that requirement.  She asserted that she completed a Diploma of Horticulture on 3 August 2011 but despite requests firstly by the delegate and then by the Tribunal, she did not produce any evidence to show that that course fell within the relevant Australian study requirement or that it was completed in a manner which satisfied the Australian study requirement.  Secondly, she was required to demonstrate competent English as required in Regulation 1.15C. 

6. Again, despite efforts by the delegate of the Minister and then by the Tribunal to have her produce material to support her claim that she had competent English, she did not do so.  In particular, and probably most relevantly, she might have done so by demonstrating that she had passed the International English Language Test System with appropriate scores but she produced no evidence that she had done so.  Consequently, the decision, firstly of the delegate, and secondly of the Tribunal, that she simply did not satisfy the Minister and then the Tribunal that she satisfied those two criteria is sufficient to say that she has, and had no, prospect of being eligible for the grant of the visa because she did not meet those criteria.  It is also noteworthy that both in the FCC and this Court the applicant, at least impliedly, acknowledges that.  Moreover, her grounds of application to the FCC and to this Court do not even attempt to address her failure to meet the Australian study requirement.  It is focused upon her failure to meet the additional requirement, that is the competent English requirement.  Her grounds of application to this Court are:

   I would wish to get my case heard because the judge did not consider the important factor of my mental state of [stress] that gives me depression at life stages.  And that’s why I am taking longer to pass IELTS as compare (sic) to normal people.  I am studying hard and slowly getting better but I am bit slow so I do require time to pass the exam.

7. She therefore seeks an order to “squash decision of the FCC” and to remit her case to the Minister for further consideration. 

8. Plainly, that ground of appeal accepts that she has not passed the Australian study requirement or does not satisfy the Australian study requirement.  I note that there is no evidence to support her claimed mental state, either adduced to this Court or to the FCC.  In any event, such evidence would not provide either to this Court or to the FCC a discretion to waive her inability to satisfy the two criteria for eligibility for the visa for which she had applied in any event.  They are prescribed by the regulations.  In those circumstances, not only is the decision of the FCC a decision which is not shown to have been vulnerable to any doubt but, in any event, there can be no injustice to the applicant by refusing her application for an extension of time because she had no prospect of being eligible for the visa for which she applied. 

9. The application is dismissed.  The applicants must pay to the Minister costs of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:       18 May 2015