Leon v Minister for Immigration

Case •

[2014] FCCA 354

•

11 February 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEON v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 354
Catchwords:
MIGRATION – Second application with respect to the same Migration Review Tribunal decision – previous application withdrawn – application out of time – no reasonable explanation for delay – no merit in the application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 65, 349, 360, 360A, 362B, 477(2)

Migration Regulations 1994 (Cth), regs.1.15C, 2.03, Part 485 of Sch.2, subdivs.485.21, 485.215, 485.22

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

SZOZO v the Minister for Immigration and Citizenship [2011] FCA 944
Applicant: LIJU LEON
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: MLG 2285 of 2013
Judgment of: Judge Whelan
Hearing date: 11 February 2014
Date of Last Submission: 11 February 2014
Delivered at: Melbourne
Delivered on: 11 February 2014

REPRESENTATION

Counsel for the Applicant: No appearance
Counsel for the Respondents: Mr Petrie
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be refused.

  2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2285 of 2013

LIJU LEON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

  1. The First Respondent, in written submissions,[1] has accurately summarised what has occurred in these proceedings, leading up to today, as follows:

    [1] First Respondent’s Submissions filed 11 February 2014.

    1.1On 4 June 2013, in proceedings MLG 796 of 2013 (the


    First Proceeding

    ), the applicant applied for judicial review of a decision of the second respondent dated 13 May 2013 (Tribunal’s decision). The second respondent (Tribunal) had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Provisional) (Class VC) visa (skilled visa). 

    1.2On 9 December 2013, the Court made the following orders by consent: 

    (a)The name of the First Respondent be amended to “Minister for Immigration and Border Protection”. 

    (b)The Applicant be given leave to withdraw his Application filed 4 June 2013. 

    (c)The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

    1.3On 20 December 2013, the applicant commenced the current proceeding, in which he seeks:

    (a)an order pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act); and

    (b)     judicial review of the Tribunal’s decision.[2]

    [2] First Respondent’s Submissions filed 11 February 2014, pp.1-2, at paras.1.1-1.3.

Background

  1. From the Court Book,[3] it is apparent that the Applicant is a citizen of India and that, on 25 May 2012, he applied for a skilled visa. In the application, the Applicant stated that he had undertaken an English language test within the last 24 months, the details being that he had sat the International English Language Testing System (“IELTS”) test on 25 September 2010, and his language ability was competent.

    [3] Court Book filed 4 October 2013 in MLG 796 of 2013 Liju Leon v Minister for Immigration & Anor.

  2. On 21 November 2012, the delegate emailed the Applicant a letter in which the delegate requested, amongst other things, that the Applicant provide a report of the English language test. On 14 December 2012, the Applicant sent the delegate an IELTS test report form in relation to a test sat by him on 21 April 2012.[4] In that test, the Applicant had achieved 6.5 for listening, 6 for reading, 6 for writing, 5 for speaking and 6 for an overall band score. The Applicant had also indicated that he was booked to sit a further IELTS test on 19 January 2013.[5] The Applicant did not provide evidence of the September 2010 test which was referred to in the application.

    [4] Ibid, at p.28.

    [5] Ibid, at p.29.

  3. On 18 December 2012, the delegate refused to grant the Applicant a skilled visa. On 3 January 2013, the Applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision. The Applicant provided, in that material, a postal address, being 6 Revo Street, Newport, Victoria 3015.

  4. On 27 March 2013, the Tribunal invited the Applicant to appear before it to give evidence and present argument at a hearing on 22 April 2013. The letter was sent by registered post to the Applicant’s address.


    The Tribunal specifically invited the Applicant to provide evidence that he had competent English, and explained the relevant requirements in that regard. The Tribunal also noted it would only change the scheduled hearing date for good reason, and explained that if the Applicant failed to appear the Tribunal might make a decision in his absence. The Applicant failed to appear at the scheduled hearing and made no request for an adjournment of the hearing. On 13 May 2013, the Tribunal made its decision affirming the delegate’s decision.

Grounds for review

  1. The Applicant’s grounds for judicial review, as set out in his application,[6] state:

    1.  S.477, Judicial review can be lodged after 35 days after tribunal review has been finalised

    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[7]

    [6] Application filed 20 December 2013.

    [7] Ibid, at p.3.

The First Respondent’s submissions

  1. The First Respondent refers to the relevant legislative provisions. Section 31 of the Migration Act 1958 (Cth) (“the Act”) provides for prescribed classes of visas and authorises the making of regulations prescribing criteria for the granting of a visa, or visas, of a specified class. Relevant to these proceedings, reg.2.03 of the


    Migration Regulations 1994

    (Cth) (“the Regulations”) provides that:

    (1)For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulation 2.03A, the prescribed criteria for the grant to a person of a visa of a particular class are:

    (a)the primary criteria set out in a relevant Part of Schedule 2 …[8]

    [8] Migration Regulations 1994 (Cth), reg.2.03(1)(a).

  2. In this proceeding, the relevant criteria are for the subclass 485 visa. 


    In Part 485 of Sch.2 of the Regulations, the primary criteria are set down in Div.485.2 of the Regulations. In that division, the primary criteria are set out in sub-divs.485.21 and 485.22 of the Regulations. The relevant criteria, in this case, is in sub-div.485.21 of the Regulations, and it requires that the Applicant have competent English.  The expression ‘competent English’ is further defined by reg.1.15C of the Regulations.

  3. At the relevant time, reg.1.15C of the Regulations provided that the applicant was required to satisfy the Minister that:

    ·He or she had undertaken a language test, which was specified by the Minister in an instrument in writing;

    ·The test was conducted in the two years immediately before the day on which the application was made; and

    ·The applicant achieved a score specified in the relevant instrument. 

  4. At the relevant times, the Minister had specified, for the purposes of the Regulations, an IELTS score of at least 6 for each of the four test components of speaking, reading, writing and listening.

  5. Section 360(1) of the Act requires the Tribunal to invite the Applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. Relevantly, s.360A of the Act requires the notice of invitation to appear to specify the day on which, and the time and place at which,


    the applicant is scheduled to appear before the Tribunal. It must be given to the applicant, where that applicant is not in detention, “by one of the methods specified in section 379A”.[9]

    [9] Migration Act 1958 (Cth), s.360(2)(a).

  6. [10] Migration Act 1958 (Cth), s.362B(1).

    One of those methods is dispatching the invitation by prepaid post to the last address provided by the applicant to the Tribunal in connection with review. The notice must also contain the prescribed period of notice and contain a statement of the effect of s.362B of the Act,


    which is, if the Applicant did not attend the scheduled hearing,


    the Tribunal may “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.[10]

  7. The Tribunal, in its decision, found that the Applicant did not meet the requirements of reg.1.15C of the Regulations. The Applicant did not have competent English, as defined in reg.1.15C(a) of the Regulations, as he did not provide evidence of the result of a test that the Applicant stated in his application he took prior to making same, and that the Applicant, therefore, did not meet the requirements of cl.485.215 of Sch.2 of the Regulations.

  8. Given that the Tribunal’s decision was dated 13 May 2013, the application in this matter, which was not lodged until 20 December 2013, is, accordingly, some six months out of time. The First Respondent refers to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Cohen”), where his Honour set out a number of factors that might be considered by the Court in exercising a discretion to extend the time. Those principles have been adopted in various decisions of this Court and the Federal Court, with respect to applications made under s.477(2) of the Act. The matters specified in Cohen include the following:

    ·An application for an extension of time is not to be granted unless it is proper to do so; the legislative time limits are not to be ignored;

    ·There must be some acceptable explanation for the delay; 

    ·Any prejudice to the respondent in defending the proceedings;

    ·The mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and

    ·The merits of the substantial application.[11]

    [11] (1984) 3 FCR 344 at 348-349.

  9. The First Respondent has submitted that each of the above factors favour a dismissal of the application to extend the time.

  10. The First Respondent submits that the Applicant has not advanced any basis on which it might be asserted the Tribunal’s decision is affected by jurisdictional error, and the application does not set out any proper ground for judicial review. It is, therefore, difficult to respond to the application in any detailed way. The First Respondent further submits that a fair reading of the Tribunal’s decision does not suggest that it is affected by jurisdictional error.

  11. It cannot be said that the Tribunal failed to understand the nature of its decision‑making power under the Act, and ss.65 and 349 of the Act relevantly provide that, if the Tribunal was not satisfied that the Applicant met the applicable visa criteria, it was obliged to affirm the delegate’s decision to refuse to grant the skilled visa. With respect to the issue of competent English, the First Respondent submits that the Tribunal correctly applied the law in finding that the Applicant had not satisfied cl.485.215 of Sch.2 of the Regulations, because he did not have competent English.

  12. The Applicant only provided evidence of having sat one English language test, that being the April 2012 test, and this test did not meet the relevant requirements because the Applicant did not achieve a score of at least 6 in the component of speaking. There is no other basis on which it might be said, in reaching that conclusion, that the Tribunal somehow misconstrued, or misapplied, the relevant visa criteria. Relevantly, in the first proceeding, the Applicant submitted to the Court, in relation to the Tribunal’s decision, that he did not have competent English and that there was no jurisdictional error.[12]

    [12]

  13. With relation to the Tribunal’s invitation to the Applicant to attend a hearing, the First Respondent submits that the Tribunal complied with its obligations under ss.360 and 360A of the Act. Since the Applicant did not attend the hearing, the Tribunal was empowered to exercise its discretion to make a decision without taking any further steps to allow, or enable, the Applicant to appear.

  14. Relevantly, the Tribunal:

    ·Invited the Applicant to appear;

    ·Provided the notice within the days specified;

    ·Gave the Applicant notice by one of the means specified in s.379A of the Act, namely, by prepaid registered post;

    ·Provided a period of time to the Applicant exceeding the prescribed period of seven working days; and

    ·

    Contained a statement about the effect of s.362B of the Act,


    as required by s.360A(5) of the Act.

    The Tribunal noted that the invitation to attend before the Tribunal was sent by prepaid registered post to the last address for service given by the Applicant.

  15. The suburb was written by the Applicant as ‘New Port’, rather than ‘Newport’, which was technically incorrect. However, the postcode was correct, and the Tribunal letter was not returned unclaimed.


    The last address for service provided by the Applicant was his address in his application for the review before the Tribunal. The


    First Respondent refers to the judgment in SZOZO v the Minister for Immigration and Citizenship [2011] FCA 944, where Reeves J said:

    The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims.[13]

    [13] [2011] FCA 944 at para.21.

  16. In those circumstances, the Tribunal was empowered by s.362B of the Act to proceed to determine the review without taking any further action.

Conclusions

  1. This application was made with respect to the same decision of the Tribunal, which was the subject of proceedings in MLG 796 of 2013. In those proceedings, the Applicant relied on the following grounds: 

    1.  I am bringing the tribunal decision with in (sic) time frame of 35 days under Section 477 A

    2.  Section 478, I am the subject of the Tribunal decision 

    3.  MRT is not bounding (sic) the High court case law , I think it is Judicial error.[14]

    [14] Application filed in MLG 796 of 2013 on 4 June 2013, at p.2.

  2. When asked by the Court, in those proceedings, what the error made by the Tribunal was, the Applicant replied:

    MR LEON:That the migration agent just misguided me that, you know, just for a judicial review so he put that like - and a state judicial error but it was my mistake … because I don’t have the competent English …

    HER HONOUR:     So what do you say your error was, your mistake? What was your mistake?

    MR LEON:Mistake - the statements in our – it’s not a judicial error because, you know, one of the migration agents just, you know, misguided me …[15]

    [15]

  3. The Applicant agreed that he did not have the requisite score in the test. The Applicant stated he would be grateful if he was given one more chance to sit the test. After the matter was stood down for consideration by the Applicant, he stated that he would like to withdraw the application.

  4. The second application was lodged on 20 December 2013. The grounds stated are:

    1.  S.477, Judicial review can be lodged after 35 days after tribunal review has been finalised

    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[16]

    [16] Application filed 20 December 2013, at p.3.

  5. None of these grounds, on their face, disclose any claim that the Tribunal made a jurisdictional error in determining that the Applicant did not satisfy the necessary criteria for the granting of a skilled visa.


    The Applicant’s affidavit in support of the application attaches an ‘Annexure A’ headed “Client Argument Summary”. [17] This claims that the Applicant lodged his application for review with the Tribunal on


    3 January 2013. He wrote to the Tribunal regarding his claims about his IELTS submission and the situation which led him to apply without the IELTS score sheet. The Applicant sent a written submission to the Tribunal on the same day and stated that “MRT has been refused my application on 15th May 2013 without hearing date”.[18]

    [17] Affidavit of Liju Leon filed 20 December 2013, Annexure A Client Argument Summary, at pp.3-5.

    [18] Ibid.

  6. The Applicant noted that the visa was refused on 18 December 2013, on the basis of English language criteria not being satisfied.


    The statement goes on to refer to the Applicant’s reliance on his agent to lodge the application. Significantly, at no time does the Applicant state that he was able to meet the English language criteria or produce evidence of this. Further, from a reading of the Court Book, there was no correspondence with relation to a written submission to the Tribunal explaining the situation which led the Applicant to apply without an IELTS score sheet.

  7. The second application was lodged some seven months after the Tribunal made its decision. The grounds relied upon for an extension of time are:

    1.  I did not have enough knowledge to lodge the Judicial Review application

    2.  New evidence has been lightened (sic) which would give the positive outcome in the Judicial Review;

    3.  I wasn’t able to provide evidence at previous judicial review hearing[19]

    [19] Application filed 20 December 2013, at p.2.

  8. The Applicant previously lodged an application for judicial review on


    4 June 2013. He, therefore, had sufficient knowledge to lodge an application and to do so within the time required. The orders issued by the Registrar on 7 August 2013 gave him until 1 November 2013 to lodge an amended application and to lodge submissions: the Applicant chose not to do either. In my view, the Applicant has had sufficient time to acquire whatever knowledge he says he lacked in order to pursue his application.

  9. Grounds 2 and 3 refer to new evidence, but no such evidence has been produced, either in affidavit or documentary form. The


    First Respondent has correctly identified the principles to be applied in considering an application for an extension of time under s.477(2) of the Act. I do not accept that the Applicant provided an acceptable explanation for the delay. While the First Respondent has not argued prejudice, I am satisfied that, given that the application is essentially an attempt to re-agitate an application which was previously withdrawn by the Applicant, there is a prejudice to the First Respondent who was entitled to consider that the matter was at an end.

  10. Further, the application is without merit. The application for review sent to the Tribunal gave the Applicant’s address as 6 Revo Street, Newport 3015. The Applicant did not appoint a migration agent in that application and indicated that correspondence was to be sent to him personally at that address. The acknowledgement of receipt of the application was sent to that address. The acknowledgement letter emphasised the importance of the Applicant notifying the Tribunal immediately of any change to his contact details. The invitation to appear before the Tribunal was also sent to that address. 

  11. The letter made clear the reasons for the refusal of the visa by the delegate, that is, the failure to provide evidence of competent English, and advised the Applicant that, if he had evidence of competent English, he should provide it to the Tribunal as soon as possible.


    The Applicant did not notify the Tribunal of any change of address,


    nor did he provide any evidence of competent English. The decision was sent to the address given by the Applicant. The application for judicial review lodged by the Applicant on 4 June 2013 also gave that same address. I am not satisfied that the Applicant was not appropriately notified of the Tribunal proceedings.

  1. The Tribunal’s notice complied with the provisions of s.360A of the Act. The Tribunal was entitled, under the provisions of s.362B(1) of the Act, to proceed to make a decision without taking any further action when the Applicant failed to appear. The evidence before the Tribunal was that the Applicant did not meet the criteria required by cl.485.215 of Sch.2 of the Regulations because he had not provided the evidence which showed that he achieved the IELTS test scores required by reg.1.15C of the Regulations.

  2. For these reasons, I am satisfied that the application is without merit and that there is no reasonable explanation for the delay in lodgement.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 26 February 2014


See Transcript of Proceedings in MLG 796 of 2013, Liju Leon v Minister for Immigration & Anor,
9 December 2013.


Transcript of Proceedings in MLG 796 of 2013, Liju Leon v Minister for Immigration & Anor,
9 December 2013, p.2 at lines 15-24.


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Natural Justice

  • Jurisdiction

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Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

3

Parker v The Queen [2002] FCAFC 133
SZOZO v Minister for Immigration and Citizenship [2011] FCA 944