Masood v Minister for Immigration and Border Protection

[2018] FCA 115

FEDERAL COURT OF AUSTRALIA

Masood v Minister for Immigration and Border Protection [2018] FCA 115

Appeal from:

Application for leave to appeal:  Masood v Minister for Immigration and Border Protection [2017] FCCA 1988

File number:

VID 790 of 2017

Judge:

TRACEY J

Date of judgment:

16 February 2018

Date of publication of reasons:

19 February 2018

Catchwords:

MIGRATION – application for leave to appeal from a judgment of the Federal Circuit Court (“FCC”) – where the FCC had made an order dismissing an application for judicial review pursuant to r 44.12 of the Federal Circuit Court Rules 2011 (Cth) because the application did not raise an arguable case for the relief claimed – where the applicants had applied to the FCC following a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister to refuse to grant the first applicant a skilled (provisional) (class VC) subclass 487 visa – where the first applicant had failed to satisfy the requirements for competent English set by the Migration Regulations 1994 (Cth) – whether sufficient doubt attends the correctness of the FCC’s judgment and whether substantial injustice would be suffered by the applicants if leave to appeal were refused

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 44.12

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844

Masood v Minister for Immigration and Border Protection [2017] FCCA 1988

Date of hearing:

16 February 2018

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

12

Counsel for the First Applicant:

The First Applicant appeared in person

Counsel for the Second and Third Applicants:

The Second and Third Applicants did not appear

Solicitor for the First Respondent:

Ms S Nyabally of Mills Oakley

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 790 of 2017

BETWEEN:

KAMRAN MASOOD

First Applicant

NAZIA IFRAN

Second Applicant

DANEEN KAMRAN

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	16 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The applicants pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

TRACEY J:

1. This is an application for leave to appeal from a judgment of the Federal Circuit Court (“the FCC”):  Masood v Minister for Immigration and Border Protection [2017] FCCA 1988. The FCC had dismissed a judicial review application by Mr Masood (who had made the application on his own behalf and that of his wife and child) pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the ground that Mr Masood did not have an arguable case.

2. Mr Masood had sought review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which had affirmed a decision of a delegate of the Minister to refuse to grant him a skilled (provisional) (class VC) subclass 487 visa.  One of the criteria for the grant of such a visa was that the applicant was competent in the English language. 

3. The bases of the refusal were explained by the primary judge in her reasons:

   2.One of the requirements for the type of visa that the applicant sought was competent English, as defined in reg. 1.15C of the Migration Regulations 1994 (“the Regulations”). That regulation provided that:

   (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 paragraph; and

   (b)the rest 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.

   (2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

   3.The first applicant [Mr Masood] undertook a language test in the three years immediately before the application was lodged. That language test was undertaken on 21 January 2012. His visa application was lodged on 23 October 2013. The language test he undertook was specified by the Minister in an instrument in writing for the purposes of reg. 1.15C of the Regulations, being an IELTS [International English Language Testing System] test. The instrument required a score of at least six in all four components of the IELTS test. As it happened, in the test completed by the first applicant, he did not achieve a score of at least six in each of the four test components, although his average total score was six.

   4.None of the applicants held a passport of a type specified in the instrument.  They hold Pakistani passports.  Accordingly, one of them was required to undertake either an IELTS test or an occupational English test.  None of them undertook an occupational English test.

   5.A delegate of the Minister set out in his decision the relevant regulation, being reg. 1.15C of the Regulations, and also extracted the relevant instrument requiring a score of at least six in each of the four components. The delegate in his decision dated 9 September 2015 noted that the first applicant had submitted test results which showed 5.0 for listening, 6.0 for reading, 5.5 for writing and 7.0 for speaking. Consequently, the delegate determined that the applicants did not meet the criteria for the grant of a visa.

4. In seeking leave to appeal Mr Masood said that he did not have legal representation in the hearing at the hearing in the FCC and “could not elaborate [his] case details and reasoning due to lack of expertise in legal matters.”  He said further that he had been suffering from a mental health condition and foreshadowed that he would have legal representation when he appeared in this Court.

5. Mr Masood did not file a draft notice of appeal.  He did, however, file an affidavit in which he said he wished to appeal on the following grounds:

   I have not been told, why my case is dismissed by the federal Circuit Court.

   I also could not understand the Judge oral decision on hearing date.

   Judge did not ask me for my evidence on hearing date.

   I am a patient of depression and Anxiety, Judge did not give me the chance to explain all my circumstances.

   I had no legal representation for myself and I could not understand legal lingo in the Court or satisfy Court with laymans terms.  This time, I will represent myself with a lawyer.

6. Mr Masood represented himself at today’s hearing.  He told the Court that he had been misled by his agent who believed that he would pass the IELTS test if he achieved an average of six across the four test components.  Had he been correctly advised he would have resat the test before making his application.

7. None of Mr Masood’s written grounds and those raised in oral submissions support a claim of appealable error on the part of the FCC. 

8. The primary judge gave detailed oral reasons for her decision and subsequently published those reasons.  Her ex tempore reasons were provided after Mr Masood had been given an unrestricted opportunity to make oral submissions.  Had anxiety and depression affected his capacity to make submissions he could have so advised the FCC.  He did not.  Nor did he provide any evidence of such incapacity at the time of the hearing.

9. Whether Mr Masood understood the primary judge’s reasons or not, she could not have intervened unless satisfied of jurisdictional error on the part of the Tribunal.  No such error was established.  In particular, Mr Masood did not satisfy the “competent English” criterion.  He did not achieve a score of at least six in each of the four IELTS test components.  This was and remains the case notwithstanding the errant advice to the contrary which Mr Masood asserts (but has not established by evidence) was given by his agent.

10. In order to succeed on this application Mr Masood must satisfy the Court that sufficient doubt attends the correctness of the FCC’s judgment to warrant review and, further, on the assumption that the judgment was wrong, that substantial injustice would be suffered by him if leave to appeal were to be refused:  see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844.

11. In the circumstances I am not so satisfied.

12. The application must be refused with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        19 February 2018