PANJETA v Minister for Immigration

[2013] FCCA 2293

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANJETA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2293

Catchwords:
MIGRATION – Judicial review of a Migration Review Tribunal decision – extension of time sought for filing of application – extension of time refused pursuant to s.477(2) of the Migration Act 1958.

Legislation:

Migration Act 1958 (Cth), ss.359, 359C(1), 359(2), 360(1), (2) & (3), 363A, 379A(4)(b) and (c) and 477(2)

Federal Circuit Court Rules 2001 (Cth), r.44.05(1) & (2)
Migration Regulations 1994 (Cth), cl.485.215 of Schedule 2 and reg.1.15C

Fisher v Minister for Immigration & Citizenship (2007) 162 FCR 299

Islam v Minister for Immigration & Anor (2013) FCCA 1687

Applicant: PARDEEP PANJETA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 69 of 2013

Judgment of: Judge Simpson

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Adelaide

Delivered on: 11 November 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, TWO HUNDRED DOLLARS ($5,200).

3. The name of the first respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 69 of 2013

PARDEEP PANJETA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled ex-tempore reasons)

1. I have before me an application filed on 26 March 2013 in which the applicant seeks judicial review of a decision of the Migration Review Tribunal handed down on 14 February 2013. 

2. The applicant has been given the opportunity to address the Court to identify any error that was made by the Tribunal.  He was also given an opportunity to say whatever he wanted to in relation to the fact that his application was out of time. 

3. The applicant speaks some English but nevertheless had the benefit of an interpreter if he needed assistance.

4. The applicant has not filed any material, be it material in relation to the reasons why an extension of time is needed or in relation to the matter generally.  He also was given the opportunity of filing an Outline of Submissions but he has decided not to do so. 

5. I understand from the applicant that he has not sought or obtained any legal advice in relation to the application. 

6. The first respondent has filed an Outline of Submissions and, as is usually the case with matters such as this, I have found these submissions very helpful.  The reasons that I give will be assisted greatly by the respondent’s submissions.

7. The application to this Court was made five days out of time. The time to file was prescribed by s.477(1) of the Migration Act 1958 (Cth) (“the Act”). Because it is out of time, the applicant requires an extension of time under s.477(2) of the Act. The extension of time that was indicated on the application filed on 26 March 2013 is opposed by the respondent on the basis that it is not in the interests of the administration of justice to order an extension of time.

8. As I have mentioned earlier, the application for review was filed in the Court on 26 March 2013. The Tribunal’s decision was dated 14 February 2013. In accordance with s.477(1) of the Act, the applicant was required to have lodged the Application for Review by 21 March 2013. Accordingly, it is five days late and incompetent unless this Court grants an extension of time pursuant to s.477(2).

9. An extension of time will only be granted if, firstly, an application for an extension of time has been made in writing to the Court, specifying why the applicant considers that it is necessary and in the interests of the administration of justice to make the order and, secondly, the Court considers it necessary and in the interests of the administration of justice to make the order extending time. 

10. The applicant clearly satisfied the first of the requirements that I have just mentioned in ticking the relevant box in the application that was filed on 26 March 2013.

11. In terms of the second requirement, the factors to be considered so as to determine whether an extension of time is “in the interests of the administration of justice” include, first, the extent of the delay;  second, the reasons for the delay; third, any prejudice to the respondent if an extension is granted; fourth, the impact on the applicant if time is not extended; fifth, the interests of the public at large; sixth, any exercise of the Court’s discretion; and finally the merits of the substantive application.  I point out that this is not an exhaustive list.  Other matters may be relevant.

12. A consideration of the interests of the administration of justice involves:

    “… consideration not only of the reasons for not meeting the original time limit but also whether the application where the extension of time be granted would have any prospect of success.”[1]

    [1]     Fisher v Minister for Immigration & Citizenship (2007) 162 FCR 299.

13. In his application for judicial review, the applicant simply states that he was not aware of his “legal right to appear” and “didn’t and don’t have any money to seek legal help”.  The applicant has not filed any affidavit evidence explaining the delay as required by r.44.05(2)(c) of the Federal Circuit Court Rule 2001 (Cth). Under the heading ‘Application for Order to Show Cause’, r.44.05(1) states:

    “(1) An application for a remedy to be granted in exercise of the court’s discretion 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 –

    (i)    a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision;

    (ii)  any document or other evidence the applicant seeks to rely on; and

    (iii) 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.”

    It is to be noted that r.44.05(2) is a mandatory requirement: The application must be supported by an affidavit.

14. Counsel for the respondent brought to my attention the recent case of Judge Lucev of 23 October 2013.[2]  Judge Lucev had this to say:

    “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, 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”.  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”.  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.

    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 further justification, is not generally regarded as a satisfactory explanation for delay.  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…”

    [2]     Islam v Minister for Immigration & Anor (2013) FCCA 1687.

15. Judge Lucev continues:

    “In this case, there is no evidence as to the reason for 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.”

16. Clearly, in this case there has been no satisfactory explanation for the delay.  In the circumstances I do not consider I have any other alternative than to make an order that the application be dismissed and to refuse an extension of time.

17. Even if the matter had not been out of time, I consider the applicant’s application to be without merit. 

18. The applicant is a citizen of India who applied for a Skilled Provisional Class VC Subclass 485 visa on 25 June 2011.  On 14 April 2012, a delegate of the first respondent wrote to the applicant requesting he provide further information.  Specifically, an IELTS test report demonstrating the applicant’s English language ability.  No information was provided in response to that request.

19. On 26 June 2012, the delegate refused the visa on the basis that the applicant did not satisfy cl.485.215 in Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) as he had not provided any evidence that he had competent English as defined by reg.1.15C.

20. On 16 July 2012, the applicant lodged an application with the Tribunal to review the delegate’s decision. The Tribunal sent a letter dated 4 December 2012 to the applicant pursuant to s.359(2) inviting him to provide additional information in writing about whether he had “competent English” as defined by reg.1.15C.

21. This letter was sent by registered prepaid post to the applicant at his address for service in accordance with ss.379A(4)(b) and (c). The applicant was invited to provide the additional information by 10 January 2013 but was informed that he could ask for an extension of time in this regard.

22. The invitation also stated that if the applicant failed to provide the information by 10 January, the Tribunal may make a decision on review without taking any further action to obtain the information and that the applicant would lose any entitlement that he might otherwise have to appear before the Tribunal to give evidence and present argument.

23. The Tribunal did not receive any request from the applicant for an extension of time. It did not receive the information required by 10 January 2013. It found that as the applicant had failed to provide the information it had requested, and that, in the circumstances, ss.359C(1) and 360(3) applied with the result that the applicant was not entitled to appear before it.

24. The Tribunal cancelled the hearing which was scheduled to take place on 23 January 2013 and proceeded to make its decision on the review without taking any further action to obtain the additional information.

25. Subsection 360(2) relieved the Tribunal of the obligation in s.360(1) to invite the applicant to appear before it. The further operation of s.363A removed any residual discretion the Tribunal may have had to permit an applicant to appear, notwithstanding his loss of an entitlement to do so.

26. Accordingly, the Tribunal proceeded to make its decision without allowing the applicant to appear before it at a hearing in accordance with its statutory obligations.

27. In its decision, dated 14 February 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a skilled visa.  The Tribunal correctly applied the requirements of “competent English” as defined at the date of lodgement of the visa application.  The Tribunal also correctly found that the criteria in reg.1.15C could be satisfied by an IELTS, a language test, undertaken after the visa application was made.

28. The Tribunal was not satisfied, on the evidence before it, that the applicant had “competent English” as defined by reg.1.15C.

29. Firstly, it found that the applicant had not achieved a score of six in each of the four test components of an IELTS language test conducted not more than two years before the date of the visa application as required by reg.1.15C(a)(i).

30. Secondly, the Tribunal found there was no evidence before it which indicated that the applicant had undertaken an occupational English language test as provided for in reg.1.15C(a)(ii).

31. Thirdly, the Tribunal found that the applicant did not hold a passport of the type specified to meet the requirements of reg.1.15C(b) but that he held an Indian passport.

32. For these reasons the Tribunal found that the applicant did not satisfy cl.485.215 for grant of a subclass 485 visa. These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decisions.

33. Finally, the Tribunal considered the applicant’s eligibility for the grant of a subclass 487 visa but found that the applicant had not made a valid application for a subclass 487 visa as he had not paid the first instalment of the visa application charge that was applicable for a subclass 487 visa application.

34. As I mentioned previously, the applicant filed an application for judicial review in the Federal Circuit Court on 26 March 2013.  Despite orders and directions made on 9 May 2013 permitting the applicant to file and serve an amended application or any affidavit evidence by 13 June 2013, nothing has been filed and served by the applicant.

35. The application for judicial review contains one ground in which the applicant asserts that the Tribunal failed to put weight on the “fact” that he had appeared in an IELTS test and “made attempt for providing English result.”  There is no evidence before this Court that the applicant informed the Tribunal that he had sat an IELTS test and no evidence that he had attempted to provide the Tribunal with his results.

36. As outlined earlier, it was open to the applicant to seek an extension of time to respond to the Tribunal’s s.359(2) invitation but he did not do so. Accordingly, this ground must fail.

37. The applicant’s purported ground of review lacks, in my view, any arguable basis for the relief claimed. Accordingly it is not, in my view, in the interests of the administration of justice to extend time under s.477(2) of the Act. No further order is needed or required.

38. In my view the application should be dismissed and costs should be ordered.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 13 January 2014