PERERA v Minister for Immigration

[2016] FCCA 3156

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3156

Catchwords:
MIGRATION – Skilled (Residence) (Class VB) visas – Application for extension of time within which to commence application for review – delay of more than one year while applicants sought Ministerial intervention at urging of tribunal – whether explanation for delay – whether reasonable prospects of success – whether tribunal erred in requiring the first applicant to demonstrate competent English – no reasonable prospects of success – extension not in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act1958 (Cth), ss. 351, 477(1), 477(2)

Migration Regulations 1994, cl. 886.213, regs. 1.03, 1.15B, 1.15C

Cases cited:
AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

First Applicant: TOTAGAMUWA PERERA

Second Applicant: WARNASURIYA DE SILVA

Third Applicant: VINUKA PERERA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1488 of 2015

Judgment of: Judge Jarrett

Hearing date: 20 September 2016

Date of Last Submission: 23 September 2016

Delivered at: Brisbane

Delivered on: 8 December 2016

REPRESENTATION

The First and Second Applicants appeared in person and on behalf of the Third Applicant.

Solicitor for the First Respondent: Mr Leerdam

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 30 June, 2015 be dismissed.

2. The first and second applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1488 of 2015

TOTAGAMUWA  PERERA

First Applicant

WARNASURIYA DE SILVA

Second Applicant

VINUKA PERERA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application the applicants seek an extension of time within which to commence an application for the review of a decision of a migration review tribunal made on 4 April, 2014. That decision affirmed an earlier decision by a delegate of the first respondent not to grant the applicants Skilled (Residence) (Class VB) visas. 

2. Section 477(1) of the Migration Act 1958 (Cth) requires an application for review of such a decision to be made within 35 days of the date of the decision. Here the application is more than one year out of time. The tribunal’s decision was given on 4 April, 2014 but this application was not commenced until 30 June, 2015.

3. The Court has power, by reason of s.477(2) of the Act, to grant a necessary extension of time if an application for that order has been made in writing, specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order and the Court is satisfied that it is necessary in the interests of the administration of justice to make an order granting an extension.

4. Here, the first of those elements is satisfied.  The applicants have made an application in writing specifying that they consider that it is necessary in the interests of the administration of justice to make an order granting the requisite extension because they did not file their application for review in time by reason of the encouragement that they received from the tribunal to make an application for Ministerial intervention under s.351 of the Act.  They argue that although they always intended to “appeal” the tribunal’s decision because they thought it to be wrong, they were persuaded by the tribunal to make an application for Ministerial intervention instead.  They thereby allowed the time for making an application for review to pass whilst their Ministerial intervention application was considered.

5. For the reasons that follow, although the applicants have adequately explained their failure to bring their application for review within time, their proposed application has such poor prospects of success that it is not in the interests of the administration of justice to make an order granting the extension that they seek.

Background

1. On 26 September, 2008, the applicants applied for Skilled (Residence) (Class VB) visas.   The first applicant is the primary visa applicant and he sought to demonstrate satisfaction of the primary criteria for the grant of the relevant visa.  The second applicant was included as a member of the first applicant’s family unit.  The third applicant was born in Australia on 26 October, 2010 and was subsequently included within the application.

2. On 11 January, 2013 a delegate of the first respondent refused the applications.  On 22 January, 2013 the applicants applied for a review of that decision by a migration review tribunal.

3. To succeed in the visa applications, the first respondent needed to satisfy cl.886.213 of Schedule 2 to the Migration Regulations 1994 (Cth). That is a time of application criterion. At the time of application cl.886.213 provided as follows:

   Either:

   (a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or

   (b)the applicant has competent English.

4. The phrase vocational English is defined in reg.1.15B of the Regulations.  Relevantly, at the time of the applicants’ visa applications, reg.1.15B provided as follows:

   1.15B     Vocational English

   (1)   Vocational English, for a person, has the meanings given in subregulations (2), (3), (4) and (5).

   …

   (5)   If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (a)    an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or

   (b)    a score:

   (i)    specified by the Minister in an instrument in writing for this subparagraph; and

   (ii)    in a language test specified by the Minister in the instrument.

5. The phrase competent English is defined in reg.1.15C of the Regulations.  At the time of the visa applications, reg.1.15C provided as follows:

   1.15C     Competent English

   If a person applies for a General Skilled Migration visa, the person has competent Englishif the person satisfies the Minister that the person:

   (a)    has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i)    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii)    a score:

   (A)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B)     in a language test specified by the Minister in the instrument; or

   (b)    holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

6. For present purposes, the point of distinction between vocational English and competent English is that a different score is needed to satisfy the relevant definitions.  A test score of 6 for each of the four test components of speaking, reading, writing and listening is required to satisfy the requirements for competent English whereas a score of only 5 is needed for vocational English.

7. The first applicant’s nominated skilled occupation was “marketing specialist”. The tribunal, at [9] of its reasons, determined that the first applicant’s nominated skilled occupation was not in Major Group IV in the Australian Standard Classification of Occupations. Accordingly, the tribunal determined that the applicant could not bring himself within cl.886.213(a). Consequently, he needed to demonstrate that he had competent English so as to bring himself within cl.886.213(b).

8. The matter was complicated because regs.1.15B and 1.15C had been amended significantly in 2011.  As the tribunal explained, correctly in my view, in its reasons for decision:

   11.    The current instrument for r.1.15C is expressed to specify tests, test scores and passports for applications lodged before 1 July 2012, but it does not reflect the structure of r.1.15C as in force before 1 July 2011 and there are no specifications for r.1.15C(a)(ii), although there are specified tests and scores for the equivalent provision as substituted on 1 July 2011. The Tribunal considers that this instrument should be construed as specifying scores, tests and passports for r.1.15C as in force on and after 1 July 2011, and that the applicable instrument in this case is the one in force when the visa application was lodged, IMMI 07/55. The Tribunal notes, however, that in both instruments the specified scores, tests, and passports are substantially the same. For r.1.15C(a)(ii) the Minister has specified a score of at least ‘B’ in each of the four components of an Occupational English Language test (OELT).

9. However, the applicant had not undertaken an Occupational English test.  He could not on any view satisfy reg.1.15C(a)(ii).  Nor did the first applicant hold a type of passport specified for the purposes of reg.1.15C(b) of the Regulations.  The tribunal determined that to succeed, the first applicant needed to show that he had achieved, in a test conducted not more than two years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening.

10. It was uncontroversial that the applicant had undertaken IELTS tests in 2008, 2012, 2013 and 2014 but had not achieved an IELTS test score of at least 6 for each of the four test components in any of those tests. 

11. Because the tribunal could not decide the review in the applicants’ favour on the material that was presented to it, the applicants were invited by the tribunal to a hearing on 20 December, 2013.  At the request of the applicants’ agent, the hearing was rescheduled for 17 February, 2014. 

12. At the February, 2014 hearing, the first applicant sought further time to undertake another IELTS test.  He was given until 31 March, 2014 to provide any further IELTS test results.  However, he did not do so.

13. The tribunal made its decision on 4 April, 2014.  The tribunal affirmed the decision under review.  Unsurprisingly, the tribunal found that the applicant had not achieved the specified IELTS test score in a test conducted within the relevant period.  The tribunal concluded, as it must have concluded, that the applicant did not have competent English and did not meet the requirements of cl.886.213 of Schedule 2 to the Regulations.

This application

1. In determining whether to exercise its discretion to extend time, the Court will generally have regard to a number of factors including:

   a)the length of the delay and the reason for the delay, including whether there is an acceptable explanation for the delay;

   b)the merits of the substantive application;

   c)any prejudice to the respondents;

   d)the impact on the applicant if time is not extended;

   e)the public interest; and

   f)considerations of fairness as between the applicant and other persons otherwise in a similar position.

2. As to the second matter, recently, in AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102 Collier J summarised the current approach to an application for an order extending the time within which to commence an application for review pursuant to s.477(2) of the Act. After setting out the text of that section, her Honour continued:

   28.    The recent decision of the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 involved proceedings which, so far as are relevant to the case before me, were described by Tracey, Perry and Charlesworth JJ in the following terms:

   1. … an appeal from a decision of a single judge of this Court dismissing the appellant’s application for judicial review of a decision of the Federal Circuit Court (the FCC). The FCC had dismissed the appellant’s application for an extension of time within which to seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the Minister’s decision not to grant him a protection visa. The substantive issue which the appellant seeks to agitate is whether the FCC fell into jurisdictional error in misconstruing the power to extend time under s 477(2) of the Migration Act 1958 (Cth) (the Act). Specifically, it is alleged that the FCC erred in taking the approach that it would be “in the interests of the administration of justice” to extend time only if the FCC were persuaded that the appellant “could succeed” in any of his grounds of review, instead of having regard only to whether the grounds of review were reasonably arguable or have reasonable prospects of success (the substantive issue).

   29.    The Full Court at [19] summarised the appellant’s argument in that case as being that the Federal Circuit Court failed to apply the test in s 477(2) but rather relied upon the principles articulated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. Their Honours referred to comments of the primary Judge in that case at [2015] FCA 1391, in particular:

   62.         … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   63.         The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application , which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

   30.    At [38] the Full Court endorsed these comments of her Honour at first instance.

The delay

1. The delay in applying for review of the tribunal’s decision is more than one year.  There is no evidence before me about when the applicants made an application for Ministerial intervention.  There is some evidence as to when it was determined and the applicants notified of the result.  In his affidavit filed with the application to this Court, the first applicant swears (errors in the original):

   4. We also seek an extension of time because the decision of the MRT spent a large portion of the decision stating that we should apply to the Minister and seek ministerial intervention under section 35 1, as we had strong grounds. We took this advice and applied to the Minister to exercise his discretion forthwith and on 20 June 2015, we received a letter dated 18 June 20 15, stating that the Mister had chosen not to exercise his/her discretion.

   6.  We were always going to appeal the decision, but were convinced to follow the tribunal’s advice. We believe there is a legal error in the decision of the MRT and that the delay in lodging the application is not prejudicial to the interests of the Respondents and that it would be unfair and unjust if we are not given the opportunity of presenting our case to the court.

2. Whilst it is true that there are cases that suggest that seeking Ministerial intervention does not satisfactorily explain a delay in commencing judicial review proceedings, each case needs to be assessed on its own merits.   Here, the applicants are correct to assert that the tribunal’s reasons for decision encouraged the applicants to apply for Ministerial intervention.  The tribunal said:

   22.    In light of the length of time the applicant has been present in Australia and his level of integration into the Australian community as evidenced by the significant number of years he has spent engaged in higher studies in Australia and the birth of both of his children in this country during that time, the Tribunal considers that the applicant’s situation may involve exceptional circumstances such as should be brought to the attention of the Minister in order for him to consider whether to exercise his s.351 discretionary intervention powers.

3. The first respondent concedes that the tribunal’s reasons amount to encouragement for the applicants to seek Ministerial intervention but points out that the Department wrote to the applicants’ agent by letter dated 14 April, 2014 both acknowledging the referral by the tribunal for Ministerial intervention and saying:

   Your clients should also be aware the minister is under no obligation to intervene in your clients’ case. This means that your clients should not discontinue any application for judicial review on the expectation that the minister will intervene.

4. The first respondent submits that the applicants were on notice that they could commence judicial proceedings while their Ministerial intervention request was on foot and that the applicants have not satisfactorily explained the delay in commencing those proceedings.

5. There was very little delay between the applicants receiving notification of the Minister’s decision and the commencement of these proceedings.  That is consistent with the explanation given by the applicants.

6. I am satisfied that the applicants have provided an explanation for their lengthy delay in commencing these proceedings. 

The merits of the substantive application

1. The substantive application pleads one particularised ground of review:

   The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.

   Particulars

   The Tribunal has erred in that at the time the main applicant lodged his visa application on 26 September 2008, he only had to achieve an IELTS score of 5 and that is what he did in an IELTS test conducted in September 2008 and those results should have been accepted by the MRT.

2. The first respondent submits that this proposed ground of the application has no prospects of success. 

3. The applicants argue that the first applicant only had to achieve a score of 5 on an IELTS test.  That was on the basis that the first applicant only had to demonstrate vocational English rather than competent English.  That argument turns upon whether the first applicant’s nominated skilled occupation was in Major Group IV in the Australian Standard Classification of Occupations.  However, that matter received little attention by the tribunal because, it is fair to say I think, that the applicants never put that argument to the tribunal.  Rather, the applicants argued that the first applicant only had to achieve a IELTS test score of 5 rather than 6.  The tribunal dealt with that argument in this way:

   14.    The applicant gave evidence that at the time he lodged his visa application on 26 September 2008 he was only required to show evidence that he had achieved an IELTS score of 5 in each of the four bands and that he achieved this in an IELTS test conducted in 2008, although the results of that test are not before the Tribunal. It was submitted by the applicant’s representative that ‘competent English’ as at the time of application on 28 September 2008 only required the applicant to achieve a score of 5 in each of the four test components of the IELTS test and that this was subsequently raised to a score of 6 as a result of legislative changes introduced in July 2010.  It was submitted that a score of 6 as at the date of application was required for ‘proficient English’ and that this has since risen to 7.  The Tribunal accepts that belief to be genuinely held but rejects the submission, noting that r.886.213(b) as it was at the date of application required the applicant to have ‘competent English’ defined in r.1.15C, which at the date of application required a person to achieve an IELTS test score of at least 6 for each of the 4 test components. 

1. Earlier, at [9], the tribunal had said:

   9. The applicant’s nominated skilled occupation is ‘marketing specialist’, which is not in ASCO Major Group IV and therefore the applicant cannot meet the vocational English standard required by cl.886.213(a).

2. The argument now put is that the tribunal was wrong to find that the first applicant’s nominated skilled occupation was not in ASCO Major Group IV.

3. There can be no doubt in my view that if the first applicant’s nominated skilled occupation was not in Major Group IV in the Australian Standard Classification of Occupations, the tribunal correctly applied cl.886.213 and reg.1.15C, and the applicants’ assertion that the first applicant only needed to achieve an IELTS score of 5 is incorrect.

4. It emerged in argument before me that the applicants contend now that the first applicant’s nominated skilled occupation was within Major Group IV in the Australian Standard Classification of Occupations at the relevant time and the tribunal’s determination about that was wrong.  The first applicant produced a document to that effect (a Form 1121i).

5. The point was a new one which was not clearly articulated in the proposed grounds of review.  The applicants did not deliver any written outline of submissions as directed by the Court at the first court date and so no effective notice of the argument was given to the first respondent.  Consequently, I permitted the first respondent to file further written submissions about this issue following the hearing before me.  He took up that opportunity.

6. By those submissions, the first respondent pointed out that the phrase skilled occupation where it appears in cl.886.213 was defined at the time of the applicants’ visa applications by reg.1.03 of the Regulations as follows:

   skilled occupation means an occupation that is specified by the Minister in an instrument in writing for this definition as a skilled occupation for which a number of points specified in that instrument are available.

7. At the time of the applicants’ visa application, the relevant instrument was IMMI 08/004 – Skilled Occupations, Relevant Assessing Authorities and Points for General Skilled Migration which commenced operation on 26 April, 2008.  By item 2 of the instrument, the occupations mentioned in Column 1 of Schedule 1 to the instrument were specified as skilled occupations for the purposes of the definition of skilled occupation in reg.1.03 of the Migration Regulations.

8. The occupation described as “Marketing Specialist” is listed in Column 1 of Schedule 1 to IMMI 08/004 and accordingly was a skilled occupation within the definition of reg.1.03 at the time of the applicants’ visa applications.

9. The phrase Australian Standard Classification of Occupations is also defined in reg. 1.03 of the Regulations and at the time of application was defined as follows:

   Australian Standard Classification of Occupations means the standard published by the Australian Bureau of Statistics on 31 July 1997.

10. The Australian Standard Classification of Occupations sets out nine major groups.  The first four are:

    1 MANAGERS AND ADMINISTRATORS

    2 PROFESSIONALS

    3 ASSOCIATE PROFESSIONALS

    4 TRADESPERSONS AND RELATED WORKERS

11. As the first respondent points out, those first four major groups listed above correspond with those set out in the Form 1121i provided by the applicant to the Court at hearing on 20 September, 2016.

12. Whilst the occupation of “Marketing Specialist” is a skilled occupation for the purposes of the relevant regulations, and assuming that Major Group IV is the same as Major Group 4 in the second edition of the Australian Standard Classification of Occupations, the first applicant’s nominated skilled occupation does not appear in Major Group IV of the Australian Standard Classification of Occupations.  It appears in Major Group 2. 

13. I accept the first respondent’s submission that the tribunal was correct to find that the first applicant’s nominated skilled occupation was not in “ASCO Major Group IV” and it was therefore insufficient for the first applicant to demonstrate vocational English.  He needed to demonstrate that he had competent English and on the facts before the tribunal he could not do so.

14. In my view, the proposed application lacks any reasonable prospects of success.  Indeed, in my view the proposed application for review enjoys no prospects of success.

Other matters

1. The first respondent concedes that there would be no prejudice to him if the extension was granted.

2. I have not lost sight of the fact that the impact upon the applicants if the extension of time is refused will be to deny them the opportunity to properly and fully develop their argument in support of their application for review.  That is a significant step never taken lightly by a court except in a clear case.  But, as observed by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] “it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage”.

3. This is one of those cases.

Conclusion

1. In my view, for the above reasons it is not in the interests of the administration of justice to make the order sought by the applicants in this case. 

2. The application must be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 December, 2016.

Date: 8 December, 2016