Runghsawmee v Minister for Immigration & Anor
[2019] FCCA 2795
•3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUNGHSAWMEE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2795 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – consideration of factors. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Regulations 1994 (Cth), reg.1.15C, sch.2, pt.187, cll.187.222, 187.232, 187.311 |
| Cases cited: ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 AMN16 v Minister for Immigration & Border Protection [2017] FCCA 2531 Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 Borra v Minister for Immigration & Anor [2013] FCCA 1216 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 Farook v Minister for Immigration and Border Protection [2014] FCA 1017 Guillermo v Minister for Immigration & Border Protection [2015] FCCA 3132 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 Jarosek v Department of Immigration [2006] FMCA 1048 Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363 Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 MZXGJ v Minister for Immigration & Anor [2006] FMCA 1035 MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 Sarabia v Minister for Immigration & Border Protection [2017] FCCA 2642 Singh v Minister for Immigration & Anor [2014] FCCA 2949 Singh v Minister for Immigration & Border Protection [2017] FCCA 275 VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 Wei v Minister for Immigration & Anor [2013] FCCA 262 WZANW v Minister for Immigration & Anor [2009] FMCA 1075 WZASQ v Minister for Immigration [2013] FCCA 1726 |
| First Applicant: | Nazreen Runghsawmee |
| Second Applicant: | Siva Runghsawmee |
| Third Applicant: | mohammAd Runghsawmee |
| First Respondent: | Minister for Immigration, citizenship, migrant services & multicultural affairs |
| Second Respondent: | Administrative Appeals Tribunal |
| File Number: | PEG 208 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 November 2017 |
| Date of Last Submission: | 14 November 2017 |
| Delivered at: | Sydney (by video-link to Perth) |
| Delivered on: | 3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicants: | Mr A Byrne and Mr N Nandan |
| Solicitors for the Applicants: | MyVisa Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr A Gerrard |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
That the applicant’s application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) in which to file the Originating Application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Perth |
PEG 208 of 2016
| Nazreen Runghsawmee |
First Applicant
| siva Runghsawmee |
Second Applicant
| MOHAMMAD Runghsawmee |
Third Applicant
And
| Minister for Immigration, citzenship, Migrant services & Multicultural affairs |
First Respondent
| Administrative Appeals Tribunal |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants commenced these proceedings seeking judicial review under s.476 of the Migration Act1958 (Cth) (“Migration Act”), of a decision of the then Migration Review Tribunal, now Administrative Appeals Tribunal (the “Tribunal Decision” and “Tribunal” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration and Border Protection, now the Minister for immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister") to not grant a Regional Employer Nomination (Permanent) (Class RN) visa (“REN Visa”) to the applicants pursuant to s.65 of the Migration Act.
The applicants filed the Judicial Review Application on 13 May 2016 outside of the 35 day time limit prescribed by s.477(1) of the Migration Act, and therefore when the matter came on for hearing on 14 November 2017 the Court was required to determine if the discretion to extend the time to bring the Judicial Review Application pursuant to s.477(2) of the Migration Act should be exercised.
By an amended Judicial Review Application filed 23 June 2017 (“Amended Judicial Review Application”), the first applicant Ms Nazreen Runghsawmee (“Mrs Runghsawmee”) added her husband and their child as the second and third applicant (“Second Applicant” and “Third Applicant” respectively) to the judicial review proceedings. The Second and Third Applicant were both ‘dependents’ for the purposes of Mrs Runghsawmee’s REN Visa application.
The Court acknowledges that these Reasons for Judgment have been delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which in November 2017 (when this case was heard) was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Judicial Review Application and the Amended Judicial Review Application;
b)Mrs Runghsawmee’s affidavit filed 13 May 2016 (“Applicant’s Affidavit”);
c)the affidavit of Jung Min Lee filed 8 June 2017 (“Lee Affidavit”);
d)the affidavit of the Second Applicant (Mr Siva Runghsawmee) filed 21 June 2017 (“Second Applicant’s Affidavit”)
e)outlines of submissions filed by the applicant on 23 June 2017 and filed by the Minister on 4 September 2017;
f)the Court Book (“CB”), in which appears the Tribunal Decision dated 1 October 2014: CB 237-240, which at hearing was marked as Exhibit 1; and
g)the transcript of the hearing before the Court on 14 November 2017 (“Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Factual and procedural background
The factual and procedural background is as follows:
a)the applicants are all citizens of Mauritius, and Mrs Runghsawmee first arrived in Australia on a Higher Education Sector (TU 573) visa in 2009: CB 1 and 112;
b)on 28 February 2013 Mrs Runghsawmee applied for the REN Visa, listing the Second and Third Applicants as dependents, on the basis of working in the nominated position of retail manager: CB 1-18;
c)on 11 December 2013 the Delegate requested further information and evidence of qualifications and English competency: CB 51 and 54;
d)on 17 January 2014 a Delegate refused the REN Visa on the basis that Mrs Runghsawmee did not meet cl.187.232 of sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) because the Delegate was not satisfied that Mrs Runghsawmee had competent English, and pursuant to cl.187.311 of sch.2 of the Migration Regulations the Second and Third Applicants were also refused the REN visa : CB 101-106;
e)Mrs Runghsawmee lodged an application for review of the Delegate’s Decision on 28 January 2014 on her own behalf, no representative was on the Tribunal record: CB 199-203;
f)a hearing was held before the Tribunal on 1 October 2014 (“Tribunal hearing”) where all of the applicants were in attendance and no representative was present nor was an interpreter requested: CB 222; and
g)on 1 October 2014 the Tribunal Decision affirmed the Delegate’s Decision not to grant the REN Visa: CB 237-240;
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)identified the relevant law and criteria for the REN Visa, including stating Mrs Runghsawmee must satisfy the primary criteria in Pt.187 of sch.2 of the Migration Regulations, while the Second Applicant and Third Applicant need satisfy only the secondary criteria: CB 238 at [2]-[3];
b)stated the issue in the present case was whether Mrs Runghsawmee had a competent level of English, or was otherwise in a class of persons specified by the Minister as exempt from the English competency requirements: CB 238 at [8];
c)referred to both reg.1.15C of the Migration Regulations, and the legislative instruments, IMMI12/059 and IMMI12/018 (“Legislative Instruments”), when defining “English language proficiency”: CB 238-239 at [9]-[10];
d)found, and Mrs Runghsawmee acknowledged, she did not meet the requirements on three occasions prior to the date of her REN Visa application, and the documents provided to the Delegate also confirmed she did not meet the relevant requirements: CB 239 at [11];
e)was satisfied Mrs Runghsawmee did not hold a passport specified under IMMI12/018, was not a member of ‘Class 1’, was not a member of ‘Class 2’, and was not a member of ‘Class 3’ in the Legislative Instruments to enable her to be exempt from the English language requirements: CB 239 at [14];
f)found Mrs Runghsawmee did not satisfy the requirements of cl.187.222 of sch.2 of the Migration Regulations: CB 239 at [15];
g)considered Mrs Runghsawmee’s English competency test results dated 1 February 2014 whereby she was found competent, however held the criteria are to be applied at the time of the application, and Mrs Runghsawmee was not at that time deemed competent: CB 239 at [17]-[18];
h)found as Mrs Runghsawmee does not satisfy the primary criteria under cl.187.222 of sch.2 of the Migration Regulations, the Second Applicant and Third Applicant could not satisfy the secondary criteria pursuant to cl.187.311 of sch.2 of the Migration Regulations: CB 240 at [19]; and
i)affirmed the Delegate’s Decision to refuse to grant Mrs Runghsawmee, the Second Applicant and the Third Applicant a REN Visa.
Mrs Runghsawmee again contacted the Tribunal on 16 March 2016 stating she originally sat an English competency test on 18 January 2014 and met the requirements, though while awaiting the results took another test on 1 February 2014 where she did not meet the competency. The Tribunal did not provide a response to this letter.
Subsequent to the Tribunal Decision being delivered Mrs Runghsawmee, allegedly on the advice of her then migration agent, sought Ministerial intervention under s.351 of the Migration Act: CB 114-121. A number of supporting letters were provided to the Minister for consideration, but Mrs Runghsawmee’s request for Ministerial intervention was refused on 2 May 2016.
Current Proceedings
Mrs Runghsawmee did not seek judicial review until 13 May 2016, 11 days after the request for Ministerial intervention had been denied. Pursuant to s.477(1) of the Migration Act, an application for judicial review must be made within 35 days of the ‘migration decision.’ The relevant ‘migration decision’ pursuant to the definition in s.5(d) of the Migration Act was the Tribunal Decision. The denial of the request for Ministerial intervention, while a ‘migration decision,’ is not one for which this Court has jurisdiction to review: Migration Act, s.474(7)(a).
Having accepted the decision under review was the Tribunal Decision made on 1 October 2014, the Judicial Review Application was lodged outside of the 35 day statutory time limit: Migration Act s.477(1), thus Mrs Runghsawmee sought an extension of time (“Extension of Time Application”). The Minister opposed the granting of an extension of time, and the matter proceeded to a hearing on 17 November 2017 for consideration of the Extension of Time Application.
The evidence relied upon at the hearing of the Extension of Time Application included Mrs Runghsawmee’s Affidavit, the Lee Affidavit (annexing the Tribunal Transcript) and the Second Applicant’s Affidavit: Transcript, p.5.
Extension of Time Application
Grounds
The grounds of the Extension of Time Application are as follows:
1. There is a discretion for the Court to grant this extension of time and the circumstances are such that the discretion should be exercised because it is in the interests of the administration of justice to make the order (section 477(2) of the Migration Act).
Particulars
a. There appear to be reasonable prospects for success if leave is granted.
b. The reason for this delay is outlined in the First Applicant's affidavit filed on 13May 2016. (The delay in the matter is 1 year 6 months and 8 days).
c. There is no apparent prejudice to the Respondents.
d. If the extension of time is not granted, the First Applicant will be harshly impacted as she will never again have the opportunity for a skilled visa or an employer sponsored visa due to her age (54 years).
e. It is in the public interest to grant leave because:
(i) There appears to be jurisdictional error evident in the decision made by the Respondents.
(ii) There was incorrect advice provided by the First Applicant's previous migration agent – … [name deleted].
(iii)There was incorrect advice provided by the First Applicant's previous lawyer - … [name deleted].
(iv)The First Applicant is from a non-English speaking background.
f. There is a reasonable explanation for the delay.
g. The First Applicant filed immediately after she received proper advice.
Mrs Runghsawmee’s submissions
In relation to the Extension of Time Application Mrs Runghsawmee submitted that:
a)pursuant to s.477(2) of the Migration Act, the Court can extend the time for making an application for judicial review of a migration decision if it is satisfied that it is in the interests of the administration of justice to do so;
b)this delay is satisfactorily explained by the incorrect advice provided by Mrs Runghsawmee's previous migration agent: Mrs Runghsawmee’s Affidavit at [19]-[20];
c)Mrs Runghsawmee is from a non-English speaking background and without access to abundant resources and without work rights;
d)should the extension of time not be granted, it will have an impact as Mrs Runghsawmee will forever lose the opportunity for any skilled visa or an employer sponsored visa due to her age;
e)the Delegate erred in considering that Class 3 was relevant to the application made when it was not a relevant consideration, and the incorrect analysis of the Delegate in terms of considering that Class 3 of the relevant instrument was in fact relevant, was the first in a litany of errors whereby Mrs Runghsawmee's first migration agent erred, Mrs Runghsawmee’s previous lawyers erred, and the Tribunal erred;
f)the extension of time ought therefore to be granted.
At hearing, in respect of the merits of the Amended Judicial Review Application the following submissions were made:
a)the Second Applicant was denied an opportunity to speak at the Tribunal hearing as he was advised prior to the Tribunal hearing by an officer not to speak unless spoken to, and the Tribunal Member never invited him to say anything during the Tribunal hearing and that was a denial of procedural fairness under s.360 of the Migration Act;
b)the failure of fairness and of a meaningful opportunity to partake in the proceedings demands that the Tribunal Decision be set aside and an opportunity be provided that the Second Applicant, whether he had good arguments or bad, be able to make those arguments and provide evidence;
c)the officer who told the Second Applicant not to speak unless spoken to is an officer of the Tribunal, and there is nothing within the rules that says that the procedure starts and ends upon the ‘gavel hitting the wood’;
d)the Tribunal referred to the criteria under sch.2, cl.187.222 of the Migration Regulations as the relevant criteria, however this clause refers to the ‘Transitional’ sub-class as opposed to the ‘Direct’ sub-class Mrs Runghsawmee had applied for, such being an error of law and an irrelevant consideration as sch.2 cl.187.232 of the Migration Regulations pertained to the correct criteria to be applied;
e)one can infer that there was no advice provided as to the option of judicial review before this Court, and one can also then infer that at no point in time was the question of jurisdictional error by reason of the Second Applicant not having been heard raised, and Mrs Runghsawmee applied for Ministerial intervention as it was the only option advised by her migration agent and a lawyer; and
f)the Tribunal was concerned only with the outcome at the time of the Judicial Review Application, and the use of the verb ‘will’ in the requirements under the provisions for the REN Visa suggest the Tribunal should have considered if Mrs Runghsawmee would meet the particular income criteria within a ‘reasonable time.’
Minister’s submissions
In relation to the Extension of Time Application the Minister submitted that:
a)it is for Mrs Runghsawmee to specify why it is necessary in the interests of the administration of justice to make an order extending time and similarly, the onus is on Mrs Runghsawmee to make proper enquiries or to take reasonable steps to ascertain whether she could have taken action beyond the Tribunal and as to any applicable time limits;
b)a delay of the magnitude of one and a half years is, by itself, a compelling reason to refuse the application for an extension of time in this case, further in Jarosek v Department of Immigration [2006] FMCA 1048 (“Jarosek”) at [27] per Walters FM found that the delay of approximately 12 months in that matter was inordinate and in Tran v Minister for Immigration & Border Protection [2014] FCA 533 per Wigney J (“Tran”), a delay of 18 months was found to be "excessive”;
c)if there has been a serious delay for which no explanation has been proffered, a strong case on the merits is required before the Court should exercise its discretion to extend time: Re Hakim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 29 ALD 193 at [15] per Heerey J, and Mrs Runghsawmee has not provided any reasonable explanation particularly where she does not contend she was ignorant of the time limits for lodging any appeal, but rather that she accepted the advice of a migration agent and lawyer that Ministerial intervention was the preferable path;
d)it is well established that delay resulting from an application for Ministerial intervention does not provide an explanation for the delay in making an application for judicial review: Singh v Minister for Immigration & Border Protection [2017] FCCA 275 at [27] per Judge Lucev and the Tribunal Decision was sent directly to Mrs Runghsawmee, she was advised of her right to judicial review and the time limits for doing so: CB 236 and 242;
e)in respect of the merits of the application, the relevant test is whether in the light of other relevant considerations there is merit in the substantive grounds of the application for judicial review (as particularised), such that it is in the interests of justice that time be extended and in Duarte v Minister for Immigration & Citizenship [2013] FCA 9 at [22] per Nicholas J the Federal Court refused to grant an extension of time where there had not been a satisfactory explanation for a delay of 19 months notwithstanding there was an arguable case that the applicant had been denied procedural fairness;
f)it is conceded no prejudice would be suffered as a result of the grant of an extension of time, however a mere absence of prejudice is insufficient of itself to justify extending time;
g)whilst on the one hand it can be said that the refusal to grant an extension of time would have an impact on Mrs Runghsawmee’s ability to remain in Australia, it is equally clear that the applicants made a choice to pursue Ministerial intervention rather than appeal the Tribunal Decision; and
h)in the circumstances of this case, the Minister contends that the dominant factor is the extraordinary length of the delay of one and a half years, a delay has not been adequately explained and as such the Court should choose not to exercise the discretion to grant an extension of time.
Consideration
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time include:
a)the length or extent of delay;
b)the reason for the delay;
c)any prejudice to the opposing party; and
d)the merits of the proposed application.
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J.
Under s.477(1) of the Migration Act an application to this Court for judicial review must be made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 1 October 2014, and therefore the applicant was required to file the Judicial Review Application by 4 November 2014. Having not lodged the Judicial Review Application until 13 May 2016 the applicant is 558 days out of time.
The Court may make an order extending the 35 day time limit in which to accept the Proposed Judicial Review Application if, pursuant to s.477(2) of the Migration Act:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
Regard must be had to r.44.05(2) of the FCC Rules which states that:
(2) An application must be supported by an affidavit including:
(a) …; and
(b) …; and
(c) 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.
Delay – extent and reasons
The evidence submitted in relation to the advice of the migration agent and the lawyer was that found in Mrs Runghsawmee’s Affidavit at [20]-[22]:
20. I asked my Migration Agent what the next steps would be. I was advised that the next step is to go to the Minister and seek Ministerial Intervention.
21 . Following this, I also sought advice from a Lawyer, who also advised that the next step is to seek Ministerial Intervention.
22. As I was unaware that the option of judicial review existed, I followed the advice that was given to me and thereafter sought Ministerial Intervention.
The Minister expressly stated he did not need to cross-examine Mrs Runghsawmee on the her affidavit evidence as it was clear in the evidence before the Court she received written notice of the Tribunal Decision and an accompanying written notice of the right to judicial review in this Court: Exhibit 1, CB 241-242. The Court notes in the Tribunal Transcript at [49] the Tribunal told Mrs Runghsawmee at hearing she had a right to review to this Court. This leads the Court to find Mrs Runghsawmee had twice been personally told by the Tribunal as to her right to apply to this Court for judicial review of the Tribunal decision (albeit that the Tribunal spoke of an “appeal” to this Court).
Mrs Runghsawmee was represented by a migration agent when making her REN Visa application but was not represented by a migration agent when lodging her application for review of the Delegate’s Decision with the Tribunal: CB 199. A friend who was a lawyer assisted in writing the letter seeking Ministerial intervention. Mrs Runghsawmee’s Affidavit at [23]-[25] stated:
23. On 2 May 2016 I received a letter in relation to the outcome of the Ministerial Intervention. It was found that my case does not present circumstances that may be referred to by the Minister.
24. This letter confirmed that I was given the wrong advice.
25. I sought legal advice on or around 3 May 2016.It was only here that I was advised that judicial review was an option.
The law with respect to the delay in making an application can be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 at [553] per McHugh J (“Brisbane South Regional Health Authority”);
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at [553] per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 at [16] per McHugh J (“Marks”); and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at [553] per McHugh J.
The Minister referred to a number of authorities whereby very lengthy delay has been found to be unreasonable and an extension of time not granted: WZANW v Minister for Immigration & Anor [2009] FMCA 1075 at [28] per Lucev FM (“WZANW”) Tran; Jarosek at [27] per Walters FM.
Mrs Runghsawmee sought to contend the time period had not been triggered as a result of the failure to afford the Second Applicant a hearing or an opportunity to be heard, but as the Court observed at hearing were that assertion to be correct ss.476 and 477 of the Migration Act would be rendered otiose insofar as they set time limits and require an extension of time beyond that time limit. The law should not be interpreted in such a way as to render otiose otherwise valid legislation: Vanit v R (1997) 190 CLR 378; (1990) 149 ALR 1; CLR at 393 per Kirby J.
In this case, there is a very substantial delay. The delay is almost sixteen times the existing limitation period, and an extension of time, if granted, would extend the period granted to the applicant in which to file to 593 days, that being more than 19 months. A delay of this length is likely to be fatal to an application for an extension of time notwithstanding the merits of the application. In Marks at [16] per McHugh J the High Court observed as follows:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay … In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
As was stated in Marks at [16] per McHugh J where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”. In the Court’s view there is, on the evidence, nothing “exceptional”, or obviously exceptional, in the circumstances of the applicant’s case.
This is a case in which, in the Court’s view, the delay alone in bringing the Judicial Review Application is so lengthy that, of itself, it justifies not granting the Extension of Time Application.
Generally, the longer the delay, the more persuasive the explanation needs to be”: Tran at [38] per Wigney J. The explanation for the delay was that a migration agent, and a lawyer, independently did not advise Mrs Runghsawmee to lodge a judicial review application, but rather advised her to seek Ministerial intervention.
The applicant’s failure to make an application for judicial review to this Court earlier is sought to be explained by a lack of legal advice and “wrong” advice from her migration agent and a lawyer. In this regard, the application for an extension of time proceeds on a false premise which is again inconsistent with previous authority of the High Court, the Federal Court and this Court.
In Marks at [17] per McHugh J the High Court observed as follows:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two month period for mandamus and the six month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned.
In SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 the Federal Court observed as follows at [3]-[4] per Gyles J:
3 The first paragraph of the affidavit in support of the application is:
‘I was not given access to free legal advice which is commonly available to applicants through the NSW Legal Advice Scheme. I was denied natural justice at the Federal Magistrates Court.’
4 That contention was put to the learned Federal Magistrate and, in my opinion there is no doubt about the correctness of the view he expressed that there is no right to free legal advice and that the fact that an adjournment was not granted to access free legal advice was not a denial of natural justice.
In SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J the Federal Court observed that:
Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis [1994] HCA 51;(1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW [2010] FCAFC 41; 183 FCR 575 at [30].
In MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev this Court observed that there is no right to legal representation in migration judicial review proceedings in this Court.
Albeit that there is no right to legal representation in migration proceedings in this Court, it is nevertheless the case that the fact that an applicant does not have a lawyer is a factor which might be taken into account when exercising a discretion to waive a requirement or extend a relevant time limitation: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 (“MZZIV”) at [5] per Mortimer J; ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 (“ADN15”) at [29] per Charlesworth J, but more particularly where there is only a short delay, as in MZZIV, where the delay was 11 days and considered by the Federal Court to be “not significant”: MZZIV at [1] and [5] per Mortimer J, or where it is conceded that the delay was “not substantial”, and where the Minister also conceded that there would be no prejudice: ADN15 at [30] per Charlesworth J. In this case the very substantial delay takes the matter beyond the bounds of MZZIV and ADN15, as does, and more particularly so, the fact that a lawyer was not only consulted by Mrs Runghsawmee prior to making the decision to pursue Ministerial intervention, but wrote the letter for Mrs Runghsawmee seeking Ministerial intervention.
In Tran the Federal Court found the explanation for a delay of 18 months to be neither adequate nor satisfactory: Tran at [35] per Wigney J. In Tran the Federal Court observed as follows at [33]-[35] and [38] per Wigney J:
33. Mr Tran’s explanation for the delay was that when the Tribunal affirmed the decision to cancel his visa, he asked counsel who represented him before the Tribunal to advise him on the prospects of success if he applied to the Court for a review of the Tribunal’s decision. Counsel advised him that there was no error of law and, presumably, that therefore his prospects of success were low. He then went to the Prisoners Legal Service. There he received advice from a legal advisor that he would be in a better position to conduct research and obtain legal advice when in immigration detention after his release from prison. He was unable to obtain any other legal advice at the time because neither he nor his aunt was in a position to pay for private legal advice. As a result, Mr Tran did nothing further towards filing an application whilst he was in prison.
34. On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
35. This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship[2008] FCA 298 at [6]; Manna at [17].
38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
The applicant was sent the Tribunal Information Sheet, together with the notification of the Tribunal Decision dated 1 October 2014, in which it was indicated that if she thought the Tribunal Decision was wrong in law she may seek judicial review in this Court within 35 days of the Tribunal Decision: CB 241-242. It is also relevant to observe that if Mrs Runghsawmee required language assistance the Tribunal provided her with a telephone number to call for that assistance: CB 236.
It is also well accepted delay by reason of seeking Ministerial intervention under s.351 of the Migration Act is generally an insufficient reason to warrant an extension of time: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [32] per Jessup J (Gyles and Besanko JJ agreeing); Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 per Crennan J; Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J.
In AMN16 v Minister for Immigration & Border Protection [2017] FCCA 2531 (“AMN16”) the applicants in that case asserted their migration agent advised it was necessary to apply for the Ministerial intervention after the Tribunal refused to grant a protection visa, and the applicants followed that advice. In those circumstances it was held that as the applicants had not suggested the migration agent acted fraudulently, negligently or incompetently no reasonable or adequate explanation for the delay had been given: AMN16 at [28] per Judge Dowdy.
In Wei v Minister for Immigration & Anor [2013] FCCA 262 at [22] per Judge Nicholls it was said that:
On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court …
While in Wei the applicant had lodged an application for judicial review, withdrew the application to pursue Ministerial intervention and upon being denied sought to re-initiate judicial review proceedings out of the prescribed time limit, nonetheless the applicant like Mrs Runghsawmee had the benefit of legal advice and chose to follow that legal advice to seek Ministerial intervention.
In Borra v Minister for Immigration & Anor [2013] FCCA 1216 at [38] per Judge Burchardt it was said that:
… the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision…
In Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 (“Applicant A2”) at [8]-[10] per von Doussa J the Federal Court held there was nothing to prevent the applicants from pursuing their judicial review application while, at the same time, seeking Ministerial intervention. Furthermore, in Applicant A2 the Federal Court said that:
having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.
Mrs Runghsawmee applied for Ministerial intervention by a letter dated 11 November 2014, or some 40 days after the Tribunal Decision was delivered: CB 214. Mrs Runghsawmee waited over 18 months for the Ministerial intervention decision which was advised to her on 2 May 2016, and during the 18 months, she took no further steps to ascertain her rights. It was only upon being advised of the negative outcome that Mrs Runghsawmee sought more legal advice, and claims, wrongly, to have for the first time been advised of a right to apply for judicial review in this Court.
Having regard to the facts and the law the Court is of the view that the fact that Mrs Runghsawmee, acting on professional advice, unsuccessfully pursued Ministerial intervention, is not a matter which warrants a grant of extension of time.
In the Court’s view, the advice of the migration agent and the lawyer was not fraudulent, negligent or incompetent, and contrary to what Mrs Runghsawmee’s Affidavit at [23] states, she was not given the “wrong” advice, because as the law cited above makes clear Ministerial intervention was an alternative course that was open in the circumstances. The advice that Mrs Runghsawmee was given was certainly not fraudulent in the relevant sense of a fraud upon the Tribunal, and even if it was negligent or incompetent (and it is not at all obvious that it was so) that does not amount to jurisdictional error: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 at [33] per Tamberlin, Finn and Dowsett JJ.
Insofar as Mrs Runghsawmee submits that she is from a non-English speaking background that is not uncommon in migration cases, and indeed probably more common than not in applications to this Court for judicial review of decisions of the Tribunal. In relation to the applicant’s English language skills there is in fact no evidence that any lack of English language skills affected the applicant’s capacity to obtain assistance, or interfered with the assistance that she ultimately did obtain. Indeed, Mrs Runghsawmee appears to have been relatively resourceful in obtaining advice from her migration agent and a lawyer, and it is simply not evident that any part of the delay was due to the level of her English language skills. Mrs Runghsawmee does not appear to be in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time. To the extent that this is a matter which requires some consideration: MZZIV at [5] per Mortimer J; ADN15 at [29] per Charlesworth J, it does not of itself explain the delay, and the Court nevertheless needs to be cautious in placing too much reliance on matters like these lest too ready an acceptance of them makes an extension of time the rule, and not the exception, on prerogative relief applications, contrary to what was said by the High Court in Brisbane South Regional Health Authority CLR at 553 per McHugh J. Further, it needs to be remembered that upon the expiry of the time for the issue of a writ against a decision of the Tribunal, the Minister has a vested right to retain the benefit of that decision: Marks at [17] per McHugh J. In this case that is a very significant factor where the delay in making the Proposed Judicial Review Application is a very substantial 593 days, being more than 19 times the statutory limitation period.
Having regard to the matters set out immediately above the Court considers that they do not constitute a proper explanation for delay, and certainly not a delay of 593 days, in making the Judicial Review Application. There is simply not the necessary degree of persuasiveness in the explanation sufficient to explain such an excessive delay: Jess v Scott & Ors (1986) 12 FCR 187; (1986) 70 ALR 185, FCR at 195 per Lockhart, Sheppard and Burchett JJ; Tran at [35] and [38] per Wigney J.
The length of the delay in this case is sufficient of itself in the Court’s view to warrant not exercising the discretion to extend time, but the length of the delay and the failure to provide an adequate explanation for the delay, also warrants the Court not exercising the discretion to extend time.
Prejudice
The Minister conceded there would be no undue prejudice faced if the extension of time were to be granted; nonetheless an absence of prejudice is insufficient of itself to justify extending time. Hunter Valley Developments at 349 per Wilcox J; WZASQ v Minister for Immigration [2013] FCCA 1726 at [19] per Judge Lucev.
In the present case, prejudice is a neutral factor when whether considering to grant an extension of time.
Public interest and discretion of the Court
Insofar as it is necessary to consider the public interest as a factor the only issues that need be considered are issues associated with case management and wastage of public resources: Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR, which in this registry of this Court, with its caseload, weigh very heavily against the grant of an extension of time.
Merits of Amended Judicial Review Application for the purposes of the Extension of Time Application
Grounds of review
The Amended Judicial Review Application contained three grounds of review:
1. The second respondent fell into error because it took into account irrelevant considerations and its decision is legally unreasonable in this context.
Particulars
a. The second respondent considers "cl 187.222(b)" - the consideration of which is only relevant if the applicant has made an application under the Temporary Residence Transition Stream, which the applicant did not make (at [13]; CB 239). She made an application under the Direct Entry Stream.
b. The second respondent considers "Class 3" which is a class specified for the purposes of (relevantly) cl 187.222(b) - the consideration of which is only relevant if the applicant has made an application under the Temporary Residence Transition Stream, which the applicant did not make (at [14]; CB 239).
c. The second respondent makes a finding in respect of cl 187.222(b) - a finding which is only open to the second respondent in the case of an application under the Temporary Residence Transition Stream, which the applicant did not make (last sentence at [14]; CB 239).
d. The second respondent makes a finding in respect of cl 187.222 - a finding which is only open to the second respondent in the case of an application under the Temporary Residence Transition Stream, which the applicant did not make (at [15]; CB 239).
2. The second respondent fell into error because it failed to take into account relevant considerations or failed to ask itself the correct questions or failed to make relevant findings which it was obliged to make and its decision is legally unreasonable in this context.
Particulars
a. The second respondent considers "cl187.232" (at [9]; CB 238) - the consideration of which is relevant if the applicant has made an application under the Direct Entry Stream, which the applicant did make, but the second respondent failed to make any finding in respect of this clause in any part of its decision.
b. “Class 2” specified in paragraph 1 of the instrument Immi 12/059 (CB 118) required the second respondent to ask itself, among other questions, the following specific questions:
(i) Whether the applicant had applied for a visa; and
(ii) Whether the application for a visa was under the Regulations; and
(iii) Whether the applicant's earnings "will be" at least equivalent ...
c. The second respondent engages with the "earnings" question (at [14]; CB 239, but in the context of cl 187.222(b), not in the context of cl 187.232(b).
d. At paragraphs 33-44 of the recently filed affidavit of Jung Min Lee sworn on 8 June 2017 (relating to the transcription of the hearing) the second respondent asks questions of the applicant, however, the decision record discloses no evidence that the second respondent has properly engaged with the correct criteria nor discharged its obligation to ask itself the relevant questions, namely the three questions in "b" above.
e. The ordinary meaning of the words : “will be” in Class 2 requires the second respondent to determine whether at the time of its decision, the applicant will, in the future, at any time have earnings of a particular level. There is no evidence in the decision record that this criteria is found by the second respondent not to be met.
3. The second respondent fell into error and made a decision that was legally unreasonable because it failed to act fairly by not giving the applicant's husband (the second applicant) the opportunity to give evidence at the hearing and thus failed to act in a way that was fair and just, as required by section 357A(3) of the Migration Act.
Particulars
a. The applicant advised the second respondent that the second applicant was to appear at the hearing as a witness.
b. The applicant was accompanied by her second applicant and the second applicant who was sworn in as a witness at the hearing
c. The second respondent was told that he could not talk unless spoken to. Please see the recently filed affidavit of Siva Runghsawmee sown on 21 June 2017.
d. The hearing commenced at 15:00, ended at 15:15 and a decision was made and signed at 15:58. The first applicant was unrepresented at the hearing and there was no interpreter.
Mrs Runghsawmee’s Submissions
In respect of grounds 1 and 2 it was submitted:
a)as the matter refers to a Direct Entry Stream visa, the Tribunal must make a determination as to whether Mrs Runghsawmee will fall under Class 1 or Class 2 for Mrs Runghsawmee to meet cl.187.232 of the Migration Regulations;
b)the correct question to ask was whether Mrs Runghsawmee will occupy a position as nominated by a Minister of Religion, and whether Mrs Runghsawmee’s earnings "will be" at least equivalent to the current Australian Tax Office (“ATO”) rate in the near future;
c)in the Tribunal Decision at [13] the Tribunal refers to cl.187.222(b) of sch.2 of the Migration Regulation which is the wrong clause to apply, the correct being cl.187.232(b) of sch.2 of the Migration Regulations;
d)at [33]-[44] of the Tribunal Transcript, the Tribunal engages with Mrs Runghsawmee in respect to whether Mrs Runghsawmee would be a person that falls under Class 2, specifically at [40] the Tribunal asks about Mrs Runghsawmee's earnings, however, there is no proper engagement by the Tribunal with Class 2 and in particular, if Mrs Runghsawmee's earnings "will be" at least equivalent to the current ATO top individual income rate;
e)the Tribunal then refers to Class 3 persons being exempt from the English language criteria for the purposes of cl.187.222(b) of sch.2 of the Migration Regulations and only relevant to a subclass 187 visa applications lodged under the Temporary Residence Stream, and as Mrs Runghsawmee lodged her application under the Direct Entry Stream the finding made by the Tribunal is in respect to an irrelevant consideration;
f)the Tribunal fell into error by failing to take into account the relevant consideration, that is making a finding under cl.187.222(b) of sch.2 of the Migration Regulations and the correct and relevant clause not being considered;
g)the Tribunal’s consideration of cl.187.222(b) of the Migration Regulations and further consideration of whether Mrs Runghsawmee is classified as a person under Class 3 of the Legislative Instruments is irrational such that the steps taken, and thus the decision made, by the Tribunal is illogical as the criteria considered is irrelevant to the application; and
h)the Tribunal fell into error by not asking itself the correct questions in respect to the Mrs Runghsawmee's earnings and a failure to ask the right question may result in jurisdictional error: MZXGJ v Minister for Immigration & Anor [2006] FMCA 1035 at [62] per McInnis FM.
With regard to ground 3 most submissions were advanced orally at hearing:
a)the Second Applicant had provided notice to the Tribunal that his evidence should be taken in support of the Mrs Runghsawmee's matter through the use of the 'Response to Hearing Invitation Form' which was submitted to the Tribunal on 3 September 2014: Second Applicant’s Affidavit at [5] and Exhibit-SR1;
b)the Second Applicant's testimony is that at no point did the Tribunal give him the opportunity to speak or submit any further evidence thus the Tribunal fell into error by failing to act in a way that is fair and just by not allowing the opportunity to the Second Applicant to provide further submissions;
c)the Tribunal hearing was only 15 minutes long, there was confusion as is shown in the Lee Affidavit and the Tribunal brought the hearing to an abrupt end without giving the Second Applicant an opportunity to speak, further when one looks at the way that the proceeding was brought to a close within those 15 minutes effectively there was no opportunity provided, or even contemplated for the Second Applicant to give evidence;
d)it does not matter what is to be put, just that there be a meaningful opportunity, to make submissions or provide evidence in submissions to the Tribunal at hearing and there was no opportunity at all;
e)when one is dealing with a Tribunal hearing with multiple applicants and there has been a jurisdictional error in respect of one of those applicants it affects the entire Tribunal Decision;
f)the Second Applicant considered Mrs Runghsawmee to be confused and that she did not understand some of the questions, his view was that there was information that the Tribunal was accepting and would rely upon which he considered to be incorrect, and he ought to have been provided an opportunity to speak and he wasn’t able to even make a submission, even as to whether Mrs Runghsawmee’s income was soon to change or whether she had improperly calculated it;
g)the Court should look at the breakdown in procedure and the fact that there was an invitation and there is evidence before the Court that that invitation was not acted upon because of conduct of the Tribunal officer in telling the Second Applicant not to speak unless spoken to, albeit preceding the Tribunal hearing, however there is nothing within the rules that says that the procedure starts and ends upon the “gavel hitting the wood”;
h)the Tribunal officer is effectively a representative of the Tribunal and the context means that the actions should be taken as that of the Tribunal, and in any event it is an explanation for there not having been evidence proffered or actively put forward at the hearing by the Second Applicant; and
i)the fact of the failure of fairness and the failure to provide the opportunity demands that the Tribunal Decision be set aside and an opportunity be provided that each of the applicants, whether they have good arguments or bad, be able to then go to the Tribunal to say what those arguments are and what their evidence might be.
Minister’s Submissions
In respect of grounds 1 and 2 the Minister submitted:
a)essentially the complaint is that the Tribunal assessed Mrs Runghsawmee in relation to cl.187.222 of Sch.2 to the Migration Regulations relating to the Temporary Residence Transition stream of the visa class, rather than cl.187.232 of Sch.2 to the Migration Regulations relating to the Direct Entry Stream;
b)it is clear that the Tribunal was aware that it was assessing the Mrs Runghsawmee 's application for a visa in the Direct Entry stream as:
i)at [3] it noted Mrs Runghsawmee must meet the 'Common criteria', as well as the criteria of one of the three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream;
ii)the Tribunal noted at [4] that Mrs Runghsawmee "is seeking the visa in the Direct Entry stream, to work in the nominated position of retail manager";
iii)at [5] it stated that the Delegate had not granted the visa because the Mrs Runghsawmee did not meet cl.187.232 of Sch.2 to the Migration Regulations because the Delegate was not satisfied that Mrs Runghsawmee had competent English or otherwise met cl.187.232 of Sch.2 to the Migration Regulations; and
iv)the Tribunal noted at [9] that an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI12/059;
c)the Tribunal erroneously refers to cl.187.222 of sch.2 to the Migration Regulations at [13]-[15] of the Tribunal Decision, however at all other times the Tribunal correctly referred to cl.187.232 of sch.2 of the Migration Regulations, it is patently clear that the Tribunal was aware that Mrs Runghsawmee must satisfy competent English as required by Migration Regulations sch.2, cl.187.232 as opposed to vocational English as required by cl.187.222 of sch.2 of the Migration Regulations, unless one of the exemptions in the Legislative Instruments applied;
d)Mrs Runghsawmee appears to accept that the Tribunal applied the relevant test as to whether Mrs Runghsawmee did or did not meet competent English for the purposes of cl.187.232(a) of sch.2 to the Migration Regulations and Legislative Instruments for the purposes of assessing the exemptions from competent English pursuant to cl.187.232(b) of sch.2 to the Migration Regulations;
e)the complaint that the Tribunal considered Class 2 of the legislative instrument "in the context of cl.187.222(b), not in the context of cl.187.232(b) [of the Migration Regulations]" even if accepted, is a meaningless distinction;
f)a claim that the Tribunal erred by not considering Mrs Runghsawmee "will, in the future, at any time" have earnings at least equivalent to the current top individual income tax rate is clearly unsustainable where such an approach would require the Tribunal to engage in speculation as to Mrs Runghsawmee's earnings at any point in the future and without any nexus to their current earnings, their current position or the visa class they have applied for, the use of the words 'will be' is simply a reference to the fact that this relates to money which will be earned following, and related to, the grant of the relevant visa and the Tribunal specifically confirmed with Mrs Runghsawmee that she did not earn over $180,000 a year: Tribunal Ttranscript at [40]-[41];
g)Mrs Runghsawmee confirmed in evidence that she did not earn over $180,000 and she has not provided any evidence that there was any evidence that could be provided, the Tribunal was under no duty to enquire further; and
h)it is accepted that the Tribunal considered whether Mrs Runghsawmee could be exempt under Class 3 of the Legislative Instruments where it was not necessary to do so, however at its highest, this means that the Tribunal considered whether any and all of the specified exemption classes applied to Mrs Runghsawmee and found that they did not and in doing so there was no practical injustice to Mrs Runghsawmee in taking into account what was an ‘irrelevant consideration’.
In regard to ground 3 it was submitted:
a)Mrs Runghsawmee complains that the Tribunal did not give the Second Applicant an opportunity to give evidence at the Tribunal hearing yet there was no requirement, and hence, no error in not hearing from the Second Applicant;
b)the claim that the Second Applicant was told not to speak unless spoken to is not supported by the Tribunal Transcript or the Lee Affidavit generally and there is no evidence that the Second Applicant could have provided any meaningful evidence;
c)what was in issue was whether Mrs Runghsawmee met the requirements for competent English or was included in any of the specified exemptions, which clearly she did not, and there was no evidence which the Second Applicant could provide in relation to those aspects; and
d)in respect of his own application, once it had been established that Mrs Runghsawmee did not meet the criteria for the REN Visa, the Second Applicant could not meet the requirements.
Consideration
In determining whether the merits of the Proposed Amended Judicial Review Application are arguable or have reasonable prospects of success, it is not necessary for the applicant to positively establish that the application will succeed at final hearing: ActewAGL Distribution v The Australian Energy Regulator [2011] FCA 639; (2011) 195 FCR 142; (2011) 123 ALD 486 at [111] per Katzmann J, but it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: MZZIV at [6] per Mortimer J. Determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveal that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit: Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25] per Mortimer J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan J, but this Court does not have the jurisdiction to review the merits of the Tribunal Decision or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In Guillermo v Minister for Immigration & Border Protection [2015] FCCA 3132 (“Guillermo”) a judicial review application was dismissed where the Tribunal decision to affirm the Delegate’s decision not to grant an REN Visa in that matter was because the applicant did not meet the English proficiency requirement: Guillermo at [3] per Judge Vasta. In dismissing the application it was stated:
8 It is trite to say that this Court can only look at whether there is a jurisdictional error, not an error in the decision itself. It would seem to me that there really was no option for the delegate of the Minister, nor the Tribunal in deciding this matter. A visa could not issue unless there had been a compliance with the condition for competent English. The Applicant himself acknowledged that he did not meet this criterion…
9 It would seem in relation to that matter, there could never be established a jurisdictional error on the part of the Tribunal…
10 What is relevant is whether or not he has been able to pass the test
…
12 Again, obtaining competent English was a requisite condition which needed to be satisfied for the applicant to obtain that visa. Before the Tribunal, the Applicant conceded he had not achieved the required scores in the test undertaken in the two years prior to the lodging of his visa application, but he had, however, sat and passed that same test after his visa application was made.
Guillermo at [8]-[10] and [12] per Judge Vasta
On the evidence before the Tribunal and the Delegate Mrs Runghsawmee did not pass the English proficiency test prior to lodging her REN Visa application and that she provided documents to the Tribunal after the Tribunal Decision was made stating she did in fact pass the test on 24 January 2014 is irrelevant where cl.187.232 of sch.2 of the Migration Regulations reads:
187.232
At the time of application, the applicant:
(a) had competent English; or
(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.
At the time of the REN Visa application, being 28 February 2013, Mrs Runghsawmee was not English competent pursuant to reg.1.15C of the Migration Regulations: CB 70. Mrs Runghsawmee had to have been deemed ‘English competent’ prior to her REN Visa application: that she was not was fatal as the criteria are “quite a simple construction”: Guillermo at [15] per Judge Vasta.
The Tribunal error in applying cl.187.222 instead of cl.187.232 of sch.2 of the Migration Regulations has no material effect on the outcome, despite seemingly taking into account an irrelevant consideration. The Tribunal still considered the exceptions relevant to the REN Visa, and found Mrs Runghsawmee did not meet those exceptions. Such a finding was a factual finding for the Tribunal, and one this Court has no jurisdiction to consider: Wu Shan Liang.
In Singh v Minister for Immigration & Anor [2014] FCCA 2949 (“Singh”) it was conceded the Tribunal in that matter had regard to the wrong, being outdated, legislative instrument to determine if an applicant was ‘exempt:’ Singh at [11] and [18] per Judge Jarrett. Referring to Farook v Minister for Immigration and Border Protection [2014] FCA 1017, it was stated:
The Tribunal’s reliance upon the wrong legislative instrument carries potential for other findings made by the Tribunal to be erroneous. But as the first respondent submits, to the extent that the Tribunal made reference to IMMI 13/009, the erroneous reference was immaterial because the relevant requirements specified in it were identical to the requirements specified in the correct instrument, namely IMMI 14/009.
Singh at [27] per Judge Jarret; see also Sarabia v Minister for Immigration & Border Protection [2017] FCCA 2642 at [23] per Judge Dowdy
Insofar as the Tribunal considering an additional exemption, Class 3, the Court finds that there was no practical unfairness affecting Mrs Runghsawmee in the Tribunal doing so. As stated by Jagot J in Ibrahim at [7]-[8] and [14]-[15]:
7…The principle that an administrative decision will not be set aside unless affected by a material legal error is separate from, and logically anterior to, the existence of a court’s discretion not to set aside such a decision because its remittal to the administrative decision-maker would be futile. Unless there is a material legal error then the question of the discretion not to make orders setting aside a decision by reason of the futility of any remittal will not arise because the decision will not be vitiated by reason of the legal error.
8.Second, a legal error is material in the relevant sense when the administrative decision depends or is based on the error. The appellant accepted that an error will not be material if the decision is sustainable on an independent alternative ground (as the Federal Magistrate found in the present case). But this does not exhaust the requirement of materiality. An error also will not be material if no other decision could have been made on the basis of the material available to the decision-maker.
…
14. In other words, to be a jurisdictional error the error must be material (in the relevant sense) to the decision. Immaterial errors, by contrast, are errors within jurisdiction.
15. The difficulty confronting the appellants in the present case is that, even if the errors the appellants allege occurred, the evidence before the Tribunal taken at its highest was not capable of establishing that the first appellant met the statutory requirement upon which the appellants’ entitlement to visas depended…
The Court does not accept that the Tribunal erred when considering Mrs Runghsawmee’s taxable income. In considering if Mrs Runghsawmee was exempt under cl.187.232(b) of sch.2 of the Migration Regulations the Tribunal had to assess ‘At the time of the application,’ and as such at the time of the application what Mrs Runghsawmee would earn. By her own admission at the Tribunal hearing Mrs Runghsawmee answered in the negative when asked by the Tribunal if she earns over $180,000 a year: Tribunal Transcript at [40]-[41]. For the Tribunal to make findings as to whether Mrs Runghsawmee would earn above that amount in the future would be to engage in speculation, and furthermore would require the Tribunal to make further enquiries, which it has has no obligation to do: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and [49] per Emmett J. The duty imposed on the Tribunal is to conduct a review: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) ALR 429 at [26]-[27] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, not an inquiry. Even more so where the claim was not clearly put before the Tribunal of there being even a remote possibility Mrs Runghsawmee would have been in the top individual tax bracket in the near future.
As to ground 3, while the Court finds there was merit in Mrs Runghswmee’s claims the Second Applicant was denied a real and meaningful opportunity to present evidence or submissions, the Court is of the view such an error was not material to the outcome. The Tribunal would have had to make the same findings in respect of Mrs Runghsawmee (and particularly as to her English competency) even if the error had not been committed and remitting the matter would be futile as the evidence before the Tribunal, and the admissions made by Mrs Runghsawee, mean that she did not meet the criterion for the grant of the REN Visa: VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [30] per Crennan J (“VCAK”); Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328 at [14]-[15] per Jagot J (“Ibrahim”); Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363 at [47]-[48] per Moore, Besanko and Buchanan JJ. Thus, while the failure to hear from the Second Applicant might have been to deny him procedural fairness, it did not affect the outcome in the Tribunal Decision because of the fact that Mrs Runghsawmee simply did not meet the relevant criteria.
In light of the above findings, grounds 1, 2 and 3 of the grounds in the Amended Judicial Review Application fail to disclose a reasonably arguable case, and in any event given it would be futile to remit the matter were an error to be established as Mrs Runghsawmee did not satisfy the primary criteria of cl.187.232 of sch.2 of the Migration Regulations at the time of the REN Visa application. Therefore, in the circumstances the merits of the Amended Judicial Review Application do not favour the grant of an extension of time: MZZIV at [6] per Mortimer J.
Conclusion and orders
The Court has concluded that
a)the length of the 593 day delay in making the Judicial Review Application, is such that the delay alone in this case is a sufficient basis for dismissal of the Extension of Time Application;
b)the length of the delay in making the Judicial Review Application, together with the failure to adequately explain that delay, are taken together, also a sufficient basis for dismissal of the Extension of Time Application;
c)the grounds of the Amended Judicial Review Application are not reasonably arguable and have no reasonable prospects of success, and the Court should not therefore extend time: MZZIV at [5] per Mortimer J, but, even if the Amended Judicial Review Application was arguable and had reasonable prospects of success, the Court, in the exercise of its discretion under s.477(2) of the Migration Act, finds that the combination of factors referred to in (a), and (a) and (b), of this paragraph, would warrant dismissal of the Extension of Time Application in any event, and thus even if the applicant had a good case it would be defeated by the time limitation: Brisbane South Regional Health Authority CLR at 553 per McHugh J; Tran at [38] per Wigney J; and
d)further, the Court is not persuaded, and particularly so having regard to the findings in (a), (b) and (c) of this paragraph, and the notoriously heavy and ongoing case load in the Perth Registry of this Court, that it would be in the interests of the administration of justice under s.477(2) of the Migration Act to extend time in this case.
It follows that there should be an order that the Extension of Time Application under s.477(2) of the Migration Act be dismissed.
In circumstances where the Extension of Time Application has been unsuccessful it is unnecessary to make a further order that the application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ at [34] per Judge Lucev.
The Court will also make an order amending the name of the first respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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