Sandhu v Minister for Immigration Multicultural Affairs and Citizenship

The applicants in Sandhu v Minister for Immigration Multicultural Affairs and Citizenship sought an extension of time and leave to appeal against a decision of the Federal Circuit Court, which dismissed their application for judicial review of a decision to refuse their visa application. The applicants argued that the Tribunal and FCC erred in failing to consider their reasons for not undertaking the English language test earlier and in not considering the alleged negligence of their migration agent. The FCC held that the applicants had not identified any information that was not disclosed to them in breach of s 424A of the Migration Act 1958 (Cth) and that there was no scope for compassionate factors to be taken into account under the Regulations. The FCC also held that mere negligence by the migration agent would not be sufficient to vitiate the Tribunal’s decision.

The legal issues before the Court were whether the proposed grounds of appeal had any prospects of success and, accordingly, whether it was appropriate to grant an extension of time to seek leave to appeal. The Court noted that the proposed grounds of appeal had no merit, as the Regulations required the first applicant to have undertaken the English test before making her application and the Tribunal did not err in not taking into account her reasons for not sitting the exam earlier. The Court also noted that the claim that the migration agent did not advise them properly was not raised before the FCC and that mere negligence by the migration agent would not be sufficient to vitiate the Tribunal’s decision.

Accordingly, the Court held that it would not be appropriate to grant an extension of time to seek leave to appeal, as the proposed grounds of appeal had no prospects of success. The Court dismissed the application for an extension of time and for leave to appeal, struck out the draft notice of appeal, and ordered the applicants to pay the respondent’s costs.