Sikalu v Minister for Immigration

[2016] FCCA 2034

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIKALU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2034

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – 485 visa refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: TEVITA GORDON SIKALU

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1097 of 2015

Judgment of: Judge Vasta

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Brisbane

Delivered on: 1 August 2016

REPRESENTATION

Solicitors for the Applicant: Ace Solicitors

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application for an extension of time be dismissed.

2. That the Applicant pay the costs of the First Respondent’s fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1097 of 2015

TEVITA GORDON SIKALU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 24 November 2015, the Applicant, Mr Tevita Gordon Sikalu, seeks a judicial review of the decision of the Administrative Appeals Tribunal that was made on 9 October 2013.  At that time, the Tribunal was called the Migration Review Tribunal. 

2. On that day, 9 October 2013, the Tribunal affirmed a decision of the delegate of the Minister that was made on 20 July 2012 not to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa.  Now, such a visa requires that the Applicant be proficient in English. 

3. One of the two ways in which the Applicant can show that he or she is proficient in English is with a satisfactory IELTS test report.  Now, the Applicant had a test report from 28 November 2007.  The test showed that he had a score of 5.5 in listening, 5.5 in reading, 4.90 in writing and 6.0 in speaking.  That gave him an overall band score of 5.5. 

4. What needs to happen, for a successful application, is that there must be a score of at least six in each of these four categories.  The Applicant could not show that he did that.

5. In fact, he had only scored six, the bare pass mark, in the category of speaking.  Therefore, the Minister had no option but to reject the application for a visa. 

6. When the matter came then, before the then Migration Review Tribunal on 9 October 2013, the member considered all of the matters.  The member stated at paragraph 8 that the Minister has two specified language tests.  The International English Language Test System that I’ve referred to already, IELTS, and the Occupational English Test. 

7. For the IELTS, there needs to be a score of at least six for each of the four test components and for the Occupational English Test, a test score of at least B for each of the four test components. 

8. At the hearing, the Applicant showed that he did not have any evidence that he had competent English at the time of the visa application, by reference to any test score.  The Tribunal noted then that there was no evidence that there was competent English at the time of the visa application and therefore, a mandatory component of the visa application had not been met.

9. So for those reasons, the Tribunal had affirmed the decision. 

10. Now, as I say, that decision was made in November 2013 and the application to this Court was made on 24 November 2015, well over two years later.  For a competent appeal, the application for a review must be made within the 35 days of the decision of the Tribunal.  In this case, the application is 741 days out of time. 

11. For this Court to grant leave to appeal out of time, there has to be consideration of three components.  Firstly, what is the reason for the application to be made out of time. Secondly, what prejudice is there to the respondent and thirdly, what are the merits of the matter. 

12. Mr Stevenson, who appears for the applicant has quite rightly conceded that there really is not a sufficient excuse as to why the application was filed out of time.  The only explanation is that the Applicant says that he did not know that he had recourse to the Court.  Of course, he may still be mistaken because “recourse” to this Court, as I explained to him, is not an appeal in the proper meaning of the word, “appeal”. 

13. All that can be done here is that the Court reviews what the Administrative Appeals Tribunal has done.  If there has been an error made, then the matter is remitted back to the Administrative Appeals Tribunal, and if there is no error made, then the matter stays as is. 

14. This Court is not a Court that can grant visas or refuse the grant of visas.  The Minister has also conceded that there is no real prejudice.  Mr Stevenson said that the only matter that he could look at to advance the grant of leave is for the merits of the matter to be considered. 

15. He has also rightly conceded that when one looks at the merits of the matter, there is very little that he could put before the Court to show that there had been an error made by the Tribunal. 

16. The fact is that this really was, as it were, not a matter of consideration of the merits, but a matter simply described as almost a strict liability.  Either you can show that you have proficiency in English by reference to test scores or you cannot. 

17. The Applicant simply could not show proficiency.  There really could be no way that a Court could say that on the evidence before the Tribunal, that the Tribunal has made any error.

18. Therefore, it seems to me as though the merits aspect of my consideration is not one that could be favourable to the Applicant.  Therefore, having considered all the matters that I do need to consider, I refuse the application for leave to apply to this Court out of time.

19. I order that the Applicant pay the costs of the Minister fixed in the sum of $5,800.00. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 1 September 2016.