Singh & Anor v Minister for Immigration & Anor
[2015] FCCA 831
•17 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 831 |
| Catchwords: MIGRATION – Application for review of decisions of the Migration Review Tribunal and Assistant Minister for Immigration and Border Protection – no jurisdiction to review a decision of the Assistant Minister under s.351 of the Migration Act 1958 (Cth) – application out of time – no acceptable explanation for delay – application without merit – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.351, 359C, 474, 477 Migration Regulations 1994 (Cth), reg.1.15C, Sch.2, cl.485.215 |
| Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Vu v the Minister for Immigration and Citizenship [2008] FCAFC 59 |
| First Applicant: | KULDEEP SINGH |
| Second Applicant: | KAMALJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 260 of 2014 |
| Judgment of: | Judge Whelan |
| Hearing date: | 17 March 2015 |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | The Applicants appeared in person |
| Counsel for the Respondents: | Mr Hibbard |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application for Review of the decision of the Assistant Minister not to exercise her power under s.351 of the Migration Act 1958 (Cth) is dismissed on basis that the Federal Circuit Court of Australia has no jurisdiction to review it.
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be refused.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 260 of 2014
| KULDEEP SINGH |
First Applicant
| KAMALJIT KAUR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
It is apparent from what the First Applicant has put to the Court this afternoon that he misconceives the role of the Court with respect to a judicial review of the Migration Review Tribunal’s (“the Tribunal”) decision. The Court does not have in its power the capacity to give an applicant more time to meet criteria that the applicant has been unable to meet under the Migration Act 1958 (Cth) (“the Act”) and which the Tribunal, in this case, has found that the First Applicant is unable to meet. The Court can only deal with the decision of the Tribunal[1] and whether the Tribunal was in error.
[1] Court Book at pp.158-164.
The First and Second Applicants (collectively “the Applicants”) in this matter seek two things:
·
First, a judicial review of a decision by the Tribunal to affirm a decision of the Minister for Immigration and Border Protection (“the First Respondent”), by his delegate not to grant the
First Applicant a skilled provisional visa; and
·Second, a review of a decision by the Assistant Minister for Immigration and Border Protection (“the Assistant Minister”) of 14 January 2014.[2]
[2] See Affidavit of Christopher Hibbard filed 11 March 2015, Annexure “CH-1”.
It would appear from the grounds of the application[3] that the only grounds specified by the Applicants go to that decision and not to the decision by the Tribunal.
[3] Application filed 17 February 2014 at p.2.
A decision by the Minister or an Assistant Minister in this case, not to exercise power under s.351 of the Act, is what is referred to as a ‘privative clause decision’ within the meaning of the Act,[4] and this Court has no jurisdiction to review such a decision that has been made by the Minister. The Court therefore only has jurisdiction to deal with the application insofar as it relates to the decision by the Tribunal.
[4] See Migration Act 1958 (Cth) at s.474.
With respect to that application, the Applicants must satisfy the Court that it would be necessary, in the interests of the administration of justice, to extend the time in order for the applications to be considered. In this case, the decision of the Tribunal was made on 13 July 2013. The application to this Court was not made until 17 February 2014. It was thus some six months out of time.
Background
The background to this matter is that in December 2010, the Applicants applied to the Department of Immigration and Citizenship (as it was then) (“the Department”) for a Skilled (Provisional) (Class VC) visa. The First Applicant stated in that application that he had not undertaken an English test within the preceding 24 months. On 24 January 2012, therefore, the delegate refused to grant the visa and found that the Applicant did not satisfy cl.485.215 of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he did not have ‘competent English’ within the meaning of the Regulations.[5]
[5] Court Book filed 31 July 2014 at pp.124-128.
On 16 March 2012, the Applicants applied to the Tribunal for a review of that decision. In correspondence dated 4 April 2013, the Tribunal invited the Applicants to provide “[e]vidence that you meet the definition of ‘competent English’ in regulation 1.15C”.[6] The letter included an explanation of what was meant by ‘competent English’ for the purpose of the Regulations and informed the Applicants that that material should be provided to the Tribunal by 13 May 2013.[7]
[6] Ibid at p.140.
[7] Ibid at pp.140-141.
On 10 May 2013, the Tribunal received a letter from the First Applicant which stated that he had received the Tribunal’s letter and that he was not able to “[p]rovide the document”, that he had “tried many times to achieve a success in test” but could not do so and requested additional time – a period of four or five weeks – to be able to meet the requirement. The letter enclosed a receipt which indicated that the
First Applicant had paid for an International English Language Testing System (“IELTS”) test which was to be held on 25 May 2013.[8]
[8] First Respondent’s Written Submissions filed 11 March 2015, p.3 at para.3.6.
The Tribunal then informed the Applicants that it had agreed to grant an extension of time and that the information would now be due on
18 June 2013.[9]
[9] Ibid at para.3.7.
On 15 May 2013, the First Applicant rang the Tribunal to ask about the request and was told that an extension had been granted to
18 June 2013. There was some issue about whether the Applicants had received the letter because they had changed their address, but the Tribunal did send the same letter by email to the Applicants.
The Tribunal did not receive any evidence that the Applicants had completed an English language test and, on 11 July 2013, the Tribunal therefore affirmed the delegate’s decision not to grant the visa as the Applicants had not produced evidence that one or either of them had ‘competent English’ in accordance with the requirements of the Regulations.[10]
[10] First Respondent’s Written Submissions filed 11 March 2015, p.4 at paras.3.11-3.12.
The Applicants’ grounds
In their application, the Applicants have addressed the issue of the necessity for an extension of time and have provided the following ground:
1. First of all my decision (MRT) is based on the English test. I tried my best but now I have hope to gain high score in English so Please I want Review the decision again.[11]
[11] Application filed 17 February 2014 at p.2.
The First Respondent’s submissions
The Tribunal’s decision[12] was dated 11 July 2013 and, as the
First Respondent has pointed out, pursuant to s.477(1) of the Act, an application for judicial review ought to have been filed on or before
15 August 2013.[13] The Applicants, in the meantime, appear to have made an application to the Minister for intervention under s.351 of the Act. That, however, on the submission of the First Respondent is not a proper explanation for the delay and the First Respondent has cited cases in support of that contention. Further, the First Respondent submits that there is no explanation for the delay between the
Assistant Minister’s refusal on 14 January 2014 and the fact that this application for review was not filed until 17 February 2014.[14]
[12] Court Book filed 31 July 2014 at pp.158-164.
[13] First Respondent’s Written Submissions filed 11 March 2015, p.7 at para.5.1.
[14] Ibid at para.5.3.
The First Respondent referred the Court to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley Developments”) which sets out the matters which the Court should have regard to in considering an application for an extension of time. With respect to those matters, of most significance in these proceedings are:
(a)applications for an extension of time are not to be granted unless it is proper to do so … ;
(b)there must be some acceptable explanation for the delay;
…
(e) the merits of the substantive application.[15]
[15] First Respondent’s Written Submissions filed 11 March 2015, p.8 at para.5.4.
The First Respondent submits that the Applicants have not provided a proper explanation for the delay and that also the application lacks substantive merit. With respect to the substantive merit, the
First Respondent submits that the Applicants’ sole ground for judicial review does not disclose any proper ground.
The First Respondent then goes on in written submissions to look at whether the Tribunal committed any error of law or otherwise failed to afford the Applicants procedural fairness in the way that the Tribunal disposed of the matter.
[17] Ibid at para.6.3.
The First Respondent submits that the Tribunal correctly applied the law and that the Applicants did not satisfy the requirements of cl.485.215 of Sch.2 and reg.1.15C of the Regulations because they were unable to provide any evidence of achieving the requisite score in an English language test as required and they did not hold a passport of the type specified by the Minister for the purpose of the Regulations.[16] The failure to provide evidence that they had competent English
“was fatal”[17]to the Applicants’ application for review.
[16] Ibid at p.9 at para.6.2.
With respect to the issue of procedural fairness, the First Respondent submits that there was no breach of the provisions of the Act with respect to that issue. The Tribunal invited the Applicants to provide information. The period in which the Applicants were to provide the information was extended. The Applicants did not provide the information and the Tribunal was therefore entitled under the provisions of s.359C(1) of the Act to make the decision on the review without taking any further action to obtain that information.[18] The Applicants were clearly on notice that they needed to provide evidence that one or both of them had “competent English”[19] and failed to do so.
[18] Ibid, pp.9-10 at para.6.7.
[19] Ibid, p.10 at para.6.8.
Conclusions
The application insofar as it relates to the decision by the
Assistant Minister not to exercise her power under s.351 of the Act is misconceived as it is not within the jurisdiction of this Court to review such a decision. With respect to the extension of time, the grounds relied upon do not address the matters to which the Court should give consideration. Those matters were correctly identified by the
First Respondent in the written submissions by reference to the case of Hunter Valley Developments.
In this case, of most relevance is first, the absence of any acceptable explanation for the delay and second, the question of the merits of the case. The fact that the Applicants may have chosen to seek ministerial intervention is not an acceptable reason for a six-month delay in filing an application for judicial review and, as the First Respondent pointed out, that was the subject of a decision by the Full Court of the Federal Court in Vu v the Minister for Immigration and Citizenship [2008] FCAFC 59. The fact that the First Applicant was trying to gain an acceptable score in the IELTS test is also not an acceptable reason for the delay.
Turning to the merits of the application, the statutory scheme provides for the granting of a visa to be subject to certain conditions. In this proceeding, the conditions which are relevant are those applying to a subclass 485 visa. The provisions applicable at the time, by virtue of cl.485.221(1) of Sch.2, and reg.1.15C of the Regulations, required an applicant for a subclass 485 visa to have achieved an IELTS score of at least six for each of the four test components of speaking, reading, writing, and listening; or at least an OET score of B in each of those four components, specified by the Minister in a test conducted not more than two years before the day on which the application was lodged.
As the Tribunal had no evidence that either Applicant had achieved such a score in a test conducted between December 2008 and December 2010 and, indeed, it would appear from the correspondence sent by the First Applicant to the Tribunal that no such score had been achieved by the First Applicant, it could not be satisfied that the Applicant satisfied the relevant criteria. The Applicants were given ample opportunity to produce such evidence to the Tribunal and did not do so.
The application is therefore without merit.
The application insofar as it relates to the ministerial decision is dismissed for want of jurisdiction, and for these reasons the application for an extension of time is refused.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 8 April 2015
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