Singh v Minister for Immigration
[2016] FCCA 2020
•9 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2020 |
| Catchwords: MIGRATION – Application for extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.351, 359A, 360, 476, 477, Pt.5, Div.5 Migration Regulations 1994 (Cth), cl.885.213 of sch.2 , reg.1.15C |
| Cases cited: Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 Hunter Valley Developments Pty Ltd & Ors v the Honourable Barry Cohen, Minister of Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305 |
| First Applicant: | SHARANDIP SINGH |
| Second Applicant: | MANPREET KAUR |
| Third Applicant: | GURNOOR KAUR |
| Fourth Applicant: | GURSHAAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2273 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 13 May 2016 |
| Date of Last Submission: | 13 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2016 |
REPRESENTATION
| Solicitors for the Applicants: | Self-Represented |
| Solicitor Advocate for the Respondents: | Mr Cunynghame |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the Second Applicant be amended to ‘Manpreet Kaur’.
The name of the Fourth Applicant be amended to ‘Gurshaan Singh’.
The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.
The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
The Applicants pay the First Respondent’s costs in the fixed amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2273 of 2014
| SHARANDIP SINGH |
First Applicant
| MANPREET KAUR |
Second Applicant
| GURNOOR KAUR |
Third Applicant
| GURSHAAN SINGH |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time to apply for judicial review under s.476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 14 January 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the First Applicant (“the Applicant”) a Skilled (Residence) (Class VB) subclass 885 visa (“the visa”). The other Applicants apply as members of the Applicant’s family.
The application for judicial review was filed on 12 November 2014.
Pursuant to sub-s.477(1) of the Act, an Applicant applying for judicial review in this Court is required to, “in relation to a migration decision”, make the application “within 35 days of the date of the migration decision”. The Applicant is 267 days out of time.
Section 477(2) of the Act provides that the Court may Order that the 35-day period prescribed under s.477(1) of the Act be extended as the Court considers appropriate if:
(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.
In his application, the Applicant specifies the grounds of his application for an extension of time “[a]s set out in the grounds of the application”. The grounds of the application do not provide any explanation for the significant delay. The Applicant has also failed to file an Affidavit explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension of time for filing the application, in accordance with r.44.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
Although the Applicant has not complied with s.477(2)(a) of the Act or r.44.05 of the Rules, as he was self–represented I have given him latitude in this respect. In his oral submissions the Applicant said that he was depressed because his father was sick. I note that the Applicant sought Ministerial Intervention, pursuant to s.351 of the Act, on 17 February 2014 (CB 259). I am prepared to treat these as his reasons for the delay.
I explained to the Applicant, who is self-represented, that the Court has a broad discretion under sub-s.477(2) of the Act. However, the factors that the Court generally takes into account are the extent of the delay, the reasons for the delay, any prejudice to the First Respondent and whether the application for judicial review discloses an arguable case, that is, whether the substantive application has merit: Hunter Valley Developments Pty Ltd & Ors v the Honourable Barry Cohen, Minister of Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; (1984) 58 ALR 305.
In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time for filing under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) of the Act as follows:
[46]There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.
[47]The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a)Whether there has been a reasonable and adequate explanation for the applicant's delay;
(b)Whether there is any prejudice to the Minister;
(c)Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.
[48]The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.
The Minister opposes the application for an extension of time on the basis that the delay is substantial, no reasonable explanation for the delay has been provided and the substantive application is without merit.
Background
On 28 May 2012, the Applicant applied for the visa (CB 1-14).
To meet the visa criteria, under cl.885.213 of Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”), the Applicant had to demonstrate that he had competent English. Regulation 1.15C of the Regulations provides that a person has ‘competent English’ if the person:
(a) satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii) the person achieved a score specified in the instrument; or
(b) satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
In the visa application, the Applicant indicated that he undertook an IELTS test on 10 May 2012 (CB 12).
On 31 May 2013, the (then) Department of Immigration and Citizenship (“the Department”) requested, in addition to other documents, that the Applicant provide an “…IELTS test report within the timeframe of 28 days” (CB 49-58).
On 17 June 2013, the Applicant’s Migration Agent provided some of the requested information, but not the requested IELTS report. On 18 June 2013, the Department sent an email to the Applicant’s Migration Agent advising that the IELTS test report had not yet been provided (CB 132).
On 25 June 2013, the Applicant’s Migration Agent requested an extension of time to provide a copy of the IELTS test report result (CB 151-190). On 26 June 2013, the Department sent an email to the Applicant’s Migration Agent refusing that request (CB 191).
On 12 September 2013, the Department sent an email to the Applicant’s Migration Agent and advised that “…this application is batched for refusal as the required evidence of Competent English at time of application has not been provided to date” (CB 197-198). No further correspondence was received from the Applicant.
On 25 October 2013, a delegate of the Minister (“the delegate”) refused the Visa application, on the basis that the Applicant did not have competent English and therefore did not satisfy cl.885.213 of Sch.2 to the Regulations (CB 206-211).
Tribunal's proceedings
On 28 October 2013, the Applicant made an application for review to the Tribunal. A copy of the delegate’s decision accompanied the application (CB 214-224).
On 4 December 2013, the Tribunal wrote to the Applicant, inviting him to attend a hearing and present arguments relating to the issues in his case on 10 January 2014. The invitation also noted that “to date you have not presented evidence that you meet the English language proficiency requirement”, and requested that the Applicant provide evidence of competent English and indicated to the Applicant how this may be done (CB 227-229).
On 23 December 2013, the Applicant sought an adjournment of the hearing, on the basis that the Applicant’s father had been admitted to hospital in India and that the Applicant needed to travel to India to visit him (CB 230).
On 23 December 2013, the Tribunal contacted the Applicant’s Migration Agent and advised that the hearing could be conducted by telephone, that there was only one matter in issue, and that unless there were good reasons to the contrary the Tribunal proposed that the hearing proceed as scheduled via telephone (CB 233-234).
On 10 January 2014, before the hearing commenced, the Applicant’s Migration Agent sent a facsimile to the Tribunal and indicated that the Applicant would attend the hearing in person. The facsimile also sought an extension of one month for the Applicant to produce the re-mark of his IELTS results dated 20 December 2013 (CB 235-240).
On 10 January 2014, the Applicant attended the Tribunal hearing with his family and Migration Agent (CB 241-244).
At the Tribunal hearing, the Applicant conceded that he had not undertaken a prescribed English language test in the relevant period and attained the requisite standard of competent English: at [12] of the Tribunal’s Decision Record (CB 256).
Tribunal decision
The Tribunal identified that the issue in the case was whether the Applicant had competent English as required by cl.885.213 of Sch.2 to the Regulations: at [6] of the Tribunal’s Decision Record (CB 255).
The Tribunal found that whilst the Applicant claimed that he had attained competent English in his visa application form, no results to that effect had been provided to the Department, despite repeated requests: at [9] of the Tribunal’s Decision Record (CB 256).
The Tribunal considered the Applicant’s request to the Tribunal to defer its decision until the results of the re-mark of the IELTS test he had sat on 9 November 2013 and 7 December 2013 became available: at [11] of the Tribunals Decision Record (CB 256). The Tribunal found that the Regulations clearly require that the IELTS test must have been conducted during the prescribed period prior to the visa application having been lodged; that is, in the 2 years immediately before 28 May 2012: reg.1.15C(a)(ii) of the Regulations. In these circumstances the Tribunal was not prepared to allow the Applicant further time to submit IELTS test results as any adjournment would be “futile” given the tests were conducted after the visa application was lodged: at [14] of the Tribunal’s Decision Record (CB 256).
The Tribunal was not satisfied, on the evidence before it, that the Applicant had competent English, as defined in reg.1.15C of the Regulations: at [15] of the Tribunal’s Decision Record (CB 256).
The Tribunal found that the Applicant did not meet the requirements of cl.885.213 of Sch.2 to the Regulations and therefore did not satisfy the criteria for the granting of the visa: at [16] of the Tribunal’s Decision Record (CB 257).
Extension of Time
The extent of and reasons for the delay
I agree with the Minister that the 267 day delay is substantial. The Applicant’s explanation that he was depressed is not supported by any cogent medical evidence. The fact that he sought Ministerial Intervention, pursuant to s.351 of the Act, is not an adequate reason for the delay: Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831 at [20]; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [25]; MZZBM v Minister for Immigration & Anor [2013] FCCA 321 at [19]; Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9]-[10]; M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 at [24]. The Applicant was represented by a Migration Agent and was able to seek advice about his options. I agree with the Minister’s submission that the onus is on the Applicant to make proper enquiries or to take reasonable steps to ascertain whether and when he could have filed an application in this Court: SZOCH v Minister for Immigration & Anor[2010] FMCA 300 per Nicholls FM at [43] and SZLIH v Minister for Immigration and Citizenship & Anor [2009] FCA 108.
The Minister submits that although there is no real prejudice to the Minister in the delay, there is no merit in the substantive application and for that reason alone the application for an extension of time should be refused.
The merits of the proposed substantive application
The application specifies the following grounds of review:
1. The Applicant seeks judicial review of a decision of the Migration Review Tribunal (The Tribunal) which a decision was made on 16 January 2014 where the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Skilled (Residence)(Class VB) Visa.
2. The tribunal constructively failed to exercise its jurisdiction
PARTICULARS
(i) The applicant applied to the Department of Immigration and Citizenship for a Skilled (Residence) Class VB visa (28 May 2012). The visa was refused on the 25th October 2013.
(ii) The delegate refused the visa because he did not have his IELTS result.
(iii) The Migration Review Tribunal did not allow time for the applicant to get his IELTS re-marked.
(iv) The tribunal has made errors in administration and has not determined the case according to law.
Further, on the last page of the application there appears a further ground of review:
1. In determining that the applicant is not entitled to the grant of a Student Visa application, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.
Particulars
(i) The Tribunal failed to comply with the requirements of s425 of the Migration Act 1958.
(ii) The Tribunal failed to comply with rules of natural justice and contravened s422B of the Migration Act 1958.
The Minister’s submission that the first ground of review is not a proper ground of review is correct. Consequently, this ground can form no basis for jurisdictional error.
The second ground of review alleges that the Tribunal made a jurisdictional error in failing to provide the Applicant further time for the Applicant to get his IELTS test re-marked. This misconceives the statutory criteria. The Applicant was required, pursuant to reg.1.15C of the Regulations, to provide evidence of achieving satisfactory results in a prescribed test, completed in the 2 years immediately before his visa application was made: Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [11]-[13]; and Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2014] FCA 486 at [12]; Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 at [18]; Rani & Ors v Minister for Immigration & Anor [2014] FCCA 536 at [14]-[18]; Shafi v Minister for Immigration & Anor [2014] FCCA 577 at [21]-[22]; and Govind v Minister for Immigration and Border Protection & Anor [2014] FCCA 957 at [37]; also see Kumar v Minister for Immigration and Border Protection [2014] FCAFC 1336.
The Tribunal correctly understood that tests undertaken after 28 May 2012 did not assist the Applicant in meeting the visa criteria. Consequently, the Tribunal’s decision not to grant the Applicant further time to provide evidence of tests, which he was seeking a re-mark of, conducted after 28 May 2012, was reasonable.
Accordingly, I find that no jurisdictional error arises from the second ground of review.
In his oral submissions, the Applicant said that he was told by his Migration Agent that he could undertake his IELTS test after he lodged his application for the visa. I am satisfied that this complaint by the Applicant is one asserting that the Migration Agent gave him incorrect advice or information. Bad or negligent advice does not give rise to jurisdictional error: SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 at 232 at [53]; Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501 at 509 [33]; SZQVV v Minister for Immigration & Citizenship [2012] FCA 871 at [46].
The last ground of review cannot be made out in circumstances where the Tribunal complied with its obligations under Pt.5, Div.5 of the Act. In this regard, the Tribunal invited the Applicant to appear before it to give evidence and present arguments, relating to the issues arising in relation to the decision under review, in accordance with s.360 of the Act. Further, that hearing invitation noted that the Applicant had not presented evidence that he had met the competent English requirement. In any event, the Tribunal was not required to put the Applicant on notice of this issue in circumstances where the Applicant provided a copy of the delegate’s decision in his application for review to the Tribunal, which identified his failure to satisfy the delegate that he had competent English as the dispositive issue: see sub-s.359A(4)(b) of the Act.
Accordingly, no jurisdictional error arises from this ground.
Conclusion
In circumstances where the delay in filing the application for judicial review is substantial, the explanation for the delay is unacceptable and the Applicant’s substantive case is not sufficiently arguable, I find that it is not in the interests of the administration of justice to grant an extension of time pursuant to s.477(2) of the Act. I will make Orders that the application for an extension of time be refused and costs be paid by the Applicants to the First Respondent.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 9 August 2016
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