SINGH v Minister for Immigration

[2014] FCCA 1172

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1172

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – judicial review – extension of time for filing – substantive application without merit – extension of time refused – application dismissed – costs awarded.

Legislation:  

Migration Act 1958 (Cth) s.474(1)
Migration Regulations 1994 (Cth) Reg.1.15C

Applicant: AMARJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 764 of 2013

Judgment of: Judge Burnett

Hearing date: 6 March 2014

Date of Last Submission: 6 March 2014

Delivered at: Brisbane

Delivered on: 6 March 2014

REPRESENTATION

The applicant appeared on his own behalf.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 30 August 2013 be dismissed.

2. That the Applicant pay the Respondents’ costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 764 of 2013

AMARJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This application was commenced on 30 August 2013, and on 2 October 2013 I issued directions for the hearing.  On that date I directed that the matter be listed for hearing on 3 April 2014.  On 11 February 2014 the Court wrote to the applicant informing him that because of listing issues, the hearing was to be heard today, 6 March 2014.  The applicant says that he received notice of that letter some three or four days ago when it was read to him by somebody at his request. 

2. He now says that he needs a couple of months now to prepare for hearing because he has no money and has not had sufficient time to engage a lawyer. He says that he first consulted a lawyer to assist him yesterday and that the lawyer had no time.  In broad terms, it seems to me that the applicant, even on his own admission, would not have been ready to proceed on 3 April 2014, let alone today, if I accept the reasons he has given, in particular the fact that he has no money and has been very late in consulting a lawyer.

3. In my view, he has had more than sufficient time to prepare his application, so in the absence of any other explanation his delay is inexcusable. Furthermore, having reviewed the application, the decision of the Tribunal and considered the overall prospects of the application, it is quite apparent that his application could only be described as hopeless, at best.  In the circumstances, it seems to me that it would afford him no justice to delay the proceeding, and in fact could be quite unjust to him given the general circumstances of his application. I therefore propose to determine the application.

4. The applicant applies for review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 5 July 2013. The Tribunal affirmed the decision not to grant him a Skilled (Provisional) (Class VC) visa. The matter came on before the Tribunal on 20 June 2013, but the applicant did not attend or present arguments. There is nothing in the material to suggest that the Tribunal did not comply with the regulatory requirements set out in the Migration Act 1958 (Cth) (“the Act”).

5. It follows that the Tribunal’s decision is a privative clause decision within the meaning of s.474(1) of the Act and it cannot be set aside unless it can be shown that the decision is tainted by jurisdictional error. The applicant contends that there has been jurisdictional error. He alleges that he was denied natural justice because the minister and the Tribunal did not provide him with an opportunity to provide further information and documentation. Nor was he given an opportunity to sit for an IELTS test and provide a report.

6. The Tribunal was particularly mindful of the requirements provided in cl.485.215 of the Migration Regulations 1994 (Cth), in particular the requirement that he have competent English. Regulation 1.15C deals with the matters relevant to prove competent English. It requires a person to, among other things, satisfy the Minister that:

   a)the applicant has undertaken a language test;

   b)the test was conducted in the two years immediately before the day on which the application was made; and

   c)the person achieved a score specified in the relevant statutory instrument.

7. The applicant must satisfy the Minister that the person holds a passport of the type specified in the relevant statutory instrument. The applicant is a citizen of India. He does not hold a relevant passport.

8. The Tribunal concluded on that matter, having regard to the material before it, there was no evidence that the applicant held a passport of the type specified in the relevant legislative instrument, and that from his file it appeared that he had not satisfied the English requirement in the 24 months prior to the lodgement of his application.  Furthermore, there was no evidence provided to the Tribunal either with the application or during the processing of the view that he had undertaken any English test prior to his application.

9. It followed that the Tribunal was not satisfied that the applicant had competent English as provided for in the regulations and that the requirements of cl.485.215 were not met. Accordingly, the only decision the Tribunal could make was to affirm the decision not to grant him the visa. That point is important because it demonstrates that the application before the Tribunal and this application for review are both bound to fail.

10. In considering the application today, as I have indicated, the strength of the application is important in determining not to grant an adjournment, but it is also another matter which ought to be considered when one has regard to the current application, which has been filed out of time.  The application was filed 17 days late, and accordingly requires leave.  The for leave to be granted the applicant must demonstrate:

    a)an explanation for why he was delayed in filing his application;

    b)a consideration of the general prejudice;

    c)a consideration of the circumstances of the application; and

    d)the overall merits of the application. 

11. The delay is some 17 days; it is not a lengthy delay.  The explanation provided for the delay is that the applicant was suffering from depression and austere financial circumstances, suggesting that he was unable to seek legal advice or organise his application.

12. I note the application is filed under his hand, but it is plain from its expression that he has not drafted it.  It may well be that his general circumstances may have been partly responsible for the delay in filing the application. However, that matter itself is not entirely determinative.  The applicant’s approach to these proceedings appears to be dilatory. For instance, no reason was given for his failure to attend the Tribunal hearing. The Tribunal noted that the applicant principally failed because he had not satisfied the English language requirements. The applicant has been in Australia now for at least three years and still has not satisfied the English requirements. His tardy approach appears to have infected his attitude to commencing this application in a timely way. I note that the applicant also seeks more time to prosecute this application.

13. Perhaps most important are the merits. This application has little, if any, prospect of success. It follows that the application for the extension of time should be refused. 

14. The applicant having not succeeded in obtaining an extension of time, the application is incompetent and must be dismissed.

15. The applicant submits that he is unable to pay the respondents’ costs. Unfortunately, being impecunious provides no basis to refuse the order for costs.  I will award costs in favour of the respondents.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  5 June 2014