Singhu v Minister for Immigration
[2015] FCCA 1389
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGHU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1389 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – where Application out of time – whether leave should be granted to proceed out of time – explanation for delay – no prejudice to respondent – where no merit to substantive application – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 353, 360, 363, 476, 477 |
| Cases cited: Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | CHANDRA SHEKHAR SINGHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 839 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 21 May 2015 |
| Date of Last Submission: | 21 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 21 May 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application for leave to proceed out of time is dismissed.
The Application for review of the decision of the Second Respondent is dismissed as incompetent.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,825.00 within six (6) months.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 839 of 2014
| CHANDRA SHEKHAR SINGHU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision of the Migration Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) not to grant to the Applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (Cth).
By his Application, filed on 6 May 2014, the Applicant seeks the following:
a)an order that the decision of the Tribunal should be quashed; and
b)(presumably) a writ of mandamus requiring the Tribunal to determine his Application according to law.
The First Respondent, the Minister, filed a Response on 19 May 2014 claiming that the Tribunal decision of 31 March 2014 is not affected by jurisdictional error and is therefore a privative clause decision.
Background
The Applicant is a citizen of India. He applied for a Skilled – Graduate (Provisional) (Class VC) subclass 485 visa on 7 May 2011. On 28 June 2012 a delegate of the Minister refused the visa because the Applicant did not have the required proficiency in the English language.
On 5 July 2012 the Applicant applied to the Migration Review Tribunal for review of the Delegate’s decision.
On 2 January 2014 the Tribunal wrote to the Applicant, inviting him to attend a hearing by telephone on the 29th of that month.
The Applicant gave evidence to the Tribunal over the telephone at the hearing conducted on 29 January 2014. He told the Tribunal that he had undertaken an IELTS[1] test and achieved a score of 6 or more in November 2010 but had been told that the results were only valid for two years, so he had not submitted the document. The Tribunal told the Applicant that he had two weeks to provide the results. However, the Applicant said that he needed a period of three months to undertake the test again, saying that he had piles, which had prevented him from studying. The Tribunal refused to grant that request and told the Applicant he had until 14 February 2014 to provide the results of the IELTS test.
[1] International English Language Testing System
On 4 February 2014 the Tribunal received a letter from the Applicant, saying that he had not been able to find his previous IELTS test results. He went on to say:
I need some time to take a new test approximately 3-4 months in regarding of health problem.
However, I been to hospital to take my medical reports as they told me that they couldn’t give me straight away at least they need 45 days of time. In regard I am able to submit the receipt that have give to me.
Can you consider my application regarding re write the IELTS Exam. [2]
[2] Court Book page 137
The Tribunal forwarded a reply by email on 5 February 2014, saying:
The Tribunal member has considered your request for an extension of time of 3-4 months and has declined it.
You lodged your application in May 2011. Some 33 months later you have still not produced independent evidence that you have undertaken an IELTS test and achieved scores of 6.0 or more in each band.
The Tribunal is prepared to give you an extension of time for you to sit another IELTS test. Please provide to the Tribunal evidence of a booking for an IELTS test by close of business on 14 February 2014. Please book a test date no later than 15 March 2014.
It would appear from the FOI request to Western Health that you might have had medical problems at some point in the past. If there are medical reasons why at present you are unable to study for an IELTS test, please provide further information about this issue by COB on 14 February 2014.
If the Tribunal does not receive a booking confirmation or medical information by 14 February 2014 or the date of the IELTS test is later than 15 March 2014, the Tribunal may go ahead and make a decision without taking further action[3].
[3] Court Book 139
On 12 February 2014 the Tribunal received from the Applicant a copy of a payment confirmation email from an IELTS provider relating to a test scheduled to be conducted, at least in part, on 8 March 2014. The copy of the document is cut off on one side in the Court Book, and appears to suggest that the Applicant’s Speaking Test would take place on a different day from his Listening, Reading and Writing Test.[4]
[4] Court Book 140
No further correspondence appears to have been received from the Applicant.
The Tribunal Decision
The Tribunal made its decision on 31 March 2014, affirming the decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa. A copy of the decision was forwarded to the Applicant under cover of a letter from the Tribunal dated 3 April 2014.
In its decision, the Tribunal described the issue in this way:
The issue in the present case is whether the applicant has competent English as required by cl.485.215. Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Alternatively, a person has competent English if the person holds a passport of a type specified by the Minister (r.1.15C(b)).[5]
[5] Court Book 143 at paragraph [6]
The Tribunal noted that the Applicant did not hold a passport of a type specified in IMMI 09/73 and therefore could not satisfy r.1.15C(b).[6]
[6] Ibid at [8]
The Tribunal stated its reasons for its decision as follows:
10. At the hearing the applicant claimed that he had undertaken an IELTS test and achieved a score of 6 or more in November 2010. He said his lawyer had told him that the results were only valid for 2 years and that was why he had not submitted the results. The Tribunal advised him that there was no such validity requirement and that it was prepared to give him 2 weeks to provide the results. As of the date of the decision he has not provided any further evidence in relation to this issue and the Tribunal does not accept that the applicant undertook an IELTS test in November 2010 in which he achieved a score of 6.0 or more in each band.
11. The applicant further claimed that he needed a further 3 months in order to undertake the test again. He said that he had piles and that had prevented him from studying for an IELTS test. The Tribunal advised the applicant that he had until 14 February 2014 to provide the results of an IELTS test that he claimed to have undertaken in the past.
12. The Tribunal advised the applicant that if he could not provide such test results or he had in fact not achieved scores of 6 or more in each band, it would be up to him to make a request to sit another test and to provide reasons as to why he has not undertaken another test since lodging the application. The Tribunal noted further that the applicant should be able to book a test in February and get the results by early March 2014 and that it was not immediately clear why he would need a 3 month extension of time.
13. On 4 February 2014, the Tribunal received a hand written letter from the applicant. He claimed that he was unable to locate the results of the IELTS test he had taken in the past. He said that he needed to sit another test and that he needed ‘3-4 months in regarding health problem’.
14. The letter did not specify what the applicant’s health problems were. The letter also claimed that he sought to obtain copies of medical reports but he could not get immediate access to them. He had been asked to make a FOI request and the hospital; told him that it would take 45 days to process the FOI request. The letter enclosed a tax receipt for an FOI request issued to the applicant by Western Health in support of that proposition.
15. The Tribunal wrote back to the applicant and advised him that it had declined his request for an extension of time of 3-4 months. The Tribunal invited the applicant to provide medical evidence in relation to his inability to undertake an IELTS test at present. As of the date of the decision he has not done so. No medical evidence has been provided about past medical problems either. The Tribunal notes that the FOI receipt is dated 29 January 2014 and according to the applicant’s evidence he was advised that his FOI request would be processed in 45 days, that is, approximately by 15 March 2014.
16. The Tribunal advised the applicant that he can sit an IELTS test no later than 15 March and he should provide the results of that test as soon as they become available.
17. On 12 February 2014 the applicant sent to the Tribunal a receipt for an IELTS test on 8 March 2014. As of the date of the decision the Tribunal has not received the result of any IELTS test undertaken in 2014.
18. The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).[7]
[7] Court Book 144 at [10]-[18]
Accordingly, the Tribunal affirmed the decision of the delegate not to grant a visa to the Applicant.
Application for Judicial Review
The Applicant filed his Application on 6 May 2014, accompanied by an affidavit to which he annexed a copy of the Tribunal Decision Record.
The grounds of the Application are:
He haven’t given the enough time for IELTS. I have already submitted the medical receipt from Hospital. Still he hasn’t given time. So I am applying for federal.
In his affidavit, the Applicant deposed:
1. What I have write in Grounds of application is true.
2. MRT hasn’t given enough time to submit IELTS.
3. I attached MRT Decision.
Submissions and Evidence
The Applicant relied on:
a)his Application; and
b)his affidavit of 6 May 2014.
The Applicant did not file a written submission.
The Applicant was surprised to hear from Counsel for the Minister, Mr Wood, that the Application had been filed one day out of time. His explanation was that he did not have enough money to instruct a lawyer but a lawyer to whom he spoke told him to apply. He said that he thought it was the last day to apply.
The Applicant said that he had been told by Western Hospital that it would take approximately 45 days for his FOI request to be processed. He booked an IELTS test for 8 March but did not do it. He did not say why.
Counsel for the Minister, Mr Wood, told the Court that the Application was one day out of time. The Decision was made on 31 March 2014, so the Application should have been filed on 5 May 2014. However, it was filed on 6 May, one day late. Notwithstanding that there was no application for an extension of time or an affidavit explaining the delay, Mr Wood told the Court that there would be no opposition to an application being made for an extension of time.
However, he went on to say that the extension would be opposed, even though the Application was only one day late. The reason for this is that it would be futile to allow an extension of time as the Application had no merit.
Essentially, the issue is whether the Tribunal’s decision to determine the review when it did was ‘legally reasonable’, as described in Minister for Immigration and Citizenship v Li.[8]
[8] (2013) 249 CLR 332
Mr Wood submitted that the standard of ‘legal reasonableness’ was that indicted by the true construction of the statute. In relation to the power to adjourn a review under s. 363(1)(b), that construction is informed by s. 353, which provides that the Tribunal must pursue the objective of providing a mechanism that is “fair, just, economical, informal and quick”. It is also informed by s. 360, the purpose of which is that visa applicant is given an opportunity to present evidence and arguments relating to the issues arising in relation to the decision under review.
Further, it was submitted that the exercise of power under s. 363(i)(b) must be “legal and regular, not arbitrary, vague and fanciful”; the power must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”[9].
[9] Li at 363 [65], per Hayne, Kiefel and Bell JJ, citing with approval Sharp v Wakefield [1891] AC 173 at 179
Where, as in this case, there is evidence of the Tribunal’s reasons for refusing to exercise its discretion to grant an adjournment, “it is those reasons to which a supervising Court should look in order to understand why the power was exercised as it was” (see Minister for Immigration and Border Protection v Singh[10]).
[10] [2014] FCAFC 1 at [14], [47]
Counsel for the Minister submitted that:
In this case, it is readily apparent why the Tribunal decided to determine the review.
31.1 In the period of almost three years since applying for a visa, the applicant had provided no independent evidence in support of his claim at the hearing that he had undertaken an IELTS test in November 2010 and obtained the requisite results.
31.2 Despite having booked to sit an IELTS test on 8 March 2014, the applicant had not, as at 31 March 2014, provided any evidence that he had undertaken that test and obtained the requisite results. Moreover, the applicant has not provided any evidence to this Court that he undertook that test and obtained the requisite results. In those circumstances, not only has the applicant not established that the Tribunal’s refusal to defer making its decision was legally unreasonable, but he has failed to establish that he was denied “the possibility of a successful outcome” by reason of the Tribunal failing to wait some further period in order for the applicant to provide to the Tribunal the results of the 8 March 2014 test.[11]
[11] See, for example, Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134 at [13]
Conclusions
The Application is out of time. Subsection 477(1) of the Migration Act 1958 provides that an application under s.476 “must be made to the court within 35 days of the date of the migration decision”. The Court may, by order, extend that 35 day period if it is “satisfied that it is necessary in the interests of the administration of justice to make the order” (s.477(2)).
The Decision was made on 31 March 2014, so the Application should have been made by 5 May 2014. However, the Application was not made until the following day, so it is one day late. There would appear to be no prejudice to the Minister in allowing the extension of time, although I am not satisfied that the Applicant provided any cogent reason for the delay. However, the merits of the Application are problematic, to say the least.
I am satisfied that the Applicant is relying on a claim that the action of the Tribunal in deciding the case on 31 March 2014 without further notice to him was legally unreasonable. In my view, the Court must look at the reasons given by the Tribunal for its decision not to grant a further adjournment. This is made clear by the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh[12], where Allsop CJ, Robertson and Mortimer JJ held at [47]:
[W]here there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power – at least, when a discretionary power is involved.
[12] supra
It is difficult to see how the Applicant can seriously claim that the actions of the Tribunal were unreasonable in deciding to determine the matter on 31 March without further notice to him.
The Applicant asked the Tribunal for a three to four month adjournment at the hearing on 29 January 2014, on the basis of a claim that he had done an IELTS test and had obtained a score of 6.0 or more in each band. He also claimed that he suffered from piles which prevented him from studying but produced no evidence. The Tribunal gave him until 14 February to provide the results of the test.
He did not ever provide the results of the test that he said that he had taken, and the Tribunal formed the view that he had never actually done it. When the Applicant wrote on 4 February, saying that he could not locate the test results, he again asked for a 3 to 4 month adjournment to sit another test, but again claimed a medical problem that prevented him from studying. He was asked for proof, and said that he had made an FOI request from the hospital and would need 45 days to obtain the information.
The Applicant provided a receipt showing he had booked a test for 8 March, but never provided any results of that test. As the Applicant told the Court, he never even sat for the test. There is no evidence he has ever sat for an IELTS test.
The Applicant’s request to the hospital was made on 29 January. The 45 days period to obtain the information was up by 15 March, but he never provided any information to the Tribunal. He gave no evidence to the Court that he even had that medical information evidencing his inability to study.
The fact is that the Applicant asked for time to:
a)provide evidence of a previously successful IELTS undertaken in November 2010;
b)book and sit for a further IELTS test; and
c)provide evidence of a medical condition that he said prevented him from studying.
He did not provide any of that evidence in the time given to him by the Tribunal, nor did he do so before 31 March when the Tribunal made its decision. He gave no evidence that he has ever had any of those documents and, indeed, conceded that he did not sit for the IELTS test on 8 March 2014.
The Applicant told the Court that he expected the Tribunal to telephone him before it made its decision, but he had nominated email as his preferred mode of communication. There was no reason why the Tribunal needed to inform him that it was going to make its decision on 31 March, when the Applicant well knew, or ought to have known, that the deadline was 15 March, over a fortnight earlier.
There is no merit to the Applicant’s claim. It is almost immaterial whether or not he is granted an extension of time, because the merits of his claim have been considered by the Court.
There is no reason why the interests of the administration of justice require an extension of time to bring a meritless Application.
The Application is dismissed as incompetent.
Costs follow the event and the amount sought by the Minister, namely $6,825.00, is the proper amount provided by the Court scale according to the Rules. I will allow six months to pay.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate: E Webb
Date: 25 May 2015
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