Thirunavukarasu v Minister for Immigration and Border Protection
[2015] FCA 172
•23 February 2015
FEDERAL COURT OF AUSTRALIA
Thirunavukarasu v Minister for Immigration and Border Protection [2015] FCA 172
Citation: Thirunavukarasu v Minister for Immigration and Border Protection [2015] FCA 172 Appeal from: Application for extension of time and leave to appeal: Thirunavukarasu v Minister for Immigration & Anor [2014] FCCA 2763 Parties: SASIKUMAR THIRUNAVUKARASU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 667 of 2014 Judge: PAGONE J Date of judgment: 23 February 2015 Catchwords: MIGRATION – application for extension of time and leave to appeal – decision of Federal Circuit Court dismissing application for judicial review – decision of Migration Review Tribunal affirming decision not to grant applicant visa – applicant failed to provide evidence of ‘competent English’ – applicant claimed decision of Federal Circuit Court was made without jurisdiction and is affected by jurisdictional error – whether application discloses arguable basis for judicial review. Legislation: Migration Act 1958 (Cth) ss 65, 99, 100, 101
Migration Regulations 1994 (Cth) reg 1.15C
Federal Court Rules 2011 (Cth) rr 35.13, 35.14Date of hearing: 23 February 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 6 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Ms N Bosnjak of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 667 of 2014
BETWEEN: SASIKUMAR THIRUNAVUKARASU
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
23 FEBRUARY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 667 of 2014
BETWEEN: SASIKUMAR THIRUNAVUKARASU
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE:
23 FEBRUARY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for an extension of time for leave to appeal from a judgment of Judge Riethmuller of the Federal Circuit Court handed down on 15 October 2014. His Honour upheld a decision of the Migration Review Tribunal which had been made on 19 February 2014. That decision had affirmed an earlier decision made by a delegate of the Minister for Immigration not to grant to the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth). The basis on which the Tribunal affirmed the decision of the Minister’s delegate was that the applicant had not provided evidence that he had ‘competent English’ as defined by reg 1.15C of the Migration Regulations 1994 (Cth). His Honour dismissed the application to the Federal Circuit Court for judicial review on the ground that the application to review the Tribunal’s decision had no arguable basis.
The applicant has appealed to this Court by application dated 11 November 2014. That application was not made within the time prescribed by r 35.13 of the Federal Court Rules 2011 (Cth) and, for that reason, the applicant needs, and has sought, an extension of time within which to seek leave to appeal under r 35.14 of the Rules. In the affidavit in support of his application, the applicant asserts that he was only one day late in lodging the application. However, it appears that it was, in fact, late by 13 days. In court today, the applicant was unable to explain how he had calculated his estimate of being late by only one day, but did not contest that the delay was, in fact, longer. In any event, the respondent does not contend that there is any prejudice in the lateness in making of the application, but does contend that the extension should not be granted and leave should not be granted for the reason that the applicant does not have an arguable case and is unlikely to succeed on appeal.
The applicant applied for the Skilled (Provisional) (Class VC) visa on 21 January 2011. The Minister’s delegate refused the application on 1 March 2013. The basis of the refusal was, as I have said, that the applicant had not demonstrated that he had ‘competent English’ as required by the statutory conditions applicable to the type of visa for which he had applied. At the relevant time, regulation 1.15C of the Migration Regulations 1994 (Cth) relevantly provided as follows:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; …
The applicant failed to provide evidence that he had achieved an IELTS test score of at least six for each of the four test components in a test conducted not more than two years prior to his application being lodged.
When the matter came before the Tribunal, the applicant was given several extensions of time in which to provide evidence that he had achieved the requisite IELTS test scores. The applicant failed to provide such evidence and, accordingly, the Tribunal concluded that the decision not to grant him the visa had to be affirmed. In the application to the Federal Circuit Court for judicial review of the Tribunal’s decision, the applicant said that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction. The application stated:
The Tribunal made a fundamental jurisdictional error, as it failed to consider the operation of sections 99-101 of the Migration Act (Cth) which requires a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given.
By way of particulars, the application stated:
The applicant says that the form he filled out when making his application does not state that you need to have passed your English test at the time of lodging your application. The applicant proceeded with his application on this basis. The applicant now believes that he has the required level of English.
Judge Riethmuller dismissed the application on the ground that ss 99-101 of the Migration Act provided no arguable basis for the applicant to succeed. His Honour also noted that the Tribunal had effectively allowed the applicant a period in excess of three years in which to provide evidence of satisfactory IELTS test results and that there was no evidence before the Tribunal that could have allowed it to find in his favour. His Honour found that the Tribunal’s decision was properly made in those circumstances.
The applicant’s application to this Court identifies the same ground for appeal, namely, that the decision of the Federal Circuit Court was made without jurisdiction and is affected by jurisdictional error. Under the statement of that ground, it is stated as sub-ground (a):
The Federal Circuit Court made a fundamental jurisdictional error, as it failed to consider the operation of sections 99-101 of the Migration Act (Cth) which requires a visa applicant to complete a visa application form in such a way that all questions on it are answered and no incorrect answers are given.
Sections 99 to 101 of the Migration Act provide as follows:
99 Information is answer
Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Judge Riethmuller found, contrary to the fact asserted as the ground for appeal, that those sections had no relevance to the consideration of whether the applicant satisfied the English language requirements for the grant of a visa, which was the reason that the applicant’s visa had been rejected. It is clear that his Honour did consider the operation of those provisions and that the only ground upon which the applicant seeks to base his appeal cannot succeed. For those reasons, I would also not give him leave to make the application out of time.
The application is dismissed with costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 23 February 2015
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