Vemuri v Minister for Immigration

[2016] FCCA 1061

FEDERAL CIRCUIT COURT OF AUSTRALIA

VEMURI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1061

Catchwords:
MIGRATION – Administrative review – Review of Administrative Appeals Tribunal decision – No grounds established – No appearance by Applicant – Application dismissed – Costs.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth): reg.1.15C
Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: SIDDHARTHA RATNA PRABHAT VEMURI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 882 of 2015

Judgment of: Judge Vasta

Hearing date: 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Brisbane

Delivered on: 29 April 2016

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application be dismissed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

No. BRG 882 of 2015

SIDDHARTHA RATNA PRABHAT VEMURI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 24 September 2015 the Applicant, Siddhartha Ratna Prabhat Vemuri, filed an application seeking a writ issue and the decision of the then Migration Review Tribunal be quashed. 

2. The decision made by the then Migration Review Tribunal was a decision that the visa that the Applicant had applied for not be granted.  The visa that the Applicant applied for on 7 April 2014 was a subclass 485 visa. 

3. There are a number of criteria that must be satisfied by the Applicant for that visa to issue.  One of those is that the Applicant must have proficiency in the English language.

4. Regulation 1.15C provides of the Migration Regulations 1994 (Cth):

   “(1)That a person has competent English if:

   (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph;  and

   (ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa--the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb) for a person to whom paragraph (ba) does not apply--the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c) the person achieved a score specified in the instrument.

   …”

5. In this case the test is the International English Language Testing System test (“IELTS”) and a test score of at least six for each of the four test components is needed to satisfy the score that the rule speaks of. 

6. The Applicant provided to the Department evidence of such a test that he completed on 11 January 2014.  In the category of listening he scored 6.5.  In the category of writing he scored he scored 6.0.  In the category of speaking he scored 6.0.  But in the category of listening he scored 5.0.  Obviously, he had not scored a score of 6, at least 6, in each of the four categories. 

7. Therefore the requirements of the 485 visa had not been met because there had not been evidence of competent English as at the time that the application was made.

8. This is why the delegate of the Minister had refused the visa.  In going to the Tribunal, the Applicant explained that he now has a Masters degree that he received on 28 February 2014 and he had a visa expiring on 7 April 2014, so he didn’t have sufficient time to sit another test. 

9. He said his uncle passed away so he didn’t concentrate on the exam that he did have and that the requirements of the schedule have now been amended so that he would have been able to have achieved a competent English score if the application were made today rather than when he did make it.

10. All of that may be very nice but the fact is that the Tribunal really has no discretion here.  The Tribunal had before it the fact that the Applicant did not achieve a score of at least six for each of the four components of IELTS test that was conducted in the three years immediately before the day upon which the application was made.

11. The Tribunal had to have been satisfied that the application, when made, was not accompanied by evidence that there was competent English by the Applicant.  Therefore, the Tribunal had no other option but to affirm the decision of the delegate because the requirements of cl.485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) had not been satisfied. 

12. The Applicant, in bringing his application to this Court, has these grounds of application:

    “1. I am a student from India.  Come on 573 visa subclass where I was eligible to apply the 485 visa application on shore.  

    2. Delegate has refused the visa application under section 65 of the Migration Act which can be reviewed at Federal Circuit Court.

    3. Also, my decision has been made by Migration Review Tribunal has jurisdiction error. It can be reviewed by Federal Circuit Court under Migration Act 1958.

    4. Under section 477 subsection (1) of Migration Act judicial review application can be lodged at any registry within 35 days timeframe from tribunal decision date.

    5. If any case under 477 subsection (2)(a) and (b) tribunal decision can be brought to Federal Circuit Court as I do have exceptional circumstances and valid reasons for not lodging the judicial review after the tribunal made the decision.

    6. I do have exceptional circumstances beyond my control to go for ministerial intervention. 

    7. I am related by blood to Australian citizen and my absence would cause Australian citizen serious moral hardship.

    8. Even I will be having hardship leaving my blood relative living in Australia.

    9. I am genuine temporary student where I have taken the course with genuine intention and I am entitled get the visa as other students are entitled to get the visa grant with language ability which I had submitted with my application.

    10. Affidavit has been enclosed with application.

    11. I hope Federal Circuit Court has got jurisdiction in this matter to give us legitimate decision.”

13. Now this application, as I’ve previously said, was filed on 24 September 2015.  The decision of the Tribunal was made on 23 October 2014.  The Applicant had 35 days from the 23 October 2014 to lodge his application.  He did not do so until 24 September 2015 which is some 302 days out of time.

14. So the application is truly an application for extension of time.  The principles regarding extension of time are fairly well settled.  In this case the affidavit of the Applicant has in effect, a story with it.  The affidavit says this at paragraph 2:

    “2. Visa officer has asked me to provide evidence that I had competent English mentioned in my visa application lodged onshore, case officer has been allocated for my file on ’14 may 2014’

    3. On 16 June 2014 I have provided an IELTS test report reference number 13AU003759VEMS3106 dated 11 January 2014, this was submitted by me with honesty. Because of I don’t know exactly what case officer asking and don’t know of the criterion of 485 visa subclass lodged on shore.

    4. Delegate has clearly explained about Schedule 2 of Migration Regulations 1994 which sets out the criteria to be met for the grant of subclass 485 visa.

    5. Clause 485.212 is one of the mandatory requirements for the grant of the visa includes the competent English defined in regulation Reg1.15C of the Migration Regulations 1994.

    6. Till that day I am not aware of the definition of competent English, time was over when I came to know about the definition of competent English which is required for 485 visa application.

    7. Even I wasn’t explained at my university or through the immigration department when I rung to know the application eligibility.

    8. I have just followed the campaign was advertised in India through the agents that students wish to go to study in Australia for Masters or Bachelors program students will get two + two or two + three visa.  That is how I was mentally prepared and came for education in Australia.

    9. When I have contacted the agent to know about further visa as I was granted to study only masters, in the enquiry agent has explained to me that immigration will give me the additional visa once I finish the education.

    …

    11. Delegate has not given enough time to think and hasn’t come back me with explanation that I am not eligible.  Even I was not even given any options about the withdrawal of the application, if the option was given that I would have had my application withdrawn at that instance and could have gone for other visa available or could have gone to home country.  But not giving option to overseas students is to be considered as jurisdictional error.

    …

    16. Hearing was conducted was in the telephone that was so unsatisfactory because of feeling left in my brain that I was not able to explain properly to the member in Telephone. 

    17. As it was inconvenient, I think that method of hearing conduction letting me think that there wasn’t any use of tribunal review for my refusal which is potentially lit the idea of Jurisdictional error happened in my tribunal decision because of there is no such environment that my arguments and evidence manifested in front of the member.

    …

    19. Went to the minister to Intervene in this matter through the agent, I have thought there would be more favourable decision in my case but eventually I have got the negative decision where I am not happy because of I am satisfying the present criterion of English language to get the visa grant if I am considered by Minister as an applicant considered in High Court decision which is explained in Annexure A.

    20. As I’m not happy, I spun back to FCCA for judicial review because of there is a decision in front of me at High Court as I may get positive outcome at High Court if case is continually dismissed at Federal Court.

    21. Hence, I am lodging Judicial Review application at Brisbane registry…”

15. The affidavit annexed another personal statement and other information. 

16. This matter came before me on 7 December 2015.  On that date I clearly explained to the Applicant what he had to do, what the dates were for and emphasised that this matter would be coming back before me at 10.00am on today’s date.

17. The Minister, when filing their submissions in accordance with the order, also reiterated in the covering letter that the matter was on today’s date at 10.00 am.  The Applicant was called at 10.00 am and he was not present.  It is now 10.40 and the Applicant has still not shown up.

18. In all the circumstances I feel as though I should deal this matter by default appearance and I will proceed under r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 in that I will hear the matter on the merits.

19. As I’ve said in giving a recitation of the chronology of this matter, this is a case where, substantially, the application for review is asking me to go through the merits.  There has been no real jurisdictional error that has been committed here.  The Tribunal had only one task and that was to consider whether the criterion for such a visa had been met.  Clearly, the criterion had not been met and that is the end of the matter.

20. There is no substance to this application.  There is no jurisdictional error.  Having come to that view it will then be pointless to grant leave even if I felt that there were circumstances as to why matter was not filed within the 35 day time limit.  However, having a look at the material, there is really an insufficient explanation as to why the material was not filed in time.

21. Therefore, I refuse the application for extension of time in which to bring this application. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 25 May 2016