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[2021] FCA 1469
Federal Court of Australia
2021-11-22
Wigney J
Original judgment source is linked above.
WIGNEY J: 1 This is an application for an extension of time and leave to appeal a decision made by a judge of the Federal Circuit Court of Australia (now the Federal Circuit Court and Family Court of Australia). For the reasons that follow, the application must be dismissed.
Visa application and refusal 2 On 28 July 2017, the first applicant, Ms Sandeep Kaur (who I will refer to as Sandeep) applied for a visa which would permit her to reside in Australia. The particular visa she applied for was a Skilled (Provisional) Class VC (subclass 485) visa. I will refer to this visa as the 485 visa. The second applicant, Mr Hardeep Singh (who I will refer to as Hardeep) is Sandeep's partner. The third applicant, Sarhandeep Singh Matharu (who I will refer to as Sarhandeep) is Sandeep's child. Hardeep and Sarhandeep also applied for visas on 28 July 2017 as members of Sandeep's family unit. The outcome of their visa applications depended entirely on the outcome of Sandeep's application. 3 The criteria for the grant of a 485 visa were at the relevant time set out in Subclass 485 of Schedule 2 to the Migration Regulations 1994 (Cth). One of the criteria, in simple terms relevant to Sandeep's circumstances, was that Sandeep must have achieved a score of 50 or more in a prescribed English test undertaken by her within the three years of the date on which her visa application was made: see cl 485.212(a) of Sch 2 to the Regulations and IMMI 15/062 dated 16 April 2015. The alternative criterion in cl 485.212(a) was not applicable to Sandeep. 4 The difficulty for Sandeep was that, as at 28 July 2017 when she made her visa application, she had not achieved the prescribed score in a prescribed English test. She had booked an English test, which she subsequently sat and passed. It is clear, however, that the relevant criterion required that the test be successfully undertaken prior to the submission of the visa application. Sandeep also claimed that she had earlier sat a prescribed English test, but she just failed to reach the prescribed score in that test. That circumstance also did not assist her. 5 On 7 November 2017, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, refused Sandeep's visa application on the basis that Sandeep did not satisfy the criterion in cl 482.212(a) because she had not passed a prescribed English test as at the time of her visa application. The refusal of Sandeep's visa application also resulted in the refusal of Sarhandeep's and Hardeep's visa applications as part of Sandeep's family unit.
Review application in the Administrative Appeals Tribunal 6 The applicants subsequently applied to the second respondent, the Administrative Appeals Tribunal, for a review of the delegate's decision to refuse their visa. 7 The applicants' registered migration agent sent the Tribunal written submissions on the applicants' behalf. The agent claimed that Sandeep sat for one of the prescribed English tests on 28 July 2017, but due to a "technical issue" was advised to sit a subsequent test on 5 September 2017. The Tribunal later conducted a hearing at which Sandeep gave oral evidence to the effect that she had booked a test on 28 July 2017, but could not actually sit the test until 5 September 2017. She also said that she had sat an earlier test, but had failed to obtain the required score in that test. 8 The Tribunal had regard to Sandeep's evidence and the submissions that were made by her, on her behalf and on behalf of the other applicants. In its decision made on 12 June 2018, the Tribunal found that, irrespective of the reasons why Sandeep had been unable to sit a prescribed test and achieve the prescribed score in the three years before she made her visa application, it was nevertheless clear that Sandeep had not satisfied the criterion in cl 482.212(a) of Sch 2 to the Regulations. There was no discretion to grant her the 485 visa in those circumstances. The upshot of that finding was that the Tribunal affirmed the delegate's decision to refuse Sandeep's visa application. It also followed that the delegate's decision to refuse Sarhandeep's and Hardeep's visa applications was affirmed.
Proceedings in the Circuit Court 9 On 27 June 2018, the applicants commenced proceedings in the Circuit Court seeking judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth). The applicant's application contained five grounds of review. They are set out at [15] of the primary judge's reasons for judgment: Kaur v Minister for Immigration [2020] FCCA 629 (Judgment). It is unnecessary to repeat those grounds. It suffices to note that the primary judge correctly observed that none of the grounds related to the particular circumstances of the applicants' case: Judgment at [16]. Indeed, it would be fair to say that the grounds amounted to little more than boilerplate or template assertions of jurisdictional error which were devoid of any relevant particulars of the alleged errors on the part of the Tribunal. 10 The application was listed before the primary judge for a "show cause" hearing: see rr 44.05, 44.11 and 44.12 of the Federal Circuit Court Rules 2011 (Cth). 11 The primary judge was not persuaded that the applicants had demonstrated an arguable or prima facie case of jurisdictional error on the part of the Tribunal. His Honour held that given the fact that Sandeep had not achieved the prescribed score in a prescribed English test as at the date of her visa application, the Tribunal had "no option but to refuse the application, given that the applicant did not comply with the visa conditions": Judgment at [17]. His Honour also found that the Tribunal had "considered the facts and circumstances of [Sandeep's] case" and that the applicants had not articulated "any other concern about the hearing process": Judgment at [18]. 12 On 18 February 2020, the primary judge dismissed the applicants' application and ordered the applicants to pay the Minister's costs fixed in the sum of $3,737.00.
Proceedings in this Court 13 The primary judge's order dismissing the application was interlocutory in nature. The applicants accordingly required leave to appeal the judgment: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be filed within 14 days of the making of the order or judgment from which leave to appeal is sought: r 35.13 of the Federal Court Rules 2011 (Cth). In the applicants' case, an application for leave to appeal was required to be filed on or before 3 March 2020. The applicants filed their application for leave to appeal on 16 March 2020. It follows that they must obtain an extension of time pursuant to r 35.14 of the Rules. 14 It is well established that the factors that should generally be taken into account in considering whether to grant an extension of time in which to appeal, or seek leave to appeal, include the extent of the delay, the explanation for the delay, any prejudice to the respondent resulting from the delay and the merits of the proposed appeal or application: Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349. 15 It is equally well accepted that the key considerations in determining whether to grant leave to appeal from an interlocutory judgment are whether, if the judgment was found to be wrong, substantial injustice would result if leave were refused and whether the judgment is attended with sufficient doubt to justify its reconsideration on appeal: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 16 The fundamental problem for the applicants in this case is that they have failed to demonstrate that they have any arguable grounds of appeal or that the judgment of the primary judge is attended by any doubt such as to warrant reconsideration on appeal. 17 The application for an extension of time and leave to appeal which was filed by the applicants identifies two proposed grounds of appeal: 1. The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them; Particulars i) By failing to identify the erroneous application of the criteria for the relevant visas as described by cl.485.212 of Migration Regulations 1994; ii) By failing to properly and/or adequately investigate and assess the claims of the Applicants that indicated that the First Applicant has successfully completed the relevant test as described by the regulations (IMMI 15/062); iii) By failing to consider the evidence in totality and cumulatively. 2. The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to identify and/or displaying bias against the Applicants. 18 The applicants did not file any written submissions. 19 The applicants appeared at the hearing of their application. Sandeep made submissions on behalf of all the applicants, a course that was agreed to by Hardeep and not opposed by the Minister. In summary, Sandeep effectively repeated what she had told the Tribunal and, it would appear, the primary judge. She said that she had sat for an English test prior to her visa application, but had not achieved the required score. She also said that she had arranged to sit another English test as at the date of her visa application, however for various reasons she was unable to sit that test until September 2017. She achieved the required score in that test. Sandeep said that her migration agent had made a mistake in lodging the application before she had achieved the required score. The migration agent subsequently told Sandeep that there was nothing he could do about that mistake. 20 As unfortunate as the applicants' circumstances may be, there is nothing that this Court can do to remedy the situation. Neither of the proposed grounds of appeal have any merit. 21 As for the first ground, there is nothing to suggest that the applicants, in their application or submissions in the Circuit Court, identified any "erroneous application [by the Tribunal] of the criteria for the relevant visas as described by cl 485.212 of [Sch 2 to the Regulations]". Nor did the applicants identify any such "erroneous application" in their application or submissions in this Court. There is nothing to suggest that the Tribunal incorrectly interpreted or applied cl 485.212. 22 A fair reading of the Tribunal's reasons also reveals that there is no merit in the applicants' broad assertion that the Tribunal failed to properly or adequately investigate the applicants' claims or failed to consider the evidence. Indeed, it is abundantly clear that Sandeep's claims and evidence established that she did not meet the relevant visa criteria. She had not achieved the prescribed score in a prescribed English test as at the date that she lodged her visa application. 23 As for the second ground, the applicants provided no particulars in respect of the alleged error of law by the primary judge. The allegation of bias, which is a most serious allegation which should not lightly be made, was unsupported by any particulars, let alone evidence. 24 In the absence of any even faintly arguable proposed ground of appeal, the application for an extension of time must be dismissed. 25 Before addressing the question of costs, a minor procedural issue must be attended to. It is not an issue that was apparently addressed in the court below. Sarhandeep, the third applicant, is only 6 years of age and therefore a minor and a 'person under a legal incapacity' as defined in Sch 1 of the Rules. In those circumstances, attention should have been given to appointing a litigation representative for him in respect of the proceeding in the Circuit Court and this Court. This issue was first raised by the Minister in his written submissions in this Court. It is appropriate in the circumstances to appoint Sardeep as the litigation representative of Sarhandeep for the purposes of this application pursuant to r 9.63 of the Rules. The order should be made nunc pro tunc, so it is taken to have been made as at the commencement of the proceeding in this Court. 26 As for costs, there could be little doubt that costs should follow the event. The applicants did not advance any submissions as to why that should not be the case. The Minister submitted that the Court should make a lump sum costs order of $4,000 in the circumstances. In the Minister's submission, a costs order in that amount was reasonable and proportionate, having regard to the nature of the case, particularly in circumstances where the amount that could be claimed in a short form bill under Sch 3 item 15.2 of the Rules would be $7,241. 27 The Minister's submissions concerning costs have merit. It is appropriate in all the circumstances for the first and third applicants to pay the Minister's costs of this unsuccessful application fixed in the sum of $4,000. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.
Kaur
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
(1991) 33 FCR 397
(1984) 3 FCR 344