Khan v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application for an extension of time by which to file a notice of appeal from an order of the Federal Circuit Court of Australia made on 15 October 2014 pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth). Rule 36.03 provides that: An appellant must file a notice of appeal: (a) within 21 days after: (i) the date on which the judgment appealed from was pronounced or the order was made… 2 The applicant requires an extension of time as he filed his notice of appeal out of time, on 10 November 2014. 3 The Court has a broad discretion to grant an extension of time to appeal. This discretion is guided by a number of considerations outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18] - [23], including the extent of the delay, the explanation for the delay and the merits of the substantive application. 4 In the present case, the applicant's delay of five days is not significant. 5 In terms of the explanation for the delay, the applicant submitted that he failed to file his notice of appeal in time because he was upset and depressed as a result of his application being dismissed by the Federal Circuit Court. The respondent submitted that this explanation did not warrant this Court exercising its discretion to grant an extension of time. 6 However, irrespective of whether the explanation provided by the applicant is sufficient, his application fails by reason of the third consideration; namely, the merits of the substantive application. 7 In its decision, the Migration Review Tribunal (the Tribunal) affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC), Subclass 485 visa (skilled visa). 8 The criteria for a skilled visa are set out in Pt 485 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). At the time the applicant lodged his visa application cl 485.215 contained the mandatory requirement that: The applicant has competent English. 9 Regulation 1.15C provided that: (1) 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 (b) 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. (2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation. 10 Legislative Instrument IMMI 12/018, the instrument applicable to visa applications made after 1 July 2012, provides that for the purposes of satisfying reg 1.15C(1)(c) the scores necessary are: • an IELTS [International English Language Test System] test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or • a score of at least "B" in each of the four components of an OET [Occupational English Test]. 11 In the present case, the applicant lodged his application for a skilled visa on 28 September 2012. Although he booked an IELTS test prior to lodging this application, the IELTS test was conducted on 8 December 2012 and the applicant did not receive the results of the IELTS test until 16 December 2012. The applicant had previously undertaken the test in 2008, but this was more than 3 years immediately before he lodged his application for a skilled visa. It should also be noted that the applicant does not hold a passport of the type specified by the Minister under reg 1.15C(2). 12 The Tribunal dismissed the applicant's application for review of the delegate's decision not to grant him a skilled visa on the basis that the applicant had not undertaken the necessary test in the relevant period and consequently did not have "competent English" under reg 1.15C. 13 The applicant sought review of the Tribunal's decision in the Federal Circuit Court on three grounds, namely that: (1) My circumstances and study visa duration have not been taken into account while making decision. (2) I got fulfilled all visa requirements even about five months before the opening of my file by the DIAC. (3) As I was representing myself and I did not find any clear indication about the IELTS law made by the Parliament. 14 In the reasons for judgment published by the Federal Circuit Court (Khan v Minister for Immigration [2014] FCCA 2489) the primary judge dismissed ground one on the basis that: 21. … The Tribunal was aware of the issues the Applicant raised in that respect, but correctly found that it did not have the power to exercise a discretion in relation to the requirements of reg. 1.15C. 15 The primary judge dismissed ground two on the basis that the applicant had not undertaken the IELTS test in the three years immediately before the date of the visa application, as required by reg 1.15C(1). 16 The primary judge also dismissed ground three on the basis that it did not give rise to any jurisdictional error on the part of the Tribunal. 17 There is no error in the reasoning of the Federal Circuit Court. As the primary judge correctly concluded (at [10]), 'the requirements of reg 1.15C are expressed in mandatory terms and make no provision for the exercise of discretion on the part of the decision-maker'. Consequently, there is no merit in the applicant's first or third grounds of appeal, as they do not disclose relevant considerations that the Tribunal was required to take into account. 18 Further, there is no merit in the applicant's second ground of appeal, as the IELTS test was conducted after he lodged his visa application and thus does not satisfy the mandatory requirement of reg 1.15C(1)(b). The terms of reg 1.15C are clear. It requires the test to be conducted in the 3 years immediately prior to the day on which the application is lodged. Further, as Barker J stated in Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [16], any test score obtained after the lodgement of the visa application is 'irrelevant'. Therefore, the applicant's test scores from the test conducted on 8 December 2012 are irrelevant, as they were obtained after he lodged his visa application. Consequently, the applicant failed to satisfy the requirement for a skilled visa of having "competent English" under reg 1.15C. 19 It follows that the applicant's substantive application has no reasonable prospects of success. Accordingly, the applicant's application for an extension of time by which to file a notice of appeal should be refused. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.