Sandhu v Minister for Immigration Multicultural Affairs and Citizenship

THE TRIBUNAL'S DECISION 5 On 20 August 2012, the delegate refused to grant the visa to the applicants on the ground that the first applicant had not undertaken the language test. The applicants sought review of the delegate's decision on 5 September 2012 and, at the hearing before the Tribunal on 31 May 2013, the first applicant provided evidence of having sat the English test in April 2013, achieving a score of at least six in each test component. That score was sufficient to show competency in English but as the applicant had not undertaken that test in the 24 months before she made her application, as required by reg 1.15C(a)(ii), the Tribunal affirmed the delegate's decision to refuse the visa.

THE FCC'S DECISION 6 The applicants applied to the FCC for an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) and sought final orders quashing the decision of the Tribunal or Minister. The applicants did not list any grounds of appeal save to express dissatisfaction with the Tribunal's decision and to seek to appeal against the Tribunal's decision. The FCC dismissed the application, holding that "[t]he regulations are clear" in that the first applicant had to have undertaken, and achieved the requisite score in, a requisite English test in the two years immediately prior to lodging her visa application and that there was no discretion to waive or modify that requirement. Accordingly, it was held that the Tribunal did not err in finding that the first applicant had not met the criterion. The FCC also noted that the first applicant had sought to explain why she had not undertaken an English test until April 2013 by referring to psychological and emotional problems which she supported with medical certificates. The FCC held that the evidence did not give rise to any error by the Tribunal, noting that: The regulations are clear. They do not give any scope for compassionate factors to be taken into account. The requirement for competent English to be demonstrated in particular ways are mandatory. Neither the Court nor the Tribunal has any discretion to waive those requirements. 7 The FCC also dealt with the first applicant's claim that their migration agent "did not advise them properly". The FCC found that there was no evidence of any negligence by the migration agent and held that, in any event, mere negligence would be insufficient to vitiate the Tribunal's decision having regard to the principles in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. Accordingly, the FCC held that the application did not raise an arguable case for relief and dismissed the application for an order to show cause pursuant to rule 44.12(1)(a) of the FCC Rules.

CONSIDERATION OF THE PROPOSED APPEAL 8 As the delay in filing the proposed notice of appeal was not substantial (6 days) and the Minister would suffer no specific prejudice if the proposed notice of appeal was treated as an application for leave to appeal and time were to be extended to make that application, whether an extension of time should be granted depends on whether the applicants can demonstrate that any appeal will have sufficient prospects of success. It would not be appropriate to grant an extension of time, even for a short period, if the proposed appeal has no prospects of success: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J (with whom Gyles and Besanko JJ agreed). 9 The proposed notice of appeal raised as the appeal ground that: 1. The [FCC] failed to find that the Tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall [sic] under jurisdictional error. (a) There were certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). (emphasis in original) 10 The first applicant, who represented herself and the second applicant, was unable to identify the "information" that the Tribunal used to affirm the decision under review which was alleged not to have been disclosed to them. It is clear that the ground has no merit as the only "information" on which the Tribunal relied in affirming the decision under review was information that the first applicant gave in writing during the process that led to the decision under review, namely the information that she had not undertaken an English language test in the 24 months before the application. 11 The first applicant indicated, however, that she would want to argue as additional grounds that the Tribunal did not give her proper opportunity to put on evidence to explain why she had not undertaken the test before she made the application nor a her proper opportunity to put on evidence to support her claim that there had been "fraud" by her migration agent. 12 The Tribunal and the FCC were correct to hold that the Regulations required the first applicant to have undertaken the English test before making her application and therefore the fact that she had not done so meant that she did not satisfy the relevant requirements for the grant of the visa provided for in clause 485.215 of schedule 2 to the Regulations. The first applicant's reasons for not sitting the exam earlier were not a relevant consideration and the Tribunal did not err in not taking those reasons into account. 13 The second additional ground raised by the first applicant was not raised before the FCC. Rather, the claim made was that the migration agent did not advise them properly. The FCC was correct to held that merely showing negligence on the part of the migration agent would not be sufficient to vitiate the Tribunal's decision: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53]. This proposed ground also has no substance. 14 The interlocutory order of the FCC is not attended by sufficient doubt warranting its reconsideration. Accordingly, there is no warrant for the grant of an extension of time to seek leave to appeal from that order. The appropriate orders to make are: 1. The application for an extension of time in which to appeal and for leave to appeal be dismissed. 2. The draft notice of appeal filed 26 February 2014 be struck out. 3. The first and second applicants pay the respondent's costs to be taxed if not agreed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.