Singhu v Minister for Immigration and Border Protection

JUDGE: COLLIER J DATE: 19 AUGUST 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an Application for Extension of Time filed on 17 June 2015 brought by the applicant under r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules) to file a notice of appeal against the Minister for Immigration and Border Protection (the Minister) and the Migration Review Tribunal (the Tribunal) (now known as the Administrative Appeals Tribunal). The draft notice of appeal, also before the Court, appeals from all of the orders of the Federal Circuit Court of Australia given on 21 May 2015.

Background 2 The applicant is a citizen of India. He arrived in Australia on 3 November 2008, prior to which he resided in India. He holds a Bachelor of Commerce from Andhra University, India (obtained 2007), and a Diploma of Interactive Digital Media from Cambridge International, Melbourne (obtained 19 December 2010). 3 On 7 May 2011, the applicant applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa (a Subclass 485 visa). In that application he disclosed that he had not undertaken an English test within the previous 24 months. Prescribed criteria for a Subclass 485 visa are set out in cl 485.215 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations), and require that an applicant has competent English skills. Clause 485.215 of the Regulations requires that an applicant must undertake an International English Language Test System (IELTS) test not more than two years before the day on which the application was lodged and must have score of at least six for each of the tests of speaking, reading, writing and listening. Although the Regulations designate cl 485.215 as a "time of application" criterion, the High Court decision in Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 provides that an applicant can satisfy the requirements of the clause by providing evidence of satisfactory scores up until the time of the Tribunal's decision, so long as the relevant test was not conducted more than two years before the visa application. 4 In this case, a delegate of the Minister refused the applicant's visa application on 28 June 2012, because: the applicant had not undertaken an English test with the previous 24 months and did not have the required proficiency in the English language; and he did not satisfy the criterion in cl 485.215 of Sch 2 of the Regulations. 5 On 5 July 2012, the applicant made an application for review to the Tribunal and on 10 July 2012, the Tribunal advised him that if he wished to provide any evidence in support of his application, he should do so as soon as possible. 6 On 2 January 2014 the Tribunal wrote to the applicant inviting him to appear at a hearing by telephone on 29 January 2014. Subsequent events are set out by the Tribunal in its decision: 10. At the hearing the applicant claimed the he had undertaken an IELTS test and achieved a score of 6 or more in November 2010. He said his lawyer had told him that the results were only valid for 2 years and that was why he had not submitted the results. The Tribunal advised him that there were no such validity requirements and that it was prepared to give him 2 week to provide the results … 11. The applicant further claimed that he needed 3 months in order to undertake the test again. He said that he had piles and that had prevented him from studying for an IELTS test. The Tribunal advised the applicant that he had until 14 February 2014 to provide the results of an IELTS test that he claimed to have undertaken in the past. 12. The Tribunal advised the applicant that if he could not provide such test results or he had in fact not achieved scores of 6 or more in each band, it would be up to him to make a request to sit another test and to provide reasons as to why he has not undertaken another test since lodging the application. The Tribunal noted further that the applicant should be able to book a test in February and get results by early March 2014 and that it was not immediately clear why he would need a 3 month extension of time. 7 On 4 February 2014, the Tribunal received a letter from the applicant claiming that he was unable to locate the results of the IELTS test that he had taken in 2010 and that he required a further three to four months to sit another test for health reasons. The applicant did not specify what the health problems were; instead he claimed to have made an FOI request to the hospital for copies of his records. 8 On 5 February 2014, the Tribunal wrote to the applicant advising him that it had declined his request for an extension of three to four months. Rather, the Tribunal gave the applicant until 14 February 2014 to provide evidence that he had booked to sit and IELTS test no later than 15 March 2014. 9 On 12 February 2014, the Tribunal received from the applicant a copy of a payment confirmation email from an IELTS provider relating to a test scheduled to be conducted, in part, on 8 March 2014. The document provided appears to suggest that the applicant's speaking test would occur on a different day to the listening, reading and writing test. 10 No further correspondence was received by the Tribunal in relation to the applicant's testing. Accordingly, the Tribunal made its decision on 31 March 2014 to affirm the decision of the Minister not to grant the applicant a Subclass 485 visa claiming that it was not satisfied that the applicant met the "competent English" criterion in cl 485.215 of Sch 2 of the Regulations because: it was not satisfied that the applicant had undertook a IELTS test in November 2010 as no evidence was provided; the applicant did not provide any evidence regarding the results of any IELTS test taken in 2014; and the applicant did not provide any evidence regarding his alleged health problems.

Application before the Federal Circuit Court 11 On 6 May 2014 the applicant appealed to the Federal Circuit Court under s 476 of the Migration Act 1958 (Cth) (the Act) for an order that the decision of the Tribunal be quashed. The grounds of the applicant were that: He haven't given enough time for IELTS. I have already submitted the medical receipt from Hospital. Still he hasn't given time. So I am applying for federal. (Errors in original.) 12 In an affidavit of the applicant also filed 6 May 2015, the applicant deposed that: 1. What I have write in Grounds of application is true. 2. MRT hasn't given enough time to submit IELTS. 3. I attached MRT Decision. (Errors in original) 13 At the hearing, the applicant was self-represented and did not provide written submissions. Counsel for the Minister submitted that the application before the Court was one day outside the 35 day limit set by s 477(1) of the Act, however there was no opposition from the Minister to an application being made by the applicant for an extension of time. 14 Materially, s 477 of the Act provides that: Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (3) … 15 Counsel for the Minister went further to submit that if an oral application for an extension of time were granted, it would be opposed for the reason that the substantive application had no merit. 16 The primary Judge refused to make an order extending time under s 477(2) of the Act. His Honour considered that there was no merit to the proposed application for judicial review, and further that his Honour was not satisfied that it was necessary in the interests of justice to make the order. His Honour concluded, in summary that: It was difficult to see how the Applicant could seriously claim that the actions of the Tribunal were unreasonable in deciding to determine the matter on 31 March without further notice to him. He did not at any time provide the results of the test that he claimed he had taken, and the Tribunal formed the view that he had never actually taken the test. Whilst the Applicant provided a receipt showing he had booked a IELTS test for 8 March 2014, he told the Court that he never sat the test. He provided no medical evidence to the Court evidencing his inability to study. 17 The orders of the primary Judge were as follows: (1) The Application for leave to proceed out of time is dismissed. (2) The Application for review of the decision of the Second Respondent is dismissed as incompetent. (3) The Applicant is to pay the First Respondent's costs fixed in the sum of $6,825.00 within six (6) months.

Application in this Court 18 Rule 36.05 of the Rules requires an appellant to file a notice of appeal during the period mentioned in r 36.03, which is within 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case, the applicant filed an application for an extension of time from the decision of the Federal Circuit Court on 17 June 2015, being six days out of the limit prescribed by the Rules. 19 The principles guiding the discretion of the Court to grant an extension of time were explained in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and include: the extent of the delay; the explanation for the delay; and the merits of the substantive application. 20 In an affidavit of the applicant filed on 17 June 2015, the applicant deposed that the letter provided to him by the Federal Circuit Court enclosing its decision did not inform him that he had 21 days to appeal, and further that he has been unable to obtain sufficient legal advice. 21 The applicant provided a draft notice of appeal in accordance with r 36.05(3)(d). It would appear that the applicant has difficulty with written English. I understand his grounds of appeal can be summarised as follows: (1) That he was unhappy with the decision of the Federal Circuit Court. (2) That he was unable to submit IELTS due to health issues. (3) He applied "the correct data" to the Federal Circuit Court but they said he was one day late. (4) That he was given the wrong information by "Kym Fraser" and "Emily Wilde". 22 The applicant elaborates on these grounds to some degree in his affidavit filed 17 June 2015. In particular: (1) The applicant claims that he received a letter from the Federal Circuit Court detailing its decision of 21 May 2015, however that it did not inform him that he had 21 days to appeal to the Federal Court. (2) The applicant rang "Kym Fraser" and "Emily Wilde" regarding the "next step", to which they informed him to call immigration. Immigration advised the applicant that his visa would expire on 18 June 2015. (3) The applicant applied to the Federal Court for judicial review outside the specified time limit (the subject of this application). (4) The reason the applicant is not satisfied about the decision of the Federal Circuit Court is that at that time (of the Federal Circuit Court hearing), he did not have enough money to obtain legal representation. He deposed that this time (before the Federal Court) he would go with a proper lawyer to attend his case. (5) His health issues are resolved and that he requires one more chance to prove his case. 23 In summary, the Minister submits that the application for an extension of time to appeal should be dismissed by reason of s 476A(3)(a) of the Act. 24 I accept that the period of the delay is short and that a reasonable explanation for the delay in filing the notice of appeal has been provided by the applicant. a more difficult hurdle for the applicant concerns the merits of his substantive application.

Substantive application 25 The applicant has not obtained legal representation, has not particularised the grounds for appeal, and has not filed any written submissions. Moreover, the applicant does not identify the orders he seeks to appeal. I understand that he wishes to appeal from all of the orders of the Federal Circuit Court. When the applicant appeared in Court today he added nothing of substance to the material already before the Court, other than that he had recently consulted with a lawyer. No lawyer has, however, entered an appearance for the applicant. 26 Materially, s 476A(3)(a) of the Act provides that despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that makes an order or refuses to make an order under s 477(2) of the Act. 27 As I explained in Singh v Minister for Immigration and Citizenship [2013] FCA 57 at [13]: The operation of this section of the Act is unambiguous. The terms of s 476A(3)(a) were noted and accepted as unambiguous in BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [30]; SZQYP v Hannigan [2012] FCA 723 at [9]; SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 at [7]. 28 I am satisfied that the decision of the Federal Circuit Court was a refusal to make an order under s 477(2) of the Act, and that it is clear in this case that s 476A(3)(a) of the Act applies in respect of order 1 of the primary Judge. Accordingly, an appeal from the decision of the Federal Circuit Court in this respect is not competent. 29 However, in respect of orders 2 and 3 of the Federal Circuit Court in this case, one must have regard to the reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 at [19] where the Full Court held: As has been mentioned, each applicant did, in fact, make an application to extend the 35 day time limit under s 477(2) but each of those applications was unsuccessful. Indeed, it was because those applications had failed that the Federal Magistrates Court decided that the 35 day time limit specified in s 477(1) barred all the applicants' claims to relief. The important point here is that the subsequent and consequential orders dismissing each proceeding were not made under s 477(2) for they were not orders either making or refusing to make an order extending time. Consequently, s 476A(3)(a) does not bar an appeal from those orders: this follows from the intractability of the proposition that an order dismissing a proceeding is not, on any view, an order making or refusing to make an order extending time. 30 It follows that technically, orders 2 and 3 of the Federal Circuit Court are not barred by s 476(3)(a) of the Act and that it would be open to the applicant to appeal (see SZQPN v Minister for Immigration and Citizenship [2011] FCA 1339 and SZQYP v Minister for Immigration and Citizenship [2012] FCA 723; among others; whilst comparing SZBRN v Minister for Immigration and Citizenship [2012] FCA 424). However I also note the observations of Jagot J in SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 at [14]: The second submission is that the application for leave to appeal is incompetent insofar as it seeks leave to appeal against the order of the Federal Magistrates Court refusing to extend time under s 477(2) of the Migration Act, but competent insofar as it seeks leave to appeal from the order of the Federal Magistrates Court dismissing as not competent the application made on 7 September 2011 and amended on 24 October 2011. The submissions the Minister then made disclose the rather unusual consequences of this situation. In short, order 2 of the Federal Magistrates Court is unassailable in terms of its legal correctness and logic. Having determined that it was not satisfied that it was appropriate to extend the 35 day period in accordance with s 477(2) of the Migration Act, the conclusion of the Federal Magistrates Court that the application made on 7 September 2011 and amended on 24 October 2011 was not competent necessarily followed from the terms of s 477(1) of the Migration Act. As a consequence, the applicant in this case would have, and has, no legal foundation whatsoever to impugn order 2 of the Federal Magistrates Court. Although the appeal is not incompetent in this respect, as the Minister accepted would be so, on the Minister's alternative argument the appeal would be doomed to fail and accordingly there could be no proper basis for granting the application for leave to appeal. It would work a substantial injustice to grant leave to appeal in circumstances where the appeal was doomed to fail. This conclusion of course does not involve any consideration of the merits or otherwise of the proposed grounds of appeal in terms of the substantive decision of the Tribunal. However, in circumstances where the decision and order of the Federal Magistrates Court was that the application must be dismissed as incompetent by reason of its refusal to extend time, I accept the Minister's submission that the decision and order, given the fact that no appeal may be brought against the refusal to extend time in order 1, is unassailable in this Court, with a consequence that any appeal would be doomed and hence leave to appeal should not be granted. 31 I consider it appropriate to adopt the reasoning of her Honour in this respect. It follows that unable to impugn order 1, the applicant has "no legal foundation" to impugn orders 2 or 3 and that the appropriate order is to dismiss the application with costs. 32 Finally, and in any event, even were I in any doubt as to the correctness of the legal principles set out by Jagot J in SZQPN I would not be minded to grant an order for an extension of time for the filing of a notice of appeal in these circumstances. This is because, in light of the absence of particularisation and substance in those grounds of appeal, I am not satisfied that the grounds of appeal advanced by the applicant in this case have any prospect of success.

Consideration of an alternative s 39B application 33 Whilst the application for an extension of time to appeal is incompetent following s 476A(3)(a) of the Act, the applicant could nonetheless apply to this Court for judicial review of the judgment below on the ground of jurisdictional error under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) (Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55). 34 The Minister has provided substantial submissions in this regard, including that even if the Court were the permit the applicant to reconstitute the proceeding in this form, it would lack merit because the draft notice of appeal "makes little sense" and identifies no intelligible grounds of review. 35 The draft grounds of appeal are as follows: I am not happay of taken decision by federal circut 1) Health issue not able to submit IELTS 2) I applied Correct data to the federal circuit but they said I was 1 day late 3) Wrong information given by the Kym Fraser/Emily Wilde. (Errors in original.) 36 I understand that Mr Fraser and Ms Wilde are with Clayton Utz Lawyers which act for the Minister in this proceeding. 37 As for proposed ground 1, the Minister submits that there is no foundation in the evidence for any assertion that the applicant was prevented from submitted any IELTS results to the Tribunal; however insofar as the applicant could put further medical evidence to the Court as to why he had "health issues" that prevented him from sitting an IELTS test, then that would amount to a merits review. 38 As for proposed ground 2, the Minister submits that the applicant is having regard to the deadline in s 477(1) of the Act; in which the Federal Circuit Court made no error in so finding. 39 As for proposed ground 3, the Minister submits that it is unclear what "information" it is that the applicant says Mr Fraser and Ms Wilde "gave" and how any such information was "wrong" to constitute that the orders of the Federal Circuit Court are affected by jurisdictional error. 40 I accept the submissions of the Minister in this regards. 41 In any event, there is no material before me to support a finding that either the Tribunal or the primary Court have fallen into the type of jurisdictional error contemplated by the High Court in Craig v South Australia (1995) 184 CLR 163. In the circumstances I do not consider it appropriate to order that this application be reconstituted as an application pursuant to s 39B of the Judiciary Act. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.