FEDERAL COURT OF AUSTRALIA Tummala v Minister for Immigration and Border Protection [2014] FCA 858 Citation: Tummala v Minister for Immigration and Border Protection [2014] FCA 858 Appeal from: Tummala v Minister for Immigration & Anor [2014] FCCA 844 Parties: KRANTHI TUMMALA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION File number: VID 279 of 2014 Judge: PAGONE J Date of judgment: 13 August 2014 Catchwords: MIGRATION – application for leave to appeal from decision of Federal Circuit Court dismissing application for judicial review of Tribunal decision – whether legal error identified – whether reasonable prospects of success. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a) Migration Act 1958 (Cth), s 477 Migration Regulations 1994 (Cth), reg 1.15C Date of hearing: 13 August 2014 Date of last submissions: 13 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Appellant: The appellant did not appear Counsel for the Respondent: Timothy Goodwin Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 279 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: KRANTHI TUMMALA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: PAGONE J DATE OF ORDER: 13 AUGUST 2014 WHERE MADE: MELBOURNE other matters: The Court directs that these orders are not to be entered for a period of 7 days following their pronouncement. THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 279 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: KRANTHI TUMMALA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: PAGONE J DATE: 13 august 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr Tummala, seeks leave to appeal from orders made by Judge F Turner. On 24 March 2014 his Honour heard an application for judicial review of a decision of the Migration Review Tribunal dated 24 September 2013. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration & Border Protection made on 18 May 2012 not to grant Mr Tummala a Skilled (Provisional) (Class VC) Subclass 485 Visa. On 5 May 2014 his Honour delivered reasons for dismissing Mr Tummala's application pursuant to r 44.12(1)(a). His Honour also ordered that Mr Tummala pay costs of the Minister fixed in the amount of $2550 and dismissed all other extant applications and removed it from the list of pending cases. 2 Mr Tummala's application to this Court for leave to appeal was made on 20 May 2014. An affidavit by Mr Tummala was filed with the application which, as far as relevant, said: 3. I am not happy with decision made by Migration review Tribunal (a) As well as DIAC decision 4. I am not happy with decision of Federal Circuit court of Australia Mr Tummala's application for leave to appeal was also accompanied by a draft notice of appeal which, relevantly, were in identical terms. 3 On 1 July 2014 the Minister filed an objection to the competency of the application for leave to appeal on the basis that the application did not identify an appellable error in the judgment of the Federal Circuit Court and that there were no realistic prospects that an appeal would succeed were leave to appeal to be granted. The grounds of application in Mr Tummala's application for leave, and the grounds of appeal in Mr Tummala's draft notice of appeal stated: [1] The applicant visa 485 SUBCLASS was refused by delegate on the basis of Temporary residency visa criterion under the Migration Act 1958; Applicant, KRANTHI KUMAR REDDY TUMMALA has lodged the application in timeframe before his visa expiry. As Department of Immigration And Border protection ( DIBP) has records that Applicant has not satisfied the criterion of the 485 subclass grant. Repeatedly applying for the visa and not attaining satisfactory progress has exceptional circumstances which weren't accepted by DIBP delegate, DIBP delegate has refused the application on the basis of failure to satisfy the schedule two criterion. The applicant has not had any control of his situations which became very bad in Australia to provide to Department of Immigration and Border Protection to be ineligible to lodge the 485 visa application in Australia. Exceptional circumstances beyond his control to lodge late application in Melbourne without IELTS score sheet as every one is saying that applicant can lodge the application. As Applicant has attained SIX BAND in each in IELTS which can satisfy the 485 visa subclass language criterion under the High court case law, so, applicant claims a new argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? 2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have IELTS booking reference no at time of the application, and how he is eligible to lodge the 485 subclass visa application by satisfying the schedule two criterion if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection) Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which has not been proved by applicant to make it Valid application", but he has exceptional circumstance beyond his control. In considering Mr Tummala's grounds of application, and his proposed grounds of appeal, it is important to bear in mind that he is not legally represented, that he has no legal training and that English is not his first language. Indeed, the basis of refusal of the visa application had been a lack of competence in English. It is, therefore, appropriate to make some allowances when considering his application to this Court, and to see whether the grounds relied upon fairly reveal a sufficient basis of a claim to warrant a favourable exercise of this Court's jurisdiction. 4 The application before the Court is for leave to appeal the decision of the Federal Circuit Court. A consideration in deciding whether to grant leave to appeal is whether the decision below is attended by sufficient doubt to warrant the grant of leave. His Honour in the Federal Circuit Court was dealing with an application to show cause under r 44.12(1)(a) which permitted the Court to dismiss Mr Tummala's application if the Court was "not satisfied that the application [had] raised an arguable case for the relief claimed". The grounds for Mr Tummala's application were set out by his Honour as being: (a) that s 477 of the Migration Act 1958 (Cth) allowed for an application for judicial review to be lodged within 35 days of the Tribunal's decision; (b) that Mr Tummala was dissatisfied with the Tribunal's decision; and (c) that Mr Tummala had exceptional circumstances beyond the application which had been lodged previously. Each of these three grounds were correctly rejected by his Honour and, therefore, no error is shown by Mr Tummala to warrant the grant of leave to appeal. 5 The first ground considered by his Honour was Mr Tummala's reference to the time for lodging an application for judicial review under s 477 of the Migration Act 1958 (Cth). That section provides that an application to the Federal Circuit Court must be made in relation to a migration decision within 35 days of the date of the decision. The decision had been made by the Tribunal on 24 September 2013 and the application for judicial review had been brought on 17 October 2013. The application was therefore, as his Honour correctly found, made within the time provided by s 477. Nothing has been shown by Mr Tummala to indicate any error in respect of his Honour's dealing with that ground of the decision. 6 The second ground was dismissed by his Honour on the basis that it had impermissibly sought merits review. The distinction between merits review and judicial review may, understandably, be difficult for a lay person to understand, especially one who may not be fully conversant with English. The distinction, however, is important and fundamental to the ability of the Federal Circuit Court, and of this Court, to exercise jurisdiction. The learned judge said in relation to this ground: 19. Ground two seeks a review of the merits. That is impermissible. 20. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]: "In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff Sl57 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal." 21. The Court refers to the following decisions: • So long as the Tribunal's findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ. • The Tribunal's findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal's decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272. 22. Ground two is dismissed. His Honour's reasons may have been expressed briefly, but they correctly conclude that no error had been demonstrated by Mr Tummala upon which to seek judicial review of the Tribunal's decision. Mr Tummala's complaint before his Honour was, and continued to be in the material filed by him with this Court, that he was dissatisfied with the decision. It is the decision as a whole which he sought to have reviewed rather than a claim of some error in the decision making process of the Tribunal, and subsequently by the Federal Circuit Court, which would invoke the jurisdiction of judicial review. The distinction may be difficult for Mr Tummala to understand but the jurisdiction of the Federal Circuit Court was not to reconsider the merits of the decision afresh but only to ensure that the decision had not been reached with legal error. No legal error was identified by Mr Tummala before his Honour and none was demonstrated in this Court. 7 The third ground considered by his Honour was a claim by Mr Tummala of having exceptional circumstances. The statement of that ground was understood by his Honour in the sense explained in paragraph 23 of his reasons: 23. Ground three claims that the applicant has "exceptional circumstances beyond the application lodgement (sic 'lodged') previously". The only circumstances raised by the applicant are that he has sat and failed 4 IELTS tests and has arranged for a further test on 5 April 2014; and wants to put those results before the Tribunal. The learned judge rejected this ground on the basis that no error had been shown. At [24]-[35] his Honour said: 24. An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]: "An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]: It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of '... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision'. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal '... are only on questions of law'. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework." 25. The applicant accepted at the hearing on 24 March 2014 that the IELTS scores put to the Tribunal showed that he had failed. 26. An applicant must establish their case. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40], it states: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. " 27. Although "... the concept of onus of proof is not appropriate to administrative inquiries and decision-making..." (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts. 28. The Court refers to the following decisions: • Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596: "… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for ... (the reason claimed). It remains ... for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out." • A decision-maker is not required to make the applicant's case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45. • Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451. 29. The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish that matter, included that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected. 30. Here, the applicant failed to establish that he had competent English. "He did not do that" (Decision [12] and [13]), and had "not provided any indication that he has made any arrangements to sit an IELTS test within a reasonable period of the Tribunal hearing date." (Ibid [15]). The Tribunal did not defer "its decision making any further to allow the applicant additional time in which to undertake an IELTS examination and to submit the results to the Tribunal. " (Ibid [18]). The Tribunal set out its reasons for that at Decision [14] to [18]. No error of law is established. 31. Section 363(1)(b) provides the Tribunal with a discretion to adjourn a review. The power in s.363(1 )(b) of the Act is couched in permissive and not mandatory terms. In NBMB & Anor v Minister for Immigration and Citizenship & Anor (2008) 100 ALD 118, his Honour Flick J observed at [14] that: "The tribunal unquestionably has a discretionary power to adjourn proceedings ... Decisions as to whether or not hearings should be adjourned are largely within the discretion of administrative decision-makers. Relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it must conduct its review in a manner which "is fair, just, economical, informal and quick". Procedural decisions of tribunals ... should not be lightly disturbed." 32. The Tribunal is generally under no duty to use its permissive statutory powers: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [21], [24] and [25]. The Tribunal is also not required to give reasons for its exercise of discretion: see SZHSQ v Minister for Immigration & Multicultural Affairs [2006] FCA 1295. But in any event, the first respondent contends that the Tribunal did in fact provide reasons as to why it decided to not adjourn. In the Full Federal Court decision in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383, which upheld a decision of Conti J in Huo v Minister for Immigration & Multicultural Affairs [2002] FCA 617, the applicant complained that the Tribunal should have waited for a related decision. Conti J concluded at [31]: "The Tribunal was entitled in the exercise of its discretion to withhold from awaiting the Tribunals decision on the JNZ application... there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled." (emphasis added) 33. There is no provision for an applicant to submit "exceptional circumstances" in relation to this type of visa. 34. By s.65(l)(b) of the Act, if the Minister is not satisfied that the relevant criteria specified in the Act and Regulations have been met, the Minister "is to refuse to grant the visa". This is what occurred (Decision [19] and [20]). 35. The applicant attached a letter to the Tribunal dated 21 May 2012, to his Affidavit before this Court. The letter sets out personal matters. The letter raises no grounds for judicial review. [Footnotes omitted.] No error was shown by Mr Tummala in any aspect of his Honour's reasons for rejecting this ground. 8 The issue which had been before the Tribunal had been whether Mr Tummala had "the required English language proficiency". Regulation 1.15C to the Migration Regulations 1994 (Cth) relevantly provided: 1.15C Competent English If a person applies for a General Skilled Migration Visa, the person has competent English if the person satisfies the Minister that the person: (a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged: (i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or (ii) a score: (A) specified by the Minister in an instrument in writing for this sub-subparagraph; and (B) in a language test specified by the Minister in the instrument; or (b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph. The evidence before the Tribunal had been that Mr Tummala had sat and failed the IELTS test four times but had arranged a further test on 5 April 2014. The evidence before the Tribunal, therefore, was that Mr Tummala did not meet a requirement for the issue of the visa he sought. There was, therefore, no error in the Tribunal finding that Mr Tummala did not satisfy the requirements he needed to establish to have the visa issued. Mr Tummala may have arranged for a further test on 5 April 2014, but the Tribunal was not required to adjourn the proceeding to review the delegate's decision and correctly exercised its discretion that the hearing of the application continue on the evidence available. There was no error shown in his Honour's conclusion to that effect at [32] above. Finally, there was no error shown in his Honour's rejection of Mr Tummala's submission of "exceptional circumstances" on the basis that there was no provision for such a ground in relation to the type of visa he sought. 9 The application for leave of this Court will, therefore, be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 14 August 2014