FEDERAL COURT OF AUSTRALIA Sara v Minister for Immigration and Border Protection [2015] FCA 897 Citation: Sara v Minister for Immigration and Border Protection [2015] FCA 897 Appeal from: Application for extension of time and leave to appeal: Sara v Minister for Immigration & Anor [2015] FCCA 348 Parties: VINAY KUMAR SARA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 207 of 2015 Judge: PAGONE J Date of judgment: 19 August 2015 Catchwords: MIGRATION – application for extension of time and leave to appeal – Skilled (Provisional) (Class VC) visa – competent English – no evidence of completion of prescribed English language test – whether utility in granting application – whether reasons of primary judge disclose appealable error Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Court Rules 2011 (Cth) r 35.13(a) Migration Act 1958 (Cth) s 476 Migration Regulations 1994 (Cth) reg 1.15C, Sch 2 cl 485.215 Cases cited: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138 Singh v Minister for Immigration and Border Protection [2015] FCA 483 Date of hearing: 19 August 2015 Date of publication of reasons: 20 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr T C Smyth Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 207 of 2015 BETWEEN: VINAY KUMAR SARA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 19 AUGUST 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' 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 207 of 2015 BETWEEN: VINAY KUMAR SARA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: PAGONE J DATE: 19 AUGUST 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT (Revised from transcript) 1 The applicant seeks to appeal from orders made by the Federal Circuit Court on 25 March 2015 dismissing his application for judicial review of a decision made by the Migration Review Tribunal on 30 April 2014. The application to this Court on 20 April 2015 was some 12 days out of time. Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal is to be brought within 14 days and, therefore, the applicant requires, and applies for, an extension of time within which to commence his appeal. The applicant also requires leave for the appeal itself because the decision of the Federal Circuit Court to dismiss his application for judicial review was interlocutory: Federal Court of Australia Act 1976 (Cth), s 24(1A). 2 The applicant applied for a Skilled (Provisional) (Class VC) visa on 16 March 2011. The Minister's delegate refused the visa application on 26 June 2012. The decision of the Migration Review Tribunal recorded at [3] the reasons for the delegate's refusal of the visa as follows: The delegate refused the visa on 26 June 2012 because the applicant did not have the required English language proficiency as required by cl.485.215 and also because there was no evidence that he had been assessed by the relevant assessing authority as suitable for his nominated skilled application as required by cl.485.221 and also because he did not meet cl.485.224 and Public Interest Criterion 4005 concerning health. The class of visa applied for by the applicant contained two subclasses at the time of his application, namely, 485 (Skilled – Graduate) and 487 (Skilled – Regional Sponsored). Subclass 485 was that which applied to the applicant and the criteria he was required to satisfy was set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth). Those criteria were to be satisfied by at least one applicant in the case of a family unit, if any, who were applicants for the visa. 3 The Tribunal wrote to the applicant on 18 March 2014 advising him that it had considered all of the material relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and to present arguments at a hearing on 22 April 2014. The day before the scheduled hearing the registered migration agent of the applicant sent an email to the Tribunal enclosing a medical certificate dated 19 April 2014 stating that the applicant had attended a medical clinic on that day and that he was unable to attend "work" from 19 April 2014 to 22 April 2014. On 23 April 2014 the Tribunal wrote to the applicant inviting him to give oral evidence and to present arguments at a hearing on 30 April 2014. He was informed in the letter from the Tribunal that it might make a decision on the case without further notice, stating: The Tribunal cancelled your hearing scheduled for 22 April 2014 due to your provision of a medical certificate stating that you would be unable to attend work. Please note that the Tribunal will not agree to any further postponement on this basis as such a certificate does not demonstrate that you are not fit to attend a Tribunal hearing. Any further medical evidence supporting a request to postpone will need to address your fitness to attend and participate in a Tribunal hearing. The Tribunal was informed that the applicant would not be attending the hearing on the morning of the date on which it had been rescheduled. The Tribunal was informed of that by a fax from the applicant's agent in response to the hearing invitation from the Tribunal. A medical certificate was supplied dated 29 April 2014 stating that the applicant was receiving medical treatment for the period 30 April 2014 to 1 May 2014 inclusive and would be unfit to continue his "usual occupation". The medical certificate did not otherwise address the applicant's "fitness to attend and participate in a Tribunal hearing" as the applicant had been told it needed to do in the communication from the Tribunal on 23 April 2014. Nor did the applicant attend the hearing on 30 April 2014. In those circumstances the Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it and concluded that the decision under review would be affirmed. 4 The Tribunal's decision to affirm the decision of the Minister's delegate was on the basis that the applicant did not meet the requirements of cl 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth) because there was no evidence that he had ever undertaken a prescribed English language test which he was required to complete satisfactorily by the relevant regulations. Clause 485.215 required the applicant to show that he had competent English. Regulation 1.15C(a) provided at the time that a person had "competent English" if the person satisfied the Minister that the person had achieved, in a test conducted not more than two years before the day on which the application was lodged, either (i) an IELTS test score of at least six for each of the four test components or (ii) a score in a test specified by the Minister. Regulation 1.15C relevantly provided: 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. Regulation 1.03 provides that "IELTS test" means the International English Language Testing System test. The reference in reg 1.15C(a)(ii)(A) to an instrument in writing by the Minister was, relevantly, to IMMI 09/73 which had been made by the then Minister on 25 June 2009 in which the Minister specified a score of at least "B" in each of the four components of an Occupational English Test to be a score of "competent English" for the purposes of sub-paragraphs 1.15C(a)(ii)(A) and (B). 5 The Tribunal concluded that the applicant had not satisfied this requirement because there was no evidence that he had ever undertaken an IELTS test or an Occupational English Test. At [14] the Tribunal said: In the visa application form it is stated that the applicant has not undertaken an English test within the previous 24 months. He has not submitted to the Tribunal or the Department any evidence that he has ever undertaken an IELTS test or an [Occupational English Test] and the Tribunal is not satisfied that he ever has or that he has achieved a necessary score in either test. The Tribunal finds that he does not have competent English as defined by r.1.15C. Regulation 1.15C(b) also provided that a person had competent English if the person satisfied the Minister that the person held a passport of a type specified by the Minister in an instrument in writing for the paragraph. The applicant had stated in his application that he held an Indian passport and there was no evidence before the Tribunal that he held the passport of any other country. There was, therefore, no evidence before the Tribunal of the applicant holding a passport of a type required to satisfy r.1.15C(b). 6 The applicant's application for judicial review to the Federal Circuit Court was made under s 476 of the Migration Act 1958 (Cth) and filed on 21 May 2014. The grounds of his application to the Federal Circuit Court were: 1. Migration Review Tribunal has not understand the situation where I was coming from and how my life has been ruined by using bogus Migration consultancy is known as "S & S Migration Services" 2. I have got refusal from the Immigration as well as Migration Review Tribunal, Migration Review Tribunal has not even given us some time to do the submissions 3. I wasn't satisfied with Migration Review Tribunal decision as tribunal has not accept my medical certificate. 4. When I have submitted all documents with my application there was no response, now they are in rushed me for hearing. 5. Eventually my case has been refused. 6. Just I have been bounced in between DIBP and MRT for two years and Tribunal opens my file without intimation to me and affirmed my not grant visa 7. I did not have chance to make some submissions in regarding my situation how I wasn't able to get all evidence to submit at Tribunal. 8. I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money. 9. I hope Federal circuit court has got Jurisdiction in this matter. 10. Or else Apex court might have Jurisdiction in my matter. The application for judicial review to the Federal Circuit Court was listed for a show cause hearing before Judge McGuire on 12 February 2015 who decided on 25 March 2015 to dismiss the application on the ground that there was no merit in any of the grounds of the applicant's complaint. 7 His Honour considered the issues raised by the application for judicial review under three headings: should the matter have been further adjourned; was there jurisdictional error in the Tribunal finding that the applicant did not meet the requirements of the visa application; and was the Tribunal's process stultified by the conduct of the applicant's first migration agent, namely, S & S Migration Services. His Honour decided each of the issues under these headings against the applicant. 8 The applicant's grounds of appeal to this Court identify no relevant ground of error in the decision by his Honour in the Federal Circuit Court. The grounds of application are stated as follows: 1. I am from India. I came to Australia on a student visa but, before completion of my studies, I was advised to make an application for a visa so as to enable me to work in Australia following the completion of those studies. I was recommended by a fellow student to "S & S Migration Services" who assisted me in lodging my work visa application dated 16 March 2011, at last I was ended up with knowing the information that my application has been lodged for 485 subclass. 2. On 15 March 2012 the department requested to submit the documents as my e-mail ID was given to Department by S & S migration services which was illegal as I have paid legal fee to S & S migration services, so illegal that I was put me as authorised applicant in the file. However I have followed up myself to submit the documents to the officer directly on 11 May 2012. 3. The delegate has refused to grant the visa on the basis of I am not satisfied the schedule 2 criterion to meet the requirements of 485 visa subclass which is already known after I have received the letter from Immigration officer for documents submission. 4. **** there was jurisdictional error in the Tribunal decision because I was totally misguided by S & S Migration services that was related to code of conduct of Immigration law practice, tribuynal and Immigration have taken the decision on the basis of I am not meeting the requirements Is this justifiable? 5. ***** Even I have provided medical certificates as I was sick at the hearing dates was that reasonable to take decision without intimating me. 6. The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail applicant has lodged the review application in time frame. 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? 7. 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 unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection) 8. 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. 9. Please refer to my affidavit for further Ground Reference (page 2-3). The application to this Court was accompanied by an affidavit made by the applicant on 20 April 2015. The affidavit appears to repeat the first five paragraphs under a heading "Grounds of the Application". There is then a heading "Why the application (or notice of appeal / cross appeal) was not filed within time" under which the applicant attempted to give his explanation, although the material under that heading is largely directed to an explanation of the events before the Federal Circuit Court. To the extent that the material provides an explanation for the delay it is, in substance, that he had some confusion about the legal process to be followed and that he may not have realised that the Federal Circuit Court had dismissed his application until he showed his papers to a solicitor, that he is impecunious and that he has had certain medical and personal difficulties. He was invited to make submissions at the hearing this morning and has not taken the matters by way of explanation any further. 9 The Minister does not contend that there is any prejudice that would flow to him if the applicant were granted an extension of time within which to make his application. The Minister's opposition to the grant of an extension of time is based primarily upon the applicant's prospects of success on the appeal which the Minister contends to be insufficient to warrant the grant of an extension of time. In Singh v Minister for Immigration and Border Protection [2015] FCA 483 Kenny J said at [20]-[23]: 20 The Court has treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley) (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time in which to appeal under r 36.05. Accordingly, an applicant for an extension of time should satisfy the Court that: 1. there is an acceptable explanation for the delay; 2. there would be no undue prejudice to a respondent if the Court were to extend time; and 3. there is sufficient merit in the proposed appeal to justify an extension of time. See, for example, Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387, [85] (Besanko J, with whom Siopis J agreed); Mohammed v Minister for Immigration and Border Protection [2015] FCA 184, [15]-[16]; SZRAP v Minister for Immigration and Border Protection [2015] FCA 261, [17]; Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25]; DZAAD v Minister for Immigration and Citizenship [2013] FCA 204 (DZAAD), [28]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]; SZRAP v Minister for Immigration and Border Protection [2015] FCA 261, [17]; Luck v University of Southern Queensland [2011] FCA 1335, [23]; and SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388, [17]. 21 The above-mentioned considerations are not, of course, exhaustive and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Griffiths J, with whom Edmonds J agreed). 22 The respondent accepted that the applicant's delay was not substantial and had been explained to some degree. The respondent submitted, however, that the proposed grounds were so lacking in merit that there would be no utility in granting an extension of time. 23 There is no doubt that the merits of a proposed appeal are relevant: compare WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, [9]. Thus, an extension of time will not be granted if the proposed appeal has no prospects of success, even though the delay is short: see, for example, DZAAD, [30] and Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211, [14] (Jessup J, with whom Gyles and Besanko JJ agreed). In this case the Minister contends that the applicant's proposed grounds of appeal are so lacking in merit that there would be no utility in the extension being granted in which to bring the appeal. The Minister contends that the same reasons would not warrant leave being granted to appeal from the interlocutory decision: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9; Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101, [20]-[23]; and Samsung Electronics Co Ltd v Apple Inc [2013] FCAFC 138, [17]-[22]. 10 The proposed appeal is without merit and not attended with sufficient doubt to justify the grant of leave. The statement of grounds in the application may be taken as a statement of the factual foundation relied upon by the applicant to contend that the Federal Circuit Court was incorrect to dismiss the application for judicial review. The application for judicial review was, as previously mentioned, dealt with by the Federal Circuit Court at a show cause hearing. His Honour was correct to regard the issues before him as coming within the three topics identified. 11 The first complaint was that the Tribunal ought to have granted an adjournment on 30 April 2014. His Honour concluded that there was no merit in this ground stating at [21]-[23] of the reasons: 21. I am of the view that the medical certificate provided is unsatisfactory so as to ground any sucessful [sic] application for an adjournment. Lindgren J in NAKX v Minister for Immigration and Multicultural Affairs was confronted with an almost identical situation and his Honour opined at [6]. The medical certificates are quite unsatisfactory. They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a Court hearing. 22. Further, my colleague Judge Riethmuller observed in MZYZE v Minister for Immigration & Anor at [24]: Illness sufficient merely to make a person unfit for normal duties in a workplace would not be necessarily sufficient to show illness that prevented attendance, as is apparent from the cases on adjournment. 23. This applicant had been granted an indulgence on what, in my view, was an unsatisfactory and unparticularised document purporting to be a medical certificate of unfitness. The applicant was put on notice when granted that indulgence. Nevertheless, he proceeded to provide a certificate in similarly unparticularised and unsatisfactory form. I am therefore satisfied that the tribunal had justification in exercising its discretion to proceed in the absence of the applicant. No further written or oral submissions were made in support of this argument. Accordingly, I find no merit in this ground. Nothing in the grounds of the application to this Court indicates any error in principle or application by his Honour in this regard. 12 The second, and fundamental, issue considered by his Honour was whether the Tribunal's findings that the applicant did not meet the requirements for the visa revealed jurisdictional error. His Honour found that the Tribunal had not made an error because there was simply no evidence of the matters which the applicant was required to prove in order to obtain the visa. Specifically at [27] his Honour said: The tribunal in its reasons correctly notes at [14] that the applicant in his own visa application form said that he had not undertaken an English test within the previous 24 months. No evidence was placed before the tribunal indicating him having undertaken that test at any subsequent time. The tribunal properly then proceeded to find that the applicant did not satisfy the competent English criterion required by r.1.15c. There is no error in the process undertaken by the tribunal. I find no merit in this ground of complaint. Nothing has been shown to establish any error of his Honour, or the Tribunal, about the applicant's failure to establish the basis upon which the visa he sought could be granted to him. 13 The third issue considered by his Honour was whether the conduct of the applicant's first migration agent was relevantly responsible for the position of the applicant. In this regard his Honour said at [28]-[31]: 28. The applicant's oral evidence under affirmation addressed this issue. At its highest that evidence did not allege a fraud by the agent on the tribunal. The applicant's evidence was in respect of his relationship with the agent which might best be termed non-communicative. He gave evidence that he engaged and paid S & S Migration Services to lodge an application "to allow him to work and obtaining an apprenticeship" after the completion of his studies. The applicant claimed some confusion or naivety as to the precise visa being sought on his behalf but indicated his delegation of the process generally to the agent. The application for a visa itself does not disclose any fraud by reason of inclusion of false facts, dishonesty, or corruptive behaviour. I am satisfied that this applicant was aware of the nature of the application being presented on his behalf and which was confirmed by his evidence in this Court that he wanted a visa to allow him to work. In his letter of 9 July 2012 to the Tribunal, the applicant says: I have submitted all documentation to that consultant which I had thought "I was eligible for work permit", they have lodged the visa and gave me one reference number and I was told to check through Immigration website for status of my application. I was not aware of anything that was happening until I got refusal from DIAC. I don't even know that my "lodged visa application was 485 subclass application"; I have spent all time blindly in Australia since my application lodged. 29. The above statement is inconsistent generally with the correspondence in support of the visa application and of the applicant's admissions in the witness box and generally incongruous with his receipt of the delegate's decision. 30. I am of the view that the applicant himself alleges nothing more than a non-communicative relationship with his agent which at its highest might constitute negligent conduct but is not sufficient to ground a finding of fraud which is necessary to stultify the process of the Tribunal and constitute jurisdictional error. In SZFDE v Minister for Immigration and Citizenship at [53] the Court states: ... There are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. 31. I am not satisfied that this ground of a complaint is made out. The applicant refers to his first migration agent in the grounds of application to this Court but nothing in those references shows any error in the approach taken by the Federal Circuit Court judge or in the conclusions reached. 14 Accordingly there is no utility in the grant of either the extension of time or, had an extension of time been granted, leave to appeal. In the circumstances the application will be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 20 August 2015