FEDERAL COURT OF AUSTRALIA Syed v Minister for Immigration and Border Protection [2018] FCA 138 Appeal from: Application for extension of time and leave to appeal: Syed & Ors v Minister for Immigration & Anor [2017] FCCA 1865 File number: NSD 1714 of 2017 Judge: ROBERTSON J Date of judgment: 21 February 2018 Catchwords: MIGRATION – interlocutory judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of decision of the Administrative Appeals Tribunal – application for an extension of time and leave to appeal – whether acceptable reason for delay – whether any basis to doubt the conclusions of the primary judge that it was not arguable that there was jurisdictional error on the part of the Tribunal – Held: application for an extension of time for leave to appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a) Federal Court Rules 2011 (Cth) r 35.13 Migration Regulations 1994 (Cth) r 1.15C Date of hearing: 21 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicants: The First Applicant appeared in person on behalf of all the Applicants with the assistance of an interpreter Solicitor for the First Respondent : Ms C Saunders of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS NSD 1714 of 2017 BETWEEN: ISMAIL ZABI AHMED SYED First Applicant MEHARUNNISA MEHARUNNISA Second Applicant SYED AFIYAH FATIMA SYEDA AFIYAH FATIMA (and another named in the Schedule) Third Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 21 FEBRUARY 2018 THE COURT ORDERS THAT: 1. The application for an extension of time and leave to appeal is dismissed, with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: Introduction 1 This is an application for extension of time and leave to appeal from orders made by a judge of the Federal Circuit Court of Australia (FCCA) on 11 August 2017. Those orders were that, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed, with costs. 2 The application for extension of time and leave to appeal was filed on 29 September 2017. That application has two grounds, as follows: 1. No advice given by the Federal Circuit Court of Australia or otherwise on whether I have a right to appeal, and if yes, how and when 2. Personal extenuating circumstances 3 The application to the FCCA was for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 10 May 2016, affirming the decision of a delegate of the Minister (delegate) not to grant the first applicant a Skilled (Resident) (Class VB) visa. 4 The delegate's decision was made on 19 November 2015. 5 The first applicant applied for the visa on 8 June 2010. 6 The basis of the Tribunal's decision in respect of the second, third and fourth applicants was that it had no jurisdiction in relation to them. That aspect of the Tribunal's decision is not in issue. Evidence 7 The evidence before me is an affidavit dated 29 September 2017, sworn by the first applicant and a formal affidavit affirmed by a solicitor employed by the lawyers for the first respondent, dated 17 October 2017. 8 In his affidavit, the first applicant states that the application in the FCCA was heard on 3 August 2017 and he was then in India to attend on his wife, who was then hospitalised "for urgent and medical obstetric care". He applied for an adjournment of the hearing but that application was declined and he was directed to appear by telephone from India. He then deposes: "I believe that the case presentation by way of telephone hearing was quite limited." He then states that the primary judge had not advised whether he, the first applicant, could appeal the decision or not and, if he was allowed to appeal, when or how the appeal application must be filed. The first applicant deposes that: "Someone told me that the appeal must be filed within 21 days or 28 days but actually it must be within 14 days after the order was made." The draft notice of appeal 9 The draft notice of appeal has the following single ground: 1. His Honour erred in failing to find that the Tribunal acted unreasonably by not granting the first appellant further time to meet the criteria of cl.886.213 of Schedule 2 to the Regulations which requires the applicant to have 'competent English' as defined in reg.1.15C without taking into account his then circumstances. Particulars: (a) Her (sic) mother had been critically ill. (b) Her (sic) mother just passed away, he was much grieved and he had been busy in her (sic) mother's funerals. (c) He and his family had been waiting for a permanent resident visa for six years. The Tribunal's decision 10 The Tribunal found that the issue was whether the first applicant had competent English as required by cl 886.213. The Tribunal said that r 1.15C(a) of the Migration Regulations 1994 (Cth) provided that a person has "competent English" if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged, either an IELTS test score of at least six for each of the four test components; or a score in a test specified by the Minister. The Minister had specified the Occupational English Test with a score of at least B for each of the four test components. 11 The first applicant provided no relevant evidence to the delegate. 12 The Tribunal said, at [17], that the first applicant had had almost six years to demonstrate that he had competent English. The Tribunal requested him to provide relevant evidence in its letter of 28 January 2016 and the Tribunal then, on 21 April 2016, asked the first applicant's agent to provide further information regarding steps taken by the first applicant to attempt to meet the English language criterion. The first applicant did not provide any of that information. The Tribunal said that it considered that the first applicant had had more than enough time to demonstrate the required level of English language proficiency, particularly since 6 August 2015 when he was placed on notice by the Department's request that relevant evidence was required. I also set out the reasons of the Tribunal at [18] to [19] as follows: As noted above, the Tribunal requested him to provide relevant evidence in its letter of 28 January 2016, and a further 3 months have elapsed. The applicant has not provided any of the information requested on 21 April 2016 as at the date and time of this decision. While the Tribunal understands that the applicant has recently lost his mother and that she had been in poor health for some time, it considers that he has had more than enough time to demonstrate the required level of English language proficiency particularly since 6 August 2015 when he was placed on notice by the Department's request that relevant evidence was required. There is no evidence before the Tribunal to suggest that the applicant has undertaken any kind of specified language test in the period since 8 June 2008, let alone that he has achieved the results specified in IMMI 15/005 for the purposes of r.1.15C(a). The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a). The decision of the primary judge 13 The primary judge dismissed the application for judicial review on the basis that no arguable case was raised in relation to the decision of the Tribunal given on 10 May 2016. 14 The primary judge held that it was not arguable that the Tribunal did not consider the first applicant's circumstances, and in particular that his mother had been ill and had passed away. The Tribunal considered those matters together with other matters, including the time that had passed after the first applicant applied for the Skilled visa, the first applicant's not having responded to requests made by the delegate and by the Tribunal to provide evidence that he was competent in English, and the first applicant's not responding to the Tribunal's request for further information made in its email of 21 April 2016. The primary judge held that it was beyond argument that it was open to the Tribunal not to grant the first applicant further time than it did for the reasons it gave. It was not arguable that the Tribunal's deciding the first applicant's application for review on 10 May 2016 was "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". 15 The primary judge dismissed as not raising an arguable case of jurisdictional error by the Tribunal the submission by the first applicant that, although he had been granted six years to do what he was required to do, he was mentally not up to do that which was expected of him: had he been given three months, he submitted, he would have done everything expected of him. The primary judge said that these were not matters the first applicant put to the Tribunal after the Tribunal requested the information identified in its email of 21 April 2016, or after the Tribunal, in its email sent on 2 May 2016, indicated it would make its decision on the basis of the evidence as at 9 May 2016, subject to its reconsidering any further extension in the light of responses the first applicant might make to its email of 21 April 2016. The primary judge said that the Tribunal's request for information was not extensive and could easily have been provided. 16 The primary judge concluded that it was beyond argument that the Tribunal did take into account the impact on the first applicant of his mother's illness and passing away. The primary judge said that it was beyond argument the Tribunal did take into account those matters, together with other matters, when deciding to make its decision on the review on 10 May 2016, and that it was beyond argument that, for the reasons it gave, it was reasonably open to the Tribunal to so decide. Proceedings in this Court 17 The judgment of the FCCA was interlocutory so leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. 18 An extension of time and leave to appeal being necessary, I consider as a significant matter whether there is any acceptable explanation given for the delay and whether the substantive appeal has any merit. 19 The first applicant made oral submissions to the Court to the effect that the Tribunal did not give him enough time, particularly in light of his mother's illness and death on 19 April 2016 and the effect her death had on his mental state. He also put that he applied for the visa in 2010 and the Tribunal's decision was in 2016. 20 I find that no acceptable explanation for the delay in commencing proceedings in this Court has been provided, noting that the delay is of some five weeks. There is no obligation on the FCCA to advise on whether there is a right to appeal or by what date any appeal or application for leave to appeal must be filed. There is no cogent evidence of "personal extenuating circumstances" as referred to in the application to this Court. 21 I also find that the proposed ground of appeal does not show or suggest sufficient doubt as to the correctness of the judgment of the primary judge. The proposed ground does not suggest any basis for establishing error on the part of the primary judge, reading his Honour's reasons with the reasons of the Tribunal, especially the Tribunal's reasons at [18]-[19] which I have set out at [12] above. 22 There is no basis to doubt the conclusions of the primary judge that it was not arguable that there was jurisdictional error on the part of the Tribunal. Conclusion 23 The application for an extension of time and leave to appeal is refused, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 21 February 2018 SCHEDULE OF PARTIES NSD 1714 of 2017 Applicants Fourth Applicant: ALYAN AHMED SYED