FEDERAL COURT OF AUSTRALIA

Sahib v Minister for Immigration and Citizenship [2011] FCA 187

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 8 November, 2010 the appellant filed his notice of appeal in this Court. The appeal purports to be from the whole of the judgment of the Federal Magistrates Court of Australia given on 21 October 2010.

2    The appellant is a citizen of India. He first arrived in Australia in possession of a visa that permitted him to work in Australia until October 2007. At the time when he arrived, he was able to obtain such a visa without having to demonstrate any particular level of skill in the English language. In October 2008, he applied for another visa that would permit him to work, his earlier one having expired approximately a year prior to that application.

3    By that stage, the relevant provisions of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) had been amended. In particular item 457.223 of Sch 2, in cl 4(eb), required that an applicant for such a visa have a level of English language proficiency that is required to achieve a IELTS test score averaging 4.5 across the four components of the testing. IELTS is an acronym for International English Language Testing System. The four test components for that testing system are speaking, reading, writing and listening. The criterion was required to be satisfied at the time of the making of a decision.

4    The appellant’s application for a visa was rejected. He applied to the Migration Review Tribunal (“the Tribunal”) for review of that decision. By the time the Tribunal gave its decision, the Migration Regulations had been amended so that, instead of an average score of 4.5 across the four components of the IELTS test, there was required a score of at least 5 in each of those four components.

5    The appellant placed before the Tribunal material suggesting that he had undergone three tests under the IELTS and had never managed to achieve more than an overall score of 3. For this reason, the Tribunal found that he did not satisfy a criterion that he was required to satisfy at the time of the Tribunal’s decision. The Tribunal affirmed the decision under review refusing to grant the appellant a visa.

6    The appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The grounds in his application to that court are as follows:

1.    The applicant states that when he applied for his 457 visa to come to Australia he was not required to provide evidence of his English language ability. He was granted his 457 visa on 16th November 2005 and although he applied for a 4 year visa he was granted a visa for only about 2 years. Thus the recent amendments to clause 457.223 can not [sic] implemented [sic] retrospectively.

2.    The 2nd respondent erred jurisdictionally by giving retrospective effect to the amendment to clause 457.223 made on 14th September, 2009.

7    The appellant’s application to the Federal Magistrates Court was filed on 21 January 2010. It was listed for hearing, and called, on 1 June 2010. On that day, there was no appearance by the appellant. The federal magistrate dismissed the application pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). That is a rule that permits the court to dismiss an application by reason of the non-appearance of the applicant. The order made on 1 June 2010 records in its terms that the dismissal was pursuant to that provision of the rules. The reasons for judgment are published as Sahib v Minister for Immigration & Anor [2010] FMCA 459. On 15 September 2010, the appellant filed an application in the Federal Magistrates Court seeking that the order made dismissing his application be set aside, that the application for review be heard and the orders sought granted.

8    At the same time, the appellant filed an affidavit explaining why he had not been in attendance when his application had been called on. In substance, his explanation was that the train he had intended to catch did not arrive and he was forced to catch the next one. He telephoned the court to advise that he was on his way but was told that his case had already been dismissed.

9    On 4 October 2010, a federal magistrate adjourned the application of 15 September 2010 to 21 October 2010 for directions. On 21 October 2010, the appellant was in attendance and argued his case. The federal magistrate published reasons for judgment: Sahib v Minister for Immigration & Anor [2010] FMCA 925.

10    In those reasons for judgment, his Honour directed his attention to the merits of the appellant’s substantive application. His Honour described the proceeding as an application for judicial review of a decision of the Tribunal made on 23 December 2009. After examining the merits of the case, his Honour concluded at [7] that no question of retrospective operation of the Migration Regulations could be said to have disadvantaged the appellant. Even if it were the case that amendments to the Migration Regulations made after his application for a visa did not apply, as a matter of law his application for a visa would nonetheless have failed on the terms of the relevant criterion applicable at the time he made that application. The federal magistrate concluded that he was required to dismiss the application.

11    It does not appear that the federal magistrate ever made an order setting aside the orders of 1 June. Such an order would have been necessary if the federal magistrate were to determine the merits of the original application filed on 21 January 2010. The order actually made by the federal magistrate on 21 October 2010 was an order specifically dismissing the appellant’s application filed on 15 September 2010. That, of course, was the application the appellant made to set aside the order dismissing his substantive application. On the face of it, therefore, the order made on 21 October 2010 was an interlocutory order. It operated to dismiss the interlocutory application which was designed to reinstate the original application for judicial review of the Tribunal’s decision.

12    By s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”), an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. In my view, it is clear that the judgment from which the appellant purports to appeal is an interlocutory judgment. He has been given no leave to appeal. If he were to apply for leave to appeal, he would need an extension of the time fixed by O 52 r 5 of the Federal Court Rules (Cth), or an order dispensing with compliance with the rule. No such application for leave to appeal, or for an order enabling the application for leave to appeal to be made out of time, has been made.

13    When the appeal was called on for hearing this morning, the appellant was not present. He did not answer the call of his name outside the Court. Counsel for the first respondent, the Minister for Immigration and Citizenship, suggested that his instructing solicitor might ring a mobile telephone number that she had for the appellant, with the assistance of the interpreter who had been engaged to assist the appellant. The solicitor rang the appellant and the interpreter spoke with him. The interpreter has advised me that the appellant claimed that he did not know that his appeal was listed for hearing today. When he was asked if he could attend the Court, he said that it would take him at least two hours to leave the house and anything up to four hours to come to the Court.

14    The suggestion that the appellant did not have notice of the date of hearing is not easy to accept. The address given for him in his notice of appeal is 1093 Sydney Road, Coburg 3058. The Court file indicates that no less than three letters have been sent from the Court registry, addressed to the appellant at that address. There is no indication in the court file of the return of any of those. Counsel for the first respondent advises me that his instructing solicitor has sent also three letters to the appellant in relation to the appeal, all addressed to the same address, and none of those has been returned. Certainly, the two letters from the Court dated 20 January 2011 give clear information to the appellant that his appeal will be listed for hearing today at 10.15 am and provide him with the address of the Court. Counsel for the first respondent has advised me that at least one of the three letters sent by his instructing solicitor also referred to the time, date and place of the hearing of the appeal. The reaction of the appellant to the telephone call this morning, as reported to me, tends to suggest that the appellant may have chosen not to appear.

15    One of the options available to me is to dismiss the appeal for want of appearance, pursuant to s 25(2B)(bb)(ii) of the Federal Court Act. Ordinarily, I would do that if an appellant simply did not appear and could not be contacted. Ordinarily, if an appellant could be contacted and indicated that he or she was wishing to attend, and would do so as quickly as possible, I would be prepared to accommodate such attendance if I could.

16    The circumstances of this appeal are somewhat different, however. The fact that the judgment from which the appeal has been brought is an interlocutory judgment does not seem to have been raised with the appellant. The representatives of the first respondent do not seem to have been aware of the point. When I drew it to the attention of counsel for the first respondent, he did not submit to the contrary.

17    As it stands, the appeal is incompetent. Leave to appeal is required and none has been sought or granted. If any application were to be made to extend the time to apply for leave to appeal and any application for leave to appeal were to be made, it would be bound to fail. It is manifest that the appellant had no chance at all of applying successfully to set aside the Tribunal’s decision on the basis that it had wrongly applied regulations retrospectively. The Tribunal was clearly required by the provisions of the Migration Regulations themselves to apply the version of the relevant criterion that existed at the time of its decision, rather than the version that existed at the time of the making of the application for a visa or at the time of the making of the application for review by the Tribunal. In any event, as the learned federal magistrate pointed out, the appellant would have failed even if the earlier criterion had been applied to him.

18    The appellant seems to have suffered from a misunderstanding as to the effect of the Migration Regulations. He seems to have thought that, because he was able to obtain a visa in 2005 without demonstrating proficiency in the English language, he ought never to be required to demonstrate proficiency in the English language to obtain a similar visa at any time thereafter. That proposition is unsustainable. Any applicant for a visa is required to satisfy the criteria as they appear in the Migration Regulations at the relevant time.

19    The appellant has raised no other ground of challenge that would give rise to a finding of jurisdictional error on the part of the Tribunal. Any appeal that he might bring would therefore be bound to fail. Any application for leave to appeal would be refused on the basis that the proposed appeal had no possible merit. Any application to extend the time for making an application for leave to appeal would be refused for the same reason.

20    For those reasons it seems to me that the appropriate order is to dismiss the appeal, not by reason of the appellant’s non-attendance, but by reason of the fact that the appeal is one brought without leave when leave is required.

21    The orders I make are:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:    4 March 2011