FEDERAL COURT OF AUSTRALIA

Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892

THE COURT ORDERS THAT:

1.    The application dated 8 July 2014 is dismissed.

2.    The applicants are to pay the first respondent’s costs fixed, on the first respondent’s application, in the sum of $600.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 17 June 2014, the Court dismissed the applicants’ application for leave to appeal against a decision of the Federal Circuit Court (FCC) and for an extension of time in which to do so: Lal v Minister for Immigration and Border Protection [2014] FCA 661. The FCC had dismissed an application for judicial review under s 476 of the Migration Act 1958 (Cth) on the ground that its jurisdiction had not been properly invoked.

2    On 8 July 2014, the applicants filed an interlocutory application seeking the setting aside of the orders made on 17 June 2014.

3    The applicants are self-represented. It is evident that the first applicant, at least, attended this Court’s Registry on 8 July 2014 to file the interlocutory application, as the supporting affidavit was witnessed by one of the Registry staff. The applicants were informed at that time that the application would be heard today at 2.15 pm, and today’s date and time were endorsed on the application. However, neither applicant has attended the hearing today.

4    In those circumstances the first respondent to the application, the Minister for Immigration and Border Protection, submits that the Court should proceed to hear and determine the application, albeit in the absence of the applicants. He contends that this Court has power to proceed in that way, whether pursuant to an inherent power, or pursuant to rr 17.04 and 35.32 of the Federal Court Rules 2011 (Cth).

5    I am satisfied that the Court does presently have the power to hear and determine the application in the absence of the applicants. It is not necessary to address in detail the source of that power. It is sufficient to indicate that I am satisfied that the Court’s power arises from one or more of the sources to which counsel referred, and that it is appropriate to proceed with the hearing.

6    Counsel for the Minister submits that I should hear and determine the application on its merits by reference to the material which the applicants have themselves filed in support of the application, that being the first applicant’s affidavit, affirmed on 8 July 2014.

7    The applicants are nationals of India. The first applicant applied on 26 October 2011 for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa. The second applicant, who is the first applicant’s wife, applied as a member of his family unit and was therefore a secondary applicant. The Minister’s delegate refused the grant of a visa. That decision has given rise to the subsequent applications in the Migration Review Tribunal (MRT), the FCC, and in this Court. The delegate refused the grant of a visa because the first applicant did not satisfy the English competence criterion and, in particular, had not provided evidence that he had achieved the specified score on the International English Language Testing System (IELTS) test.

8    As the Court’s reasons of 17 June 2014 indicate, the application for leave to appeal and for an extension of time within which to make that application were dismissed pursuant to r 35.33 of the Federal Court Rules 2011 because the applicants did not attend the hearing that day (which had been adjourned at their request from 29 May 2014) and had not provided any explanation for their failure to do so.

9    Rule 39.05 of the Federal Court Rules 2011 authorises the Court to set aside a judgment or order after it has been entered if, amongst other things, it was made in the absence of a party. The rule does not circumscribe the discretion to set aside in these circumstances, but that discretion must, of course, be exercised judicially. Some authorities indicate that the power under r 39.05 is exercised ordinarily only in exceptional circumstances; for example, Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at 6. The circumstances to which r 39.05 may apply may be quite varied, so that it may not be appropriate to require exceptional circumstances in all cases. Nevertheless, it is apparent that good reason must be established for the Court to exercise the discretion to set aside an order which has been entered. The authorities indicate that parties seeking the exercise of the discretion, when the orders sought to be set aside were made in their absence, will usually have to provide a proper explanation for that absence, and show that they have a case which is reasonably arguable: 3D Funtimes Ltd v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407 at [6].

10    In the interlocutory application filed on 8 July 2014, the applicants say (verbatim):

(1)    I want that Judge to look at case properly and give me time to accept new IELTS score that the Department need to prove my visa;

(2)    I want too the order was made on 17 June 2014 need to be set aside.

11    In the first part of the accompanying affidavit, the first applicant deposes (verbatim):

I would like re-appeal my case and try to put the points of my side, which I could not get a chance due to health issues, that why I could not able to attend my last hearing date. Therefore this I can explain and say my side points.

The first applicant then referred in his affidavit to Annexure A, the contents of which can be summarised as follows:

1.    The first applicant was unable to attend the hearing on 17 June 2014 because of health issues.

2.    He would like the applications reopened so that he has the chance to make the points which he could not make at that time.

3.    He was unaware that he had to have achieved the specified IELTS score before lodging his visa application, and had thought that he could provide the required evidence by the time that the Department considered the visa application.

4.    He had been preparing for the IELTS test.

5.    His children are living in India with his parents and he had returned to India to see them because one was sick, and furthermore, they had been apart for more than 18 months.

6.    This caused his IELTS preparation to be “left behind”.

7.    He has been in Australia for more than six years, has worked as a welfare worker in workplaces using English and has obtained a taxi driver’s licence which involved passing seven tests in English.

8.    IELTS is not a competent body to assess English competence.

9.    The MRT overlooked these matters and its decision is therefore affected by jurisdictional error.

10.    He would like the Court to give him a new time and date to show that his English is acceptable.

12    The first matter to be considered is the explanation for the applicant’s absence on 17 June 2014. The first applicant does not, and could not, assert that he and his wife were unaware of the hearing for that day. He asserts instead that he could not attend “due to my health issues”.

13    A number of matters may be noted about that explanation. The first applicant does not identify the nature of the health issues or how they affected his ability to attend. He has not provided any corroborative evidence of the claimed health condition, or indicated that it prevented him working, or explained why there was no contact at all with the Court at the time of the hearing or subsequently to explain his absence. There is no explanation as to why his wife, who is also an applicant of the proceedings in this Court, did not attend.

14    I note that, in the affidavit of 8 July 2014, the first applicant gives his occupation as that of a taxi driver and note again that he attended the Registry of this Court himself on 8 July 2014 to lodge the interlocutory application and to have his affidavit witnessed.

15    The limited nature of the material which the first applicant has provided in relation to his absence on 17 June 2014 is significant given that the applicants had been warned by the Australian Government Solicitor, representing the Minister, that if they did not attend the hearing, the Minister would ask the Court to dismiss their applications.

16    Having regard to the identified limitations in the material provided, I consider that the applicants have not provided a proper explanation for their failure to attend on 17 June 2014.

17    I also consider that the applicants have not established that it is reasonably arguable that the FCC Judge erred in concluding that the jurisdiction of that Court had not been enlivened. Section 476 of the Migration Act does not vest in the FCC jurisdiction to conduct a merits review of MRT decisions. Its jurisdiction is limited to judicial review, that is, to determining the legality of the decision of the MRT having regard, in particular, to the requirements of procedural fairness and to the concept of jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476.

18    One of the criteria for the grant of the Skilled Graduate visa for which the first applicant had applied, as specified in reg 485.215 and Schedule 2 of the Migration Regulations 1994 (Cth) in force at the time that the visa application was lodged, was that an applicant have competent English. Regulation 1.15C, as in force at that time, prescribed the criteria for satisfaction of the requirement of competent English. It provided:

If a person applies for a General Skilled Migration visa, the person has competent English if the person:

(a)    satisfies the Minister that;

(i)    the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and

(ii)    the test was conducted in the two years immediately before the day on which the application was made; and

(iii)    the person achieved a score specified in the instrument.

19    For the purposes of reg 1.15C, the Minister had specified two language tests, the IELTS test and an Occupational English test. The first applicant did not provide evidence that he had been assessed as having competent English under either test as required. Such a test had to be carried out in the two years immediately preceding the day on which the visa application had been lodged. The first applicant acknowledges that he has not achieved the requisite score on the IELTS test at all, let alone in the two years immediately preceding his visa application.

20    There is no suggestion at all that the first applicant has undergone the alternative Occupational English test.

21    In these circumstances, it was inevitable that the first applicant’s application for a Skilled Graduate visa would be refused. The MRT did not commit jurisdictional error by giving effect to the matters which the Migration Act and the Migration Regulations required of it. The matters listed in Annexure A to the first applicant’s affidavit, which I summarised earlier, were not the matters to which the MRT was bound to have regard.

22    The applicants’ reliance on those matters indicates that they really wish this Court, or for that matter, the FCC, to engage in a form of merits review. That is not the function of either Court.

23    For these reasons, I am not satisfied that this is an appropriate case in which the Court should exercise the discretion under r 39.05 to set aside its previous orders of dismissal.

24    The application of 8 July 2014 is accordingly dismissed. The applicants are to pay the costs of the first respondent which, on the application of the Minister, I fix in the sum of $600.

Associate:

Dated:    26 August 2014