FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 222

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal is dismissed with costs fixed in the sum of $1756.00.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    The applicant, Mr Amarjit Singh, seeks an extension of time within which to seek leave to appeal from the decision of the Federal Circuit Court (the Court below) given on 3 October 2014. By that decision, the Court below dismissed his application made under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to set aside the orders made on 4 July 2014 when the applicant failed to appear at the hearing of his application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal had affirmed the decision of the Minister’s delegate to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa (the skilled visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    Detailed written submissions were filed by the Minister in response to the application for an extension of time on 17 February 2015. No submissions were filed by the applicant despite the Registrar’s directions for the filing of submissions made on 3 November 2014 to do so.

3    The applicant appeared unrepresented at the hearing of the application for an extension of time and made brief oral submissions. However, those submissions did not identify any error in the decision of the Court below.

4    The application for an extension of time must be dismissed on the ground that the application is devoid of merit.

2.    Background

5    Mr Amarjit Singh is an Indian citizen. He applied for the skilled visa on 8 May 2012. His nominated occupation for the purpose of the visa application was “Nurseryperson, ANZSCO code 362411”. One of the primary criteria for the grant of a skilled visa is the requirement in cl 485.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) that the Minister be satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. That criterion must be satisfied at the time of the application: see s 31(1) of the Act and reg 2.03 of the Regulations. A “skilled occupation” is defined in reg 1.15I in relation to a person to mean:

… an occupation of a kind:

(a)    that is specified by the Minister in an instrument in writing to be a skilled occupation; and

(b)    if a number of points are specified in the instrument is being available – for which the number of points are available; and

(c)    that is applicable to the person in accordance with the specification of the occupation.

6    The phrase “relevant assessing authority” is defined in reg 2.26B which relevantly reads:

(1)    Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)    a skilled occupation; and

(b)    one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries.

7    The applicant’s application was denied by the Minister’s delegate on 8 March 2013.

8    The applicant applied to the Tribunal for review. On 6 January 2014, the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the material before it without more, and invited him to give evidence and present arguments by telephone at a hearing on 5 February 2014. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

9    On 5 February 2014, with the assistance of a Punjabi interpreter, the Tribunal attempted to contact the applicant a number of times but these calls rang out to an unidentified voice mail. In those circumstances, the Tribunal decided to make its decision on the review pursuant to s 362B of the Act without taking any further action to enable the applicant to appear before it.

10    On 11 February 2014, the Tribunal affirmed the decision of the Minister’s delegate not to grant the visa. The Tribunal found that the applicable instrument for the purposes of Regulations 1.15I and 2.26B is “IMMI 12/023”. That instrument was signed by the Minister on 12 June 2012 and expressed to apply from that date. However, the applicant’s nominated skilled occupation (“Nurseryperson, ANZSCO code 362411”) was not a specified skilled occupation for the purposes of a Skilled (Provisional) (Class VC) visa under the applicable instrument. The Tribunal therefore found that at the time of the application the applicant had not applied for skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore did not satisfy the requirements of cl 485.214. It further found that the applicant had not submitted any evidence of a skills assessment for any occupation. Accordingly the Tribunal found that the applicant had failed to satisfy the criteria for the grant of a Subclass 485 visa.

11    On 28 February 2014, Mr Singh applied for judicial review in the Federal Circuit Court on the grounds that he had been denied procedural fairness because the Tribunal made a decision in his absence. However, Mr Singh failed to appear in the Federal Circuit Court for first directions. Nor did he provide written submissions as directed. On 3 July 2014 he sent the Federal Circuit Court a medical certificate and accompanying note requesting that the hearing the following day be postponed, and did not appear at the hearing listed the following day. In the circumstances, the application was dismissed by the Federal Circuit Court on 4 July 2014 under r 13.03C of the FCC Rules which relevantly provides that:

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

…

(c)    if the absent party is an applicant – dismiss the application;…

12    On 23 July 2014, the applicant filed an application in the Court below to set aside the orders of 4 July 2014 made in default of his appearance. While he sought an order to quash the Tribunal’s decision, the Federal Circuit Court appropriately treated the application as an application to set aside the default judgment under r 16.05(2) of the FCC Rules.

13    The applicant appeared at the hearing of the application on 3 October 2014. His application was dismissed in the exercise of the Court’s discretion on the grounds that: the Court was not satisfied that the applicant had provided a proper explanation as to why he did not attend the hearing on 4 July 2014; the certificate of sickness was found to be “wholly inadequate”; given the other absences from proceedings in the tribunal and the Court, it seemed probable that the applicant wished to delay the hearing, if at all possible; and his application did not disclose a reasonably arguable case.

14    As to the first of these considerations, the applicant had provided a brief affidavit in support of his application in which he had deposed only that “I was sick on the day of hearing. I was unable to attend hearing because of sickness. I want to appear in court and present my arguments” (reasons of the Court below at [34]). However, the Court below found that:

[35]    Mr Singh has still not specified what the nature of his illness was on the earlier occasion. It is his position that he was sick. This afternoon I have asked him, in effect, what his arguments are as to why the decision of the Migration Review Tribunal is vitiated by legal error.

[36]    I appreciate the issue of jurisdictional error is a complicated one and difficult to explain to a layperson. However, apart from the fact that Mr Singh has agreed that he did not attend the hearing before the Migration Review Tribunal, to which he was invited and the telephone call which was made to him fell through, he has not specified any other arguments.

3.    CONSIDERATION

3.1    Relevant principles

15    As I have explained, the present application is for an extension of time to seek leave to appeal against the decision of the Court below made on 3 October 2014. Rule 35.13 of the Federal Court Rules 2011 (Cth) requires any application for leave to appeal to be filed within 14 days of the date on which judgment was delivered, i.e., by 17 October 2014 in the present case. Accordingly, as the application was filed on 29 October 2014, it is necessary for the applicant to seek an extension of time within which to seek leave to appeal under r 35.14.

16    In determining whether to grant an extension of time in the exercise of discretion, the Court will consider such matters as the length of delay, any explanation offered for the delay, whether the respondent would be prejudiced by the grant an extension and the merits of the proposed appeal: e.g. SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [16] (Farrell J); BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230; (2013) 139 ALD 140 at [23] (Rangiah J). Notwithstanding that the respondent accepts that he would not suffer any significant prejudice if an extension of time were granted, an extension of time should be refused if there is no merit in the proposed appeal: SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] (Flick J).

17    In turn, if an extension of time is granted, leave to appeal against the decision refusing to set aside the default judgment given under r 16.05 of the FCC Rules would then be required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because that decision was interlocutory in nature: see e.g. Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[5] (Bromberg J); BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [3] (Rangiah J). In determining whether or not to grant leave to appeal, the Court must first consider whether the decision at first instance is attended by sufficient doubt to warrant its reconsideration and secondly whether substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court). The onus of satisfying these matters lies upon an applicant: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (Foster J).

3.2    Application of those principles to the present case

18    The grounds on which the applicant seeks an extension of time are stated in his application as follows:

Federal Circuit court dismissed by case because I was sick and not able to attend hearing. Respected judge said that in my sick certificate doctor didnot mention what illness I have so he cannot accept that as an excuse to miss the hearing. MRT refused my review application stating that I don’t satisfy cl. 485.214. Member asked himself question that at the time of decision cl 485.214 states that applicant should have skill assessment in the nominated occupation from “relevant assessing authority” which is TRA in my case. Decision claimed that Tribunal has not received any proof that skills assessment has been done. TRA is not a competent authority for skills assessment.

19    However, as the Minister submitted, the applicant did not engage with the reasons given by the Federal Circuit Court in his application for an extension of time or in his oral submissions, and failed to identify any error. Nor do I consider that any error is apparent.

20    First, as the Court below held at [40], Mr Singh is not entitled as of right to have the orders made by the Court below set aside merely because they were made in his absence. Rather, good reason must be established for the Court to exercise the discretion to set aside an order which has been entered, which would usually involve a proper explanation for the failure to appear and a reasonably arguable case on the judicial review application (reasons below at [43]-[44]). As to the latter, it is important to emphasise that the decision below was discretionary in nature. As a consequence, it would be necessary on any appeal for the applicant to demonstrate error within the principles set out in House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ), namely:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

21    Secondly, the considerations to which the Court below had regard in declining that application which are set out above were plainly relevant and open to it. Nor can it be said that the decision below is unreasonable or plainly unjust.

22    Thirdly, in reaching this view I do not consider that the Court failed to have regard to the individual circumstances of this case in stating at [50] that:

…it is becoming commonplace for applicants, in migration matters such as this one, to fail to appear not just on one or two occasions but throughout the process of review of their various applications and then appear only when compelled to do so as a consequence of a decision adverse to them.

The consequences of this is multiple hearings relating to matters which, very often are not ones of great intrinsic complexity. This has implications for the wastage of the resources of not only the court but also of the Minister and those advising him.

23    I consider that his Honour intended to point only to the adverse consequences of such conduct for the Court and the respondent. No matter how common this trend may be, each case must ultimately be decided by reference to its individual circumstances.

24    Finally, even if an extension of time were granted, I do not consider that Mr Singh would have a reasonably arguable case. As the primary judge held at [47], “[i]t remains the case that he has not satisfied an essential pre-condition of the grant of the visa in question, namely satisfactory proof that he has the skills relevant to the visa for which he has applied and these skills had been independently assessed.”

4.    Conclusion

25    For these reasons, the application for an extension of time within which to appeal must be dismissed with costs fixed in the sum of $1756.00.

Associate:

Dated:    16 March 2015