FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 223

THE COURT ORDERS THAT:

1.    The order made on 24 February 2015 staying the orders made on 23 February 2015 dismissing the application for an extension of time with costs is vacated.

2.    The applicant is to pay the first respondent’s 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.    ISSUES

1    The applicant, Mr Ravinder Singh, seeks an extension of time within which to appeal, and leave to appeal, from the decision of the Federal Circuit Court (FCC) dismissing his application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). By its decision, the Tribunal affirmed the decision of the Minister’s delegate to refuse to grant him a Skilled (Provisional) (Class VC) Subclass 485 visa (a 485 visa) due to his failure to give evidence that a proper assessing authority had approved and verified his skills.

2    For the reasons set out below, I made orders at the hearing dismissing the application for an extension of time within which to appeal. That being so, there is no need to address the application for leave to appeal separately as its fate rested upon the applicant being successful in his application for an extension of time.

2.    PROCEDURAL MATTERS

2.1    The decision to hear and determine the applications despite the applicant’s failure to appear on 23 February 2015

3    The applicant did not advise the Court or the Minister that he would not be attending or proffer any explanation for his nonattendance at the hearing on 23 February 2015. As the applicant did not appear at the commencement of the hearing of the appeal, the matter was called on at 2:15 PM on 23 February 2015 and the court officer called the matter outside the courtroom three times. There being no appearance, I stood the matter down for 15 minutes in case the applicant was running late and in order to enable Registry to attempt to contact the applicant. Registry called the applicant on the mobile telephone number which he had provided. He did not answer his telephone and two messages were left reminding him of the hearing and asking him to contact the Registry as a matter of urgency. When the matter was called on a second time, the Court Officer again called the matter outside the courtroom three times and there was again no appearance by the applicant.

4    Counsel for the first respondent then sought orders dismissing the application pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) (FCR). Rule 35.33 relevantly provides:

(1) If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a) if the absent party is the applicant:

(i) the application be dismissed; or

(ii) the application be adjourned; or

(iii) the hearing proceed only if specified steps are taken;

….

5    In the circumstances, I was satisfied that it was appropriate to proceed in the absence of the applicant with the hearing and determination of his applications and to dismiss the application for an extension of time. Those considerations to which I had regard in reaching that view were as follows.

(a)    I consider that the applicant was afforded a reasonable opportunity to be heard on his applications given that he had been advised of the hearing date by letter dated 16 December 2014, sent to both his residential and postal addresses, and given the steps taken at the hearing to allow for the possibility that the applicant was running late and to contact him when he failed to appear.

(b)    The Minister had also filed and served detailed written submissions in advance of the hearing as to the reasons for opposing the grant of an extension of time or in the alternative of leave to appeal.

(c)    There was no application by the applicant for any adjournment or explanation as to why he did not appear.

(d)    The applicant failed to file and serve any written submissions in support of his applications notwithstanding the orders made by the Registrar on 13 October 2014 to file and serve written submissions no later than 10 business days before the hearing date.

(e)    The obligation lies upon the parties, including those who are unrepresented, to prosecute their applications with due diligence, as is reflected, among other things, in the capacity of the Court under r 35.33, FCR, to dismiss an application where the prosecuting party fails to appear on the hearing of the application and the obligations upon a party under s 37N of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). To do otherwise has the potential to cause unfairness to the respondent and significant waste of resources including, as occurred here, the wasted expense by the Court in arranging for an interpreter to be present at the hearing.

(f)    I do not consider in any event that any appeal would have any merit for the reasons given below.

6    Finally, I note that Rule 35.33(2)(a) permits an applicant to apply to set aside orders made, as here, in default of an appearance. Specifically, subrule 35.33(2) provides that:

If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a) setting aside or varying the order; and

(b) for the further conduct of the proceeding.

7    Any such application would turn upon whether an acceptable explanation was provided for the party’s absence when the application was called on for hearing on 23 February 2015 and the strength of the applicant’s case: see by analogy Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573; (2001) 115 FCR 197 at 199 [11] (Katz J (with whose reasons Branson and Mansfield JJ agreed)).

2.2    The further hearing on 24 February 2015 and associated orders

8    Following the hearing, I sought further clarification from the parties regarding certain issues set out in an email sent by Registry on 24 February 2015, namely, whether a further invitation to a hearing had been given after the Tribunal had vacated an earlier decision on the visa application and whether the applicant had attended that hearing. Further to that end, I called the matter back on for further submissions later that day at the time at which I had intended to publish my reasons for the orders dismissing the extension application the previous day. Those queries were answered by further documents provided by the respondent by way of supplementing the application book which established, among other things, that a further invitation to attend a hearing on 3 April 2014 had been extended by the Tribunal in a letter dated 19 February 2014. These documents were before the Court below but it had not been considered necessary for them to be included in the application book.

9    The applicant did not appear at the further hearing of his application on 24 February 2015. In the circumstances, therefore, I made orders that day granting leave to the applicant to file and serve any additional documents on which he might rely from the Court Book before the FCC, together with a short submission as to their relevance, on or before 3 March 2015. In the interim, I stayed the orders made on 23 February 2015 dismissing the application for an extension of time (which orders had not then been entered) in order to allow the applicant an opportunity to respond. No further materials were received from the applicant. Accordingly, the order made on 24 February 2015 staying the orders made the previous day which dismissed the application for an extension of time must be vacated.

3.    BACKGROUND

3.1    The application for a 485 visa

10    The applicant applied online for the 485 visa on 8 August 2011. At the time of his application, Class VC contained two subclasses, namely, 485 and 487. The Tribunal found that the completed application form indicated that the relevant subclass here was subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.214 required that, at the time of making his visa application, the applicant must have applied for an assessment of his or her skills for the nominated “skilled occupation” by a “relevant assessing authority”. The phrase “relevant assessing authority” means a person or body specified by the Minister, by an instrument in writing for the purposes of reg 2.26B(1)(a). The relevant instrument made pursuant to that regulation was “IMMI 12/068” and named “Trades Recognition Australia” (TRA) as the relevant assessing authority for the purpose of the occupation of Hairdresser.

11     Mr Singh nominated “Hairdresser” as his occupation. The applicant claimed that he had undergone a skills assessment with the TRA on 3 April 2011 and provided a reference number for the alleged assessment. His application was refused by the Minister’s delegate on 13 June 2012.

3.2    Consideration of the application in the Tribunal: procedural history

12    The somewhat convoluted history of the consideration of the applicant’s application thereafter is set out in the reasons of the Court below at [8]-[20], and need not be repeated here. Suffice it to say, the matter was remitted to the Tribunal on 15 October 2013 by orders made by consent in earlier proceedings instituted in the FCC. On 2 January 2014, the Tribunal invited the applicant to give evidence and present arguments at a hearing before it on 29 January 2014. On there being no attendance by the applicant at the Tribunal hearing, the Tribunal decided to make its decision on the review under s 362B of the Migration Act 1958 (Cth) (the Act) without taking any further action to enable the applicant to appear before it. On 29 January 2014, the Tribunal affirmed the delegate’s decision.

13    However, the Tribunal subsequently became aware that, due to an administrative error, a facsimile sent by the applicant to the Tribunal enclosing a medical certificate the day before the hearing was not received until after the Tribunal member concerned had made his decision. As a result, the Tribunal advised the applicant on 4 February 2014 that it had decided to revisit his case and a decision was accordingly made on 5 February 2014 vacating the Tribunal’s decision of 29 January 2014 and reopening the applicant’s application for review applying the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.

14    Following the “recalling” by the Tribunal of its decision, the applicant lodged an application for judicial review with the FCC. The Tribunal proceeded notwithstanding that application on the basis that it had jurisdiction to hear the matter upon the recall of its first decision.

15    On 19 February 2014, the Tribunal again wrote to the applicant inviting him to provide information under s 359 of the Act in respect of the decision to refuse to grant the 485 visa. The letter invited him to provide documentary evidence by 14 March 2014 that:

(a)    he had, at the time of the visa application, applied for a skills assessment for the nominated skilled occupation of Hairdresser by the relevant assessing authority, and had been assessed as suitable for that occupation; and

(b)    he had, since the visa application, completed a skills assessment for the nominated skilled occupation of Hairdresser by the relevant assessing authority, and had been assessed as suitable for that occupation.

16    In the letter, the Tribunal advised the applicant that he could apply for an extension of time within which to provide the information but also stated that if the Tribunal did not receive the information within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action to obtain information. It further advised that “[y]ou will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments.”

17    On the same day, the Tribunal invited the applicant to appear before it by telephone on 3 April 2014 in accordance with s 360 of the Act and, further to that end, sought confirmation of his mobile telephone number. The Tribunal also advised that if the applicant wished to appear in person before the Tribunal member who was sitting in Adelaide, he should contact the Tribunal as soon as possible. The invitation to appear further advised that the applicant should contact the Tribunal as soon as possible if he sought an adjournment for which good reasons would be required, and that, if he did not participate in the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.

18    There was no response to the invitation to provide further information by 14 March 2014, being the date specified in the letter of 19 February 2014 which extended the invitation to provide information. Nor, while no express finding is made, would it seem that the applicant appeared before the Tribunal on 3 April 2014 pursuant to the invitation to attend by letter also on 19 February 2014, as the primary judge found at [20]. This is apparent from the reliance by the Tribunal at [26] of its reasons upon s 362B of the Act to make a decision on the application for review without taking any further action to allow the applicant to appear before it.

19    On 7 April 2014, the Tribunal affirmed the decision of the delegate to refuse the grant of the 485 visa.

3.3    The Tribunal’s reasons for decision

20    While the Tribunal noted the receipt reference number and skills assessment date set out in the applicant’s visa application, it found at [36] of its reasons that:

…there is no evidence of any payment confirmation or receipt in respect of the TRA reference number above or any other evidence before the Tribunal to confirm that the applicant had in fact applied for a relevant skills assessment for the nominated skilled occupation and been assessed as suitable for that occupation. Due to this lack of evidence the Tribunal finds that at the time of visa application on 8 August 2011, the applicant had not applied for a skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore does not satisfy the requirements of cl. 485.214.

21    Furthermore, while in view of its findings at [36] it was unnecessary for the Tribunal to do so, it considered further whether the applicant had presented a suitable skills assessment by the TRA as the relevant assessing authority by the time of making its decision. In this regard, it found at [39] that:

The Tribunal finds no evidence before it that the applicant has, since the visa application, completed a skills assessment in respect of his nominated occupation of Hairdresser, the specified skilled occupation. The Tribunal finds that the applicant’s skills have not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore does not satisfy the requirements of cl.485.221(1).

22    As such, the Tribunal found that the applicant had failed to satisfy the criteria for the grant of the 485 visa.

3.4    The decision of the Court below

23    On 23 September 2014, the FCC dismissed Mr Singh’s application for judicial review summarily under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) given his failure to appear at the hearing of the application for judicial review, the inadequacy of his explanation for his nonappearance, and the lack of any merit in the application for judicial review.

4.    CONSIDERATION

4.1    The application for an extension of time within which to appeal

24    The grounds on which the applicant applies for an extension of time are set out in his affidavit affirmed on 8 October 2014 in which he deposes:

2.    There is jurisdictional error in the tribunals judgment.

3.    Federal Circuit court dismissed my case because I was sick and not able to attend hearing. MRT refused my review application stating that I don’t satisfy cl.485.214 and cl.485.221. Member asked himself question that at the time of application cl 485.214 states that applicant should have applied for skill assessment in the nominated occupation from “relevant assessing authority”    . Further it claimed that Tribunal has not received any proof that skills assessment has been applied. In my case “relevant assessing authority” for skills is Trades Recognition Australia. Tribunal failed to take into consideration that TRA is not a competent body for skills assessment. cl. 485.221 deals with skills assessment at the time of decision. Whole issue raised by tribunal was about skills assessment from TRA as tribunal failed to put weight on fact about competency of TRA so the decision made by tribunal has “Jurisdictional error”. Moreover Tribunal stated my mobile number was not reachable. Please note that I live in regional Australia and phone services are at times very bad. My mobile was switched on. If the voice message said that “mobile number is switched off or out of coverage area” then tribunal should have called again in sometime or left a txt message or a voice message for me to call back. I waited for the call and didnot get chance to provide my side.

4.    I came yesterday to court to apply for the file but I was sent back and was told to fulfil the checklist. I came today and gave same form but they accept the case. After some time told me that 14 days of my file are over and I fill form 118. I try to apply yesterday itself will all documents. Please consider my case.

25    The ground of appeal identified in the applicant’s draft notice of appeal is in the same terms as paragraph 3 of his affidavit.

26    The need for an extension of time arises by reason of the time limit imposed by r 35.13 of the FCR. Rule 35.13 states that the filing of an application which requires leave must be made within 14 days after the date on which judgment was pronounced. Mr Singh filed his application on 9 October 2014 and therefore just outside the 14 day period under the FCR which expired on 7 October 2014.

27    If an extension were granted, leave to appeal would still be necessary under s 24(1A) of the FCA Act because the decision below is interlocutory: Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 at [20]-[22] (McKerracher J) (following Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[5] (Bromberg J)).

28    As to the application for an extension of time, the delay is short and while the explanation is difficult to follow, reading between the lines it appears that the applicant attempted to file his documents on the appeal within time but that filing was initially refused as they did not comply with procedural requirements. Ordinarily, given the shortness of the delay and the applicant’s attempt to explain it, I would have made orders extending the time within which to file the application. However, in my view, as the application for leave to appeal is wholly lacking in merit, there is therefore no utility in granting an extension of time: see Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44 at [4] Thomas JA (McMurdo P and Cullinane J agreeing); Vatti v Minister for Immigration and Border Protection [2014] FCA 893 at [24] (Mortimer J).

29    The question of the utility in granting an extension of time falls to be addressed having regard to two principal constraints upon the jurisdiction of the Court.

30    First, the jurisdiction of the FCC is limited to a consideration only of the legality of the Tribunal’s decision to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, in the event that leave to appeal is granted, this Court is required on an appeal from the FCC under s 24 of the FCA Act to consider whether there is error in the decision of that Court. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant’s application for a visa.

31    Secondly, the decision of the Court below to dismiss the application under r 13.03C(1)(c) was a discretionary one. Specifically, under r 13.03C the FCC has a discretion where the applicant is absent from a hearing to dismiss the application (subr (1)(c)), to adjourn the hearing (subr (1)(a)), to order that there is not to be any hearing unless the proceeding is again set down for hearing or any other steps that the Court directs are taken (subr (1)(b)), or to proceed with the hearing generally or in relation to any claim for relief in the proceeding (subr (1)(e)).

32    The decision of the Court below being discretionary in nature, it is necessary for the applicant to demonstrate an error of the kind identified in House v R (1936) 55 CLR 499 (House v R) at 504-505 in the exercise of that discretion, 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

33    Bearing these constraints in mind, I do not consider that the grounds of appeal or a consideration otherwise of the reasons of the Court below suggests the existence of any such error.

34    First, it is apparent from the proposed ground of appeal that the applicant takes issue with the Court below having proceeded to determine the application for judicial review in his absence. The complaint would seem to be of a breach of procedural fairness. In this regard, Mr Singh had sent a fax to the FCC on the day before the hearing that stated “Hi dear sir, I am Ravinder Singh. Tomorrow is my hearing. Can you please postpone my hearing date because I sick now. Thanks” (Court below at [21]). A medical certificate was attached which certified that the applicant was unable to work from 22 to 26 September 2014, together with a copy of a prescription given on 22 September 2014 for Amoxicillin, a common antibiotic (Court below at [22]). However the Court below held that that the medical certificate was “inadequate”, finding that “[t]here is no explanation or detail provided in respect of his alleged illness. I do not know what the relevance of the prescription for Amoxcillin is” (Court below at [35]). In this regard, the primary judge adopted the statements of Davies J in MZZGY v Minister for Immigration and Border Protection [2014] FCA 488 as to the inadequacies of the medical documentation provided in that case in support of an application for an adjournment. Specifically, in the paragraph relied upon below, Davies J held that:

These documents were wholly inadequate to support an adjournment application. The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing. Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment. It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice. I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.

35    I can see no error in the reasons of the Court below in this aspect of its reasons.

36    Secondly, no error is apparent in the assessment by the Court below that there was no failure of jurisdiction by the Tribunal (at [36]). Specifically:

(a)    There is no ground on which to say that the TRA is not “competent”. The instrument made pursuant to reg 2.26B was “IMMI 12/068” and named “Trades Recognition Australia” as the relevant assessing authority for the purpose of the occupation of Hairdresser.

(b)    The applicant’s complaints about the failure of the Tribunal to reach him on his mobile phone apparently relate to his failure to attend the hearing on which the decision was made which was subsequently recalled (Tribunal reasons at [15]-[16]). That does not, however, provide a basis for finding error in the subsequent decision made on 7 April 2014 which is the operative decision.

(c)    Further and in any event, the Tribunal was expressly empowered by s 362B of the Act to decide the application without affording the applicant an opportunity to present evidence and arguments at a hearing in circumstances where he had failed to attend the hearing on 3 April 2014 to which he had been invited in accordance with s 360 of the Act. The Tribunal was also expressly empowered under s 359C(1) to decide the review application without taking any further action to obtain the applicant’s views on the adverse information in circumstances where the applicant had failed to respond within time to the invitation to provide information under s 359(2) and, upon the applicant failing to respond in the time specified, the applicant lost any entitlement to appear by operation of s 360(3) of the Act.

37    It follows from these matters that no error has been identified which might indicate, in line with the principles in House v R, that the exercise of discretion by the Court below in dismissing the application for judicial review may have miscarried.

5.    ORDERS

38    The application for an extension of time within which to seek leave to appeal must be dismissed with costs fixed in the sum of $1756.00.

Associate:

Dated:    17 March 2015