FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 1052

ORDERS

THE COURT ORDERS THAT:

1.    The Notice of Appeal filed 8 June 2016 be treated as an application for leave to appeal and as an application for an extension of time within which to make that application.

2.    The application for an extension of time, and the application for leave to appeal be dismissed.

3.    The Appellant is to pay the First Respondent’s costs in the fixed sum of $1756.00.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) (Subclass 801) visa under s 65 of the Migration Act 1958 (Cth). His application was refused by the Minister’s delegate and that refusal was affirmed by the Administrative Appeals Tribunal (the AAT) on 30 September 2015.

2    The appellant sought judicial review under s 476 of the Migration Act in the Federal Circuit Court (FC Court). His application was listed for hearing in Darwin on 20 May 2016, but the appellant, who lives in Alice Springs, did not attend the hearing either in person or by telephone. The associate of the Judge in the FC Court then telephoned the number for the appellant appearing in the Court records but the call went to “voicemail”. The FC Court Judge noted that the appellant was aware of the hearing, having been present by telephone at the hearing before the Registrar on 15 June 2016 at which the hearing date had been fixed. His Honour also noted that the appellant had not complied with any of the orders binding on him in relation to the preparation for the hearing.

3    In those circumstances, the FC Court Judge dismissed the application (Singh v Minister for Immigration [2016] FCCA 1442).

4    On 8 June 2016, the appellant, who is unrepresented, filed in this Court a notice of appeal against the judgment of the FC Court. The notice of appeal contains two grounds:

1.    The Hon Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claim and ignoring (sic) the applicant meet (sic) the criteria of partner visa.

2.    The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

5    The first respondent (the Minister) has filed a notice of objection to the competency of the appeal. He contends that the dismissal of the application in the FC Court was an interlocutory judgment so that an appeal lies against it only with leave, relying on s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Leave to appeal has neither been sought nor granted.

6    The resolution of the Minister’s contention requires consideration of the basis upon which the FC Court Judge dismissed the application in that Court. Rule 13.03C of the Federal Circuit Court Rules 2001 (Cth) (FCCR) provides for the way in which the FC Court may proceed if a party does not attend at the hearing:

13.03C    Default of appearance of a party

(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:

(a)    adjourn the hearing to a specific date or generally;

(b)    order that there is not to be any hearing, unless:

(i)    the proceeding is again set down for hearing; or

(ii)    any other steps that the Court directs are taken;

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

(d)    if the absent party is a party who has made an interlocutory application or a cross claim—dismiss the interlocutory application or cross claim;

(e)    proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2)    If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non compliance with the order, that the Court thinks just.

7    Although the FC Court Judge did not say so expressly, I think that it is a reasonable inference that the Judge proceeded pursuant to r 13.03C(1)(c) when he dismissed the application. There were, of course, other means by which the FC Court Judge may have dismissed the application, but these would have required additional findings which the Judge did not make or additional reasons which the Judge did not give.

8    One thing is clear: the FC Court Judge did not embark on a consideration of the grounds of the application for judicial review and it is plain that his Honour did not determine the application by reference to its merits.

9    A decision to dismiss an application on account of an applicant’s failure to attend a hearing is interlocutory in nature because it does not determine finally the rights of the parties: SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 at [17].

10    Accordingly, I uphold the Minister’s submission that leave is required for any appeal to this Court from the decision of the FC Court on 20 May 2016. This means that the appellant’s notice of appeal, which is presented as an appeal as of right, is incompetent.

11    Despite this, the Minister accepted that it would be appropriate for this Court to treat the notice of appeal as if it were an application for leave to appeal and for an extension of time in which to do so. The extension is required because the 14 day period fixed by r 35.13 of the Federal Court Rules 2011 (Cth) expired on 3 June 2016 and, as I have already noted, the appellant did not file his notice of appeal in this Court until 8 June 2016.

12    The principal matters to which the Court has regard when considering an application to extend time are the period of extension sought, the explanation for the proceeding not having been commenced in time, the possible prejudice to the respondent if the extension is granted, and the prejudice to the applicant if the extension is refused: Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348-9; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [45].

13    In the present case, the period of extension sought by the applicant is short, and the Minister does not assert that he would suffer any prejudice if the extension is allowed. The appellant did commence the appeal within the 21 day period fixed for the commencement of appeals, and it is understandable that he may have overlooked the shorter limitation period for the filing of applications for leave to appeal.

14    Accordingly, the principal consideration bearing upon the application for an extension of time is the prejudice which the applicant may suffer if the extension is refused. This requires consideration of the merits of the application for leave to appeal.

15    On applications for leave to appeal of the present kind, the Court has regard to two broad considerations. The first is whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant it being reconsidered on appeal. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. Generally speaking, leave to appeal is granted when the applicant has a reasonably arguable case that the decision is affected by appealable error, and a grant of leave is necessary to remedy a substantial injustice: CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5]; (2010) 183 FCR 358 citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; [1991] FCA 655.

16    In my opinion, the appellant has difficulty in satisfying each of these elements.

17    A decision of the FC Court pursuant to r 13.03C(1)(c) of the FCCR involves an exercise of a discretion: Singh v Minister for Immigration and Border Protection [2015] FCA 223 at [31]. This means that the appellant must demonstrate an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40, that is, that the FC Court Judge acted on some wrong principle, or that he allowed extraneous or irrelevant matters to guide or affect him, or that he mistook the facts, or that he did not take into account some material consideration, or even that if no particular error can be identified, the decision is so plainly unreasonable or unjust that it must have been affected by some error. The appellant does not identify any error of these kinds.

18    It is undisputed that he did not attend the hearing in the FC Court on 20 May 2016, that he had not provided the FC Court with any explanation for his failure to do so, and that there had been no extrinsic indications suggesting an intention on his part to participate in the hearing. On the contrary, the appellant’s non-compliance without explanation with the Registrar’s orders was consistent with him having no interest in pursuing the application. Accordingly, there is no arguable basis upon which it might be concluded that the exercise of the discretion by the FC Court Judge was wrong.

19    In relation to the second element, it does not seem that the applicant will suffer prejudice of the requisite kind if leave to appeal is refused. That is because it remains open to him, as counsel for the Minister submitted, to apply to the FC Court pursuant to r 16.05(2)(a) of the FCCR to have the order of dismissal set aside: see eg Kaur v Minister for Immigration and Border Protection [2014] FCA 188; (2014) 140 ALD 350 at [6].

20    It is appropriate that the appellant make an application pursuant to that rule if he wishes to pursue the matter, as the appropriate place in which a first instance judicial review pursuant to s 476 of the Migration Act should occur is the FC Court, and not this Court: SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [19] and [21].

21    For these reasons, I accept the Minister’s submission that the appellant will not suffer prejudice of the requisite kind if leave to appeal is refused.

22    In summary, although the period of extension of time sought by the applicant is short, and the Minister would not suffer prejudice if the extension is allowed, the appellant has not established that an extension of time is appropriate. That application is refused.

23    That makes it unnecessary to consider the implications of an error in the reasons of the AAT of the kind to which the Full Court referred to in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 at [22] and [59].

24    The order of the Court, is first, that the notice of appeal, filed in this Court on 8 June 2016, be treated as an application for leave to appeal, and as an application for an extension of time in which to make that application and, secondly, that both applications be refused.

Associate:

Dated:    29 August 2016