FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2017] FCA 231

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 30 August 2016 be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    The applicant seeks an extension of time and leave to appeal against a decision of a Judge of the Federal Circuit Court, in which the primary Judge dismissed an application for reinstatement of a proceeding in that Court. The proceeding the applicant had sought reinstated in the Federal Circuit Court was an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had, in turn, affirmed a decision of a delegate of the Minister to refuse to grant the appellant a student visa under s 65 of the Migration Act 1958 (Cth).

Background

2    The applicant is a citizen of India. On 15 April 2013 the applicant applied to the Department of Immigration and Citizenship for a Student (Subclass 570) visa to undertake study in Australia. At that time the applicant already held a Student Dependant (Subclass 572) visa on the basis of his relationship with his wife, the primary visa holder. The terms of the applicant’s visa at that time required him to continue to be a “member of the family unit” of his wife.

3    In summary, the delegate found that the applicant had ceased to comply substantially with the requirements of his Subclass 572 visa because during the term of that visa the spousal relationship between the applicant and his wife had broken down, and the applicant had therefore ceased to be a member of the family unit of the primary visa holder. On that basis, the delegate refused the applicant’s application for the Subclass 570 visa.

Tribunal decision

4    Despite an invitation by the Tribunal to the applicant to provide it with material or written arguments he wished the Tribunal to consider, the applicant failed to provide such material or arguments. Further, neither the applicant nor his migration agent appeared at the Tribunal hearing on 27 October 2014. Although there was possibly an issue concerning the misspelling of the applicant’s street address in Tribunal correspondence to him, the Tribunal was satisfied that the applicant had been provided opportunities to submit material, and had been properly informed of the Tribunal hearing date.

5    The Tribunal proceeded to make a decision on the basis of the material before it. It noted that the issue before the delegate was whether the applicant met the criterion in cl 570.235 of Sch 2 to the Migration Regulations 1994 (Cth), that is whether he had complied substantially with the terms of his existing visa, but noted further that the relevant legislation imposing that criterion had been repealed before the matter came before the Tribunal. The Tribunal observed that it could consider the applicant’s application for a Subclass 570 visa in terms of whether he was a “genuine student”, and noted that the applicant had applied for this visa on the basis of enrolment in certificate III and certificate IV courses, the last of which ended in May 2014. The Tribunal observed however that the applicant had not provided evidence to the Tribunal of current enrolment or current offer of enrolment in any relevant course of study.

6    Finally, the Tribunal noted that there was no evidence that the applicant met the criteria for any other relevant visa.

Federal Circuit Court proceedings

7    On 10 March 2015 the applicant filed an application for judicial review of the decision of the Tribunal in the Federal Circuit Court. The applicant failed to appear at the scheduled Court hearing on 23 May 2016 and the application was dismissed.

8    Subsequently the applicant filed an application in a case seeking the reinstatement of the proceeding, claiming that his failure to attend previously was attributable to illness. At the hearing of the application for reinstatement the applicant appeared in person.

9    In relation to his non-attendance on 23 May 2016 the applicant relied on a medical certificate dated 22 May 2016 which stated that he:

… will be unfit for normal duties for the period 22/05/2016 to 23/05/2016 inclusive.

10    The primary Judge found that the applicant’s explanation for his non-attendance at the Court hearing was inadequate.

11    In relation to the substantive application the primary Judge observed:

18.    The application to this court was apparently prepared without the benefit of legal assistance. The applicant appeared today without legal representation. He did not file any written submissions. The grounds of the application largely recount the history of the matter and say that the applicant believes the Tribunal made an error of law. However, no particulars are given of that alleged error of law.

19.    The Tribunal does appear to have properly applied the relevant criteria before it. There was no evidence at the time of the Tribunal’s decision that the applicant was enrolled in a relevant course. The conclusion that the applicant did not meet the relevant visa criteria seems to have been unavoidable.

12    The Judge considered that the Tribunal had afforded the applicant procedural fairness in inviting him to provide material and arguments and that no issue of fairness arose in relation to the delivery of Tribunal correspondence to the applicant. Her honour next considered whether an issue of procedural fairness arose because the Tribunal had decided the case on a different basis to that on which the delegate decided the case. Her honour observed:

21.    … However the Tribunal decided the case on the basis that the applicant did not meet the basic criteria for the visa. The letter dated 23 September 2014 asked the applicant to provide a current certificate of enrolment, or an offer of enrolment,

… as required for the grant of a student visa.

22.    In my view, this was probably sufficient to alert the applicant to the issue on which the decision would turn. In addition, I note that the applicant had a migration agent for 11 days prior to the scheduled hearing. In these circumstances, I do not consider that there was an arguable denial of procedural fairness in relation to the issue on which the decision would turn.

13    Her honour concluded that there was no basis for arguing a viable ground of jurisdictional error on the part of the Tribunal. That, combined with the inadequacy of the applicant’s explanation for his non-attendance in the Federal Circuit Court on 23 May 2016, supported a finding that it would not be appropriate or in the interests of the administration of justice to reinstate the proceeding.

Application in this Court

14    The decision of the Federal Circuit Court to dismiss the applicant’s application for reinstatement was made on 12 August 2016. On 30 August 2016 the applicant filed in this Court an application for extension of time and leave to appeal the primary decision. It is not in dispute that the applicant was four days out of time to file a notice of appeal.

15    The grounds of the application were as follows:

1.    My appeal for FCC of Australia was dismissed.

2.    I was told by legal aid in Springvale and was advised that I have 21 days to appeal. This conversation was over the phone and as I have no income and was not able to afford any legal services.

3.    I have a friend of mine who is also in similar situation also advised that I would have 21 days to lodge any further appeal.

4.    Since my application has been dismissed I have not been well. I have been under enormous amount of stress and anxiety and due to no work and no money I have been sitting inside my room not doing anything. I have asked my parents in India to send me some funds so I could seek legal advise and get a representation at Federal Court.

5.    I would like to request to Federal Court that please accept my application for extension of time and allow me chance to fight this matter at Federal.

6.    I would also request FC that if this information was mentioned on the orders made by the FCC on 12th August, this would not have happened.

(errors in original.)

16    The applicant also filed an affidavit in support of his application. So far as I can ascertain no draft notice of appeal was filed by the applicant, and no written submissions have been filed by the applicant in respect of his application in this Court.

17    When the matter was called yesterday there was no appearance by the applicant. I note further an affidavit affirmed by Mr Cunynghame for the Minister, in which Mr Cunynghame gave evidence to the effect that the applicant had left Australia, was currently off-shore, and currently held no valid visa in Australia.

18    At the hearing Mr Cunynghame submitted that it was open to the Court to dismiss the application for want of prosecution by the applicant. I accept that this is the case, however I also consider it possible to deal with the application on its merits based on the material before the Court. To that extent I note:

    Not only was the applicant out of time in filing his notice of appeal, he required leave to appeal because the decision of her Honour the primary Judge to refuse reinstatement of the proceeding was clearly interlocutory (s 24(1A) Federal Court of Australia Act 1976 (Cth)).

    In determining whether to grant an extension of time in which to file a notice of appeal, the Court will consider whether there was an acceptable explanation for the delay, whether there would be undue prejudice to the respondent if the court were to grant leave, and whether there was merit in the prospective appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

    In determining whether to grant leave to appeal from an interlocutory decision the Court should be satisfied that:

1    in all the circumstances, the judgment of the primary judge was attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

1    substantial injustice would result if leave were refused, supposing the decision was wrong: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397.

19    The applicant is a foreign citizen and a litigant in person, and it may be that he was confused about the date by when he was required to file his notice of appeal. I also note that the Minister concedes that the applicant was only four days out of time in seeking to file his notice of appeal, and it is difficult to see that the Minister is prejudiced by that short length of time.

20    Further, I consider it likely that substantial injustice would be caused to the applicant if the primary decision was wrong and leave to appeal were refused.

21    The applicant’s case fails when I turn to consider the merits of his proposed appeal, which is a relevant factor in both his applications for extension of time and leave to appeal. In the circumstances of this case, the applicant has not articulated any basis upon which the decision of her Honour below was incorrect, or any basis upon which the Tribunal may have fallen into jurisdictional error. While there appear to have been minor irregularities in the decision making process, in particular the different bases of decision of the delegate and the Tribunal, and the suggestion that there may have been misspelling in the address to which material was sent to the applicant by the Tribunal, these matters were considered comprehensively by her Honour. I am unable to find any fault in the reasoning process of the primary Judge, and in the absence of error identified by the applicant I consider that granting an extension of time and leave to appeal would be futile.

22    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    8 March 2017