FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2018] FCA 198

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time and for leave to appeal filed 27 October 2017 be dismissed.

2.    The applicant pay the respondents’ costs of the appeal in an amount fixed at $1,756.00.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    There are, effectively, two applications before the Court. The first is an application by Mr Singh for leave to appeal from a decision of the Federal Circuit Court of Australia (the FCC) which, by judgment dated 26 October 2017, refused an application by Mr Jasvinder Singh (Mr Singh) for reinstatement of his proceeding. That action had been dismissed for non-appearance on 2 October 2017. The substance of Mr Singh’s claim before the FCC was for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which had affirmed the decision of the Minister for Immigration and Border Protection (the Minister) not to grant him a skilled provisional visa.

2    On 2 October 2017, the matter had been called on before the FCC for the hearing of a show cause application in the context of Mr Singh’s application to review the decision of the Tribunal. It does not appear to be in doubt that Mr Singh was aware of the hearing date and time for the hearing. However, however, shortly prior to that date Mr Singh sent an email to the solicitors appearing for the Minister seeking an adjournment. The Minister’s solicitors advised Mr Singh that the Minister did not consent to the matter being adjourned. When the matter was called on for hearing at the FCC at the appointed date and time Mr Singh did not appear. The learned Circuit Court judge concluded that as no proper basis for an adjournment existed an order was made pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) dismissing the as a result of the non-appearance.

3    In the present matter Mr Singh also seeks to appeal the decision made on 2 October, however, the time limit for making such an appeal lapsed prior to any appeal being lodged. He therefore requires and extension of time in which to make that appeal. That is the second application before the Court. It should also be noted that the decision of 2 October 2017 was also an interlocutory judgment such that leave is required to appeal it.

4    On 26 October 2017, Mr Singh made an application to the FCC to reinstate his proceedings by seeking an order that the orders made on 2 October 2017 be set aside. In support of his application he filed an affidavit in which he set out his reasons for non-attendance. In particular, he claimed that he was depressed because his mother, who resided in India, was seriously ill in hospital. He apparently also sent to the trial judge’s chambers a number of medical certificates in respect of a person identified as Kuldeep Kaur. That was apparently a reference to Mr Singh’s mother. However, the medical certificates did not identify that the patient in question had any serious medical issues and they did not explain why Mr Singh was unable to attend Court on 2 October 2017.

5    Before the learned primary judge Mr Singh claimed that, as at 2 October 2017, he was suffering from depression and, for that reason, he could not attend court to present his claim. As the primary judge observed, there was no medical evidence to the effect that he was suffering from depression or that it affected his ability to attend Court. He had also suggested that he might have had to return to India in early October to attend on his mother, however, it is apparent that he did not do so.

6    In the result the FCC dismissed the application to set aside the earlier decision dismissing his action. That was an interlocutory decision and, as a result, Mr Singh requires leave to appeal from that decision.

The non-appearance of the applicant

7    When the matter was called on this afternoon there was no appearance by the applicant, Mr Singh. The matter was called three times outside the door of the Court and still there was no appearance. There is no reason to believe that Mr Singh was not aware of the date and time set for the hearing of his applications. Correspondence from the solicitors for the Minister to the applicant indicates that he was informed that the matter was to be heard today at 2:15pm. It is also not irrelevant to note that he has no filed submissions in accordance with the directions of the Court.

8    The respondent moved for judgment under, inter alia, r 35.33 of the Federal Court Rules. In exercising the discretion under that rule it is not inappropriate to consider whether the applicant has any merits to his application and, indeed, to the underlying claims and I proceed to do so.

Background to the proceedings

9    The applicant is a citizen of India and on 24 November 2015 he applied for a Skilled (Provisional) Subclass 485 visa. Pursuant to cl 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth), it was a requirement for the granting of that visa that the applicant provide satisfactory evidence of his English language ability. Pursuant to instrument IMMI15-062 (English Language Tests, Scores and Passports 2015 (cl 476.213 and cl 485.212)) an applicant might satisfy the English requirements by providing international English language testing system results (IELTS test results). The identified instrument commenced on 18 April 2015 and was in force on the date on which the applicant applied for his visa.

10    Instrument IMMI15-062 required that the satisfactory test results necessary for the granting of a visa were a minimum overall score of 6 and a minimum score of 5 for each component of the test. Moreover, the instrument required that the IELTS test be undertaken within three years prior to the date on which the visa application was lodged.

11    In the present case, on his visa application the applicant acknowledged that he had not undertaken the IELTS tests in the three year period prior to the lodging of his visa application. For that reason the delegate refused the application as it appears he was bound to do.

12    In relation to his application before the Tribunal, the applicant was invited to a hearing which occurred on 22 November 2016. At that hearing he advised the Tribunal that he was booked to sit an IELTS test on 26 November 2016. On that basis, he asked that the Tribunal defer its determination until the test results were known. In response, he was informed that the instrument required that the IELTS test be undertaken in the period three years prior to the visa application being lodged.

13    It should be noted that Mr Singh asserts that he contacted a case officer on 14 December 2016 and was told that he could send the IELTS test results to the Tribunal at any time up until a decision was made.

14    Later that day Mr Singh sent to the Tribunal his IELTS test results which he had apparently obtained from sitting the test again on 26 November. They indicated that he had an overall score of 5 and that he scored 4.5 in reading, 5.0 in writing and 5.5 in listening and speaking.

15    Subsequently the Tribunal determined that Mr Singh had not met the English language requirement for a Skilled (Provisional) Subclass 485 visa. In particular, he did not meet the requirements of the IMMI15-062 instrument which permitted satisfaction of the language requirements by the provision of the IELTS test results. That was for two reasons. First, because no test had been undertaken in the three year period prior to the day on which the visa application was made. The test results originally provided to the Tribunal were more than 36 months old at the time of the making of the visa application. Second, because none of the test results produced by Mr Singh achieved the scores required by the instrument.

Hearing before the Federal Circuit Court on 2 October 2017

16    On 28 September 2017, being a few days prior to the date set for the hearing of Mr Singh’s application before the FCC, Mr Singh sent to the solicitors for the Minister, and copied to the Court, a request to have the hearing adjourned on the basis that he was suffering from depression as a result of his mother having been admitted to hospital in India and that he was proposing to travel there on either 2 or 3 October. The Court advised Mr Singh by email that without the consent of all parties the matter would proceed on 2 October.

17    The matter came on for hearing on 2 October 2017. Mr Singh did not attend and his application for review was dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules.

The application for reinstatement of the proceedings

18    On 16 October 2017, Mr Singh filed an application seeking to set aside the orders made on 2 October 2017. In support of that application he filed an affidavit containing various information and correspondence with the Minister’s solicitors and to the Court. He further forwarded to the Court via email a number of documents purporting to be medical certificates relating to the health of his mother.

19    The application for reinstatement was heard by the FCC on 26 October 2017. At the hearing Mr Singh was not able to advance any comprehensible argument raising any jurisdictional error by the Tribunal. In effect, he sought that the Court grant him an additional two months to study so that he could undertake a further IELTS test so that he might satisfy the requirements of the IMMI15-062 instrument.

20    Mr Singh claimed before the primary judge that he was entitled to lodge any new IELTS test results up until the time that the Tribunal made its decision as a result of being told so by someone from the Department of Immigration. Her Honour found that if that had been said to him it may, potentially, have been misleading. However, even if it were said, it would not change the requirements of the instrument which regulated the granting of the visa. Indeed, the Tribunal had informed Mr Singh that IELTS test had to be undertaken within three years prior to the visa application. It is apparent that he understood this. Moreover, it should be emphasised, that even if he were misinformed, he was not able to provide adequate test results prior to the Tribunal’s decision. This was recognised by the primary judge.

21    Before the learned Federal Circuit Court judge, the applicant also sought to assert that he had been given the wrong guidance during his visa application process. There was, however, no real evidence of that, and additionally, it was not a matter raised with the Tribunal. The primary judge correctly found that no jurisdictional error could arise from that matter.

22    Mr Singh also claimed that other applications for 485 visas have been allowed in the past when the English language test was undertaken after the visa application was lodged. There was no evidence to support that assertion. However, it may well have been that such applications were made under the regulatory regime of other instruments which contained different regulations. In the present case, the instrument in question is clear and Mr Singh has not satisfied its requirements. The learned primary judge correctly rejected this submission.

23    The learned Federal Circuit Court judge concluded that there was no arguable basis upon which it could be said that the Tribunal had made a jurisdictional error. It had granted the applicant procedural fairness and appears to have correctly applied the law. It was concluded that there was no other decision that the Tribunal could have made in the circumstances.

24    That alone, was a sufficient reason to refuse the application for reinstatement of the proceedings. However, the learned Federal Circuit Court judge also added that no good explanation for the applicant’s non-attendance at Court on 2 October 2017 was provided. In the absence of any medical evidence that he was unable to attend, it was not possible for the Court to accept the applicant’s excuse for his non-attendance.

25    On 27 October 2017 Mr Singh filed an application for an extension of time in which to appeal the decision of 2 October 2017 and leave to appeal the decision of 26 October 2017.

Consideration

The substance of the appeal to this Court

26    It is appropriate to firstly consider the merits of the appeal were leave to be granted to appeal from the decision of 2 October 2017 which dismissed the application for review before the FCC, even though it is a necessary precondition that the applicant show that that some reason exists for extending time in which to appeal.

27    On the hearing of the appeal, the applicant has provided no further additional argument which might have influenced the decision below in his favour. Importantly, the applicant has not identified any error made by the learned Federal Circuit Court judge in reaching the conclusion which her Honour did. On the material before the Circuit Court, it was apparent that the Tribunal had made the correct decision. Indeed, it was the only decision which the Tribunal could legitimately have made. The IMMI15-062 instrument required, inter alia, the applicant have satisfactory IELTS test results within six months of making the application for the visa. That necessary requirement had not been fulfilled with the result that Mr Singh did not meet the prerequisites for the granting of the visa. In those circumstances, the prospects of a successful review of that decision were nil. That, alone, was a sufficient basis for rejecting the application.

28    The applicant has provided a draft notice of appeal although it does not appear to identify the substance of any sustainable ground concerning the decision of the FCC. The draft grounds are mere assertions and the applicant has not filed any outline of argument which might provide some substance to those assertions. The short point is that the Tribunal had no authority to grant the visa sought by Mr Singh as he did not meet the criteria required by the IMMI15-062 instrument.

29    In addition, there is nothing to suggest that the learned judge below wrongly exercised her discretion in summarily dismissing the application. Mr Singh had been advised of the time and date for the hearing and, after he had requested an adjournment and that request had been refused, he did not attend at the hearing. If he had medical reasons for not attending he ought to have advised the Court of that and provided evidence. He did not do so. Litigants, even those who represent themselves, are not entitled to deliberately disregard the time and dates prescribed by the Court for the hearing of matters.

30    The failure of Mr Singh to attend at the hearing on 2 October 2017 was also a sufficient reason, in the circumstances, to dismiss the application.

Application for the extension of time

31    The application for an extension of time appears to proceed on the basis that the decision of 2 October 2017 was an interlocutory judgment. For the purposes of this application I will assume that the judgment dismissing the application for non-appearance is interlocutory. The parties seem to accept this because the order of 2 October 2017 was a summary dismissal of the proceedings by reason of the applicant’s non-appearance (see SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391 [32] – [33]). It should be mentioned that, in the circumstances of this matter, that is somewhat irrelevant as, given the above, there are no prospects of success on the substantive appeal in any event.

32    On that basis an appeal, or more correctly an application for leave to appeal, needed to be filed within 14 days from the pronouncement of judgment. That did not occur and the applicant is 11 days late in making the application.

33    On the application for the extension of time the established authorities (see generally SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 [6] per Flick J) indicate that the Court’s untrammelled discretion to extend the time in which to appeal should take into account, at least, the following matters:

(a)    Whether there is an acceptable explanation for the delay;

(b)    The length of the delay;

(c)    The merits of the proposed appeal; and

(d)    Any prejudice to the respondent (although the mere absence of prejudice is not sufficient).

34    In this matter there has been no explanation provided for the delay in bringing on the appeal. That said, it appears that Mr Singh considered that the appropriate way to advance his matter was to seek to have the order dismissing his application set aside. That is not surprising in the case of unrepresented litigants, though such persons are required to comply with the rules in any event. Nevertheless, his conduct does evidence his intention to advance his cause and negates the suggestion that he had lost interest in it.

35    The length of the delay is not great and it is not likely that the Minister has suffered any prejudice by reason of the delay. The minor delay and absence of prejudice might have carried more weight were it not for the absence of any real explanation for the failure to make the application within time. In addition it is necessary to keep in mind the public interest in there being an end to litigation and ensuring the efficacy of the decisions of the Tribunal.

36    The essential difficulty in the present matter is that it is apparent that there are no merits in Mr Singh’s application. Even if the matter were returned to the Tribunal it would be bound to make the same decision given that Mr Singh is not able to satisfy the English language requirements of the IMMI15-062 instrument. That being so, there is no possibility of Mr Singh establishing the existence of a jurisdictional error warranting the setting aside of the Tribunal’s decision.

The application for leave to appeal

37    The applicant also seeks leave to appeal from both decisions. The principles in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 require that an applicant for leave must satisfy the following two cumulative requirements:

(a)    That the decision below is attended with sufficient doubt to warrant it being revisited on appeal; and

(b)    Substantial injustice would result if leave were refused, supposing that the decision would be wrong.

38    For present purposes it is sufficient to identify that in relation to the decisions of 2 and 26 October 2017, Mr Singh is not able to satisfy this Court they are attended with doubt sufficient to warrant them being revisited on appeal.

39    The decision of 2 October has been considered above. As identified, no error has been shown to exist in relation to the FCC’s determination to summarily dismiss the application for review. Indeed, it seems to have been entirely correct. In particular, the absence of any substance to the merits of the application for review of the Tribunal’s decision, would appear to be decisive.

40    With respect to the decision of 26 October 2017, there also does not appear to be any reason to think that it is attended with any sufficient doubt to warrant the reconsideration by the Court. The Court examined the possible grounds of review alleged to exist in relation to the application to review the Tribunal’s decision and identified that none were sustainable. As has been indicated above, there seems to be no doubt as to the correctness of this.

41    Further, the learned Federal Circuit Court judge was also entitled to refuse the application on the basis that no sufficient explanation had been provided for Mr Singh’s failure to appear on 2 October 2017. To the extent to which any explanations were provided, they were both inadequate and, to some extent, contradictory.

42    It follows that Mr Singh has no reasonable prospects of succeeding on his application for review of the Tribunal’s decision and no reasonable prospects of successfully appealing the decisions of the FCC. He has not raised any possible argument evidencing an error in the learned Federal Circuit Court judge’s reasons. Indeed, those reasons appear to be entirely correct. For that reason his applications must fail.

Conclusion

43    It follows that the application for an extension of time in which to appeal must be dismissed, as should the application for leave to appeal.

44    The applicant must pay the respondents’ costs of the applications.

Associate:

Dated:    28 February 2018