FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2019] FCA 633

ORDERS

THE COURT ORDERS THAT:

1.    The time within which to apply for leave to appeal from the orders of the Federal Circuit Court made on 17 July 2018 is extended to 24 August 2018.

2.    Leave is granted to appeal from the orders made by the Federal Circuit Court on 17 July and 22 August 2018.

3.    The appeals against the orders of 17 July 2018 and 22 August 2018 are allowed.

4.    The application for reinstatement is remitted to the Federal Circuit Court, and if granted, the appellants’ applications for judicial review of the Tribunal’s decision is to be determined by the Federal Circuit Court.

5.    The appellants pay the first respondent’s costs of this appeal.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The appellants apply for an extension of time in which to seek leave to appeal from orders of the Federal Circuit Court of Australia dismissing their application for want of appearance, and further seek leave to appeal from later orders dismissing their application for reinstatement. The present applications arise from a proceeding in which the appellants sought judicial review in the Circuit Court of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister of Immigration and Border Protection, to refuse to grant the second appellant a Student Temporary (Class TU) (Subclass 500) visa.

Background

2    On 10 March 2017 each of the first and second appellants applied for the visa. The first appellant’s application was made solely on the basis that he was the spouse of the second appellant and is therefore dependent upon the substantive application of the second appellant.

3    The Minister was satisfied that the second appellant met the study requirements for the visa. However, he was not satisfied that she met the requirements in s 65 of the Migration Act 1958 (Cth). Section 65 requires, inter alia, that after considering a valid application for a visa the Minister cannot grant the visa if not satisfied the ‘other criteria’ prescribed by the Act or Migration Regulations 1994 (Cth) are met. Public Interest Criteria (PIC) 4020(1), being cl 4020(1) of Schedule 4 to the Regulations, requires that a visa application not be granted unless there is “no evidence before the Minister that the applicant has given … a bogus document or information that is false or misleading in a material particular in relation to the application”.

4    The visa application required the second appellant to answer yes or no to whether she had ever been convicted of an offence in any country, to which she answered, “no”. This statement was false as she had been convicted on 23 February 2017 of two offences in the Magistrates’ Court of Western Australia in Perth. Accordingly, the Minister found she did not meet the requirements of PIC 4020(1).

5    Clause 4020(4) of the PIC provides that the requirements of the clause may be waived if there are compelling or compassionate circumstances to do so. The Minister was not satisfied that grounds existed to waive the requirements. Accordingly, the Minister could not grant the second appellant’s visa.

6    On 4 July 2017, the Minister refused to grant the second appellant’s visa application. As a consequence, the first appellant’s visa application also failed.

7    The appellants sought merits review of the Minister’s decision in the Tribunal. On 9 November 2017 the Tribunal affirmed the Minister’s decision.

8    The appellants applied to the Circuit Court for judicial review of the Tribunal’s decision. The application was listed for hearing on 17 July 2018. However, the appellants did not appear to prosecute their appeal. The primary judge dismissed the application for want of appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

9    The appellants applied for reinstatement of their proceeding. The application for reinstatement was listed for hearing on 22 August 2018. Again, the appellants did not appear. The primary judge dismissed the application also for want of appearance, on this occasion under rule 13.03C(1)(d) Circuit Court Rules.

Application to this Court

10    On 24 August 2018 the appellants filed an Application for Extension of Time and Leave to Appeal to this court, together with an accompanying affidavit by the second appellant in accordance with rule 36.05(3)(c) of the Federal Court Rules 2011 (Cth).

11    The grounds of the applications are as follows:

“1.    The learned Judge twice dismissed the matter for non-appearance pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 on the first occasion and rule 13.03C(a)(d) on the second occasion.

2.    In doing so the learned judge erred in law and therefore fell into jurisdictional error by not affording the Applicants procedural fairness and/or natural justice insofar as;

    i) Summarily dismissing the review application;

    ii) Not conducting or allowing a full and final hearing;

    iii) Denying the Applicants a chance to present their arguments;”

(Errors in original)

12    It is apparent from the above description of the procedural history that the appellants’ failure to attend before the Circuit Court to prosecute their applications on two occasions is the cause of their present predicament. As a consequence, their applications for judicial review of the Tribunal’s decision have not been considered, at least not with the benefit of any submissions they may wish to make. Due to the appellants’ failure to attend and prosecute their applications, they have created a further hurdle which they must now overcome, namely to show why their applications should be reinstated.

13    I have concluded that the appellants should be given the opportunity to persuade the Circuit Court that their applications should be reinstated. I propose to put the appellants back in the position they would have been in had they appeared on the application to reinstate their applications on 22 August 2018. To achieve this, I shall grant the extension of time in which to seek leave to appeal from the orders made on 17 July 2018, allow the appeal from those orders, as well as the orders made on 22 August 2018, on the basis that the appellants’ applications for reinstatement of their proceedings in the Circuit Court be remitted to the Circuit Court. If the application for reinstatement is granted, the applications are to be determined by the Circuit Court.

consideration

14    In my view the first respondent was properly entitled to oppose the appeal.

15    Notwithstanding that the appellants have been successful in the result, they should pay the first respondent’s costs of the appeal. This appeal would have been unnecessary but for their failure to attend and prosecute their proceedings in the Circuit Court. Accordingly, in my view, the usual approach of awarding costs in favour of the successful party should not be adopted in this instance.

Extension of time and leave to appeal

16    The factors to be considered in deciding whether an extension of time should be granted are well settled; the extent of the delay and any explanation for it, prejudice the respondent might suffer, and the merits of the proposed appeal are the essential considerations. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243 at 246-247; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

Prejudice to the Minister

17    The Minister does not contend there is any prejudice to him due to the delay in filing this application.

Extent of delay and explanation

18    Rule 35.13 of the Rules provides that applications for leave to appeal must be filed with 14 days of the date on which the order was made. The appellants filed their application 24 days out of time with respect to the 17 July 2018 orders. This is a relatively short delay. However, that being said, the time limits prescribed by the Rules are not to be treated as “mere aspirational guidelines”: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3] per Derrington J. In the circumstances, I do not consider that the delay alone is sufficient to refuse the application for an extension of time, nor that the delay considered together with the other factors I have mentioned is sufficient to refuse the application.

Merits of the proposed appeal

19    It is well established that an extension of time, even for a short period, may be refused if an appeal has no prospect of success: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J, and the cases there cited Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

20    The grounds generally applicable when considering whether leave to appeal should be granted are also well established. They are:

(1)    whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration; and

(2)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 at 38 Ryan, Stone and Jagot JJ; citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

21    The above dichotomy is a useful analytical guide to the approach to be taken when considering an appeal from an interlocutory decision. In relation to the second of these, the practical finality of a refusal to grant leave (in this case with the result that the appellants will be deprived of any opportunity to advance their proceeding in the Circuit Court concerning the lawfulness of the Tribunal’s decision), has been recognised as readily meeting the description of substantial injustice, supposing the decision in question is wrong: ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16, at [6] per Perram J.

22    However, in circumstances such as these, where the primary judge acted as may be expected upon the power conferred by rule 13.03C of the Circuit Court Rules, the first element, namely whether the first instance decision is attended by sufficient doubt to warrant its reconsideration, is more problematic for the appellants.

23    Having regard to the power conferred by rule 13.03C, and given the appellants did not appear, it would be inconsistent with that express power to conclude, without more, that the decision to dismiss the application on the grounds mandated by that rule is attended by sufficient doubt to warrant reconsideration of the decision.

24    Generally, the question of whether the decision at first instance is attended by sufficient doubt requires an analysis of the reasons given at first instance. Whether an interlocutory decision may be impugned requires the identification of reasons of the kind identified in House v The King (1936) 55 CLR 499 at 505. However, the question of whether the decision at first instance is attended by sufficient doubt to warrant reconsideration is not limited to an analysis of the reasons given at first instance. While generally it is to be expected that an appellant demonstrate an error of the kind falling within the class of error recognised in House v The King manifest from the reasons at first instance, errors falling within the established class may be identified from facts extraneous to the reasons. There may be extraneous facts or circumstances of which the court at first instance was not aware. Those facts or circumstances may lead to a conclusion that the decision, through no error or oversight on the part of the judge at first instance, is nevertheless attended by sufficient doubt to warrant reconsideration: ALQ17 at [17] per Perram J.

25    It is well settled that in the case of discretionary decisions an appellate court must not impose its own preference for a different result over that favoured by the judge at first instance. Norbis v Norbis (1986) 161 CLR 513. In Norbis, Mason and Dean JJ (at 519) said: “…the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.” However, the error need not be one of the judge’s making. The error may be the result of an error or omission on the part of the appellant, or his legal advisors, or the result of a miscommunication or some other oversight. If such an error occurs, as it so often does, the risk of injustice may arise. In my opinion, it does not matter whether that risk arises from an analytical error on the part of the judge, or for some other reason. How so ever the error arises it should be corrected if that is what is required to avert the risk of injustice.

26    The intervention of the appellate court where such error has been identified does not involve a substitution of the preference of the appellate court for the result favoured by the judge. The well-established principles which guide and constrain intervention by an appellate court with the exercise of a discretion, including an interlocutory ruling or order, should not be elevated to the level of a mandatory set of rules, without satisfaction of which an appeal must be refused irrespective of the risk of substantial injustice. Such an approach would be to reduce the analysis of whether an appeal should be allowed from an interlocutory or discretionary decision to a formula and to treat the elements of the rule as having greater importance than the objective to be served by the rule.

27    In this case the relevant facts or circumstances lie outside the reasons given by the primary judge and were largely of the second appellant’s own making. The second appellant provided some explanation for her non-appearance in her affidavit accompanying the application to this Court:

“3.    On 17 July 2018 my application was dismissed in the Federal Circuit Court of Australia by Judge Hartnett for non-appearance. …

4.    I did not attend as I simply forgot that the hearing was scheduled for that date.

5.    I subsequently made an ‘Application in a Case’ to re-open the matter.

6.    The hearing for that application was listed for 22 August 2018.

7.    I was in Perth at the time and missed my flight back to Melbourne. As such I was not able to attend the hearing of the said application.”

28    These statements provide, on their face, little justification for the appellants’ non-appearance at the 17 July or 22 August hearings. The affidavit does not, however, tell the entire story. During the course of the hearing in this court the second appellant stated from the bar table through an interpreter that she:

“remembered that [she] was having a hearing on 17 July – three days before I was remembering – but on 17 [July] I forgot to come over here. And regarding the second [hearing] – 22 August, I’m having a ticket that I was late for 15 minutes and they didn’t allow me to check in. So I couldn’t appear before the Judge.”

29    Notations to the 17 July 2018 orders also provide context:

“A.    The order made by Judge Lucev on 10 May 2018 referring the proceedings to the Melbourne Registry of the Court;

B.    The notice of listing dated 22 May 2018 [was] sent to each of the parties by the Court;

C.    The email of today’s date, 17 July 2018, from Ms Bensted to the Applicants advising of the hearing in Melbourne and notifying the parties as to the inaccuracy of a cover letter forwarded by the solicitors for the First Respondent accompanying the First Respondent’s submissions in the matter, that inaccuracy being the requirement of an attendance by either party at the Perth Registry this day;

D.    The Court has telephoned the Perth Registry this day between 11.30 am and 12 noon to ascertain whether there was any attendance by the Applicants at that Registry this day and there was not; and

E.    The Applicants have failed to attend at the hearing this day having being called outside the courtroom around 11.30 am and again around 12 noon.”

(Emphasis added)

30    The explanation given by the second appellant concerning her non-attendance at the hearing on 17 July does not assist her in this appeal. However, it appears that there was at least the potential for some confusion about the location of the hearing having regard to notation C to the order made on 17 July 2018. The evidence concerning the second appellant’s failure to attend the hearing of the application for reinstatement on 22 August indicates that she did attempt to attend that hearing. She was late arriving at the airport and not allowed to board the aeroplane. In my view, the explanation for failing to attend the 22 August hearing, which the primary judge was not aware of, may have led to a different result at the hearing on that day had the explanation been communicated to the judge.

31    In these circumstances, in my opinion, the appellants should be given the opportunity to explain to the Circuit Court their failure to attend on 17 July and 22 August 2018 and to explain why there is merit in their application. I express no view about whether any explanation for their failure to attend the earlier hearings should be accepted. These are matters for the Circuit Court to decide, as is the question of whether there is legal merit to their application if the proceeding is reinstated.

32    However, in view of the potential for injustice and the absence of evidence before the Circuit Court explaining the appellants’ failure to attend to prosecute the applications, both initially and on the reinstatement application, in my view a minimal approach to avert the risk of substantial injustice is to allow the appellants the opportunity to persuade the Circuit Court to reinstate their applications, and if successful, to prosecute their proceedings against the Tribunal’s decision.

Associate:

Dated:    7 May 2019