Baig v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 Mirza Khaled Ali Baig applies for an extension of time in which to seek leave to appeal from a decision of Judge Riethmuller in the Federal Circuit Court made 17 April 2014, in which his Honour dismissed an application made by Mr Baig to reinstate an application, which Mr Baig had made on 4 December 2013, for judicial review of a decision of the Migration Review Tribunal. Mr Baig's application for judicial review was dismissed on 5 March 2014 for failure to appear at a directions hearing before Registrar Allaway but the decision of the Federal Circuit Court was heard on 17 April 2014 on its merits and dismissed because reinstatement would serve no purpose. The decision of the Tribunal which Mr Baig sought to have reviewed had affirmed a decision made by a delegate of the Minister for Immigration to refuse to grant Mr Baig a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth), on the basis that Mr Baig did not have 'competent English' within the meaning of reg 1.15C of the Migration Regulations 1994 (Cth). Judge Riethmuller dismissed Mr Baig's application to have his proceeding reinstated because, as his Honour explained, Mr Baig's case was doomed to fail and, therefore, that reinstatement would serve no purpose. Mr Baig has shown no error in his Honour's decision in that regard. 2 Mr Baig is an Indian citizen who first arrived in Australia in 2009. He previously held an Australian Student visa, and completed qualifications in hairdressing whilst residing in Australia before applying for a Skilled (Provisional) (Class VC) visa on 30 September 2011. His application was refused by a delegate of the Minister for Immigration on 20 June 2012. Mr Baig applied to the Migration Review Tribunal for a review of that decision on 4 July 2012, but that application too was dismissed following a hearing on 22 November 2013 at which Mr Baig gave evidence and presented arguments without the assistance of an interpreter. The Tribunal published reasons for its decision to affirm the delegate's decision on 4 December 2013. 3 Mr Baig requires leave to appeal from the decision of the Federal Circuit Court because an order dismissing an application to reinstate proceedings is interlocutory in nature: SZHSY v Minister for Immigration and Citizenship [2007] FCA 793 at [1]; MZXQQ v Minister for Immigration and Citizenship [2008] FCA 250 at [15]. Mr Baig also requires an extension of time within which to seek leave to appeal because the present application was filed outside of the 14 days allowed by r 35.13 of the Federal Court Rules 2011 (Cth). 4 In determining whether or not to extend time it is relevant to consider the length of the delay, the explanation for the delay, any prejudice to the other parties, and the merits of the proposed appeal: SZSPR v Minister for Immigration and Border Protection and Another [2013] FCA 1210 at [16]; BZACZ v Minister for Immigration and Border Protection and Another [2013] FCA 1230 at [23]. The considerations relevant to an application for leave to appeal from an interlocutory decision were said in DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 to include: (1) whether in all the circumstances the decision [was] attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused supposing the decision to be wrong. The test thus expressed is cumulative and not satisfied unless each is established: Mawson Finances Pty Ltd v Commissioner of Taxation (2010) 81 ATR 36 at [5]; See also Sharp v Deputy Commissioner of Taxation (1988) 19 ATR 908 at 910. 5 On the question of delay, Mr Baig asserted in an affidavit filed in support of the present application that it was 'only eight days out of time' when it was filed on 16 May 2014, however the application was in fact filed 15 days after the time for the filing of any application for leave to appeal from the decision of the Federal Circuit Court expired on 1 May 2014. Mr Baig gave the following explanation for the delay in seeking leave to appeal: I had been waiting for the Federal Circuit Court to send me a copy of the full decision and to this date I have not received such a decision. I was then advised that there would be no such decision sent to me. There appears to be some force to this explanation: the reasons for decision of his Honour Judge Riethmuller bear a certification date of 30 May 2014, such that it is likely that Mr Baig may not have received a published version of those reasons for decision until after he affirmed his affidavit (extracted above) on 16 May 2014. In these circumstances the delay in filing the present application is not unreasonable. 6 There remains, however, the question of whether the application has any merit such that there would be utility in granting either an extension of time to file the application for leave to appeal or the application for leave to appeal itself. The Minister filed in this proceeding a notice of objection to the competency of the application, which objected to the application on grounds including that the applicant had not identified any appellable error in the decision of the Federal Circuit Court. In an application for leave to appeal it is, of course, the applicant who bears the onus of persuading the court that the decision below is attended by sufficient doubt to warrant the grant of leave (see Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56]) and in this context the applicant must identify in the notice of appeal a substantive ground to be pursued on appeal: See SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [9]. 7 The application as filed identified a single ground for the application, which stated: 1. The decision of the Migration Review Tribunal and the Court is affected by a denial of natural justice. This allegation was expanded upon in the accompanying draft notice of appeal under a heading 'Particulars': This matter was set down for a directions hearing on 5 March 2014. I did not attend because I had completely forgotten about the date. I was not ill or unwell and it was a complete mistake on my part. It was always my intention to appear at the Directions Hearing, as my application was going to be amended and the advice I was given was that I had a good chance of success. On Monday 17 March 2014, I received a letter which was dated 13 March 2014 and I was shocked to find out that my case had been dismissed for non appearance. Because I did pick up the letter until the evening, I was unable to do anything that date, however on the next day 18 March, I telephoned the Court and made inquiries about what I could do and was advised that I should seek legal advice. On Wednesday, 19 March I was able to get some advice as to what I could do to overturn this decision. I then got the appropriate forms. Subsequently, I lodged this application to reinstate my application as soon as possible, taking into account the fact that I did not receive the decision until Monday 17 March 2014. I also say that my application for review would disclose that I have a good case and therefore to not reinstate my application would be a denial of natural justice. The above extract is identical in terms to the 'Particulars' to the grounds contained in the reinstatement application filed by Mr Baig in the Federal Circuit Court. 8 These matters may explain why Mr Baig was not present at the hearing before Registrar Allaway on 5 March 2014 but do not deal with the basis upon which Judge Riethmuller dealt with the application on 17 April. His Honour dismissed the application for reinstatement because the underlying facts revealed that Mr Baig's case would necessarily fail and not because Mr Baig's failure to appear should be excused. His Honour said at [6]-[13] in the reasons he published on 30 May 2014: 6. On 17 April 2014 the Application was dismissed and the applicant has sought to re-instate the Application. 7. In this case, as with most applications concerning migration issues the most significant question is whether or not the applicant has an arguable case. If he does, some consideration should also be had as to the reasons why he did not appear on the first court date. 8. The applicant's grounds are effectively a request to be given a dispensation to pursue his visa application even though his English language test results weren't available before he applied for the visa. Unfortunately, as a result of the way in which the visa criteria are worded in Subclass 485 and Subclass 487 and the operation in particular of cl.485.215 and reg.1.15C the applicant must have his English Language Test score results prior to making application for the visa. 9. The applicant says from the bar table that after he had applied for the visa he had attended upon 3 different migration agents, none of whom pointed out this problem to him. It is most unfortunate that his case has gone on for so long without any advisor pointing out to the applicant that he simply could not meet the visa criteria because he did not have his English Language test score as at the date of his application. 10. The case seems all the more unfortunate in the applicant's circumstances as his English language oral skills as demonstrated by his submissions at the bar table are obviously quite good. 11. In the circumstances however, the applicant can simply never be given this type of visa on the current visa application because of the conditions and the fact that he did not have the test results to hand prior to his visa application. 12. In these circumstances his case is doomed to fail and therefore there is no purpose to be served by reinstating it. For this reason I would not reinstate the application and I need not turn to the question of the reasons why he did not attend on the first Court date. 13. In the circumstances I therefore formally dismiss the current application. [Further argument ensued] Mr Baig has not demonstrated error in the decision or these reasons. Mr Baig's submissions to this Court were a repetition of those recorded as having been put to his Honour on 17 April but did not show any error in his Honour's reasons for dismissing the application for reinstatement. Mr Baig was given an opportunity to put his case and was heard on the substance of his application by Judge Riethmuller and in this Court. It was the lack of merit on the substance of the case that led his Honour to dismiss the application for reinstatement. His Honour had power to decide as he did and did not err in doing so. 9 The application for extension of time and leave to appeal will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.