Kumari v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 Avita Kumari, Deepak Deepak and Krishna Khindria apply for an extension of time in which to seek leave to appeal from an interlocutory decision made by Judge Whelan in the Federal Circuit Court. Her Honour's decision was to dismiss an application for judicial review of a decision which had been made by the Migration Review Tribunal on 18 September 2013. The Tribunal had affirmed a decision which had been made by a delegate of the Minister for Immigration to refuse to grant Mrs Kumari a Skilled (Provisional) (Class VC) Visa under s 63 of the Migration Act 1958 (Cth). Mrs Kumari is the wife of Mr Deepak and Mr Khindria is their child. Mrs Kumari originally came to Australia as a student, with her husband as a dependent. Their child was born in Australia after Mrs Kumari applied for a Skilled Visa on 3 May 2011. 2 The applicants need leave to appeal before an appeal can be brought from her Honour's decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. A decision dismissing an application on the basis that it was incompetent is relevantly interlocutory and requires leave. In SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 French J (as the Chief Justice then was) said at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained. Allsop J (as the Chief Justice then was) said at [68]: In support of the submission that the order for dismissal of the proceeding based on incompetency was interlocutory, the Minister relied on the authorities collected by Lindgren J in SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6]. Not all these cases concerned questions of a found lack of jurisdiction. Some certainly did: see in particular the Full Court in Minogue v Williams (2000) 60 ALD 366 at [18]; and Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695. However, as Merkel J said in Fifita (his Honour reserving the question for an occasion with a proper contradictor) there is some tension between Minogue v Williams 60 ALD 366 and the view of the Full Court in Lloyd Werft Bremerhaven GmbH v Owners of the Ship 'Zoya Kosmodemyanskaya' (1997) 79 FCR 71 at 80, an authority to which the Full Court in Minogue v Williams was not referred. No real debate took place on this issue before this Court in either proceeding. I have had the advantage of reading in draft what French J has said on this issue in his reasons. His Honour's reasons, if I may say so, clearly illuminate some of the difficulties in this area. For the reasons given by French J, I am prepared to accede to the proposition that the order in this case was interlocutory. Tracey J said at [114]: I agree with the orders proposed by French J. I do so for the reasons given by his Honour. In particular, I agree that the decisions of the Federal Magistrates Court which it is sought to challenge were interlocutory in character … 3 The applicants also need an extension of time within which to seek leave to appeal because the application for leave to appeal was made one day late. Rule 35.14(3) provides that an application for an extension of time must be accompanied by: (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01(1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. In Mehmood v Attorney-General of the Commonwealth [2013] FCA 406 Foster J considered the principles to be applied when considering an application for an extension of time under r 35.14. At [5]-[6] his Honour said: 5 In DZAAD v Department of Immigration and Citizenship [2013] FCA 204, I summarised the principles to be applied when the Court is considering an application for an extension of time under r 36.05. At [28]-[30] I said: The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)). The Minister has, quite properly, accepted that, given the short delay involved in the present case and the difficulties confronting the applicant as an unrepresented litigant in circumstances where he had family separation issues with which to deal as well as a move to Canberra, the applicant has more than adequately explained any delay in instituting his appeal. The Minister, nonetheless, opposes the grant of an extension of time on the basis that the appeal which the applicant seeks to file has no prospect of success. The Minister submitted that an extension of time, even for a short period, may be refused if an appeal has no prospect of success (as to which, see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at 216 [14] per Jessup J with whom Gyles and Besanko JJ agreed). It would be a proper exercise of the Court's discretion to refuse the extension of time which has been sought if the appeal has no prospect of success, even if the delay is a short one. 6 The same principles should be applied when considering an application for an extension of time under r 35.14 of the Federal Court Rules. The application for leave to appeal was made by the applicants on 27 February 2014 and was supported by an affidavit made by Mrs Kumari made on that date. The affidavit had two annexures, being a form of application by the applicants in the Federal Circuit Court dated 17 February 2014 and an affidavit accompanying that application made by Mrs Kumari, explaining why she did not attend the date which had been appointed for the hearing of the application on 12 February 2014. 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]. In this case the length of delay was only one day and the respondent correctly concedes that the delay was "not significant". Mrs Kumari's affidavit explained, and in oral testimony on hearing of the appeal she explained, that her failure to appear on the day fixed for the hearing was not her mistake and seemed to offer an explanation of a misunderstanding occasioned by her discussions with someone at the reception in the court. Ms Kumari was present in court and gave evidence through an interpreter that what had occurred was not her mistake. She elaborated upon what the receptionist at the court is said to have told her about the length of time Ms Kumari had in which to file an application. The evidence is unsatisfactory as presented but for present purposes will be accepted as an honest and accurate account of what Ms Kumari understood. The explanation, in the context of the short time for delay, and taking into account that she has no legal training or experience and that English is not her first language, would be sufficient to grant an extension of time if the proposed appeal had sufficient merit. There also appears to be no prejudice occasioned to the respondent in granting an extension of time and the respondent does not point to any specific prejudice. The first respondent does, however, point in this regard to the ability of the applicants to apply to the Federal Circuit Court to set aside the order under r 16.05 of the Federal Circuit Court Rules. No such application has been made and the first respondent submits that application under that rule can still be made and ought to be made before instituting the proceedings in this court. It is unnecessary for me to consider that matter beyond noting it as an argument put on behalf of the first respondent in favour of a refusal to exercise the discretion to grant an extension of time. 5 The significant question in this application for extension of time is, however, whether the application has any merit. A consideration of the merits of the case is relevant both to whether to grant an extension of time as well as whether leave to appeal should be granted. In Gallo v Dawson (1990) 64 ALJR 458 McHugh J said that in an application for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal. His Honour explained that the reason for that lay in the purpose of the rule being to ensure that rules which fix times for doing acts do not become instruments of injustice. At [2] his Honour said: The applicant asserts, correctly in my opinion, that she was entitled to appeal as of right against the order of Wilson J. Section 34 of the Judiciary Act 1903 (Cth) provides that the High Court has jurisdiction to "hear and determine appeals from all judgments whatsoever of any Justice or Justices, exercising the original jurisdiction of the High Court whether in Court or Chambers". However, a notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. His Honour's decision was approved on appeal to the Full Court of the High Court: Gallo v Dawson (No 2) (1992) 66 ALJR 859; see also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [35]-[39]. In DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court adopted the observations in Neimann v Electronic Industries Ltd [1978] VR 431 of the considerations as "an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision was sought" 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. Unfortunately, and sympathetic as I am to Ms Kumari, the materials before the court do not warrant a conclusion of sufficiency of doubt to grant leave to appeal or to grant the extension of time within which to bring the application for leave to appeal. It is, of course, the applicants who bear the onus of persuading the court (see Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56]) and in this context 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]. The proposed grounds of appeal set out no substantive ground of appeal. 6 Her Honour's decision on 12 February 2014 had been made in the absence of the applicants but their absence was not the basis upon which her Honour dismissed their application. The absence of the applicants was a matter which her Honour took into account in deciding whether to determine the matter on the merits on the materials which had been filed and the submissions that had been provided by the first respondent. No error is revealed in that decision in so far as the applicants are to be understood as seeking an extension of time for leave to appeal her Honour's decision to proceed with the hearing on the day which had been fixed for its hearing. Nor, however, is there any error revealed in her Honour's determination of the matter before her on its merits. 7 The substantive issue before her Honour had been the application to set aside the Tribunal's decision not to grant the first applicant a Skilled (Provisional) Class VC (Subclass 485 (Skilled - Graduate)) Visa. The Tribunal's decision had been based upon its finding that Mrs Kumari had not shown competent English as required by the regulations. The Tribunal had set out the issues and relevant facts under the heading "Consideration of Claims and Evidence" and concluded that Mrs Kumari did not have "competent English" as defined in r 1.15C and did not satisfy cl 485.215. On appeal to the Federal Circuit Court her Honour reviewed the material and concluded that an arguable case for the relief claimed had not been shown. Her Honour's conclusions in this regard were: [14] As this is a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 ("the Rules"), the issue for determination is whether the application raises an arguable case for the relief claimed. By virtue of r 44.13(1) of the Rules, the Applicants are confined to the relief sought and the grounds raised in the application. On the face of it, the application raises no ground for judicial relief. [15 Ground 1 states "I need time to get my Target (sic)".9. I have taken this to be a reference to the fact that the only evidence of the First Applicant's English language competence provided to the delegate or the Tribunal failed to meet the criteria in cl 485.215 of Sch 2 of the Regulations as defined by reg 1.15(c) of the Regulations. [16] The delegate's decision was made on 18 May 2012. The application for review was made on 5 June 2012. The hearing before the Tribunal, at which the Applicants failed to appear, was some 15 months later on 17 September 2013. Despite being invited to provide documents with specific reference to the evidence that the First Applicant met the English language proficiency requirements, nothing was provided by the First Applicant. The Applicants did not seek an adjournment of the hearing or seek an extension of time to provide evidence. [17] I am satisfied that, in deciding to make a decision on the basis of the material before it, the Tribunal did not act unreasonably. As the other grounds simply indicate that the Applicants disagreed with the Tribunal's decision, they provide no basis for judicial review. As I am not satisfied that the application raises an arguable case for relief, the application is dismissed in accordance with r 44.12(1)(a) of the Rules. 8 The materials for the applicants in the present applications for extension of time and, if granted, for leave to appeal, do not produce any doubt about the correctness of her Honour's decision. Her Honour, conscious of the absence of the applicants, considered the material before her and decided on that material that the Tribunal had been correct on the basis upon which it had decided against the applicants. Mrs Kumari had been invited to provide documents with specific reference to the evidence that she had met the English language proficiency requirement but had not done so. Before me today she has given evidence in explanation that she needed time to obtain that standard, but has given no basis upon which it could be safely, or even arguably, concluded, that the decision at the time had been in error, namely, that she had complied with, or had satisfied, the proficiency requirements at an earlier date. In those circumstances, the present application is one without merit and cannot succeed on appeal and, therefore, there is no basis upon which a grant of an extension of time in which to lodge an application for leave to appeal could be justified. 9 The orders will be to dismiss the application with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.