Pantel v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an application for leave to appeal against the dismissal by a Judge in the Federal Circuit Court of Australia (FCC) of an application for the setting aside of one, and possibly two, previous orders of the FCC. In addition to seeking leave to appeal, the applicant also seeks an extension of time in which to bring his present application. 2 The background to the present application is somewhat protracted. 3 The applicant, who is a citizen of India, first came to Australia on 29 June 2007 on a student visa. On 30 December 2009, he applied for a Skilled (Provisional) (Class VC) visa. In the application, the applicant gave "Graphic Pre-Press Tradesperson" as the nominated occupation. 4 After requesting further information from the applicant on 19 July and 17 August 2011, the Minister's delegate refused the issue of the requested visa on 19 December 2011. 5 The applicant promptly lodged an application for review with the Migration Review Tribunal (MRT). The MRT held a hearing on 15 October 2012 and, on 6 December 2012, affirmed the decision of the Minister's delegate. 6 By an application filed in the FCC on 31 December 2012, the applicant sought judicial review of the MRT decision under s 476 of the Migration Act 1958 (Cth). At a directions hearing on 13 February 2013, a Registrar listed the application for hearing on 22 July 2013 at 10.15am and made ancillary orders. One of those orders required the applicant to file and serve an outline of submissions 10 business days before 22 July 2013. 7 The applicant did not comply with that direction. He did not attend the hearing on 22 July 2013 and did not, on or before 22 July, communicate with the Court or, apparently, with the respondents to explain his absence. Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (FCC Rules) authorises that Court to dismiss an application if the applicant is absent from a hearing. The FCC Judge exercised that power and dismissed the applicant's s 476 application with costs. 8 Two months later, on 18 September 2013, the applicant filed an application in the FCC seeking the setting aside of the dismissal order of 22 July 2013. In his accompanying affidavit, the applicant deposed: I had some family problems and I was going through huge depression. I couldn't make [it] to hearing. That was the extent of the explanation which he provided. The affidavit did not include any evidence confirmatory of the matters asserted by the applicant. 9 The application of 18 September 2013 was listed for hearing on 14 October 2013 at 9.30am. The applicant was aware of that listing because the details had been endorsed on the application at the time he attended in the FCC Registry to lodge the application. Further, on the morning of 14 October 2013 at 9.03am, the Registry of the FCC received an email from the applicant as follows: Subject: Re: Notice of Discontinuance - ADG351/2012 Hi, I am Ranajay Singh Pantel and I am withdrawing my file ADG351/2012 Today, will be sending discontinue form later today. Thank you. Sent from my iPhone. The action number ADG351/2012 is the action number of the proceeding in the FCC. 10 Contrary to the intimation in that email, the applicant did not file a notice of discontinuance. Nor did he attend at the hearing at 9.30am and, in his absence, the FCC Judge dismissed the application of 18 September. Again, it seems that the FCC Judge acted under rule 13.03C(1)(c) of the FCC Rules. 11 Despite those circumstances, and in particular his stated intention to discontinue the application of 18 September, the applicant filed another application in the FCC on 11 November 2013. In the space in the pro forma document for the orders sought, the applicant entered simply, "Please set aside the hearing". The application did not identify the particular hearing which the applicant sought to have set aside, with the effect that there was some uncertainty in the FCC Judge's mind as to whether it related to the order of 22 July 2013 or the order of 14 October 2013, or to both. 12 In his accompanying affidavit, the applicant deposed: I could not attend the hearing b'coz of family problems and I was going through depression. Again, that was the extent of the explanation provided for his non-attendance. The applicant did not refer to the email indicating his intention to discontinue the previous application. 13 The FCC Judge heard this application on the same afternoon, that is on 11 November 2013, and dismissed it. He did so in the absence of either of the two respondents and without the application having been served on them. 14 The Judge accepted that he had a discretionary power to set aside the previous orders but said that that power should be exercised in the applicant's circumstances only if he presented plausible evidence of a reasonable explanation for his failure to attend the two hearings. 15 The Judge considered that neither of the affidavits of the applicant, which I have quoted, provided such evidence and said that, in the circumstances, some confirmatory evidence was required. The Judge was not prepared to accept the applicant's mere assertion that he had not been able to attend the hearing on 14 October 2013 because two members of his family had died in a car accident that day. The Judge considered that the applicant's evidence was flimsy and did not provide even a semi-plausible explanation for his non-attendance on each of the two occasions. 16 On this occasion the Judge referred to FCC Rule 13.10 relating to the summary dismissal of proceedings. That subrule authorises the FCC to dismiss a proceeding if, amongst other things, the Court is satisfied that there is no reasonable prospect of the proceeding being prosecuted successfully or that the claim for relief is frivolous or vexatious. The Judge regarded the second application to set aside, filed on 11 November 2013, as frivolous saying: [14] In my view, the agitation of an application to set aside in these circumstances, that is, where it is the second such application and where it is filed with so little affidavit material filed in support of it, amount to circumstances that entitle me to categorise the claim for relief as frivolous. Accordingly, the Judge summarily dismissed the second application to set aside. So far as one can tell from the Judge's reasons, he did not advert to the applicant's email of 14 October 2013 indicating his intention to discontinue the application filed on 18 September. 17 On 4 December 2013, the applicant filed the present application seeking leave to appeal against the summary dismissal order of 11 November 2013. Rule 35.13 of the Federal Court Rules 2011 requires an application for leave to appeal to be filed within 14 days of the date on which the judgment was pronounced or the order made. The applicant filed his present application some nine days outside that period. Accordingly, he requires an extension of time for the filing of his application in this Court. 18 The application filed in this Court states as its grounds the following: 1. I did not receive any orders from the Court in my mail. 2. I have come to Court to get them. 19 This appears to be in the nature of an explanation for the application not having been commenced within the prescribed 14 day period. However, as the Minister submitted, it seems a somewhat hollow explanation as the applicant was in Court on 11 November 2013 and must have heard the Judge's reasons delivered that day. Further, I note that the FCC file indicates that a copy of the Judge's orders, but not a transcript of his reasons, was posted to the applicant on 12 November 2013. The applicant told me today that he did not receive a copy of those orders. 20 In his affidavit accompanying the application, the applicant deposes: I couldn't attend the last hearing because of family problems so I couldn't explain my side to the Court. 21 The applicant cannot have been referring in this respect to the hearing on 11 November 2013 because he had been present. I infer, therefore, that he was referring to the hearing on 14 October 2013. 22 However, that explanation takes no account of his foreshadowed discontinuance of the FCC application emailed to the FCC earlier on the morning of 14 October. That email rather suggests that the applicant may not have attended the hearing that day because he was, in effect, abandoning his application in the FCC. On its face, that is not consistent with the applicant having been unable to attend because of family problems. 23 Accordingly, I regard the evidence presented by the applicant to support both aspects of his present application as being rather slight. 24 The period of the extension sought by the applicant is relatively short and the Minister has not contended that any prejudice had been occasioned by that delay. However, the time limitation is fixed to serve the interests of justice and casual disregard of the requirements of the Rules is inappropriate: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. The circumstances which I have outlined and, in particular, the absence of a proper explanation for the delay in filing the application to this Court in time indicate that the application for an extension of time does not have a sound basis. 25 The decision of the FCC Judge, although a summary dismissal, was interlocutory in nature. That makes it appropriate when considering the application for leave to appeal to consider the test conventionally applied in relation to appeals from interlocutory orders, namely, whether the decision at first instance is attended by sufficient doubt to warrant reconsideration on appeal and, secondly, whether, if leave is refused, substantial injustice would result, supposing the decision to be wrong. 26 In this respect, it is to be remembered that the decision in question is the summary dismissal order made on 11 November 2013. As I noted earlier, the Judge dismissed the second reopening application on the same day that it was filed. One of the grounds on which the Judge relied was the flimsy nature of the supporting evidence. By dealing with the application that very same day, the Judge did not give the applicant the opportunity to provide further evidence. 27 The Judge was also very much influenced by the fact that the application of 11 November was the second set aside application. That circumstance may explain the expedition of the Judge in listing the matter for hearing. The circumstances that the application was listed so promptly, without notice to either of the two respondents, and heard and determined without either of the two respondents being present could give rise to an inference that the Judge had a predetermined view about the appropriate fate of the application. 28 That is not an argument which has been advanced by the applicant, but nevertheless it is appropriate that the possibility be noted. Because of that, it is possible that there may be some proper grounds available for review of the Judge's decision. It is not necessary, however, to reach a final view about that because the applicant faces another difficulty which, in my opinion, is insurmountable. 29 The applicant had sought, as I noted earlier, a Skilled (Provisional) (Class VC) visa. The relevant criteria for that class of visa are set out in clause 485 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 485.22(1) specified at the relevant time that one of the requisite criteria for this class of visa was that "the skills of the applicant for the applicant's nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation". The expression "relevant assessing authority" means a person or body specified under reg 2.26B of the Regulations: see reg 1.03. In the applicant's case, this was Trades Recognition Australia (TRA). 30 The applicant did not have the requisite assessment from TRA. 31 The MRT's reasons indicate that the application for review to it failed because it considered that the applicant did not satisfy the requirement of clause 485.221(1). The applicant accepts that he did not have such an assessment but says that the reason he did not was that, although he had lodged an application for such an assessment with TRA at a time when the required proficiency in English was at Level 5, by the time the TRA considered it, the required level of proficiency was at Level 6. He satisfied the Level 5 criteria, but not the Level 6 criteria. Because TRA considered that he did not satisfy the requisite level of English proficiency, it did not carry out the requested trades assessment. 32 However, that was not something which the MRT could address. The criteria set out in clause 485 of Schedule 2 are mandatory. Neither the delegate nor the MRT had a dispensing power with respect to those criteria. 33 The MRT could have adjourned its hearing to allow the applicant to pursue his application with TRA. The record indicates that the applicant was afforded some opportunity by the MRT to seek an appropriate assessment from the TRA, in addition to the period which had already elapsed since he had originally lodged his visa application. However, the applicant did not provide evidence of such an assessment. It is pertinent in considering this circumstance that, during part of the period while the applicant was before the MRT, he had the assistance of a migration agent. 34 The application which the applicant lodged in the FCC did not raise any ground of judicial review. It indicated, instead, that the applicant sought a form of merits review of the MRT decision. Further again, the application in the FCC indicated that the applicant did not challenge the conclusion that he had not undergone the requisite assessment by TRA, but complained, instead, about issues concerning his English proficiency. 35 Strictly speaking, those complaints are immaterial, as it is apparent that the MRT did not decide the application for review adversely to him because of concerns about his English proficiency. His application failed because he did not satisfy the trades assessment criterion. 36 Not only has the applicant not identified a ground for judicial review of the MRT decision in the original application filed in the FCC, he has not since, in any of the subsequent applications or proceedings, identified such a ground. 37 In these circumstances, his application for judicial review was doomed to fail. 38 Accordingly, even if the FCC Judge's decision of 11 November 2013 was somewhat peremptory or possibly - I say no more than possibly - reflected a predetermined view, no injustice to the applicant will be occasioned by the dismissal of his section 476 application being allowed to stand. 39 In that circumstance, the applicant does not demonstrate grounds for a grant of leave. 40 In summary, I consider that the applicant does not make out grounds for a grant of leave to appeal, nor does he establish proper grounds for the grant of an extension of time. Accordingly, I dismiss the application. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.