Sahib v Minister for Immigration and Citizenship

JUDGE: GRAY J DATE: 31 MARCH 2011 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 8 November 2010 the appellant filed in this Court a notice of appeal. The purported appeal is from the judgment of the Federal Magistrates Court of Australia given on 21 October 2010. See Sahib v Minister for Immigration & Anor [2010] FMCA 925. In order to ascertain precisely what the nature of that judgment was, it will be necessary to review the history of the proceeding in the Federal Magistrates Court. 2 The matter began with a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), refusing to grant to the appellant a Temporary Business Entry (Class UC) visa, according to criteria found in subclass 457 in Sch 2 to the Migration Regulations 1994 (Cth) ("the Migration Regulations"), made under the Migration Act 1958 (Cth) ("the Migration Act"). 3 The appellant sought review of that decision by the Migration Review Tribunal ("the Tribunal"), the second respondent to this appeal. The Tribunal made a decision, dated 23 December 2009, and handed down on 24 December 2009, affirming the decision to refuse to grant the appellant a visa. It is clear, from the reasons for decision of the Tribunal, that the ground on which the appellant failed to satisfy the criteria in the Regulations concerned his lack of proficiency in English. 4 The Tribunal applied the criteria found in cl 457.223(4) in relation to the appellant. In substance, as they applied at the time of the decision, when the Tribunal was required to apply them, the provisions of the Regulations required that the appellant achieve a level of proficiency averaging 5 in the International English Language Testing System, across the four aspects of the test: listening, reading, writing and speaking. The certificates of testing produced to the Tribunal by the appellant demonstrated that he had never managed to achieve a score better than 3.5 in any of the four aspects of the test. He certainly did not achieve an average of 5. 5 On 21 January 2010, the appellant filed his application in the Federal Magistrates Court, seeking to set aside the Tribunal's decision, and to have the Tribunal rehear the matter according to law. The grounds of that application were as follows: 1. The applicant states that when he applied for his 457 visa to come to Australia he was not required to provide evidence of his English language ability. He was granted his 457 visa on 16th November 2005 and although he applied for a 4 year visa he was granted a visa for only about 2 years. Thus the recent amendments to clause 457.223 can not [sic] be implemented retrospectively. 2. The 2nd respondent erred jurisdictionally by giving retrospective effect to the amendment to clause 457.223 made on 14th September 2009. 6 The appellant's application was listed for hearing in the Federal Magistrates Court on 1 June 2010. On that day, the appellant did not appear. The learned federal magistrate dismissed the application and ordered the appellant to pay costs. It is clear from both the terms of the order made on 1 June 2010 and the published reasons revised from the transcript (Sahib v Minister for Immigration & Anor [2010] FMCA 459) that the dismissal was by reason of the non-appearance of the appellant. It was not a dismissal based on a determination of the merits of the appellant's application. In other words, it was unarguably an interlocutory judgment. 7 The appellant did seek leave to appeal to this Court from that interlocutory judgment. That application was dismissed on 25 August 2010. See Sahib v Minister for Immigration and Citizenship [2010] FCA 944. It is apparent from the terms of the order made by North J on that day, and from his Honour's reasons for judgment, that the dismissal of the application for leave to appeal was on the basis that it was open to the appellant to return to the Federal Magistrates Court, and seek to set aside the interlocutory judgment of 1 June 2010. His Honour made orders concerning costs that provided for costs to follow the event of any further application to the Federal Magistrates Court, if such an application were made by 15 September 2010, but in the absence of such an application by that date, the order was that the appellant pay the Minister's costs of the application for leave to appeal. 8 The appellant did apply again to the Federal Magistrates Court. He filed his application on 15 September 2010. It was, in its terms, an application to set aside the order made dismissing the application for non-appearance, and seeking that the original application to the Federal Magistrates Court be heard, and the orders sought be granted. On 4 October 2010, that application was adjourned until 21 October 2010 for directions. Notwithstanding the terms of that order, when it came before the Federal Magistrates Court on 21 October 2010, the application was dealt with. The order made was that the application filed on 15 September 2010 be dismissed. There was also an order that the appellant pay the Minister's costs, fixed at a certain sum. 9 A search of the file of the Federal Magistrates Court does not reveal any order ever setting aside the order of 1 June 2010, dismissing the appellant's application for non-appearance. As I have said, the order that was made on 21 October 2010 was simply an order dismissing his application filed on 15 September 2010. That was an interlocutory application. The order of 1 June 2010, which was itself an interlocutory order, remains operative to dismiss the appellant's application to the Federal Magistrates Court. It follows that any appeal to this Court could only be by leave, in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 10 The appellant's appeal to this Court was listed on 16 February 2011. On that day, I dismissed the appeal, with costs, and pronounced reasons for judgment, which were subsequently published as Sahib v Minister for Immigration and Citizenship [2011] FCA 187. It is clear from [10]-[12] of those reasons for judgment, and from [20], that the reason for the dismissal of the appeal was that it was an appeal that required leave, and no leave had been granted. 11 By notice of motion filed on 3 March 2011, the appellant applied to set aside the order made on 16 February 2011, and therefore to reinstate his appeal. It is apparent from the affidavit that accompanied the notice of motion that, by the time when he filed the notice of motion, the appellant did not have access to my reasons for judgment, because of his absence on 16 February, and the fact that they had not at that stage been published. His assumption was that I had dismissed the appeal because of his non-appearance. The affidavit addresses reasons for that non-appearance, as well as, in brief terms, issues of the merits of the appeal itself. 12 On the hearing of the notice of motion today, counsel for the appellant initially made submissions to the effect that the appeal was not an appeal from an interlocutory judgment of the Federal Magistrates Court. Those submissions were based on an examination of the reasons for judgment of the federal magistrate. At [1] of those reasons, the federal magistrate began by describing the proceeding as an application for judicial review of a decision of the Tribunal. In the succeeding paragraphs, his Honour examined the merits of the application, as it was put. His examination of the merits included looking at the terms of the regulations, as they stood prior to the amendment that brought into effect the requirement for an average score of five across the tests of English language proficiency. At [6], his Honour pointed out that, even if that amendment had been disregarded, the regulations at the time when the appellant applied for the visa required an average score of 4.5 across the four elements of the English test, and there was no material to suggest that the Tribunal could have found that the appellant had achieved such an average. At [7], his Honour said: In these circumstances, no question of retrospective operation of the Regulations could be said to have disadvantaged the applicant. If it were the case that the Regulations as amended after his application did not apply as a matter of law, his application would nonetheless have failed on the terms of the Regulations applicable at the time he applied for his visa. At [8], his Honour said: In the circumstances of this case, I must therefore dismiss the applicant's application on the basis that, on any view of the law, on the facts as found by the Tribunal he could not have satisfied the criteria for the grant of the visa sought. Following argument about costs, at [10] of his reasons for judgment, the federal magistrate referred to the order of this Court that costs follow the event of the application in the Federal Magistrates Court. His Honour said: The applicant has been back, having had a substantive hearing on the merits of the matter and has failed. It is appropriate that the applicant pay the costs of the proceedings. 13 It does seem from his Honour's reasons for judgment that the federal magistrate saw himself as dealing with the merits of the appellant's application to the Federal Magistrates Court. It is not possible to escape from the terms of the order of 21 October 2010, however. That order amounted to no more than an order dismissing the application filed on 15 September 2010. That was clearly an interlocutory application. The order dismissing it was also an interlocutory order. Leave to appeal to this Court is required. No application for leave has ever been made, and no leave has been granted. 14 In my reasons for judgment on 16 February 2011, I commented that any application for leave to appeal would be bound to fail, because the appellant had no chance of applying successfully to set aside the Tribunal's decision on the basis that it had wrongly applied regulations retrospectively. It is not unusual for a court to look at the substantive merits of a case in order to determine whether an interlocutory order should be made. Despite the fact that the federal magistrate saw himself as determining the substantive merits of the appellant's application to the Federal Magistrates Court, his Honour did not do so by the order that he made. 15 The only order ever made dismissing the appellant's application to the Federal Magistrates Court, was the order made on 1 June 2010, dismissing it for his non-attendance. That was an interlocutory order. It follows that the substantive merits of the application before the Federal Magistrates Court have not been determined by that court. This issue has some importance, because of the way that the argument unfolded today. Counsel for the appellant believes that he has an argument on which the appellant might have been able to succeed. It is unnecessary to go to the merits of that argument. It would be necessary for the appellant to persuade the Federal Magistrates Court that the Tribunal was in error in the way it applied subcl (6) of cl 457.223 in Sch 2 to the Migration Regulations to the appellant's case. 16 The necessary factual basis for such an argument has never been laid. To the extent to which counsel for the appellant sought to raise the argument in this Court, he would face the daunting prospect of persuading the Court that he should be given leave to rely on an argument not only not ever put to the Federal Magistrates Court, but not in the least foreshadowed in the terms of the application made to that court. 17 If I am correct in the view that the substantive merits of the appellant's application to the Federal Magistrates Court have never been dealt with by an order dismissing that application as a matter of substance, then it might still be open to the appellant to return to the Federal Magistrates Court, seek leave to amend his application to that court, and seek to have its merits determined in a final way. The question of what might occur in the Federal Magistrates Court is not one that I can, or ought to, determine. 18 It follows from what I have said that I remain persuaded that the order from which the appellant attempted to appeal to this Court was an interlocutory order of the Federal Magistrates Court. Leave to appeal was required. No such leave was ever applied for, or granted. The basis for the order that I made on 16 February 2011 was therefore correct. No cause has been shown why that order should be set aside. There would be no point in doing so, because the purported appeal to this Court would remain, an appeal that the Court has no power to deal with, because no leave to appeal has been granted. 19 For these reasons, the motions the subject of the notice of motion filed on 3 March 2011 must be dismissed. 20 Counsel for the Minister has sought an order that the appellant pay the Minister's costs of the motions. Such an order would be in accordance with the usual principle that costs follow the event. The only ground on which counsel for the appellant was able to oppose the making of such an order is that the appellant has no right to work, and is struggling financially. The fact that an unsuccessful litigant is impecunious is not generally regarded as a ground on which to refrain from making the usual order as to costs. In my view, the usual principle should be applied and the appellant should be ordered to pay the Minister's costs of the appeal. 21 Counsel for the appellant also applied for a stay of the order for costs. This application was not opposed by counsel for the Minister. The stay for the period of three months, nominated by counsel for the appellant, seems reasonable to me. 22 The orders I make are:

1. The motions the subject of the notice of motion filed on 3 March 2011 be dismissed.
2. The appellant pay the first respondent's costs of the appeal.
3. Execution of the order made in paragraph 2 be stayed for a period of three months. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.