Singh v Minister for Home Affairs

1. The application for an extension of time to appeal is dismissed.
2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an application for an extension of time within which to appeal from a judgment of the Federal Circuit Court. The Federal Circuit Court dismissed the applicant's application for review of a decision of a registrar of that Court. The registrar had dismissed the applicant's application for review of a decision of the second respondent for default of appearance. 2 On 6 December 2017, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of a decision of the first respondent's delegate not to grant the applicant a Subclass 457-Temporary Work (Skilled) Visa. 3 On 8 January 2018, the Tribunal decided that the delegate's decision was not reviewable because the applicant did not have, at the time the application was made to the Tribunal, a valid nomination by an approved sponsor as was required by s 338(2)(d) of the Migration Act 1958 (Cth). 4 On 2 February 2018, the applicant applied to the Federal Circuit Court for review of the Tribunal's decision. The application was given a first court date of 28 February 2018. On 28 February 2018, the applicant failed to appear at the first court date. A registrar dismissed the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). 5 On 9 March 2018, the applicant applied to the Federal Circuit Court for review of the registrar's decision. The basis of the application was that: I arrived in the Court at 11 am on 28/02/2018, but registrar advised me to come back at 2 pm. I went to Immigration Department in the meantime which took me too long than I expect; therefore, I was late to Court by half an hour. 6 On 12 March 2018, the primary judge heard the applicant's application for review of the registrar's decision. His Honour dismissed the application, giving ex tempore reasons for making that order. 7 In his application to this Court, the applicant seeks an extension of time to appeal from the primary judge's judgment. The applicant swore an affidavit on 9 April 2018 in support of his application. In his affidavit, the applicant deposes as follows: 3. I was an unrepresented litigant and was not provided with a reasonable opportunity to present my case. 4. The FCC judgement simply states that my application is dismissed. No reasons are contained whatsoever and I did not understand the reasons for dismissal at the court hearing. 5. I am waiting for the written decision record from FCC but I have not received any FCC decision record so far except the one that is attached with this affidavit as Annexure GS1. 6. I believe that given the complexity of my case the FCC should have adjourned my case until I had sought legal advice. I was not in a financial situation to seek legal advice at that time. (Errors in original.) 8 The factors relevant to an application for an extension of time under r 36.05(1) Federal Court Rules (2011) (Cth) include the length of the delay, the explanation for the delay, any prejudice to the respondent and the merits of the proposed appeal: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. 9 The application was filed seven days outside the 21 day limit. It is not a lengthy delay. The applicant's delay is not explained in his affidavit. As he says that no reasons were provided and he did not understand the reasons for dismissal, he may be asserting that these are matters relevant to the delay. However, the applicant filed his application for an extension time and affidavit before the reasons had been published. Accordingly, I do not accept that he has provided an acceptable explanation for the delay. 10 The Minister does not assert any prejudice as a result of the delay. However, it is relevant to take into account that the interests of justice may be prejudiced if an extension of time is too readily granted without an adequate explanation. 11 I will turn to consider the merits of the proposed appeal. 12 The power exercised by the registrar was pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules to dismiss the application in circumstances where the applicant had failed to appear at the first court date. Under r 20.03 of the Federal Circuit Court Rules, an application for review of a decision of a registrar is a hearing de novo. In a hearing de novo, the Judge reviewing the order begins afresh and exercises for himself or herself any discretion exercised by the registrar: Totev v Sfar [2008] 167 FCR 193 at [13]. The primary judge's reasons disclose that he understood that he was required to conduct a hearing de novo. 13 His Honour held as follows: … 6. The application by the Applicant read that he arrived at 11 am and was told that his matter was not on until 2 pm and for him to return. He said that in the meantime, he went to the Immigration Department and was there far too long and came back half an hour late. That is the sum total of the application. 7. He filed an affidavit in support of his application, but that affidavit did not disclose any material, other than to say "this is an affidavit in support of the application". 8. The Applicant appeared before me and I asked him who it was that spoke to him at 11 o'clock and told him to come back at 2 o'clock so that we could ascertain the veracity of the fact that he had attended. 9. I asked the Applicant to tell me who it was that he was talking to at the Immigration Department, so that we could ascertain that he actually was at the Immigration Department at 2 pm, when the matter was called on. 10. He could not assist me. 11. There was absolutely nothing that would, in any way, show that he was at the Immigration Department at that time. He has, in his submissions, simply apologised and asked me to give him "another go". 12. On that evidence, it would seem that there is nothing that would cause me to decide that the Registrar had exercised their powers in any way that would be in conflict with what the duties of the Registrar are. 13. I do note, as Ms McConnell for the Minister has said, that this is not an application for reinstatement. This is an application for review of the Registrar's decision. In those circumstances, I cannot see that the Registrar has made any wrong decision. Upon all of the material before me, there is no valid excuse as to why the Applicant was not here at 2 pm on 28 February 2018 and there is no material before me to suggest then that the Registrar has, in any way, misused or exercised his discretion in any incorrect way. 14. Therefore, I would dismiss the application. 15. I note Ms McConnell says that that is all I need to do. However, if there is the chance that I am somewhat incorrect in the view that I have taken and that I could look at the matter as a first Court date now, it seems to me that there are no merits to the substantive application whatsoever. 16. The original application was by the Applicant for what is colloquially known as a 457 visa. To qualify for one of those visas, one must be: a) a skilled worker; and b) have an approved sponsor or an approved employer at the time of making the application and at the time of the decision by the delegate and/or by the AAT. 17. The Applicant did not have an approved sponsor. 18. Notwithstanding that he has given a number of excuses as to the business being sold and the persons not having the wherewithal to have done everything that the department had asked, the Applicant was given a choice as to whether to proceed with his application or withdraw his application. 19. He was told that if he withdrew his application he would be in a position to submit another application once the employer had completed everything to apply for sponsorship. The Applicant chose to proceed with his application. 20. His application was therefore doomed because there was no sponsor. 21. Because there was no sponsor, the AAT had no jurisdiction with which to deal with this application and that is what it decided. 14 The applicant relies upon a draft notice of appeal containing the following grounds: 1. That the Federal Circuit Court (FCC) did not give me a reasonable opportunity to appear and present my case and as such I was denied procedural fairness; 2. That the FCC erred in exercising its power to dismiss an application in circumstances where I was not given the opportunity to file and serve all evidence relevant to my application; and 3. That the FCC did not provide sufficient reasons for the decision or make any rulings of fact on the alleged grounds. 15 The applicant has not filed written submissions in support of his grounds of appeal. When the matter was called on for hearing today, he did not appear. The matter was stood down for 15 minutes in case he was late, but even after that time, he did not appear. I decided to proceed with the hearing in the applicant's absence. 16 The application falls to be determined on the basis of the applicant's affidavit, his draft grounds of appeal and an affidavit filed by the first respondent which annexes the Tribunal's decision and the judgment of the Federal Circuit Court. 17 The applicant's first ground of the proposed appeal asserts that he was not given a reasonable opportunity to appear and present his case, and that he was denied procedural fairness. The primary judge's reasons indicate that the applicant appeared and made submissions. He was asked questions by the primary judge with a view to determining whether, as he had claimed, he attended the hearing at 11 am, was told to come back at 2 pm, and was then late. If the primary judge had accepted the applicant's explanation, it would have provided a strong reason to set aside the registrar's decision. However, his Honour did not accept that explanation. There is nothing in the material to indicate that the applicant was not given a reasonable opportunity to appear and present his case. I do not accept that he was denied procedural fairness in this respect. 18 The applicant's second ground is that the primary judge erred in exercising his power to dismiss the application in circumstances where he was not given the opportunity to file and serve all evidence relevant to his application. This may be a complaint that the applicant's application was filed on 8 March 2018 and the hearing took place only four days later, on 12 March 2018. The hearing was listed quickly because r 20.02(2) of the Federal Circuit Court Rules provides that an application for review of a registrar's exercise of power: …must be listed for a hearing as soon as possible and, unless impractical to do so, within 40 days after the date of filing. 19 There is no indication in the applicant's affidavit or in the primary judge's reasons that the applicant sought more time to produce evidence. In his affidavit, the applicant asserts that the primary judge should have adjourned his case until he had obtained legal advice. In the absence of a request for an adjournment, there was no error in the primary judge proceeding with the hearing: DPQ16 v Minister for Home Affairs [2018] FCA 1248 at [11]. The proposed second ground has no reasonable prospect of succeeding. 20 The applicant's third ground of the proposed appeal is that the primary judge did not provide sufficient reasons for the decision or make any rulings of fact on the grounds alleged. There is a requirement upon a judicial officer to provide adequate reasons for any orders made: see CIT17 v the Minister for Immigration and Border Protection [2018] FCAFC 150 at [39]. In DL v R [2018] 92 ALJR 636, the High Court at [33] observed that: Ordinarily, it would be necessary for a trial judge to summarise the crucial arguments of the parties to formulate the issues for decision, to resolve any issues of law and fact which need to be determined before the verdict could be arrived at, and to explain how the competing arguments of the parties were to be dealt with, and why the resolution was arrived at, to apply the law found to the facts found, and to explain how the verdict followed. 21 Some allowance should be made for any infelicity of expression where a judgment is delivered ex tempore: Maviglia v Maviglia [1999] NSWCA 188 at [1]. 22 In my opinion, there is no reasonable argument available that the primary judge's reasons were inadequate. His Honour explained the nature of the review, the applicant's arguments as to why the registrar's decision should be set aside and why those arguments were rejected. His Honour made a specific finding that there was no valid excuse for the applicant's failure to attend before the registrar for the hearing. His Honour concluded that there was no basis for setting aside the registrar's decision. 23 His Honour also considered whether there was any error in the Tribunal's decision. His Honour held that the Tribunal correctly decided that it had no jurisdiction to deal with the application because the applicant had no approved sponsor at the time of making the application. In my opinion, the reasons provided by the primary judge were adequate and there is no substance in the proposed third ground of appeal. 24 For these reasons, the application for an extension of time to appeal should be refused. There should be an order that the applicant pay the first respondent's costs of the application. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.