Singh v Minister for Immigration and Border Protection

Federal Court of Australia|2015-03-16|Before: Mr P, Perry J

INTRODUCTION 1 The applicant, Mr Amarjit Singh, seeks an extension of time within which to seek leave to appeal from the decision of the Federal Circuit Court (the Court below) given on 3 October 2014. By that decision, the Court below dismissed his application made under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) to set aside the orders made on 4 July 2014 when the applicant failed to appear at the hearing of his application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal had affirmed the decision of the Minister's delegate to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa (the skilled visa) under s 65 of the Migration Act 1958 (Cth) (the Act). 2 Detailed written submissions were filed by the Minister in response to the application for an extension of time on 17 February 2015. No submissions were filed by the applicant despite the Registrar's directions for the filing of submissions made on 3 November 2014 to do so. 3 The applicant appeared unrepresented at the hearing of the application for an extension of time and made brief oral submissions. However, those submissions did not identify any error in the decision of the Court below. 4 The application for an extension of time must be dismissed on the ground that the application is devoid of merit.

3.1 Relevant principles 15 As I have explained, the present application is for an extension of time to seek leave to appeal against the decision of the Court below made on 3 October 2014. Rule 35.13 of the Federal Court Rules 2011 (Cth) requires any application for leave to appeal to be filed within 14 days of the date on which judgment was delivered, i.e., by 17 October 2014 in the present case. Accordingly, as the application was filed on 29 October 2014, it is necessary for the applicant to seek an extension of time within which to seek leave to appeal under r 35.14. 16 In determining whether to grant an extension of time in the exercise of discretion, the Court will consider such matters as the length of delay, any explanation offered for the delay, whether the respondent would be prejudiced by the grant an extension and the merits of the proposed appeal: e.g. SZSPR v Minister for Immigration and Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at [16] (Farrell J); BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230; (2013) 139 ALD 140 at [23] (Rangiah J). Notwithstanding that the respondent accepts that he would not suffer any significant prejudice if an extension of time were granted, an extension of time should be refused if there is no merit in the proposed appeal: SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] (Flick J). 17 In turn, if an extension of time is granted, leave to appeal against the decision refusing to set aside the default judgment given under r 16.05 of the FCC Rules would then be required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because that decision was interlocutory in nature: see e.g. Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[5] (Bromberg J); BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [3] (Rangiah J). In determining whether or not to grant leave to appeal, the Court must first consider whether the decision at first instance is attended by sufficient doubt to warrant its reconsideration and secondly whether substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court). The onus of satisfying these matters lies upon an applicant: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (Foster J).

3.2 Application of those principles to the present case 18 The grounds on which the applicant seeks an extension of time are stated in his application as follows: Federal Circuit court dismissed by case because I was sick and not able to attend hearing. Respected judge said that in my sick certificate doctor didnot mention what illness I have so he cannot accept that as an excuse to miss the hearing. MRT refused my review application stating that I don't satisfy cl. 485.214. Member asked himself question that at the time of decision cl 485.214 states that applicant should have skill assessment in the nominated occupation from "relevant assessing authority" which is TRA in my case. Decision claimed that Tribunal has not received any proof that skills assessment has been done. TRA is not a competent authority for skills assessment. 19 However, as the Minister submitted, the applicant did not engage with the reasons given by the Federal Circuit Court in his application for an extension of time or in his oral submissions, and failed to identify any error. Nor do I consider that any error is apparent. 20 First, as the Court below held at [40], Mr Singh is not entitled as of right to have the orders made by the Court below set aside merely because they were made in his absence. Rather, good reason must be established for the Court to exercise the discretion to set aside an order which has been entered, which would usually involve a proper explanation for the failure to appear and a reasonably arguable case on the judicial review application (reasons below at [43]-[44]). As to the latter, it is important to emphasise that the decision below was discretionary in nature. As a consequence, it would be necessary on any appeal for the applicant to demonstrate error within the principles set out in House v R (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ), namely: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 21 Secondly, the considerations to which the Court below had regard in declining that application which are set out above were plainly relevant and open to it. Nor can it be said that the decision below is unreasonable or plainly unjust. 22 Thirdly, in reaching this view I do not consider that the Court failed to have regard to the individual circumstances of this case in stating at [50] that: …it is becoming commonplace for applicants, in migration matters such as this one, to fail to appear not just on one or two occasions but throughout the process of review of their various applications and then appear only when compelled to do so as a consequence of a decision adverse to them. The consequences of this is multiple hearings relating to matters which, very often are not ones of great intrinsic complexity. This has implications for the wastage of the resources of not only the court but also of the Minister and those advising him. 23 I consider that his Honour intended to point only to the adverse consequences of such conduct for the Court and the respondent. No matter how common this trend may be, each case must ultimately be decided by reference to its individual circumstances. 24 Finally, even if an extension of time were granted, I do not consider that Mr Singh would have a reasonably arguable case. As the primary judge held at [47], "[i]t remains the case that he has not satisfied an essential pre-condition of the grant of the visa in question, namely satisfactory proof that he has the skills relevant to the visa for which he has applied and these skills had been independently assessed."

Conclusion 25 For these reasons, the application for an extension of time within which to appeal must be dismissed with costs fixed in the sum of $1756.00. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Federal Court Rules 2011(Cth)r 35.13, 35.14

Migration Act 1958(Cth)s 31(1), 65, 362B

Migration Regulations 1994(Cth)reg 1.15I, 2.03, 2.26B, Sch

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (8)