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[2016] FCA 981
Federal Court of Australia
2016-08-17
Moshinsky J
Original judgment source is linked above.
MOSHINSKY J: 1 This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia dismissing an interlocutory application filed by the applicant seeking leave to reinstate a proceeding which had been dismissed for want of appearance. The applicant did not appear at the hearing of the interlocutory application before the Federal Circuit Court and the interlocutory application was dismissed for want of appearance. 2 Briefly, the history of this matter is as follows. On 12 September 2011, the applicant applied for a Skilled (Provisional) (Class VC) visa (skilled visa). 3 On 14 February 2013, a delegate of the first respondent (the Minister) refused the application for the skilled visa. 4 On 16 May 2014, the Migration Review Tribunal (the Tribunal) decided to affirm the decision to refuse the application for a skilled visa. I note the following in relation to the Tribunal decision: (a) The applicant appeared before the Tribunal on 7 April 2014 to give evidence and present arguments. (b) The Tribunal considered whether the applicant had competent English as required by cl 485.215 of Sch 2 to the Migration Regulations 1994 (Cth). The Tribunal set out the relevant criteria at paragraph 7 and explained why it concluded that the applicant did not meet these criteria at paragraphs 8-11. The Tribunal concluded at paragraph 12 that the applicant did not meet the requirements of cl 485.215 and therefore did not satisfy the criteria for the grant of the skilled visa. See also paragraphs 13 and 14 of the Tribunal's reasons. 5 On 12 June 2014, the applicant commenced a proceeding in the Federal Circuit Court seeking judicial review of the decision of the Tribunal. 6 On 6 April 2016, the Federal Circuit Court made orders dismissing the proceeding pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 by reason of the failure of the applicant to attend the hearing that day. The applicant was ordered to pay the Minister's costs fixed in the sum of $6,825. The Court noted in its orders that the applicant was called twice outside the courtroom but there was no response. 7 On 13 April 2016, the applicant lodged electronically an application in a case in the Federal Circuit Court seeking to "re-open" the matter. I take this to be, in effect, an application to reinstate the proceeding pursuant to r 16.05 of the Federal Circuit Court Rules. The application was supported by an affidavit of the applicant of the same date in which he explained that he was unable to attend the hearing as he was "unfit on that day". The applicant attached a medical certificate of a general practitioner dated 5 April 2016 which stated that the applicant would be receiving medical treatment for the period 5 April to 8 April 2016 inclusive and "will be unfit to continue his usual occupation, as he will require rest and minimal strain". The medical certificate did not specify what the medical treatment was or refer to the applicant's ability to attend court. The affidavit also attached an email sent by the applicant to a lawyer at the Australian Government Solicitor at 6.11 pm on 5 April 2016 stating: "I would not be able to attend the federal court hearing on 6 April 2016 due to my medical condition. Kindly reschedule the hearing for a future date. A copy of doctor letter is attached for your reference" (errors in original). The email chain indicates that the applicant was notified that his email was not delivered to the recipient. 8 The applicant's application in a case was given a hearing date by the Federal Circuit Court namely 6 May 2016, at 10.00 am. The applicant confirmed today that he was notified of the date. 9 On 6 May 2016, the applicant did not appear at the hearing of his application in a case. The Federal Circuit Court made orders that the application in a case filed by the applicant on 13 April 2016 be dismissed, and that the applicant pay the costs of the Minister fixed in the sum of $1,706. Reasons were subsequently prepared by the primary judge: Singh v Minister for Immigration & Anor [2016] FCCA 1652. 10 As the decision of the Federal Circuit Court was interlocutory, the applicant needs leave to appeal to this Court. The time limit to file an application for leave to appeal is 14 days. The applicant did not file an application within that time. 11 On 1 June 2016, that is, about 10 days after the deadline for filing an application for leave to appeal, the applicant filed an application for an extension of time and leave to appeal. The application sets out one ground as follows: The decision made by AAT was affirmed which has jurisdictional error. The current decision by the court carries the error. I was not able to provide my comments to the court to review the AAT decision. (Errors in original.) An affidavit of the applicant in support of the application was also filed. This did not provide any explanation for the delay. A draft notice of appeal was filed, which replicated the one ground contained in the application for extension of time and leave to appeal. At the hearing today, the applicant appeared with the assistance of an interpreter who participated in the hearing by telephone. 12 In the course of the hearing today, I raised with counsel for the Minister whether there was any reason why Mr Singh could not bring a fresh application to reinstate his proceeding in the Federal Circuit Court. Given that his application to reinstate was interlocutory, there does not appear to be a reason in principle why he could not bring a fresh application to reinstate the Federal Circuit Court proceeding in that Court. 13 In response to a question I asked, and after receiving instructions, counsel for the Minister said that if Mr Singh were to make another application to reinstate in the Federal Circuit Court, the Minister would not object on the basis that it was the second such application Mr Singh had made; nevertheless, the Minister would oppose a new application to reinstate on all available grounds other than it being the second application.
Applicable principles 14 The applicable principles are well established. In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.
Application of principles to the facts of the present case 15 As the application for an extension of time is for a relatively short period, it will be convenient to deal first with the application for leave to appeal. 16 The decision which is the subject of the proposed appeal was a decision by the primary judge to dismiss an application in a case in circumstances where the applicant did not appear at the hearing of his application. The applicant had been notified of the hearing date. Further, the reasons of the primary judge indicate that, given the applicant's non-appearance on the previous occasion, the applicant had been contacted to alert him to the hearing date. 17 In my view, it was open to the primary judge to dismiss the application in a case for want of appearance by the applicant in these circumstances. 18 For these reasons, the proposed appeal lacks merit, and the applications for an extension of time and leave to appeal should be dismissed on this basis. 19 Accordingly, the applications for an extension of time and for leave to appeal will be dismissed. There is no reason why costs should not follow the event. Therefore, there will also be an order that the applicant pay the Minister's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.
Singh
Minister for Immigration and Border Protection