Pal v Minister for Immigration and Border Protection

[2014] FCA 162

FEDERAL COURT OF AUSTRALIA

Pal v Minister for Immigration and Border Protection [2014] FCA 162

Citation:	Pal v Minister for Immigration and Border Protection [2014] FCA 162
Appeal from:	Application for extension of time: Pal v Minister for Immigration and Border Protection [2013] FCCA 1861
Parties:	RAM PAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	SAD 324 of 2013
Judge:	MARSHALL J
Date of judgment:	28 February 2014
Legislation:	Federal Circuit Court Rules 2001 r.13.03C(1)(c), r.35.14
Date of hearing:	28 February 2014.
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	No appearance by the Applicant.
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 324 of 2013

BETWEEN:

RAM PAL
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	28 FEBRUARY 2014
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time within which to seek leave to appeal from the judgment of the Federal Circuit Court dated 14 October 2013 is dismissed.

2.The applicant pay the first respondent Minister’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 324 of 2013

BETWEEN:

RAM PAL
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	28 FEBRUARY 2014
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant, Mr Ram Pal, applies for an extension of time within which to appeal from a judgment of Judge Simpson of the Federal Circuit Court.  The Court below dismissed Mr Pal’s application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).  His Honour dismissed the application on account of Mr Pal’s failure to appear when the matter was called on.  At [4] of his reasons Judge Simpson observed that:

   Non-appearance is not unusual for this gentleman. On earlier occasions in relation to his original application to the Tribunal he failed to appear when he should have…

   The applicant has again failed to appear in this Court this morning.

2. The judgment below was delivered ex tempore on 14 October 2013. It dismissed the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules.  That provision enables the Court below to dismiss an application if the applicant is absent.  Such an order is interlocutory as it does not finally dispose of an applicant’s rights, given that such a person would be at liberty to seek to have an order of that sort set aside.  That is why Mr Pal has applied for an extension of time within which to seek leave to appeal from the judgment.

3. Pursuant to r 35.13 of the Federal Court Rules, an appeal from an interlocutory judgment is required to be filed within 14 days after delivery of that judgment.  The application for leave in this matter should have been filed by 28 October 2013.  It was filed a fortnight late, together with an application to extend the time to permit it to be filed.

4. A delay of some two weeks in filing a matter, in the absence of prejudice to the opposing party, would ordinarily be excused if some reasonable explanation was offered for the delay.  Here no explanation at all has been advanced.  Even if the Court was minded to grant an extension of time, no purpose would be served in so doing if the application for leave to appeal was bound to fail.  For the reasons which follow, the Court considers that the proposed application for leave to appeal falls within in that category.

5. On 8 August 2011, Mr Pal applied to the Minister for a Skilled (Provisional) (Class VC) visa.  On 10 August 2012, a delegate of the Minister refused the application on the ground that the delegate was not satisfied of Mr Pal’s competency in English.  On 29 August 2012, Mr Pal applied to the Tribunal for a review of the delegate’s decision.  On 15 January 2013, the Tribunal wrote to Mr Pal informing him that it was unable to make a decision favourable to him on the material he had presented and invited him to attend an oral hearing on 13 February 2013.  Mr Pal did not take up that invitation.  The Tribunal then decided the matter against him.  There was no jurisdictional error in the Tribunal approaching the matter the way it did.  Mr Pal did not seek to engage with the Tribunal as to the adequacy of his English skills.  It was therefore entitled to form a view that it could not be satisfied that he possessed the requisite skills.  Therefore, if leave to appeal was granted to Mr Pal, any such appeal would be doomed to fail.

6. The proposed appeal grounds refer to Mr Pal’s ill health on the day of the hearing as a reason for his non-attendance at the Tribunal.  He has not sought to tender any medical evidence to support that proposition.  Mr Pal also raises an issue about the Court below not giving weight to the Tribunal’s failure to consider whether he had the requisite language skills.  There are two answers to this proposition.  First, the Court below gave no such weight because Mr Pal, without explanation or medical certificate, failed to attend before it.  Second, the Tribunal’s failure to be satisfied of the merits of Mr Pal’s claim on the papers was the reason why it sought his input at any oral hearing on issues including his language skills.

7. For the foregoing reasons the application for an extension of time within which to seek leave to appeal is dismissed, with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       28 February 2014