Sil v Commonwealth of Australia

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FEDERAL COURT OF AUSTRALIA

Sil v Commonwealth of Australia [2023] FCAFC 73

Appeal from: Sil v Commonwealth of Australia [2022] FCA 920
File number: SAD 154 of 2022
Judgment of: RARES, O'SULLIVAN AND FEUTRILL JJ
Date of judgment: 11 May 2023
Catchwords: MIGRATION – application for extension of time to appeal – judicial review and negligence – where Department made false representation to visa holder as to how long visa that expired on stated date would remain in force beyond expiry date after visa holder first entered Australia ­– where visa holder’s compensation application for detriment caused by defective administration rejected – where visa holder sought judicial review of rejection of claim for compensation and sued in negligence based on false representation about visa expiry date – where primary judge made credibility based findings that visa holder not rely on false representation to dismiss negligence claim –  where primary judge not satisfied any jurisdictional error in decision refusing claim for compensation – whether any reason to doubt correctness of primary judge’s decision – Held: application dismissed
Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 489.55(1), Sch 8 visa condition 8504
Cases cited:

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

Bienstein v Bienstein (2003) 195 ALR 225

FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 405

Jackamarra v Krakouer (1998) 195 CLR 516

Lee v Lee (2019) 266 CLR 129

Reginav Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087

Sil v Commonwealth v Australia [2022] FCA 920
Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 50
Date of hearing: 11 May 2023
Counsel for the Applicant: The applicant was self-represented
Counsel for the Respondent: Mr N Wood SC with Mr P d’Assumpcao
Solicitor for the Respondent: MinterEllison

 

ORDERS

SAD 154 of 2022
BETWEEN:

DHRITI RANJAN SIL

Applicant
AND:

COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

RARES, O'SULLIVAN AND FEUTRILL JJ

DATE OF ORDER:

11 MAY 2023

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay 75% of the respondent’s costs.

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


REASONS FOR JUDGMENT
(Revised from the transcript)

THE COURT:

INTRODUCTION

  1. This is an application for an extension of time of 28 days in which to file a notice of appeal from the decision of a judge of the Court dismissing the applicant’s claim for constitutional writ relief in respect of a decision made under the Scheme for Compensation for Detriment caused by Defective Administration issued by the Department of Finance as resource management guide No 409 as well as a claim in negligence against the Commonwealth: Sil v Commonwealth of Australia [2022] FCA 920.

  2. The primary judge conducted a final hearing over three days before delivering his reserved reasons thereafter.  The applicant,…

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Details
Case
[2023] FCAFC 73
Decision Date

CaseChat Overview and Summary

The case of Sil v Commonwealth of Australia involved an application for an extension of time to appeal a decision of the primary judge. The applicant, Dhriti Sil, sought judicial review and damages for negligence against the Commonwealth of Australia, alleging that the Department of Immigration and Border Protection made a false representation regarding the expiry date of his visa. The primary judge dismissed Mr Sil’s claims for judicial review and negligence, finding that Mr Sil was an unreliable witness and had not relied on the false representation to his detriment.

The central legal issues before the court were whether the primary judge’s decision to dismiss Mr Sil’s claims was correct and whether there were any grounds to doubt the correctness of the primary judge’s findings. The court examined Mr Sil’s application for an extension of time to appeal, considering whether he had provided a satisfactory explanation for the delay, whether there was a reasonable basis to argue that the primary judge’s decisions were erroneous, and whether Mr Sil would suffer substantial injustice if leave to appeal were not granted.

The court found that Mr Sil had not adequately explained the delay in filing his appeal and that there was no reasonable basis to doubt the correctness of the primary judge’s decisions. The court held that Mr Sil’s claims were weak on the merits and that there was no substantial injustice that would result from refusing the extension of time. The court dismissed Mr Sil’s application for an extension of time and ordered him to pay 75% of the respondent’s costs.

This decision underscores the rigorous standards that applicants must meet to secure an extension of time to appeal and the importance of providing a clear and compelling explanation for any delays in filing an appeal. The court’s thorough examination of the evidence and the reasoning of the primary judge reinforces the principle that applications for extensions of time are assessed on the basis of the strength of the case and the likelihood of success on appeal.

Orders

Orders of the court

1. The application for an extension of time be dismissed.

2. The applicant pay 75% of the respondent’s costs.

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

Background

Background to the litigation

The primary judge conducted a final hearing over three days before delivering his reserved reasons thereafter. The applicant, Dhriti Sil, explained that he had difficulty in obtaining transcripts of two interlocutory hearings and the first day of the final hearing, in which he had been cross-examined, and that this delay effectively accounted for almost the whole of the period in which he was unable to prepare and file his draft notice of appeal.BACKGROUND The primary judge dealt comprehensively with Mr Sil’s claims. In broad terms, at the invitation of the Minister, Mr Sil had applied for a skilled regional sponsored provisional visa under cl 489.511(1) of Sch 2 to the Migration Regulations 1994 (Cth). On 25 November 2014, the then Department of Immigration and Border Protection informed Mr Sil that his visa had been granted and that, at that time, he had been required to make his first entry into Australia by 7 October 2015. The stay period of the visa expired on 25 November 2018.The first facilitation notice Subsequently, Mr Sil sought a refund of his visa application fees, saying he no longer wished to come to Australia and engaged in some correspondence with the Department. That resulted in the Department issuing a letter dated 8 September 2015 to Mr Sil informing him that he appeared to be in breach of visa condition 8504 in Sch 8 of the Regulations (the first facilitation notice). The letter noted that it was a condition of his visa that he enter Australia before a date specified by the Minister. As the primary judge found, the letter referred incorrectly to condition 8504. Rather, it should have referred to a similar provision in cl 489.615 in Sch 2 of the Regulations, which also required that first entry for Mr Sil’s visa had to be made before a date specified by the Minister. The letter noted that, through his correspondence, Mr Sil had indicated that he might not comply with the obligation to enter Australia before 7 October 2015. It also noted that the Department had decided not to cancel his visa if he failed to do so but reminded him that the expiry date of the visa was 25 November 2018. The primary judge found that nothing turned on the incorrect reference to condition 8504. Mr Sil subsequently sought clarification as to the date by which he had to enter Australia under the first facilitation notice. The Department responded that he had to do so prior to the ‘must not arrive after date’, being 25 November 2018, when the visa was to expire. On 1 October 2015, Mr Sil informed the Department he no longer wanted to cancel his visa and asked that his previous application for a refund should be now cancelled. After that, Mr Sil sought further clarification as to when he needed to arrive to be able to comply with the visa conditions and he and the Department engaged in further correspondence.The second facilitation notice On 9 November 2015, the Department sent Mr Sil a letter (the second facilitation notice) that contained a materially false representation, namely its statement:Once you have made your first entry to Australia your visa will be valid for three years from the date of that entry.(emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 25 February 2019, general counsel made a decision to accept the recommendation that Mr Sil receive no compensation under the scheme (the compensation decision). On 28 February 2019, the Department notified Mr Sil of the compensation decision. The compensation decision is the subject of Mr Sil’s claim for constitutional writ relief on the basis that it was made in breach of the rules of procedural fairness and or was irrational or unreasonable. THE DECISION OF THE PRIMARY JUDGE In August 2021, Mr Sil commenced the proceeding below in which he challenged the compensation decision and also claimed that the Commonwealth, by its officers, had been negligent in providing him with incorrect advice, being the false representation, by reason of which he had suffered loss and damage. Mr Sil filed extensive affidavit evidence and written submissions. His Honour was confronted at the trial with a court book that was, like the application and appeal papers before the Full Court, in less than good order. Very shortly after the commencement of the first day of the final hearing, counsel for the Commonwealth asked to cross-examine Mr Sil and he did not raise any objection to that occurring. His Honour found that Mr Sil was persistently non-responsive to questions posed by the cross-examiner and, on occasion by his Honour, and repeatedly engaged in making speeches that he perceived would advance his case rather than directly responding to a question posed. His Honour found that Mr Sil well understood the nature of the case he wanted to advance about the false representation and was intent on repeating his principal points at every available opportunity. As we have noted, the second difficulty that his Honour found was with the documentary presentation of the case. The primary judge found Mr Sil to be an intelligent man who obviously paid attention to detail and gave evidence that he did so. Mr Sil also made his intelligence apparent during the course of the hearing today. However, his Honour found that Mr Sil was an unreliable witness and that his evidence was unpersuasive in respect of the second facilitation notice and the interaction between the expiry date of the visa and the false representation. The primary judge found (at [49]–[50]):49It is unfortunate that the False Representation was made. But notwithstanding Mr Sil’s evidence to the contrary, I am not satisfied that he did not know, prior to coming to Australia, that there was at least some ambiguity in the mixed messages he had received. It is possible that Mr Sil simply focussed laser-like on the False Representation and did not appreciate that there was an error in the Second Facilitation Notice (notwithstanding the Expiry Date reference was consistent with earlier communications). But after seeing the manner of his giving of his evidence, and having regard to the contemporaneous documents, I think it is more likely than not that by the time Mr Sil made a final decision that he would come to Australia, he was content to decide to refrain from making further enquiries. It is more probable than not that Mr Sil was aware of the inconsistency between what he had been told, but knew he was armed with the benefit of the False Representation, and trusted that he could rely upon it in due course when it came to any discussion as to the expiry of his visa.50The terms of the December 2017 Query (by which Mr Sil asked the meaning of the False Representation) [being his 19 December 2017 email] are of some significance. If he was as convinced as he now says he was as to the unimpeachable clarity of the False Representation, this sits unhappily with the wording of the December 2017 Query. But it must also be recognised that Mr Sil not seeking clarification with officers of the Department until after he entered Australia is consistent with two states of affairs: first, the one noted above, being Mr Sil knowing he had a “mixed message” and intending to rely on the False Representation; or secondly, a genuine belief in the truth of the False Representation, which only came to be shaken when he commenced dealing with prospective landlords. I cannot exclude the possibility of the latter state of affairs being correct, but as I have found above, I consider it less likely than the former, upon review of all the evidence. In any event, if Mr Sil did have a genuine belief in the truth of the False Representation when he arrived, given the extensive communications and Mr Sil’s ability to seek clarification (which he did frequently as to other aspects of the visa), I do not consider this lack of enquiry to be reasonable in all the circumstances.(bold emphasis added; italics in original)

Ratio Decidendi

Legal Principle Established

He complained that his Honour erred in failing to find that the Department had supressed material from the decision-maker and acted with malice or bad faith. He contended that the decision-maker had ignored relevant material that was in his favour and the Department had failed to disclose to him the responsible business area’s report that supported his case that there had been defective administration and that the Department had given him misleading information. He submitted that there was a clear case that any person in his position would have understood that the visa would be valid for three years from his first entry into Australia and that he was informed of this before he came here by the Department’s letter of 19 October 2017. He said that the focus of the decision-maker and his Honour on the fact that Mr Sil had failed to seek clarification of the false representation was an error.CONSIDERATION An application for an extension of time in which to file a notice of appeal requires the applicant, first, to explain his or her delay, secondly, to establish that each relevant decision was erroneous, or that there was a reasonable basis to argue that it was, and, thirdly, to establish that he or she would suffer substantial injustice if leave to appeal or an extension of time were not granted. That is because an application for an extension of time challenges a respondent’s vested right to retain the benefit of the judgment that is the subject of the proposed appeal, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519–520 [3]–[4], and see also at 539–543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours adopted from what Lord Denning MR had said in Reginav Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E– F (and see also FFM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 405 at 409 [19] per Rares, Stewart and Abraham JJ), namely:We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. The principles that govern the grant of leave to appeal are well established, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29], namely:An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal. We allowed Mr Sil considerable time to develop his points to illustrate why he contended that his Honour had made an error sufficiently to demonstrate that his case had some merit and that there was sufficient reason to doubt the correctness of his Honour’s reasoning. We have had regard to all of the written submissions and material that Mr Sil relied on and his affidavits in support of the application for leave to appeal as the basis of his amended notice of appeal sworn on 27 February 2023.