Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 428
•5 May 2023
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 428
Appeal from: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1233 File number: VID 440 of 2021 Judgment of: BEACH J Date of judgment: 5 May 2023 Catchwords: MIGRATION – application for an extension of time to appeal – no question of principle – application dismissed Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 5 May 2023 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr T Creedon Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs and otherwise did not appear ORDERS
VID 440 of 2021 BETWEEN: AVTAR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time to appeal be dismissed.
3.The applicant pay the first respondent’s costs of and incidental to the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The applicant seeks an extension of time within which to seek leave to appeal from the judgment of the Court below made on 4 June 2021 which dismissed the applicant’s application for judicial review of a decision made by the then constituted Tribunal which had affirmed the decision of a delegate of the Minister to refuse to grant to the applicant a Skilled (Provisional) (Class VC) (Subclass 485) visa.
Now the applicant does not require leave to appeal if an extension of time was to be granted given that the decision below was final rather than interlocutory. But as to the extension sought, I would refuse it.
First, the applicant did not appear this afternoon even though he had more than adequate notice of the hearing given the numerous communications from both my chambers and also the Minister’s solicitors.
Second, his application for an extension of time lacked substance, as I will elaborate on in a moment. In the circumstances I have decided to dismiss his application on its merits rather than exercise any summary power of dismissal based upon the applicant’s non-appearance.
Some relevant background
The applicant applied for the visa on 10 September 2012.
One 22 January 2013, the applicant was sent a request by the Minister for more information and asked to reply within 28 days. The applicant was requested to provide a skills assessment. The applicant did not respond to this request.
On 4 March 2013, a delegate of the Minister refused to grant to the applicant the visa on the basis that the applicant had not satisfied cl 485.221 of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate was not satisfied that the applicant’s skills for his nominated occupation of “Baker” had been assessed as suitable by the relevant assessing authority.
On 25 November 2013, the applicant was re-notified of the delegate’s decision as apparently it was perceived that the 4 March 2013 notification was invalid.
On 17 December 2013, the applicant lodged with the Tribunal an application for review of the delegate’s decision.
On 23 April 2014, the Tribunal sent an invitation to the applicant via his representative to appear before it to give evidence and present arguments at a hearing on 27 May 2014. The applicant was also invited to provide to the Tribunal documents in support of his claim to meet the visa requirements by at least 7 days prior to the hearing.
The applicant did not provide any documents to the Tribunal and nor did he appear at that hearing. The Tribunal proceeded to determine the matter pursuant to s 362B of the Migration Act 1958 (Cth) in the absence of the applicant. The Tribunal affirmed the decision to refuse to grant the visa on 28 May 2014.
The Tribunal found that the applicant had nominated the occupation of “Baker”, which was at the time a specified skilled occupation, but that the applicant had not produced evidence of a positive skills assessment for his nominated occupation by Trades Recognition Australia.
The Tribunal found that the applicant’s skills had not been assessed as suitable for the nominated skilled occupation by the relevant assessing authority, and that the applicant therefore did not satisfy the requirements of cl 485.221(1) of the Regulations.
The proceedings below
On 19 June 2014 the applicant filed an application in the Court below seeking judicial review. First, it was said that the Tribunal had failed to accord the applicant procedural fairness. Second, it was said that the applicant should have been allowed an opportunity to obtain a suitable skills assessment.
On 17 September 2014, the application was dismissed by a Registrar for non-appearance. Subsequently, on 6 November 2019, a judge of the Court below made orders setting aside the Registrar’s decision and provided a timetable for the filing of a court book and submissions.
The judicial review application was first listed for hearing before the primary judge on 22 April 2021 but this hearing was adjourned to 25 May 2021 as the applicant advised that he had not received a copy of the court book. The judicial review application was heard on 25 May 2021.
On 4 June 2021, the primary judge dismissed the judicial review application.
As to ground one of the challenge below that had asserted a denial of procedural fairness, his Honour rejected that ground on the basis that the applicant had had every opportunity to put evidence before the Tribunal.
As to ground two of the challenge below that involved an assertion that the Tribunal should have adjourned its review, the primary judge dismissed this on the basis that the applicant had not asked for further time and that it was open to the Tribunal to proceed to make a decision in the absence of the applicant.
The applicant now seeks to challenge the primary judge’s dismissal.
The present application
The applicant has filed an application for an extension of time to seek leave to appeal. But as I have said, the applicant does not require leave to appeal. But the applicant does require an extension of time.
Now the application was filed on 22 July 2021, but the relevant 28-day period prescribed by the Federal Court Rules 2011 (Cth) concluded on 2 July 2021. The application was therefore 20 days out of time, although this is not a substantial delay.
Now in considering the exercise of the discretion to extend time, the Court will ordinarily take into account factors such as the length of and explanation for the delay, any prejudice to the Minister due to the delay, and the prospects of the case succeeding if an extension of time were to be granted.
Now the applicant’s affidavit material contains little by way of explanation for the delay. But the Minister accepts that any prejudice as a result of the delay is minimal. But of course the absence of prejudice in and of itself is insufficient to justify the grant of an extension of time.
The real problem for the applicant in obtaining the extension sought is that his proposed appeal has no reasonable prospects of success. In that context, let me briefly address his proposed appeal grounds.
Proposed ground one
Particular one of proposed ground one asserts that the primary judge erred by not finding that the Tribunal had denied the applicant procedural fairness by not adjourning the hearing once it was known the applicant was indisposed. But the Tribunal’s decision is not affected by any such error. There is no evidence that the applicant requested the Tribunal to adjourn the scheduled hearing or that the applicant had advised the Tribunal that he was unable to attend.
Particular two of proposed ground one asserts that the applicant was denied procedural fairness on the basis that the Tribunal summarily dismissed his application without taking oral evidence. But this misconceives the Tribunal’s function and powers. The Tribunal, as it was entitled to do, proceeded to make a decision on the review pursuant to s 362B(1). The statutory precondition to proceed to make a decision was met when the applicant did not attend the hearing.
Further, in relation to both particulars of proposed ground one, it is relevant to note that the Tribunal invited the applicant to provide the Tribunal with documentation supporting his claim to meet the visa requirements, and to appear before the Tribunal to give evidence and present arguments in accordance with s 360(1). Further, the invitation referred the applicant to the delegate’s decision as providing information about the visa criteria that he needed to satisfy. The invitation also contained a notice to the effect of s 362B, such that it complied with s 360A(5).
When the applicant failed to appear, the Tribunal proceeded to review the decision without taking further action pursuant to s 362B(1). In deciding to make a decision without taking further action to enable the applicant to appear before it, the Tribunal took into account that the applicant had been invited to a hearing and had failed to contact the Tribunal to explain his non-attendance.
Clearly, the Tribunal’s decision to proceed was within the bounds of its decisional freedom, given the applicant’s failure to engage with the Tribunal at any stage in the review process.
The primary judge properly considered these matters and held that the applicant was not denied procedural fairness, and that the Tribunal’s decision to make a decision on the evidence before it was open to it in the circumstances. There was no error in this conclusion.
Proposed ground two
Proposed ground two asserts that the primary judge erred by not considering the applicant’s skills held at the time that the applicant applied for the visa. But this ground has no merit to it.
This ground appears to assert that the primary judge should have considered the merits of the applicant’s application for the visa. But of course his Honour could not review the factual merits of the application for the visa. The task of his Honour was to consider the legality of the Tribunal’s decision, which his Honour correctly did.
The skills held by the applicant at the time of his visa application were not otherwise relevant to the task his Honour was engaged in. His Honour appropriately considered whether the Tribunal’s decision was open to it having regard to the regulatory framework and the evidence provided by the applicant.
This ground also is not reasonably arguable.
Conclusion
In summary, there is no merit in the applicant’s proposed grounds of appeal.
For the reasons given, the applicant’s application for an extension of time must be refused with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 5 May 2023
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