FEDERAL COURT OF AUSTRALIA Chahal v Minister for Immigration and Border Protection [2017] FCA 1404 Appeal from: Application for extension of time and leave to appeal: Chahal v Minister for Immigration and Border Protection & Anor (Federal Circuit Court of Australia, No. MLG1712/2015, Orders dated 20 April 2017) File number: VID 502 of 2017 Judge: LOGAN J Date of judgment: 13 November 2017 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal against an interlocutory decision for the Federal Circuit Court – summary dismissal of application by Federal Circuit Court for want of appearance – absence of error in Federal Circuit Court decision – application dismissed Legislation: Migration Act 1958 (Cth) Date of hearing: 13 November 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent entered a submitting notice, save as to costs ORDERS VID 502 of 2017 BETWEEN: MANPINDER KAUR CHAHAL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 13 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The application for an extension of time within which to seek leave to appeal and related grant of leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of and incidental to the appeal, to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 This application illustrates the difficulties which can attend the administration of justice when a party to a court proceeding is illiterate in English. The applicant, to my direct observation this afternoon, is such a person. That is not an adverse criticism of her, only a fact. The present application is one for an extension of time within which to seek leave to appeal and a related application for leave to appeal against an order made in the Federal Circuit Court of Australia (Federal Circuit Court) on 20 April 2017 by which that court dismissed an application to set aside a judgment in default of appearance made on 20 March 2017. 2 The application to the Federal Circuit Court was for the judicial review of a decision of the then Migration Review Tribunal (Tribunal) made on 19 June 2015. For reasons given that day, the Tribunal decided to affirm a decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant to the applicant a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth). In her judicial review application, the applicant specified as the ground of review the following: The MRT (now called and known as AAT) erred in not giving consideration to the evidence that the Applicant being myself attended the education provider and complied with my student visa requirements. I provided evidence to support that I am a genuine student entrant. The MRT disregarded that evidence. Accordingly MRT failed to give consideration to the evidence as a matter of law. [sic] 3 The applicant's judicial review application was listed for hearing before the Federal Circuit Court on 20 March 2017. She failed to attend court that day. She did not ignore the listing of the case. Instead, she placed before the court a medical certificate from a General Practitioner, which attested, on its face, to her receiving medical treatment for the period Thursday, 16 March 2017 to Wednesday, 22 March 2017, inclusive. The certificate stated further: He/she was/will be unfit to continue his/her usual occupation/attend school. 4 That particular evidence was not found to be persuasive in the Federal Circuit Court in respect of the failure to appear. As to that, it must be said that the medical certificate was not specific in respect of any inability to appear at court and conduct the prosecution of a judicial review application. In the result, judgment went by default of appearance on 20 March 2017. 5 The applicant then filed on 12 April 2017 an application for the Federal Circuit Court to set aside that default judgment. That court's registry endorsed the application with the annotation that the time and date for hearing would be 20 April 2017 at 2.15 pm and that the hearing's place would be "Court 6G, Level 6, Owen Dixon Commonwealth Law Courts Building, Level 7, 305 William Street, Melbourne." 6 Even on the face of the listing, it can be seen at once that there is a most unfortunate confusion of floor levels placed on the application by that court's registry. Both level 6 and level 7 are specified. 7 It is not controversial that the applicant did attend the Commonwealth Law Courts on 20 April 2017. It is also not controversial that she attended outside court 6G on level 6 that day at 2.15 pm. Further, it is not controversial that she waited for some time thereafter at that particular place. As it happened, and this is apparent from the listing notice for the Federal Circuit Court that day, which was, without objection, received evidence, the listing was changed to Court 2H on level 2 at 2.15 pm. 8 Inferentially, that notice was both published in the press and also fixed on the listings board on the ground floor of the Commonwealth Law Courts. Even for a litigant-in-person for whom English is a first language that change might have, nonetheless, occasioned an honest person unfamiliar with court practice and procedure to attend on the date and at the place specified on the application itself. That particular mistake may have been, nonetheless, less forgivable with a person whose first language is English, at least in the sense their familiarity with the English language would have meant that an inquiry of registry staff or court officers could readily have been made. 9 The position is much more difficult for those whose first language is not English. The long and the short of that is that even though the language of the Federal Circuit Court, as with the other courts of this country, is English, it is necessary to take account of difficulties which can attend changes in venue as they affect persons who are not literate in English. 10 It may be that the applicant had a reason to put to the Federal Circuit Court on 20 April 2017 as to why the default judgment should have been set aside, both in terms of an acceptable explanation for the failure to appear and the underlying merits of her judicial review application. As it was, she was denied that opportunity on 20 April through no fault of her own, I find. 11 It is axiomatic that an exercise of judicial power in the ordinary course of events requires that procedural fairness, in the sense of an opportunity to be heard, be observed in respect of each party. In respect of cases where it is known that a litigant is illiterate in English and there has been affixed to an application a particular place and time for appearing, it may well not be sufficient just to publish in the English language, a change of venue and to place that on a board also in English on the ground floor of the court building. 12 It may be that the court's administration should extend to ensuring that there is an officer in attendance at the place specified on the application to guide a person illiterate in English to the changed venue. 13 However that may be, I am prepared to assume in the applicant's favour that she has demonstrated in respect of the application she made to the Federal Circuit Court to set aside the default judgment, a denial of procedural fairness. The real question as I see it is whether or not that denial has been productive of practical injustice. In other words, it would be futile to extend time and grant leave to appeal if the appeal were doomed to fail, because the only conclusion open on appeal was that the judicial review application was doomed to fail. 14 There is no doubt that the applicant is genuinely dissatisfied with the outcome on the merits before the Tribunal in respect of her review proceeding. But the Tribunal's reasons disclose a very close engagement indeed with the material before the Tribunal measured against the criteria for that particular class of student visa. The conclusion reached by the Tribunal adverse to the applicant in respect of whether or not she was a genuine student was one reasonably open to the Tribunal on the material before it. Thus, even reading the specified ground of judicial review as one which is not a solicitation to merits review, but rather an asserted failure on the part of the Tribunal to discharge its statutory function of review by having regard to the evidence before it, that ground of judicial review is doomed to fail. 15 Very fairly, the Minister, by his counsel, drew attention to paragraph 7 of an affidavit made by the applicant on 17 May 2017 filed in this Court for the purposes of the present application. In that, the applicant states: The Federal Circuit court to see that Tribunal did not accord me, the applicant, procedural fairness (section 359A) and natural justice and did not act as prescribed under the act. [sic] 16 It may be accepted that a transgression of s 359A would amount to jurisdictional error on the part of the Tribunal. The Tribunal's reasons record at [5] through to [13] inclusive, a succession of opportunities extended by the Tribunal to the applicant to make submissions and adduce material supportive of an outcome favourable to the applicant. The Tribunal was not obliged indefinitely to extend such opportunities. That it did extend such opportunities is indicative that the Tribunal observed procedural fairness in respect of extending not one, but successive opportunities to the applicant. 17 It is necessary to remember that, materially, the jurisdictional error ground of denial of procedural fairness has at its heart a denial of opportunity to be heard. And that ground is not established by a failure to take up an opportunity offered. The applicant was unable in submissions to demonstrate that there was an arguable case in respect of a denial of procedural fairness by the Tribunal. 18 Thus, approaching this application either through the prism of the ground of judicial review specified in the application filed in the Federal Circuit Court or through the prism of the alternative of an alleged denial of procedural fairness, the result is an absence of any arguable case in respect of jurisdictional error for the Federal Circuit Court to consider or for that matter, for this Court to consider in the exercise of appellate jurisdiction. 19 In these circumstances, though, ordinarily a denial of procedural fairness by the Federal Circuit Court in respect of an application to set aside a default judgment might warrant a grant of leave to appeal and because the delay is only short, a related extension of time, in the circumstances of this particular case, to grant leave would be futile because any application in that Court would be doomed to fail. For these reasons, the application will be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 4 December 2017