FEDERAL COURT OF AUSTRALIA

SZVAG v Minister for Immigration and Border Protection [2015] FCA 176

THE COURT ORDERS THAT:

1.    The application for extension of time and leave to appeal be dismissed.

2.    By consent, Christopher McArdle pay the first respondent’s costs, fixed in the sum of $4,000.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), dismissing the applicants’ claims for constitutional writ relief: SZVAG v Minister for Immigration [2014] FCCA 2534. Relevantly, r 44.12(1)(a) provides:

At a hearing of an application for an order to show cause, the Court may:

(a)    if it not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application.

Background

2    The applicants, a mother and father together with their son, sought protection visas under s 36(2) of the Migration Act 1958 (Cth). On 7 August 2014, the Refugee Review Tribunal affirmed the decision of the Minister’s delegate, made on 16 July 2013, to refuse to grant the applicants and their son those visas. The applicants claimed they were genuine followers of the local church in China, commonly known as the Shouters, and that the female applicant also had practiced her belief by participating in local church activities in Australia, together with their son. Suffice to say that the Tribunal found that, considering the totality of the evidence before it, including a number of concerns as to the credibility of the applicants, it was not satisfied that the applicants or their son were genuine believers in the local church or that they had any intention or desire to participate in the local church faith should they return to China.

3    In those circumstances, the Tribunal considered that the bases on which the applicants claimed protection visas under the Refugees Convention or under the complementary protection ground in s 36(2)(aa) of the Act could not be sustained. That was because it was not satisfied that the applicants or their son, in the past, had participated in any local church gatherings or activities in China or that the female applicant currently was, or had been, an actual or perceived active or evangelical participant in local church activities in this country or in China. Accordingly, the Tribunal was not satisfied that either of the parental applicants presently had, or would have in the reasonably foreseeable future when they returned to China, any actual or perceived profiles as participants, leaders or promoters of the local church. It also found that it was not satisfied on the evidence that any element of the Chinese authorities or any person or entity in China had or would have the requisite intention of inflicting any harm on either of the two parental applicants. For those reasons, the Tribunal was not satisfied that the applicants had established that Australia owed them protection obligations under s 36(2)(a) or (aa) of the Act.

The proceedings in the Court below

4    On 5 September 2014, the applicants, through their solicitor, Christopher McArdle, filed an application in the Federal Circuit Court that was given its first return date of 29 September 2014. That application contained the following grounds:

1.    The Applicant [sic] appeals against or in the alternative seeks a declaration as specified above [a declaration that the Tribunal’s decision was not made in accordance with law] regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 7 August 2014 on the grounds that it was not a decision under the act [sic].

Particulars

i.    Section 5E

ii.     Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.

2.    The Tribunal appeared to “come what may” not permit the facts as to religious intolerance in China to be considered. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s [sic] Religious involvement.

3    The Tribunal was apparently so predisposed [sic] to refuse to believe the applicant [sic] as to deny them procedural fairness by way of statutory breach

4.    The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.

5.    Such other grounds as this Honourable Court may deem just.

5    Mr McArdle gave the lawyer’s certification required by s 486I of the Act that, as the lawyer filing the document commencing that migration litigation, he certified “that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success”.

6    On 11 September 2014, Mr McArdle’s firm filed an affidavit of an interpreter that annexed a transcript of the proceedings in the Tribunal, at which the three visa applicants had given evidence and made submissions to the member.

7    On 23 September 2014, the Minister’s solicitors filed a response that, relevantly, noted that the grounds of the application appeared to be materially identical to those in three other proceedings, and that, as pleaded, those grounds failed to raise an arguable case of jurisdictional error on the part of the Tribunal, so that in the absence of proper particulars the grounds pleaded were incapable of a meaningful response. The Minister’s response said that he opposed the application to show cause and, accordingly, would seek immediate dismissal of the proceedings on the first Court date on 29 September 2014.

8    On 24 September 2014, the solicitors for the Minister emailed Mr McArdle attaching a copy of the filed response and saying that they were instructed not to agree to any short minutes of order prior to the first Court date and to seek to have the proceedings dismissed on that occasion for the reasons raised in the response. Mr McArdle responded shortly afterwards on the same day. In his email he said that it was premature to seek a dismissal of the first Court date, in view of the fact that his firm had not had the opportunity to particularise the claim, and that they had done that in previous matters at the time of submissions causing no difficulties for the Minister. He added:

In anticipation of your foreshadowed applicant [sic] to dismiss, we will provide the particulars of the claimed breaches of the Act by 5 pm Friday 10 October.

9    Through oversight, Mr McArdle’s firm did not attend at the first Court date on 29 September 2014, and on that occasion the trial judge gave the Minister leave to file an application in a case for summary dismissal, returnable on 15 October 2014. His Honour directed that any such application be filed and served on or before 3 October 2014, and the parties file written outlines of their submissions by or before 13 October 2014.

10    In the event, the foreshadowed particulars to which Mr McArdle had referred in his email of 24 September 2014 were not provided. He did however file, in accordance with his Honour’s direction, some submissions on 13 October 2014, in which he pointed out that the usual procedure in the Federal Circuit Court was for time to be given to applicants for instructions to be obtained once the transcript had been received. He noted, erroneously, no doubt through oversight, that that had been on 18 September 2014, rather than on no later than 11 September 2014. The submissions frankly stated:

We acknowledge that there are no particulars. That is because of the timetabling referred to above.

We suggest most strongly that there will be particulars provided in a proper expeditious manner.

11    The submissions went on to assert that that would be so, in what he claimed was the usual timetable, that would have given him until 3 November 2014 to file an amended application and any further affidavit evidence. The submission also contended that there was no disposition to “hurry on” applicants or respondents in the Federal Circuit Court, that matters had to be filed expeditiously but in a way that did not prejudice one side or the other.

12    Mr McArdle’s submissions, both written and oral, on 15 October 2014 gave no particularisation of the grounds in support of the original application.

The trial judge’s decision

13    Unsurprisingly, his Honour noted that, although Mr McArdle had been away overseas until 4 October 2014, since then he had had over a week and a half to provide some substance to the application beyond what appeared in it, but that rather than doing so, the applicants had filed written submissions that made the points to which I have adverted above. In particular, his Honour referred to the submission that in the future the applicants would give some better particularisation. His Honour noted the applicants’ argument that they could provide particulars if a more generous timetable were provided, as it had been in the past in similar matters on other occasions.

14    His Honour rejected that argument, saying that it was really no more than an argument that the timetable that the applicants preferred should apply, notwithstanding that the Minister had stated his concerns in relation to their application as early as his response and then in his application in a case. The trial judge observed that once the application in a case had been filed, the applicants’ minds should have been concentrated on the provision of particulars so as to ensure that those would have been provided by the time of the hearing on 15 October 2014.

15    His Honour noted that no application had been made to him for further time to provide those particulars. His Honour found that it had not been proved that the applicants and their representatives had had no opportunity to identify even one arguable particular. He found that, as was patent, the application raised no arguable case and consequently dismissed it, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules.

This application

16    The dismissal of an application on the ground that it does not raise an arguable case is, of course, interlocutory: see Re Luck (2003) 203 ALR 1 and r 44.12(2) itself. The Minister does not suggest that there is any prejudice in the lateness of the filing of the application for an extension of time and is content for that to be determined on the basis that, if a proper foundation for the grant of leave to appeal were established, the Court could look at the merits of the leave application itself. That was an entirely proper concession.

17    The proposed grounds of appeal are that the trial judge erred:

    in exercising his discretion to strike out the proceedings on the grounds that the applicants had failed to raise an arguable case;

    in disregarding delay beyond the control of the applicants or their representative, by reason of the transcript being unavailable, Mr McArdle’s absence overseas, the short notice of the intention to bring the strike-out application and in disregarding the applicant’s undertaking to provide those particulars upon receipt of that strike-out application;

    by not allowing the applicants a reasonable time for the provision of particulars to show an arguable case.

The applicants’ submissions

18    Mr McArdle referred to the well-known passage in House v The King (1936) 55 CLR 499 at 504-505 where Dixon, Evatt and McTiernan JJ described the principles governing when a court can interfere with the exercise of a judicial discretion. In support of his application that leave to appeal be granted and the appeal allowed, so as to allow the applicants’ case to progress to a hearing, he also provided, with his written submissions in this Court, a proposed amended application that would contain the following marked up particulars to establish an arguable case in the Court below.

Grounds of application (see Instructions for completion)

1.    The applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 7 August 2014 on the grounds that it was not a decision under the act.

Particulars

i.    Section 5E

ii.    Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious see inter alia page 12 and 13 Decision record, paragraphs 31 and 32).

2.    The Tribunal appeared to “come what may” not permit the facts as a religious intolerance in China to be considered. The Tribunal misapplied the required application of the Refugee Convention with respect to the applicant’s Religious involvement.

    Particulars

    i.    Inconsistencies of conclusion in paragraphs 31 and 32.

ii.    Discounting of genuineness of belief in Church in Australia despite Section 91R(3) (b).

3.    The Tribunal was apparently so predisposed to refuse to believe the applicant as to deny them procedural fairness by way of statutory breach. The Tribunal did not accord procedural fairnjes to the Applicants

Particulars

3.    The Tribunal did not exercise its discretion to correctly consider personal evidence from the teenage son of the first applicant despite Section 424, by taking that evidence as it did (transcript pages 34 - 35 inter alia)

4.    The Tribunal did not adhere to Section 91R(2) (a) of the Act when considering likelihood of loss of liberty if applicants returned to China.

Particular

i.    WZAPN v MIBP [2014] FCA 947 whereby threat to liberty is held not to require qualification other than to be beyond de minimus.

5.    The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.

Particulars

6.    i. Page 17 paragraph 9 of the transcript, whereby Member debates with applicant rather than probes truth).

4.ii.    Lack of regard in the transcript when applicant appears to give satisfactory answer, leading Member to simply try another tack in a reasonably apparent attempt to trip the applicant up (see inter alia page 21 paragraph 4)

Such other grounds as this Honourable Court may deem just.

19    Mr McArdle repeated the arguments in substance that he had put to the trial judge, saying that there would be no prejudice, and it was the usual course, for the applicants to have been allowed further time to amend their application so as to disclose a case that could go forward to trial. He contended that there was no reason why the trial judge should have dismissed the proceedings and that the applicants would suffer substantive prejudice because they would be removed from Australia if their proceedings were not allowed to proceed. He relied on the caution which the courts have expressed in dealing with applications to dismiss proceedings summarily, pointing to what Gaudron, McHugh, Gummow and Hayne JJ had said in Agar v Hyde (2000) 201 CLR 552 at 575-576 [57] namely, that it was well accepted that a court whose jurisdiction had been regularly invoked should not decide the issues raised in those proceedings in a summary way except in the clearest of cases and that, ordinarily, a party ought not be denied the opportunity to place his or her case before the court in the ordinary way after taking advantage of the usual interlocutory processes. Their Honours pointed out that the test had been expressed in various ways but all of the verbal formulae that had been used were intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

Consideration

20    The principles that govern the grant of leave to appeal are well established: an applicant for leave must establish that first, the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

21    Of course, r 44.12 is supported by the statutory power in s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and its analogue in section 31A of the Federal Court of Australia Act 1976 (Cth). Mr McArdle made no submissions to suggest that the form of the application before his Honour, unsupported as it was at the time of the hearing on 15 October 2014 by any particularisation, was sufficient to disclose an arguable case. Plainly it was not. First, the particulars of ground 1, “transcript and evidence, whereby the Tribunal refused to accept facts that are obvious” was nothing more than an attempt to raise an unsupported argument that had every appearance of quibbling with the Tribunal’s findings of fact. It did not have the character of an allegation that the Tribunal’s findings had amounted to a jurisdictional error on the basis there was no evidence at all to support the conclusions to which it had come. Rather, the particular asserted that the Tribunal should have formed a view on the merits different to that at which it had arrived. The second ground again amounted to no more than an attempt to engage in merits review which was unarguable: see, e.g., Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 177 [36] where French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that:

The conclusion that the Tribunal erred in giving “no weight” to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.

22    In Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ applied what Brennan J had said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. (emphasis added)

23    Grounds 3 and 4 in the application before his Honour were unparticularised assertions of apparent bias. The former could only have been sustainable if there were some particularisation of the Tribunal’s alleged conduct of the proceedings prior to the delivery of its decision, from which a fair minded person might think that the decision maker might not bring a fair and impartial mind to making the decision, being an objective assessment of the view to which a hypothetical lay person might arrive, having been properly informed as to the nature of the proceedings, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ; see too Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235 [37] per Rares and Jagot JJ.

24    Given that there was no identified basis on which the allegation in ground 3 was put forward, his Honour was entitled to find that it raised no arguable case. The fourth ground appeared to assert that a reading of the Tribunal’s reasons would lead to a perception of an apprehension of bias, without any particularisation of how that might be so. The Tribunal is not required to accept uncritically an applicant’s claim. That is a matter that would be understood by the fair-minded and lay observer: SZJSS 243 CLR at 178 [43]-[47]. Yet, no particularisation was given of those serious allegations made against the Tribunal. In those circumstances there was no material before the trial judge, other than Mr McArdle’s bare assertion that if given more time, he would formulate a case that might be arguable. In my opinion, that argument was correctly rejected by his Honour.

25    As French CJ, Kiefel, Bell, Gageler and Keane JJ pointed out in Expense Reduction Analysts Group Proprietary Limited v Armstrong Strategic Management and Marketing Proprietary Limited (2013) 250 CLR 303 at 321 [51], case management is an accepted aspect of the system of civil justice administered by the courts in Australia. They said:

It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University [(2009) 239 CLR 175] was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.

26    The Federal Circuit Court and this Court must be mindful in migration litigation that s 477(1) of the Migration Act provides that applicants who seek to challenge adverse migration decisions, including those of the Tribunal, have only 35 days to file an application for a remedy in the Federal Circuit Court. Many such applicants have no capacity to pay for legal advice, and often depend upon persons acting pro bono in their interests, or having to act for themselves. The time constraints imposed by the Act and the particular obligations imposed by s 486I on legal practitioners who act for applicants in preparing proceedings must be balanced, having regard to the interests of justice and the requirements of the legislation, so that the conduct of all litigation in the Federal Circuit Court can proceed efficiently, but in a way that achieves an adequate time for applicants to formulate and prepare the substantive case which they wish to run. Ordinarily, there is, as happened here, a reasonable time between the filing of the application initiating the proceedings in the Court below and the first return date. Moreover, applicants also have the opportunity on that occasion to seek the Court’s leave to make amendments that, among other things, can take account of material that might become apparent once a transcript of the proceedings before the Tribunal comes to hand and can be properly reviewed by a lawyer or an applicant.

27    The problem in this particular case is that Mr McArdle’s firm received the transcript no later than 11 September 2014, yet by 15 October 2014 he had provided no particularisation of any basis, arising from either the transcript or the decision record of the Tribunal recording its decision of 7 August 2014, to support any of the allegations in the unamended application. His Honour was entitled to take the view that nothing more should be allowed to be done before considering whether there was arguable case. This was particularly so as no application had been made to him to rely on further particulars, merely an assertion that they would be given. In effect, Mr McArdle was asserting he was entitled to a more generous timetable, apparently without even making a formal application for it. Mr McArdle put no evidence on as to his having had any inability actually to comply with the requirements of pleading and particularising the applicants’ case in the period up to the time of the hearing before his Honour. In those circumstances, the result at which his Honour arrived was inevitable.

28    Nonetheless, I have considered whether the proposed amended application attached to Mr McArdle’s written submissions in this Court disclosed anything that might properly be put forward as a case from which the applicants have been shut out by reason of his error of judgment and which might form any basis for consideration of a grant of leave to appeal or allowing of the appeal. Regrettably, the proposed amended application is devoid of any substance. The first two grounds seek to engage in merits review and quibble about some of the Tribunal’s findings. The third ground asserts a failure to accord procedural fairness because of the Tribunal’s failure to “correctly consider personal evidence from the teenage son of the first applicant”. This complaint may have contained a possible argument but that was a matter that had been well known to the applicants at the time of the application and beforehand, since it was apparent from the Tribunal’s decision record. No explanation for raising it late was advanced. That possible argument did not depend upon the niceties of the transcript, although the ground contains a particular which seeks to refer to the transcript. The fourth ground again seeks to engage in merits review, notwithstanding its invocation of the decision of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The Tribunal’s findings of fact and its decision record demonstrated that the proposed argument is not capable of reasonable prospects of success. The assertion of bias in ground 5 are supported by two particulars. Those particulars cavil with two questions that the member asked. The first question arose after the male applicant said that he had worked for a company for six or seven years and the member then pointed out that that was:

A bit different from what you’ve originally written in your form. Your protection visa application form. Your form says that you were working for the one company between January 1993 and December 2006.

29    The pleaded suggestion that the member was debating with the applicant rather than probing the truth when pointing out an inconsistency between working for someone for 6 or 7 years as opposed to 13 or 14 years has no intelligible foundation as an allegation of appearance of bias. It was clearly within the Tribunal’s ordinary functions to seek to elicit the position in its inquisitorial task. The second allegation concerned the member’s introduction of, or change to, a new topic in discussing with the male applicant some of the activities of his wife (the other parental applicant) and her history. The question complained of was as follows:

Now, what work was she doing at the time that she became most interested in the local church?

The preceding question and answer were:

Member:    So what changes did you notice in her behaviour?

Interpreter:    I feel it seems her attitude toward people. Before we had conflict due to trival things. After she believes in God, I feel she is harmonious and smooth in our relationship. For me, I’m convinced and changed.

30    Once again, the question complained of and the questions preceding and following disclosed no possible basis on which the test for appearance of bias could be satisfied or a proper foundation upon which such a serious allegation could be alleged.

Conclusion

31    For the reasons above, I am not satisfied that any injustice would be suffered by the refusal of leave to appeal. In my opinion, there is no reason to doubt the correctness of the decision of his Honour to dismiss the proceedings in the form in which they were before him on 15 October 2014 under r 44.12(1)(a). Moreover, I am not satisfied that substantial, or any, injustice would result from a refusal of leave to appeal.

32    Accordingly, I refuse the application for extension of time and leave to appeal.

Associate:

Dated:    9 March 2015