FEDERAL COURT OF AUSTRALIA

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344

ORDERS

THE COURT ORDERS THAT:

1.    The time in which the applicant may file an application for leave to appeal is extended to 7 June 2016.

2.    The application for leave to appeal is dismissed.

3.    The applicant pay the first respondent’s costs of the application for leave to appeal.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    This is an application for an extension of time and leave to appeal from orders made by the Federal Circuit Court of Australia on 18 May 2016. On that day the Federal Circuit Court dismissed an application, which it took to be made pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), to set aside the orders of a Registrar of the Court made in the absence of a party: see CAL15 v Minister for Immigration and Border Protection [2016] FCCA 1537.

2    The Registrar’s orders were made at a directions hearing on 2 March 2016, at which the applicant failed to appear. In the Federal Circuit Court proceeding, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 1 September 2015. That decision affirmed a decision of a delegate of the Minister to refuse the grant of a Protection (Class XA) visa.

3    Consequent upon the applicant’s failure to appear at the directions hearing, the Registrar dismissed the application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules and ordered the applicant to pay the Minister’s legal costs fixed in the sum of $1,367. The drastic effect of the power in r 13.03C(1)(c) is ameliorated by the discretion reposed in the Federal Circuit Court under r 16.05 to reinstate a proceeding which has been summarily dismissed for non-attendance.

4    As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

5    However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.

6    The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.

7    In the present case, the Federal Circuit Court was not persuaded the applicant had an adequate explanation for his non-attendance. He had explained that he had confused the date and that he had thought the date of the hearing was 3 March 2016. It was not until he checked his email that he realised it was on 2 March 2016.

8    The Federal Circuit Court said (at [10]):

I agree with the Minister that this is not an adequate reason for the Applicant’s non-attendance. It is the Applicant’s application for judicial review. It is a serious application. He wants to have the Tribunal's decision quashed. and it is a decision in relation to a Protection Visa. The Applicant was under an obligation at all times to ensure that he was properly informed of the date of every Court date, including a directions hearing.

9    The Federal Circuit Court was also not persuaded the applicant had an arguable case on judicial review. An immediate impediment to many of the applicant’s criticisms of the Tribunal’s decision was that he had not attended the Tribunal hearing. The Federal Circuit Court explained (at [15]-[17] of its reasons) how this came about (omitting Court book references):

On 6 November 2014, the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant attached a copy of the delegate’s decision with the application, as he was required to do, and the Applicant indicated in his application that JK Legal continued to represent him, and provided email address of JK Legal for correspondence.

On 11 August 2015, the Tribunal, sent correspondence by email to the Applicant’s representatives, inviting the Applicant to give evidence and present arguments at a hearing scheduled for 26 August 2015 at 9.30am. The letter, amongst other things, informed the Applicant that if he did not attend the hearing, the Tribunal may make a decision without taking further action to allow or enable him to appear before it. The Tribunal also attached a ‘Response to a Hearing Invitation’ form to be completed and, in that form, under the heading ‘Part 1 – Who will take part in the hearing?’ – it stated:

“Please note that if you select ‘No’ in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us.”

On 25 August 2015, the Applicant’s representative sent, by email, to the Tribunal a completed ‘Response to Hearing Invitation’ form. Relevantly, under the heading ‘Part 1 – Who will take part in the hearing?’, in response to the question, ‘Will you take part in the hearing scheduled for 26 August 2015?’, the ‘No’ box was ticked in relation to both the Applicant and the Applicant’s representative.

10    At [18]-[20] of her reasons, the learned Federal Circuit Court Judge set out how, in her Honour’s opinion, the Tribunal was “perfectly entitled” to proceed to determine the matter in the absence of the applicant. If taken as a statement of power, that is a correct statement in relation to s 426A of the Migration Act 1958 (Cth). It appears her Honour also meant “entitled” as a matter of discretion. Her Honour appears to have based that opinion on the fact that the applicant was represented by a lawyer and migration agent who had, on his behalf, indicated a conscious choice had been made that neither the applicant nor his representative would attend the hearing. Her Honour then proceeded to reject the applicant’s three grounds of judicial review (two considerations grounds and an error of law ground) on the basis that the applicant was unable to develop before her what he meant by any of these grounds. Independently however, her Honour expressed the opinion that the Tribunal’s decision was (at [24]):

a well-reasoned consideration of all the claims before it, and I note here, of course, that the evidence before the Tribunal was very limited because the Applicant and his representative had failed to contact the delegate to attend an interview, and had also decided not to attend the Tribunal hearing, to enlarge upon the written material the Applicant had provided.

11    Given the applicant was unrepresented, unfamiliar with the Australian legal system, and did not have English as his first language, it was appropriate for the Court to consider for itself whether on the material before it any arguable ground of judicial review was evident in relation to the Tribunal’s decision. Otherwise, a person in the position of this applicant has no real or meaningful access to the supervisory jurisdiction of the Federal Circuit Court, which is expressed to be of the same nature as the constitutionally entrenched supervisory jurisdiction of the High Court under s 75(v) of the Constitution: see s 476(1) of the Migration Act.

THIS APPLICATION

12    The decision not to set aside the Registrar’s orders of 2 March 2016 was an interlocutory decision: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [1]( Ryan J); BTR15 v Minister for Immigration and Border Protection [2016] FCA 892 at [17] (Edelman J). Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that for an appeal to be brought from an interlocutory decision the applicant must be granted leave to appeal.

13    The applicant is also out of time to apply for leave to appeal. He was required by r 35.13 of the Federal Court Rules 2011 (Cth) to file his application for leave within 14 days after the date on which the judgment is pronounced or order made, or such later date as is fixed. Since the Court did not fix any later date, the time for seeking leave to appeal expired on 1 June 2016, and the applicant did not file his application until 7 June 2016.

14    A period of six days out of time is a short period. The time limit in the rules is itself a short period for a person without legal training and unfamiliar with the Australian legal system to prepare and file an application. There is also the fact that the applicant had no access to the written reasons of the Federal Circuit Court at the time of his application.

15    The Minister confirmed that the revised reasons of the Federal Circuit Court were provided to the applicant on 15 July 2016 – nearly six weeks after the due date for the applicant to file an application for leave to appeal in this Court.

16    I am satisfied in the circumstances that it is in the interests of the administration of justice to extend the time in which the applicant may file his application for leave to appeal.

17    The principal question is whether leave to appeal should be granted. As the Minister submitted, the exercise of that discretion is generally guided by two considerations: namely, whether in all the circumstances the Federal Circuit Court’s decision is attended by sufficient doubt to warrant reconsideration; and whether substantial injustice would result from a refusal of leave to appeal: Décor Corporation Pty Ltd v Dart Industries (Inc) [1991] FCA 655; 33 FCR 397 at 398-99.

18    However, the discretion is in its terms unconfined and a variety of other factors may be relevant, and indeed determinative, in any given case. The discretion exists to serve and advance the interests of the administration of justice – the variety and combination of circumstances in which it might be appropriate to exercise it for that purpose require that the discretion remain a broad one, not to be formulaically applied.

THE APPLICANT’S CONTENTIONS

19    Initially, the applicant failed to respond at all to directions made by the Court, or to attempts by the Court to contact him to ascertain why he had not filed any submissions and whether he intended to attend the hearing of his application. This non-responsiveness continued for approximately two weeks, despite efforts by both Registry staff and my associate, on each occasion with an interpreter available on the telephone to ensure communication with the applicant was effective.

20    Eventually, on 9 November 2016, two days before the hearing, the applicant answered a call from my associate. Through an interpreter she explained to him that he should file any submissions he wished to rely on as a matter of urgency, and explained to him about attending Court for the hearing of his application on 11 November 2016. Although the applicant assured my associate he would file submissions, none were forthcoming. He did however indicate he would attend the hearing

21    The matter was called on at 10.15 am on 11 November 2016 and the applicant did not appear. The Court officer called the applicant’s name outside the Court and checked to see he was not sitting outside or in the wrong courtroom. My associate telephoned the applicant twice, and on the second occasion the applicant answered. He stated that on 10 November 2016 he went to a lawyer or migration agent to discuss this proceeding, but he could not give any details of who that person was. He stated that the lawyer or migration agent did not give him any documents for the Court and accordingly he had nothing to give the Court. He also confirmed he did not wish to say anything to the Court in person and did not wish to appear at the hearing.

22    In those circumstances I proposed, and the Minister accepted, that it was appropriate to determine the application on its merits.

23    I turn to consider the applicant’s contentions in his written application.

24    As to any doubt attending the decision of the Federal Circuit Court, the applicant contended in his written application there were seven grounds on which the Federal Circuit Court decision was attended by error (and therefore, I infer, doubt). They were:

(1)    The judge erred at law and in fact.

(2)    The judge took account of irrelevant considerations and failed to take account of relevant considerations.

(3)    Denial of procedural fairness – the applicant was not aware his case was being heard on 8 March 2016 and was not prepared to run his case on 8 March 2016.

(4)    Denial of procedural fairness – the applicant was not provided with an interpreter and did not understand what was happening or what the judge was saying about his case.

(5)    Denial of procedural fairness – the applicant not provided with any written reasons for the judgment.

(6)    Denial of procedural fairness – the applicant’s lawyer failed to provide legal assistance.

(7)    The Tribunal failed to consider a claim to protection based on his religion (as a Sikh).

25    The applicant did not provide any details of the first two grounds.

26    The applicant having not developed these grounds, and given he is unrepresented, I have considered them for myself against the decision of the Federal Circuit Court. Her Honour took an orthodox, and correct, approach to determining the reinstatement application, and it is not apparent that she made findings based on no evidence, or mistook a critical fact. There are no mandatory considerations prescribed by r 16.05: to the contrary, the discretion is broad and unconfined. These two grounds are without merit.

27    As to the third ground, as the Minister submits, it appears the applicant has mistaken the date of the Federal Circuit Court hearing and decision, but that is of small consequence. His substantive contention is that he was unprepared to “run his case” for re-instatement on the day it was heard by the Federal Circuit Court.

28    I do not consider there is an arguable case that the Federal Circuit Court denied the applicant procedural fairness on this day. He did not seek an adjournment. It is apparent from the reasons that the Court prompted him, by questioning, to address the matters the law required him to address. The applicant has not identified anything of substance he would have said or done had he been given more time. On the materials, it is difficult to see what else he might have said.

29    As to the fourth ground (no access to an interpreter), the Minister made the following submissions:

The application to this Court is the first time that the applicant has stated that he needed an interpreter. Throughout the application process for the Visa, and review hearings, the applicant has consistently answered “no” to the question “will you need an interpreter?”

In his application for a protection visa dated 6 February 2014, the applicant answered “no” to the question “If you are called for an interview, will you need an interpreter?” (CB 1, Q 10). This application was deemed invalid.

In his further application for a protection visa, the applicant again answered “no” to the question “If you are called for an interview, will you need an interpreter?” (CB 77, Q11). The application was completed in English, and the statutory declaration was declared before a lawyer who was a migration agent (CB 89), appointed by the applicant to act on his behalf (CB 104). The applicant declined to take part in the Tribunal hearing (CB 183).

In his application for review to the Federal Circuit Court he indicated he did not require an interpreter for the purposes of his review application in that Court (CB 202).

In those circumstances, it is not a denial of procedural fairness for the applicant not to have been provided with an interpreter. Further, the reasons of the primary judge indicate that the applicant understood the questions he was asked and was able to respond to those questions. To the extent that the applicant complains that there was no interpreter to explain the legal consequences to him of the dismissal, that is a matter that is properly the subject of legal advice, not translation. This ground lacks merit.

30    Those submissions should be accepted.

31    As to the fifth ground, a complaint about the subsequent delivery of written reasons for judgment is not a complaint which is capable of giving rise to a claim for denial of procedural fairness in the exercise of the discretion under r 16.05. Delivery of reasons is a step subsequent to the exercise of the discretion: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 at [44]-[48] (Gleeson CJ, Gummow and Heydon JJ), [55] (McHugh J). Whether or not a failure to give reasons is a denial of procedural fairness in terms of the exercise of any appeal or review rights (whether by leave or otherwise) is not a matter raised by this application.

32    In any event, as the Minister submitted, the applicant was present when her Honour delivered ex tempore reasons for her decision, and subsequently received written reasons revised from the transcript. The later provision of written reasons might be a factor tending to suggest to me that the leave application should be extended (as I have found), but it does not go to the question whether leave should be granted.

33    The sixth ground (failure of the applicant’s lawyer to provide legal assistance to him) is developed by the applicant in his affidavit in support of the leave to appeal application.

34    In that affidavit the applicant claims he was not provided with any or adequate legal assistance during the protection visa application and review process, despite paying his lawyer. He deposes that he was not well and did not know how to find legal representation before the set date of the Tribunal’s review hearing.

35    These are not complaints about the decision of the Federal Circuit Court: they are complaints about the decision of the Tribunal. It is the decision of the Federal Circuit Court which is the subject of the present application. It is not apparent that the application raised this argument before the Federal Circuit Court: rather, it appears to be a new argument. It does not raise an arguable case that the Federal Circuit Court decision is attended by sufficient doubt to warrant the grant of leave to appeal.

36    I also accept the Minister’s submissions that this contention is inconsistent with the explanation given to the Federal Circuit Court by the applicant as to why he did not attend the directions hearing before the Registrar. As I have noted earlier, the explanation then given was that he was confused about the date of the hearing. There was no mention of any health issues.

37    The seventh and final contention is also developed in the applicant’s affidavit. In that affidavit he states that he believes he was assaulted in India (the assault forming part of his claim to protection) because of his religious faith as a Sikh. The Minister correctly submits that the Convention ground of religion was not relied on by the applicant in his protection visa application, and he made no claim on judicial review to the Federal Circuit Court that the Tribunal had failed to consider a claim he made based on his religion. This is, in my opinion, a claim made for the first time in this application. As such, it cannot be used to identify error in the decision of the Federal Circuit Court, especially when that decision involves the exercise of a discretion.

38    At the hearing the Minister’s counsel properly pointed to the contents of para 14 of the applicant’s second affidavit. That paragraph could be seen as contending that the applicant also feared persecution on the ground of his race or ethnicity as a Sikh. Even if that contention is made, it must be resolved in the same way as the applicant’s seventh contention.

CONCLUSION

39    On the basis of the matters raised by the applicant, I am not satisfied that the decision of the Federal Circuit Court is attended by sufficient doubt to warrant the grant of leave to appeal.

40    Given that the applicant is unrepresented, unfamiliar with the Australian legal system and a person whose first language is not English (although he is reasonably fluent in English), I have also considered the Federal Circuit Court’s decision independently, and I am not satisfied that there is any other basis on which it might be said to be attended with sufficient doubt to warrant the grant of leave to appeal. Her Honour was not presented with any substantive contentions on the three asserted errors of law in the Tribunal’s decision, and so it cannot be said, for example, that her Honour imposed too high a threshold on what was “arguable” about errors in the Tribunal’s decision. This was a situation where nothing at all was really developed by the applicant – through no fault of his own, I hasten to add. Her Honour then did examine the Tribunal decision independently and it is not possible on the evidence before me to say that she did so in a way which was attended by sufficient doubt to warrant the grant of leave to appeal.

41    The applicant’s failure to attend the Tribunal hearing was clearly prejudicial to the prospects of his review application succeeding. Although he deposes that he was not provided with any real assistance by the lawyer he retained (and, implicitly, that it was this failure by his lawyer which led to him not attending the Tribunal hearing), even if that complaint is sustainable, it does not identify any legal error in the Tribunal’s application of the law to his review, nor does it identify any failure to adhere to the Tribunal’s procedural fairness obligations. If the applicant’s evidence is correct (and it would be beyond the scope of the present leave application to make findings on that issue), it may establish a gross failure of professional duty to the applicant, but even such a gross failure cannot be transformed into a jurisdictional error on the part of the Tribunal in making its decision on his review.

42    In light of my conclusions about whether the Federal Circuit Court’s decision is attended by sufficient doubt, it is unnecessary to address whether a substantial injustice would occur if leave to appeal were not granted. In one sense, there can be no substantial injustice if the appeal has no real prospect of success. However, securing a judicial review of the Tribunal’s decision is the only avenue open to the applicant to attempt to secure for himself a different outcome on his protection visa application, and the consequences for the application in terms of his liberty and his ability to remain in Australia are substantially dependent on the success of his protection visa application. In that sense, refusing leave to appeal is capable of causing him substantial injustice because it denies him access to full judicial review. If I had reached active consideration of this factor, and there was merit in the applicant’s challenge to the Federal Circuit Court decision, I may have been persuaded there was a sufficient prospect of substantial injustice for leave to appeal to be granted.

43    There are no other relevant factors to consider on this particular leave application.

44    Accordingly, the application for leave to appeal must be dismissed. There are no factors which tend against the usual order as to costs.

Associate:

Dated:    11 November 2016