FEDERAL COURT OF AUSTRALIA

Maan v Minister for Immigration and Border Protection [2017] FCA 906

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be allowed.

2.    The time in which to commence the appeal be extended to 30 March 2016.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court of Australia made in MLG 1143/2015 on 9 March 2016 be set aside.

5.    The first respondent’s application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) in MLG 1143/2015 be remitted to the Federal Circuit Court of Australia, differently constituted, for determination.

6.    The first respondent is to pay the applicant’s costs of the application for leave to appeal, the application for an extension of time in which to appeal, and the appeal.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Maan, arrived in Australia on 9 June 2013 as the holder of a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa issued under the Migration Act 1958 (Cth).

2    Mr Maan’s visa was cancelled by a delegate of the first respondent (Minister) on 9 January 2015. The then-named Migration Review Tribunal affirmed the delegate’s decision. Mr Maan made an application for judicial review of the Tribunal’s decision to the Federal Circuit Court of Australia (FCC). His application was summarily dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCCA Rules) on the basis that it raised no arguable case for the relief claimed. The order dismissing the application is interlocutory in nature and leave is required to appeal from it: see r 44.12(2) of the FCCA Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). This is an application for leave to appeal against the orders of the FCC and an application for an extension of time in which to commence the proposed appeal.

The application for an extension of time

3    The time in which to commence an appeal against the judgment ended 14 days after the pronouncement of judgment, that is, on 23 March 2016: see r 35.13 of the Federal Court Rules 2011 (Cth) (the FCA Rules). The Court may, in its discretion, extend the time in which the appeal may be commenced: r 35.14 of the FCA Rules.

4    In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (at 348 — 349), Wilcox J considered the principles that guide the exercise of the discretion to grant an extension of time to commence proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The principles have been accepted as guiding the Court’s discretion on an application made pursuant to r 35.14 of the FCA Rules for an extension of time in which to commence an appeal. The discretion is to be exercised having regard to:

(1)    the length of the delay;

(2)    the adequacy of any explanation for the delay;

(3)    any prejudice that might be suffered by the respondent or any other person if an extension of time were to be granted; and

(4)    the prospects of success of the appeal sought to be commenced.

5    These principles are not to be taken as exhaustive: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33] — [36].

6    The delay in the present case is a very short one. The Minister acknowledges that the delay has not caused him to suffer any real prejudice.

7    I am satisfied that Mr Maan has an adequate explanation for the short delay. I accord significant weight to the circumstance that the FCC did not provide Mr Maan with written reasons for its orders until 8 April 2016, more than four weeks after giving ex tempore reasons for making orders summarily dismissing his application for judicial review.

8    I am satisfied that Mr Maan made attempts to contact the FCC to obtain written reasons for the decision to dismiss his application. I am also satisfied that Mr Maan remained confused as to whether his application had been dismissed at all in that he had not, in his mind, received a “decision”. Mr Maan ultimately filed this application at a time when he did not have the benefit of written reasons. Although the delay may be calculated at six days, two of those days were public holidays occurring over the Easter period. I also accept that part of the delay is attributable to Mr Maan’s apparent lack of proficiency in English and also to his confusion in respect of court procedure, having due regard to his status as a self-represented litigant.

9    The adequacy of Mr Maan’s explanation for the delay weighs heavily in favour of the grant of an extension of time in which to commence the appeal. In all of the circumstances, I would grant Mr Maan an extension of time in which to commence the appeal, subject only to my consideration of whether the appeal is reasonably arguable. It is necessary in any event to have regard to the prospects of success of the proposed appeal in determining whether Mr Maan should be granted leave to appeal against the interlocutory judgment in any event.

The application for leave

10    This Court’s discretion to grant leave to appeal from an interlocutory judgment is unfettered: SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 at [12] (Flick J). In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (at [42]), French J (as he then was) said that the policy underlying s 24(1A) of the FCA Act was plain:

… The time and resources of the Court and the parties should not likely be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties. …

11    The practical effect of the judgment of the FCC was to bring an end to Mr Maan’s application for judicial review before that Court. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court said (at 400):

When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice — concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that ‘a tight rein’ should be kept on appeals — and an interlocutory decision determining a substantive right — where leave will more readily be granted.

12    The considerations guiding the exercise of the Court’s discretion are, first, whether, in all of the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal and, second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation at 398 — 399. These considerations bear upon each other such that a substantial injustice will be more likely to result where there is some merit apparent in the proposed appeal.

13    An important consideration is that Mr Maan’s application for judicial review was summarily dismissed under r 44.12 of the FCCA Rules. It provides:

Rule 44.12 Show cause hearing

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

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

14    As I observed in Singh v Minister for Immigration and Border Protection (2016) 240 FCR 1 at [33] the power conferred by that rule is similar to the power of this Court to enter summary judgment against a party pursuant to s 31A of the FCA Act or r 26.01 of the FCA Rules. Such a power is to be “sparingly employed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). It should only be exercised in cases that are so obviously groundless that they cannot, on any reasonable view, succeed: see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90 — 92.

15    As to whether there is sufficient doubt attending a decision made pursuant to r 44.12(1)(a), it will be enough for the applicant to show that the proposed grounds of appeal disclose a reasonable basis to argue that the FCC erred in determining there to be no arguable case raised for the relief claimed in that Court.

Background

16    It was a condition of Mr Maan’s visa that he “continue to satisfy”, relevantly, the primary criteria for the grant of the visa: see cl 573.611(a) of Sch 2 and condition 8516 of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations). The primary criteria for the grant of the visa include those contained in cl 573 of Sch 2 to the Regulations which, at least in Mr Maan’s case, required that the visa applicant be enrolled in or have a confirmation of enrolment in either:

(1)    a course for the award of a bachelor’s degree or a masters degree by coursework; or

(2)    a course of a type specified by the Minister in an instrument made under r 1.40A of the Regulations.

See cll 573.211, 573.223 and 573.231.

17    For the purposes of the second alternative criterion, the relevant instrument, titled Types of Courses for Student Visas (IMMI 14/015) specifies a series of courses, including a Diploma (Higher Education) and Bachelor Degree.

18    At the time of the grant of his visa, Mr Maan was enrolled in a Diploma of Information Technology and a Bachelor of Information Technology at La Trobe University. Completion of the diploma course was a prerequisite to commencing studies toward the attainment of the Bachelor degree. By 25 September 2013, Mr Maan’s enrolment in both of those courses had been cancelled.

19    From at least 16 October 2013, Mr Maan held a confirmation of enrolment in a Diploma of Hospitality with an education provider trading as Australian College of Trade Pty Ltd. That diploma was for a course of study at a Vocational Sector level. It did not fall within the description of a primary course of a kind that would satisfy the requirements for a student visa in the Higher Education Sector.

20    On 22 October 2013, Mr Maan received an offer to study a Bachelor of Business at an educational institution trading as Stott’s Colleges Pty Ltd, being a course of a type specified in the relevant instrument.

21    Section 116(1)(b) of the Act empowers the Minister to cancel the visa of a person if satisfied that the visa holder has not complied with a condition of the visa. The Minister’s delegate cancelled the visa on that ground on 9 January 2015.

The Tribunal’s findings

22    In affirming the delegate’s decision, the Tribunal held that Mr Maan had failed to comply with condition 8516 attaching to his visa.

23    It was on that basis that the Tribunal found the power to cancel Mr Maan’s visa to be enlivened.

24    Mr Maan told the Tribunal that he had struggled with his studies at La Trobe University because of his poor English skills and because his mother had fallen ill. He claimed, among other things, that his parents were unable to afford to pay for him to take English language classes.

25    In exercising the discretion as to whether to cancel the visa, the Tribunal made a series of adverse findings about Mr Maan’s credit. Among other things, it considered his enrolment and studies in hospitality courses to be inconsistent with his claim that his parents could not afford to pay for lessons in English and his claim that his mother’s illness had impacted his ability to study. It considered the change in study to be inconsistent with an earlier statement he had made to the effect that he was “passionate” about IT. In relation to the claim that Mr Maan’s studies in IT had been affected by his mother’s illness, the Tribunal said:

25.    At the hearing the tribunal referred to the applicant’s claim that he ‘went into extreme depression’ on hearing of his mother’s illness. In response to questions the applicant confirmed that he had not been diagnosed by medical practitioner as having depression. The tribunal considers the applicant’s claims in this regard to be contrived and manufactured. The tribunal notes that the applicant on his own evidence commenced the cookery course and that he claims he did very well in all subjects. In such a context the tribunal does not accept the applicant’s claims that his mental health was such that he was unable to continue with studies in IT. …

26    Having found inconsistencies in Mr Maan’s evidence, the Tribunal said that it was not satisfied that Mr Maan ever truly intended to complete his diploma or degree courses in information technology in which he had originally enrolled. The Tribunal continued:

The tribunal is not satisfied that the applicant obtained the offer of enrolment from Stott’s Colleges in the sincere belief that he would later in fact commence and complete that course. Rather, the tribunal considers it more likely that the applicant obtained the offer of enrolment as a means of demonstrating as a technical exercise that he had an offer enrolment in a degree course, should he later need to do so. The tribunal places considerable weight on its finding that the applicant never in fact intended to complete the diploma and degree in IT.

27    The Tribunal rejected Mr Maan’s claim that he had been misadvised by a migration agent in respect of the change of his course of study in September and October 2013. The Tribunal concluded:

33.    The applicant did not maintain enrolment in a bachelor degree or Master degree by coursework after the end of September 2013. The tribunal repeats its conclusion that the applicant never intended to complete those qualifications in Australia. In the context of the above the tribunal finds the breach of the visa condition to be particularly serious. The tribunal accepts that the applicant’s parents and the applicant himself would be disappointed if his visa was cancelled. The tribunal acknowledges that the applicant has completed a Certificate III in Commercial Cookery course. He asserts his desire is to continue with commercial cookery hospitality courses to the diploma level and claims that he wishes then to obtain the Bachelor of Business degree. The tribunal does not accept the applicant’s true intention is to pursue a vocation in commercial cookery hospitality. Nor does the tribunal accept that the applicant would complete the degree qualification if his visa were not cancelled. In such circumstances the failure to obtain those qualifications, in the tribunal’s view would result in little hardship to the applicant. The tribunal considers that the applicant’s ongoing presence in Australia is not for the purpose of obtaining valuable vocational qualifications, rather it is for some other reason. Those factors weigh heavily towards cancellation of the visa.

the FCC PROCEEDINGS

Jurisdiction

28    The jurisdiction of the FCC to review a decision of the Tribunal is conferred by s 476(1) of the Act and equates to that jurisdiction conferred on the High Court under s 75(v) of the Constitution. The remedies that may be granted on an application for judicial review under s 476(1) of the Act are only available in respect of a jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ)]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at 1127 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); see also s 474 of the Act.

29    As explained in Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179), an administrative tribunal will make a jurisdictional error if it:

… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

30    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said of the list in Craig (at [82]):

… Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …

The hearing

31    Mr Maan appeared unrepresented before the primary judge. The grounds of review specified in the originating application filed in the FCC did not specify any recognisable ground for judicial review. After reciting a brief history of factual events, the grounds make a singular complaint expressed as follows (original spelling and grammar retained):

I am not satisfied with the decision made by MRT on my application. I believe that there is error in the decision … I want to appeal against the decision into the Court.

32    The primary judge did not dismiss Mr Maan’s application by reason of the obvious want of particulars given on his originating application. Nor did the first respondent make any application for better particulars. Rather, the reasons of the primary judge indicate that Mr Maan was invited, at the hearing of the show cause application, to particularise in oral submissions the errors he alleged the Tribunal had made. The primary judge then proceeded to determine the Minister’s show cause application by reference to the complaints about the Tribunal’s decision as they had been advanced in oral submissions by Mr Maan. No objection was made by the Minister to the primary judge proceeding in that way.

33    According to the reasons of the learned judge, Mr Maan submitted that the Tribunal had “failed to take into account” two documents, namely:

(1)    a written offer for enrolment in a Bachelor of Business at an institution trading as Stott’s Colleges Pty Ltd dated 22 October 2013. The letter states, among other things, “upon successful completion of the Diploma of Hospitality may be granted 8 units exemption” [sic].

(2)    a form issued by a migration agency named Career Education Consultancy Australia (CECA).

34    This Court had reference to the transcript of the proceedings before the FCC. Mr Maan was asked to state the “error” upon which he relied. Mr Mann repeated the claim he had made before the Tribunal to the effect that he believed he had been misguided by a career consultancy. He complained that the Tribunal had rejected his claims and his “proofs”. Mr Maan’s submissions were interrupted at times by the primary judge, who stated more than once that Mr Maan was asking the FCC to engage in merits review. The following exchange occurred:

MR MAAN:        … I cancelled my Bachelor of Business in the Latrobe University because my mum was really sick at that time.

HER HONOUR:    Yes. I don’t need to hear the reasons because that’s the merits. The point is, the tribunal heard your evidence and didn’t believe you and that’s what tribunals can do. The court can’t review the merits of the tribunal decision. It has to decide whether there’s a legal error – a serious legal mistake. But I’m not here to review your case. Do you understand that?

MR MAAN:        Yes. I know that.

HER HONOUR:    You know that.

MR MAAN:        Yes.

HER HONOUR:    Well, you’re arguing your case again, you see, so I wonder if you do know that. That’s the problem.

MR MAAN:        I know.

HER HONOUR:    It’s important to make a distinction. It’s hard to accept sometimes but the tribunal referred to your mother’s illness and it said about that that it thought that those claims of yours were contrived and manufactured. Now, you may disagree with the Tribunal but the Tribunal can make those findings because it engages in what’s called merits review. …

…

HER HONOUR:    … The Tribunal just didn’t believe you and I am not able to review that because that’s what tribunals can do. The function of tribunals does include deciding whether you’re a credible person and it didn’t find that you were credible. It didn’t believe you.

MR MAAN:        Got the proofs, your Honour.

HER HONOUR:    Yes, but the Tribunal didn’t believe - - -

MR MAAN:        I know that.

HER HONOUR:    - - - that you were genuinely – that you did that for a genuine reason.

MR MAAN:        It’s my life, it’s my ..... proofs.

HER HONOUR:    Yes, but you’re just arguing your merits again. You’re re-arguing your case before this court.

Reasons

35    The primary judge rejected the contention that the Tribunal had failed to take into account the documents upon which Mr Maan had relied. In relation to Mr Maan’s complaints that he had been disbelieved, the primary judge said (at [26]):

There is no doubt in my mind that, in essence, the Applicant is asking the Court to review the merits of the Tribunal’s decision. It is settled principle that the assessment of the credibility of an Applicant is the function of the Tribunal and, as is apparent from the extracts of the decision record, the Tribunal simply found the Applicant not to be a credible person, and did not accept his claims about being misguided and the genuineness of his enrolment in the Stott’s Colleges Bachelor degree.

PROPOSED GROUNDS OF APPEAL

36    The proposed grounds of appeal are set out in the originating application in terms that reflect Mr Maan’s status as a self-represented litigant. Some parts cannot be understood at all.

37    Proposed Grounds 2 and 3 are to the effect that Mr Maan had “exceptional circumstances” in relation to the requirement that he be a person who continues to satisfy the primary criteria for the visa.

38    Proposed Ground 7 is expressed as follows (without alteration):

In the Federal Circuit court hearing on 9th march 2016 sense me that I should have made submissions, I have not known any of these information. However, I have not been able to submission with my lack of knowledge.

39    In an affidavit filed in support of the present applications, Mr Maan said:

Without any arguments or oral statement for me case has been dismissed. What is the use of I am coming to Federal circuit court to appeal the Migration Review tribunal decision, no time for submission and no time given for even thinking. I should wait for call, but court could take on me any time Immigration Lawyers want to have. It was totally unjust and unfair as well.

(original spelling and grammar retained)

40    Argument on the present applications proceeded on the basis that Mr Maan sought to appeal on the grounds that the FCC had erred in considering submissions advanced (or attempted to be advanced) by Mr Maan in relation to his credibility and on the additional basis that the FCC had not afforded procedural fairness to Mr Maan. I am satisfied that those two issues fairly arise on the proposed appeal, notwithstanding the poor expression in the proposed appeal grounds.

41    It is against that background that the arguable merits of the proposed appeal are to be considered.

CONSIDERATION

42    The power to cancel Mr Maan’s visa was clearly enlivened. Mr Maan had not, on any view of the facts, continued to be a person who satisfied the primary criteria for the grant of the visa. There was a period between 25 September 2013 and 22 October 2013 when Mr Maan did not satisfy condition 8516. The Tribunal’s decision to cancel the visa turned on its assessment that Mr Maan had never had any intention to complete his original course of study, and that his latter enrolments were a mere contrivance obtained only for the purpose of maintaining his visa status. It was this critical finding that formed the basis of Mr Maan’s complaints before the FCC.

43    By asking Mr Maan to articulate orally the errors upon which he relied, the primary judge should be understood as inviting Mr Maan to give oral particulars of his grounds of review. Mr Maan attempted to do so, although he was subject to interruption by the primary judge. Insofar as he was given an opportunity to make submissions, Mr Maan did not expressly state that his complaints fell into any established category of jurisdictional error. That is hardly surprising given his status as a non-lawyer.

44    In Singh, I made the following observations concerning the role of a court on judicial review in circumstances where grounds of review are poorly cast by a self-represented litigant (at [34] – [35]):

34.    … in determining the first respondent’s application made pursuant to r 44.12 of the FCCA Rules, the Federal Circuit Court was confined to considering the relief sought by the applicant and the grounds mentioned in his application: see r 44.13(1) of the FCCA Rules. Further, as Logan J recently explained in BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 (BHK) (at [15]):

… it was not, under our system of justice, the function of the learned Federal Circuit Court judge himself to identify the jurisdictional error. It was his Honour’s function, as I have already mentioned, fairly to read the grounds of alleged jurisdictional error. Were there an arguable ground revealed, it was then his Honour’s function to hear and determine whether that ground was made out. It was not though his Honour’s function to go looking for a ground of review.

35.    The task of fairly reading the grounds of alleged jurisdictional error may be one attended with considerable difficulty, particularly (but not exclusively) in cases where the grounds are drafted by an unrepresented litigant. As the learned Federal Circuit Court judge in the present case recognised, the task is one concerned with substance and fairness rather than form. Nothing said by Logan J in BHK precludes a court, on judicial review, from paraphrasing with the concurrence of the parties, its own fair reading of a poorly-cast ground of review, to distil the substance of the applicant’s case from the form of words that the applicant has employed. Ordinarily, the Court may readily infer that the errors alleged by the applicant are intended to be read as allegations of the kind of errors that would sound in a remedy that the Court has the jurisdiction to grant. The very making of the application by the applicant in that particular Court may support such an inference in any given case.

45    Notwithstanding his poor expression, the correctness of the Tribunal’s credibility findings was fairly raised before the primary judge as a ground of review asserted by Mr Maan. His submissions ought to have been regarded by the primary judge as complaining (rightly or wrongly) of an error of a kind the FCC had the power to review. In the circumstances, the primary judge was obliged, in the context of the Minister’s r 44.12 application, to determine whether there was any reasonable basis to argue that the Tribunal’s credibility findings were affected by jurisdictional error. The primary judge correctly recognised that to be a question that arose for determination.

46    In deciding the question, the primary judge proceeded from the incorrect presumption that an error in the assessment of credibility cannot in any circumstance constitute a jurisdictional error.

47    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J said at [78]:

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

48    To similar effect, in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253, Flick J held that a Tribunal’s adverse credibility findings “do not shield its decision-making process from scrutiny” (at [31]). His Honour went on to observe that:

… an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias.

49    An irrational or illogical finding of fact which critically affects the Tribunal’s assessment of the applicant’s credibility may amount to a finding of jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [40] – [44] (McKerracher, Griffiths and Rangiah JJ); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55] – [56] (Wigney J); SZSHV at [31] (Flick J); SZRKT at [78] (Robertson J).

50    The learned primary judge misdirected herself in relation to these principles. In my view, that misdirection affected the manner in which the hearing of the Minister’s r 44.12 application was conducted. Mr Maan was told that he was not entitled to raise grounds complaining that the Tribunal had disbelieved him or rejected his “proofs”, because to do so would invite the FCC to impermissibly engage in merits review. When Mr Maan attempted to make submissions about the Tribunal’s rejection of his explanation concerning his mother’s illness, he was cut short by the primary judge. Although the primary judge was rightly concerned to provide Mr Maan with appropriate guidance as to the limits of the FCC’s jurisdiction, the guidance was wrong, and had the effect of preventing Mr Maan from fully articulating his complaints about the Tribunal’s decision.

51    The circumstances to which I have referred are sufficient to justify the grant of the extension of time in which to appeal and the grant of leave to appeal. Leave on both applications will be granted.

DISPOSITION OF THE APPLICATIONS AND THE APPEAL

52    As I have mentioned, for Mr Maan to succeed on his substantive appeal, it is sufficient that he demonstrate that there was an appealable error affecting the exercise of the power conferred under r 44.12 of the FCCA Rules. I am satisfied that Mr Maan’s submissions about the Tribunal’s credibility findings were cut short and rejected by the primary judge adopting a too narrow view of the law in relation to jurisdictional error affecting credibility findings. The primary judge did not afford Mr Maan procedural fairness and then dismissed the application for judicial review on an erroneous statement of principle. Appealable errors are therefore shown.

53    Counsel for the Minister submitted that the Tribunal’s adverse findings as to Mr Maan’s credibility were open to it. That is a question that would have fallen for determination on Mr Maan’s application for judicial review had it not been summarily dismissed. Whilst I accept that this Court may, in its discretion, hear submissions as to the substantive merits of Mr Maan’s application for judicial review, I would not, in my discretion, dispose of the appeal in that way. To do so would be to have insufficient regard to the legal context in which the appeal is brought and the course the Minister has elected to take in the proceedings below. The issue arising on the Minister’s summary dismissal application was whether Mr Maan could raise an arguable case that the Tribunal’s credibility findings were not open to it. That was the discrete question in respect of which Mr Maan was not afforded a fair hearing.

54    As I have observed, the power to dismiss an application pursuant to r 44.12 is to be sparingly employed. In my view, a respondent litigant who invokes the procedure under r 44.12 ought to be discouraged from seeking to have this Court perform, in the exercise of its appellate jurisdiction, the judicial review function that ought properly to have been performed in the exercise of the original jurisdiction of the FCC, as if the application for summary dismissal had not been made at all. It has not been shown that Mr Maan could not possibly succeed in answering that application such that an order for remittal would be futile.

55    At this Court’s invitation, Counsel for the Minister provided helpful supplementary written submissions in relation to a separate issue that, on first impression, appeared to me to arise in the proceedings before the primary judge. Counsel submitted that the issue had not fairly arisen. I accept Counsel’s submission. My reasons for allowing Mr Maan’s appeal should be understood as concerned only with Mr Maan’s complaint that the Tribunal did not believe his claims and explanations made before the Tribunal.

Associate:

Dated:    9 August 2017