FEDERAL COURT OF AUSTRALIA

BXD15 v Minister for Immigration and Border Protection [2017] FCA 1209

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, such costs being confined to the hearing on 28 June 2017.

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

REASONS FOR JUDGMENT

1    The Appellant is a citizen of the People’s Republic of China.

2    He arrived in Australia in October 1998 and applied for a protection visa in November 1998. That application was rejected by a delegate of the Minister in December 1998. In February 2014 he again applied for a protection visa. In very summary form, the Appellant claimed to fear harm should he return to China by reason of:

    his having exposed corruption in China; and

    his practice of the I-Kuan-Tao belief.

But that application was also rejected in June 2014. An application for review by the Administrative Appeals Tribunal was rejected in August 2015.

3    Judicial review of the Tribunal’s decision by the Federal Circuit Court of Australia was sought in September 2015. The Federal Circuit Court dismissed that application on 3 June 2016 when the Appellant did not appear: BXD15 v Minister for Immigration & Border Protection [2016] FCCA 1359. On 23 August 2016 that Court dismissed an application seeking to have the judicial review application reinstated: BXD15 v Minister for Immigration & Border Protection (No 2) [2016] FCCA 2170.

4    On 13 September 2016 the Appellant filed in this Court a Notice of Appeal seeking to appeal from the August 2016 decision of the Federal Circuit Court. The Minister filed a Notice of Objection to Competency on 29 September 2016.

5    The Notice of Objection to Competency is to be upheld and the proceeding is to be dismissed with costs.

The Grounds of Review & the Grounds of Appeal

6    The Grounds of Review sought to be advanced before the Federal Circuit Court were as follows (without alteration):

1.    I am a Chinese citizen and believe in I-Kuan Tao. I have been persecuted and threatened by Chinese authority due to my involvement with I- Kuan Tao, and have a fear of return to origin.

2.    I have been actively involved in I-Kuan Tao actives. My action and performance has been evidenced by my I-Kuan Tao fellows

3.    RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence

4.    Tribunal’s over objective in judging my explanation and the response at the hearing.

7    The Grounds of Appeal as set forth in the Notice of Appeal filed in this Court in September 2016 were as follows (without alteration):

1.    The Tribunal was not satisfied that I am a genuine and committed I-Kuan Tao practioner. The Tribunal fell into jurisdictional erro in making this finding.

2.    The Tribunal erred in its application of s 91R (3) of the Migration Act.

3.    The Tribunal had denial of procedural fairness in assessing my application.

4.    The Federal Circuit Court had denial of procedural fairness in regard of my non-appearance on the last Occasion.

The objection to competency

8    The Notice of Objection to Competency is founded upon two facts, namely:

    the fact that the August 2016 decision of the Federal Circuit Court was an interlocutory decision from which leave to appeal is required and that no such leave has been obtained; and

    the fact that any application for leave to appeal is required to be made within 14 days – namely by 6 September 2016 – but the Notice of Appeal was not filed until 13 September 2016.

9    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires the leave of either the Court or a Judge of the Court to appeal from an interlocutory decision. But no such leave has been sought. A decision refusing to reinstate an application that has been dismissed for want of appearance has been treated as an interlocutory decision: SZVEU v Minister for Immigration and Border Protection [2016] FCA 1389.

10    Rule 35.13(a) of the Federal Court Rules 2011 (Cth) requires an application seeking leave to appeal to be filed within fourteen days.

11    But those representing the Minister, being his solicitor (Mr Leerdam) and his Counsel, quite properly accepted that leave could now be given and that an extension of time could be granted. But those representatives also quite properly contend that no such leave and no such extension of time should be granted because of the absence of any underlying merit in the proceeding.

12    That is the submission which is accepted and the basis upon which the present decision of this Court is founded.

The manner of exercise of the discretion

13    The absence of any substantive merit in the issues sought to be canvassed in this Court pervades both:

    the absence of any express challenge to the manner in which the Federal Circuit Court Judge exercised the discretion to refuse to reinstate the application for judicial review filed in that Court; and

    the absence of any merit in the Grounds of Review sought to be agitated in that Court.

Both amount to an insurmountable obstacle to any success that the Appellant may have had in this Court even had he filed an application for leave within fourteen days.

14    As to the former contention, when dismissing the proceeding then pending before the Federal Circuit Court, the Judge of that Court was exercising the discretion conferred by r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). Rule 13.03C then provided as follows:

Default of appearance of a party

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

(a)    adjourn the hearing to a specific date or generally;

(b)    order that there is not to be any hearing, unless:

(i)    the proceeding is again set down for hearing; or

(ii)    any other steps that the Court directs are taken;

(c)    if the absent party is an applicant—dismiss the application;

(d)    if the absent party is a party who has made an interlocutory application or a cross-claim—dismiss the interlocutory application or cross-claim;

(e)    proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2)    If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.

And when refusing to reinstate the proceeding the Federal Circuit Court Judge was exercising the discretion conferred by r 16.05 of those Rules, which provided in relevant part as follows:

Setting aside

(1)    The Court may vary or set aside its judgment or order before it has been entered.

(2)    The Court may vary or set aside its judgment or order after it has been entered if:

(a)    the order is made in the absence of a party; or

…

(3)    This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.

15    Any challenge to an exercise of discretion in respect to a matter going to the practice and procedure of the Court – in the present proceeding the challenge to the discretion conferred by r 16.05(2)(a) of the Federal Circuit Court Rules – must normally fall within the principles set forth in House v The King (1936) 55 CLR 499 at 504 to 505. Dixon, Evatt and McTiernan JJ there observed:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …

16    When proceeding to exercise the discretion conferred by r 16.05 of the Federal Circuit Court Rules, the primary Judge:

    took into account the fact that the Appellant had been given an opportunity prior to the proceeding being listed for hearing on 3 June 2016 to file an amended application, affidavit evidence and submissions;

    informed the Appellant that relevant to the exercise of the discretion was whether there was a satisfactory explanation for his failure to attend at the June 2016 hearing and the merits of the application the Appellant sought to advance;

    took into account the Grounds of Review presented for resolution by the Appellant and further oral submissions the Appellant advanced during the course of the hearing in August 2016; and

    considered the merits of the grounds advanced for resolution, albeit briefly, and the oral submissions made during the course of the August 2016 hearing.

In so proceeding, no self-evident error of principle of the kind envisaged by House v The King is discernible.

17    So much would be sufficient to dispose of the present proceeding.

18    The further course which has nevertheless been pursued is for this Court to again revisit the Grounds of Review advanced for resolution before the Federal Circuit Court and the merits of the Grounds of Appeal which would have been advanced before this Court had leave to appeal been granted.

19    Having pursued that further course, the same conclusion is reached; the arguments advanced on behalf of the Appellant are without merit.

The merits of the arguments sought to be advanced

20    The first Ground of Appeal as formulated in the Notice of Appeal does not seek to assert any appellable error on the part of the Federal Circuit Court Judge but rather seeks to challenge a finding of fact as made by the Administrative Appeals Tribunal. After having reviewed the evidence and the course taken throughout the Tribunal hearing, the reasons for decision of the Tribunal state in part as follows:

Conclusions on credibility and assessment of whether there is a real risk that the applicant will suffer significant harm in China

32.    Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims about becoming aware of corrupt activities in China, communicating with someone in Australia about that and becoming of adverse interest to the Chinese authorities as a result. There is no credible evidence that, when the applicant lived in China, he was of adverse interest to Chinese authorities or anybody else. There is no credible evidence that the applicant suffered harm when he lived in China.

33.    The Tribunal also disbelieves the applicant’s claims about being introduced to I-Kuan-Tao by another Chinese national and practising that belief system. The Tribunal disbelieves the applicant’s claims about using the Internet to communicate on this individual’s blog, being baptised by him and that this person was arrested and his blog shutdown as the applicant has claimed. To the Tribunal, the applicant claimed that since April 2015 he has been attending an I-Kuan-Tao Temple in Sydney but the Tribunal finds that it has no credible evidence about this. To the delegate, the applicant displayed a basic understanding of I-Kuan-Tao describing how it is practised. There is no credible evidence as to how or why the applicant acquired that rudimentary knowledge. The fact he has such knowledge does not persuade the Tribunal that he has in the past or now practises I-Kuan-Tao.

These findings, it may be noted, are not mere assertions or conclusions made free from any further findings of fact. The Tribunal’s earlier reasons for decision and subsequent findings canvas the detail of the evidence upon which the more generally expressed findings as to credibility are based.

21    The first proposed Ground of Appeal is without merit.

22    The second Ground of Appeal again does not assert any appellable error on the part of the Federal Circuit Court Judge but rather seeks to contend that the Administrative Appeals Tribunal “erred in its application of s 91R (3) of the Migration Act”. The difficulty with this Ground is that there was no reference to s 91R(3) in the proceeding when it was before the Tribunal and no reliance was placed upon any like Ground of Review when the case was before the Federal Circuit Court. Irrespective of whatever merit there may otherwise have been in the Appellant now relying upon s 91R before this Court, a more fundamental difficulty was that the Tribunal, in making its adverse findings as to credit, did not place any reliance upon information which could attract the potential application of that section.

23    The second proposed Ground of Appeal is, on any view, without merit and should be rejected.

24    The third Ground of Appeal again focusses upon the Tribunal’s decision and asserts a denial of procedural fairness on the part of the Tribunal. This ground is understood to allege a denial of procedural fairness by reason of inadequacy in the interpreter services provided and an apprehension of bias on the part of the Tribunal member. Arguments as to whether inadequacy in interpretation effectively prevents a person from giving evidence, it may be accepted, requires a “qualitative assessment of the conduct of the hearing as a whole” (SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [49] per Griffiths J). Inaccuracies and inadequacies may deprive a party of “a meaningful opportunity to respond to that which a decision-maker may wish to say” (SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [45], (2013) 219 FCR 212 at 224 per Flick J) and deprive a party of procedural fairness (BZAID v Minister for Immigration and Border Protection [2016] FCA 508 at [111] to [114], (2016) 242 FCR 310 at 328 to 329 per Edelman J).

25    But the same argument was rejected by the Federal Circuit Court Judge in his reasons for decision for the August 2016 decision as follows:

[18]    Nothing said by the applicant from the bar table identified any arguable jurisdictional error on the part of the Tribunal. In substance, the applicant’s submissions as to why the Tribunal’s decision was unfair were not supported by any detail, other than by reference to the conduct of the interpreter at the Tribunal hearing. On the face of the transcript, which was tendered in evidence, the applicant had a real and genuine hearing before the Tribunal. It is also apparent from the transcript of the Tribunal hearing that the applicant did not raise any issue relating to the standard of interpretation during the hearing, despite being told at the commencement of the hearing to raise any issue in that regard at any time.

[19]    On the face of the transcript, there was nothing to suggest that the applicant had anything other than an orthodox hearing, in which the Tribunal member raised with him inconsistencies and credibility issues arising from his claims and evidence. There was no material error identified by the applicant in respect of the hearing before the Tribunal. Nothing said by the applicant in relation to the alleged interpreting error identifies any arguable case of a material deficiency in the conduct of the hearing before the Tribunal, or in the standard of interpretation of the applicant’s evidence.

[20]    On the material before the Court, I am satisfied that the applicant had a real and genuine hearing before the Tribunal. I am also satisfied that there is no reasonably arguable case of jurisdictional error relating to the conduct of the interpreter at the hearing before the Tribunal. There is nothing in the transcript or in the Tribunal’s decision that identifies any conduct which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

[21]    An allegation of bias must be clearly alleged and properly proved. In the present case, no bias on the part of the Tribunal is apparent from the Tribunal’s decision or the transcript of the Tribunal hearing. Nor was there any reasonably arguable case of bias in relation to the applicant’s unsupported allegations that the Tribunal member took a subjective view of his evidence, or made a partial determination. The Tribunal’s determination of the applicant’s credit was based on identified reasons that, as indicated above, were open to it on the material before the Tribunal.

26    No appellable error is exposed by these findings and conclusions of the Federal Circuit Court Judge.

27    It cannot be said that the examples identified in an affidavit of the Appellant in the present appeal identify any difficulties in translation or examples of the Tribunal cutting the Appellant short and not providing him with an adequate opportunity to expand upon the evidence he sought to give. Those examples, with respect, demonstrate nothing more than the Tribunal requiring an answer to questions being put. Those examples do not expose any deficiency or inaccuracy in translation during the course of the Tribunal hearing.

28    The final Ground of Appeal focusses upon a denial of procedural fairness on the part of the Federal Circuit Court Judge in respect to the dismissal of the Appellant’s claim in June 2016. To too readily dismiss a proceeding for want of appearance is a course fraught with danger. To too readily dismiss a proceeding for want of appearance has the potential to only encourage applications – as happened in the present proceeding – to seek to have a proceeding reinstated. To too readily dismiss a proceeding, rather than to adjourn a proceeding to a date in the immediate future with further notice being given to a claimant and a further opportunity to appear and present submissions also has the potential to encourage (however mistakenly) a denial of procedural fairness. To also dismiss a proceeding for want of appearance without any consideration then being given to the merits of the claim which would have been advanced had a claimant appeared is also a course which only has the potential to encourage a perception – at least on the part of a claimant not fluent in the English language and probably even less conversant with the Australian legal system – that he has not been given a “fair go”. Conversely, there are also many cases in which an unmeritorious claimant deliberately sets out to delay an expeditious resolution of his claims for as long as possible in full knowledge that in all probability the claims will ultimately be rejected.

29    The power to dismiss a proceeding for want of appearance, being a power conferred upon both the Federal Circuit Court and this Court, nevertheless remains a power to be exercised in an appropriate case.

30    Without forming any view as to the appropriateness of the Federal Circuit Court Judge’s decision to dismiss the proceeding in June 2016, any denial of procedural fairness which may then have occurred was remedied by the opportunity extended in August 2016 to then canvas the merits of the arguments he sought to have resolved.

31    The final Ground of Appeal is thus also without merit.

Materials not disclosed – an invalid certificate

32    One final matter should be briefly mentioned.

33    Those appearing for the Respondent Minister have quite properly disclosed to the Court that some materials were made available to the Tribunal but not the Appellant. That material had been the subject of certificates purportedly issued under s 438(1)(a) and (b) of the Migration Act 1958 (Cth) (the “Migration Act”).

34    Section 438 provides in relevant part as follows:

Tribunal’s discretion in relation to disclosure of certain information etc.

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

…

35    Before this Court the Respondent Minister accepts that the certificates were “invalid”.

36    The material the subject of the certificates was not adduced before the Federal Circuit Court. But the Respondent Minister wishes to adduce the materials before this Court. The forensic objective in doing so is to demonstrate that the materials could have been of no relevance to the decisions of the Tribunal or the Federal Circuit Court. Copies of the documents have been given to the Appellant.

37    Having considered the materials the subject of the certificates granted, albeit “invalidly”, the irrelevance of that material to any issues raised in the proceeding before the Tribunal can safely be assumed. The disclosure of the material could not have impacted upon any consideration of any of the claims made by the now-Appellant and, moreover, could not have founded any argument having any prospect of success before either the Federal Circuit Court or this Court.

38    But the circumstances in which the certificates came to be issued raise more disturbing undercurrents of concern.

39    The case proceeded upon the basis that the documents the subject of the certificates comprised:

    “a checklist concerning the validity of the appellant’s first protection visa application”;

    “a checklist as to the validity of his bridging visa application”;

    “a file management checklist”;

    “the appellant’s movement history”;

    “a checklist as to the validity of the appellant’s second protection visa application”;

    “an identification checklist”; and

    “an interpreter service delivery form”.

The documents were – at best – neutral to any question as to the credibility assessment of the Appellant as made by the Tribunal.

40    The very fact that the certificates had been issued by a delegate of the Minister, however, was truly worrying.

41    Why such documents as a “checklist” fell within the category of documents the disclosure of which “would be contrary to the public interest” was not self-evident. It was, perhaps, only a matter of chance that the character of the documents in respect to which the certificates in the present proceeding were issued came to be disclosed.

42    An opportunity was thus extended to the Respondent Minister to explain the basis upon which the certificates had first been issued and the administrative steps that have since been taken to ensure that any future certificates are only issued after a proper consideration of the requirements imposed by s 438.

43    Public confidence, let alone judicial confidence, in the integrity with which the Migration Act is being administered by the Minister and his delegates is only seriously undermined if the public and this Court are left with a disturbing concern as to whether certificates are being issued without any reasonable basis for doing so. Indeed, there is a “presumption of regularity” as to the circumstances in which a statutory power is exercised: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672 per Gaudron J. An exercise of statutory power may ultimately be found to be unlawful after judicial scrutiny; but the integrity with which the power is being exercised should always be assumed.

44    Where, as in the present case, it would appear that the statutory power conferred by s 438 was exercised upon no sustainable basis, that integrity is necessarily called into question and the assumption prejudiced.

45    The manner in which the certificates in the present proceeding were issued fell seriously short of the standard expected of a proper exercise of power. The independent solicitors retained by the Minister in the present proceeding are to be commended for bringing to the attention of the Court the question as to the appropriateness of the certificates having been issued. It is the Minister, of course, and the Minister alone who remains accountable for such a shortcoming in the manner in which the Act was administered by his Department.

46    At a subsequent hearing following an adjournment to allow time (inter alia) to address the issue of the certificates, two relevant submissions emerged, namely:

    there was no explanation for the circumstances in which the decision was made to issue the s 438 certificates – other than the recital in those certificates that the documents were “internal working documents”; and

    the Department has since issued a Guidance addressing the bases upon which such certificates are now issued, which provides that designating documents as “internal working documents” is not a sufficient reason in itself to issue a certificate.

47    Although the certificates identified that both sub-ss 438(1)(a) and (b) applied, no submissions were directed to sub-s (b).

48    The concern previously expressed as to the lack of a substantive basis upon which the certificates were issued in the present proceeding and the materials initially withheld from the Appellant is repeated. A mere designation that documents are “internal working documents”, without any further consideration being given to the content of such documents and whether disclosure would be “contrary to the public interest”, falls well short of the task required to be undertaken by s 438 of the Migration Act.

49    The new Guidance properly recognises the constraints imposed by s 438.

50    It should be noted that there are presently pending before this Court a number of other proceedings in which the potential impact of certificates having been issued under s 438 of the Migration Act is to be considered. Notwithstanding that those other proceedings have been or are soon to be heard, it is considered appropriate to nevertheless now publish reasons and make orders in the present proceeding. Even assuming there to have been a denial of procedural fairness to the present Appellant by reason of the materials not having been disclosed, there is no basis upon which any contrary conclusion would have been reached in the present proceeding. The arguments sought to be relied upon, assuming an extension of time was granted, were without merit.

CONCLUSIONS

51    Although it may be perceived by the Appellant, and those in a like position, that the Minister’s objection to the competency of the present proceeding is more driven by legal formality than by reference to the justice of the facts presented, such is not the case.

52    No error has been exposed as to the manner in which the Federal Circuit Court Judge exercised the discretion not to reinstate the proceeding which had previously been dismissed for want of appearance. The application to this Court was out of time and even if the proposed Grounds of Appeal were entertained, was without merit.

53    Whatever may be the criticism that may have been directed to the circumstances in which the s 438 certificates were initially made, the content of the materials withheld from the Appellant could not have prejudicially impacted upon the issues sought to be raised before the Federal Circuit Court or this Court on appeal.

54    The proceeding is to be dismissed.

55    The question of costs is not to be resolved simply by reference to the general principle that costs should follow the event. In addition to the costs that were incurred in respect to the hearing before this Court on 28 June 2017, additional costs were incurred by reason of the concerns expressed by this Court in respect to the circumstances in which the s 438 certificates were issued. Although the application for an extension of time is to be refused, the Appellant should only pay such costs as would inevitably have been incurred in respect to the hearing on 28 June 2017.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, such costs being confined to the hearing on 28 June 2017.

Associate:

Dated:    12 October 2017