FEDERAL COURT OF AUSTRALIA

DEP16 v Minister for Immigration and Border Protection [2017] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    The adjournment sought by the applicant be granted conditionally in the terms identified below.

2.    The applicant has leave on or before 5 December 2017 to file and serve written submissions and any other material upon which he will seek to rely in support of his appeal against the decision of the Administrative Appeals Tribunal and/or the Federal Circuit Court.

3.    The Court will, after the filing of said submissions, consider those submissions.

4.    If the Court is of the view that there is a case to answer as to the decision of the Tribunal and/or the decision of the Federal Circuit Court, it will contact the parties to either relist the hearing or require further submissions.

5.    If the Court receives no submissions, or if the Court is of the view that such submissions as are filed do not provide a ground for considering that the Tribunal or the primary judge was in error, the Court will deal with the matter henceforth on the papers.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an application for an extension of time in which to file and serve an application for leave to appeal from orders made by a judge of the Federal Circuit Court on 16 June 2017, in which the application by the applicant for review of a decision of the Administrative Appeals Tribunal (the Tribunal) was dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). That rule, of course, is the show cause provision in the Federal Circuit Court Rules.

2    The matter has the following history. On 18 October 2016, the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant. The grounds of the claim are set out in that Tribunal decision. There was also a question of complementary protection criteria. The essence of the claim by the applicant was a well-founded fear of persecution for reasons of religion.

3    The applicant is a citizen of the People’s Republic of China, and claims that he and his family may suffer persecution by reason of their adherence to the Christian faith. The Tribunal set out in some detail why it did not accept the claims of the applicant.

4    The application for review of that decision came before a registrar of the Federal Court administering the matter for the Federal Circuit Court. On 2 March 2017, a directions hearing was held before the registrar in the review proceedings which had been commenced in October 2016. The applicant attended that hearing. Detailed directions were made of which the applicant was aware, signing his name into the directions.

5    Those directions required the first respondent to provide a relevant bundle of documents. It also gave leave to the applicant to file an amended application giving complete particulars of each ground of review, and it required the applicant to file and serve any affidavit containing additional evidence to be relied upon. It also required the applicant to file and serve written submissions 10 working days prior to the hearing. The matter was set down before the Federal Circuit Court in June. No submissions were filed by the applicant and no further particulars of complaint were filed pursuant to the leave granted.

6    In these circumstances, the matter was put in the show cause list of the Federal Circuit Court, and the matter came before the Federal Circuit Court judge. The Federal Circuit Court judge’s reasons recite the matters that I have just identified, that is, the matter came before the registrar of the Court and directions had been made. The reasons reveal that the learned judge explained to the applicant that the Court was considering whether the applicant had an arguable case that the Tribunal’s decision was affected by legal error. The Court’s reasons at paragraphs 11, 12, 13 and 14, are as follows:

11. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing to determine whether the applicant had an arguable case. The Court explained it was considering whether the applicant had an arguable case that the Tribunal’s decision was affected by a relevant legal error. The Court explained that a relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

12. The Court explained that in summary this meant the Court was considering whether the applicant had a reasonably arguable case that the Tribunal’s decision was unlawful or a reasonably arguable case that the Tribunal’s decision was unfair. The Court explained to the applicant if the Court was satisfied that the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error, the matter would be stood over and fixed for hearing on another occasion. The Court explained that if the Court was not satisfied the Tribunal’s decision was affected by an argument of relevant legal error, the application would be dismissed.

13. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

14. The grounds in the application are as follows:    

1. The Tribunal erred in making its findings without supporting evidence.

2. The Tribunal failed to disclose the country information where the tribunal has taken into account.

3. The Tribunal failed to invite the applicant to give additional information under s424B.

7    At paragraph 15, the learned primary judge described the submissions made from the bar table. The primary judge then at paragraphs 16, 17, 18, 19 and 20, described what the Tribunal did and expressed the view that there was no error apparent in the approach of the Tribunal.

8    The applicant needs leave to appeal from the orders of the Federal Circuit Court because it is an interlocutory decision under a show cause notice. The applicant is out of time.

9    The applicant appeared today appearing for himself. No submissions have been filed. When I asked the applicant for his submissions, he indicated that he did not feel well, having a headache, and did not feel well enough to participate. He produced a medical certificate, being a certificate for personal leave, signed by a pharmacist at Chemist Warehouse Five Dock, being a certificate provided in accordance with the evidence requirements under s 107(3) of the Fair Work Act 2009 (Cth). No notice of this application was given to the Minister or the Court.

10    If there were not an equally effective way of dealing with the matter, I would ordinarily reject the application for the adjournment as inadequately founded. Nevertheless, the matter can be dealt with in the following way. I propose to give the applicant 14 days from today – not from the receipt of these reasons, but from today – to file and serve written submissions and any other material upon which he seeks to rely to show error in the Tribunal’s decision and/or the primary judge’s decision to justify leave to appeal being granted.

11    He is out of time. However, if there is anything filed which gives me cause to believe that there is a case to answer in relation to the appeal, I will relist the matter and cause the Minister to address any relevant argument. This will avoid the first respondent Minister spending any further time or money on the case until such time as the Minister receives through its legal representatives an indication from the Court that there is or may be a case to answer on the application.

12    As presently advised, having considered the papers, I would refuse the application to extend the time because there is nothing that has been filed that throws into any doubt the legitimacy of the approach of the Tribunal or the Federal Circuit Court decision. That is because the Court has no submissions from the applicant. It is not necessary for the applicant in these circumstances yet to further justify the lateness of the application. Thus, the applicant needs to understand that he has 14 days from today, that is, up to and including 5 December 2017, to file such submissions and any material which he wishes the Court to consider in assessing the legality and propriety of the Tribunal’s decision and/or the primary judge’s decision.

13    The Court will consider any material filed. If I am of the view that it is inadequate to throw into doubt the Tribunal’s decision, I will dismiss the application. If I consider that there is material which should be answered, I will be in touch with the parties to either hear from the Minister in writing or at a hearing.

14    The application for an adjournment today was made without notice, and in the light of the history of the matter, unpersuasive to me as to the need for it. Nevertheless, I consider that the course that I propose to take provides the applicant with a further full opportunity to place his submissions and any material before the Court at the same time as protecting the respondent from further expenditure in the matter if no appropriate submissions come forward.

15    For the foregoing reasons, I make the following orders:

(1)    The adjournment sought by the applicant be granted conditionally in the terms identified below.

(2)    The applicant has leave on or before 5 December 2017 to file and serve written submissions and any other material upon which he will seek to rely in support of his appeal against the decision of the Administrative Appeals Tribunal and/or the Federal Circuit Court.

(3)    The Court will, after the filing of said submissions, consider those submissions.

(4)    If the Court is of the view that there is a case to answer as to the decision of the Tribunal and/or the decision of the Federal Circuit Court, it will contact the parties to either relist the hearing or require further submissions.

(5)    If the Court receives no submissions, or if the Court is of the view that such submissions as are filed do not provide a ground for considering that the Tribunal or the primary judge was in error, the Court will deal with the matter henceforth on the papers.

Associate:

Dated:    23 November 2017