FEDERAL COURT OF AUSTRALIA

CEZ16 v Minister for Immigration and Border Protection [2018] FCA 631

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is refused.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks leave to appeal from orders dated 10 November 2017 of the Federal Circuit Court of Australia (FCCA). The FCCA upheld the Minister’s application that the applicant’s judicial review application be dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because it did not raise an arguable case for the relief sought. The judgment is reported as CEZ16 v Minister for Immigration and Border Protection (No 2) [2017] FCCA 2824 (CEZ16 (No 2)). Prior to hearing and determining the Minister’s show cause application, the FCCA heard and refused the applicant’s request for an adjournment, for reasons which are set out in CEZ16 v Minister for Immigration and Border Protection [2017] FCCA 2823 (CEZ16 (No 1).

FCCA’s reasons for judgment in CEZ16 (No 1) and CEZ16 (No 2)

2    The matter came before the FCCA for a show cause hearing on 19 October 2017. Relevantly, the proceedings involved a judicial review of a decision of the Administrative Appeals Tribunal which affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant, who is citizen of Nepal, arrived in Australia on 8 April 1996 holding a student visa. His first application for a protection visa was lodged on 21 June 1999 and a second such application was made by him on 16 January 2013.

3    When the applicant’s matter came on for hearing in the FCCA on 19 October 2017, the matter was adjourned because the applicant claimed that he had not received the court book. The show cause hearing was adjourned to 10 November 2017. On that occasion, the applicant, who represented himself, sought a further adjournment in order to obtain legal assistance.

4    After summarising the principles which guide the Court’s discretion in respect of an adjournment application, the primary judge summarised the applicant’s oral submissions in support of his adjournment request.

5    The primary judge found that no earlier than 7 August 2017 the applicant had sought advice from a person whom he thought was a lawyer, notwithstanding that as far back as 27 October 2016, his application had been set down for a show cause hearing for 19 October 2017 (i.e. the applicant had over 12 months notice of the hearing). The primary judge found that after the applicant learned that the person was not in fact legally qualified, the applicant subsequently approached a qualified lawyer for advice. He was told that the lawyer needed more time to consider the matter because the applicant had not provided him with any material. The primary judge found that the applicant delayed until the day before the adjourned show cause hearing to retrieve a copy of the court book from the person whom he had initially consulted.

6    The primary judge noted the applicant’s explanation that he had not sought legal assistance before 7 August 2017 because of his financial circumstances. The appellant explained that he had used money received from friends to pay to the person whom he thought was a lawyer. The applicant further explained that he had delayed arranging finance until this person told him that there was something in his case.

7    The primary judge concluded that the applicant had failed to provide an adequate explanation for not being in a position to proceed with the show cause hearing on 10 November 2017, relying on the following matters:

(a)    As the matter had been commenced 16 months previously, the applicant therefore had sufficient time and capacity within that time to raise money to pay for a lawyer to provide him with legal advice and the applicant gave no adequate explanation as to why he waited until 7 August 2017 to obtain assistance.

(b)    Nothing put to the Court indicated that the applicant’s prospects would improve if an adjournment was granted. At best, a lawyer had told the applicant that he would look at his matter to see whether he has any grounds.

(c)    If an adjournment were granted, costs would be thrown away to which the Minister would have an entitlement. Although the applicant claimed that he had some capacity to raise money from friends, there was a very real risk that this willingness might change and there would therefore be prejudice to the Minister if the applicant was unable to pay the costs thrown away.

(d)    There was a public interest in a high volume jurisdiction such as the FCCA’s migration jurisdiction for cases to be disposed of on the date fixed by the FCCA.

8    In CEZ16 (No 2) the primary judge summarised the applicant’s claims for protection and the reasons why those claims had been rejected by the Administrative Appeals Tribunal (AAT). In brief, the AAT was not satisfied that the applicant had provided a truthful account of his involvement in politics in Nepal. The primary judge then noted that the only judicial review ground raised by the applicant was that he was “not happy with unfavourable decision against me”. The primary judge found that this did not disclose an arguable case of jurisdictional error. His Honour also made reference to the applicant’s submission that his case was covered by MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1 (MZAFZ) and the Full Court’s decision in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183; 244 FCR 305 (Singh). The primary judge rejected that submission on the basis that he was satisfied that no certificate had been issued under s 438 of the Act.

The application for leave to appeal

9    The applicant, who represented himself and was assisted by an interpreter at the hearing, proposed to rely on two grounds of appeal, if leave were granted. The first ground involved a claim that he had been denied procedural fairness because the primary judge failed to adjourn the show cause hearing. The second ground claimed that the primary judge failed to comply with the principles of natural justice because of an alleged failure to consider the applicant’s capacity to conduct his case as a self-represented litigant, as well as a failure to consider the conduct of the person who claimed to be a lawyer and failed to discharge his duties. The applicant also repeated ground 1 as a particular of ground 2. As noted above, these grounds were said to relate to the orders made in CEZ16 (No 2).

10    The Minister opposed the grant of leave to appeal.

11    The applicant failed to provide a written outline of submissions and made only brief oral submissions in support of leave being granted. When asked by the Court why the FCCA hearing was not fair, he said that he did not have a lawyer and had to argue the case himself and was unhappy that his case had been dismissed on a show cause basis and without a full hearing.

Consideration and disposition of the application

12    The central question is whether this Court should exercise its discretion under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) to grant leave to appeal from the FCCA’s judgment, which is an interlocutory judgment.

13    It is well settled that among the considerations which guide the exercise of that discretion is whether the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (see Minister for Home Affairs v SZRWS [2018] FCAFC 51 at [40] per Flick, Robertson and Griffiths JJ and the cases referred to therein). Another relevant consideration is that where the primary judgment relates to a matter of practice or procedure, as is the case here, there is a need for finality and restraint in reviewing such decisions (see, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 and In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318). In the latter case, Jordon CJ said at 323:

… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

14    Although the application for leave to appeal is said to be addressed to the orders made in CEZ16 (No 2), the grounds strongly suggest that the applicant’s real complaint is directed to the rejection of his adjournment request. I am not satisfied that the applicant has demonstrated sufficient doubt in the correctness of the primary judge’s reasons for refusing his adjournment application. The applicant had no enforceable right to be legally represented at the hearing. Nor am I persuaded that the applicant has any prospects of establishing procedural unfairness. The applicant’s claims to the contrary appears to amount to a statement of dissatisfaction with the primary judge’s ultimate findings. The primary judge correctly identified the relevant principles guiding the exercise of his discretion, which unquestionably involved a matter of practice or procedure and, in the light of authority, must be approached with appropriate self-restraint. I am not satisfied that the applicant has demonstrated any arguable appealable error in the primary judge’s application of those principles to his particular circumstances. The primary judge gave comprehensive and rational reasons why he was not prepared to grant a further adjournment.

15    I have also reviewed the primary judge’s reasons for judgment in CEZ16 (No 2). The primary judge summarised the basis for the applicant’s claims in support of his application for a protection visa (noting that the applicant had lived in Australia for more than 15 years). As noted above, the primary judge summarised the AAT’s reasons and explained why the applicant’s sole ground of judicial review was rejected. His Honour also explained why MZAFZ and Singh had no application to the applicant’s case because there was no s 438 certificate.

16    I can see no arguable appealable error in the primary judge’s decision in CEZ16 (No 2).

Conclusion

17    For these reasons, the application for leave to appeal is refused. The applicant must pay the first respondent’s costs.

Associate:

Dated:    10 May 2018