FEDERAL COURT OF AUSTRALIA

ANC18 v Minister for Home Affairs [2018] FCA 1878

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals the dismissal by the Federal Circuit Court of Australia of his application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal: ANC18 v Minister for Home Affairs [2018] FCCA 1529. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2    The appellant was self-represented on this appeal, and had a good command of English

Background

3    The appellant is a Nepalese national who arrived in Australia legally in May 2006 as a student. In April 2015 the appellant applied for a protection visa. On 15 January 2016 a delegate of the Minister refused the application for a protection visa on the ground that the appellant did not satisfy any of the criteria in s 36(2) of the Migration Act.

4    In February 2016 the appellant sought review of the delegate’s decision by the Administrative Appeals Tribunal. On 9 January 2018 the Tribunal affirmed the decision not to grant the appellant a protection visa.

5    The Tribunal conducted a hearing on 10 November 2017, which the appellant attended to give evidence, and to present arguments. The appellant’s migration agent, who had provided written submissions on his behalf, also attended the hearing. The Tribunal found that the appellant’s English was at a very good level, and was satisfied that the appellant was able to understand the proceedings, and to give evidence and to present arguments in English.

6    The key elements of the appellant’s claims were that he left Nepal to pursue studies in Australia, but also because of fear of harm from the Maoists. The appellant claimed that the Maoists were targeting him and his family because of their inheritance property located in Kathmandu. The appellant claimed that his family had left their home in order to save their lives and they had advised the appellant that his life was also in danger if he returned to Nepal.

7    The Tribunal gave detailed reasons for its decision. The Tribunal considered at some length a number of issues that bore upon the appellant’s credibility. The Tribunal considered that a number of features of the appellant’s evidence were inconsistent, and unpersuasive. Ultimately, the Tribunal found that it was not satisfied that the appellant was a witness of truth. On the basis of that adverse credibility finding the Tribunal was not prepared to accept that the appellant or his family suffered as described in his written materials, or in his oral evidence. The Tribunal was not satisfied that the claims made by the appellant were true. The Tribunal found that the appellant was prepared to make false and changing claims to support his application for a protection visa.

The proceeding in the Federal Circuit Court

8    By an application dated 5 February 2018, the appellant commenced a proceeding in the Federal Circuit Court of Australia seeking orders that the decision of the Tribunal be quashed, and that a writ of mandamus be directed to the Tribunal requiring it to determine the appellant’s application according to law. The jurisdiction of the Federal Circuit Court in this case is conferred by s 476 of the Migration Act, and it is the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. In order to succeed on the application to the Federal Circuit Court, the appellant had to demonstrate jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [17]-[31].

9    At the hearing before the Federal Circuit Court the appellant was unrepresented. The primary judge recorded in the reasons for judgment that the lawyer who had been acting for the appellant filed a notice of withdrawal on 10 May 2018. During the course of the hearing before the primary judge the appellant sought an adjournment of the hearing on the ground that his financial position was difficult, and that he was awaiting funds from his father in Nepal. The application for adjournment was made after evidence had been tendered, and as the appellant commenced his oral submissions. It does not appear from the primary judge’s reasons that the application for the adjournment was supported by any additional evidence.

10    The application for an adjournment was refused. The primary judge held that he was not satisfied that any further funds would be received to assist the appellant. The primary judge also stated that he took into account the prospects of success of the grounds identified in the appellant’s application to the Federal Circuit Court. The primary judge was unpersuaded that there was any real utility in granting an adjournment, and stated that he was not satisfied that an adjournment was warranted in the interests of the administration of justice.

11    The appellant’s grounds before the Federal Circuit Court were as follows –

1.    The Second Respondent made jurisdictional error by making a decision which was unreasonable.

Particulars

(a)    The [Tribunal] at [32] failed to consider the applicant's claim individually and assorted it with other two owners of the land if they have suffered any harm or threats.

(b)    The [Tribunal] at [38] misinterpreted the applicant's statement that everyone in Nepal uses social media and merely on assumptions expected that the Maoists would use social media to locate people they have been seeking to harm.

2.    The [Tribunal] made jurisdictional error in that the decision was affected by reasonable apprehension of bias.

3.    The [Tribunal] made jurisdictional error in that it failed to comply with section 425 of the Migration Act 1958.

Particulars

(a)    Particulars will be provided on the receipt of the hearing transcript.

4.    The Second Respondent made jurisdictional error in that it failed to comply with ss 424A and 424AA of the Migration Act 1958.

Particulars

(a)    Particulars will be provided on the receipt of the hearing transcript.

5.    The Second Respondent made jurisdictional error by taking into account irrelevant considerations.

Particulars

(a)    The second Respondent at [46] and [47] acknowledged an undated Facebook comment, concluding that the applicant's family has an intention to move back home, which undermines the applicant's claim.

(b)    At [55] the Second Respondent considered that at the age of 18 years the applicant should have made an effort to understand the judicial system in Nepal.

12    The primary judge considered each of the grounds seriatim, and rejected them: [2018] FCCA 1529 at [17] to [28].

13    The orders of the Federal Circuit Court were that the oral application for adjournment was dismissed; the application was dismissed; and the appellant was ordered to pay the Minister’s costs fixed in the amount of $6,000.

The grounds of appeal

14    The appellant did not file any written submissions in support of his appeal to this Court. The appellant addressed the court very briefly, but did not develop any oral argument addressed to the grounds of appeal in his notice of appeal.

15    There is no challenge in this Court to the primary judge’s reasons for rejecting the grounds of the application. Rather, the grounds of appeal are directed to the refusal of an adjournment, an alleged denial of procedural fairness, and an allegation of apprehended bias. The grounds of appeal are as follows –

1.    His Honour made error by failing to consider the Appellant's request to permit additional time to find a lawyer to represent him.

2.    His Honour denied procedural fairness to the Appellant.

3.    His Honour appeared to have made up his mind to dismiss the application before hearing the Appellant's request to adjourn the matter, this creates an apprehension of bias.

4.    His Honour made error by failing to deliver reasons for his decision and thus limiting the Applicants' right to appeal.

Particulars

(a)    His Honour did not publish his reasons, decision or orders online.

(b)    His Honour did not publish his reasons, decision or orders on the Commonwealth Courts Portal.

16    I shall consider each of these grounds in turn.

The application for an adjournment

17    The primary judge set out at [13]-[14] of his reasons for judgment the circumstances of the appellant’s application for an adjournment, and his Honour’s reasons for refusing the application –

13.    After the completion of evidence and as the applicant commenced oral submissions, the applicant indicated that he wanted an adjournment. The applicant contended that he was awaiting funds from his father that he asked for some weeks ago and that his financial position was difficult and said that there were financial difficulties in relation to the obtaining of funds.

14.    The applicant was aware of these proceedings, having brought the same in February 2018 and notwithstanding the withdrawal of his lawyer on 10 May 2018, was clearly aware of that intention to withdraw prior to that date. The applicant’s explanation as to being unable to obtain funds to date is not satisfactory and does not persuade the Court that there is a real utility in granting an adjournment. The Court is not satisfied that any further funds will be received to assist the applicant. More importantly, the Court also takes into account the lack of prospects of success in the grounds identified in the application that have been prepared by the applicant’s lawyer. The Court notes the first respondent opposed the adjournment. Nothing was said by the applicant in support of the adjournment to satisfy the Court that there would be any utility in granting an adjournment, either in relation to the applicant being in a position where he would be represented, or in relation to the merits of the application. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.

18    The application for adjournment was an interlocutory application the resolution of which involved the exercise of a discretion by the primary judge. Because the refusal of the adjournment was an interlocutory order that affected the final result, an appeal from the final orders can raise as a ground a challenge to the orders refusing the adjournment: Gerlach v Clifton Bricks Pty Ltd (2001) 209 CLR 478 at 483 [6].

19    In order to demonstrate error on the part of the primary judge in refusing the appellant’s oral application for an adjournment of the hearing, it is necessary for the appellant to show that the primary judge made an error of fact, or acted upon a wrong principle, or acted upon extraneous matters, or failed to take some material consideration into account, or that the refusal of the adjournment was unreasonable or plainly unjust: House v R (1936) 55 CLR 499 at 504-505.

20    There is no absolute entitlement in a party to be legally represented before the Federal Circuit Court. However, the fact that a party wishes to obtain legal representation may be a relevant factor in considering whether an adjournment should be granted. Against that may be weighed other considerations, including the utility of the adjournment, and broader considerations of the interests of the administration of justice that are relevant to the effective functioning of the Federal Circuit Court, which is a notoriously busy court with a high volume of cases: see Sali v SPC Ltd (1993) 116 ALR 625 at 629.

21    In this case, the primary judge took account of the fact that the appellant had known for some time of the proceedings. It appears that the application for the adjournment was not supported by evidence. The judge was not persuaded of the appellant’s claim that further funds would be received to assist him. Furthermore, the primary judge had regard to the merits of the claimed grounds of jurisdictional error, which had been prepared by a lawyer on the appellant’s behalf. There is no challenge in this Court to any of the judge’s findings on the merits of the application for judicial review to the Federal Circuit Court. The considerations to which the primary judge referred at [13]-[14] of his Honour’s reasons were capable of reasonably supporting the primary judge’s view that he was not satisfied that an adjournment would be in the interests of the administration of justice. In my view, the refusal by the primary judge of the application for an adjournment was a course that was properly open to his Honour in the circumstances, and I do not consider there to be any appealable error in that decision.

Denial of procedural fairness

22    The claim in the notice of appeal to this Court that the appellant was denied procedural fairness in the Federal Circuit Court is unparticularised, and otherwise devoid of content. As was said in Wyman v Queensland (2015) 235 FCR 464 at 474 [43], litigants are entitled to a reasonable opportunity to present their case, and a refusal of an adjournment can constitute a failure to give a litigant that opportunity. However, litigants are not entitled to every opportunity, irrespective of the delay and the prejudice in relation to other considerations that involve the Court, the public, and the other party: Zetta Jet Pte Ltd v The Ship “Dragon Pearl” [2018] FCAFC 99 at [49]. As I have indicated, I do not consider there was any appealable error by the primary judge in refusing the adjournment, and in my view, the appellant was not denied procedural fairness.

Apprehension of bias

23    The appellant claims that the primary judge appeared to have made up his mind to dismiss the application before hearing the appellant’s oral application to adjourn the matter, and that this constituted an apprehension of bias. I take the appellant to allege that there was a reasonable apprehension of bias in the nature of pre-judgment by the primary judge.

24    Apprehended bias may be demonstrated by showing that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee (2000) 205 CLR 337 at 344 [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 437 [31]. The test is objective: Johnson v Johnson (2000) 201 CLR 488 at 493 [12]; Grassby v R (1989) 168 CLR 1 at 20.

25    In dismissing the application for adjournment the primary judge took account of the lack of prospects of success in the grounds identified in the application. The primary judge stated that the appellant had said nothing in support of the adjournment in relation to the merits of the application. The primary judge was entitled to act on his appraisal of the likely merits of the application as a relevant factor that informed his decision whether to grant an adjournment. In the circumstances of this case, the fact that the primary judge formed an adverse view about the merits of the appellant’s application does not give rise to any reasonable apprehension that the judge would not bring an unprejudiced mind to the adjudication of the application upon hearing any full argument.

26    Judges are entitled to form preliminary views about cases. The High Court stated in R v Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546 at 555 in relation to the attributes of a fair and unprejudiced mind –

Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.

27    So, as a general rule, anything that a Judge says in the course of argument will be merely tentative and exploratory: R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 264. The expression of even robust tentative views in exchanges with counsel will not ordinarily, on that account alone, be taken to be indicative of prejudgment such as to give rise to a reasonable apprehension of bias: Johnson v Johnson (2000) 201 CLR 488 at 493 [13]. The expression of tentative views may give rise to an expectation that the judge may decide the case adversely to one of the parties, but it is important to distinguish that apprehension from a reasonable apprehension that the judge will not bring a fair and impartial mind to the adjudication of the issues in the proceeding: Re JRL; ex parte CJL (1986) 161 CLR 342 at 352.

28    For the above reasons it is my view that nothing said by the primary judge in his reasons for dismissing the appellant’s application for an adjournment is reasonably capable of supporting the conclusion that the primary judge reasonably appeared not to bring a fair and impartial mind to bear upon the adjudication of the merits of the appellant’s application.

Failure to deliver reasons

29    Ground 4 of the notice of appeal alleges a failure by the primary judge to give reasons with the consequence that the appellant’s rights of appeal were limited.

30    The primary judge’s orders were made on 12 June 2018. I was informed by counsel for the Minister, who appeared below, that the primary judge gave ex tempore reasons on 12 June 2018. However, the written reasons of the primary judge were not published until 26 July 2018. Although the written reasons were published well after the date of the orders dismissing the application, from which date the time for appeal commenced to run, the appellant nonetheless filed his notice of appeal in this Court on 2 July 2018, which was within the 21 day period fixed by r 36.03 of the Federal Court Rules 2011 (Cth). In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] the Full Court referred to the late publication of written reasons as an “undesirable state of affairs”, and stated that written reasons should be published shortly after ex tempore reasons, and well within the appeal period. For whatever reason, that did not occur in this case. However, in the circumstances of this case the failure of the Federal Circuit Court to publish written reasons shortly after the conclusion of the hearing does not give rise to any error in the decision.

Conclusions

31    For completeness, I note that the appellant confirmed at the hearing of this appeal that he had received an electronic copy of the appeal book in this appeal on 12 November 2018 and that he had an opportunity to look at the documents in the appeal book. Counsel for the Minister informed the Court that the appellant was served with a hard copy of the appeal book under cover of a letter dated 30 July 2018. The appellant did not accept that he had been served with the hard copy, but as I have said, the appellant accepted that he was served with an electronic copy.

32    For the above reasons, the appeal shall be dismissed.

Associate:

Dated:    27 November 2018