FEDERAL COURT OF AUSTRALIA

DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal from the orders of the Federal Circuit Court made on 28 November 2017 is granted.

2.    Leave to appeal is confined to the five proposed grounds of appeal identified in the written submissions filed on behalf of the applicants on 18 September 2018.

3.    On or before 4 pm on 10 January 2019, the applicants are to file and serve an amended notice of appeal that reflects the five proposed grounds of appeal identified in the written submissions filed on behalf of the applicants on 18 September 2018.

4.    The Minister’s costs of the application for leave to appeal be reserved.

5.    The appeal will be listed for hearing at a date to be fixed in February 2019 on the basis of the parties’ written submissions that have been filed with the Court.

6.    The parties are to confer and to propose by joint note to the Court, on or before 4 pm on 10 January 2019, a timetable for the filing of an appeal book and a joint set of authorities for the appeal.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The first and second applicants are mother and son. The son is approximately 12 years of age. In their application to this Court they seek leave to appeal from orders of the Federal Circuit Court made on 28 November 2017, and an extension of time in which to make that application for leave to appeal. By those orders the Federal Circuit Court dismissed the applicants’ judicial review application in relation to a decision of the Administrative Appeals Tribunal made in October 2016, affirming the delegate’s decision to refuse to grant a protection visa to the applicants.

2    The applicants’ claims for protection visas involve what they contend would occur if they were forced to return to Indonesia or Malaysia, including by reason of the alleged likely reaction of the estranged husband of the first applicant, who is also the father of the second applicant. While the Tribunal accepted that the second applicant had a right to enter and reside in Indonesia, it accepted that the first applicant no longer had such a right. Additionally, the first applicant claimed that she and her son could not go back to Indonesia because of her ex-husband. She claimed that she and her son could not return to Malaysia, because she would lose custody of her son, and she had suffered family violence from her parents. The first applicant’s son did not make any independent claims.

3    On review before the Tribunal, the Tribunal identified in its reasons at [9] three issues arising on the review:

(a)    whether the second named applicant will be abducted by his father in Malaysia and taken to Indonesia where the first-named applicant will not be able to see him;

(b)    whether the first named applicant will be forced to live in an abusive relationship with her parents in Malaysia; and

(c)    whether the first named applicant will be harmed as an apostate in Malaysia.

4    It dealt with each issue adversely to the applicants, and affirmed the refusal of the delegate to grant the applicants protection visas. It was from this decision that the applicants sought judicial review in the Federal Circuit Court.

5    The applicants’ applications for leave to appeal and an extension of time were listed for 6 August 2018. Counsel appearing pursuant to an earlier pro bono referral under r 4.12 of the Federal Court Rules 2011 (Cth) appeared on behalf of the applicants at the hearing of their applications on that day. Counsel for the applicants had accepted and received the brief to appear on a pro bono basis only a few days before 6 August 2018.

6    On that day, after hearing counsel for the applicants and the Minister, the Court made orders extending the time in which the applicants could file an application for leave to appeal from the orders of the Federal Circuit Court made on 28 November 2017. The Court was satisfied on the affidavit material filed on behalf of the applicants that there was a reasonable explanation for the delay in filing their application for leave to appeal and that it was appropriate in the interests of the administration of justice to grant an extension of time in which to seek leave to appeal from the Federal Circuit Court orders.

7    In terms of the substance of the proposed appeal from the orders of the Federal Circuit Court, one foreshadowed ground of appeal was an allegation that the applicants were denied procedural fairness by the Federal Circuit Court because it refused to give them an adjournment of their judicial review application. Pro bono counsel insisted that in order to develop that argument she needed access to the transcript of the Federal Circuit Court hearing and neither she nor the client had that transcript. After some consideration, I accepted that position. I informed pro bono counsel that if the transcript was available, she and her client could attend the Court’s Registry and inspect it. It was also apparent that, through no fault of her own, pro bono counsel was not in a position to advance any substantive arguments on the application for leave to appeal on 6 August 2018.

8    I explained that I was satisfied it was appropriate to adjourn the application for leave to appeal for a short period of time, to enable the application to be properly prepared on behalf of the applicants, including by reference to the transcript of the hearing before the Federal Circuit Court.

9    I explained to pro bono counsel and to the first applicant that the Court would still need to consider whether there was any underlying merit in the judicial review application that was before the Federal Circuit Court. I also explained the Court would need to understand the basis for the challenge to the Federal Circuit Court’s refusal of an adjournment. I reminded pro bono counsel that she would also need to persuade the Court that if the adjournment had been granted, there would have been at least some prospects that the judicial review application could have succeeded, as there would be no point in granting leave to appeal if the judicial review application was doomed to fail. At this stage, the proposed notice of appeal before the Court, which appeared to have been drafted by the first applicant herself raised allegations of denial of procedural fairness and bias in relation to the Federal Circuit Court, and then a number of unparticularised allegations about the Tribunal decision, which did not grapple to any real extent with what the Tribunal decided and how any error of a jurisdictional kind was revealed by its decision. That is not to be critical of the first applicant, but rather to emphasise that the documents at that stage were not particularly informative about how the applicants’ arguments might ultimately be put, and that it was obvious there would need to be amended documents filed if the applicants continued to have the benefit of legal representation.

10    Accordingly, the matter was adjourned for a short period of time – until 14 August 2018 – to enable argument to be prepared on behalf of the applicants.

11    The Court resumed on 14 August 2018. At that hearing the first applicant appeared for herself and for the second applicant. Prior to this hearing, the first applicant had communicated with the Court, seeking an adjournment of the hearing. She was informed that she should attend Court on 14 August 2018 and any application she had to make would be considered at that time. The first applicant did apply for an adjournment at the hearing. She informed the Court she had a number of documents and matters she wished to raise to explain why she needed an adjournment. She was invited to give sworn evidence as to these matters, a course the Minister’s counsel submitted was appropriate. She did so. She was cross-examined to a limited extent.

12    The first applicant gave evidence that pro bono counsel had withdrawn. She also gave evidence that her son, the second applicant, had had some serious problems at school. It is not necessary to set those out in these reasons, but I accepted on the basis of the first applicant’s evidence that they were indeed extremely serious, and had understandably distracted her from concentrating on this proceeding. The first applicant also tendered a letter from her son’s treating psychologist. She gave evidence about having paid for a copy of the Federal Circuit Court transcript to be prepared, it having turned out that no transcript of the Federal Circuit Court hearing was available on the Court’s file, and therefore the first applicant needed to order and pay for one to be prepared. The first applicant also gave evidence, in substance, that she did not have the funds to engage a lawyer, but that her partner, who was with her in Court, did have some funds and was prepared to assist her. She gave evidence about some of the efforts she had made to try and find a lawyer, or a barrister. After some explanations from the Court about how she needed to formulate a concrete proposal about how long an adjournment she sought, and what she proposed she could achieve during any adjourned period, the first applicant informed the Court that she sought an adjournment for two to three months to be able to engage a barrister and so that barrister would have time properly to prepare her case. Under cross-examination she gave evidence she had a significant sum of money to spend on legal fees, through her partner’s assistance, and that sum had only recently become available.

13    After hearing submissions from the Minister’s counsel, I determined that it was appropriate to accommodate the applicants’ requests, but not quite in the way they had sought. Although I was not persuaded the applicants should have a full adjournment, nor one until November 2018, I was persuaded some further opportunity should be given to the applicants, having regard to what was at stake for them, and to the first applicant’s evidence. I considered resuming for a third interlocutory hearing in this matter would be a disproportionate use of this Court’s (and the Minister’s) resources. Instead, the Minister’s counsel was asked to develop his submissions on the substantive application for leave to appeal. This counsel did, with his usual high level of competence and focus.

14    By orders made that day (14 August 2018), on the basis that she was the primary moving party, the first applicant was given until 18 September 2018 to file and serve any written submissions in support of her application for leave to appeal, including any additional arguments in support of the application for leave to appeal from the Federal Circuit Court, and to file and rely upon the transcript of the hearing before the Federal Circuit Court if that had been obtained. The Minister was then given until 26 October 2018 to file and serve any responding submissions. The Court ordered that the application for leave to appeal would then be decided on the papers.

15    On 18 September 2018, written submissions were filed on behalf of the applicants, signed by senior and junior counsel and filed by solicitors acting on behalf of the applicants. The written submissions set out a series of challenges to the decision of the Tribunal. They do not set out any arguments about separate errors alleged to have been committed by the Federal Circuit Court, such as denial of procedural fairness to the first applicant, or bias. In other words, the submissions contended that the error affecting the orders of the Federal Circuit Court consisted of the Federal Circuit Court erring in not finding that the Tribunal’s decision was affected by jurisdictional error. However, no proposed amended notice of appeal accompanied the submissions.

16    The written submissions contend that the Federal Circuit Court erred by not finding the Tribunal’s decision was illogical, irrational or legally unreasonable, in a number of ways:

(1)    First, in relation to the finding it was open to the Tribunal to find that the first applicant’s evidence concerning her ex-husband’s contact with her son in Australia was contrived;

(2)    Second in relation to the Tribunal’s finding that the first applicant’s ex-husband did not intend to abduct their son should the applicants return to Malaysia;

(3)    Third, in relation to the Tribunal’s conclusion that it was unable to make findings in relation to the claimed domestic violence;

(4)    Fourth, in relation to the Tribunal’s finding that the first applicant’s ex-husband was not seeking to change the (then) current custody arrangement in respect of their son; and

(5)    Fifth, in relation to the Tribunal’s finding that should the first applicant’s ex-husband seek custody of their son, the relevant court in Malaysia would have regard to his welfare and the first applicant would have a chance to put matters before the court.

17    The written submissions develop why, as to each of these matters, the applicants contend that the Tribunal’s finding was irrational or illogical. It is not clear on the submissions whether a separate argument about legal unreasonableness is put, or whether it is contended (as one might take from [5] of the written submissions) that there is an overarching contention that the Tribunal’s decision is legally unreasonable, because of the irrationality and illogicality of its fact finding, in the ways contended.

18    The Minister’s responsive submissions, filed on 26 October 2018, contended that much of the factual material on which the applicants’ submissions rely is not in the tender bundle before this Court, but rather was in the court book before the Federal Circuit Court. The Minister pointed to the high threshold on the authorities in order to make out arguments of illogicality and irrationality at a jurisdictional level, as well as the high threshold to make out legal unreasonableness. The applicants’ submissions, the Minister contended, sought to impermissibly challenge the merits of the Tribunal’s decision.

19    The Minister’s submissions canvassed the findings of the Tribunal, in detail, in order to rebut the submissions made on behalf of the applicants.

Resolution of the application for leave to appeal

20    In Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; 252 FCR 1 at [38] the Full Court set out the applicable and well-established principles governing the grant of leave to appeal (albeit in relation to an application for leave to appeal from a single judge of this Court):

Before leave may be granted the applicant must usually show that:

(a)    in all the circumstances the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and

(b)    supposing the decision to be wrong, substantial injustice would result if leave were refused: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).

21    A similar expression of principle can be found in the Full Court’s decision in Minister for Home Affairs v SZRWS [2018] FCAFC 51; 254 FCR 163 at [40], to which the Minister’s counsel referred in oral argument on 14 August 2018.

22    In Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [29], I observed that in leave to appeal applications in the area of the judicial review of migration decisions, if there is merit in the ground of review, then because of the likely consequences to an applicant (often including deprivation of liberty, and removal from Australia) it will be obvious there will be a substantial injustice to a party in refusing leave. I adhere to the view that in this field, the real question for the grant of leave is the merit of the proposed grounds of appeal.

23    The applicants’ submissions have now refocussed on whether the Tribunal’s decision is affected by jurisdictional error, rather than procedural fairness arguments about the Federal Circuit Court hearing. That focus in itself brings more credence to the proposed grounds of appeal.

24    It is somewhat surprising that no proposed notice of appeal has been filed, but the Court may bear some responsibility for that, in not making a direction to that effect. In any event, the proposed grounds are sufficiently clear from the structure of the applicants’ written submissions, and were so understood by the Minister’s responsive submissions, which also identified the five contentions I have summarised above.

25    The assessment whether the decision of an administrative decision-maker is affected by jurisdictional error by reason of the illogicality or irrationality of the fact finding or reasoning process of the decision-maker, or because the exercise of power, as reflected in the decision, is legally unreasonable, is a fact intensive assessment. It is for this reason that many authorities emphasise the proximity of these grounds to merits review, and further emphasise that Australian courts must be astute to ensure they remain within their constitutional function of supervising the lawfulness of administrative action, rather than determining what the correct or preferable outcome of administrative action should be.

26    I am conscious of those authorities in reaching my conclusion on this application for leave to appeal.

27    Nevertheless, I have concluded that it is in the interests of the administration of justice to grant the applicants leave to appeal. I consider the arguments now to be put on their behalf demonstrate that the decision of the Federal Circuit Court is attended with sufficient doubt to warrant the grant of leave to appeal. That does not mean I have concluded the arguments, or any of them should succeed, far from it. That is not the test, and it would be erroneous to treat an application for leave to appeal as if it were the full hearing of the appeal, especially on the papers.

28    To determine whether any of the applicants’ five grounds should succeed will require close consideration of the Tribunal’s reasons in the light of the evidence and other material before it, having heard the parties’ submissions developed by oral argument.

29    None of this occurred before the Federal Circuit Court. The first applicant represented herself and her son. She made some basic arguments about the Tribunal denying her procedural fairness and not acting in the best interests of her son. The Federal Circuit Court’s reasons took account of her arguments, but also went through the Tribunal’s reasons in some detail, examining how the Tribunal dealt with each of the issues it had said arose on the review. The Federal Circuit Court concluded (at [46]) that the Tribunal’s findings were open to it. In doing so, it did not have the benefit of the kind of closely focussed arguments now sought to be put on behalf of the applicants.

30    I consider what has been set out in the applicants’ submissions is sufficient to provide a reasonable basis for the Court to question whether the Federal Circuit Court was correct to find the Tribunal’s decision was not affected by jurisdictional error. The Minister may well ultimately be correct in what he submits, however a decision on that should await full argument on an appeal.

31    I accept this process has been drawn out, and the Minister has been put to the cost of now making two sets of written submissions, and engaging legal representatives for two appearances before this Court. The Minister’s costs of the application for leave to appeal will be reserved. In the Court’s orders of 6 August 2018, the Minister’s costs of the extension of time application were also reserved.

32    In order to keep the expenditure of costs and resources as proportionate as possible to the way in which an appeal would ordinarily be conducted, I do not propose to grant leave for any further written submissions to be made on the appeal: the appeal can proceed on the basis of what has been filed, save that the applicants will be directed to file a notice of appeal that reflects the written submissions filed on 18 September 2018. The parties’ written submissions can be developed by oral argument at the hearing of the appeal. The grounds of appeal will be confined to the five matters in the written submissions, which I have set out at [16] above. There must be some finality to the arguments that the applicants are permitted to raise, and that point has now been reached.

Associate:

Dated:    19 December 2018