FEDERAL COURT OF AUSTRALIA

BDA16 v Minister for Home Affairs [2019] FCA 85

ORDERS

THE COURT ORDERS THAT:

1.    The notice of objection to competency be upheld.

2.    The application for leave to appeal dated 13 September 2018 be dismissed.

3.    The applicants must 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 applicants seek leave to appeal from a decision dated 30 August 2018 by the Federal Circuit Court of Australia (FCCA). The FCCA refused an application to extend time to seek a judicial review of a decision of the then Refugee Review Tribunal (Tribunal). The Minister opposes the grant of leave to appeal and has also filed a notice of objection to competency dated 25 October 2018 on the basis that the FCCA’s decision not to extend time was made under s 477(2) of the Migration Act 1958 (Cth) (the Act) and such a decision is not able to be appealed to this Court because of the terms of s 476A(3)(a) of the Act.

Summary of background facts.

2    The applicants are all members of the same family. They are citizens of Jordan. They arrived in Australia on 19 September 2011 holding visitor visas. The third, fourth and fifth applicants are the children of the first and second applicants, who are married. Their applications were refused by the delegate on 26 July 2012, whose decision was affirmed on a review by the Tribunal on 19 August 2013. The applicants were almost three years out of time when they sought to the challenge the Tribunal’s decision in the FCCA. They lodged an application for extension of time under s 477(2) of the Act on 12 May 2016 which was amended on 18 May 2016 and further amended on 11 August 2016.

The primary judge’s reasons for not extending time

3    At [8] the primary judge referred to various authorities which provided guidance on whether time should be extended under s 477(2) of the Act. The relevant issues in the particular case were said to be the length of the delay, whether any reasonable or satisfactory explanation had been proffered for the delay, and whether the proposed substantive application had sufficient merit to extend time in the interests of the administration of justice. After referring to the affidavit evidence filed in support of the application for time to be extended, the primary judge concluded that no satisfactory explanation had been provided for such a lengthy delay. In essence, the applicants claimed that, acting on legal advice, they sought ministerial intervention under s 417 of the Act, instead of bringing judicial review proceedings and that they commenced such proceedings shortly after being notified on 31 March 2016 that the Minister had determined not to intervene.

4    The primary judge was satisfied that the applicants knew that there was a 35 day period within which they could seek judicial review but they elected to take a different course, based on legal advice provided on 23 August 2013. His Honour rejected the applicants’ contention that the Minister should take responsibility for the lengthy delay in considering their request for ministerial intervention. This contention was rejected on the basis that there was no evidence to indicate that the delay in bringing the FCCA proceeding was caused by the Minister’s conduct and that it was open to the applicants to have initiated the FCCA proceeding earlier. Rather, the decision to delay was based on the applicants’ legal advice.

5    The primary judge gave reasons why he considered that the various authorities relied upon by the applicants were distinguishable, including Re Commonwealth; ex parte Marks [2000] HCA 67; 177 ALR 491; SZTES v Minister for Immigration and Border Protection [2015] FCA 719 and MZZGC v Minister for Immigration and Border Protection [2015] FCA 842.

6    The primary judge then explained why he considered that all of the grounds of the substantive application either lacked any merit at all, or were of such a character as to not warrant time being extended in the interests of the administration of justice.

7    It is unnecessary to summarise all of those reasons. The primary judge refused the applicants’ application for an extension of time under s 477(2) of the Act.

The application for leave to appeal

8    The applicants had legal representation in respect of their application for leave to appeal. The draft notice of appeal contained the following five grounds:

1.    The Federal Circuit Court erred in failing to recognise that the failure of the First Respondent to make a timely decision was an acceptable reason for the delay.

Particulars

The Appellants' applied to the First Respondent on 10 September 2013 and were notified of the decision on 31 March 2016.

2.    The Federal Circuit Court erred in finding that the Second Respondent (Tribunal) failed (sic) to comply with its statutory duty.

Particulars

a.    The Tribunal failed to comply with the Migration Act 1958 s. 424A

b.    The Federal Circuit Court found that information included in the Decision Record was not caught by s.424A as it was given to the Tribunal by the Applicants.

c.    The Decision Record was not given to the Tribunal "for the purposes of the review", it was given to the Tribunal to satisfy a request made in the application form, by the Tribunal.

d.    The Tribunal cannot avoid its obligation under s. 424A of the Act by requesting that adverse information be given to the Tribunal.

3.    The Federal Circuit Court erred in finding that the Tribunal had properly considered the evidence of the Appellant's psychiatrist.

Particulars

a.    The Tribunal gave "no weight" to the psychiatrist's diagnosis of "major depression" because he was "able to participate in the hearing" and that it was based on what he had told the psychiatrists.

b.    By giving the report "no weight" the Tribunal, effectively failed to take account of the evidence and dismissed it on an improper basis.

4.    The Federal Circuit Court erred in finding that there was not a clearly articulated, or evident, claim raised by the Third Applicant by her mother, the Second Applicant.

Particulars

a.    The Third Applicant's claims is (sic.) set out in [116] of the Federal Circuit Court decision.

b.    The Tribunal dismissed this claim because of credibility concerns in relation to the First Applicant.

c.    Just because the First Applicant, is found to lack credibility, it does not follow that the Second and Third Applicant lacked credibility.

5.    The Federal Circuit Court erred in finding that the First Applicant was not denied procedural fairness by being required to wait outside the room while the Second Applicant gave her evidence and conversely, the Second Applicant was required to wait outside the room while the First Applicant gave evidence.

Particulars

a.    As they were not able to hear each other’s evidence, they were not able to corroborate that evidence, especially in regard to the experience of the Third Applicant.

b.    The Federal Circuit Court erred in finding [166] that the (Applicant) "did not even indicate to the Court how they suffered any practical injustice by not being present when the first and second (Applicants), respectively gave their evidence."

c.    Further, the Federal Circuit Court erred in finding [167] "The migration agent who represented them before the Tribunal, and who now appeared before the Court, was present throughout the Tribunal hearing, and made no objection ... "

The parties’ submissions summarised

9    The applicants belatedly provided a written outline of submissions. In support of proposed ground 1, the applicants said that the FCCA erred in not finding that there was an acceptable reason for the delay given the two and a half years it took the Department to process their application. They said that it was relevant that they had pursued Ministerial intervention and that it was only after this failed that they the approach the FCCA for an extension of time, citing Mitco DB Pty Ltd v Chief Executive of Customs [1999] FCA 712 (Mitco).

10    In support of proposed ground 2, they submitted that s 424A(3)(b) does not apply to the information in the decision record as it was not given for the purpose of the application for review but, rather, was provided by the applicants to the AAT as required by the review application form.

11    As to proposed ground 3, the applicants contended that the AAT failed to give “proper, genuine and realistic consideration” to the evidence provided by the psychiatrist, citing Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 417; 14 ALD 291 (Khan).

12    In support of proposed ground 4, the applicants contended that the FCCA erred in not accepting their claim that the AAT’s adverse finding of the first applicant’s credibility should not have flowed through to the second and third applicants.

13    As to the fifth proposed ground, the applicants argued that because the second applicant had informed the AAT that she did not have separate protection claims from her husband, and none of the other applicants had separate claims in their own right to those of the first applicant, the second applicant should have been allowed to remain in the room and hear the first applicant’s evidence. They claimed that requiring the first and second applicants to leave the room while the other gave their evidence was inconsistent with s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). This states that an objective of the Tribunal is to provide a mechanism of review that is accessible and is fair, just, economical”. They contended that the FCCA had denied the first and second applicants procedural fairness.

14    It is notable that the applicants’ outline of submissions, which was not filed until 30 January 2019 and after the Minister had filed and served his outline of submissions, is silent on the Minister’s notice of objection to competency.

15    The Minister’s submissions addressed the draft notice of appeal and the Minister’s notice of objection to competency. It is unnecessary to summarise them as they are reflected in my reasons below for upholding the notice of objection to competency and for dismissing the applicants’ application for leave to appeal.

Consideration and determination

16    As the Minister emphasised, while this Court can hear appeals from the FCCA under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), a jurisdictional bar is created by s 476A(3)(a) of the Act in respect of appeals from a judgment of the FCCA that “makes an order or refuses to make an order under subsection 477(2)”. This jurisdictional bar has been applied in numerous cases involving attempted appeals from decisions of the FCCA to refuse to extend time under that statutory provision, including Singh v Minister for Immigration and Border Protection [2017] FCA 1316 (Singh) and, more recently, in BCL16 v Minister for Immigration and Border Protection [2018] FCA 1870 (BCL16). Having regard to these authorities, it is unnecessary to consider the underlying merits of the proceeding in the FCCA because they are irrelevant to the question whether this Court has jurisdiction to hear an appeal (see Singh at [4] per Pagone J).

17    I accept the Minister’s submission that the applicants have failed to provide any foundation for grounding this Court’s appellate jurisdiction, nor do they claim that the primary judge’s judgment was affected by jurisdictional error (SZTUT v Minister for Immigration and Border Protection [2016] HCA Trans 150 per Gageler J). It is not appropriate for this Court to engage with the question whether the proposed grounds of appeal have reasonable prospects of success in circumstances where the Court lacks jurisdiction to entertain the proceeding (see ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [23]-[24] per Gleeson J).

18    During oral argument, Mr Turner, who appeared for the applicants, foreshadowed that he may seek to challenge the FCCA’s decision by way of judicial review. Mr Hutton, who appeared for the Minister, said that if this were to occur, it should happen in the normal way and that he was not in a position to respond to an unfiled proposed application for judicial review. It is a matter for the applicants to decide what future course they may adopt.

Conclusion

19    For these reasons, the Minister’s notice of objection to competency should be upheld and the applicants’ application for leave to appeal should be dismissed for lack of jurisdiction. The applicants must pay the Minister’s costs.

Associate:    

Dated:    7 February 2019

SCHEDULE OF PARTIES