FEDERAL COURT OF AUSTRALIA

Syed v Minister for Home Affairs [2019] FCA 498

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to the Minister for Home Affairs.

2.    The Application for an extension of time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, Mr Mustafa Syed, applied for a Partner Visa under the Migration Act 1958 (Cth) (the “Migration Act”). On 2 December 2015, a delegate of the Minister refused to grant the visa.

2    Mr Syed sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”). An invitation was extended to Mr Syed by the Tribunal to provide further information in support of his application by 1 December 2016 and to attend a hearing before the Tribunal on 8 December 2016. But Mr Syed did not provide any further information to the Tribunal and failed to appear at the hearing. The Tribunal on that date dismissed the application under s 362B(1A)(b) of the Migration Act. Mr Syed was advised of his right to apply to have his application reinstated. No such application was made. On 3 January 2017 the Tribunal confirmed its decision to dismiss the application. Reasons for each of these decisions of the Tribunal were provided.

3    Mr Syed then sought a review of the Tribunal’s decisions by the Federal Circuit Court of Australia. On 3 August 2018 the Federal Circuit Court delivered two decisions of present relevance: Syed v Minister for Immigration and Border Protection & Anor [2018] FCCA 2304 and Syed v Minister for Immigration and Border Protection & Anor (No. 2) [2018] FCCA 2305.

4    In the former decision, a Judge of that Court refused a request by Mr Syed for an adjournment. In the second decision, the same Judge dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 3 January 2017 confirming its decision of 8 December 2016.

5    On 28 August 2018, Mr Syed filed in this Court an Application for an extension of time (the “Application”). On this day the Registry also received from Mr Syed a Draft Notice of appeal from the Federal Circuit Court of Australia (the “Draft Notice of Appeal”).

6    On 7 February 2019 the Applicant, Mr Syed, appeared before this Court unrepresented. He was assisted by an interpreter, although it may be observed that Mr Syed had little difficulty in personally making such submissions as he saw fit. The Respondent Minister appeared by his solicitor. The Second Respondent filed a Submitting Notice save as to costs.

7    The materials then available to the Court were scant. The available documents from the Applicant were the Application, an affidavit from Mr Syed and an unfiled copy of the Draft Notice of Appeal. The Respondent Minister had filed an Outline of Submissions and an Application Book consisting of the decision of the Tribunal of 8 December 2016, the sealed orders of the Federal Circuit Court of 3 August 2018, and the two decisions of the Federal Circuit Court delivered on 3 August 2018. At the outset of the hearing, the solicitor appearing for the Respondent Minister also sought to tender the Statement of Decision and Reasons of the Tribunal confirming the dismissal of the application on 3 January 2017 and orders made by a Registrar of the Federal Circuit Court on 20 April 2017. Both of these two documents, it was considered, could be made available to the Court without any necessity to have them separately marked as exhibits and they were added to the Application Book.

8    The Application for an Extension of Time is to be refused and the proceeding dismissed with costs.

An extension of time & the proposed Grounds of Appeal

9    In the absence of an order extending time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”), r 36.03(a)(i) requires that a notice of appeal be filed within 21 days: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [5] per Flick, Griffiths and Perry JJ. The factors to be taken into account by the Court when exercising the discretionary power to extend time, Robertson, Steward and Thawley JJ in BUD17 v Minister for Home Affairs [2018] FCAFC 140 have observed (emphasis in original):

[82]    In considering whether to exercise the discretion to extend time under r 36.05 of the Federal Court Rules 2011 (Cth) (FCRs), and recognising that the Court’s discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: …

(citations omitted)

An extension of time may be refused where there is not a “sufficient prospect of success” to warrant an extension being granted: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] per Lee, RD Nicholson and Finkelstein JJ.

10    The extension of time necessary in the present proceeding is short – it is a period of about four days.

11    The Application as filed by Mr Syed was supported by an affidavit which stated in part as follows (without alteration):

2.    That I couldn’t lodge Application for Notice of appeal from the Federal Circuit Court of Australia in time because I was under severe financial hardship. I went overseas because mother was seriously ill. I have spent my all saving to contribute for her treatment. When I returned to Australia on 31 July 2018, I did not have any money left in my account to pay the court fees. I tried to borrow from friends, but couldn’t arrange the money to lodge appeal in time.

(a)

3.    I also got sick when I arrived in Australia and couldn’t do any work to earn money. I was sick as well under financial hardship, which resulted in delay to lodge the appeal.

Had the proposed Grounds of Appeal presented any argument that had any self-evident prospects of success, the delay in bringing the proceeding would not have presented an insurmountable obstacle to an extension of time being granted. Whatever deficiencies there may have been in the explanation provided in the affidavit, at least some explanation was provided.

12    It is the absence of any self-evident merit in any of the proposed Grounds of Appeal which dooms the present application to failure.

13    As set forth in the Draft Notice of Appeal, the Grounds of Appeal are there set forth as follows (without alteration):

1.    The Tribunal erred in making final decision. The AATT adopted very harsh approach to judge the criteria

2.    The Tribunal made decision in hurry based on incomplete and unrelated information

3.    The Tribunal did not provide me enough opportunity to give evidence

4.    The primary Honourable judge erred in making the judgement in this matter by not adjourning the hearing as I was sick that day

5.    The primary judge made decision without taking any evidence/submissions

The absence of merit in the proposed Grounds

14    Proposed Grounds 1 to 3 before this Court repeat the Grounds of Review that were advanced before the Federal Circuit Court in largely the same terms.

15    Those three proposed Grounds expressed as Grounds of Appeal in this proceeding, however, suffer from a number of difficulties, including:

    the fact that those Grounds identify errors said to have been committed by the Tribunal as opposed to the identification of appellable errors said to have been committed by the primary Judge.

And, separate from that fundamental difficulty is the fact that:

    the first purported Ground does not identify any jurisdictional error said to have been committed by the Tribunal – an allegation that a decision-maker “adopted [a] very harsh approach” falls well short of identifying any legal error, other than perhaps an ill-expressed allegation as to a reasonable apprehension of bias or perhaps “legal unreasonableness”. But the decisions dismissing a proceeding for want of appearance, without more, do not in any event seem to be anything other than an exercise of an available statutory discretion and certainly decisions not warranting the characterisation as “very harsh”;

    the allegation in the second purported Ground that the Tribunal made its decision “in [a] hurry” again falls short of identifying any legal error, other than perhaps an allegation as to a denial on the part of the Tribunal of affording a party a reasonable opportunity to be heard; this Ground also fails to identify what the “information” is to which reference is made or why it was “unrelated” or “incomplete”. And an allegation that an exercise of a discretionary power was made “in [a] hurry” provides no explanation as to why the exercise of the power constitutes a legal error; and

    the third Ground confronts the difficulty that Mr Syed both failed to appear before the Tribunal on 8 December 2016 and failed to apply to have his case reinstated before the Tribunal. And, further, the Tribunal had expressly requested Mr Syed provide further information to support his Application, which he failed to do. Any suggestion that the Tribunal, in some unspecified manner, failed to afford him “enough opportunity to give evidence” seems misplaced.

16    Before the Federal Circuit Court, Mr Syed apparently maintained that he “did not have anything to say in relation to the first and second grounds”. The Judge of that Court nevertheless went on to resolve both the second and third grounds by reference to whether the decision of the Tribunal to refuse an adjournment was an unreasonable exercise of the power conferred by s 362B of the Migration Act. In doing so, the primary Judge construed the then grounds of review in a manner favourable to any case that could have been advanced even had Mr Syed been legally represented.

17    No appellable error is discernible in the manner in which the primary Judge resolved these Grounds of Review.

18    Proposed Grounds of Appeal 1 to 3 (inclusive) are without merit and do not, accordingly, warrant any extension of time.

The refusal of an adjournment – Ground 4

19    Unlike proposed Grounds of Appeal 1 to 3, the fourth proposed Ground identifies an alleged error on the part of the primary Judge in refusing Mr Syed an adjournment.

20    A not inconsiderable difficulty with such an argument is that appellate courts rarely disturb decisions to grant or refuse adjournments: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 per Kirby P. “It must be shown not only that the judge erred in the exercise of his or her discretion to refuse or grant the adjournment, but that the decision would cause substantial injustice to one of the parties”: Lashansky v Legal Practice Board of Western Australia (No 3) [2013] WASCA 260 at [12] per Newes JA; cf. Bloch v Bloch (1981) 180 CLR 390 at 395 to 396 per Wilson J. “Particular caution”, it has been said, must be exercised by an appellate court when reviewing such decisions: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 161 per Bowen CJ, Woodward and Lockhart JJ; Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111 at [35] per Mansfield, Besanko and Flick JJ; SZRBN v Minister for Immigration and Citizenship [2012] FCA 984 at [14] per Flick J.

21    When making the decision to refuse an adjournment in the present case, the primary Judge referred to an email that Mr Syed had forwarded to the Registry of that Court on the morning of the hearing: [2018] FCCA 2304 at [3]. The primary Judge thereafter went on to set forth his reasons (in part) as follows:

[7]    When the Court is faced with an application for an adjournment of a hearing, particularly when that application is made on the day of the hearing, the Court takes into account a number of considerations. The overall question is whether it is in the interests of the administration of justice that the matter be adjourned. In determining that question the Court looks to a number of factors. One is whether there would be any utility, at least from the perspective of the party applying for the adjournment, to grant the adjournment. If there is no utility, then there would be no point in adjourning the matter. The next question the court looks at is the position of the party who opposes the adjournment. The question there is what prejudice will the party suffer if an adjournment is granted. Another relevant factor is why the party seeking the adjournment is not in a position to proceed at the appointed time.

[8]    Turning now to the circumstances of the application that is before me. The only explanation that is given for the applicant not being in a position to proceed with today’s hearing is what is asserted to be the mental state of the applicant. That is not supported by any evidence. I am entitled, I think, to take into account my own perceptions and observations of the applicant even though I am not a qualified medical practitioner. The applicant, of course, as one would expect, has displayed a degree of nervousness. That is natural not only for unrepresented litigants but even for lawyers to experience when they are before a court. Apart from a display of nervousness, however, there is nothing apparent to my senses to indicate the applicant is in no state to meaningfully participate in today’s hearing. So I do not accept that the applicant is not in a position to proceed today on account of his mental state.

[9]    There is no other adequate explanation why the applicant is not in a position to proceed with today’s hearing. He has had plenty of time to prepare for this application and it appears from that that the applicant has proceeded on the basis that his case is hopeless or at least not a strong one. That is a judgment that the applicant has made, and whether that is correct is a matter to be determined at the time of the hearing of his claims.

[10]    The next question, then, is utility. What will happen if I grant the two or three week adjournment? In my opinion, there is nothing to indicate anything will be different. The adjournment is sought on the say-so of the applicant that he hopes that he will be in a better mental state when the matter is next before the court in two to three weeks. That is not a basis on which I can be confident that the applicant will be in any better position to proceed with the hearing in two to three weeks’ time if I were to grant an adjournment.

[11]    Finally, there is the broader issue of this court’s management of cases…

22    Irrespective of any “particular caution” to be exercised when reviewing a decision to refuse to grant an adjournment, no error is discernible in these reasons as to the manner in which the primary Judge exercised his discretion to refuse the adjournment. No error of the kind identified in House v The King (1936) 55 CLR 499 at 504 to 505 is discernible.

23    Left to one side is whether or not the separate decision given on 3 August 2018 in Syed v Minister for Immigration and Border Protection & Anor [2018] FCCA 2304, to refuse the adjournment application, was an interlocutory decision requiring leave to appeal before this Court.

24    The fourth proposed Ground of Appeal is without merit.

The failure to take evidence – Ground 5

25    The final proposed Ground of Appeal, like the fourth proposed Ground, seeks to identify error on the part of the primary Judge. This proposed Ground seeks to contend that the primary Judge erred in making a decision “without taking any evidence/submissions”.

26    The difficulty with this proposed Ground, however, is at least two-fold, namely:

    an order made by a Registrar of the Federal Circuit Court on 20 April 2017 provided for the filing by Mr Syed of such evidence and submissions as he wished to rely upon and there was (in effect) no evidence filed by him and no submissions filed; and

    there is a failure on the part of Mr Syed to now provide any indication of the nature of the evidence or the submissions he contends should have been taken into account but which was not taken into account.

A party who seeks to contend on appeal that a primary Judge has erred in not taking into account evidence or submissions faces an insurmountable difficulty where an opportunity was extended to file that evidence and those submissions so that it can be identified by any appellate court and where that opportunity has not been availed of.

27    The fifth proposed Ground of Appeal is without merit.

CONCLUSIONS

28    The first three proposed Grounds of Appeal fail to identify any error on the part of the primary Judge and no error is, more importantly, discernible in the manner in which the primary Judge resolved the like Grounds of Review at first instance.

29    The final two proposed Grounds of Appeal are without merit.

30    Although the extension of time in which to file a Notice of Appeal sought may be short, the proposed Grounds of Appeal are not such as to warrant an extension of time being granted. There is little point in extending time in which to file a Notice of Appeal only to thereafter dismiss the appeal.

31    It should finally be noted that the First Respondent was identified before the Federal Circuit Court of Australia as the Minister for Immigration and Border Protection. Before this Court, the Applicant variously identified the First Respondent as the Minister for Immigration and Border Protection or the Minister for Department of Home Affairs. In order to regularise the proceeding and to avoid potential confusion an order should be made changing the name of the First Respondent to the Minister for Home Affairs.

32    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The name of the First Respondent be changed to the Minister for Home Affairs.

2.    The Application for an Extension of Time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

Associate:    

Dated:    12 April 2019