FEDERAL COURT OF AUSTRALIA

AVC15 v Minister for Home Affairs [2019] FCA 1356

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant is a national of the People’s Republic of China, who unsuccessfully applied to the Minister for a protection visa and whose application for merits review in the Administrative Appeals Tribunal was also unsuccessful. He lodged an application for judicial review with the Federal Circuit Court, but on 15 March 2019 the primary judge dismissed the application. He wishes to appeal from the primary judge’s judgment and orders but he neglected to file his notice of appeal within the prescribed time (then 21 days) and now applies for an extension of time.

2    The application was supported by an affidavit sworn on 12 April 2019.

3    In his affidavit the applicant stated that he holds a bridging visa without working rights, has limited English, had to rely on his friends to interpret the judgment and orders, to help him prepare a submission to this Court, and to gather the evidence he needed to seek a waiver from the Court’s onerous filing fees. He also stated that he was told by an unnamed friend that the prescribed time to lodge an appeal was 28 calendar days.

4    The Minister opposes the grant of an extension on the basis that it would be futile since no arguable ground of appeal has been identified and none is apparent.

5    The judgment under appeal is the second of two judgments relating to the application in the court below. In the first judgment, published on 7 June 2018, the primary judge dismissed each of the applicant’s grounds of review but reserved the making of final orders pending the determination of two appeals in the High Court: AVC15 v Minister for Immigration and Border Protection [2018] FCCA 1430 (AVC15 (No 1)). The background to the primary judge’s decision to take this course is explained at [31]–[32] of his reasons in AVC15 (No 1):

31    The Minister has disclosed to the applicant and to the Court the existence of a certificate that had been issued purportedly pursuant to s.438 of the Act that relates to the applicant but which the Tribunal had not disclosed to the applicant. The Minister accepts that, for the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection, the purported certificate is invalid, but he submits that this should not invalidate the Tribunal’s decision because the documents are such that had the certificate and the documents covered by the certificate been disclosed to the applicant, that could not have impacted the review the Tribunal conducted. The basis of that submission is that the documents covered by the certificate are irrelevant to any of the issues that were before the Tribunal.

32    The Minister’s submissions must be considered having regard to three decisions of the Full Federal Court, these being Minister for Immigration and Border Protection v CQZ15 and Anor, Minister for Immigration and Border Protection v BJN16 and Anor, BEG15 v Minister for Immigration and Border Protection and Anor. The High Court, however, has granted special leave to appeal from the orders made by the Full Federal Court in two of those judgments, CQZ15 and BEG15. In BHG15 v Minister for Immigration and Border Protection Barker J recently recorded a submission the Minister made in that case that, given the High Court granted special leave in CQZ15 and BEG15, it is open to the Court to reserve judgment in the appeal, pending the determination of the High Court appeals in these matters.

6    On 13 February 2019 the High Court published its judgments in the matters to which his Honour referred and an additional matter which raised the same issues: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3.

7    About a month later, on 15 March 2019, the primary judge published his second judgment: AVC15 v Minister for Immigration and Border Protection (No2) [2019] FCCA 614 (AVC15 (No 2)).

8    The s 438 certificate and the documents to which it related were annexed to the Minister’s submissions on this application.

9    The certificate was addressed to the Tribunal. A delegate of the Minister certified that para 438(1)(a) of the Migration Act 1958 (Cth) applied to the information in the documents.

10    Paragraph 438(1)(a) relevantly provides that s 438 applies to information if the Minister has certified in writing that the disclosure of any matter contained in the information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter or information should not be disclosed.

11    In the certificate in question the delegate certified that the disclosure of the information in the documents would be contrary to the public interest because the documents contained “information relating to an internal working document and business affairs” and that disclosure of the information was subject to the provisions of subsections 438(3) and (4) of the Act.

12    Subsection 438(3) relevantly permits the Tribunal to have regard to any matter contained in information it is given by the Secretary of the Minister’s Department if it is notified that s 438 applies in relation to the information. The subsection also confers a discretion on the Tribunal to disclose any such matter to the applicant. Subsection 438(4) imposes an obligation on the Tribunal to give a direction for non-publication or non-disclosure of the contents of the documents or information if it is satisfied that it is in the public interest to do so.

13    In MAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [35]–[37] Beach J held that the phrase in para 438(1)(a) — “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed” — is a reference to public interest immunity and that the reason given in the certificate in that case (that the information contained internal working documents) was neither a necessary or sufficient basis for public interest immunity.

14    The documents in question were properly described by the primary judge in AVC15 (No 2) as:

(1)    An internal email advising of the effect of the Full Federal Court's judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71;

(2)    A pro forma document titled “Disclosure Decision Checklist”.

(3)    A pro forma document which records information that an applicant must apparently provide at the time the applicant lodges an application for a protection visa; and

(4)    A document entitled “Matter Details Summary” advising on the making of consent orders for the remittal of the matter before Tribunal, and other matters relevant to a previous application for judicial review.

15    After reviewing the documents and the judgment of the High Court in SZMTA, the primary judge concluded that:

It is plain that none of these documents are relevant or could reasonably be considered to be relevant to the application for review that was before the Tribunal. The Tribunal's failing to disclose to the applicant the 438 Certificate, therefore, did not deprive the applicant of the possibility of a successful outcome; and had the Tribunal disclosed to the applicant the 438 Certificate it would have made no difference to the outcome of the review.

16    In substance, the draft notice of appeal raises one ground of appeal, namely, that the primary judge denied the applicant procedural fairness by failing to give him an opportunity to establish that the information the subject of the certificate was material to the decision the Tribunal was called upon to make or to comment on the implications for him of the High Court’s judgment in SZMTA.

17    The first proposition was contested. But the second proposition was uncontroversial. It is common ground that at no time between the publication of AVC15 (No 1) and AVC15 (No 2) did his Honour invite the applicant to address the court, either orally or in writing, on the implications for him of the judgment in SZMTA.

18    The draft notice of appeal also contains an allegation that on 7 June 2018 the Minister disclosed the existence of the certificate to the primary judge and conceded that it had failed to disclose it to him when assessing his review application.

19    On the assumption that the reference to “review application” is a reference to the application for judicial review, there is no evidence to support the allegation that the Minister conceded that it had failed to disclose the existence of the certificate to the applicant when assessing his review application. More likely than not the applicant misunderstood a concession made by the Minister, through his counsel, reflected in the primary judge’s observations at [31] of AVC15 (No 1) that the Tribunal had failed to disclose the certificate when assessing its review application.

20    Rule 1.39 of the Federal Court Rules 2011 (Cth) gives the Court the power to extend the time to file a notice of appeal. The power is subject to no express limits. Like any power conferred by the Rules, however, it must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions in the Act and the Rules, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: Federal Court of Australia Act 1977 (Cth), s 37M. Relevant factors governing the exercise of the discretion include the extent of the delay, whether there is an acceptable explanation for the delay, whether and to what extent the respondents are prejudiced, and the merits of the proposed appeal. The question of merits must be approached with some caution. A full investigation is not called for and it would be wrong to dismiss an application merely because the proposed appeal, though not hopeless, is apparently weak. See Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J).

21    In the present case the delay is short (approximately a week). The Minister points to no prejudice, either actual or presumptive. The applicant has provided an explanation for the delay, which the Minister does not challenge, and which I am prepared to accept. All these factors point in the applicant’s favour. The question of whether an extension of time should be granted therefore devolves into a question of whether the applicant has an arguable case for relief in the proposed appeal.

22    The applicant filed no submissions in support of his application. At the hearing he merely reiterated what he had put in his draft notice of appeal. The Minister argued that the proposed appeal enjoys “no prospect of success”.

23    In his submissions in the present application, the Minister observed that at no time before the hearing before the primary judge did the applicant make submissions either about the s 438 certificate or the documents covered by it. He submitted, in effect, that the applicant had had a reasonable opportunity to be heard on the central question — whether the documents the subject of the s 438 application could have had any bearing on the applicant’s case before the Tribunal — because the certificate and the documents to which it related were included in a supplementary appeal book which were filed and served on him on 12 December 2016 and the argument that they could not was included in the Minister’s submissions in the court below which were filed and served on 26 May 2016. In those submissions, the Minister drew the court’s attention to the existence of the s 438 certificate and conceded that it was invalid, but submitted that no jurisdictional error arises from the failure to disclose the existence of the certificate because each of the documents related to internal case management of the applicant’s file by the Department and none of them was “in any way related to the applicant’s protection claims, or to the consideration of those claims by the Department, and none could reasonably be said to have any possible bearing on the determination of the applicant’s claims”. The Minister also pointed out that the Tribunal did not refer to the documents in its decision record. In those circumstances, he argued, the inference to be drawn is that the Tribunal did not consider them to be material.

24    But no affidavit was filed to support the Minister’s submission that the supplementary appeal book and the submissions were served on the applicant and at the hearing the applicant denied that he had received them until they were served with the Minister’s submissions in the present application.

25    Elizabeth Warner-Knight, who appeared for the Minister and who had carriage of the matter in the court below, gave oral evidence that she had caused a copy of the supplementary appeal book to be posted to the applicant at his address for service on or about the day it was filed. She also produced unsigned copies of two letters directed to the applicant at that address — one under her name and the other under the name of another lawyer with the Australian Government Solicitor. The second was dated 26 May 2017, which was the date on the Minister’s submissions, and purported to enclose a sealed copy of those submissions.

26    It is difficult to believe that the primary judge, Judge Manousaridis, would have proceeded to hear the judicial review application without first satisfying himself that the applicant was in possession of the relevant documents and had received and understood the respondents’ submissions. The Minister submitted that that was his Honour’s practice but there was no evidence to support the submission. Nor is it evident from either judgment. Furthermore, it is not apparent from either judgment that his Honour ever invited the applicant to comment on the Minister’s point that the documents were irrelevant.

27    In these circumstances and in the face of the applicant’s denial that he had received the documents, I am not satisfied that the documents were served.

28    Be that as it may, the Minister argued that there would have been no utility in inviting submissions from the applicant on the relevance of the documents because, in effect, it was abundantly clear that there was nothing he could say. Consequently, there was no procedural unfairness.

29    In SZMTA the High Court held that notification to the Tribunal that s 438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for the review. By majority, however, the High Court also held that a breach of that obligation will only amount to a jurisdictional error if the breach is material in that it could deprive the applicant of the possibility of a successful outcome.

30    Here, the applicant was unable to say what difference the documents could have made to the Tribunal’s decision. When asked why he claimed they were relevant, he replied that he felt that they could have influenced the Tribunal. When asked in what way, he said he “[could] not tell clearly”. That is not surprising. But it is fatal to his prospective appeal.

31    It is not surprising because the decision the primary judge reached was inevitable. It is obvious from reading the documents that they were irrelevant to the issues before the Tribunal. No other conclusion is rationally open. In these circumstances, the failure to disclose the certificate did not deprive the applicant of the possibility of a successful outcome. Had the certificate been disclosed, it would have made no difference. In these circumstances there has been “no practical injustice”: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ).

32    The applicant’s inability to show that the failure to provide him with an opportunity to be heard on this point caused him any practical injustice is fatal to his prospective appeal because there can be no denial of procedural fairness in those circumstances: see, for example, CSR Limited v Eddy (2008) 70 NSWLR 725 at [38]–[39] (Basten JA), Hodgson and McColl JJA agreeing at [1] and [10] respectively. As Gleeson CJ observed in Lam at [37], “[w]hether one talks in terms of procedural fairness or natural injustice, the concern of the law is to avoid practical injustice”.

33    In any event, even if the course taken by the primary judge was unfair, the lost opportunity could not possibly have made any difference to the outcome of the case and relief would undoubtedly be refused. An appellate court will not order a new trial if it would inevitably result in the making of the same order made by the primary judge at the first trial: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. The same principle applies to administrative decision-making: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

34    For these reasons, notwithstanding the factors weighing in the applicant’s favour, it would be futile and contrary to the overarching purpose of the civil practice and procedure provisions to grant him an extension of time.

35    Accordingly the application should be dismissed. Costs should follow the event.

Associate:

Dated:    23 August 2019