FEDERAL COURT OF AUSTRALIA

Shahi v Minister for Home Affairs [2019] FCA 2109

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 10 May 2019 is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for an extension of time (EoT Application) to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing the applicant’s application for judicial review of a decision of the second respondent (Tribunal): Shahi v Minister for Home Affairs [2019] FCCA 1034. The Tribunal had affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (class TU) visa (Visa).

2    The application for an extension of time was filed with the Court on 10 May 2019, being three days after the expiry of the period permitted by r 36.03 of the Federal Court Rules 2011 (Cth) (Rules), which at the time provided that an appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order made.

background

3    The applicant arrived in Australia on 6 August 2007 on a subclass 572 visa valid to 15 March 2019. He was granted further student visas valid to 15 March 2017, when he applied for the Visa.

4    On 29 May 2017 a delegate of the Minister refused the grant of the Visa. The appellant sought review of that decision in the Tribunal.

5    The appellant attended two hearings before the Tribunal on 17 October 2018 and 6 November 2018. The Tribunal adjourned the hearing to a second date to enable the applicant to provide evidence of fees paid, his academic record and medical evidence about his claimed difficulties.

6    The Tribunal noted that the issue before it was whether the applicant met the genuine temporary entrant criteria set out in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal set out a number of factual matters and queries which it raised with the applicant concerning, principally, his studies in Australia and his medical issues. The Tribunal also raised and discussed with the applicant its concern that the applicant had been in Australia for over 10 years and not departed, which raised questions about whether he was a temporary entrant, and its concerns about the applicant’s slow progression in his studies and discussed those matters with the applicant.

7    The Tribunal referred to the requirements of cl 500.212 of the Regulations and to Direction No 69 titled Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction 69) made under s 499 of the Migration Act 1958 (Cth). It noted that Direction 69 required it to have regard to a number of specified factors when considering an applicant’s circumstances as a whole and in reaching a finding about whether he or she satisfies the genuine temporary entrant criterion in cl 500.212 of the Regulations.

8    The Tribunal concluded that, having considered the applicant’s claims against the factors specified in Direction 69 and taking into account relevant information, he did not satisfy the genuine temporary entrant criterion in cl 500.212 of the Regulations. In summary, it reached that conclusion having regard to the following factors:

(1)    first, it accepted that the applicant’s personal circumstances in his home country were indicative of a person who is only a temporary entrant and wishes to return to their country and that, since his arrival in Australia, the applicant had successfully completed four courses and 15 subjects towards the Bachelor of Professional Accounting (although he had been granted 11 exemptions). However, it noted that successful completion of courses and subjects was only one of many considerations relevant to the assessment of whether the applicant intended genuinely to stay in Australia temporarily;

(2)    the applicant’s extended length of stay and his desire to stay in Australia until July 2019 was indicative of a person who does not intend to genuinely stay in Australia temporarily. Further, the fact that the applicant had not departed Australia added to the Tribunal’s concern that his extended length of stay may lead it to find that he does not genuinely intend to stay in Australia temporarily;

(3)    the Tribunal was also concerned about whether the applicant was a genuine student given that since his enrolment in his current course, Bachelor of Professional Accounting, in November 2015 he has only passed four subjects with none passed in 2018. The Tribunal noted that it gave the applicant time to provide evidence of his outcomes in the four courses that he claimed to be enrolled in at that time but no evidence was provided at the time of the Tribunal’s decision;

(4)    while the Tribunal accepted that the applicant was suffering from medical issues, it noted that he had never stopped studying and there was no medical evidence that those issues had affected his ability to study. It also noted that the medical issues only arose in 2017. However, the applicant had a poor academic record since November 2015, passing only one or two subjects per year; and

(5)    the applicant’s evidence as to why he is studying the Bachelor of Professional Accounting was vague and differed in the Tribunal to that given to the Department.

9    On 14 December 2018 the applicant filed an application for judicial review in the Federal Circuit Court. In that application he raised a single ground of review namely that (as written):

The tribunal denied natural justice and also failed to make relevant consideration of the evidence provided.

10    The applicant also filed an application in a case in the Federal Circuit Court seeking an order for transfer of the proceeding to the Melbourne Registry of that court.

11    The application for judicial review and the application in a case came before the Federal Circuit Court for hearing on 16 April 2019. The applicant was not legally represented and appeared in person without the assistance of an interpreter. At the time, as he was present in person, the application in a case was dismissed. After considering the single ground of review raised by the applicant in the application for judicial review, the primary judge dismissed that application.

12    The primary judge found that the ground was no more than a general assertion and did not identify any relevant error on the part of the Tribunal. The primary judge dismissed the applicant’s oral submission that he had not had an opportunity to provide his course results to the Tribunal prior to its making its decision, noting that it was apparent that the Tribunal did in fact give him time to put on further information up to the day after he said his results would be available. The primary judge also dismissed the applicant’s submission that the Tribunal failed to consider evidence provided by him, noting that there was no evidence identified that the Tribunal did not take into account. The primary judge concluded that the applicant had not been denied procedural fairness and that there had been no denial of natural justice in the conduct of the review by the Tribunal.

Adjournment APPLICATION

13    In the course of argument before me the applicant applied for an adjournment of the hearing of the EoT Application. He did so because he wished to have more time to retain a lawyer to act for him. The applicant informed the Court that he had not had sufficient time to do so because he had been busy with and preoccupied by his studies. In support of the application for an adjournment the applicant relied on a bundle of emails passing between him and his education provider, Holmes Institute Pty Ltd (Holmes Institute), where it seems he has been undertaking his current course of study.

14    The applicant submitted that he had not had time to retain a new lawyer because he had been occupied with his studies. He also submitted that he had taken some steps to retain a new lawyer but those he had approached required payment of a large sum of money to consider the matter.

15    I refused the application for an adjournment, explaining in a summary way at the time why I had done so. I now provide more detailed reasons for taking that course.

16    The EoT Application was initially listed for hearing before me on 13 November 2019. On the application of the applicant, and in light of the relatively recent passing of his former lawyer, on 31 October 2019 I adjourned the hearing to 5 December 2019 to allow the applicant a further period to retain a new lawyer. That is, I permitted him a period of approximately five further weeks to retain a lawyer. The evidence relied on by the Minister (see [22] below) established that the applicant was aware of his former lawyer’s death since about 9 October 2019. Despite those matters, by the date of the adjourned hearing the applicant had not retained a new lawyer and, as noted at [18] below, there was no evidence of any steps he had taken to do so.

17    The material relied on by the applicant to establish that he had been occupied with his studies and thus did not have time to retain a lawyer did not satisfy me that that was in fact the case. That material comprised a bundle of emails, one of which was dated 11 November 2019 and the balance of which were dated between 28 November 2019 and 4 December 2019. Those emails were between the applicant and employees of the Holmes Institute. They largely concerned the applicant’s attempts to obtain additional marks in order to achieve a pass in one of his subjects, taxation law. They did not establish that the applicant had to make such a significant investment of time in his studies that he was precluded from spending any time sourcing legal assistance. On the contrary, the task undertaken by the applicant in those emails appeared to be a fairly limited one, seeking to appeal and/or take steps to improve a mark in one of his courses.

18    To the extent that the applicant said that he had taken steps to retain a lawyer without success, there was no evidence before me of the steps he had taken and their outcome beyond the applicant’s assertions that he had done so.

19    In those circumstances, I was not satisfied that the applicant should be afforded any further time to seek legal assistance, and I refused the adjournment application on that basis.

The EXTENSION of time application

20    On 10 May 2019 the applicant filed the EoT Application together with an affidavit in support sworn by his former solicitor, Melvin Newman, on 10 May 2019. A draft notice of appeal is annexed to the application in which two grounds of appeal are raised, as follows:

1.    The Tribunal was charged with the duty of reviewing a decision of the Minister’s delegate pursuant to s 414 of the Migration Act 1958. That review ignored relevant medical evidence which explained the applicant’s lack of adequate progress in a particular course of study

2.    His Honour upheld the decision. The applicant seeks leave to add other or further grounds as soon as his Honour’s judgment becomes available

21    In his affidavit sworn on 10 May 2019 Mr Newman deposes to the following matters:

1.    I am the solicitor for the applicant.

2.    I received instructions from the applicant yesterday afternoon.

3.    It appears to me that at the Tribunal hearing and at the court below the applicant was unrepresented and suffered some disadvantage.

4.    The applicant is an overseas student. He has passed many examinations but has not completed one course, claiming ill health both physical and mental that has led to this. The tribunal, it will be alleged, paid scant regard to these problems and appearing to ignore the psychological evidence altogether. The judgment of the court below is not yet available

I respectfully ask this honourable court to excuse the short delay and to hear the proposed appeal, a draft of which is filed contemporaneously herewith.

22    The Minister relied on an affidavit sworn by his solicitor, Sophie Alexandra Helena Given, on 3 December 2019. Ms Given deposed to the following matters:

(1)    on 22 May 2019 the associate to the primary judge sent a copy of the published reasons for decision to Ms Given and directly to the applicant (Associate’s Email);

(2)    on 31 May 2019 Ms Given received instructions from the Minister’s Department to act on behalf of the Minister in this proceeding. On that same date she caused a notice of address for service and submitting notice on behalf of the Minister and the Tribunal respectively to be lodged with the Court’s online portal for filing;

(3)    on 3 June 2019 Ms Given wrote to the applicant’s solicitor, Mr Newman, among other things, attaching a copy of the Associate’s Email together with the published reasons for judgment. Ms Given’s email relevantly included:

The Draft Notice of Appeal appended to your client’s application for an extension of time states at (second) ground 1 “His Honour upheld the decision. The applicant seeks leave to add other or further grounds as soon as his Honour’s judgment becomes available.” We note that his Honour’s reasons for judgment were published on 22 May 2019 and a copy of them was sent to your client by the Court on that date. A copy of that email is set out below and the reasons are attached. Accordingly, should there be any proposed amendment to the Draft Notice of Appeal, we ask that this be provided to us as soon as possible for consideration. Should any proposed amended Draft Notice of Appeal be received within a time that causes the first respondent prejudice, we reserve our client’s rights to oppose leave being granted and/or that the matter adjourn on suitable costs terms.

(4)    on 27 September 2019 Ms Given was instructed by the Minister’s Department that Mr Newman had recently passed away; and

(5)    on 9 October 2019 Ms Given forwarded a copy of the Associate’s Email and the published reasons to the applicant. In that email Ms Given wrote:

I refer to the above matter in which Mr Melvin Newman is the solicitor on the record.

We have been informed that, unfortunately, Mr Newman has passed away. We will continue to address correspondence and documents to you at your address for service. However, we would be grateful if you could indicate to us whether you have retained an alternate representative or will be representing yourself. If you will be representing yourself, please file a notice of address for service with the Court as soon as possible.

Your matter is presently listed for a hearing before Justice Markovic of the Federal Court of Australia at 10:15am on 13 November 2019. Accordingly, it is very important that you inform us as soon as possible as to how you will be represented at the hearing.

Our most recent correspondence to Mr Newman is below for your information. We had not received a response to it. We also attach the reasons for judgment of the primary Judge, Court’s orders made in this matter on 28 May 2019 and the email to the parties regarding the listing.

We look forward to hearing from you as soon as possible.

Consideration

23    I turn then to consider whether an extension of time to appeal should be granted. The principles governing when the Court will extend time to appeal are well settled. Generally, the Court will have regard to three factors:

(1)    it must be satisfied that it is proper to extend time, noting that the prescribed period is not be ignored. This usually requires that an acceptable reason for the delay has been provided;

(2)    any prejudice to the respondent, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and

(3)    the merits of the proposed appeal,

see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.

Delay and prejudice

24    The applicant submitted that he in fact approached Mr Newman and provided him with instructions to act for him within time. From the bar table he said that he spoke to Mr Newman on 5 May 2019. The applicant also submitted that he did not know why the notice of appeal was filed late and that he was not aware that an extension of time was required. In effect, the applicant suggested that Mr Newman had either been negligent in commencing the proceeding out of time or had engaged in some form of misconduct.

25    However, the applicant’s contention is directly contrary to Mr Newman’s sworn evidence, which is that he received instructions on the afternoon of the day preceding 10 May 2019, the date on which Mr Newman swore his affidavit. That is, that he received instructions on the afternoon of 9 May 2019. The applicant did not provide any evidence of his prior communications with Mr Newman to substantiate the claims he made. In those circumstances, and in the face of Mr Newman’s sworn evidence, I do not accept the applicant’s submission that he contacted Mr Newman on an earlier date.

26    The delay itself is only three days. The Minister submitted that the matters set out in Mr Newman’s affidavit do not provide any or any satisfactory explanation for the delay, noting that the applicant had already traversed the documents and processes of the Court in bringing his proceeding in time in the Federal Circuit Court. The Minister did not contend that he would suffer any prejudice if time were to be extended.

27    I accept that no proper explanation for the short delay is provided. The evidence goes no higher than to establish that the applicant was late to instruct Mr Newman. Thereafter Mr Newman moved relatively swiftly to file the EoT Application. Despite the lack of prejudice to the Minister should time be extended, and the lack of explanation for the delay, it is the prospects of success of the proposed grounds of appeal that will be determinative of the manner in which I will exercise my discretion: see DEP16 v Minister for Immigration and Border Protection (No 2) [2017] FCA 1528 at [16]-[17]. I turn then to consider the draft grounds of appeal.

Merits of the proposed grounds of appeal

28    The applicant’s draft notice of appeal essentially raises only one ground of appeal. By the second ground the applicant simply seeks leave to add further proposed grounds of appeal upon the primary judge’s reasons becoming available. Despite those reasons having been provided to the parties on 22 May 2019, and thereafter provided to Mr Newman and the applicant on two subsequent occasions, no amended draft notice of appeal has been provided by the applicant.

29    In the first proposed ground of appeal the applicant contends that the Tribunal ignored relevant medical evidence which explained his lack of progress in a particular course of study. The applicant did not make any submissions in support of this ground save to say that he wished to explain that he had psychological and medical conditions which caused him to interrupt his studies but he had a genuine intention to stay in Australia temporarily to study. The Minister points out that this ground was not raised before the primary judge, that the sole ground of review before the Federal Circuit Court was a broader assertion of a lack of procedural fairness, and that if this ground was to be raised on appeal it would also likely require the Court’s leave.

30    In my opinion this ground lacks merit such that the question of whether or not it was raised before the primary judge does not need to be considered further. It is clear, on the face of the Tribunal’s reasons, that it referred to and had regard to issues raised by the applicant about his health as well as other reasons he raised for not progressing in his studies.

31    It follows from the matters set out above that the proposed grounds of appeal lack sufficient merit such that I would not be persuaded to extend time to consider them.

An additional issue

32    Given his role as a model litigant, the Minister brought to the Court’s attention the recent decision in AAM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1951 (AAM17). Having done so, the Minister submitted that this case was not affected by AAM17 as it could be distinguished on the facts.

33    In AAM17 the appellant raised two grounds of appeal, one of which was that the primary judge “did not adopt a fair process in making the decision”. The appeal was allowed and orders made setting aside the orders made by the Federal Circuit Court in the following circumstances.

34    At the hearing of the appeal, after raising questions about the process undertaken by the Federal Circuit Court in hearing the application for judicial review, at [20] Mortimer J found that:

(a)    The appellant relied on an interpreter for his participation in the hearing before the Federal Circuit Court, and he was – as I have noted – not represented by a lawyer.

(b)    The Federal Circuit Court delivered contemporaneous reasons for the orders it pronounced.

(c)    The Federal Circuit Court hearing lasted for one hour, including the delivery of contemporaneous reasons.

(d)    The orders were interpreted to the appellant. At the hearing the appellant called the orders the “formal letter”, but I am satisfied this is what he meant.

(e)    The appellant did not receive a copy of the transcript of the contemporaneous reasons.

(f)    The appellant had to prepare and file his notice of appeal without having received any written version of the Federal Circuit Court’s reasons for the orders it made.

(g)    The Federal Circuit Court’s reasons for judgment, as they were published, were not published until 18 July 2019, more than a month after the appellant filed his notice of appeal in this Court, and well outside the period in which a notice of appeal was required to be filed.

(h)    There is no way that the Court can compare what was said by the Federal Circuit Court in its contemporaneous reasons with what were the published reasons of the Federal Circuit Court for its orders, including the extent of any similarity between the two sets of reasons.

35    At [23] her Honour found that she was satisfied that the Federal Circuit Court’s oral and contemporaneous reasons were not interpreted to the appellant at the time of their delivery. Her Honour went on to explain that this meant that although the appellant had a copy of the orders which were made by the court on that day “he had no explanation at all, which was intelligible to him, of how or why the Court had made those orders” and that he “did not receive any explanation until he received the formal written reasons of the Court”. At [31]-[32] Mortimer J said:

31    In any event, a practice of producing formal reasons after a notice of appeal is filed in this Court could only be justified if a person in the position of the appellant had reasonable and timely access to some form of the Federal Circuit Court’s initial reasons for its orders, and that form was intelligible to the person. That could occur in a number of ways: by giving the person a copy of the transcript of the contemporaneous reasons, or having those reasons interpreted in a way that would allow the person to take notes so as to be able to understand, and seek advice or assistance about, the Federal Circuit Court’s reasons, or informing the person that she or he could request a copy of the Federal Circuit Court’s reasons and also staying the effect of the Federal Circuit Court’s orders pending the delivery of any requested reasons to that person. Whatever method might be adopted (and these examples may not be exhaustive), the key point is that the person affected adversely by the orders has reasonable and timely access to an intelligible explanation of why the orders were made, within a period that does not prejudice her or his statutory right to appeal, taking into account the obvious fact in the migration jurisdiction of the Federal Circuit Court that many self-represented applicants will need access to some form of assistance before exercising their right to appeal.

32    The present appellant asked for and had access to an interpreter for the Federal Circuit Court hearing. The Federal Circuit Court’s provision of an interpreter recognised, properly, that he was entitled to participate in and understand the proceedings in which he had a vital interest, and much at stake, in a language in which he could have full and proper comprehension of what was being said, and what may have been explained to him.

36    At [37] Mortimer J expressed the opinion that it was “an unfair procedure, and a denial of procedural fairness … for orders to be pronounced at a final hearing of a judicial review application with reasons delivered orally and contemporaneously to a self-represented litigant who is using an interpreter, without those reasons being interpreted, and without provision of any version of written reasons to that litigant as soon as practicable after the orders are pronounced”. Her Honour found that such a denial was not cured by the production of formal written reasons one month or more after the expiration of the appeal period and after the filing of the notice of appeal. At [41] her Honour said that it was the combination of circumstances in the case before her which caused her to conclude that the process adopted by the Federal Circuit Court in that case and the making of final orders in the circumstances described involved a denial of procedural fairness to the appellant. Her Honour continued:

… The orders were made without giving the Court’s reasons for decision to the appellant in a form he was able to understand, or able to seek assistance to have explained to him. If the reasons had been interpreted, that may have been sufficient. If formal reasons were produced in a few days, then even if the reasons were not interpreted, that may have been sufficient. If the appellant had been given access to the transcript of the oral and contemporaneous reasons, that may have been enough. So too if the orders had been stayed pending the provision of written reasons, even without any interpretation on the day of the hearing. It is the fact that none of these alternatives occurred, and there was no interpretation at the time of the Court’s reasons, which involves a denial of procedural fairness. The failure to adopt any of these methods interfered with the way in which the appellant could exercise his right of appeal, and denied him the opportunity to seek any assistance about possible grounds of appeal, or whether indeed he should appeal at all. It also denied him access to any explanation, intelligible to him or capable of being explained to him by anyone whose assistance he might seek, of why the Court made the orders it did. The failure to adopt any of these methods subverted the exercise of judicial power itself, the giving of reasons being a defining characteristic. There was no real exercise of judicial power in these circumstances: …

(citations omitted.)

37    In the course of her reasons Mortimer J referred to the decision of a Full Court of this Court (Allsop CJ, Perry and Gleeson JJ) in CQX18 v Minister for Home Affairs (2019) 372 ALR 137; [2019] FCAFC 142 (CQX18). In that case the appellant had sought judicial review of a decision of the Federal Circuit Court on the ground that the Federal Circuit Court had acted outside jurisdiction. The Full Court noted at [3] that the principle issue raised in that application was that, having dismissed the application for judicial review of the decision of the Immigration Assessment Authority and given oral reasons at the time, the Federal Circuit Court did not produce a written version of those reasons for a considerable period after the expiry of the time within which to appeal the decision. Their Honours noted that the primary judge dismissed the application on the ground that, even assuming that the delay in producing written reasons could constitute a jurisdictional error (which the primary judge doubted), relief would be declined in the exercise of discretion given the availability of appellate remedies to the appellant which he had not (yet) pursued, referring to CQX18 v Minister for Home Affairs [2019] FCA 386 (CQX18 Federal Court) at [27].

38    The matter came before the Full Court on an appeal from the decision in CQX18 Federal Court (referred to as the first appeal). A copy of the transcript of the hearing before the Federal Circuit Court was included in the appeal book, even though it had not been included in the material before the primary judge. At the hearing of the first appeal the Full Court raised concerns with the Minister arising from that transcript concerning whether the Federal Circuit Court judge had failed to accord procedural fairness to the appellant.

39    Ultimately, the Minister indicated that, while he did not accept that the primary judge had erred in the manner in which he disposed of the application for judicial review before him, he accepted that the Federal Circuit Court hearing had failed to proceed in accordance with the requirements of procedural fairness and proposed that orders be made disposing of the matter. Ultimately the parties proposed consent orders, which were made, dismissing the first appeal. As to the Federal Circuit Court proceeding, the Minister proposed that it be dealt with by the appellant bringing an application for an extension of time within which to appeal from the decision of the Federal Circuit Court on the ground of a failure to accord procedural fairness at the hearing and that the Minister would then consent to an extension of time and to the appeal against the Federal Circuit Court decision (referred to as the second appeal). The parties proposed consent orders giving effect to that proposal.

40    At [10] their Honours expressed the view that they were satisfied that the proposed consent orders in the second appeal should be made on the basis that the Federal Circuit Court judge failed to afford the appellant procedural fairness at the hearing in the exercise of Commonwealth judicial power in all of the circumstances. Their Honours set out the relevant circumstances as follows:

(1)    The appellant did not have legal representation in the Federal Circuit Court.

(2)    He appeared at the hearing of the application for judicial review via video-link from immigration detention without an interpreter present. The interpreter was located in the courtroom in Sydney.

(3)    The transcript of the hearing before the primary judge demonstrates difficulties with the video-link transmission of the hearing.

(4)    The appellant raised the question of unfairness at the hearing as he had to make his submissions “all on my own” (i.e. from a remote location).

(5)    There was real doubt as to whether the appellant received the Minister’s written submissions or the court book. While the Minister’s counsel offered to assist the Court about service of the court book on the appellant, the primary judge considered it sufficient to have explained the contents of the court book to the appellant before admitting it into evidence. As such, no steps were taken to clarify one way or the other whether these had been served.

(6)    The appellant explained to the primary judge in any event that he could not read the Minister’s submissions without the assistance of a translator. The Minister’s counsel acknowledged in his submissions before the primary judge that it was not evident that his written submissions had been translated and that “it may be that the applicant, given the need for interpreting, may not have had the opportunity to consider those submissions fully.”

(7)    The appellant explained that there were inaccuracies in the translation of his affidavit which he wanted to correct and he sought a short adjournment of half an hour to an hour to do so with the assistance of the interpreter. However, his application for an adjournment was not dealt with by the primary judge and his affidavit was taken as read without the appellant being afforded the opportunity to correct it by evidence.

(original emphasis.)

41    At [11] their Honours then expressed the following additional concerns:

(1)    the primary judge delivered an ex tempore judgment which was not translated by reason of an instruction by the primary judge to the interpreter not to do so in circumstances where there was no apparent effort thereafter by the primary judge to have his reasons reduced to writing timeously until they were requested;

(2)    no orders were made having the legal or practical effect of deferring the commencement of the period within which an appeal must be instituted (see CQX18 v Minister for Home Affairs [2019] FCA 386 at [14] (Perram J); Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (the Court)); and

(3)    written reasons were not published until 75 days after delivery of the ex tempore judgment and 54 days after the expiry of the time within which an appeal could be instituted as of right.

42    In this case the published reasons were not made available to the applicant until after the expiration of the appeal period. The applicant says in his draft notice of appeal that he would seek leave to add further grounds upon the primary judge’s written reasons becoming available. However, notwithstanding that, I accept the Minister’s submissions that this case can be distinguished from AAM17 in a number of ways.

43    First, the applicant does not raise as a proposed ground of appeal that he was denied procedural fairness by the procedure that was adopted in the Federal Circuit Court.

44    Secondly, unlike the appellant in AAM17, the applicant was not assisted by an interpreter at the hearing in the Federal Circuit Court, before the Tribunal or before me. In AAM17, the appellant’s need for an interpreter throughout the process and the provision of that service to him, combined with the fact that the primary judge’s ex tempore reasons were not interpreted at the time they were delivered nor a transcript of them provided, were central to the finding of an unfair procedure. Those facts are simply not present here. While the primary judge gave ex tempore reasons there is nothing to suggest that the applicant did not understand the reason why the primary judge refused his application for judicial review and made the orders that he did.

45    The applicant submitted that although he understood English he did not understand legal terms. That may be so. However, the fact remains that the applicant did not seek the assistance of an interpreter at any stage of the process and clearly considered himself to have sufficient command of English. It was not apparent that the applicant misunderstood what had occurred before the primary judge. It could not be said in this case that the applicant received no explanation for why the orders had been made dismissing his judicial review application before the published reasons were provided.

46    In my opinion those matters are sufficient for me to conclude that AAM17 has no application to the present case.

47    This case can also be distinguished from the circumstances the subject of the second appeal in CQX18. In this case the applicant appeared in person before the primary judge, there is no apparent issue that he did not receive the Minister’s submissions or the court book, that he could not read or understand the Minister’s submissions or that he required the assistance of an interpreter to understand those submissions or to clarify his own evidence. As noted above, the applicant appeared before the Tribunal, the primary judge and before me without the assistance of an interpreter.

48    The only common feature between the conduct of the proceeding in the Federal Circuit Court in this matter and in CQX18 was the fact that the court’s written reasons were not published until after the expiry of the time within which an appeal could be instituted as of right. While that was a matter about which the Full Court expressed some concern, it did not form part of the basis on which the Court was satisfied that the primary judge in that matter had failed to afford procedural fairness to the appellant at the hearing in the exercise of Commonwealth judicial power.

49    The Minister also took me to the decision in SZWDH v Minister for Immigration and Border Protection [2015] FCA 1382 (SZWDH). That case also concerned an application for an extension of time to appeal. At [11] White J set out the proposed grounds of appeal included in the applicant’s draft notice of appeal, which included as ground 3 that “[f]urther grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed”. At [12] his Honour observed:

Given that the published reasons of the Circuit Court became available only on 2 September 2015, the inclusion of the statement in the third of these grounds is understandable. However, the applicant has not provided any further proposed grounds of appeal, despite the published reasons of the Circuit Court having been available at the time of hearing for some two months.

50    I accept the Minister’s submission that the facts in this case are the same as those which were before the Court in SZWDH and that White J’s observations apply equally here, although perhaps with more force given that, at the time the applicant in this case filed his EoT Application, he had legal representation.

51    In light of the matters set out above, the issue properly raised by the Minister does not cause me to alter my opinion that the proposed grounds of appeal have no merit.

conclusion

52    It follows that the EoT Application should be dismissed. As the applicant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

53    I will make orders accordingly.

Associate:

Dated:    13 December 2019