FEDERAL COURT OF AUSTRALIA

GPV18 v Minister for Home Affairs [2020] FCA 393

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal 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

WIGNEY J:

1    This is an application for leave to appeal from an interlocutory judgment and order made by a judge of the Federal Circuit Court of Australia. The primary judge dismissed the applicant’s application to set aside an order made by a registrar summarily dismissing an application which the applicant had filed in the Circuit Court. That application was an application for an extension of time in which to commence proceedings seeking judicial review of a decision of the Immigration Assessment Authority.

2    For the reasons that follow, the application for leave to appeal is to be dismissed with costs.

Background

3    The applicant is a national of Sri Lanka.

4    On 17 November 2016, he applied for a visa known as a Safe Haven Enterprise (subclass 790) Visa. That application was refused by a delegate of the first respondent in this proceeding, the Minister for Home Affairs.

5    The Minister’s decision was a “fast track reviewable decision” as defined in s 473BB of the Migration Act 1958 (Cth). It was accordingly referred to the Authority pursuant to s 473CA of the Act. The Authority was required to review the decision pursuant to s 473CC of the Act. To that end, the Secretary of the Department was required to give the Authority certain material, referred to as the “review material”, as specified in s 473CB of the Act.

The Authority’s Conduct Of The Review

6    Division 3 of Pt 7AA of the Act contains provisions in relation to the conduct of a review by the Authority.

7    Relevantly, for present purposes, s 473DA provides that Div 3 of Pt 7AA, together with ss 473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

8    Sections 473GA and 473GB are not relevant to the issues raised by this application.

9    Section 473DB of the Act provides, in effect, that the review conducted by the Authority is a review “on the papers”. It is in the following terms:

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

10    Sections 473DC and 473DD provide for the circumstances in which the Authority may seek and consider “new information”. They are in the following terms:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

  (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

11    Section 473DF sets out some requirements with regards to the timing and manner by which the Authority may seek new information, whether in writing or by interview.

12    Subsection 473FA(1) provides that the Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is “efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.

13    Subsection 473FA(2) provides that the Authority, in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”.

14    It would appear from the Authority’s Decision and Reasons dated 29 October 2018, that it received and had regard to the material that the Secretary had sent it pursuant to s 473CB of the Act.

15    It would also appear that the applicant sent to the Authority certain “new information”. The Authority recorded in its Reasons, however, that it was not satisfied that there were any exceptional circumstances to justify it considering that information: Reasons at [7].

16    There is nothing in the Authority’s Reasons to suggest that it exercised its discretion in s 473DC to get any other information that was not before the Minister when the decision to refuse the applicant’s visa application was made by the Minister’s delegate.

The Authority’s Decision

17    It is unnecessary for the purposes of this application to consider the Authority’s Reasons in any detail. It suffices to note that, on the basis of the review material, the Authority was not satisfied that the critical events or circumstances that founded the applicant’s claim to meet the criteria for the Visa occurred or existed. It is abundantly clear that the Authority formed the view that the applicant’s claims were not credible, plausible or believable. The Authority gave detailed reasons for why that was so.

18    The Authority also made a number of factual findings concerning the political and security situation in Sri Lanka based on the review material. Those findings were also relevant to whether the applicant met the essential criteria for the Visa.

19    Ultimately, the Authority was not satisfied that the applicant met the criteria for the Visa and affirmed the decision under review.

Proceedings In The Circuit Court

20    Subsection 476(1) of the Act provides that, subject to that section, the Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution.

21    The applicant sought to invoke the Circuit Court’s jurisdiction referred to in s 476 of the Act. He did not, however, file his application in the Circuit Court within the 35 day time limit provided in s 477 of the Act. He accordingly applied for an extension of time in which to file an application pursuant to subs 477(2)(a) of the Act.

22    It would appear to be common ground that the reason that the applicant had not filed his application within the 35 day time limit was that the Authority had sent its Reasons to an old email address of the applicant’s. The applicant accordingly did not receive notice of the Authority’s Reasons in sufficient time for him to file his application within the prescribed time period. It would also appear that the Minister had accepted that explanation and was prepared to consent to an extension of time on that basis.

23    When the applicant filed his application for an extension of time, the application was given a first court date of 31 January 2019. The Minister’s solicitor also sent emails to the applicant which notified him of the first court date. The applicant did not, however, appear at the first court date. A registrar of the Circuit Court dismissed the applicant’s application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) on the basis of the applicant’s non-appearance. That rule provides that if a party to a proceeding is absent from a hearing, including a first court date, the court or a registrar may, amongst other things, dismiss the application.

24    Some months later, on 13 May 2019, the applicant filed an application to set aside the registrar’s order. That application was filed pursuant to r 16.05(2)(c) of the Circuit Court Rules, which provides that the court or a registrar may set aside a judgment or order after it has been entered if it is an interlocutory judgment or order.

25    The applicant filed an affidavit in support of his application. The affidavit sought to explain why he did not appear at the first court date. The applicant’s explanation included that he was self-represented, that he “has a very basic understanding of English” and “no knowledge of law or understanding of the procedures of the [c]ourt” because he had “never been to [c]ourt before” and that he is not computer literate. He claimed that he had some problems opening emails on his phone at the relevant time.

The Primary Judge’s Decision

26    The primary judge dismissed the applicant’s application to set aside the registrar’s order. Her Honour gave two main reasons for refusing to set aside the registrar’s order.

27    The first reason was that the applicant had failed to provide a satisfactory explanation for his failure to appear. The primary judge found, in that regard, that the applicant had been advised of the first court date when he filed his application for an extension of time and further advised of the date by email from the Minister’s solicitor. Her Honour found, in relation to the email notification, that the “applicant’s difficulties in accessing his emails, as well as his limited ability to understand English and [c]ourt proceedings is in no way a satisfactory or adequate explanation for his failure to appear at the first court date”: GPV18 v Minister for Home Affairs [2019] FCCA 1563 (Judgment) at [5].

28    The second reason was that the applicant had not demonstrated that he had an arguable case for the relief he sought in relation to the Authority’s decision. In that regard, her Honour addressed each of the 12 grounds of review of the Authority’s decision that had been articulated in the applicant’s application for an extension of time. Her Honour found, in respect of each of the 12 grounds, that they did not appear to establish jurisdictional error on the part of the Authority. Her Honour’s reasons in respect of each of the 12 grounds will be addressed briefly later in the context of the submissions advanced by the applicant in support of his application for leave to appeal.

29    Her Honour concluded (Judgment at [67]) that “having regard to the failure of the applicant to provide a satisfactory explanation for his failure to appear; the fact that none of the grounds identified in the application demonstrate an arguable case for the relief sought and none is apparent on the face of the Authority’s decision record; and, having regard to the public interest in having these administrative decisions finalised, I am not satisfied that the interests of justice would demand that the applicant’s application for judicial review be reinstated.”

Leave To Appeal – Relevant Principles

30    The applicant requires leave to appeal because the judgment and order from which he wishes to appeal is an interlocutory order: s 24(1A) of the Federal Court of Australia Act 1976 (Cth); Tonmoy v Minister for Home Affairs [2019] FCA 145 at [6].

31    The principles applicable to an application for leave to appeal are well settled. The key considerations are whether substantial injustice would result if leave were refused, assuming the decision at first instance was wrong, and whether the decision is attended with sufficient doubt to justify its reconsideration on appeal: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

32    The onus of persuading the Court that leave to appeal should be granted obviously lies on the party seeking such leave.

33    In cases such as this, where the decision is related to an immigration appeal and the result of a refusal of leave is that the applicant’s challenge to an adverse visa decision would be at an end and he or she may face deportation, the prospect of substantial injustice if leave to appeal is refused is usually fairly obvious. In those circumstances, the primary consideration is likely to be the merits of their proposed appeal and whether the applicant has at least reasonably arguable grounds of appeal.

Merits Of The Proposed Appeal

34    The applicant did not file a draft notice of appeal as required by the Federal Court Rules 2011 (Cth): see r 35.12(2)(d). His application for leave to appeal, however, identified and particularised 12 grounds of his application. Those 12 grounds effectively mirror the 12 grounds of review which were relied on in support of the applicant’s application for an extension of time in the court below. The only relevant addition to those grounds is that the applicant now claims, in respect of each ground, that the primary judge erred in not finding that the relevant review ground in respect of the Authority’s decision had been made out. Aside from that very general and somewhat unhelpful contention, the grounds in the application for leave to appeal do not clearly articulate the error or errors said to have been made by the primary judge.

35    It is also notable that the applicant’s application for leave to appeal does not in any way seek to impugn or challenge the primary judge’s finding that the applicant had failed to provide a satisfactory explanation for his failure to appear at the first court date in the Circuit Court.

36    Even putting those problems with the applicant’s leave application to one side, the fundamental difficulty for the applicant is that the primary judge’s finding that none of the 12 grounds of review were arguable is not attended by sufficient doubt to warrant the grant of leave to appeal. None of the grounds of review have any apparent merit or appear to be sufficiently arguable to warrant reconsideration by the Full Court.

37    The applicant did not file any written submissions. While he appeared at the hearing of the application, the oral submissions which he made did not engage at all with any of the grounds of his application. Nor did he advance any meaningful submissions which directly addressed the primary judge’s findings or reasons.

38    Despite the paucity of the applicant’s submissions, each of the proposed grounds of appeal should nonetheless be briefly addressed.

Ground 1

39    Ground 1 concerned the fact that the Authority sent its Reasons to the applicant’s old email address. That was the reason why the applicant did not file an application seeking judicial review of the Authority’s Reasons within the prescribed time period.

40    The primary judge found that this ground did not demonstrate any jurisdictional error for two reasons. The first reason was that the Minister had consented to an extension of time and therefore “there can be no unfairness suffered by the applicant as a result of the Authority’s decision being sent to the wrong address”: Judgment at [15].

41    The second reason was that subs 473EB(3) of the Act provides that a failure by the Authority to notify an applicant of its decision in accordance with s 473EB does not invalidate the decision.

42    The primary judge was plainly right to find that ground 1 had no apparent merit for the reasons her Honour gave. The applicant failed to identify any basis upon which it could be found that the primary judge erred in respect of this ground.

Ground 2

43    Ground 2 was, in substance, that the Authority acted unreasonably and denied the applicant procedural fairness in not exercising its power, or not considering whether to exercise its power, under subs 473DC(3) to invite the applicant to comment on the “authenticity of the documents”. It was not clear exactly what those documents were, though the applicant told the primary judge that they were documents which he sent to the Authority after it had made its decision. If that were the case, there was simply no basis upon which it could be said that the Authority unreasonably failed to exercise, or consider exercising, its power under subs 473DC(3) of the Act.

44    The primary judge found that this ground did not raise a reasonable argument of jurisdictional error on the part of the Authority for two reasons. First, the Authority was not obliged to give the applicant its “thoughts” on the authenticity of documents: Judgment at [20]. Second, there was nothing to suggest that the “Authority’s discretion not to seek any further information from the applicant about the authenticity of his documents, was exercised other than according to law”: Judgment at [21]. Her Honour noted, in that regard, that while subs 473DC(1) gave the Authority discretion to get new information, subs 473DC(2) provided that the Authority did not have a duty to do so.

45    The primary judge was correct to find that ground 2 was not reasonably arguable.

46    There may be circumstances in which it would be legally unreasonable for the Authority to fail to consider exercising its discretion under subs 473DC(1): see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] and the cases there cited. It was, however, necessary for the applicant to establish some factual foundation from which it could be inferred that the Authority failed to consider exercising its jurisdiction: see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 at [41]. He did not do so, or attempt to do so, either below or in this Court.

47    Perhaps more significantly, the applicant did not identify any arguable basis for concluding that the alleged failure by the Authority to consider exercising its discretion was legally unreasonable. A failure by the Authority to consider the exercise of the discretion in subs 473DC(1) does not necessarily amount to an error, let alone a jurisdictional error: DPI17 v Minister for Home Affairs (2019) 366 ALR 665; [2019] FCAFC 43 at [37]-[39]. There was nothing to suggest that any failure on the part of the Authority to consider exercising its discretion was legally unreasonable in all the circumstances.

Ground 3

48    Ground 3 also alleged that the Authority failed to consider the exercise of its discretion in subs 473DC(3), or alternatively, decided not to exercise that discretion. While the ground is somewhat difficult to understand, the contention appeared to be that it was legally unreasonably for the Authority not to exercise its discretion to obtain new information about the applicant’s credibility because his credibility was not in issue before the delegate, but was considered to be an issue by the Authority. The applicant also appeared to contend that the Authority was obliged to put him on notice that it might make adverse credibility findings.

49    The primary judge found that the applicant was sufficiently aware that his credibility was in issue following the delegate’s decision and that the possibility that the Authority might make adverse credibility findings was not “information” that the Authority was obliged to disclose to the applicant: Judgment at [25]-[26].

50    The primary judge’s reasons rather missed the point apparently put by the applicant concerning subs 473DC(3) of the Act. Nevertheless, there was and is no merit in the applicant’s contention that it was unreasonable for the Authority not to exercise its discretion under subs 473DC(3) to obtain new information about any concerns it might have had about the applicant’s credibility. The mere fact that the Authority may have reached different findings to the findings of the delegate in respect of various matters does not establish that it was unreasonable for the Authority not to exercise its discretion under subs 473DC(3).

51    Nor did any other provision in Pt 7AA of the Act in any way oblige the Authority to put the applicant on notice that his credibility was or might be in issue. To the extent that the applicant contended that procedural fairness required that to be done, that contention has no merit. Section 473DA, as already noted, states that Div 3 of Pt 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. No provision in Div 3 of Pt 7AA obliged the Authority to put the applicant on notice that it might make different findings to the delegate concerning any factual matters, including the applicant’s credibility.

52    The effect of s 473DB is that the ordinary position is that the Authority is obliged to review the delegate’s decision on the basis of the review material alone and without interviewing the applicant. The effect of s 473DD is that new information can only be considered in exceptional circumstances. In light of those provisions, there is no scope for implying into Div 3 any general procedural fairness obligation on the part of the Authority to notify an applicant that it might make different factual findings to the findings made by the delegate.

Ground 4

53    Ground 4 was in substance that the Authority acted unreasonably in exercising its discretion under subs 473DC(1) to get new information from the applicant about a Department of Foreign Affairs and Trade (DFAT) publication, which the delegate had referred to in its reasons. The basis of that contention was that the said publication was published after the delegate’s interview of the applicant.

54    The primary judge held that this ground did not demonstrate any arguable jurisdictional error by the Authority for two reasons. First, the Authority was not obliged to invite the applicant to comment on the DFAT report because it was referred to in the delegate’s reasons: Judgment at [30]. Second, it was a matter for the Authority to determine what “country information” it had regard to and what weight it gave that information: Judgment at [31].

55    A more fundamental problem for the applicant is that, because the DFAT report in question was before the delegate, it was part of the review materials. It was not new information as defined in subs 473DC(1). The mere fact that the report was published after the delegate’s interview with the applicant did not oblige the Authority to exercise its discretion under subs 473DC(1) to get new information from the applicant about that document.

56    In any event, the applicant had the opportunity to make submissions to the Authority about the document. He made certain submissions to the Authority, through his advisor, on 12 July 2018. The submission included further country information. It is unclear whether it included any comment about the DFAT report. In any event, the Authority considered that there were no exceptional circumstances which warranted it considering the new information pursuant to s 473DD. The applicant did not challenge that decision.

Ground 5

57    Ground 5 was essentially an adjunct to ground 4. It was essentially a formal submission that in the event that the decision in CCQ17 was contrary to the applicant’s contentions in ground 4, that decision was wrongly decided.

58    The primary judge’s reasons for rejecting ground 4 did not rely on CCQ17. It was accordingly unnecessary for her Honour to consider the correctness or otherwise of that decision. In any event, the applicant did not advance any reason for doubting the correctness of CCQ17. Nor is there any apparent basis for finding that it was incorrectly decided

Ground 6.

59    Ground 6 was that the Authority was required to, but did not, take into account the possibility that the events that the applicant claimed had occurred, but the Authority did not accept had occurred, might in fact have occurred. The applicant relied in this respect on the decision in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719.

60    The primary judge rejected that contention on the basis that the reasoning in Rajalingam only applied where the findings made by the relevant decision maker were attenuated by any doubt. Her Honour found that none of the Authority’s findings were relevantly attenuated by any doubt: Judgment at [33].

61    The applicant did not point to any error in the primary judge’s reasoning in relation to this ground. He did not point to any specific factual finding made by the Authority which attracted, or arguably attracted, the sort of reasoning considered in Rajalingam.

Ground 7

62    Ground 7 was that the Authority failed to consider a particular report by a United Nations rapporteur. It is unclear why that was said to constitute an error, let alone a jurisdictional error.

63    There was no suggestion that the rapporteur’s report was before the delegate and was therefore part of the review material for the purposes of s 473CB. There was no suggestion that the applicant provided, or attempted to provide, the report to the Authority. Nor could there be any suggestion that the Authority was somehow obliged to get the report either pursuant to its discretion in s 473DC or otherwise.

64    In all the circumstances, there was and is no basis for finding that this ground had any merit. The primary judge was correct to find that it had no apparent merit.

Ground 8

65    Ground 8 may be dealt with shortly. It was that the Authority ought to have considered the possibility that reports that failed asylum seekers who are returned to Sri Lanka are subject to torture and mistreatment were true. The Authority’s failure to do so was said to involve a misapprehension of the “real chance” test.

66    The difficulty for the applicant is that the Authority gave detailed consideration to the question whether the applicant might be harmed upon his return to Sri Lanka as a failed asylum seeker. The applicant did not suggest that the Authority’s findings in respect of that issue were not open to it or were, in any way, irrational or illogical. The contention that the Authority misunderstood or misapplied the relevant statutory test accordingly has no merit.

Ground 9

67    Ground 9 appeared to involve nothing more than a challenge to the Authority’s findings concerning the inadvertent publication of the applicant’s personal details on the Department of Immigration and Border Control’s website in 2014. The primary judge found that the Authority’s findings were open to it on the review material. The applicant did not provide any submissions as to why that finding by the primary judge was erroneous. There is no basis for finding that it was.

Ground 10

68    Ground 10 simply repeated a claim made by the applicant in support of his visa application. The Authority considered that claim and made findings in relation to it. The primary judge found that the Authority’s findings in relation to the claim were open to it. There is no apparent basis for why her Honour erred in so finding.

Ground 11

69    Exactly the same can be said concerning ground 11. The applicant appeared to allege that the Authority failed to “respond” to a particular claim that he had advanced. The primary judge found the Authority had addressed and made findings concerning that claim. There is no basis for finding that the primary judge’s findings in relation to that ground were erroneous.

Ground 12

70    Ground 12 amounted to nothing more than a challenge to a particular finding by the Authority in relation to improvements in civil and human rights in Sri Lanka. The applicant relied on certain specified documents or information that appeared not to have been before the Authority. The primary judge was right to conclude that this ground provided no basis for any finding of jurisdictional error on the part of the Authority.

Conclusion in relation to proposed grounds of review of the Authority’s decision

71    The primary judge was correct to find that none of the applicant’s proposed grounds of review of the Authority’s decision had any apparent merit or demonstrated an arguable case for the relief sought. This provided an adequate and sufficient basis for refusing the applicant’s application to set aside the registrar’s orders, even putting to one side the primary judge’s finding that the applicant had failed to adequately explain his non-appearance.

72    The applicant failed to raise or identify any arguable ground of appeal in relation to the primary judge’s dismissal of his application.

Conclusion and Disposition

73    The judgment and orders made by the primary judge are not attended by sufficient doubt to warrant the ground of leave to appeal. The applicant ultimately advanced no meaningful submissions in support of his application. The application must accordingly be refused. The applicant should pay the Minister’s costs.

Associate:

Dated:    26 March 2020