FEDERAL COURT OF AUSTRALIA

Al-Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 963

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal given on 19 August 2019 is granted.

2.    The first respondent is to pay the applicant’s costs as agreed or assessed.

THE COURT NOTES THAT:

3.    Given that the applicant intends to contend on the appeal that the decision in Lesi v Administrative Appeals Tribunal [2015] FCA 1186; 238 FCR 145 was wrongly decided, it is recommended that a direction be made under s 20(3) of the Federal Court of Australia Act 1976 (Cth) referring the matter to a Full Court of the Federal Court of Australia.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for an extension of time within which to “appeal” on a question of law from a decision of the Administrative Appeals Tribunal (AAT). I note that, while described in the AAT Act as an “appeal”, the proceeding is in the nature of an application for judicial review and is instituted in the original jurisdiction of this Court.

2    By its decision, the AAT summarily dismissed the applicant’s application for merits review under s 42B(1)(b) of the AAT Act on the basis that s 24(6)(a) of the Australian Citizenship Act 2007 (Cth) (Citizenship Act) compelled the refusal of the applicant’s citizenship application because he had pending criminal proceedings against him. In reaching that decision, the AAT found that it had no power to adjourn the application pending the resolution of the criminal proceedings, applying the decision of a single judge of this Court in Lesi v Administrative Appeals Tribunal [2015] FCA 1186; 238 FCR 145 (Lesi).

3    The applicant submitted that the extension of time should be granted and the appeal heard by a Full Court on the ground the applicant wished to contend that the decision in Lesi was wrong and should be overturned.

4    For the reasons set out below, the application for an extension of time should be granted with a recommendation that the appeal be heard and determined by a Full Court.

5    Finally, the original listing of this application for hearing on 20 March 2020 was vacated and the matter later relisted due to arrangements implemented by the Federal Court in response to the COVID-19 pandemic.

2.    BACKGROUND

6    The background is set out in the decision of the AAT and may be summarised as follows.

7    The applicant arrived in Australia in 2006 and is a permanent resident. On 3 May 2017, he applied for Australian citizenship by conferral. Subsequently, on 11 September 2018, he was charged with three New South Wales offences said to have occurred earlier that year.

8    On 2 May 2019, pursuant to s 24(6) of the Citizenship Act, a delegate of the Minister refused his application for citizenship because of the pending proceedings in relation to the alleged offences. Section 24(6) relevantly provides that:

(6) The Minister must not approve the person becoming an Australian citizen at a time:

(a) when proceedings for an offence against an Australian law (including proceedings by way of appeal or review) are pending in relation to the person;

(emphasis added)

9    On 20 May 2019, the applicant applied to the AAT for merits review of the delegate’s decision to refuse his application for Australian citizenship. On 8 July 2019, the AAT held a conference between the parties and a further conference was listed for 27 August 2019, being a week after the Local Court hearing of the applicant’s pending criminal proceedings was scheduled on 20 August 2019. However on 7 August 2019, the Minister applied to the Tribunal for summary dismissal of the application pursuant to s 42B(1)(b) of the AAT Act on the ground that it had no reasonable prospect of success. On 15 August 2019, the AAT dismissed the application for review under s 42B(1)(b) with written reasons being provided on 19 August 2019.

10    First, the Tribunal found that it had no power to grant the adjournment sought by the applicant until his criminal proceedings were finalised, applying the binding decision of the Federal Court in Lesi (AAT reasons at [26]). The Tribunal also noted that Lesi had been followed by the AAT in Omara and Minister for Home Affairs [2019] AATA 42 where the Tribunal said it “accepts that it has no capacity to take a different view”, and in Oliver and Minister for Immigration and Border Protection (Citizenship) [2016] AATA 895, and Bobbe and Minister for Home Affairs (Citizenship) [2018] AATA 2894.

11    Secondly, the Tribunal found that as there were criminal proceedings pending against the applicant at the time of the Tribunal’s decision, it had no discretion and was required to refuse the application for citizenship under s 24(6) of the Citizenship Act. As such, the Tribunal dismissed the application on the ground that it had no reasonable prospects of success (AAT reasons at [31]-[33] and [41]).

12    The draft notice of appeal proposes one question of law, namely:

Whether the Tribunal has power under s 40(1)[(c)] of the Administrative Appeals Tribunal Act 1975 (Cth) to adjourn a review proceeding of a decision to refuse citizenship by conferral under s 24 of the Australian Citizenship Act 2007 (Cth) while pending criminal proceedings within the meaning of s 24(6) of that Act are finalised.

(I have corrected the erroneous reference to s 40(1)(a) to s 40(1)(c) in the draft notice of appeal, as advised by the applicant in his submissions filed on 7 February 2020 at [17], and note that this correction no doubt will be made in the filed notice of appeal in due course.)

3.    SHOULD THE EXTENSION OF TIME BE GRANTED?

3.1    Relevant principles

13    The principles governing the exercise of the discretion to grant an extension of time under s 44(2A)(a) of the AAT Act are well established. They were helpfully explained by Finn J in Peczalski v Comcare [1999] FCA 366; 58 ALD 697 at [19] as follows:

1. To comply with the provisions of s 44 of the AAT Act Mr Peczalski had to file a notice of appeal from the Tribunal’s decision within 28 days of being furnished with a copy of the decision and this irrespective of whether he then obtained reasons for decision: see Repatriation Commission v Tuite (1992) 37 FCR 571. This time limit expresses the prima facie rule that proceedings commenced outside it will not be entertained.

2. The discretion to extend time to institute an appeal is not expressly confined by specified criteria. Nonetheless the court has on a number of occasions indicated that there is a range of factors, of varying actual importance in a given instance, of which account appropriately can be taken to guide the exercise of discretion to extend time. They have been conveniently listed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been held to be applicable to applications under s 44 of the AAT Act: see Secretary, Department of Social Security v Van Den Boogaart (1995) 37 ALD 619 at 620.

3. The particular factors that are of immediate significance are (a) the explanation given of the delay; (b) the actions of the applicant in contesting the decision otherwise than by appeal; (c) prejudice to the respondent; and (d) the merits of the application. I would add that in relation to factor (a) – the explanation given of the delay – the Full Court of this court in Comcare v A’Hearn (1993) 45 FCR 441 at 444 noted that while there is no rule that an acceptable explanation is an essential precondition, “it is to be expected that such an explanation will normally be given.”

14    With respect to assessing the merits of an application for an extension, I further explained in Jamal v Secretary of Social Services [2017] FCA 916 (Jamal) that:

12. … it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

3.2    How is the question of the merit of any appeal to be approached in the circumstances of the present case?

15    A central issue on the application concerned how merit was to be assessed in the context of an application for an extension of time being heard by a single judge where, in order to succeed on any appeal, both parties agreed that it would be necessary for the applicant to establish that the decision in Lesi was plainly wrong unless the appeal were referred to a Full Court. As for example French J (as his Honour then was) held in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 (Hicks) with respect to the judicial comity to be extended by a single judge to the decision of another judge:

75. It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong – Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:

“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle…”

16    As French J then observed, the importance of the “injunction to judicial comity” does not merely lie in “mutual politeness as between judges of the same or co-ordinate jurisdictions.” Rather, his Honour continued:

76. … It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction

17    The Minister argued that it was necessary for the applicant to establish that the decision in Lesi was plainly wrong in line with the doctrine of judicial comity for the following reasons, notwithstanding that this was an application for an extension of time and therefore a “gateway” only to an appeal. First, the Minister submitted that, absent a referral to a Full Court, any appeal under s 44 of the AAT Act would be heard by a single judge of the Court. Thus while a single judge could recommend that the appeal be referred to a Full Court, the decision ultimately lay with the Chief Justice who may or may not accept the recommendation. Secondly, the Minister submitted that a single judge would be bound to dismiss the appeal unless persuaded that the decision was plainly wrong as a matter of judicial comity. Thirdly, given that the applicant conceded that the decision in Lesi was not plainly wrong, the Minister submitted that it followed that any appeal which, in the ordinary course would be heard by a single judge, has no prospects of success and the application for an extension of time should therefore be refused.

18    The first and second steps in the Minister’s submission are plainly correct. However, in my view, the argument falls at the third step. The error in the last step is that it approaches the issue of an extension of time solely through the prism of a first instance decision, as opposed to a consideration of the substantive merits of the issue sought to be litigated. In this regard, even if the matter were not referred in the first instance to a Full Court, there would be a right to appeal to a Full Court which could overrule Lesi if persuaded simply that it was wrong. That being so, the rationale for dismissing an extension of time application because it lacks merit does not apply to a case where there is a serious doubt as to the correctness of a decision applied by the AAT. This is because it cannot be said that it would be pointless in such a case to grant the extension of time, and that the parties and the Court’s resources would be diverted to the hearing and determination of an appeal for no good purpose: see Jamal at [12].

19    The applicant argued instead that the correct test was whether, on a rough and ready assessment, there is a serious doubt as to correctness of the construction of the relevant provisions adopted in Lesi. In my view, that submission must be accepted. While neither party could identify any authority directly on point, posing the test in this manner accords proper respect to the first instance decision of another judge of this Court, while ensuring that where there is a serious doubt about the correctness of that decision, it can be litigated and ultimately determined by a Full Court either on referral, if appropriate, or in due course on appeal. By analogy, as French J in Hicks at [76] observed in obiter, given the importance of the considerations underlying the requirements of judicial comity, “where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.”

20    By contrast if the Minister’s approach were adopted, the decision of a single judge refusing the extension of time would be interlocutory. As such, it could be appealed to a Full Court only if leave were granted under s 24(1A) of Federal Court of Australia Act 1976 (Cth) (FCA Act), unless the application for the extension of time itself were referred to a Full Court under s 20(3) of the FCA Act. As the applicant submitted, while clearly a single judge might recommend that an application for an extension of time be determined by a Full Court and the Chief Justice may accept the recommendation and make directions accordingly:

This emphasis [in the FCA Act] on the single judge avoids inconvenience and delay. A single judge should, absent some special reason, determine preliminary or procedural matters such as the extension. The Full Court should not be convened where no substantive proceeding may result or where multiple hearings may be needed …

(Applicant’s Supplementary Submissions at [15])

21    By analogy Charlesworth J explained in Kassiou v Heard (Liquidator) [2017] FCA 425 (Kassiou) in the context of dismissing an application for a direction that an application for leave to appeal be listed before a Full Court, as opposed to a single judge which is the default position under s 25 of the FCA Act:

12. It may be accepted that the degree of complexity or difficulty attending a question will be a relevant consideration in the exercise of the discretion to refer the question to the Full Court under s 25(6). But the mere existence of some difficulty is in my view insufficient. The policy underlying the status quo in s 25(2) ought be given considerable weight in determining whether the preliminary question of the kind arising in this matter ought to be heard and determined by a Full Court rather than a single judge. The referral of all questions of law involving some degree of difficulty to a Full Court would, to my mind, be an inefficient use of the overall resources of the Court and would undermine the overarching purpose of the Court’s practice and procedure provisions: FCA Act, s 37M.

3.3    Is there a serious doubt about the correctness of the decision in Lesi?

22    The Minister’s submissions as to the merits of any appeal hinged on the Court accepting the proposition that it was necessary for the applicant to establish that the decision in Lesi was plainly wrong. The Minister, rightly in my view, did not seek to argue against the proposition that the correctness of the decision in Lesi was seriously in doubt on a reasonably impressionistic consideration of the issue. While, as earlier explained, this is not the occasion to consider the merits of the issue in detail, it is helpful briefly to mention the nature of some of the concerns as to the correctness of the decision.

23    In Lesi, Mr Lesi brought an urgent challenge in the Federal Court to a decision by the AAT not to defer the hearing of his application for review to a date after the expiry of a good behaviour bond, the existence of such a bond being bar to the grant of citizenship under s 24(6)(g) of the Citizenship Act. In dismissing the application, Besanko J held first that, in contrast to the Australian Citizenship Act 1948 (Cth) considered in Minister for Immigration and Citizenship v Hassani [2007] FCA 436; (2007) 219 FCR 144 (Hassani), there was no express power to defer the consideration of an application for citizenship under the current Citizenship Act which suggested that the Minister had no power to defer consideration of the application (Lesi at [23]). Secondly, while the AAT had a general power to adjourn under s 40(1)(c) of the AAT Act which was “unconfined in its terms”, his Honour considered that “there would need to be something in the [Citizenship] Act to suggest that the future occurrence of an event identified in s 24(6) of the Act was a relevant consideration in terms of my general power to adjourn” (Lesi at [24]). As his Honour could not find anything in the Citizenship Act to that effect, he followed his decision in Hassani to hold that the Minister lacked power to defer consideration of an application merely on the ground that a bar in s 24(6) will expire in the future (at [23]).

24    I agree with the applicant’s submission that a contrary view is reasonably arguable for the following reasons and there is, with respect, therefore a serious doubt about the correctness of the decision:

…The Tribunal’s procedural powers under s 40 of the AAT Act are distinct from its substantive function of exercising the original decision-maker’s powers and discretions under s 43 of the AAT Act. It should not readily be concluded that the implied denial of procedural power to the original decision-maker cuts down the procedural powers of the Tribunal (see, in this respect, s 25(6)(a) of the AAT Act). Rather, the question should be whether a procedural power of the Tribunal and its function in lieu of the original decision-maker can stand together.

It is submitted that the Tribunal’s general power to adjourn under s 40 of the AAT Act and the question of the future application of s 24(6) of the Citizenship Act can be reconciled. The Tribunal could have had regard to the imminent non-satisfaction of a paragraph of s 24(6) of the Citizenship Act as the basis for adjourning the review. It is inconvenient and unjust for the Tribunal to be required to dismiss an application for citizenship, where the ground of dismissal could dissipate in a matter of days or weeks. There is no good reason for an applicant for citizenship in such circumstances to be required to start all over again before a Delegate of the Minister, with a prior refusal of citizenship on his record.

(Applicant’s Outline of Submissions at [28]-[29])

3.4    Other relevant considerations

25    The applicant relied upon the affidavit of Mr Sam Issa, solicitor, sworn on 28 October 2019 in support of the application for an extension of time (the Issa affidavit). It is evident from that affidavit that the delay in instituting this proceeding is explained in part by the fact that the applicant’s solicitors erroneously filed an application for an extension of time in the Federal Circuit Court (FCC) on 20 September 2019, a week after the 28 day period within which to appeal the AAT’s decision had expired (Issa affidavit at [6]). A notice of discontinuance was subsequently filed in the FCC on 16 October 2019 (Issa affidavit at [8] and annexure SI4). The Minister placed considerable weight upon the absence of a complete explanation for the delay. In particular, the Minister submitted that Mr Issa did not explain:

(1)    how an application was initially erroneously filed in the FCC;

(2)    why the initial mistaken application to the FCC was filed out of time; or

(3)    why there was a delay between the time when the applicant’s solicitors realised that the FCC was the wrong forum for lodging an appeal from the AAT’s decision which must have been prior to the discontinuance of the FCC proceedings on 16 October 2019 and 28 October 2019 when the present proceedings were instituted.

(Respondent’s Submissions (RS) at [34])

26    The respondent also took issue with the applicant’s submission that the delay was “relatively short”, as the proceedings were instituted in this Court one month and 11 days out of time.

27    As earlier mentioned, in general the Court should be satisfied that there is an adequate explanation for the delay. In the present case there is, in my view, an adequate explanation given for the delay between 20 September to 16 October 2019 when the FCC proceedings were on foot, namely that the applicant’s solicitors wrongly assumed that the FCC had jurisdiction to hear and determine the appeal from the AAT’s decision and, it can reasonably be inferred, discontinued the proceedings promptly upon discovering their error. In this regard, “the blamelessness of the [applicant] and the responsibility of his solicitors is very material”: Sophron v Nominal Defendant [1957] HCA 27; (1957) 96 CLR 469 at 474 (the Court); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 351 (Wilcox J).

28    That leaves the unexplained delay being a period of one week before proceedings were filed in the FCC and a 10 day period after the error was discovered and the FCC proceedings were discontinued. That delay is not lengthy in my view and, while it should properly weigh in the balance, does not outweigh the other considerations in favour of the extension of time, particularly where the Minister points to no prejudice other than of a general nature against the grant of the extension.

29    Nor do I give any weight to the respondent’s submission that the applicant could simply re-apply for citizenship. As the AAT observed (at [34]), regretfully there was an (unexplained) delay of almost two years in processing the applicant’s citizenship application before the decision by the delegate was made. There is no evidence to suggest that any future application by the applicant would be dealt with any more expeditiously. It follows in my view that the fact that the applicant waited two years for a primary decision on his application is a compelling factor in favour of the grant of the extension of time and demonstrates the extent of potential prejudice which he may suffer if required to re-apply.

30    Finally, as I have earlier noted, the decision in Lesi has been followed in other decisions of the AAT. In those circumstances and given that there is a serious doubt about the correctness of the decision in Lesi, I consider that there is a strong public interest in having the issue determined promptly.

3.5    Exercise of discretion

31    Weighing the various factors to which I have referred, in my view the applicant has established that it is clearly in the interests of justice to grant the extension of time within which to appeal the AAT’s decision. This is also an appropriate case in which to recommend that the appeal be heard and determined by a Full Court.

4.    COSTS

32    Finally the Minister submitted that he should have his costs given that “the applicant seeks a considerable indulgence from the Court to grant an extension of time and to direct that the matter be considered by the Chief Justice to convene a Full Court, which was only raised for the first time in his written submissions” (RS at [39]).

33    First, it is true that the applicant did not seek to have the matter determined by a Full Court until his written submissions were filed. However, I do not accept the Minister’s submission that if this had been sought earlier, it is likely that the Full Court would have heard both the application for an extension of time and the appeal at the same time and, therefore, that costs were incurred which probably would not have been if the question of a Full Court had been raised earlier. As Charlesworth J explained in Kassiou at [13(1)], “there is no guarantee that the Full Court to which the matter is referred would in its own discretion list the substantive appeal for hearing at the same time as the preliminary questions”. Those comments apply even though I accept that the possibility that the Full Court might have decided to do so is perhaps higher where the applicant has indicated that she or he wishes to argue that an earlier decision is wrongly decided.

34    Secondly, it was obvious that the applicant would have to challenge the decision in Lesi which was applied by the Tribunal in order to succeed on any appeal and therefore that the matter was always one which might have been appropriately determined in the first instance by a Full Court.

35    Thirdly, once the applicant indicated in his written submissions that he wished the matter to be heard by a Full Court, there was nothing to prevent the Minister from submitting that, in those circumstances, both the application for an extension of time and any appeal should be heard and determined by a Full Court.

36    Fourthly, I do not accept that the grant of an extension of time constitutes a “considerable indulgence from the Court”. The applicant had a right to make the application and the determination of the application involves the exercise of a discretion on established principles directed to determining where the interests of justice best lie (see s 44(2B) of the AAT Act).

37    In those circumstances there is no reason why the applicant should be deprived of his costs, given that he has been wholly successful in his application for an extension of time.

Associate:

Dated:    10 July 2020