Federal Court of Australia

FEH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1512

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be fixed by way of an agreed lump sum.

3.    In the absence of any agreement pursuant to order 2, the question of an appropriate lump sum be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application for an extension of time and leave to appeal from orders made by a Judge of the Federal Circuit and Family Court of Australia dismissing an application for reinstatement of a proceeding. The FCFCoA proceeding was an application seeking judicial review of a decision of the Administrative Appeals Tribunal, made on 20 September 2018. The FCFCoA proceeding has a history of dismissal and reinstatement due to non-attendance and non-compliance with Court orders, and adjournments, which I summarise below. The latest set of orders, upon which these applications are brought, was made on 9 February 2022, in which a Judge of the FCFCoA refused to reinstate the judicial review application after it had been dismissed on 7 May 2020.

2    A short oral hearing was held by Microsoft Teams on 4 November 2022, with the applicant present during the hearing, through a link to Hakea Prison. Imran Warraich appeared for the applicant. Mr Warraich has been on the Court’s record as the applicant’s solicitor since shortly after the commencement of this proceeding. He was also the applicant’s solicitor on record before the primary judge. Despite comprehensive submissions on behalf of the Minister, Mr Warraich made little if any substantive submissions on behalf of his client, either in writing or orally.

3    For the reasons set out below, the application for an extension of time must be dismissed. There is strictly no need therefore to consider the application for leave to appeal, but as I explain below, I would not in any event have granted leave to appeal from the orders of FCFCoA.

Background

4    The background is comprehensively set out in the Minister’s submissions, and earlier submissions by the Minister before the FCFCoA, from which this summary is taken.

5    The applicant is an Indian national. He arrived in Australia on 26 October 2007 on a dependent student (subclass 573) visa. Thereafter he held a number of student visas, and a criminal justice stay visa, which was cancelled twice, resulting in his detention on both occasions. In early 2018 he was detained for the second time. He applied for a protection visa on 24 April 2018, on the basis of his fear of harm from the authorities in India as an adherent of Dera Sacha Sauda (DSS), following the arrest of the DSS’s leader. This application was refused by a delegate of the Minister on 24 May 2018. That same day, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. On 20 September 2018, the Tribunal affirmed the delegate’s decision. In its reasons, the Tribunal identified several concerns it had with the applicant’s credibility. These concerns arose from the applicant’s delay in applying for protection, a partner visa application that he admitted he had made fraudulently, an occasion on which he provided a false name or names to police, and the inconsistency of his accounts of when his fears of persecution arose. The Tribunal found that the applicant did not genuinely fear persecution if returned to India. It also found that nothing in the independent country information before it indicated that ordinary adherents of DSS were prevented from practising their beliefs or participating in organised events, and there was nothing to indicate that the applicant or his family was of interest to the Indian authorities, so that the applicant did not face a real chance of harm based on his religion if returned to India.

6    On 5 October 2018, the applicant filed an application in the FCFCoA to seek judicial review of the Tribunal’s decision. On 23 January 2019, a Registrar dismissed the application with costs on the basis that the applicant failed to appear at the first return date of his proceeding in that court. That dismissal was set aside by consent.

7    The applicant was granted leave to file and serve any amended application, supplementary court book and submissions 28 days before the hearing. By the time the Minister filed submissions in relation to the judicial review application, the applicant had filed no further documents. The evidence before the Court shows the applicant was repeatedly placed on notice of his hearing date of 7 May 2020. During the currency of his FCFCoA proceeding, the applicant was released from immigration detention.

8    However, the applicant again failed to appear at the hearing on 7 May 2020. Before the hearing, the applicant sent an email to the presiding judge’s associate to explain that he was unable to attend the hearing because of health issues, and to request an adjournment. His request for adjournment was opposed, and refused by the court. On account of his failure to appear, the FCFCoA ordered that his application be dismissed with costs on 7 May 2020. The applicant was re-detained on 12 October 2020.

9    On 21 October 2020, the applicant applied to the FCFCoA to reinstate his application for judicial review. In an affidavit filed in support of the reinstatement application, the applicant deposed that he had been unable to attend his hearing because of illness and “COVID-19 repercussions”, because he had no access to a phone or email, and because he was unrepresented at the time of the hearing. The applicant deposed he had now retained a lawyer. This was Mr Warraich, who filed a Notice of Address for Service on 19 October 2020.

10    The reinstatement application was listed for hearing on 17 November 2021. It was opposed by the Minister. Mr Warraich appeared on that date. No documents were filed on behalf of the applicant in accordance with the court’s orders. There was some evidence that by this point Mr Warraich no longer represented the applicant. There then followed a rather extraordinary sequence of communications, which are set out in the FCFCoA reasons dated 17 November 2021 at [5]-[7]:

The Court record demonstrates that at no time did Mr Warraich file any Notice of Withdrawal under r 9.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). Subsequently, on 11 November 2021 the solicitors for the Minister wrote to my Associate copying the applicant, and this email again appears to have followed a telephone conversation between them and the applicant, which summarises that the applicant informed the solicitor that he would be representing himself as his legal representative had “passed away”.

Following that email to my chambers, and upon apprehending that the applicant would be detained in a location which is in a time zone three hours behind where the Court would be sitting, I made arrangements for the hearing fixture to be moved from 10.15am to 12.15pm (AEDT) time in order to accommodate an applicant who I perceived was probably now unrepresented by virtue of the death of his solicitor, and who would be required to participate in the hearing at an unfairly early hour.

In addition, the Court made arrangements for a Punjabi interpreter to be present at the hearing so that the applicant could engage with the Court and represent himself. On 16 November 2021, less than 24 hours before the adjusted hearing time, Mr Warraich, who from his appearance today appears to me to be very much alive, wrote to my Associate to indicate that he would appear today for the applicant.

11    Despite what appeared to be some scepticism on the court’s part about the excuses put forward by Mr Warraich, very properly focussing on the applicant’s interests, in a careful and thorough judgment, the FCFCoA granted an adjournment to 7 December 2021 so that Mr Warraich could “professionally present” the applicant’s reinstatement application.

12    The reinstatement application was heard on 7 December 2021. On 9 February 2022, the primary judge dismissed the reinstatement application. Her Honour found that the applicant had not provided a reasonable excuse for his non-appearance on 7 May 2020, as there was no evidence to support his claim that he was too unwell to participate in the hearing beyond his unwitnessed affidavit and the email he had sent the presiding judge’s associate: FEH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FamCFamC2G 59 (primary judgment) at [33]-[34].

13    Her Honour did not accept that the applicant was disadvantaged by the conduct of a hearing via Microsoft Teams, and found that it is well established that there is no right to legal representation in migration review proceedings: primary judgment at [35], [37]-[40]. Her Honour also considered that the applicant’s delay in seeking a reinstatement of his proceeding was relevant to the exercise of the FCFCoA’s discretion and that, because he only made the reinstatement application shortly after being detained, the applicant was aware of the dismissal of his judicial review application and elected not to pursue reinstatement until “it was useful for him”: primary judgment at [44]-[46]. In relation to the merits of the applicant’s judicial review application, the primary judge considered that the grounds of review pleaded by the applicant did not have reasonable prospects of success even at an impressionistic level, because each ground was either put too generally, was bare and unparticularised, or had no reasonable prospects on its merits in the circumstances: primary judgment at [58]-[61]. The primary judge was therefore not persuaded that it was in the interests of the administration of justice to set aside the orders made on 7 May 2020: primary judgment at [63]. Her Honour ordered that the reinstatement application be dismissed, and that the applicant pay the Minister costs fixed in the sum of $3,930.

14    Given the FCFCoA order was made on 9 February 2022, the applicant was required to file an application for leave to appeal on or before 23 February 2022. He did not do so.

15    Two months later, on 22 April 2022, the applicant filed an application in this Court for an extension of time and leave to appeal from the primary judge’s order. The grounds of the application were that:

1.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in jurisdictional error in determining without a logical and probative basis that all the evidence upon which his claim was based was false.

2.    The Federal Circuit Court failed to find that the Administrative Appeals Tribunal fell in misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings.

16    The Court made orders on 24 April 2022 setting out a timetable for the hearing of this application. The hearing was listed for 11 August 2022.

17    On 20 July 2022, my Associate sent an email to Mr Warraich, again the solicitor on record for the applicant, to note that the applicant was late in filing an outline of submissions in support of his application. Mr Warraich replied that he was unable to prepare those submissions because the applicant was uncontactable, having been detained in Hakea Prison in relation to a criminal proceeding against him. Mr Warraich advised that neither he nor his client was in a position to appear at the hearing set down for 11 August 2022, and that he was “preparing paperwork to withdraw from this case”.

18    In light of this development, the 11 August 2022 hearing was relisted as a case management hearing, at which the applicant and Mr Warraich were both expected to appear. The Court made its own enquiries and arrangements to ensure that the applicant was able to join the hearing via Microsoft Teams from Hakea Prison, and that a Punjabi interpreter would be provided for him. It was not difficult for the Court to arrange this, and I fail to see what particular difficulty Mr Warraich might have had in contacting the applicant.

19    Despite his earlier references to a possible withdrawal from the proceeding, Mr Warraich appeared at the case management hearing. At that hearing, Mr Warraich submitted that he had “just got permission to act for [the applicant]” and that, from the day of the case management hearing, he would be able to represent the applicant and he would “try [his] best to get in touch with the prison authority to get instructions” from the applicant.

20    Following the case management hearing, the Court made orders effectively extending the deadline for the applicant’s submissions to 15 September 2022, and granting the Minister leave to file and serve submissions in reply by 4pm on 29 September 2022. The Minister had filed what were effectively written submissions in chief in compliance with the Court’s original timetable orders, on 28 July 2022.

21    Due of the pressure of other listings, the applications were not listed for hearing until 4 November 2022. Mr Warraich appeared on behalf of the applicant at that hearing. He filed written submissions on behalf of his client on 15 September 2022 that, with respect, did not substantially address the grounds of his client’s application. The Minister was represented by his solicitor, who made brief oral submissions in addition to what had been provided in writing. The Minister did not file written submissions in reply.

Resolution

Approach to extension of time

22    In his written submissions, the Minister set out the factors to be considered by the Court in determining whether to grant an application for an extension of time, referring to a number of decisions, including AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193. The Minister also emphasised that the Court must be satisfied that there is sufficient doubt as to the correctness of the judgment below and that, if the judgment below is wrong but leave were refused, the applicant would suffer substantial injustice: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398.

23    In Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; 279 FCR 114 at [158]-[159], Anderson J explained the applicable principles in this way (Perram and Wigney JJ agreeing):

The Court possesses a wide discretion in determining whether or not to grant an extension of time for the filing of an appeal. However, the prima facie rule is that an appeal brought out of time will not be entertained, as explained by Tracey J in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 at [12]:

An application for an extension of time within which to file a notice of appeal may be made pursuant to Rule 36.04 of the Rules. The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah (1982) 62 FLR 280 at 285.

In BVG17 v BVH17 [2019] FCAFC 17; 268 FCR 448, Collier and Rangiah JJ, citing AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; 238 FCR 341 at [10]–[12] per North, Besanko and Flick JJ, summarised (at [34]) the relevant considerations as follows:

In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded …

No extension of time should be granted

24    The starting point, as Tracey J observed in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426, is that the Court’s rules have fixed periods of time which should be observed so that the interests of finality in litigation is pursued. Finality is an important aspect of the administration of justice. It should not be pursued at the expense of fairness, or consideration of individual circumstances, but it is an important value. The applicant has, through the FCFCoA, had several chances at avoiding the finality of court orders. He and his legal representative Mr Warraich have engaged in a pattern of non-compliance, delay and avoidance of their responsibilities as litigants. At some of these times, the applicant had not been detained, at others he has. It does not appear to be the fact of detention which governs the inability of the applicant and his legal representative to comply with time limits, whether imposed by legislation or by court orders.

25    In this proceeding, the application for leave to appeal from the primary judgment was made 50 days late. The Minister submits, and I accept, that this is a significant delay. There was in my opinion no attempt to comply with the time limits imposed by the Court’s rules.

26    The applicant has not given an adequate explanation for the delay.

27    In his affidavit in support of his application for an extension of time, the applicant deposes that his application was delayed because he had been in immigration detention and he was unable to prepare the documentation for the appeal in time. As I have found, the evidence of the applicant’s participation in litigation in the FCFCoA indicates detention is not the governing difficulty. Further, as the Minister submits, the applicant’s preparation and filing of legal documentation in the FCFCoA while in detention demonstrates that, generally, he has been able to complete and submit legal documents notwithstanding his detention. I find that his history of participation in both merits review and court proceedings indicates he well understands the need for timeliness.

28    I also accept that the applicant has demonstrated an ability to keep track of relevant dates in his proceedings and to communicate with the court and the Minister’s legal representatives by email in relation to adjournment requests. Adjournment requests have been a constant feature of the applicant’s merits review proceedings and the proceedings in the FCFCoA.

29    I accept that the applicant’s migration status in Australia is at stake, and that this is a consideration of some weight, especially since judicial review is the only entitlement the applicant has to seek to set aside the Tribunal’s adverse decision.

30    The Minister properly did not advance any particular submission based on prejudice.

31    The only point of the extension of time application is to seek leave to appeal from the refusal to reinstate the judicial review application. As I explain below, I do not consider there are any realistic prospects of success in the proposed appeal from the orders by which the FCFCoA refused to reinstate the judicial review application.

32    Further, the judicial review application has little or no reasonable prospects of success on the material before the Court. Tellingly, Mr Warraich did not seek to develop any arguments at all about the prospects of success of the judicial review application. The Tribunal formed a significantly adverse view of the applicant’s credibility, based on a number of objective facts which the applicant did not dispute. Added to this, however, the Tribunal’s reasons are not obviously defective, its reasoning is not obviously irrational or unreasonable, and its decision appears comprehensive in its coverage of the issues arising on the review before it. In the absence of the applicant’s own lawyer developing any arguments to persuade the Court that the judicial review application has any reasonable prospects of success, there is no real basis on the material before the Court to consider that the substantive outcome is likely to be anything other than dismissal.

33    In those circumstances, the interests of the administration of justice do not justify extending time for leave to appeal.

In any event, leave to appeal should not be granted

34    Even if I am wrong about the application of the principles concerning extension of time, I would not grant leave to appeal from the orders of the FCFCoA.

35    The proposed appeal lacks merit. There is no real attempt in the applicant’s written submissions, nor in the very brief oral submissions made by Mr Warraich, to indicate how it is that her Honour erred in refusing to reinstate the judicial review application.

36    To the contrary, her Honour had extended every reasonable accommodation to the applicant and Mr Warraich, to give them the fullest opportunity to present a persuasive case on reinstatement, which would of course include presenting a persuasive case about the merits of the underlying judicial review application. They did not take advantage of the opportunities given. Her Honour simply did not accept many of the excuses put forward by the applicant and Mr Warraich. Her Honour’s reasons are thorough and careful, based on the correct applicable principles, and not affected by any error. The decision of the primary judge was discretionary in its nature, but the applicant has not identified any error of discretionary judgment that falls within the principles set out in House v The King [1936] HCA 40; 55 CLR 499.

37    Her Honour also dealt thoroughly with the merits of the underlying judicial review application: see primary judgment at [49]-[61]. There is no error in the way her Honour deals with this issue, and I respectfully agree with her assessment. Again there has been a wholesale failure to develop the arguments in support of the grounds of review, aside from incanting (or reproducing with acknowledgment) passages from other judgments and making statements at a level of generalisation, without reference to the Tribunal’s reasons, which could not advance the merits of the application.

38    The two grounds of appeal advanced in the draft notice of appeal on the leave to appeal application are even more generally expressed than those before the FCFCoA. There was no attempt whatsoever to develop those grounds in writing or orally. The rephrasing of the grounds in the proposed notice of appeal therefore does not advance the prospects of the appeal at all.

39    Further still, I accept the Minister’s submission that the first newly expressed proposed ground misconstrues the Tribunal’s decision, insofar as the Tribunal did not find that “all the evidence” supporting the applicant’s claims was false; rather, the Tribunal accepted that the applicant had become an adherent of DSS, but it was not satisfied that the applicant was of interest to the Indian authorities, or that his fears of persecution were well-founded. The second newly expressed ground does not identify any evidence that the Tribunal “misapprehended”, nor did the submissions made on behalf of the applicant.

40    The applicant has not demonstrated any basis for the grant of leave to appeal from the primary judge’s order.

Conclusion

41    The application for an extension of time and leave to appeal must be dismissed. The Minister sought costs to follow the event, and made no specific submissions. It is usual practice for costs to follow the event, although the Court has a wide discretion under s 43 of the Federal Court of Australia Act 1976 (Cth). In this case, I have given consideration to whether there should be no order as to costs. However, on balance I have concluded there is insufficient justification for departing from an application of the usual costs principles. The applicant has not been well served by his legal representative. His application was prepared to the barest level, with delays and non-compliance, and submissions in support of the application at the hearing were minimal. While that meant the Minister had very little to respond to, the Minister still carried the costs burden of the preparation of the tender bundle, the bundle of authorities and responding to the application – including initially responding without any submissions on behalf of the applicant having been filed. As presented it was an application with no merit. In those circumstances, it is appropriate to require the applicant to compensate the Minister for the costs of the proceeding.

Associate:

Dated:    16 December 2022