Federal Court of Australia

AKS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1215

ORDERS

THE COURT ORDERS THAT:

1.    The application for reinstatement of the appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs in an amount to be agreed, and if not agreed, to be taxed.

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

REASONS FOR JUDGMENT

MURPHY J:

1    Before the Court is an interlocutory application dated 20 July 2023 in which the appellant seeks reinstatement of his appeal from a judgment of the Federal Circuit Court of Australia (as it was then known) (FCC) handed down 11 December 2017 dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal made on 13 January 2017. The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2    I heard the application on 6 October 2023. I made orders that day to dismiss the application and for the appellant to pay the costs of the Minister. I now provide my reasons for doing so.

The factual and procedural history

3    The appellant is a citizen of Pakistan and of Shia Muslim faith. He left Pakistan legally, and came to Australia by a commercial airflight in August 2013, entering on a visitor visa.

4    On 3 October 2013 the appellant applied for a protection visa. In support of his application, he claimed that he had previously run a very successful business manufacturing surgical equipment in Pakistan and supplying it locally and overseas. He claimed that he had received threats and demands for money from Sunni extremists if he wanted to continue to safely operate his business. He said that he paid some monies but then refused to pay more. He claimed that he was assaulted twice. The first time at his office by members of the Khatme Nubuwat Organisation, who he said were a Sunni extremist group, after he refused to pay further amounts of money in response to their demands, and the second time on the way home from prayer by three men seeking to collect the demanded money, who seriously injured his knee with an axe and left him unconscious. He said that after the second assault he went to the United Kingdom (UK) to recover, and following his return the business was scaled down in an attempt to stop the threats. He said that upon entering Australia on a visitor visa and observing religious freedom here, he decided to apply for a protection visa so he could remain in Australia and avoid religious persecution in Pakistan.

5    On 28 January 2015 a delegate of the Minister refused to grant the appellant a protection visa under s 65 of the Act.

The application to the Tribunal

6    On 28 January 2015 the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal heard the application on 6 September 2016, which was conducted with the assistance of an Urdu interpreter. The appellant was assisted in the hearing by a migration agent.

7    On 13 January 2017 the Tribunal decided to affirm the delegate’s decision not to grant the appellant a visa.

The application to the Federal Circuit Court of Australia

8    On 1 February 2017 the appellant filed an application for judicial review of the Tribunal decision in the FCC. The appellant was represented by solicitors and counsel in the application.

9    On 11 December 2017 the primary judge heard and dismissed the application.

The appeal

10    On 5 January 2018 the appellant filed a Notice of Appeal from the FCC in this Court. The grounds of appeal set out in the appeal are uninformative as the notice alleges only that the decisions of the Tribunal and the primary judge were “affected by error of law”.

11    The notice states that further grounds would be provided once the appellant had a copy of the FCC decision and had obtained legal representation, but the appellant did not provide further grounds at any point. Nor did the appellant comply with directions made by a Registrar of the Court on 22 January 2018 which required him to file a written outline of submissions prior to the appeal hearing. Had he had done so, that might have provided appropriate specificity as to the nature of the alleged jurisdictional error by the Tribunal, and as to the alleged error by the primary judge.

12    The appeal had a long history of adjournments, most at the appellant’s request or as a result of his inaction. In summary:

(a)    The first proposed listing: on 11 April 2018 the Court notified the parties that the appeal was listed for hearing before Logan J on 11 May 2018. On the same day the appellant wrote to the Court advising that he was unrepresented and seeking that his appeal be stayed pending the special leave application to the High Court in proceeding Minister for Immigration and Border Protection v SZMTA. Special leave was granted. On 24 April 2018 the Minister consented to the adjournment. On 13 February 2019 the High Court handed down its decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421;

(b)    The second proposed listing: on 14 February 2020 the Court notified the parties that the appeal was listed before me on 31 March 2020. Because of an outbreak of COVID-19 that hearing was adjourned on the Court’s own motion;

(c)    The third proposed listing: on 22 June 2021 the Court’s National Operations Registrar team (NOR) sought the parties’ availability for a hearing between 19 July and 31 August 2021. On 25 June 2021 the appellant sent an email to the NOR advising that he had appointment with a lawyer and would revert shortly. The appellant did not revert to NOR and the appeal was not listed for hearing;

(d)    The fourth proposed listing: on 17 January 2023 my chambers sent an email to the parties seeking their availability for a hearing in late February 2023. On 25 January 2023 the appellant responded by email advising that he had an appointment with his lawyer and would revert shortly. On 30 January 2023, my chambers sent a follow-up email to the appellant. On 3 February 2023 the appellant responded advising that he was still waiting for his lawyer. The delay in the appellant’s response to that proposed listing meant that the hearing did not proceed in that period; and

(e)    The fifth listing: on 21 March 2023 my chambers sent an email to the party seeking their availability for a hearing in June 2023. On 6 April 2023 the Minister forwarded to my chambers an email sent by the appellant in which he said that he was available to attend a hearing on either 27 or 28 June 2023. On the same day my chambers listed the matter for hearing on 28 June 2023 and so advised the parties.

The request for an adjournment

13    On 20 June 2023 my chambers wrote to the parties to confirm the upcoming hearing date.

14    On 21 June 2023 the appellant telephoned my chambers to request an adjournment on the basis that he did not have a lawyer. He had not sought or obtained the Minister’s consent to an adjournment. My chambers informed the appellant that the appeal was listed to proceed on 28 June 2023, but that he could appear on that date and make an oral request for an adjournment.

15    On 26 June 2023 the appellant sent an email to my chambers reiterating his request for an adjournment on the basis that he was experiencing financial hardship and could not afford a lawyer at that time. My chambers responded by email on the same day, again advising the appellant that the appeal was listed to proceed as on 28 June 2023, but that he could appear on that date and make an oral request for an adjournment.

The appellant’s non-appearance

16    When the appeal was called on for hearing at 10:15 am on 28 June 2023 there was no appearance by the appellant. I stood the hearing down for a short period in case the appellant was merely running late. While the matter was stood down, my associate endeavoured to contact the appellant by telephone, but could not reach him.

17    When the hearing was subsequently called again there was still no appearance by the appellant. Because of the appellant’s non-attendance at the hearing, I made orders that day to dismiss the appeal.

The application for reinstatement

18    On 20 July 2023 the appellant filed an interlocutory application seeking reinstatement of the appeal. In an affidavit in support of the application affirmed on 20 July 2023 the appellant stated his occupation as “Uber driver” and deposed as follows:

3.    I was not afforded procedural fairness in that I was not given time to arrange legal representation for the hearing.

4.    The appeal was decided against principles of natural justice.

5.    In relation to lodging an appeal to the Federal Court, I contacted Victoria Legal Aid and Asylum Seeker Resource Centre in Footscray to seek assistance. They could not help me because of their work backlog.

6.    When I got the final hearing date of my appeal at the Federal Court, I contacted some lawyers and started saving money to engage a lawyer to represent me at the court hearing. I could not save or manage to get enough funds to engage a lawyer and hence requested the court adjourn the hearing to give me some more time to arrange funds to engage a lawyer. This request was refused which caused me a lot of distress. I wanted to present my case to the court but did not get the chance to do so.

7.    The appeal should not be allowed in the public interest and for administration of justice.

19    The reinstatement application was listed for a case management hearing (CMH) on 14 August 2023. On 10 August 2023 the appellant emailed my chambers and advised that, because his visa was expiring, he had departed Australia on 26 July 2023 and now could not re-enter Australia in order to attend the CMH. My chambers therefore made arrangements for the CMH to be conducted by video link.

20    The appellant appeared at the CMH on 14 August 2023 by video link and was assisted by an Urdu interpreter. He said that he was at that time in the United Arab Emirates. In the CMH, I listed the reinstatement application for hearing on 6 October 2023 and, in an effort to assist the appellant who was not legally represented, explained to him that there were several matters which he should address in further affidavit material.

21    I noted, first, that he had said in February 2023 that he had an appointment with his lawyer and would revert shortly. I sought more details in relation to that, including which lawyer or legal firm he had been in contact with, and how much progress he had made in engaging a lawyer.

22    Second, as he had deposed that “he could not save or manage to get enough funds to engage a lawyer and hence requested the court to adjourn the hearing to give me some more time to arrange funds to engage a lawyer” I sought evidence of his financial circumstances beyond that mere assertion.

23    I noted that the appellant had earlier lodged an Application for Exemption from Paying Court Fees or Reduction – Financial Hardship (Financial Hardship Application) in which he swore that he disclosed all relevant financial information and that he earned $620 per fortnight, received a further $200 in cash from a friend, and that he had fortnightly outgoings of $670 including rent of $300. He deposed to having only $94.80 in a Bendigo Bank account.

24    The appellant attached to the Financial Hardship Application the transaction history for the Bendigo Bank account for the period 18 April to 22 June 2023. That transaction history did not show any deposits, regular or otherwise, from his employment nor any regular withdrawal of amounts for outgoings such as rent. It only recorded his making some minor miscellaneous purchases at various 7-Eleven stores, which did not total more than $30 over the four-month period from 18 April to 22 June 2023. I considered it likely that the account was not his primary bank account. In the CMH I asked the appellant about that. He said in response that he had another account with Westpac Bank, which was where he banked his earnings and from where he paid his rent.

25    I suggested to the appellant that he should provide a transaction history from his Westpac Bank account for, say, six months. I thought would put me in a better position to be able to decide whether or not the appellant could, in fact, “save or manage to get enough funds to engage a lawyer”.

26    Third, I noted that in his supporting affidavit the appellant did not say why he did not attend the hearing on 28 June 2023, when he had been expressly told that he could request an adjournment at the hearing. I told the appellant that he should explain why he did not attend the hearing, even if only to seek an adjournment.

27    I made orders for the appellant to file and serve any further affidavit material by 4 September 2023.

28    The appellant did not file any further affidavit material. He did, however, attempt to electronically file an unsworn affidavit dated 28 September 2023. Registry did not permit the affidavit to be filed as it was unsworn. The appellant telephoned my chambers in that regard and my chambers informed him that he should make arrangements to have the affidavit sworn or affirmed in the country he was in.

29    In the unsworn affidavit the appellant said:

4.    I spoke to a few lawyers in relation to my case. One law firm was Clothier Anderson Lawyers who I contacted in early February 2023. They sent me an email on 2 February 2023 asking for a deposit of $4,400 of their fees by 7 February 2023. Copy of this email is attached to this Affidavit as Annexure “MAB2”. I could not afford this amount at that time and started saving money to engage a lawyer to represent me at the court hearing. Unfortunately, I could not save enough money by the hearing date and hence requested the court to adjourn the hearing to give me some more time to arrange funds to engage a lawyer. This request was refused which caused me a lot of distress. I wanted to present my case to the court but did not get a chance to do so.

5.    I had also contacted Victoria Legal Aid and Asylum Seeker Resource Centre in Footscray to seek assistance. They could not help me because of their work backlog.

30    I heard the reinstatement application on 6 October 2023. The appellant appeared by video link, assisted by an Urdu interpreter.

Consideration

31    The principles in relation to an application for reinstatement of a proceeding where dismissal has resulted from an appellant’s non-appearance are established. Where reinstatement is sought, the Court has a discretion to reinstate a proceeding by reference to the following three factors:

(a)    whether there is a reasonable excuse for the party’s absence;

(b)    the existence and nature of any prejudice which might flow to the other party from a reinstatement and if so, the extent to which that prejudice can be counteracted or assuaged by a costs order, an adjournment or other relief; and

(c)    whether the applicant for reinstatement has a reasonably arguable prospect of success on the substantive application.

(See: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (Ryan J); BKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 742 (Banks-Smith J))

Whether the appellant has a reasonable excuse for non-attendance

32    In his affidavit in support of the application the appellant stated that his excuse for not attending at the hearing was that “he could not save or manage to get enough funds to engage a lawyer and hence requested the court to adjourn the hearing to give me some more time to arrange funds to engage a lawyer”. In the hearing I asked the appellant whether he had a reasonable excuse for his failure to attend the hearing. In response he reiterated that he was not able to find a lawyer that could represent him.

33    I do not accept that is a reasonable excuse for his non-attendance.

34    I have no difficulty in accepting that it would be very difficult for the appellant to represent himself in the appeal without a lawyer. Many lawyers have difficulty in understanding the concept of jurisdictional error, and a person of the appellant’s background, education, and experience could not be expected to understand it. But it cannot be said that the appellant had a common law “entitlement” or absolute right to legal representation: see SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 (Katzmann J); ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [25] (Flick J).

35    I accept the appellant’s statement in his unsworn affidavit that he approached a firm of solicitors in February 2023 seeking to retain the firm to represent him in the appeal. The documents annexed to the unsworn affidavit show that firm requested that he pay an “upfront” amount of $4,400 for the law firm’s services in the appeal.

36    In appropriate circumstances I would have had no difficulty in allowing the appellant an appropriate amount of time to arrange his affairs so that he could afford legal representation, or to obtain pro bono representation. But here the appeal had been on foot for five and a half years, the Court had been endeavouring to fix the appeal for hearing for several years and getting nowhere, and the appellant had been saying since June 2021 that he was arranging a lawyer to represent him.

37    As at the hearing on 28 June 2023 the appellant still had not arranged a lawyer, and despite my expressly telling him that he should put on better evidence as to his claimed financial position, in particular a transaction history from his Westpac Bank account, he did not do so. I note that the appellant had been living in Australia since 2013, and it is likely that he has been working for most of that time, most recently as an Uber driver.

38    At the hearing, the appellant said that he was not able to provide the Court with a transaction history for his Westpac account because he did not have online access as his account had been closed. He said that he was instructed by Westpac to attend a branch to obtain a printout, but he could not do so because he is overseas. I doubt that he could not obtain a transaction history, but little turns on my doubt in that regard. The appellant had the onus to establish a reasonable excuse for his non-attendance. He relied upon an alleged inability to afford a lawyer, yet did not establish by probative evidence that he was unable to save money or get funds so as to engage a lawyer.

39    Another difficulty for the appellant in establishing a reasonable excuse for his non-attendance is that, when he approached my chambers to request an adjournment, he had not sought or obtained the Minister’s consent for that to occur. An adjournment could not be granted without hearing from the Minister, and given the lateness of the request the most efficient and cost-effective way for that to occur was for any adjournment application to be made on the hearing date. The appellant was informed on two occasions that he could make an application for adjournment on the hearing date. Rather than taking up that opportunity the appellant simply decided not to attend the hearing.

40    In the reinstatement application the appellant did not dispute that he had been informed that he could request an adjournment at the hearing. All that he said in that regard was that he could not afford a lawyer and that when his request for an adjournment was refused he had become depressed and did not go to Court. The appellant did not adduce medical evidence that he suffered from depression.

Prejudice to the Minister

41    The Minister accepts that he will suffer no prejudice if the Court were to reinstate the appeal, that is, beyond the cost of responding to an unmeritorious appeal and the public interest in the finality of decision-making. This factor is neutral in the application.

The merits of the appeal

42    The appeal arises from the Tribunal’s decision to affirm the delegate’s decision not to grant the appellant a protection visa. That decision was founded in the Tribunal's conclusion (at [35]) that the appellant was not a credible witness and that he had fabricated key elements of his claims. The Tribunal found a number of inconsistencies in his evidence and said that he was evasive in the hearing and gave “misleading and untrue evidence”. It did not accept this claims that he would face persecution for a Convention reason in Pakistan.

43    In another part of its decision the Tribunal considered the application of a certificate under s 438 of the Act (the s 438 certificate) which purported to limit the Tribunal’s use and disclosure of certain information in documents provided to it by the Department of Immigration and Border Protection on the basis that disclosure of that information would be contrary to the public interest. The material that was the subject of the s 438 certificate were administrative forms providing information that had been obtained from migration authorities in the UK which confirmed the appellant’s identity and that he held a visa from the UK which was valid until 16 May 2018 and he had travelled to the UK in the past.

44    The Tribunal decided (at [27]) that the s 438 certificate was invalid because the applicant and his advisers were well aware that Australia may share migration information with the UK, and because the material in question was marked to indicate that it could be disclosed to the appellant as part of dealing with his visa application.

45    Having found that the s 438 certificate was invalid, the Tribunal considered (at [28]) whether the information covered by the certificate should be put to the appellant for comment. On the basis that the appellant had told the Department that he had held visas for travel to the UK, and that he had travelled there in the past, the Tribunal found that the information did not go to an issue in contention between the parties. Also, on the basis of the appellant’s passports, the Tribunal accepted (at [26]), that his identity is as he claimed it to be. Thus, his identity was not an issue before the Tribunal. The Tribunal decided that the information covered by the certificate was not information that would be a reason or part of the reason for affirming the delegate’s decision and decided that it was unnecessary to put the information to the appellant.

46    The question for this Court is whether the FCC made an appealable error by failing to find that the Tribunal had fallen into jurisdictional error.

47    In his amended application for judicial review to the FCC the appellant alleged two related grounds, both to the effect that the Tribunal had not accorded procedural fairness to him by failing to disclose or put to him the s 438 certificate and the information that it covered. He did not allege any other grounds.

48    In advancing those two grounds before the FCC, the appellant relied on the decisions of White J, at first instance, in SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 at [58]-[60] and of the Full Court in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; 227 FCR 525 (Allsop CJ, Murphy and Pagone JJ). The primary judge considered those decisions (at [15]-[18]) and considered them to be distinguishable based on their different facts (correctly in my view).

49    The primary judge held (at [19]) that the information covered by the purported s 438 certificate went to nothing more than facts that were accepted by the Tribunal and were not in contention. His Honour concluded (at [21]) that in the circumstances of the appellant’s case the Tribunal’s decision not to disclose the s 438 certificate and the information it covered to the applicant did not give rise to a realistic possibility of a different outcome in his visa application, and he therefore held that any error by the Tribunal in relation to the purported certificate did not rise to the level of jurisdictional error.

50    On 13 February 2019, after the primary judge’s decision, the High Court delivered judgment in SZMTA. The plurality that errors concerning non-disclosure of material covered by a certificate under s 438 will only amount to jurisdictional error where, as a consequence of the error, the visa applicant has been deprived of a realistic possibility of a successful outcome in the application. That is so whether the error complained of concerns the validity of the certificate or whether it concerns a denial of procedural fairness. Their Honours said that visa applicant bears the onus of proof in that regard: see SZMTA at [4] [45]-[46], [48]-[49] (Bell, Gageler and Keane JJ).

51    I can see nothing in the material covered by the s 438 certificate which the appellant could use to show that disclosure of the material to him could realistically have resulted in a different outcome. As he said in the hearing, the appellant had always said that he held a UK visa and had previously travelled there, and his identity was not in issue before the Tribunal. Further, the fact that the appellant had previously held a UK visa and had travelled there formed no part of the reasons for the Tribunal’s decision not to grant him a protection visa. The Tribunal’s decision not to grant him a protection visa had nothing to do with questions as to his identity and whether or not he had held a UK visa and/or had previously travelled there. If those matters had been put to him by the Tribunal, and he had responded truthfully, there is no realistic possibility that might have given rise to a successful outcome in his visa application. I can see no error in the primary judge’s approach to the issue.

52    In my view the proposed appeal is not reasonably arguable.

conclusion

53    Having regard to the lack of a reasonable excuse for the appellant’s non-attendance at the hearing, and my view that his appeal is not reasonably arguable, it is appropriate to refuse the reinstatement application and to order the appellant to pay the Minister’s costs.

Associate:    

Dated:        12 October 2023