Federal Court of Australia

EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1414

ORDERS

THE COURT ORDERS THAT:

1.    The 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

CHEESEMAN J

Introduction

1    The applicant, a citizen of India, seeks leave to appeal from the summary dismissal of his application for judicial review by the Federal Circuit and Family Court of Australia (Circuit Court): EKW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 864 (PJ). The application for judicial review was in respect of a decision of the second respondent, the Administrative Appeals Tribunal to affirm the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, in which the delegate refused the applicant a protection visa.

2    In the period between the Tribunal’s decision and the commencement of the proceeding in the Circuit Court, the applicant left Australia. The Minister applied for summary dismissal of the Circuit Court proceeding pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCoA Rules). The primary judge summarily dismissed the application for judicial review principally on the basis of futility, it being a condition for the grant of a protection visa that the applicant be in Australia. In the present case, the applicant was offshore with no right of return to Australia. In these circumstances, even assuming for the sake of argument that there were grounds to remit, the necessary outcome would be that the applicant would be refused a protection visa because he is outside Australia and has no right of return.

3    The applicant requires leave to appeal because the summary dismissal is an interlocutory decision: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal was filed within the 14-day period prescribed by r 35.13 of the Federal Court Rules 2011 (Cth).

4    This application is infected with the same fatal futility as led to the application below being summarily dismissed. The applicant having left Australia is unable to satisfy an essential criterion for the grant of a protection visa. To grant leave to appeal would be a barren exercise. For the reasons which follow, the application for leave to appeal must be dismissed.

Background

5    The applicant arrived in Australia on 2 February 2016 on a student visa. On 30 January 2018 he applied for a protection visa (subclass 866). The delegate refused that application on 13 September 2019. On 17 September 2019, the applicant applied to the Tribunal for a review of the delegate’s decision, and the Tribunal affirmed that decision on 21 October 2021.

6    On 5 November 2021 the applicant departed Australia. His bridging visa expired on that day. He has no present right to return to Australia.

7    On 25 November 2021 the applicant filed an application for judicial review of the Tribunal’s decision in the Circuit Court. The Minister filed an application for summary dismissal on 1 April 2022, which was heard on 17 October 2022. The application was summarily dismissed following that hearing.

8    On the hearing of this application, the applicant appeared in person via audio visual link. He made oral submissions with the assistance of an interpreter and his submissions were transmitted clearly to the Courtroom and interpreted by the interpreter, who was present in the Courtroom. In the course of his submissions, he confirmed that he was still outside Australia and although he had tried to return to Australia, he has not been able to do so. The applicant appeared to be using a mobile phone to connect to the hearing. Although occasionally the visual feed was interrupted, the audio feed was not.

Leave to appeal and draft notice of appeal

9    The applicant filed the present application for leave to appeal on 2 November 2022.

10    The following grounds of appeal are incorporated into the application for leave to appeal:

(1)    Not adopting a fair process in making the decision.

(2)    Identifying a wrong issue.

(3)    Ignoring materials they were required to look at.

(4)    Relying on materials they should not have looked at.

(5)    Incorrectly interpreting or applying the law.

(6)    Reaching a decision that is unreasonable in the legal sense.

(7)    Making a decision for which there was no evidence or that was not reasonably open on the materials.

11    None of these grounds were relied on in the judicial review application before the Tribunal. In order to rely on these grounds, if leave to appeal is granted, the applicant will require leave to raise these new grounds.

Leave to Appeal

12    The principles which apply to an application for leave to appeal from an interlocutory decision are well established. The Full Court of this Court summarised these principles in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5] (Perram, Moshinsky and Hespe JJ) as follows:

…In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [10] per Heerey, Moore and Tracey JJ. See also ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at [7]-[9] per Flick J.

13    The onus is on the party seeking leave to appeal to prove that (a) there is sufficient doubt, and (b) there would be substantial injustice if the application is refused: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7] to [8] (Flick J).

Primary Judge’s Decision

14    Before the primary judge the applicant relied on the following grounds of review (as written):

Formal Review of the Application.

As stated in first submission’s.

(OR) Taking the other action that subject of the proceeding.

15    On 1 April 2022, the Minister filed an affidavit containing records which indicated that the applicant was offshore at the time, the applicant had departed Australia on 5 November 2021, the applicant’s bridging visa had expired on 5 November 2021, and that the applicant possessed no other visa giving him a right to return to Australia. The Minister brought a summary dismissal application pursuant to r 13.13 of the FCFCoA Rules, which was heard on 17 October 2022. The applicant appeared in person by video at that hearing.

16    The relevant power to summarily dismiss proceedings is in s 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCoA Act) which provides:

(2)    The Federal Circuit and Family Court of Australia (Division 2) may give judgment for one party against another in relation to the whole or part of a proceedings if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

17    Section 143(3) provides:

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

18    In considering the application for summary dismissal, the primary judge found:

13    The application did not identify any recognisable ground of judicial review that might enjoy reasonable prospects of success. Nor is the availability of any such ground(s) apparent on the face of the materials before the Court.

14    I accept that if further opportunity were given, and the matter proceeded to a full and final hearing, then there is some possibility that further ground(s) of review may be identified.

15    However, the Minister contends that this course would be futile in circumstances where the applicant is offshore with no right of return to Australia… I accept this submission.

19    The primary judge dismissed the application for judicial review. The primary judge did so on the basis that the application did not identify any ground of judicial review that might enjoy reasonable prospects of success. The power to summarily dismiss the application under s 143(2) of the FCFCoA Act was therefore engaged. The primary judge acknowledged fairly that if given time there was some possibility that a further review ground may be identified. However, having regard to the essential futility of the protection visa application once the applicant had left Australia with no right of return, there was no point in exercising the Court’s discretion to afford the applicant a further opportunity to recast the judicial review application. Accordingly, the application was summarily dismissed.

Consideration

20    As mentioned, the applicant is a litigant in person. I am conscious of the difficulties experienced by litigants in person, particularly in a case such as this where the result of the proceeding will have a serious effect on his future. I have accounted for this when considering the oral submissions he made at the hearing. He did not file written submissions. The applicant’s submissions, understandably for a lay person, were focussed on issues going to merits review which were not relevant to the application before the primary judge. Otherwise, the applicant’s submissions were focussed on what he perceived to be unfairness in the legal process generally.

21    In relation to the seven proposed grounds of appeal identified as part of the application for leave to appeal, which were not advanced in the court below, and for which leave would be required, the Minister submitted that leave should not be granted on the basis that the proposed grounds of appeal do not have merit and are not supported by any evidence that would enable the Court to consider them. I accept the Minister’s submissions in this regard, notwithstanding the applicant’s attempt to argue to the contrary.

22    Turning to the two broad questions that fall to be considered in relation to the grant of leave to appeal, the essential futility of the applicant’s position now that he is outside Australia, dictates that both questions must be answered in the negative. I am not satisfied that the primary judge’s decision is attended by sufficient doubt. To the contrary, I regard it to be plainly correct. The review grounds as then framed had no reasonable prospect of success. There was no utility in affording the applicant an opportunity to amend because his visa application was inutile or barren in any event. In this regard, see CFS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 831 at [10] (Lee J) and CVC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 556 at [25] to [27] (Yates J). Both those decisions were made in the context of applications for an extension of time to appeal, but the analysis as to the lack of utility in the context of an application for a protection visa being pursued by a person outside Australia, with no right to return, applies with equal measure to the present application.

23    In addition, I am not satisfied there would be substantial injustice if the application for leave was refused in the circumstances where the applicant is unable to satisfy an essential criterion for the grant of a protection visa, given he is outside Australia and has no right of return to Australia. A criterion for a protection visa is that the applicant must be in Australia: cl 866.411 of Schedule 2 to the Migration Regulations 1994 (Cth). The effect of this criterion is that a protection visa cannot be granted to the applicant while he remains offshore. As the applicant is currently offshore and has no right of return to Australia, he cannot satisfy the criteria in cl 866.411 to be granted a Protection Visa. In these circumstances, even if leave to appeal is granted and the appeal is successful, the Tribunal would have no other option but to reach the same decision as the decision of the delegate given that the applicant can no longer satisfy an essential criterion of the protection visa. Accordingly, the proposed appeal, to borrow from Yates J, is barren. For this reason, I am not satisfied that any substantial injustice will arise by refusing the application for leave to appeal.

Conclusion

24    For these reasons, the application must be dismissed.

25    The applicant must pay the Minister’s costs.

Associate:

Dated:    17 November 2023