AAV15 v Minister for Immigration and Border Protection

Solicitor for the First and Second Respondents: Sparke Helmore Lawyers

Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 477 of 2015

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE OF ORDER: 10 JULY 2015 WHERE MADE: SYDNEY

1. The decision of the Federal Circuit Court of Australia in AAV15 v Minister for Immigration & Anor [2015] FCCA 637 is quashed.
2. The proceeding is remitted to the Federal Circuit Court of Australia differently constituted to be heard according to law.
3. The First Respondent is to pay 75% of the costs of the Applicant either as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 477 of 2015

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 10 JULY 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding is a citizen of Sri Lanka. He arrived in Australia in July 2012 as an Unlawful Maritime Arrival. 2 In December 2012 he applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. A delegate of the Minister refused that application in August 2013. The Applicant sought review in the Refugee Review Tribunal. That Tribunal affirmed the delegate's decision in a decision dated 2 January 2015. 3 On 25 February 2015 the Applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia (the "Federal Circuit Court"). The jurisdiction which was invoked was that conferred by s 476 of the Migration Act 1958 (Cth) (the "Migration Act"). An extension of time in which to commence the proceeding was required because it had not been commenced within the 35 day period required by s 477 of the Migration Act. 4 The matter first came before a Judge of that Court on 19 March 2015. That was the date set forth in the Application as the "First court date". Both the Applicant and the Respondent were represented. But the Applicant was not then in Court. There was, nevertheless, an affidavit affirmed by the Applicant explaining his delay in commencing the proceeding. The explanation provided was that he was unaware of the decision of the Tribunal until 19 February and that thereafter he acted "without any further delay". There is a transcript available of the hearing on that day. 5 On the "First court date" the Federal Circuit Court Judge summarily dismissed the proceeding: AAV15 v Minister for Immigration and Anor [2015] FCCA 637. An extension of time pursuant to s 477(2) was refused. No advance notice was given by the Federal Circuit Court Judge of the prospect that the proceeding could summarily be dismissed. Nor was that a course urged upon the Court by the solicitor then appearing for the Minister. The reasons for decision record the conclusion that the proceeding had no reasonable prospects of success. 6 The Applicant now seeks to challenge that decision of the Federal Circuit Court. An appeal to this Court from a decision refusing an extension of time pursuant to s 477(2) is not available: s 476A(3)(a). But an application to this Court in its original jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act") remains available. It is that jurisdiction which is now invoked. 7 Shortly before the hearing, those appearing for the Respondent Minister wrote to the solicitors for the Applicant indicating that the Minister would "concede the proceedings". Notwithstanding that concession, the hearing nevertheless proceeded - largely, it should be noted, as a result of the Court's concern regarding whether to give reasons for making orders otherwise the subject of consent and its concern over some of the arguments canvassed in the parties' written submissions. 8 It is concluded that effect should be given to the concession of the Respondent Minister. That concession, it should be noted, was properly made. The decision of the Federal Circuit Court Judge should be quashed and the matter remitted to that Court for consideration according to law. Given the issues canvassed in submissions, including the orders now to be made, the evident need for an order setting aside the decision of the Federal Circuit Court Judge warrants providing short reasons for doing so.

The powers to extend time & summarily to dismiss 9 Section 477 of the Migration Act prescribes the period within which a proceeding is to be instituted and confers the discretion to extend that period. The section relevantly provides as follows: Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 10 The discretionary power summarily to dismiss a proceeding pending before the Federal Circuit Court is conferred by s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the "Federal Circuit Court Act"). That section provides as follows: Summary judgment (1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding 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. (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. (4) This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section. That power is supplemented by r 13.10 of the Federal Circuit Court Rules 2001 (Cth) (the "Federal Circuit Court Rules") which provides as follows: Disposal by summary dismissal The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court. 11 A similar power is conferred upon this Court by s 31A of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act"). That power is also supplemented by r 16.21 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules"). Rule 16.21 is expressed in different terms to those employed in r 13.10. But nothing presently turns on any difference in language. 12 Notwithstanding the fact that the language now employed in both s 17A of the Federal Circuit Court Act and s 31A of the Federal Court Act is to "soften the test for a successful application for summary judgment" (Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [25], (2009) 178 FCR 401 at 408 per Spender, Graham and Gilmour JJ), when exercising the discretion the Court "must be cautious not to do an injustice … " (Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) [2006] FCA 1416 at [30] per Jacobson J). Any "exercise of powers to summarily terminate proceedings must always be attended with caution": Spencer v Commonwealth of Australia [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 per French CJ and Gummow J.

The grounds relied upon 13 The Applicant in the present proceeding raised a number of challenges to the orders made by the Federal Circuit Court Judge which dismissed the proceeding before that Court. As initially expressed, those grounds included: the contention that the power conferred by s 17A of the Federal Circuit Court Act as supplemented by r 13.10 of the Federal Circuit Court Rules summarily to dismiss a proceeding was not available to be exercised in advance of any extension of time being granted in which to bring the proceeding - until time had been extended, so it was contended, there was no proceeding able to be dismissed; and the contention that such consideration as was given by the Federal Circuit Court Judge to s 91R of the Migration Act exposed an error of law. It was also contended that the Federal Circuit Court Judge: failed adequately to explain his reasons for decision. Shortly before the hearing, Counsel for the Applicant sought to re-cast the arguments previously expressed. 14 It is, however, unnecessary to canvass any of these contentions - either as originally expressed or as sought to be re-cast - in any degree of detail. 15 It is unnecessary to do so because it has been concluded that: the manner in which the application for an extension of time was resolved remains unexplained - if reasons have been given by the Federal Circuit Court Judge for his refusal to extend time, and on one view of the reasons there may have been some explanation provided, there certainly has been a failure to address separately the manner in which the discretion to extend time was to be exercised and thereafter the separate discretion as to whether the proceeding summarily should be dismissed. Irrespective, however, of the manner in which the Federal Circuit Court Judge addressed and resolved the two separate exercises of discretion, the decision of that Court should be set aside because: it denied the Applicant procedural fairness.

The manner of exercise of the discretions 16 The discretion to grant or refuse an extension of time and the discretion summarily to dismiss a proceeding are unquestionably valuable discretionary powers. Both are discretionary powers which assist both the parties to litigation and the public more generally in the timely resolution of litigation in a just and equitable manner. It is in the interests of neither an applicant nor of the public for litigation to proceed to a potentially lengthy and complicated hearing where a proceeding has not been commenced within such time as may be prescribed and where there are no good reasons to extend time. And, even where a proceeding has been commenced within time, it is again in the interests of neither the applicant nor the public for the Court to entertain a proceeding which has no realistic prospects of success. 17 In the present proceeding, it is difficult to discern the basis upon which the Judge below proceeded. 18 The Judge referred to the need for an extension of time to be granted at the outset of his reasons for decision ([2015] FCCA 637 at [1]) and in the penultimate paragraph of those reasons ([2015] FCCA 637 at [22]). In that penultimate paragraph it was simply observed that the "the applicant needs an extension of time in circumstances where the grounds are doomed to failure". It was there further concluded that there "is clearly no substance in the application for an extension of time under s 477". Why that was so remains uncertain. It is uncertain whether there was "no substance" in the application for an extension of time because of the view previously expressed that "the grounds are doomed to failure" or whether there was "no substance" in the explanation provided as to the time at which the Applicant became aware of the Tribunal's decision and the steps he subsequently took "without any further delay". 19 On one reading of the Judge's reasons for decision, it would be open to conclude that - whatever may have been the reasons which the Applicant advanced for his failure to commence the proceeding within time - such reasons provided no adequate answer to the Judge's assessment of the prospects of success even if an extension of time were granted. But the difficulty is simply that such reasons as are provided by the Federal Circuit Court Judge fail to engage with the explanation provided by the Applicant for his apparent delay. No consideration was given to whether an extension of time should be granted and thereafter consideration given to whether the proceeding should summarily be dismissed. 20 In considering the manner in which the Federal Circuit Court Judge approached the proceeding in that Court, it must necessarily be recognised that a decision to grant or refuse an extension of time may well look to the proceeding's prospects of success. Much will depend upon the circumstances of each particular case. In some cases it may be sufficient simply to dismiss an application to extend time. Such may be the case where there has been considerable delay in commencing a proceeding, no satisfactory explanation for the delay, and prejudice to a respondent. In other cases, it may be an appropriate exercise of discretion to grant an extension of time even if the proceeding is ultimately dismissed. The more favourable an initial assessment may be that a proceeding has at least some prospects of success or arguable prospects of success, the greater the prospect may be that an extension of time will be granted. Even where a proceeding initially does not appear to have even arguable prospects of success, however, an extension of time may nevertheless be granted. 21 Notwithstanding the fact that a proceeding's prospects of success may be relevant both to the exercise of the discretion to extend time and the discretion summarily to dismiss a proceeding, the two discretions nevertheless serve different purposes and are informed by different considerations. 22 Where consideration is being given to competing applications - one being an application for an extension of time and the other an application to summarily dismiss a proceeding - it remains important for the basis upon which a Court has proceeded to be clearly articulated and thereby exposed to scrutiny. A Court may proceed, at least initially, with the application for an extension of time and thereafter with the application summarily to dismiss the proceeding. Although the considerations relevant to the exercise of the two discretions may overlap, an applicant for an extension of time is entitled to know whether he has lost because he did not commence his proceeding within time or lost because his case was hopeless - or because of both of those reasons. If that is not done, there is a risk that one or other of the exercises of discretion may mis-carry. And if reasons given do not adequately explain how a Court has approached its task, the prospect of meaningful review is correspondingly prejudiced. It is fundamentally important to those seeking refugee status in this country that their applications are heard and determined according to law. All litigation, it may be assumed, is important to the parties; in the present statutory context it must further be recognised that those who seek refugee status may be "engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth of Australia [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. 23 Separate from any criticism of the reasons provided by the Federal Circuit Court Judge is an alternative argument advanced on behalf of the Applicant. This argument is that an order may only be made summarily dismissing a proceeding where there is a proceeding able to be dismissed. If an order refusing an extension of time has been made, there is no need for an order also to be made for summary dismissal: BZABK v Minister for Immigration and Citizenship [2012] FCA 774, (2012) 205 FCR 83. Foster J relevantly observed: [43] In my view, once the extension of time application was refused, there was nothing left before the federal magistrate which could have been the subject of an order. In my view, the federal magistrate probably had no jurisdiction to make the second order. Alternatively, he may have had the power to dismiss the judicial review application for want of jurisdiction. The preferable course, however, would have been for the federal magistrate to have made an order dismissing the applicant's application for an extension of time and an order for costs and left the matter there. There was no need to make an order dismissing the applicant's application for judicial review. No attention was given by the Federal Circuit Court Judge in his reasons for decision to whether an order dismissing the proceeding was appropriate given the refusal to grant an extension of time. It would appear that the Judge did so because it was "prudent to do so". 24 It is, however, unnecessary to pursue this argument further. It is equally unnecessary to explore the submissions advanced on behalf of the Respondent Minister that any excess of power in summarily dismissing a proceeding in which no extension of time had been granted would not constitute a jurisdictional error.

A denial of procedural fairness 25 But all such concerns may be left to one side. 26 The basis upon which it has been concluded that the decision of the Federal Circuit Court Judge should be set aside is the denial of procedural fairness that occurred on 19 March 2015. 27 Courts have long recognised "that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done": R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ. This is an observation which has received the endorsement of the High Court (e.g., Webb v The Queen (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 at [35], (2011) 242 CLR 283 at 301 per French CJ) and by other Australian Courts (e.g., R v Piccin [2001] NSWCCA 35 at [88] per James J (Giles and Hulme JJ agreeing); Chotiputhsilpa v Waterhouse [2005] NSWCA 295 at [81] per Beazley JA (Giles and Ipp JJA agreeing)), including this Court (e.g., Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 at 66 per Gummow and Heerey JJ; North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1728 at [364], (2001) 192 ALR 625 at 682 per Weinberg J). 28 It is "axiomatic" that the Federal Circuit Court Judge was obliged to accord procedural fairness to the Applicant when exercising the power summarily to dismiss: Shrestha v Migration Review Tribunal [2015] FCAFC 87 at [37] per Mansfield, Tracey and Mortimer JJ. 29 In the circumstances of the present case, it is regretfully concluded that the manner in which the Federal Circuit Court Judge proceeded was procedurally unfair. Justice has not been seen to be done. 30 The orders of the primary Judge were made on the first occasion upon which the proceeding came before the Federal Circuit Court. There may be occasions when an order refusing an extension of time and even an order summarily dismissing a proceeding may be made on the first return date. But the fact that such orders were made on this occasion is serious reason to pause. 31 Most recently, in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, Mansfield, Tracey and Mortimer JJ referred to the statement appearing on the face of the relevant Court form that the "Court may hear and determine all interlocutory or final issues" and continued: [49] … this statement is simply a summary of the powers available to the Court. Its inclusion on the form does not relieve individual judges of their obligations to exercise those powers reasonably, and in accordance with the requirements of procedural fairness. The powers to which the statement refers are all statutory powers. They are conditioned with the requirement that they be exercised reasonably … and in accordance with principles of procedural fairness … … [51] … The statement on the form provides no immunity from the obligation on a judge to exercise her or his judicial powers reasonably and in a procedurally fair way. Legal representatives who are familiar with court processes, and commence to follow them in a regular way rightly will not expect that a judge would, without notice and of her or his own motion, deprive parties to a proceeding of any further time to regularise, refine and complete the case and contentions they wish to advance and instead summarily determine a claim at the first court date. … [56] Although one must take care to allow for exceptional or unusual circumstances where the power in r 44.11(a) of the Rules may appropriately be exercised, it is difficult to conceive of circumstances where a court would be justified in summarily dismissing a judicial review proceeding at a first court date, of its own motion and without prior notice, where both parties have appeared. [57] At the very least, notice in advance of some kind should be given … Notice is fundamental to a fair process in a court: in an adversarial system, it allows parties time to prepare, to meet what is to be put against them, to understand and consider the significance of what is proposed to occur, and to be in a position to present evidence and argument if they so wish. In a practical sense, it is the giving of reasonable notice which facilitates and protects the exercise of these entitlements by a litigant. The facts in SZWBH were different to those now before the Court. The applicant in that case was unrepresented and was asked to identify the "jurisdictional error" upon which he relied. Not surprisingly, he was unable to provide assistance to the Court: [2015] FCAFC 88 at [6]. Moreover, the application book had not been prepared. The respondent Minister had indicated a willingness to prepare the application book - but the primary Judge nevertheless proceeded to dismiss the application without awaiting the collection of that material which may well have been of assistance in determining the existence of jurisdictional error. 32 Notwithstanding those differences, the observations made by their Honours in SZWBH remain apposite to the present case. 33 On the facts of the present case, the orders were made on the first return date of the proceeding before the Federal Circuit Court, without prior notice to the parties, and notwithstanding the fact that those appearing for the Respondent Minister did not seek such orders. The transcript of the proceeding, moreover, exposes no active consideration being given to the explanation provided by the Applicant for his apparent delay and certainly no opportunity extended to the Applicant to consider whether any amendment to the grounds of review then relied upon were under consideration or even possible on the available materials. Although those appearing for the Applicant did not expressly foreshadow any application to amend, they made a Delphic reference to the fact that "we are waiting for this application". If "this application" is "upheld", it was then submitted that "we are looking at a different scenario and then, the whole process will be a waste of time". Clearly enough, those appearing for the Applicant envisaged the application for an extension of time being first resolved and thereafter the need to look to "a different scenario". But that opportunity was precluded by the orders made. The transcript reveals nothing other than a commitment on the part of the Federal Circuit Court Judge summarily to dismiss the proceeding. The law, it must be recognised, "is strewn with examples of open and shut cases which, somehow, were not": John v Rees [1970] Ch 345 at 402, [1969] 2 All ER 274 at 309 per Megarry J. See also: WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 at [28], (2014) 142 ALD 490 at 500 per Flick and Gleeson JJ. 34 On the facts of the present case, the Applicant was denied procedural fairness by reason of not being provided with prior notice of the course pursued by the Federal Circuit Court Judge. Had advance notice been given, the Applicant may then have come before the Court with a proposed amendment.

A complicating factor? 35 The application presently before the Court is, perhaps, complicated by the fact that there was a sole Ground of review advanced for consideration before the Federal Circuit Court - assuming an extension of time had been granted. 36 The potential complication arises because that sole Ground of review, it is now accepted on behalf of the Applicant, was clearly "doomed to fail" by reason of the decision of the High Court on 17 June 2015 in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22. When the present application came before the Federal Circuit Court, the decision of the High Court had not been handed down. And it may well be the case that the Federal Circuit Court Judge's assessment of the prospects of the sole Ground succeeding may well have been correct. 37 If the orders of the Federal Circuit Court Judge are quashed and the application for an extension of time is to be reconsidered, the Applicant now seeks to rely upon an Amended Show Cause Application. The Applicant maintains that the Ground of review now sought to be relied upon is "clearly arguable". 38 The Applicant thereby unquestionably seeks to change course subsequent to the decision of the Federal Circuit Court and seeks to "side-step" the decision of the High Court in WZAPN. 39 But the prospect of the Applicant seeking to change course is a matter which should be resolved by the Federal Circuit Court. The prospect that the Applicant apparently will seek to amend the grounds on which he wishes to proceed may well be relevant to the manner in which the question of whether to extend time should be resolved.

CONCLUSION 40 Although by reason of s 476A(3)(a) of the Migration Act the Court may not entertain an appeal from the refusal of a Federal Circuit Court Judge to extend time pursuant to s 477(2) of that Act, this Court retains jurisdiction pursuant to s 39B of the Judiciary Act: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [11], (2013) 217 FCR 55 at 59. In the present proceeding it is concluded that the orders made by the Federal Circuit Court Judge should be quashed. 41 An order in the nature of certiorari should be made quashing that decision. Given that the power to make such an order arguably may depend upon one or other of the remedies being granted to which s 75(v) of the Constitution expressly refers, an order in the nature of mandamus should also be made requiring reconsideration. 42 An order should also be made that the application for an extension of time should be heard and resolved by the Federal Circuit Court differently constituted. An erroneous exercise of discretion and a denial of procedural fairness may not of themselves be sufficient reason for making such an order. But the failure on the part of the primary Judge to pay any heed to the explanations provided by the Applicant for his apparent delay causes concern as to whether justice will be seen to be done if the same Judge should resolve the application he has already rejected. The Federal Circuit Court Judge's comments that the application was "doomed to failure" were, of course, made with reference to the Ground of review then relied upon. Whether the same view could or would be formed in respect to any amended ground of review remains unknown. It is nevertheless considered, on balance, that justice is best seen to be done if the application for an extension of time - and any further applications as may be advanced for consideration - are heard and resolved by that Court differently constituted. 43 Should an extension of time be granted, it would remain a matter for the Federal Circuit Court to determine whether leave to amend should be granted to raise a new Ground of review which is it said on behalf of the Applicant is "clearly arguable". 44 The Respondent Minister, it may be noted, accepts that it is appropriate to make an order for costs in favour of the Applicant but contends that there should be some reduction in the quantum of costs ordered by reason of the concessions made. So much is accepted. To do otherwise may have the potential to frustrate or impede the making of concessions which considerably assist in the resolution of cases before the Court and the administration of justice more broadly. The Respondent Minister should be ordered to pay 75% of the costs of the Applicant.

THE ORDERS OF THE COURT ARE:

1. The decision of the Federal Circuit Court of Australia in AAV15 v Minister for Immigration & Anor [2015] FCCA 637 is quashed.
2. The proceeding is remitted to the Federal Circuit Court of Australia differently constituted to be heard according to law.
3. The First Respondent is to pay 75% of the costs of the Applicant either as taxed or agreed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.