ACK16 v Minister for Immigration and Border Protection

JUDGE: MCKERRACHER J DATE OF ORDER: 17 october 2018

1. The application be dismissed on the basis only that the application in VID 98 of 2018 was allowed.
2. Unless there is a consent minute on costs, (a) the applicant file written submissions on costs not exceeding two pages within seven days; (b) the first respondent file written submissions on costs not exceeding two pages within a further seven days; (c) the applicant file written submissions in reply within a further seven days; and (d) costs be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 The applicant seeks an extension of time to seek leave to appeal from a judgment of the Federal Circuit Court of Australia given on 13 October 2017. The application is opposed. The applicant also challenges a refusal by the Federal Circuit Court on 2 February 2018 to accept for filing a second application. As the applicant succeeds on the first application, it is unnecessary to consider the second, which would achieve the same practical result.

EVIDENCE 2 By an affidavit in support, the applicant swears that on the day of the initial hearing of his application for judicial review in the Federal Circuit Court on 4 September 2017 he attended the Commonwealth Law Courts Building in Melbourne at about 1:45 pm and checked the electronic display in the foyer which showed his pseudonym, his file number and the location of his hearing as being on level 6 in courtroom 6J. He duly attended at courtroom 6J at the designated time and sat at the front of the court waiting for his hearing to be called at 2:30 pm. He saw two people entering and leaving the courtroom, assuming they were setting up for his hearing. He later saw a court staff member go inside the courtroom and the applicant inquired as to what had happened to his hearing which had not been called. The court staff member informed the applicant that she did not think the hearing was in courtroom 6J. She was unable to ascertain where the listing was and the applicant was instructed to go downstairs and check his details on the electronic display again. The applicant followed this advice and went downstairs to check the electronic display and noted that the display still showed that his hearing was listed in courtroom 6J. 3 The applicant telephoned the Minister's lawyers and was informed that the case had been dismissed for his non-attendance. When he explained the position, he was informed by the lawyer that there had been a mistake and that the actual courtroom was 2C, not 6J. The Minister's lawyer explained that the case had already been dismissed, but that he could go to courtroom 2C and try to explain what had happened. 4 The applicant duly went to courtroom 2C and was informed by another court staff member that the case had already been dismissed and the judge had left and that he should go to the counter on level 7 to file an application. 5 The applicant subsequently phoned Victorian Legal Aid who helped him prepare an application and affidavit, but explained that they were not able to represent him. He was similarly informed that the Asylum Seeker Resource Centre (ASRC) was not able to assist him at that time. He contacted some private lawyers, but was unable to afford their assistance. Others told him that they did not have sufficient experience in migration matters to assist. Ultimately, he attended the hearing on 13 October 2017 and, in his words, '[his] case was dismissed again'. 6 Following this dismissal, subsequent steps were taken leading to the applications before this Court. Specifically, the applicant contacted the ASRC again and was given an appointment on 1 November 2017. He went to the appointment but was told they could not help until he got a copy of the Federal Circuit Court decision. They helped him write an email to the judge's associate. 7 On 5 December 2017, the Minister's Department called the applicant and gave him an appointment on 6 December 2017. 8 On 6 December 2017, the applicant went to the Department and told the officer the ASRC was trying to help him but that he was waiting for a copy of the Federal Circuit Court's decision. The officer said that he could give him a copy of the decision but he just printed out and gave the applicant copies of the Federal Circuit Court's orders. The officer told the applicant he had to apply to Court within two weeks. 9 The applicant went back to the ASRC and showed them the Federal Circuit Court orders the officer had given him, but the ASRC said it is only a court order, not the decision. 10 On 8 December 2017, the applicant received a copy of the Federal Circuit Court's decision by email. 11 The applicant deposed to being 'very worried' because the officer had told him he was only going to give him two more weeks and the ASRC was very slow. 12 He started contacting private lawyers again, but could not afford most of their fees. 13 On 12 December 2017, the applicant contacted his current solicitors who told him they needed to get a merits assessment from a barrister, but said that because of the Christmas period it would be difficult to get a merits assessment before January. 14 On 5 January 2018, his solicitors contacted him to say they had received advice from the barrister to prepare a further application in a case in the Federal Circuit Court. 15 On 9 January 2018, the applicant was able to pay his solicitors' fees to prepare an application and an affidavit. He instructed his solicitors to proceed. 16 On 15 January 2018, he attended at his solicitors' office to prepare the affidavit; the application and supporting affidavit were then filed. 17 On 2 February 2018, the Federal Circuit Court rejected the lodgement of the applicant's application. 18 On 6 February 2018, the applicant attended at his solicitors' office to prepare an affidavit in this proceeding. He instructed them to proceed with an application in this Court. 19 The applicant's account generally, and particularly in relation to appearing in the designated courtroom at the designated time, was unchallenged both in this Court and in the Federal Circuit Court.

IN THE FEDERAL CIRCUIT COURT 20 The decision from which the applicant seeks an extension of time and leave to appeal was an ex tempore decision in which the primary judge declined to set aside orders made on 4 September 2017 dismissing the primary proceedings as a result of the 'failure of the applicant to appear in court on that day'. 21 His Honour noted that the applicant set out in an affidavit that he attended the court on that day and went to the wrong courtroom as a result of an error in the electronic display in the foyer of the building. By the time the applicant discovered the correct courtroom, the proceedings had already been dismissed and the Minister's representative and the interpreter booked for that day had gone. 22 His Honour appeared to accept that account, but said that the 'real' issue was whether or not the applicant had an arguable case which would justify reinstating the proceedings. 23 The primary judge then went on to consider the merits and concluded that the applicant did not have an arguable case for judicial review. It was on this basis that he dismissed the application to set aside the order of dismissal.

GROUNDS 24 The grounds of the application filed in VID 98 of 2018 are that: 1. The primary judge erred in finding that the application did not raise an arguable case for judicial review. 2. The decision of the Tribunal was affected by jurisdictional error, in that it failed to identify the correct home region against which to conduct the evaluative task required by the Migration Act 1958 (Cth). Particulars a. The Tribunal performed its task as though Parachinar was the applicant's home region, when in fact he had not lived there since 2009 and had lived elsewhere prior to feeling [sic] Pakistan. 3. The decision is attended with sufficient doubt to warrant it being reconsidered. Particulars a. The applicant was unrepresented before the Federal Circuit Court. b. There is merit in the substantive grounds the applicant seeks to raise. 4. Substantial injustice would result if leave were refused, supposing the decision to be wrong. Particulars a. The applicant would be denied the right to have his application for protection determined according to law. b. The applicant would face persecution upon return to Pakistan. 25 The applicant sought that the application for an extension of time and leave to appeal be heard concurrently with the substantive grounds of appeal. That course was pursued.

CONSIDERATION 26 This was and is a most unusual case. 27 Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) relevantly provides: 16.05 Setting aside or varying judgments or orders (1) The Court or a Registrar may vary or set aside a judgment or order before it has been entered. (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or … (3) This rule does not affect the power of the Court or a Registrar to vary or terminate the operation of an order by a further order. (Emphasis added.) 28 The primary judge's analysis accord with the steps outlined by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530. Ryan J said (at [7]-[10]): Principles governing an application for reinstatement 7 In circumstances where, as in the present case, a proceeding has been dismissed in a party's absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are: (a) whether there was a reasonable excuse for the party's absence from the hearing in which the proceeding was struck out; (b) the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; (c) whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs (2005) FCA 1066 at [18]: The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement[.] (emphasis added [in original]) 8 In this connection, a party's absence is analogous to a party's failure to file an originating document or notice of appeal, in that, even where a reasonable excuse for that delay or failure exists, the Court will not exercise its discretion in the party's favour where there is little or no prospect of that party's succeeding on the substantive claim: see Gallo v Dawson (No 2) (1992) 109 ALR 319 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ, at 319- 320. 9 It should also be observed that the principles controlling a discretion whether or not to reinstate a proceeding are not identical to the principles going to whether leave to appeal from an interlocutory judgment ought to be granted. However, I do not perceive that the application of those requirements - first, that the decision in question be attended by sufficient doubt to warrant its reconsideration, and, secondly, that substantial injustice would flow were leave not granted (see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, per Sheppard, Burchett and Heerey JJ, at 398) - would result in any different outcome in this case. Whether the learned Federal Magistrate's discretion miscarried 10 It follows from what I have said that the decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles stated as follows by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499, at 504 to 505, where their Honours said: But the judgment complained of, namely, sentence to a term of imprisonment depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that, in some way, there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. 29 Usually this approach is entirely orthodox. But, as noted, this was and is a most unusual case. 30 Quite understandably, MZYEZ and decisions like it have been widely followed in this Court and in the Federal Circuit Court. But, despite this, it must be emphasised that the relevant discretion conferred on the Federal Circuit Court by r 16.05 is unfettered. In my view, while the steps in MZYEZ should usually be followed, there are occasions when, in the exercise of the unfettered statutory discretion, more fundamental principles are enlivened. This was one such occasion. 31 This was not a case of 'failure of the applicant to appear in court that day' as almost all such cases are and to which MZYEZ was specifically directed (see [8] of MZYEZ). To the contrary, the applicant had done everything possibly required of him to attend and appear but, through absolutely no fault of his own, his application was proceeding in his absence in the undesignated courtroom while he patiently waited to present his case in the designated courtroom. In those circumstances, there was no hearing proper at all. 32 In Cameron v Cole (1944) 68 CLR 571, Rich J said in the context of a decision of a court made in the absence of the party who has not been given a reasonable opportunity by the court to appear and be heard that (at 589): It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v. Kanssen). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial (Crane v. Director of Public Prosecutions). (Citations omitted and emphasis added.) 33 To similar effect was Taylor v Taylor (1979) 143 CLR 1, which was discussed by French J (as his Honour then was) in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365. His Honour said (at [77] and [79]): 77 A decision of a Court made in the absence of a party who has not been given a reasonable opportunity by the Court to appear and be heard, may be set aside in its inherent jurisdiction (Cameron v Cole (1944) 68 CLR 571 at 589 (Rich J)): In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial. In considering whether the Bankruptcy Act 1944 (Cth) conferred power on the Federal Court of Bankruptcy to set aside such a decision, Rich J referred to the general presumption that a statute is not to be taken to have undermined fundamental principles of law or of equity except by the use of clear words (at 589): A fortiori in the absence of clear words, a statute should not be treated as depriving a court of the inherent jurisdiction possessed by every court to ensure that trials before it are conducted in accordance with the principles of natural justice. … 79 Taylor is an example of a judicial discretion to rehear a case where a decision affecting rights was made in the absence of a party. An order was made in the absence of a husband involved in matrimonial proceedings. His non-appearance was not his fault but the result of an error by his solicitors. Service of the relevant petition having been properly effected the first decision was not a nullity. Nevertheless the order was able to be set aside by an order made in the inherent jurisdiction of the Family Court. Both Gibbs and Mason JJ referred to Grimshaw v Dunbar [1953] 1 QB 408 in which Jenkinson LJ restated the prima facie right of a party to an action to have it heard in his presence and said (at 416): … if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs … 34 SZFDE went on appeal to the High Court, but on this point the discussion is unaffected. 35 A federal court has such implied power as is a necessary corollary of the nature of judicial power itself (rather than 'inherent jurisdiction'). The implied power is construed as being no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction. In any event, the express statutory power under this rule is unfettered, but would pay regard to the exceptional circumstances of this case enlivening the 'fundamental principle' described by Rich J. 36 It follows, in my view, that in these unusual circumstances there was no obligation on the part of the applicant to satisfy all of the factors set out in MZYEZ by Ryan J. These factors are not a statutory checklist but, as Ryan J states (at [14]), considerations 'relevant to' an assessment of the Court's unfettered discretion. In those circumstances, the correct disposition of the application was to set aside the judgment entered 'in the absence of the applicant's appearance' and, unless the applicant was ready to proceed with his application (which, as his Honour's reasons reveal, he most clearly was not), to set down the application for an actual hearing on a later date. 37 In my view, the primary judge, in the exercise of his discretion, should have ruled that there had been no proper hearing at all on the first application. It follows, in my view, with great respect, that the discretion of the learned primary judge miscarried and the applicant is entitled to relief. 38 I should add that during and prior to (by email) the first hearing and the second hearing of this application, I raised this issue at some length with counsel and while it was not the way in which the grounds were drawn, there is no doubt that the issue was live. 39 A further ground and, indeed, a separate judicial review application (VID 639 of 2018) was advanced arising from the refusal of the Federal Circuit Court to accept for filing a second, but similar application. I do not consider it is necessary to determine that ground as it is clear that the application in VID 98 of 2018 should succeed on the basis I have identified.

CONCLUSION 40 The applicant is entitled to an extension of time within which to seek leave to appeal, leave to appeal and an order that the appeal be allowed. As requested by the parties, provision will be made for short written submissions on costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.