AEG15 v Minister for Immigration and Border Protection

Federal Court of Australia|2015-07-10|Before: Mr J, Flick J

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding claims to be a citizen of Pakistan. 2 The Applicant arrived in Australia as an Unlawful Maritime Arrival on 9 August 2012. On 18 December 2012 he applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. He claimed that both he and his father had been threatened by the Taliban. He feared harm in Pakistan because he is a Pashtun Shia Muslim. 3 A delegate of the Minister refused to grant the visa. An application for review of that adverse decision was filed with the Refugee Review Tribunal. That Tribunal affirmed the delegate's decision on 10 November 2014. 4 An Application seeking review of the Tribunal's decision was then filed with the Federal Circuit Court of Australia (the "Federal Circuit Court") on 12 March 2015. That Application was not filed within the time prescribed by s 477 of the Migration Act 1958 (Cth). The Application disclosed on its face that an extension of time was sought and an affidavit was filed in support. 5 When the Application first came before the Federal Circuit Court on 9 April 2015 an order was made refusing the extension of time and an order was made summarily dismissing the proceeding: AEG15 v Minister for Immigration & Anor [2015] FCCA 881. 6 On 28 April 2015 an Originating Application was filed in this Court seeking orders (inter alia) that the decision of the Federal Circuit Court be quashed. 7 The hearing of the present Originating Application immediately succeeded the hearing of a broadly comparable proceeding the day before. The solicitor appearing for the Respondent Minister in the present proceeding sensibly attended that other proceeding. The parties in the other proceeding were advised that like orders to those now sought would most probably be made but that judgment would be reserved pending further consideration of the issues presented for resolution and the preparation of reasons. Judgment in that other proceeding has been delivered: AAV15 v Minister for Immigration and Border Protection [2015] FCA 700. 8 Given the exchange that occurred in AAV15 between the Court and Counsel then appearing, agreement was reached as to the fate of the present proceeding. 9 Orders substantially as agreed between the parties in the present proceeding should be made.

The facts as agreed 10 For the purposes of resolving the present proceeding, the solicitor appearing for the Respondent Minister filed a Statement in Support of the proposed consent orders which made the following acknowledgments (without alteration): The first respondent acknowledges that: 1. The applicant's application for an extension of time, pursuant to subsection 477(2) of the Migration Act 1958 (Cth) (the Act), filed in the Federal Circuit Court of Australia on 10 November 2014, was dismissed at the first Court date directions hearing on 9 April 2015, summarily and without prior notice from Judge Street. 2. Judge Street dismissed the application in circumstances where the Minister for Immigration and Border Protection (the Minister) - the first respondent to that proceeding - did not actively seek to have the matter dismissed at the first Court date, and indeed had indicated in its response filed on 7 April 2015 that it consented to the extension of time being granted (albeit maintaining that the substantive application should not succeed). 3. At the first Court date, the representative for the Minister raised for Judge Street's consideration the fact that the applicant required an extension of time, but that the Minister consented to an order being made extending time pursuant to section 477(2) of the Act (albeit maintaining that the substantive application should not succeed). 4. Notwithstanding the Minister's consent to an extension of time being granted, his Honour made orders refusing the extension of time and summarily dismissing 'the proceedings'. 5. The applicant was represented at the first Court date by Counsel and solicitors, but was not personally in court on the date in question and, accordingly, there was no opportunity for the applicant to give evidence in support of his explanation for the delay in filing his judicial review application, nor was there an opportunity for Judge Street or the Minister's representative to test his evidence as to delay by cross-examination as would ordinarily be afforded in such circumstances. The first respondent accepts that Judge Street erred in summarily dismissing the application for an extension of time of his own motion, at the first Court date, and without notice to the applicant, in the manner and circumstances identified in Shrestha v Minister for Immigration and Border Protection [2015] FCAFC 87 and SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, and that to do so was procedurally unfair. 11 Those acknowledgments, it may be noted, were properly made.

The breach of the duty of procedural fairness 12 The fundamental duty imposed upon the Federal Circuit Court to comply with the requirements of procedural fairness and for the imperative to ensure that "justice is seen to be done" have been set forth in AAV15 [2015] FCA 700 at [24] to [30]. That decision followed the decisions of the Full Court in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 and Shrestha v Migration Review Tribunal [2015] FCAFC 87. 13 The observations and conclusions set forth in AAV15 need not be repeated. 14 It is sufficient for present purposes to conclude that the concession of the Respondent Minister in the present proceeding that there has been a denial of procedural fairness is a concession properly made. The order refusing an extension of time made by the Federal Circuit Court Judge in the present proceeding invites even more serious disquiet given the fact that the Respondent Minister before that Court consented to the extension of time.

CONCLUSIONS 15 Orders should be made which substantially reflect those agreed between the parties, including that the Federal Circuit Court be differently constituted when it hears and determines afresh the application for an extension of time.

THE ORDERS OF THE COURT ARE:

The decision of the Federal Circuit Court of Australia in AEG15 v Minister for Immigration & Anor [2015] FCCA 881 is quashed.
The proceeding is remitted to the Federal Circuit Court of Australia differently constituted to be heard according to law.
The First Respondent is to pay the costs of the Applicant either as taxed or agreed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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