ALQ17 v Minister for Immigration and Border Protection

1. Extend the time within which to apply for leave to appeal to 9 July 2018.
2. Grant leave to the Applicant to appeal from the order made by the Federal Circuit Court on 19 June 2018.
3. Appeal allowed with costs.
4. Set aside orders 1 and 2 made by the Federal Circuit Court on 19 June 2018.
5. Remit the proceeding for trial in the Federal Circuit Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an application for an extension of the time within which to apply for leave to appeal from orders made by the Federal Circuit Court on 4 June 2018. On that day the Applicant failed to appear in the Federal Circuit Court and his application to it was dismissed for non-appearance. Since that was an interlocutory order an appeal to this Court lies only by leave. Such an application must be filed within 14 days which in this case meant 18 June 2018. The application for an extension of time was filed on 9 July 2018, 21 days after the expiry of the 14 day time limit. 2 However, that delay is not the whole picture. Although the Federal Circuit Court decided the Applicant's case on 4 June 2018 and pronounced its orders on that day, it did not provide a written set of those reasons until 16 October 2018, just on four months after the time for leave to appeal had expired. Ms Stokes, for the Minister, submitted that the Applicant had not made inquiries on the outcome of the hearing on 4 June 2018. Even if the Applicant did subsequently follow up and obtain a copy of the orders (as in fact he did on 2 July 2018), by themselves the orders would not have thrown light on any errors in the judgment. Nor can it be said that the Applicant should have known what the Court's reasons were because they were delivered orally. The Applicant was not there to hear them pronounced and, even if he had been, he does not speak English very well. On top of that one might infer that if the Court took four months to revise its reasons, that revision was likely to be substantial. 3 It might be thought that the above observations are inconsistent with the fact that the Applicant applied for an extension of time for leave to appeal on 9 July 2018 which was before the Federal Circuit Court provided the written version of its reasons. But there is no inconsistency. It is apparent that on 2 July 2018 the Applicant's bridging visa was due to expire because he had taken no steps to apply for leave to appeal from the Federal Circuit Court. A delegate of the Minister nevertheless granted him a further seven day extension to his bridging visa. In order to avoid the expiry of that visa and his transformation into an unlawful non-citizen he was obliged to seek to review the Federal Circuit Court's orders within that seven days. That is what he did. The extension of time application contains no grounds of review but it is difficult to see how it could have done so when the written version of the Federal Circuit Court's reasons had not yet been produced. 4 I accept, therefore, that the Applicant has a compelling explanation for why he was delayed in filing his application in this Court. 5 However, it is also relevant in considering whether an extension of time should be granted to consider the merits of the underlying appeal should leave to file out of time be granted and this is so even though the underlying suit in this case is strictly only a leave application. 6 In this case, the decision of the Court below was a decision to dismiss the application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). That rule authorises the Federal Circuit Court to dismiss an application if the applicant is absent from a hearing. Such a decision is interlocutory in nature so that no appeal lies to this Court without leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). The question on the leave application is whether there is an arguable case that the decision to dismiss was erroneous and, supposing it was, that substantial injustice will result if the decision is allowed to stand. In a case where the effect of the decision is to dismiss the case in its entirety the second limb will generally be easy to satisfy and that would be the case here. 7 The real question then is whether there is an arguable case for an appeal from the dismissal under r 13.03C(1)(c). That power is discretionary ('… the Court … may … : (c) … dismiss the application'). It is necessary, therefore, to identify an error in the exercise of that discretion. This may be done in two different ways. First, it may be shown that the judge acted upon a wrong principle, took into account an irrelevant consideration, mistook the facts or failed to have regard to some material matter. Secondly, even without proof of such matters it may appear that the exercise of the discretion must have miscarried because on the facts the decision was unreasonable or plainly unjust. 8 In this case, I am satisfied that the Federal Circuit Court judge fell into error. Consequently, I would extend the time in which to apply for leave to appeal, grant that leave and allow the appeal. The reasons for this are as follows. 9 The application had been listed for hearing at 12 noon on Monday 4 June 2018. At 1.46 am the Applicant (who lives in Melbourne) sent an email to the Minister's solicitor requesting an adjournment. The Applicant claimed that he had suffered a major injury after slipping in the bath tub and attached a medical certificate. This was, perhaps, a somewhat unprepossessing application for an adjournment. The Federal Circuit Court (sitting in Adelaide) thought so especially in light of an earlier adjournment the Applicant had obtained on the basis that he had to look after his wife and newborn child (who had, at that time, been born a month earlier). One can well understand a certain degree of scepticism about a late-raised slip-in-the-bath-tub adjournment application where there was no indication that the Applicant had made any plan to travel from Melbourne to Adelaide for the hearing. I do not think the Federal Circuit Court can be criticised for taking that view. 10 It is what happens next which gives rise to the problem. At 9.56 am the Minister's solicitors wrote to the Court indicating that the Minister opposed the adjournment. The email was copied to the Applicant. He did not immediately reply. At 10.37 am the Minister's solicitors re-sent the email to him and indicated formally that the Minister would oppose the adjournment. 11 An email was then sent by the Applicant to the Minister's solicitor at 11.24 am in which he said that he was happy to appear by telephone at the hearing. 12 At 11.27 am the Respondent's solicitor replied saying that the Applicant would have to apply to the Court for leave to appear by telephone. This email correspondence was placed before the Federal Circuit Court judge and the transcript shows that his Honour was taken to it. In his Honour's reasons he observed that no application to give evidence by telephone had been made. 13 Unfortunately, this was not the full story. There was a further email sent by the Applicant to the solicitor for the Minister at 11.40 am (i.e. prior to the hearing at 12 noon) where the Applicant asked the Minister: 'I am so sorry bothering you, how do I can apply for that can you please give me contact please would be much appreciated thanks' 14 The Minister's solicitors did not reply to this. 15 This email was not mentioned either in the judge's reasons or by the Minister's representative at the hearing. The earlier part of the email exchange formed Ex R3 in the Court below. After the hearing I obtained Ex R3 and a copy of the full email chain. 16 Ex R3 shows that the last email set out at [13] above in the chain had not been placed before the Court. Since it was received at 11.40 am in Adelaide it is likely that this occurred after the Minister's representative had gone to Court. Be that as it may the Applicant did try to appear by telephone. 17 Consequently, it is clear that the Federal Circuit Court arrived at its conclusion without knowing that the Applicant had sought to attend by telephone by asking the Minister's solicitor how such an application might be made. Although this was, of course, not the fault of the Court below as it was not a formal application to the Court but rather an email to the Minister, it does mean that a relevant matter was excluded from its consideration which is an error within House v The King [1936] HCA 40; 55 CLR 499 and one which had the effect of denying the Applicant a hearing on the merits. 18 The Minister submitted that it was relevant that the Applicant's underlying case had little merit. The Federal Circuit Court also expressed that view in a very brief passage. His Honour had the advantage of having the Court Book with all the relevant materials in it. I do not have those materials and I am unable to form that view. The controlling feature in this case is that the Applicant, whilst making his best endeavours, has lost his right to have his case determined on the merits. The matter must be heard. 19 The orders I make are: