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[2021] FCA 55
Federal Court of Australia
2021-02-04
Mr P, Wigney J
Original judgment source is linked above.
THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL 40 The applicant's application for an extension of time and leave to appeal initially appeared to challenge only Judge Street's decision on 11 November 2019 to dismiss his application pursuant to r 13.03C(1)(c) of the Circuit Court Rules. It was subsequently amended to include a challenge to Judge Street's decision on 30 January 2020 to refuse to reinstate the application pursuant to r 16.05(2)(a) of the Circuit Court Rules. Regrettably, however, the grounds upon which the applicant proposed to appeal those decisions were somewhat opaque. The application itself simply stated that Judge Street "erred in law and fact in the exercise of his discretion … in that he failed to accord the [a]pplicant procedural fairness". The particulars of the alleged error or failure to accord procedural fairness comprise nothing more than a chronology of the events leading up to the dismissal of the application and the dismissal of the reinstatement application. 41 The applicant's written submissions also did not greatly assist. The applicant contended that the procedure adopted by Judge Street in making the decisions was unfair and denied him a "reasonable opportunity to have the case he had presented to Judge Lucev determined". The refusal of the adjournment application and the dismissal of the reinstatement application were said to amount to a denial of procedural fairness because the applicant was denied "a reasonable opportunity to have his case determined in accordance with the material which had been presented to Judge Lucev" where the circumstances "prevented [him] from attending". It was submitted, in that regard, that once the applicant was "left without legal representation" and was not "personally present" on 11 November 2019, an adjournment was "required" because he was otherwise denied the "opportunity to present his case". 42 The applicant also submitted that the decision whether or not to grant the adjournment application "should have involved balancing the consequences of refusal for the party who seeks the adjournment, discounted to the extent that those consequences were due to the 'fault' of the party, against the adverse consequences of the adjournment for other parties and the public interest". It was contended that Judge Street's decision did not "exhibit" that balancing process. It was also submitted that the fact that the applicant "was in some way at fault does not in itself justify refusing an adjournment". 43 The applicant's written submissions cited a number of authorities that were said to support his contentions. The applicant did not, however, take the Court to any of those authorities or otherwise develop his submissions based on them. 44 In the course of the oral submissions made on the applicant's behalf, it was contended that the applicant's solicitors were "unable to continue to represent the applicant because they were unable to conclude a retainer agreement" and were then "forced to apply for a withdrawal". It was also contended that there was "information before the Judge to indicate that the applicant was in Melbourne". Importantly, however, it was conceded, in that context, that the applicant may have made "an error in assuming … the success of the application which his solicitors were going to make on his behalf". It was submitted, however, that the applicant's conduct in that regard should not have led Judge Street to "precipitously" dismiss the matter. Rather, the "fair course" would have been to adjourn the matter. 45 The applicant's oral submissions in relation to the decision to refuse the applicant's reinstatement application focused on Judge Street's finding that the applicant deliberately failed to appear on 11 November 2019. It was submitted that there was insufficient evidence for his Honour to reach that conclusion. As for Judge Street's finding that at an "impressionistic level" the applicant's review grounds in his substantive application lacked sufficient prospects of success, it was submitted that his Honour "misstated the test" and "effectively shifted the burden". In the applicant's submission, the prospects of success, in the context of such an application, were said to amount to a "low bar" and Judge Street "misapplied that description of impressionistic level to create a higher requirement for prospects of success in order to satisfy the test for reinstatement". 46 Somewhat surprisingly, the applicant did not advance any submissions in relation to the review grounds of his substantive application or otherwise seek to argue that Judge Street's reasons for finding that they lacked sufficient prospects of success were in any way erroneous.
consideration and resolution of the application 47 The principles relevant to the exercise of discretion to grant an extension of time are well-established and do not need to be rehearsed in detail: see, for example, BAO15 v Minister for Immigration and Border Protection [2016] FCA 214; 151 ALD 352 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. The length of the delay in filing the application is a relevant consideration and an applicant must generally give an adequate explanation for the delay. Any prejudice to the respondent would also militate against the grant of an extension of time, though the absence of such prejudice alone would generally not, without more, justify an extension. 48 The merits of the substantive appeal, if an extension were granted, must also be considered. It will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62]; approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [38]. 49 Where the application for an extension of time is in respect of the filing of an application for leave to appeal, it is also necessary to have regard to the principles applicable to the grant of leave to appeal: see Hunter Valley Developments at 348-350; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]; Parker v The Queen [2002] FCAFC 133 at [17]. The test for the grant of leave to appeal from an interlocutory decision is that the decision is attended with sufficient doubt to warrant it being reconsidered by an appellant court and that substantial injustice would result if leave were to be refused supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. The question on an application for an extension of time and leave to appeal is whether there are reasonable prospects of that test being satisfied to warrant an extension of time. 50 There are a number of fundamental problems with the applicant's application for an extension of time and leave to appeal. 51 First, Judge Street's decisions, on 11 November 2019, to refuse the applicant's adjournment application and dismiss the applicant's application pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis of his non-appearance, were plainly interlocutory decisions in respect of which leave to appeal was required: r 35.14 of the Federal Court Rules 2011 (Cth). An application for leave to appeal was required to be filed within 14 days, that is to say, by 25 November 2019: r 35.13(a) of the Rules. No attempt was made to file an application for leave to appeal until 14 February 2020, when an application was lodged with the Court together with an application that the applicant be exempted from paying a filing fee. That exemption application was subsequently withdrawn. A further attempt was made to file the application for leave to appeal on 4 March 2020. The application was not accepted for filing because it was out of time. The application for an extension of time and leave to appeal was eventually filed on 6 March 2020, 116 days late. 52 The applicant made no attempt to explain why he made no attempt to file an application for leave to appeal until 14 February 2020, which was itself 81 days after the date by which the application was required to be filed. The reason for that significant delay would appear to be that, instead of filing an application for leave to appeal, the applicant chose to file applications in the Circuit Court for the reinstatement of his application pursuant to r 16.05(2)(a) of the Circuit Court Rules. If that is the explanation for the delay, it is neither a reasonable nor satisfactory explanation. Indeed, quite to the contrary. It was a deliberate and ultimately unfortunate forensic decision. 53 There was a further delay after 14 February 2020 which made matters worse. That delay seems to have been largely the product of what appeared to be a fairly half-hearted and ultimately unsuccessful attempt to be exempted from paying a filing fee and an error on the part of the applicant's solicitor. That explanation for the delay is again entirely unsatisfactory and inadequate. The total delay was 116 days. 54 The applicant's failure to provide a reasonable or satisfactory explanation for the delay in filing the application for leave to appeal would itself be a reason to refuse the application for an extension of time and leave to appeal from the 11 November 2019 judgment. 55 Second, there has similarly been no satisfactory explanation for the failure to file any application for leave to appeal from Judge Street's dismissal of the reinstatement application on 30 January 2020. While the applicant attempted to file an application for leave to appeal on 14 February 2020, which if accepted for filing may have been within time, that application did not include any application for leave in respect of the 30 January 2020 decision. The application was subsequently amended to include an application for leave to appeal in respect of that decision. In any event, the delay which occurred after 14 February 2020 was the product of the applicant's aborted attempt to be exempted from the filing fee and the mistaken belief by Mr Draper that his attempt to file an application on 14 February 2020 operated to suspend or interrupt the running of the 14-day period within which such an application was required to be filed. That is hardly a satisfactory explanation. 56 Third, and perhaps more fundamentally, the applicant has failed to demonstrate an arguable case that Judge Street erred in the exercise of his discretion to refuse the applicant's adjournment application on 11 November 2019, or erred in the exercise of his power under r 16.05(2)(a) of the Circuit Court Rules to dismiss the applicant's substantive application by reason of his non-appearance. The problems with the applicant's challenge to the decisions made on 11 November 2019 are manifest. 57 It would appear that the adjournment application was unsupported by evidence. While Mr Draper may have made various factual assertions from the Bar table, those assertions did not constitute evidence and, in any event, there was no evidence in this proceeding as to exactly what those assertions were. It is equally unclear exactly what submissions Mr Draper advanced in support of the adjournment application and what reasons Judge Street gave for rejecting those submissions and refusing the adjournment application. 58 While the applicant perhaps cannot be blamed for the fact that Judge Street did not publish any reasons for refusing the adjournment application, the applicant could at least have tendered the transcript of the proceedings on 11 November 2019 or otherwise adduced evidence, through Mr Draper, as to exactly what went on at the hearing on that day. The evidence adduced through Mr Draper in support of this application was woefully inadequate in that regard. It is difficult to see how the Court could possibly conclude that Judge Street's discretion miscarried in this evidentiary vacuum. 59 The applicant's submissions concerning the decisions made on 11 November 2019 appeared to proceed on the basis that Judge Street was in effect bound to accept that the applicant was unable, as opposed to unwilling, to pay Mr Draper's firm's fees and bound to accept that Mr Draper's apparent unwillingness to continue to represent the applicant in those circumstances provided a proper basis for the adjournment application. Judge Street was not, however, obliged to accept either of those propositions, particularly in the absence of any evidence. The apparent failure of the applicant to adduce any evidence in support of the adjournment application is all the more surprising given that the Minister had clearly indicated that an adjournment application made on those grounds would be opposed. As already indicated, it is unclear what, if any, additional grounds were advanced by Mr Draper in support of the adjournment application. 60 The authorities relied on by the applicant in respect of adjournment applications are distinguishable and do not assist him. Since the applicant, despite being represented by senior counsel, did not deign to take the Court to any of the authorities he listed in his written submissions, or attempt to develop his submissions based on the principles said to be established by those authorities, it is unnecessary to cite or specifically address the authorities. It suffices to note that it is well-established that the decision to grant or refuse an adjournment application is a discretionary decision involving the balancing of often competing considerations. There are many cases where a decision to refuse an adjournment application has been found to involve an erroneous exercise of the discretion for various reasons. This, however, is not such a case. The applicant has not advanced any, let alone any compelling, reasons for why it should be found that Judge Street's exercise of the discretion miscarried or that the decision to dismiss the adjournment application was otherwise erroneous. 61 Fourth, the applicant has also not demonstrated any arguable case that Judge Street erred in dismissing his substantive application pursuant to r 13.03C(1)(c) of the Circuit Court Rules once Mr Draper was given leave, on his application, to withdraw from the proceeding. It is clear that the applicant did not himself appear at the hearing. The result was that, once the adjournment application was refused and Mr Draper was given leave to withdraw, there was no appearance for or by the applicant. 62 The applicant's failure to appear may have been because, as was effectively conceded by senior counsel for the applicant at the hearing of this application, the applicant erroneously assumed that Judge Street would allow the adjournment application that was to be made on his behalf. Putting that possible explanation to one side, the more significant point is that there was no evidence whatsoever before Judge Street to explain why the applicant was not at the hearing. It is readily apparent that the applicant was aware of the hearing date, was aware that his solicitor had requested that he be put in funds for the purposes of the hearing, was aware that he had not put his solicitor in funds and was likely aware that, in those circumstances, his solicitor was not prepared to continue to act for him. In the absence of any evidence from the applicant himself, it is difficult to avoid the inference that he made a conscious decision not to attend the hearing, even though he knew that his solicitor may not continue to appear for him. 63 It was, in all the circumstances, open to Judge Street to dismiss the applicant's review application pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis that he did not appear at the hearing. The only argument advanced on the applicant's behalf as to why Judge Street erred in dismissing the application on the basis of his non-appearance was that the effect of the dismissal was that his application was not determined on its merits. That, however, is likely to be the outcome of most, if not all cases, that are dismissed pursuant to r 13.03C(1)(c) of the Circuit Court Rules on the basis of non-appearance. 64 As was adverted to earlier, it is somewhat troubling that the applicant, or Mr Draper on his behalf, apparently did not put to Judge Street that he should determine the applicant's application on the basis of the evidence that was adduced and the submissions that were made before Judge Lucev. That course would plainly have been preferable to the course taken by Mr Draper, which was to seek leave to withdraw. It is perhaps equally troubling that, even in the absence of such an application, Judge Street did not turn his mind to whether that was the proper, or more appropriate, course to take, as opposed to summarily dismissing the application. 65 As troubling as that may be, however, it does not provide a sound basis for the grant of leave to appeal, particularly since this was not a point that was taken by the applicant in support of this application. Nor was it supported by any evidence, including evidence of exactly what went on at the hearing of 11 November 2019, or evidence from Mr Draper as to why he applied for leave to withdraw, rather than simply submitting that Judge Street should decide the matter on the basis of the material that was before Judge Lucev. It is entirely unclear exactly what Mr Draper's instructions were on 11 November 2019. It may even be the case that Mr Draper was instructed not to request Judge Street to proceed on the basis of the material that was before Judge Lucev. 66 Unfortunate as this may be, the applicant is effectively bound by the actions of his solicitor on 11 November 2019. Of course, it would also have been open to the applicant to himself appear at the hearing and request Judge Street to decide his case on the basis of the evidence that was adduced and the submissions that were made before Judge Lucev. That also was not done. 67 Perhaps more significantly, there would in any event be an element of futility in granting leave to appeal on this basis. That is because, as discussed in more detail later, there is no apparent merit in either of the applicant's grounds for reviewing the Authority's decision. 68 Fifth, in circumstances where the applicant has not demonstrated any error on the part of Judge Street in refusing the adjournment application and dismissing his application pursuant to r 13.03C(1)(c) of the Circuit Court Rules, his contention that Judge Street denied him procedural fairness has no merit. 69 The general authorities relied on by the applicant in respect of his contention that he was denied procedural fairness are distinguishable and do not assist him. Once again, the applicant's written submissions simply included a list of cases. Senior counsel for the applicant did not take the Court to any of those cases, let alone explain how the principles in them advanced the applicant's case. In those circumstances, it is again unnecessary to specifically address the authorities referred to in the written submissions. It suffices to observe that there are no doubt many cases where a person has been found to have been denied procedural fairness because, through no fault of their own, they were not able to attend a hearing to present their case to a court or tribunal. This, however, was not such a case. The applicant initially appeared, through his solicitor, and applied for an adjournment. That application was refused and the solicitor was granted leave to withdraw. The applicant did not himself appear at the hearing. There was no evidence and evidently no explanation for the applicant's non-appearance. It was in those circumstances that the applicant's substantive application was dismissed pursuant to r 13.03C(1)(c) of the Circuit Court Rules. The summary dismissal of the applicant's application was effectively of the applicant's own making and was not the result or product of any denial of procedural fairness. 70 Sixth, the applicant has not demonstrated that he has an arguable case that Judge Street erred in not reinstating his application pursuant to r 16.05(2)(a) of the Circuit Court Rules. The grounds or arguments that the applicant put to Judge Street as to why his application should be reinstated are unclear. The application itself did not articulate any grounds. It simply indicated that the application was supported by an affidavit sworn by Mr Draper. That affidavit, however, did nothing more than provide a very basic chronology of the events leading up to the adjournment application on 11 November 2019 and provide an explanation for Mr Draper's failure to appear at the hearing of the first reinstatement application. It was, and is, particularly telling that the applicant did not himself swear an affidavit in support of his reinstatement application. Had he done so, he could have explained, amongst other things, why he had not put his solicitor in funds so he could be represented at the hearing on 11 November 2019, what he believed might happen if he did not put his solicitor in funds and why he had not attended the hearing on 11 November 2019. 71 The applicant's submission that Judge Street erred in finding that the applicant deliberately failed to appear at the hearing on 11 November 2019 because that finding was not open on the merits cannot, in the circumstances, be accepted. While it may be a somewhat harsh and unsympathetic finding, it is nonetheless a finding which was open to his Honour given the absence of any evidence from the applicant and the absence of any meaningful or material evidence from Mr Draper. The correspondence that was annexed to Mr Draper's affidavit clearly demonstrated that the applicant knew that the matter was listed for hearing on 11 November 2019. It also provided a basis for inferring that the applicant knew that his solicitor may not appear for him if he did not put him in funds for the hearing and knew that the Minister opposed, or was likely to oppose, the foreshadowed adjournment application. In the absence of any evidence from the applicant, it was open to Judge Street to infer from the evidence that was before him that the applicant's failure to appear at the hearing was deliberate. 72 The applicant's submission that Judge Street applied a wrong test in assessing whether the two review grounds in the applicant's substantive application had any prospect of success has no merit and is rejected. The expression "impressionistic level", which was employed by Judge Street, would appear to have been drawn from the judgment of Mortimer J in MZABP at [62] to describe the level of analysis which is generally necessary when considering the prospects of success of a potential appeal for the purposes of an application for leave to appeal or an extension of time. In short, the Court generally should assess the prospects of success at a broad or general level, rather than conduct a summary hearing of the appeal or descend into a full consideration of the arguments for and against the appeal. 73 The applicant appeared to contend that, while Judge Street indicated that he was assessing the prospects of success at an impressionistic level, he in fact effectively required the applicant to make out his case, or demonstrate that he would succeed if his application was reinstated. There is, however, no basis for that contention. It is tolerably clear from Judge Street's reasons that his Honour approached the merits of the proposed application at a more general level and did not descend into a full consideration of the arguments for and against the two grounds advanced by the applicant. His Honour found that the two grounds lacked sufficient prospects of success to warrant the reinstatement of the application: Judgment at [16]. Indeed, he effectively found that both grounds had no prospects of success and were hopeless or doomed to fail: Judgment at [17]-[19]. 74 His Honour did not, as contended by the applicant, suggest that to obtain a reinstatement of proceedings, the applicant was required to demonstrate that he would succeed, or even that he was likely to succeed, in respect of his grounds of review. He simply required the grounds to be reasonably arguable. 75 Seventh, the applicant did not even attempt to demonstrate, in support of this application, that either of his grounds of review in his substantive application were reasonably arguable. Given the absence of any argument from the applicant in relation to the merits of his two grounds of review in the Circuit Court, or any argument as to why Judge Street was wrong to conclude that they had insufficient prospects of success to warrant the reinstatement of his application, it is unnecessary to consider the merits of his substantive application in any great detail. That issue may be dealt with briefly. 76 The first ground of the applicant's amended application in the Circuit Court was couched in language which suggested jurisdictional error. It asserted, in effect, that in finding that the applicant would not face a real chance of persecution in Lahore, the Authority addressed the wrong question or misdirected itself. It also appeared to be contended that the Authority's conclusion that the applicant would not face a real chance of persecution in Lahore was legally unreasonable. There were, however, no proper particulars as to what wrong question the Authority was said to have addressed, or how the Authority was said to have misdirected itself. And, when close consideration is given to the scant particulars that were provided in relation to the review ground, it is readily apparent that the appellant's argument in relation to this ground amounted to little more than a challenge to the factual findings and conclusion reached by the Authority in relation to his protection claims. 77 As discussed earlier, the Authority found that the applicant had a well-founded fear of persecution in his home town of Quetta on account of his Hazara ethnicity and Shia Muslim religion. The Authority found, however, that there were other parts of Pakistan, in particular Lahore, where the risk of the applicant being persecuted on that basis was significantly lower. The Authority's findings in that regard were based on country information it had before it in relation to Pakistan. The Authority also found that it was reasonable for the applicant to locate to one of those safer areas. In arriving at that finding, the Authority had regard to answers that the applicant had given to questions asked by officers of the Minister's Department when the applicant was interviewed about his visa application. Those questions and answers touched on the possibility of the applicant relocating to other parts of Pakistan. The end result was that the Authority found, in effect, that the applicant did not have a well-founded fear of persecution in those other parts of Pakistan. 78 The appellant's first ground of review appeared to contend that these findings by the Authority were unreasonable, or that in arriving at its conclusion the Authority in some unstated way asked itself the wrong question or otherwise misdirected itself. There is, however, nothing to suggest that the Authority's conclusion or the findings that led to it were in any sense illogical, irrational or not open on the material before the Authority. Nor is there any apparent basis for the assertion that the Authority somehow misdirected itself in arriving at its conclusion. A fair reading of the Authority's reasons suggests otherwise. The applicant did not advance any argument, let alone a reasonable or cogent one, which demonstrated that he had an arguable case. 79 The appellant's second ground of review would appear to be equally unmeritorious and to again have amounted to little more than an attempt at merits review. While the ground itself asserted that the Authority failed to observe "procedures required by the Act", it did not identify with precision the specific procedures that were said not to have been observed or the sections of the Act which were said to create those procedures. More significantly, when close consideration is given to the particulars of this ground, the applicant's argument appeared to hinge on the assertion that the Authority's finding that he did not have a well-founded fear of persecution in parts of Pakistan, including Lahore, was contradicted by information in "various" country reports. Those reports were not identified. In any event, the applicant's contention appeared to be that the Authority was required to provide reasons for accepting information in some country reports, but rejecting information in others which supported the contrary conclusion. 80 There is no apparent basis for either the contention that other country reports supported the contrary conclusion, or that the Authority was required to, but failed to, provide reasons for accepting some, but rejecting other, reports. The Authority's reasons, while fairly brief, nevertheless explained the basis of its findings in relatively clear, cogent and logical terms. References to the material which formed the basis of the key findings made by the Authority are provided in footnotes. The applicant did not take the Court to any material which was before the Authority which contradicted its findings. Nor is there any apparent legal or factual basis for the contention that the Authority was required to, but did not, provide reasons for rejecting any such contradictory material. 81 Ultimately, it was a matter for the Authority to make findings on the material that was before it, including the country information. It was a matter for the Authority to determine the information in the reports it accepted and the weight which was to be given to it. The Authority is not specifically required to refer in its reasons to information which it did not accept, or to which it did not give much weight, or give reasons for not accepting or giving any weight to any such information. 82 It follows that, as with the first ground of review, there is no apparent merit in the applicant's second ground of review. Judge Street was correct in so finding. 83 The absence of any apparent merit in either of the grounds of review in the applicant's substantive application is perhaps the most significant consideration which weighs against the grant of an extension of time and leave to appeal in this matter. Indeed, as already noted, in his written and oral submissions in support of this application, the applicant did not even attempt to demonstrate that his grounds of review had reasonable prospects of success.
CONCLUSION AND DISPOSITION 84 The circumstances of this case are somewhat unfortunate. The applicant's review application in the Circuit Court was originally heard by Judge Lucev. For reasons that were never fully explained, but which had nothing to do with the applicant, Judge Lucev never handed down his judgment in the matter. Instead, Judge Street ordered that the applicant's application would have to be reheard, though his Honour made provision for the applicant to rely, at the rehearing, on the evidence that was adduced and submissions that were made before Judge Lucev. For reasons never explained in the evidence, that never occurred. 85 Instead, the applicant's solicitor applied for an adjournment of the application and, when that application was refused, sought and obtained leave to withdraw. Exactly why the solicitor did not submit that Judge Street should decide the application on the material that was before Judge Lucev was never explained. Nor was there any explanation for why the applicant did not himself appear at the rehearing, or why he did not ask that Judge Street determine his application on the basis of the material that was before Judge Lucev. The end result was that Judge Street dismissed the application because the applicant did not appear. His Honour also refused to reinstate the matter. 86 To make matters worse, the applicant's pursuit of his application for reinstatement in the Circuit Court meant that he did not file any application for leave to appeal within time. The delay before he filed the present application was significant and not satisfactorily explained. 87 In all the circumstances, the applicant has not demonstrated any sound or reasonable grounds for the grant of an extension of time and leave to appeal from the interlocutory decisions of Judge Street. As just noted, he failed to provide any reasonable or satisfactory explanation for the delay. He also failed to demonstrate that he had any reasonable or available grounds for arguing that the interlocutory decisions of Judge Street were erroneous or attended by any doubt. Also, for the reasons that have been given, there is no apparent basis for any contention that Judge Street erred in rejecting the adjournment application, or dismissing the applicant's application for non-appearance or refusing reinstatement. Nor is there any merit in the applicant's argument that he was denied procedural fairness. Perhaps most significantly, the applicant did not even attempt to demonstrate that his grounds of review in his substantive application had any reasonable prospects of success. For the reasons already given, they do not. 88 It follows that the application for an extension of time and leave to appeal must be dismissed. Costs should follow the event. No argument was put to the contrary. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.
ATX16
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
IN THE CIRCUIT COURT 6 On 6 April 2016, the applicant filed an application for judicial review of the Authority's decision in the Circuit Court. His amended application, which he filed on 10 May 2017, raised two grounds of review. 7 The first ground was that the Authority "made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding" that the applicant did not have a well-founded fear of persecution. The particulars of that broad ground were that the Authority "misdirected itself" having regard to a number of findings it had made about sectarian violence against Shia Hazaras in parts of Pakistan and that the Authority "erroneously took into account a finding that the applicant will not be targeted for serious harm if he returns to Lahore and unreasonably concluded that the [a]pplicant does not face a real chance of serious harm for reasons of his ethnicity and religion". 8 The second ground was that the Authority "erred in law and in fact in failing to observe procedures required by the Act requiring the Authority to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material". The particulars to this ground asserted that the Authority had failed to provide reasons for its finding that the applicant did not have a well-founded fear of persecution in circumstances where that conclusion was "contradicted in the various Reports relied upon supporting the [a]pplicant's fear of persecution" and failed to provide reasons for "rejecting the remaining country information". 9 The applicant's application was heard by Judge Lucev in the Circuit Court on 1 June 2017. The applicant was represented by a solicitor, Mr Nathan Draper. Mr Draper had filed written submissions on the applicant's behalf and made oral submissions in support of the application at the hearing. Judge Lucev reserved his judgment and indicated to the parties that he would hand down his judgment after judgment had been handed down in a case then pending in the High Court. That judgment was handed down by the High Court on 9 October 2019: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091. 10 It is not entirely clear why Judge Lucev reserved his judgment pending the High Court handing down its judgment in BVD17. Neither of the grounds in the applicant's amended application raised any issue relating to the existence of a notification under s 473GB of the Act or any allegation of a denial of procedural fairness arising from the non-disclosure of any such notification. That was the issue that was considered in BVD17. Nor was there any indication of the existence of any such notification in either the Authority's Decision and Reasons or in the material that was apparently before the Circuit Court. Nevertheless, it appeared to be common ground on this application that Judge Lucev had been asked by the Minister to defer delivering judgment until after the judgment in BVD17 was handed down. 11 It was not suggested on the applicant's behalf, either in the Circuit Court or in support of this application, that the decision of the High Court in BVD17 assisted the applicant in any way in his challenge to the Authority's decision. 12 On 11 October 2019, two days after the judgment in BVD17 was handed down, Judge Street made an order in the Circuit Court proceedings listing the matter for a directions hearing on 23 October 2019. The directions hearing was to be before Judge Street, not Judge Lucev. 13 The applicant was again represented by Mr Draper at the directions hearing on 23 October 2019. The transcript of that directions hearing was not in evidence on this application. In his affidavit sworn for the purposes of this application, Mr Draper stated that Judge Street notified the parties that Judge Lucev was "on extended leave from duties for 12 months and would not be handing down a Judgment in the matter and in the circumstances it was necessary for the matter to be re-heard". No other explanation was given for Judge Lucev's apparent inability to hand down a judgment in this matter and that it was accordingly necessary for it to be reheard. 14 In his affidavit, Mr Draper suggested, albeit somewhat obliquely, that when he appeared before Judge Street, he opposed the making of an order that the matter be reheard. He said, in his affidavit, that Judge Street dismissed his argument that Judge Lucev "ought to be afforded the opportunity to deliver Judgment on his return from leave". It is, however, unclear what, if any, arguments Mr Draper advanced in that regard. All that is known is that whatever arguments he may have advanced, they were apparently not persuasive, because Judge Street ordered that the matter be "reheard by another Judge of the Court". It is equally unclear what, if any, reasons Judge Street gave for making that order and rejecting any arguments advanced by Mr Draper in opposition to it. As already indicated, the transcript of the directions hearing was not tendered on this application. It does not appear that his Honour published any written reasons. Mr Draper did not say anything in his affidavit about any reasons given by Judge Street. 15 It should also be noted that it was common ground at the hearing of this application that Judge Lucev was on extended leave at the time and that there was even some uncertainty as to whether he would return from leave. It was, in those circumstances, perhaps understandable why it was considered at the time that the applicant's case had to be reheard. Neither party suggested that it was necessary to delve into the reasons why Judge Lucev was on extended leave. The applicant did not contend, in support of this application, that Judge Street erred in deciding that his application had to be reheard. As will be seen, his complaint appeared to centre on the early rehearing date and Judge Street's refusal to adjourn it. 16 In addition to ordering that the matter be reheard, Judge Street ordered that the "transcripts and evidence that had been admitted at the earlier hearing, to be treated as evidence before the Court in the rehearing" and gave the applicant leave to file and serve any "amended submissions". It is unclear whether the order allowing for amended submissions was made at the request of Mr Draper or, if not, what his Honour had in mind when he made that order. There is no indication that Mr Draper sought leave to file any amended submissions and no such leave was granted. Nor is there any indication that the applicant subsequently filed any amended submissions. 17 In any event, the important point to emphasise is that the general effect of the orders made by Judge Street was that it would have been open to the applicant to have his application reheard on the basis of the submissions that he had made before Judge Lucev if he did not wish to incur the additional expense or inconvenience of a rehearing. 18 Judge Street listed the matter for rehearing on 11 November 2019, which was just over two weeks from the date of the directions hearing. Importantly, however, there is no evidence that Mr Draper opposed the matter being fixed for hearing on that day. There is no evidence that Mr Draper told Judge Street that he was having difficulty getting instructions, or that he or the applicant might not be available on that date, or that the hearing date did not allow him sufficient time to prepare for the rehearing or that he may not be able to appear for the applicant on that date. 19 A week after the directions hearing, however, Mr Draper sent an email to the Minister's solicitor and suggested that the Minister consent to an adjournment of the hearing. In that email, Mr Draper noted that the applicant had been requested to put Mr Draper's firm "in funds" to enable him to prepare and attend the rehearing. Mr Draper also indicated that he had only been given 18 days from the directions hearing on 23 October 2019 to "familiarise" himself with the matter and to make any amendments to the submissions. He also appeared to suggest that he had been given insufficient notice of Judge Street's intention to list the matter for rehearing to enable him to oppose that course of action. It should be reiterated, in this context, however, that Mr Draper had represented the applicant at the hearing before Judge Lucev and that, at least according to his application filed in this matter, he had opposed the matter being listed for rehearing. 20 The Minister's solicitor replied to Mr Draper's email four days later, on 5 November 2019, and made it clear that the Minister did not "consent to the request for [the] matter to be adjourned". The Minister's solicitor also noted the "limited detail" in Mr Draper's email to "justify the adjournment". It was added, in that context, that "the billing arrangements" between Mr Draper and the applicant were a matter for Mr Draper. 21 It does not appear that there was any further correspondence concerning any adjournment application. No written adjournment application was filed and no affidavit was sworn by the applicant or anybody else in support of any such application. 22 It would appear, however, that when the matter was called on for hearing before Judge Street on 11 November 2019, Mr Draper, appearing for the applicant, orally applied for an adjournment. That adjournment application was refused by Judge Street. 23 Despite the fact that, by his application for an extension of time and leave to appeal, the applicant seeks to challenge Judge Street's refusal to adjourn the hearing, the applicant adduced no evidence concerning what occurred at the hearing on 11 November 2019. There is no doubt that a transcript of the hearing exists, as it was tendered at the hearing of the applicant's later application to reinstate his application. The applicant did not, however, tender the transcript in support of this application. Nor did Mr Draper, in his affidavit sworn in support of this application, give any meaningful evidence concerning the hearing on 11 November 2019. The precise basis upon which Mr Draper sought the adjournment was left largely unexplained, though in his affidavit sworn in support of this application Mr Draper suggested that it was necessary for him to seek an adjournment because the applicant had been unable to pay his firm's "retainer". 24 The precise basis upon which Judge Street dismissed that application was also left unexplained. Judge Street did not subsequently publish any reasons for refusing the adjournment application. Mr Draper's evidence in support of this application did not address the reasons, if any, given by Judge Street for refusing the adjournment application. 25 What happened next is also somewhat confusing and concerning. It would appear that when Judge Street refused the adjournment application, Mr Draper immediately sought leave for him or his firm to withdraw from the proceedings. The basis of that application is unclear and was again not the subject of any explanation in Mr Draper's affidavit. It may have been because Mr Draper's firm had not been put "in funds", as had been suggested in the correspondence with the Minister's solicitor, but there was no evidence to confirm that that was indeed the case. 26 In any event, and perhaps more significantly, the effect of Mr Draper's withdrawal was that the applicant was no longer represented. It also appears that the applicant was not present at the hearing. The result was that Judge Street dismissed the applicant's substantive judicial review application pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), which provides for the dismissal of an application where the applicant fails to appear at the hearing of the application. 27 What is particularly concerning is that it must have been readily apparent to Mr Draper that his withdrawal from the proceedings was likely to result in the dismissal of the applicant's application for non-appearance. He must have known that the applicant had not attended the hearing. He did not suggest otherwise in his affidavit filed in this proceeding. 28 What is left entirely unexplained, however, is why, in those circumstances, instead of seeking leave to withdraw from the proceedings, Mr Draper did not simply tell Judge Street that the applicant relied on the written submissions that had been filed and the oral submissions that had been made at the hearing before Judge Lucev. Had that been done, Judge Street would have been effectively required to decide the application on the basis of those submissions, rather than dismissing them on account of the non-appearance of the applicant. That submission would not have taken any more time than the application for leave to withdraw. It is difficult, in those circumstances, to see how the fact that the applicant had apparently not put Mr Draper's firm "in funds" could have made any difference. Mr Draper did not suggest that he was instructed not to put to Judge Street that the applicant's application should be decided on the basis of the material that was before, and submissions that had been made to, Judge Lucev. 29 To make matters worse, there is also no evidence concerning what, if anything, Mr Draper told Judge Street about the applicant's non-appearance once he was given leave to withdraw. The applicant appeared to rely, in support of this application, on the fact that the applicant was in Melbourne on the day of the hearing. There is, however, no evidence that Mr Draper advised Judge Street of that fact, or told Judge Street that the applicant was unable to physically attend the hearing. There was also no evidence that the applicant or Mr Draper gave any consideration to applying for the applicant to appear at the hearing by telephone once Mr Draper had been given leave to withdraw. 30 Regrettably, things did not get much better insofar as the handling of the applicant's matter was concerned. Indeed, things went from bad to worse. 31 On 11 November 2019, the applicant filed an application seeking the "reinstatement" of the "matter" dismissed by Judge Street on 11 November 2019. The affidavit sworn in support of that affidavit was again sworn by Mr Draper. That affidavit, however, did little, if anything, more than simply recite the basic chronology of the events leading up to the adjournment application made on the applicant's behalf at the hearing on 11 November 2019, including the suggestion that the basis of the adjournment application was that the applicant had not put Mr Draper's firm "in funds". Beyond that, the legal and factual basis of the "reinstatement" application was left entirely unexplained. 32 It should perhaps be noted in this context that, while the application filed on 11 November 2019 did not say so in terms, the application was presumably made pursuant to r 16.05(2)(a) of the Circuit Court Rules, which provides that the court may vary or set aside a judgment or order if, inter alia, it was made in the absence of a party. 33 On 17 December 2019, Judge Street dismissed the reinstatement application. It would appear that his Honour dismissed the application because there was no appearance on the applicant's behalf at the hearing of the application. 34 On 14 January 2020, the applicant filed yet another application. That application sought an order varying, or setting aside, the order made by Judge Street on 11 November 2019. That affidavit was supported by another affidavit sworn by Mr Draper. Once again, however, the application and the supporting affidavit contained no explanation of the precise legal or factual basis of the application, though it appears again to have been made pursuant to r 16.05(2)(a) of the Circuit Court Rules. Mr Draper's affidavit contained the same basic chronology of events leading up to the adjournment application that was made on 11 November 2019. It also included an explanation for his non-appearance at the hearing of the first reinstatement application on 17 December 2019; he had mistakenly diarised the time of the hearing as being 2.15 pm Perth time, whereas in fact it was 2.15 pm Sydney time. 35 The applicant's further application to vary or set aside the order made by Judge Street on 11 November 2019 was heard and dismissed by Judge Street on 30 January 2020: ATX16 v Minister for Immigration & Anor [2020] FCCA 167 (Judgment). The applicant was represented at the hearing by senior counsel. 36 Judge Street accepted Mr Draper's explanation for his failure to appear at the hearing of the first reinstatement application on 17 December 2019: Judgment at [3]. His Honour noted, however, that the more significant question for the application was "the utility in setting aside the order that was made in default of appearance on 11 November 2019": Judgment at [4]. 37 Judge Street recited the chronology of events that led to the unsuccessful adjournment application on 11 November 2019. The critical finding made by his Honour on the basis of that chronology was that the applicant's failure to appear on 11 November 2019 was deliberate: Judgment at [6], [14], [15]. The basis of that finding appeared to be that the applicant had sent an email to Mr Draper indicating that he was unable to provide funds to Mr Draper for the appearance given the short notice he was given of the hearing, that it was apparent from that email that the applicant knew that the matter had been listed for hearing on 11 November 2019, that the applicant must have known that Mr Draper would not be appearing for him on 11 November 2019 because he had not put him in funds, and that there was no evidence that the applicant had been unable to afford the fare to fly to Perth for the hearing: Judgment at [6]-[8]. 38 Judge Street found that the "deliberate failure by the applicant not to appear on 11 November 2019" was "reason alone" to refuse to exercise the court's powers under r 16.05(2)(a) of the Circuit Court Rules: Judgment at [15]. 39 Importantly, however, his Honour also found that there was no utility in setting aside the order made on 11 November 2019 because the grounds of the applicant's "underlying application" lacked "sufficient prospect of success" at an "impressionistic level": Judgment at [16]. His Honour reasoned, in that regard, that ground one of the amended application sought to "agitate the adverse finding in respect of relocation to Lahore" and that in making that finding the Authority had "expressly referred to the applicant's particular circumstances in considering the practicality and reasonableness of relocation" and had expressly taken into account the applicant's employment opportunities and skills: Judgment at [17]. In relation to ground two, Judge Street reasoned that the allegation that the Authority had failed to take into account the most recent country information was, in substance, "an endeavour to invite the Court to engage in merits review" and that it is "a matter for the Authority what country information it takes into account": Judgment at [18].
(1991) 33 FCR 397
(1984) 3 FCR 344
(2015) 242 FCR 585