AVC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed.
2. The applicant pay the first respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 On 9 September 2019, the Federal Circuit Court of Australia (FCC) dismissed the applicant's application for an extension of time under s 477 of the Migration Act 1958 (Cth) (Migration Act) in which to seek judicial review of a decision of the Immigration Assessment Authority (Authority) not to grant the applicant a Safe Haven Enterprise visa. The application was dismissed by the FCC under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) by reason of the non-appearance by the applicant at the hearing. A subsequent application by the applicant for the reinstatement of the proceeding was dismissed by the FCC on 27 February 2020 on the basis that the FCC was not satisfied there was utility in reinstating the proceeding because the proposed two grounds of review of the Authority's decision were, in substance, an attempt at impermissible merits review and failed at an impressionistic level to identify an arguable case of jurisdictional error by the Authority: AVC19 v Minister for Immigration & Anor [2020] FCCA 431 (FCC judgment) at [35] and [38]. The FCC also rejected the applicant's request to reinstate the proceedings for compassionate reasons, holding that it had no power to determine whether the proceedings should be reinstated for the compassionate reasons put forward by the applicant: FCC judgment at [38]. The compassionate grounds put to the FCC related to the applicant's "love and concern for his children, future operations and an injury to his arm". The applicant has now applied for leave to appeal the decision of the FCC dismissing the application for reinstatement. 2 Leave to appeal the decision of the FCC is necessary as a decision refusing to reinstate an application is interlocutory in nature: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth); FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [2]; Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3]. In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court held at 398-9 that leave to appeal from an interlocutory judgment requires the applicant to show both that there is sufficient doubt as to the correctness of the decision below to warrant review and further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The second limb of the test is not in issue, as it may be accepted that substantial injustice would be suffered by the applicant if the first test is met but leave to appeal nonetheless refused. In issue is satisfaction of the first test. 3 The decision of the FCC not to reinstate the proceeding was discretionary and so attracts the application of the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-5 where Dixon, Evatt and McTiernan JJ observed: 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. The reasons of the FCC do not, in my view, suggest the existence of any such kind of error. 4 First, contrary to the submission for the applicant, there was no error of principle in the primary judge not favourably exercising the discretion to reinstate the proceedings on compassionate grounds. The error of principle was said to lie in the FCC's reasoning that it had "no power" to reinstate the proceeding on the compassionate grounds identified by the applicant, when the Court's power to reinstate a proceeding under r 16.05(2) of the FCC Rules is not circumscribed. Rule 16.05(2) in terms does not limit the power of the FCC to reinstate proceedings dismissed for non-appearance. However, the discretion, whilst not confined, must be exercised judicially. It is not a discretion at large which can be exercised based upon purely extraneous considerations. The compassionate reasons put forward by the applicant were extraneous to the factors bearing upon whether the Court should order reinstatement. As Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 observed at [4], in the exercise of the discretionary power of the FCC under r 16.05 of the FCC Rules to reinstate a proceeding which has been summarily dismissed for non-attendance, three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and whether the applicant has an arguable case on judicial review. Her Honour observed at [4]: The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. These three factors are not mandatory considerations but each of them has relevance to the ultimate question bearing on the exercise of discretion, which is whether reinstatement is in the interests of justice: FBS18 at [53]. Where there would be no utility in favourably exercising the discretionary power to reinstate a proceeding because the application has no arguable prospects of success, reinstatement is a wasted exercise and not in the interests of justice. Although in this case the FCC used the term "power", the FCC did not misconstrue the scope of the discretion or act on any error of principle and was correct to hold that it is not a proper exercise of the discretionary power to grant reinstatement for compassionate reasons, absent any arguable case of jurisdictional error by the Authority. 5 Nor was there any error of principle in the approach adopted by the FCC in concluding on "an impressionistic level" the proposed grounds of review did not disclose a sufficiently arguable case of jurisdictional error by the Authority so as to identify a reasonable case to support an extension of time in the interests of the administration of justice under s 477 of the Migration Act: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 at [68]. The proposed two grounds of review before the FCC were: Jurisdictional Error - The Immigration Assessment Authority's decision ("IAA") dated 16 January 2019 (the decision) is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicants do not meet the requirements of the definition of refugee in s.5H(1) or why the applicants did not meet s36(2)(a) of the Migration Act 1958 (Cth). Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error. Jurisdictional Error - The IAA decision is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicants do not face a real chance of significant harm, and why the applicants do not face a real risk of significant harm form [sic] the community on this basis for the purpose of s36(2)(aa) of the Act. Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error. 6 Counsel for the applicant urged this Court to interpret the proposed grounds liberally and beneficially to the applicant on the question of reinstatement as the applicant was self-represented before the FCC and had limited language abilities. It was argued that in his lay terms the applicant was identifying that he was concerned in relation to particular findings and that the question before the primary judge was whether there was a reasonable argument that the Authority had not considered all the evidence before it in reaching its decision. It was further submitted that the primary judge arguably fell into error at [34] of the FCC judgment, where the FCC concluded that it was "apparent from the Authority's reasons… that the Authority did consider the applicant's claims and evidence" and that it was "also evident that the Authority did provide logical and rational reasons consistent with the correct application of the law under the 1951 Refugee Convention and in relation to complementary protection and the making of adverse findings that were open to the Authority for the reasons given by the Authority". 7 The first claimed arguable jurisdictional error in the Authority's decision is with respect to the Authority's consideration as to whether the applicant (who is a Sunni Muslim) faces a real chance of harm if returned to his home area of Tripoli in Lebanon. Amongst the matters addressed by the Authority, the Authority considered that the chance of the applicant getting caught up in any possible future violence was "too remote and speculative to amount to a real chance". That consideration was based in part on a 2013 DFAT Thematic Report entitled "Sectarian Violence in Lebanon" and a 2017 DFAT Country Information Report (2017 DFAT Report), which reported that since the implementation of a security plan in 2014 to end conflict there had been no significant incidents or violence against Sunnis in Tripoli and the city is considered to be broadly stable. The Court was taken to submissions put to the Authority on behalf of the applicant where, under the heading "Real Chance", reference was made to a different part of the 2017 DFAT Report which, according to the submissions put on behalf of the applicant, assessed the security situation in Lebanon as remaining "largely stable, but unpredictable" and stated that "DFAT assesses that Sunnis in other areas of Lebanon currently face a low risk of violence or discrimination, but that the situation in Tripoli and Bab al-Tabbeneh is susceptible to escalation at short notice". It was submitted this part of the report highlighted in the applicant's submissions to the Authority was highly relevant to the future threat of violence in the context of the earlier finding of the Authority that it was plausible the applicant had got caught up in the earlier violence in Tripoli between 2010 and 2012. 8 There are three responses to these submissions. First, the two proposed grounds of review as formulated lacked the specificity required in order to identify the actual substantive basis upon which it is sought to be contended that there is jurisdictional error in the decision of the Authority. Secondly, the FCC was not put on notice of the jurisdictional error now alleged by the applicant. The FCC decision does record at [37] that the applicant "also referred to fear and harm" but there was no identification of anything said by the applicant to the FCC to put the FCC on notice of the need to examine whether the Authority had ignored relevant country information. Thirdly, in determining whether the applicant has arguable grounds of review, the FCC was only required to consider the merits of the proposed grounds at a reasonably impressionistic level and was not required to conduct a full hearing: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at 598 [62]; endorsed on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. The arguable jurisdictional error now identified in the Authority's reasons does not appear on the face of those reasons. There cannot be error in the exercise of the discretionary power in failing to consider an argument that was neither put nor obviously arising on the Authority's reasons. 9 A second claimed jurisdictional error in the Authority's reasons is said to appear at [17] in the finding of the Authority that the applicant possessed no special skills and had no particular profile that would make him valuable to an extremist group. It was submitted that this finding could only rationally be made based on evidence about each extremist group, and the arguable jurisdictional error was said to be that it may not be rationally open to an Australian decision maker to make general inferences and impute logical conclusions to extremist organisations or proceed on the basis that extremist organisations act in a uniform manner. Counsel accepted that such an argument was never put below. It also lacks any merit. The finding was based on adverse credit findings made against the applicant, whose claims the Authority did not accept, and rejection of other claims made by the applicant, which the Authority found were "implausible" on the basis of county information. 10 Accordingly the application is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies.