Baby v Minister for Immigration and Border Protection

Federal Circuit Court 12 On 20 August 2018, the primary judge made orders listing the application for 10 September 2018 for the purposes of a "show cause" hearing pursuant to r 44.12 of the FCC Rules. Rule 44.12 of the FCC Rules permits the Court to dismiss an application if it is not satisfied that the application raises an arguable case for the relief claimed. 13 The applicant appeared in person at the hearing before the primary judge and indicated to the primary judge that he was seeking an adjournment of two weeks to file submissions. That application was opposed by the Minister. The primary judge refused the adjournment on the basis that it was not in the interests of justice that he do so, noting that the applicant had had ample time to file submissions since 28 April 2017 (when he filed the application) and 22 May 2017 (when orders were made by the Registrar) and 20 August 2018 (when the primary judge made orders listing the show cause hearing): J[8]-[9]. 14 The primary judge set out the grounds of the application for judicial review of the Tribunal's decision at J[10] (as written): 1. The Tribunal failed to exercise its jurisdiction. It was error for the Tribunal to assess the application without allowing applicant to present his arguments. 2. My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter such information was required to be sent to me written to make comments, in order to fully compliance of section 424A. 3. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application. 15 With regard to the first ground, the primary judge found (at J[6]-[7]) that, on the face of the material before the Court, the applicant had been given an opportunity to attend the Tribunal hearing under the statutory regime because the letter inviting him to attend had been sent by email to the email address which he provided. Although the applicant asserted that he did not receive the email, the primary judge found that that does not identify any error in the Tribunal proceeding to determine the matter under s 362B of the Migration Act, and there was "no legal unreasonableness" in it doing so. The primary judge made findings (at J[11]-[12]) having regard to ss 360A, 362B, 379A(5)(b) and 379C of the Migration Act that "[n]o arguable case of legal unreasonableness" arises in the circumstances and "[n]o arguable case of jurisdictional error" was disclosed by the ground. 16 With regard to the second ground, the primary judge noted that the applicant's assertion that no attempt had been made to contact him "does not sit neatly" with his submission that he was informed by someone else not to attend. The primary judge found (at J[13]-[14]) that, on the face of the material before the Court: (1) The applicant was properly invited to attend the hearing and it was open to the Tribunal to proceed to determine the matter on the material before it; and (2) The applicant provided the delegate's decision to the Tribunal. That decision identified information about the expiry of the applicant's last substantive visa, as well as the date of the application for the visa. The Tribunal was not obliged to put this information to the applicant as it was information which the applicant had provided to the Tribunal in his application for review. There was no information identified which would enliven any obligation under s 359A of the Migration Act in these circumstances. As a result, his Honour found no arguable case of jurisdictional error was made out by the second ground. 17 With regard to the third ground, the primary judge (at J[15]) found that the Tribunal correctly identified the relevant mandatory criteria and there had been nothing identified that reflects any misinformation or misapplication of the relevant criteria by the Tribunal. His Honour found that no arguable case of jurisdictional error was disclosed. 18 As a result of the findings outlined above, at the conclusion of the hearing the primary judge was satisfied that it was appropriate to dismiss the application on a "show cause" basis under r 44.12 of the FCC Rules.

Application to this court 19 On 11 October 2018, the applicant filed in this Court an application for an extension of time and leave to appeal from the decision of the Federal Circuit Court as well as a supporting affidavit sworn by the applicant that day. 20 The application sets out the following grounds (as written): 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the medical visa appeal application. 2. The Hon. Judge Street dismissed the application without considering the legal and factual errors contained in the decision of AAT. 21 The affidavit supporting the application did not contain a draft notice of appeal. It recited the litigation history, noting that the applicant had not been represented by a solicitor or barrister in the proceedings before the primary judge. It did not give a reason for the delay in filing the application. 22 A draft notice of appeal was received by the Court on the date the application was filed. The draft notice of appeal sets out the following grounds (as written): 1. The Federal Judge failed to consider that the the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Act; 2. the Tribunal failed to exercise its jurisdiction: it was an error for the Tribunal to assess the application without allowing applicant to present his arguments; and 3. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 23 The Minister opposed both applications. 24 The Minister filed written submissions and appeared by his legal representative. The applicant did not file written submissions and appeared in person at the hearing. The Court was assisted by an interpreter.

Principles applicable to an application for extension of time 25 Rule 35.13(a) of the FCA Rules provides that an application for leave to appeal must, absent orders to the contrary, be filed within 14 days after the date on which judgment was pronounced. As the primary judgment was delivered on 10 September 2018, the applicant was required to file his application for leave to appeal on or before 24 September 2018. Instead, the applicant filed his application 18 days after the prescribed period had elapsed. As a result, the applicant requires an extension of time in which to lodge the application for leave to appeal. 26 On an application for an extension of time, the Court will ordinarily consider the length of the delay, the explanation for it, whether the grant of an extension would unduly prejudice the respondent, and the prospects of successfully prosecuting the appeal if the extension were to be granted. The Minister does not claim to be prejudiced by the delay, but there is no explanation for it and the Minister says that proposed grounds in the notice of appeal lack merit so that an extension of time should be refused.

Principles applicable to an application for leave to appeal 27 The decision for which the applicant seeks leave to appeal is a decision by the primary judge under r 44.12(2) of the FCC Rules as to whether he is satisfied that the application "raised an arguable case for the relief claimed". Appeals against such decisions are subject to the same principles as apply to discretionary decisions, thereby requiring the identification of errors of the kind discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505: see Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138 at [17] and SZTRG v Minister for Immigration and Border Protection [2014] FCA 836 at [22]-[23]. As noted in Samsung Electronics Co Limited v Apple Inc at [18]-[19]: 18 The questions traditionally asked when considering whether leave to appeal should be granted have been repeatedly phrased in terms of: (a) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong. See: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9 per Sheppard, Burchett and Heerey JJ. The discretion conferred by s 24(1A), it was there said, was an "unfettered discretion" conferred in "unqualified terms". 19 The very width of the discretion and the prudence in not seeking to confine the manner in which it is to be exercised is a necessary corollary of the myriad of interlocutory decisions which may be made - ranging from interlocutory decisions affecting the substantive rights of parties (and effectively being final orders) to matters of practice and procedure (including decisions to extend time, the granting or refusal of adjournments and the filing of evidence). The different character of interlocutory decisions which may be made and the different factual and forensic circumstances in play when such decisions are made nevertheless have occasioned a different emphasis from one judgment to another upon one particular factor or factors rather than others. 28 There is a material difference between an exercise of discretion on a point of practice or procedure (on which a "tight rein" must be kept) and an exercise of discretion which determines substantive rights. The Minister accepts that where, as here, an interlocutory decision effectively determines a substantive right or dismisses a proceeding, leave to appeal will usually be granted if any doubt attends the decision under review, relying on Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43]. The Minister submits that there is no doubt attending the primary judge's decision in this case.

Consideration 29 I am satisfied that this application should be dismissed with costs. The applicant provided no acceptable reason for the delay in filing his application in this Court, explaining only that he did not know the timeframe. The proposed grounds of appeal have no meaningful prospect of success as, in my view, the primary judge correctly dismissed the application for judicial review for the reasons that he gave and no jurisdictional error attends the Tribunal's decision. 30 The proposed grounds of appeal lack particulars, save that ground two directly addresses the question of whether the Tribunal was correct in its decision to proceed to determine the applicant's application for review of the delegate's decision without offering him a further opportunity for a hearing. The Application Book contains a copy of the application made to the Tribunal and of the letter via email sent to the applicant on 15 March 2017 to which was attached the invitation to attend the hearing. I perceive no error by the Tribunal in its decision to proceed to make a decision under s 362B of the Migration Act when, on 7 April 2017, the applicant failed to attend the hearing to which he had been invited in the manner which he had said he could receive communications in response to question 25 of the application for review. Section 379A(5)(b) of the Migration Act specifies email to an address provided to the Tribunal by the recipient in connection with the review as one of the methods by which the Tribunal may give a document to a person. Section 379C(5) deems the person to have received the document at the end of the day on which it was transmitted. The statutory pre-conditions to the Tribunal making its decision had therefore been satisfied, whether or not the applicant in fact received the invitation, and nothing had been brought to the Tribunal's attention which would have made it unreasonable for it to proceed to make a decision. 31 Further, the Tribunal was obliged to affirm the delegate's decision because cl 3001 of Sch 3 to the Migration Regulations was not met, the applicant having filed his application for a medical treatment visa more than six years after his last substantive visa expired, not within the required 28 days. As found by the Full Court in Ahmad v MIBP at [36], any legal or factual error by the Tribunal could not have made a difference. There was therefore no point in making further attempts to invite the applicant to a hearing. 32 At the hearing today, the applicant mentioned that he had made a protection visa application following the expiry of his temporary business visa, but I accept the Minister's submission that there is nothing in cl 602.613 or cl 3001 which would make that relevant. The applicant made no other submission in support of his application. He did mention that he was getting married in early March 2019. It is not clear whether he was seeking an adjournment of these proceedings to allow that to happen before a decision was made on his applications to this Court, but if that is what he meant, there is no appropriate basis on which an adjournment (which is opposed by the Minister) should be allowed.

Conclusion 33 The applications for an extension of time to appeal and leave to appeal should be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.