BCE15 v Minister for Immigration and Border Protection

1. The Application for an extension of time is refused.
2. The proceeding is otherwise dismissed.
3. The Applicant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1 The Applicant is a citizen of Nepal. She was born in Butwal, Rapandehi in 1983 and is a Hindu. She is married and has two children. 2 She entered Australia on a fraudulently obtained passport in March 2008. In January 2011 she lodged a claim for a Protection (Class XA) visa. A delegate of the Minister refused that application in April 2011. She lodged a further claim for a Protection visa in September 2013. Again that application was refused. 3 The Applicant then sought review by the former Refugee Review Tribunal. 4 She was invited to attend a hearing before that Tribunal - but the date of the scheduled hearing was changed. Initially, a letter forwarded to her by the Tribunal in March 2015 advised that a hearing would be held in June 2015. But the Presiding Member became unable to conduct the hearing on that date. In April 2015, a further letter forwarded by the Tribunal to the Applicant invited her to attend a hearing on 13 May 2015. Responses to both invitations were sought within seven days. No response to either invitation was provided within seven days. 5 The Applicant did not attend the hearing before the Tribunal on 13 May 2015. In the absence of the Applicant appearing, the Tribunal concluded that it could not be satisfied "as to any substantive aspect of the applicant's claims". On 15 May 2015 the Tribunal affirmed the delegate's decision. A few days later, on 21 May 2015, the Tribunal received a response from the Applicant purporting to accept the first invitation to attend a hearing. But by then the Tribunal had made its decision. 6 The Applicant then sought judicial review of the Tribunal's decision by the Federal Circuit Court of Australia. 7 In July 2015 directions were made by a Registrar of the Federal Circuit Court for the filing by the Applicant of an Amended Application, evidence and submissions. Those directions made by the Registrar advised the Applicant that the matter would be listed at a call-over on 2 November 2015 and that the matter would be allocated a hearing date in the period 3 to 6 November 2015. She was also then advised that at that hearing she would be called upon to show cause why her application should not be dismissed or that the matter could be heard on a final basis. At that call-over the matter was listed for hearing on 3 November 2015. She attended in person at the hearing on 3 November 2015. 8 The Applicant did not file any Amended Application. The grounds in the original Application, upon which she proceeded, were as follows (without alteration): 1. I cannot afford to be a victim of the Refugee Review Tribunal Member's purported decision as I was invited to appear before the Tribunal at 9 am on 3 June 2015 to give evidence but the Tribunal Member made a decision on 15 May 2015 before my hearing was conducted. It is a matter of life and I am in need of justice. 2. I believe the Tribunal's decision has involved an error of law. 3. I argue that the Refugee Review Tribunal Member's decision was taken in breach of procedural fairness and natural justice. 9 On 3 November a Judge of that Court in an ex tempore judgment dismissed the proceeding pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): BCE15 v Minister for Immigration & Anor [2015] FCCA 2956. 10 Rule 44.12 provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. Although the period of time between the giving of notice on 2 November and the hearing on 3 November 2015 was indeed short, the Applicant had been given in July 2015 an opportunity to amend her claims and had not done so and had then been advised of the range of dates during which her matter would next come back before the Court. The interposing of the directions made by the Registrar in July 2015 and the dismissal of the hearing in November 2015 goes some way to meeting the concerns expressed in SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88 at [54] to [55], (2015) 229 FCR 317 at 328 per Mansfield, Tracey and Mortimer JJ. 11 On 1 December 2015 an Application for an extension of time and leave to appeal was filed in this Court seeking to appeal from the decision of the Federal Circuit Court given on 3 November 2015. 12 An extension of time is required because any application seeking leave to appeal is required to be filed within 14 days: Federal Court Rules 2011 (Cth), r 35.13. Leave to appeal is required because the decision of the Federal Circuit Court Judge is an interlocutory decision: Federal Court of Australia Act 1976 (Cth), s 24(1A). 13 The affidavit filed by the Applicant in support of her extension of time states that she was of the belief that she had 28 days within which to appeal. 14 Had the Draft Notice of Appeal from the decision of the Federal Circuit Court Judge disclosed any arguable appellable error or error in the exercise of the discretion to dismiss the proceeding, an extension of time would most probably have been granted. The period for which the extension was required was short and the Respondent Minister claimed no prejudice. 15 But the Draft Grounds of Appeal do not expose any error which has sufficient prospects of success to warrant leave being granted. 16 The reasons for decision of the Federal Circuit Court Judge: address each of the grounds of review as were then before that Court; provide a basis upon which each of those grounds was rejected; and separately state that it was considered "appropriate" to exercise the discretion conferred. Those reasons also record an opportunity apparently being afforded to the Applicant to identify any further error in the reasons for decision. 17 It was perhaps the re-scheduled date of the hearing before the Tribunal which should have occasioned some hesitation before dismissing the Applicant's claims for relief. Available inferences that could have been drawn from the simple chronology of events included the fact that: the Applicant was notified and had in fact received advice as to both the initial hearing date and the re-scheduled hearing date - the invitations to attend a hearing being forwarded to the Applicant's address for service which had remained unchanged throughout; and the Applicant did wish to attend a hearing before the Tribunal, although the response to the hearing invitation was outside the time in which the Tribunal had requested her to respond and after the date of the Tribunal decision. It may well have been expected that the Applicant would have provided some explanation to the Federal Circuit Court for why she did not respond to the invitation forwarded to her in April 2015. There was the glimmer of an argument relating to a denial of an opportunity to be heard. That explanation could have been a simple mistake on her part or an inability to understand what was sought to be conveyed by the April 2015 letter. Even in the absence of explanation, it may have been appropriate for the Federal Circuit Court Judge himself to have made inquiries as to why she did not attend. The reasons for decision of that Court nevertheless simply record that the Applicant did not "provide any reason why she was unable to attend": [2015] FCCA 2956 at [11]. But that explanation appears to be a transcription of a statement made by the Tribunal in its reasons for decision, that statement having been made prior to the belated response forwarded by the Applicant to the Tribunal a few days after it had made its decision. But it remained unexplained in this Court what transpired before the Federal Circuit Court. 18 It is nevertheless idle to speculate as to the potential success of any such argument. For present purposes, attention must remain focussed on the reasons for decision of the Federal Circuit Court Judge. And there is no sufficiently arguable error apparent from the reasons provided that would warrant an extension of time (or leave to appeal) being granted, including the reasons given for dismissing the claim regarding a denial of procedural fairness. 19 The reasons of the Federal Circuit Judge, it may further be noted, state in part: "Nothing was said by the applicant from the bar table to identify any arguable jurisdictional error": [2015] FCCA 2956 at [14]. Given the considerable complexity surrounding what constitutes jurisdictional error, it was perhaps hardly surprising that an unrepresented claimant from Nepal could not provide any meaningful assistance. It is important to recall that the "subtleties of 'jurisdictional error' have sometimes escaped experienced judges": Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [24], (2001) 179 ALR 513 at 519. Kirby J there went on further to observe that it was "not wholly surprising that the distinction might not have been fully understood by the [unrepresented] applicant". His Honour had earlier observed: [13] The applicant does not have counsel or a solicitor or any other advocate or representative. He has for a long time been detained in immigration detention. He is unable to earn funds to pay for a lawyer of his choice. He does not speak the English language. He claims to be a refugee. In such circumstances it would be an affront to justice for me to sit silent and allow him, unaided, to flounder in the mysteries of our court procedures and substantive law until he had adequately demonstrated an incapacity to present relevant evidence and argument. The judicial power of the Commonwealth does not oblige those who exercise it to engage in a charade of justice. On the other hand, there are limits to what judges can do. I express a sense of disquiet about participating judicially in this Court in such an unequal struggle between an indigent unrepresented litigant, detained in custody, and the government of the Commonwealth, well represented and resourced. It is also a fact not to be ignored that the phrase "jurisdictional error" is one which "fails helpfully to define potential causes of invalidity": Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208 at [76], (2012) 223 IR 86 at 108 per Basten JA. See also: Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 at [6] per Mansfield J; SZQPE v Minister for Immigration and Citizenship [2012] FCA 544 at [21] per Flick J. 20 Any expectation on the part of the Federal Circuit Could Judge that the Applicant in the present case could have provided meaningful assistance with respect to "any arguable jurisdictional error" is, with respect, at best an expression more of vain hope than reality. 21 It should, perhaps, be finally noted that this Court has reviewed the reasons for decision of the Tribunal in order to satisfy itself that those reasons do not expose any jurisdictional error other than those canvassed in the application filed in the Federal Circuit Court. None is readily discernible. It is considered to be of considerable public importance, and of importance especially to unrepresented claimants seeking protection visas, to be assured that a Judge has independently scrutinised the reasons of the Tribunal to determine if any jurisdictional error is readily apparent or even arguable. The proper administration of justice, it is considered, is only enhanced by a Court undertaking such a review. Any independent review which is undertaken is best undertaken by the Judge of the Court before which such applications are initially filed, namely the Federal Circuit Court. 22 It would be well open to contend, for example, that it would not be an "appropriate" exercise of discretion to dismiss a proceeding in circumstances where an independent review of the reasons for decision of the Tribunal exposes potential jurisdictional error, even if that error is not raised as a ground of review. It may well be an exercise in undue formality for a potential error not to be exposed for consideration simply because an unrepresented claimant has not relied upon that potential argument. It would be an "affront to justice" for a Judge to remain silent in such circumstances. Persons who seek refugee status are frequently "engaged in an often desperate battle for freedom, if not life itself": Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. 23 The conclusion that has nevertheless been reached in the present case is that the Application for an extension of time should be refused. Although the extension of time which is sought may be short, any appeal - even if leave to appeal were to be granted - would not have sufficient prospects of success to warrant any exercise of discretion favourable to the Applicant. It thereafter becomes unnecessary to resolve any question as to the grant of leave to appeal. 24 There is no reason why costs should not follow the event such that the Applicant should pay the costs of the First Respondent. THE ORDERS OF THE COURT ARE: