BUT18 v Minister for Home Affairs

1. The applicant's application filed 3 December 2018 is dismissed.
2. The applicant is to pay the first respondent's costs of and incidental to this application to be taxed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 In this matter, the applicant has applied for an extension of time in which to seek leave to appeal the judgment of Vasta J: BUT18 v Minister for Home Affairs & Anor [2018] FCCA 3361 (BUT18). 2 Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the primary judgment was an interlocutory decision made under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules). 3 The time period in which to make the present application is fixed by r 35.13(a) of the Federal Court Rules 2011 (Cth) at 14 days from the date on which the primary judgment was pronounced. The primary judge pronounced his judgment ex tempore on 5 November 2018. Since the applicant filed his application in this Court on 3 December 2018, he did so 14 days out of time. 4 It can be seen from the guiding principles applicable to the two aspects of this application set out below - the extension of time and the leave to appeal - that they involve an overlap in one respect: the correctness of the primary judgment or, expressed differently, the prospects of the applicant's proposed appeal. 5 In Ah-Chee v Stuart [2019] FCAFC 165, the Full Court set out the following principles with respect to an application for leave to appeal ([11]-[12]): 11 The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court's discretion include: (a) whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial justice [sic - injustice] would result if leave were refused, supposing the decision is wrong. 12 Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments. 6 The Minister for Home Affairs (the Minister), the first respondent, confined his submissions to the former matter (see [5(11(a))] above), presumably accepting that, in the particular circumstance of this matter, substantial injustice would flow to the applicant if the primary judgment was in error and leave to appeal were not granted. 7 In determining whether to exercise the discretion to grant an extension of time, the Court will normally have regard to the length of any delay, the explanation offered for the delay, any prejudice that may be suffered by the respondent and the applicant's prospects of success in the proposed appeal if an extension were to be granted (see EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214 at [19] per Perry, Derrington and Wheelahan JJ). 8 In respect of the first and third of these considerations, the Minister does not submit that the length of the delay is such that it should be regarded as significant and he does not claim to suffer any relevant prejudice. 9 As for the second consideration, the applicant filed an affidavit in support of this application in which he attempted to explain his failure to attend the Federal Circuit Court hearing and his subsequent delay in the Federal Circuit Court proceeding. However, he did not provide any explanation for his delay in filing the present application in this Court. When I raised this deficiency with the applicant's lawyer at the hearing of this matter, he did not seek to deny it existed, nor attempt to remedy it. In those circumstances, I consider I must have regard to the applicant's unexplained failure to comply with the Rules of this Court in determining whether he should be granted the extension of time he has sought. 10 There remains the fourth consideration which, as mentioned above, overlaps with the first of the considerations relating to the application for leave to appeal, namely the correctness of the primary judge or, conversely, the prospects of the applicant's proposed appeal. 11 Since this aspect requires a consideration of the primary judgment and the Federal Circuit Court proceeding to which it related, it is necessary to turn to those topics next. I will begin by setting out the pertinent aspects of the procedural history to the Federal Circuit Court proceeding and then turn to consider the primary judge's reasons for judgment. 12 By an application filed in the Federal Circuit Court on 10 April 2018, the applicant sought judicial review of a decision of the Immigration Assessment Authority (IAA) which affirmed an earlier decision of a delegate of the Minister to refuse his application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa. 13 The applicant's application was listed for a first court date before a Registrar of the Federal Circuit Court on 9 May 2018. The applicant did not appear on that occasion and, as a result, his judicial review application was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. The primary judge described the circumstances of that non-appearance in the following terms (BUT18 at [30]): … once the application was filed in this registry, the papers were stamped and given to the [a]pplicant. The front page of the papers has very clearly written that the first court date would be 2.15pm on 9 May 2018. It was incumbent upon the [a]pplicant, having been given those stamped papers by the registry, to serve the Minister. He did so. At 2.15pm on 9 May, the [a]pplicant did not appear. Registrar Buckingham dismissed the application because the [a]pplicant did not appear. 14 On 2 July 2018 (almost two months later), the applicant filed an application seeking to set aside the Registrar's order of 9 May 2018 under r 16.05 of the Federal Circuit Court Rules. That application came before the primary judge on 5 November 2018. His Honour's decision to dismiss it is the subject of the present application. 15 At this point, it is important to emphasise two things. First, the primary judge's decision to reject the applicant's reinstatement application involved the exercise of a discretion on a matter of practice and procedure. In Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97, the Full Court set out the following principles with respect to the grant of leave to appeal such a decision (at [14]-[17]): (a) "leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure"; (b) "[a]ppellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution" (emphasis removed) (referring to Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and (c) where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King (1936) 55 CLR 499 (House v The King) at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge. 16 Secondly, the "indispensable condition" of an appeal to this Court from a judgment of the Federal Circuit Court is the existence of error in that judgment (see Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [30] per Gageler J). It follows that the judgment in BUT18 is the immediate focus of this appeal. 17 In his reasons for judgment, the primary judge identified the considerations applicable to the reinstatement application before him (BUT18 at [31]). As it happens, those considerations are similar to those relating to the extension of time aspect of this application (see at [7] above). With respect to those considerations, the primary judge: (a) noted that the Minister did not claim to suffer any relevant prejudice (BUT18 at [33]); (b) rejected the explanation the applicant offered for his non-appearance on 9 May 2018 (BUT18 at [34]-[35]); (c) rejected as irrelevant to an application for judicial review the factual matters the applicant advanced before him (BUT18 at [36]-[38]); and (d) based on a review of the IAA's decision record (BUT18 at [1]-[18]), decided that there was no merit in any of the four grounds of review set out in the applicant's judicial review application (BUT18 at [19]-[29]). 18 The primary judge summarised his views on the latter aspect (see at [17(d)] above) in the following terms (BUT18 at [29]): The problem with all of these claims are that the [a]pplicant has really misconstrued what the role of this Court is. This Court is not a Court of appeal; it is a Court of review. It matters not whether the Court agrees or disagrees with the final decision given by the IAA. What is to the point is whether or not the legislative framework that governs the exercise of the IAA's decision making power has been followed, and in this matter it would seem that the IAA has followed the law and has made its findings based upon facts and inferences that were open to it. There can be no jurisdictional error in such a case. 19 Before he appointed his current lawyer to act for him in this application, the applicant filed a set of written submissions. With the exception of the following paragraph, all of those submissions were directed to the factual issues the IAA either considered or, on the applicant's case, did not consider in its decision: 5. In the judicial review initially before the Primary Judge this issue could be dealt with under ground one. 20 The issue to which the applicant referred in this paragraph was stated earlier in his submissions as follows: Should a person fearing persecution modify his behaviour so as to provide information when needed to authorities to allay any fears of being persecuted. (Emphasis removed) 21 The applicant claimed this claim was "implicit in the material before the [IAA]". 22 The "ground one" to which the applicant referred was expressed in the following terms: 1. Both respondents failed to take into consideration the relevant facts in the applicant's SHEV application and made a jurisdictional error. 23 The words "both respondents" in this ground of review referred to the IAA and the delegate. As the primary judge observed, the delegate's consideration of the applicant's application could not, in the circumstances of this matter, be relied upon by the applicant to establish jurisdictional error. That aside, there is nothing in ground one above from which the issue to which the applicant referred in his submissions above (at [19]-[20]) could be implied. 24 That being so, that issue was neither expressly, nor implicitly, raised before the Federal Circuit Court. It is therefore self-evident that the primary judge could not have erred in respect of a matter he was not asked to consider. It is also worth noting that this issue does not appear in the applicant's draft grounds of appeal (see below at [25]), nor in the further set of submissions filed on his behalf by his present lawyer. For these reasons, I do not consider this matter discloses any appellable error in the primary judgment. 25 As is mentioned above, after the applicant retained a lawyer to act for him in this matter, a draft notice of appeal and a further set of submissions were provided to the Court on his behalf. The draft notice of appeal contains two grounds of appeal. Both of those grounds focus on the IAA's decision and say nothing about whether any error is present in the primary judgment. Those grounds are as follows: 1. [IAA] fell into a jurisdictional error by failing to consider a relevant issue. Particulars [IAA] failed to discern the intentions of the Sri Lankan security forces in that [a]ppellant was approached on numerous occasions after being released from internment for three years as the security forces wanted him to work for him as an informant. 2. [IAA] misapplied the well-founded fear test and therefore is in breach of ss 5J (3) (a), (c) (iii) and 5k. Particulars Appellant was approached by the forces for information approximately 5 times in the 2 months following his release from the IDP camp. This was in conflict with a characteristic that is fundamental to the person's identity or conscience s 5J (3) a as there were deaths in the family associated with the [Liberation Tigers of Tamil Eelam]. (Errors and italics in original) 26 Apart from the three paragraphs set out below, the further set of submissions filed by the applicant's present lawyer also maintained the same focus on the IAA's decision and ignored the primary judgment: 13. IAA failed to identify that claim and deal with it. His Honour at the trial stated that there was no jurisdictional error. BRG 346 of 2018 at 38. 14. If the [a]ppellant returns to Sri Lanka he will be forced to work for the Sri Lankan security forces. 15. It is submitted that IAA and the Primary judge overlooked this particular claim which is central to the [a]ppellants case. (Errors in original) 27 None of these grounds, or submissions, describes an error of principle of the kind described in House v The King. This is a sufficient reason, in itself, to dismiss this application. In essence, the applicant has attempted to gain the judicial review that was the object of his original application before the Federal Circuit Court, as if that application were still instanta, without making any attempt to identify any relevant error in the discretionary judgment which dismissed that application for his unexplained failure to attend the first hearing. 28 In any event, even if the applicant were to be accommodated in that pursuit, he has also failed to identify any relevant error in those parts of the primary judge's reasons for judgment where he reviewed the IAA's decision for jurisdictional error. In those parts of his reasons, the primary judge duly considered the four grounds of review before him and correctly concluded that they did not identify any jurisdictional error on the part of the IAA (see at [17(d)] and [18] above). As for the applicant's contention that the primary judge "overlooked" his claim that he would be forced to work for the Sri Lankan security forces were he to return to Sri Lanka, no such claim was raised in any of the applicant's grounds of review before the Federal Circuit Court. Furthermore, he did not clearly articulate such a claim before the IAA, nor was any such claim clearly apparent on the materials before it. 29 For these reasons, I do not consider the applicant has demonstrated that the primary judgment is attended by the doubt necessary to justify its reconsideration by a Full Court and nor do I consider that his appeal has sufficient prospects of success to warrant leave being granted for that purpose. Accordingly, the applicant's application filed 3 December 2018 must be dismissed with costs. 30 The orders will be: