BZAHM v Minister for Immigration and Border Protection

Factual background 2 The factual background to the current proceeding has been set out at length in both the decision of the primary Judge and the decision of the Federal Circuit Court (in BZAHM v Minister for Immigration [2015] FCCA 49). 3 In substance: The applicant is a national of Vietnam who came to Australia on a Temporary Work (Skilled) Principal Applicant Offshore (UC457) visa. That visa has expired. The applicant lodged an application for a further employment-related visa, however it was refused. He subsequently lodged an application for a Protection (Class XA) visa. His wife and children made similar claims, relying on their membership of the applicant's family unit. The applicant's application for a protection visa was refused by a delegate of the Minister. The applicant sought a review of the delegate's decision in the Tribunal. The applicant did not appear at the Tribunal hearing, and the Tribunal was not notified beforehand that the applicant would not be attending. The delegate's decision was affirmed by the Tribunal on 18 June 2014 in accordance with s 426A of the Migration Act. The decision was certified at 1.37 pm on that date. On 18 June 2014 at 4.09 pm, a representative of the applicant sent a facsimile transmission to the Tribunal, advising that the applicant could not attend the hearing that morning because he was bedridden due to illness, and attaching a medical certificate. The Tribunal wrote to the applicant's representative on 20 June 2014, advising that by the time it had received the facsimile transmission and medical certificate, it had already made its decision, and had no power to take further action in respect of the review of the decision of the delegate. The applicant made a further application for a protection visa on 10 July 2014, and a delegate of the Minister notified the applicant that this further application would be considered as a request for ministerial intervention. Ministerial intervention was refused on 19 August 2014.

Decision of the Federal Circuit Court 4 By the time the applicant filed his application for review of the Tribunal's decision in the Federal Circuit Court the application was 43 days late. The Federal Circuit Court Judge concluded that the delay was not particularly lengthy, and accepted the applicant's explanation for the delay. However, the Federal Circuit Court Judge considered that the substantive application for review of the Tribunal's decision had such little prospect of success that to grant an extension of time within which to commence the proceedings would not be in the interests of the administration of justice. In particular, the Federal Circuit Judge concluded: It was not unreasonable for the Tribunal to proceed in the absence of the applicant where the Tribunal was satisfied that the applicant had been appropriately notified of the hearing date and the applicant did not seek any form of adjournment prior to the hearing date. The Tribunal had no obligation to contact the applicant when he did not appear at the hearing. The fact that the Tribunal had a month earlier granted an adjournment of the hearing did not mean that the Tribunal was obliged to infer that the applicant would seek a further adjournment, or to assume that the failure of the applicant to appear at the Tribunal hearing was due to his illness. The Tribunal had not erred in respect of the applicant's request based on his medical certificate, because by the time the Tribunal received the certificate it had already made its decision on the applicant's review application. In respect of the applicant's claim that the Tribunal failed to discharge its statutory obligations under s 36(2)(AA) of the Migration Act, the applicant's complaints amounted to an impermissible request for merits review.

Decision of the primary Judge 5 Before his Honour in the Federal Court the applicant sought review of the decision of the Federal Circuit Court on the grounds that: (a) the Federal Circuit Court Judge misapprehended the test to be applied under s 477(2)(b) of the Migration Act in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Migration Act; (b) in determining whether there was a discretion to extend the time for an application for a remedy under s 476 of the Migration Act, the Federal Circuit Court Judge failed to consider s 476A(3) of the Migration Act and thereby: ● failed to take into account a relevant consideration; and ● denied the applicant procedural fairness. (c) the Federal Circuit Court erred in law by deciding that the Tribunal's decision to conduct a hearing in the applicant's absence was not unreasonable. 6 The applicant provided the following particulars of those grounds: (a) On 4 September 2014, the applicant applied to the Federal Circuit Court for judicial review of the decision of the Tribunal to affirm the decision of the Minister. (b) That application was made outside the statutory limit of 35 days. Therefore, the matter was heard by Jarrett J as an application for extension of time. (c) On 23 January 2015, Jarrett J refused to extend time to review the application. (d) Jarrett J decided the applicant's claim had no merits. The applicant contends his Honour set the bar too high in arriving at his decision on the merits of the applicant's claim. As a result, the applicant was required to prove more than a reasonably arguable case. (e) Under s 476A(3) of the Act, that decision cannot be appealed. As a result, the applicant was denied his right to appeal. 7 His Honour noted that the right of an applicant under s 476 of the Migration Act to seek judicial review of a decision of the Tribunal in the Federal Circuit Court was limited by s 477, which provides: 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 8 His Honour observed that the first step was to determine whether the Federal Circuit Court Judge had made an identified legal error in determining the applicant's application for an extension of time under s 477(2) of the Migration Act. His Honour continued: 32. On the basis of the applicant's submissions outlined above, the errors of law he claims that Jarrett J made, can be distilled into two primary propositions, as follows: (a) by concluding that the applicant's application for review had "such little prospect of success" that his application for extension of time should be rejected, his Honour set the test too high. Instead, the correct test was whether the applicant had no prospect of success: relying on SZQGO v Minister for Immigration and Citizenship (2012) 125 ALD 449; [2012] FCA 177 (SZQGO) at [29] per Murphy J; and (b) in assessing whether or not it was in the interests of the administration of justice to grant the extension of time sought, his Honour failed to have regard to the "quintessential" importance of the applicant's evidence for the success of his review application and the effect his decision would have on the applicant's substantive review rights, and he failed to take account of the unfairness occasioned by the circumstances in which the Tribunal made its decision, including its failure to make any inquiries about his absence, and the "rush" with which it made its decision. 9 In relation to point (a), his Honour said: 36. The applicant does not appear to criticise his Honour's reasoning in relation to the identification and use of these three factors. Not surprisingly, nor does he appear to quibble with the reasoning his Honour employed in finding for him on the first two factors. It is the third factor above and, in particular, his Honour's reference in his reasons to the applicant's substantive review application having "such little prospect of success" (BZAHM at [89]) that the applicant has seized on as manifesting an error of law. 37. On this issue, it is important to note that in the paragraph immediately preceding that above, and at two earlier points in his reasons, Jarrett J used the expression "no real prospect of success", as follows: [66] In my view there was no unreasonableness affecting the tribunal's decision. This ground of review [the first ground] has no real prospect of success. [75] In my view there was no unreasonableness affecting the tribunal's decision. This ground of review [the second ground] has no real prospect of success. [88] In my view there was no unreasonableness affecting the tribunal's decision. This ground of review [the third ground] has no real prospect of success. 38. Given this context, I consider that when his Honour used the compendious expression "such little prospect of success" in [89], he intended to convey the substance of his earlier assessments that each of the applicant's grounds of review had "no real prospect of success". That was, therefore, the test that his Honour applied. Then, when one compares that rendering of the test with the various descriptions of it in SZQGO and the decisions cited therein, as set out below, it becomes apparent that there is no substantial difference between the expressions "no real prospect of success", "no prospect of success" and "no reasonable prospect of success". In other words, they are all used inter-changeably. Indeed, absent this comparison, the test "no prospect of success" advanced by the applicant, as used in SZQGO (at [29]), would appear to set a stricter standard than the test I consider Jarrett J actually adopted. 10 In relation to point (b), his Honour noted at [43] that the applicant's other grounds of review essentially raised different aspects of the same issue, namely whether the Tribunal acted unfairly or unreasonably in proceeding to make its decision in the circumstances that it did. In deciding that the Federal Circuit Court Judge did not err as alleged by the applicant, his Honour said, in summary: There was no evidence that the applicant clearly articulated an argument before the Federal Circuit Court Judge about the effect that s 476A(3) of the Migration Act would have upon his substantive rights to review the Minister's decision to refuse him a protection visa. In any event, from a fair reading of the Judge's reasons the Judge was clearly aware that his decision would preclude the applicant from any further avenue of review of the Minister's decision. The Federal Circuit Court Judge did not err in finding that the Tribunal had not acted unreasonably in proceeding to make a decision in the circumstances. The Federal Circuit Court Judge did not err in finding that there was no reason for the Tribunal to have made inquiries as to why the applicant was absent. The Federal Circuit Court Judge did not err in finding that the Tribunal had not acted "in a rush" as the applicant had claimed. The applicant could not rely on the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. The Federal Circuit Court Judge did not err in concluding that the Tribunal had not failed to afford the applicant natural justice in proceeding to make its decision in his absence.

This application 11 At the request of the applicants this application was heard on the papers. Both the applicants and the Minister were legally represented. 12 The grounds of the application were as follows: 1. The Federal Court judgment was delivered on 3 July 2015. 2. The Applicants were advised by his legal representatives of his right to appeal against that decision. However their representatives received instructions to proceed after the 14 days of the judgment. 3. The First Applicant states that he was unable to find finance to lodge their appeal. 4. The Applicants representatives required time to prepare the leave application. 13 In the draft notice of appeal the applicants rely on three prospective grounds of appeal, namely as follows: (1) His Honour Justice Reeves erred in law in failing to recognize that the primary judge has misapprehended the test to assess the merits of the applicant's review application. Particulars (a) The primary judge stated that the applicants' review application such a "little prospects of success" (b) His Honour Justice Reeves failed to recognize that the primary judge erred in law by not recognizing that the Tribunal failed to consider the rules of reason and justice in deciding to hear the matter without evidence and materials to assess applicant's claim. (2) His Honour Justice Reeves erred in law by not recognizing that the primary judge made an error of law by failing to find that the tribunal's decision to conduct the hearing in absence of the applicants was so unreasonable and no reasonable Tribunal could have made it under the circumstances of the case. Particulars (a) Reeves J said that the applicant's contention as to the unreasonableness of Tribunal's decision to hear the matter in applicant's absence was confused and difficult to understand. (b) Reeves J has placed a heavy burden on the applicant to prove that Tribunal had an "obligation" to make inquiries into applicant's absence. It failed to consider that the Tribunal was not bound by rules of technicalities in reviewing migration matters. (c) Reeves J misapprehended an observation made in SZOZO that the election to proceed to a decision on the review in the absence of the applicant cannot by itself be treated as the expression of an unreasonable exercise of power. (d) Reeves J accepted Jarrett J's erroneous finding that "there was nothing in the evidence" to suggest that the applicant could not have contacted the tribunal before the hearing (e) Reeves J failed to identify the error of law judge Jarrett made in failing to recognize that the tribunal acted in an unreasonable manner in the following circumstances: (I) The Applicant has indicated to the Tribunal that he was willing to attend and give evidence at the hearing. (II) The Applicant had fallen ill previously on the day of the hearing and the Tribunal therefore had evidence to make an inference that the applicant must have fallen ill again & will seek an adjournment. (III) The Tribunal accepted that it had no evidence or materials to support the findings of the department in relation to applicants' protection visa application. (IV) The tribunal failed to take into account the relevant circumstances of this matter which required it, under the natural justice rule, to make inquiries in relation to the applicant's absence before deciding to hear the matter without the applicant even though it did not have an obligation to do so under the Migration Act. (3) Reeves J erred in law by not recognizing that Judge Jarrett had made an error of law by not considering that the applicants right to review of the Minister's decision will be barred under s 476 A(3) of the Migration Act 1958 Particulars (a) Reeves J has refused to consider this ground as it accepted the minister's argument that the applicant has not put this matter before Jarrett J in his written or oral submission. (b) Jarrett J's decision does not indicate that it considered the effect of his decision upon applicant's review rights. (errors in original, footnotes omitted.)

Consideration 14 It is not in dispute that, for any appeal to proceed, the applicants require an extension of time in which to appeal from the decision of his Honour, because r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) required a notice of appeal to be filed within 21 days of the delivery of judgment and no notice of appeal was filed within that time. Helpful principles relevant to the issue whether an extension of time ought be granted were set out in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348-349, where Wilcox J summarised relevant matters to take into account as being: the length of delay; any explanation for the delay; any prejudice to the respondent or other parties if an extension of time were granted; the prospects of success of the appeal if an extension of time were granted. 15 In this case the Minister accepts that the length of delay is not substantial, that the applicants have provided a reasonable explanation for the delay in filing the notice of appeal, and that neither the Minister nor anyone else has suffered any prejudice as a result of the delay. The Minister submits, however, that the proposed appeal lacks sufficient prospects of success to warrant an extension of time being granted. 16 In my view the Minister is correct in this submission. 17 In relation to the first prospective ground of appeal, the primary Judge discussed, at length, the reasoning of the Federal Circuit Court Judge. I note in particular [19]-[21], [31]-[42] of the primary decision. His Honour considered in detail the claim of the applicants that the Federal Circuit Court Judge had misapplied the test for determining whether to grant an extension of time to seek review of the Tribunal's decision, and rejected that claim. In particular at [42] his Honour observed: 42. For these reasons, I consider Jarrett J applied substantially the same test as that applied in these various decisions when concluding that the applicant's substantive review application had "no real prospect of success". I do not therefore consider that the applicant has established that his Honour committed any error of law in this regard. Having reached this conclusion, there is no necessity for me to consider whether the Tribunal's decision involved any jurisdictional error. The applicant's first ground of review must therefore be rejected. 18 In light of the detailed - and in my view, correct - reasoning of his Honour I am unable to identify any merit in this ground. 19 In respect of the second prospective ground of appeal the applicants propose to take issue with the findings of his Honour and the Federal Circuit Court Judge, so far as concerns the applicants' claim that the decision of the Tribunal to proceed to a decision in the absence of the applicants was unreasonable and no reasonable Tribunal could have made it under the circumstances of the case. Relevantly, his Honour's reasoning in relation to this claim of the applicants can be found at [46]-[48] of the primary judgment. In particular, I note the following observations of his Honour at [48]: … In this case, there was no administrative error on the Tribunal's part. Thus the applicant did not lose an opportunity to advance his case by reason of the Tribunal's mistaken failure to consider his request for an adjournment. Rather, the Tribunal had, in the manner prescribed by the Act, afforded the applicant an opportunity to be heard and the applicant did not attend that hearing. Furthermore, he did not offer any prior explanation for his absence, nor seek an adjournment of the hearing and there was nothing to indicate to the Tribunal that there may be some satisfactory explanation for his failure to attend. In all these circumstances, Jarrett J committed no error of law in concluding that the Tribunal had not failed to afford the applicant natural justice by proceeding to make its decision on the applicant's review application in his absence and refusing to reconsider that decision when his subsequent adjournment request was received. 20 A key plank of the applicants' argument in respect of this prospective ground of appeal is that because the Tribunal had previously adjourned the hearing because of illness of the first applicant, it should have realised that the absence of the first applicant at the subsequently convened hearing was also due to the first applicant's illness. However as both the Federal Circuit Court Judge, and the learned primary Judge, observed, this claim was in circumstances where neither the applicants nor their representatives had contacted the Tribunal to seek an adjournment or inform the Tribunal of the alleged illness of the first applicant. 21 In my view the claim of the applicants in this respect lacks merit. 22 In respect of the third prospective ground of appeal, at [44] and [45] his Honour clearly considered the claim of the applicants that the Federal Circuit Court Judge had failed to recognise the potential effect of s 476A(3) of the Migration Act, and rejected that claim. In my view this prospective ground of appeal lacks merit.

Conclusion 23 In circumstances where the prospective grounds of appeal lack merit, and have no prospects of success, the appropriate order is to dismiss the application for extension of time in which to file the notice of appeal, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.