CAL15 v Minister for Immigration and Border Protection

1. The time in which the applicant may file an application for leave to appeal is extended to 7 June 2016.
2. The application for leave to appeal is dismissed.
3. The applicant pay the first respondent's costs of the application for leave to appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an application for an extension of time and leave to appeal from orders made by the Federal Circuit Court of Australia on 18 May 2016. On that day the Federal Circuit Court dismissed an application, which it took to be made pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), to set aside the orders of a Registrar of the Court made in the absence of a party: see CAL15 v Minister for Immigration and Border Protection [2016] FCCA 1537. 2 The Registrar's orders were made at a directions hearing on 2 March 2016, at which the applicant failed to appear. In the Federal Circuit Court proceeding, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 1 September 2015. That decision affirmed a decision of a delegate of the Minister to refuse the grant of a Protection (Class XA) visa. 3 Consequent upon the applicant's failure to appear at the directions hearing, the Registrar dismissed the application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules and ordered the applicant to pay the Minister's legal costs fixed in the sum of $1,367. The drastic effect of the power in r 13.03C(1)(c) is ameliorated by the discretion reposed in the Federal Circuit Court under r 16.05 to reinstate a proceeding which has been summarily dismissed for non-attendance. 4 As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but 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 finally whether the applicant has an arguable case on judicial review. 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. 5 However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant. 6 The threshold is whether a ground of review is "arguable". That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is "arguable", the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. 7 In the present case, the Federal Circuit Court was not persuaded the applicant had an adequate explanation for his non-attendance. He had explained that he had confused the date and that he had thought the date of the hearing was 3 March 2016. It was not until he checked his email that he realised it was on 2 March 2016. 8 The Federal Circuit Court said (at [10]): I agree with the Minister that this is not an adequate reason for the Applicant's non-attendance. It is the Applicant's application for judicial review. It is a serious application. He wants to have the Tribunal's decision quashed. and it is a decision in relation to a Protection Visa. The Applicant was under an obligation at all times to ensure that he was properly informed of the date of every Court date, including a directions hearing. 9 The Federal Circuit Court was also not persuaded the applicant had an arguable case on judicial review. An immediate impediment to many of the applicant's criticisms of the Tribunal's decision was that he had not attended the Tribunal hearing. The Federal Circuit Court explained (at [15]-[17] of its reasons) how this came about (omitting Court book references): On 6 November 2014, the Applicant applied to the Tribunal for review of the delegate's decision. The Applicant attached a copy of the delegate's decision with the application, as he was required to do, and the Applicant indicated in his application that JK Legal continued to represent him, and provided email address of JK Legal for correspondence. On 11 August 2015, the Tribunal, sent correspondence by email to the Applicant's representatives, inviting the Applicant to give evidence and present arguments at a hearing scheduled for 26 August 2015 at 9.30am. The letter, amongst other things, informed the Applicant that if he did not attend the hearing, the Tribunal may make a decision without taking further action to allow or enable him to appear before it. The Tribunal also attached a 'Response to a Hearing Invitation' form to be completed and, in that form, under the heading 'Part 1 - Who will take part in the hearing?' - it stated: "Please note that if you select 'No' in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us." On 25 August 2015, the Applicant's representative sent, by email, to the Tribunal a completed 'Response to Hearing Invitation' form. Relevantly, under the heading 'Part 1 - Who will take part in the hearing?', in response to the question, 'Will you take part in the hearing scheduled for 26 August 2015?', the 'No' box was ticked in relation to both the Applicant and the Applicant's representative. 10 At [18]-[20] of her reasons, the learned Federal Circuit Court Judge set out how, in her Honour's opinion, the Tribunal was "perfectly entitled" to proceed to determine the matter in the absence of the applicant. If taken as a statement of power, that is a correct statement in relation to s 426A of the Migration Act 1958 (Cth). It appears her Honour also meant "entitled" as a matter of discretion. Her Honour appears to have based that opinion on the fact that the applicant was represented by a lawyer and migration agent who had, on his behalf, indicated a conscious choice had been made that neither the applicant nor his representative would attend the hearing. Her Honour then proceeded to reject the applicant's three grounds of judicial review (two considerations grounds and an error of law ground) on the basis that the applicant was unable to develop before her what he meant by any of these grounds. Independently however, her Honour expressed the opinion that the Tribunal's decision was (at [24]): a well-reasoned consideration of all the claims before it, and I note here, of course, that the evidence before the Tribunal was very limited because the Applicant and his representative had failed to contact the delegate to attend an interview, and had also decided not to attend the Tribunal hearing, to enlarge upon the written material the Applicant had provided. 11 Given the applicant was unrepresented, unfamiliar with the Australian legal system, and did not have English as his first language, it was appropriate for the Court to consider for itself whether on the material before it any arguable ground of judicial review was evident in relation to the Tribunal's decision. Otherwise, a person in the position of this applicant has no real or meaningful access to the supervisory jurisdiction of the Federal Circuit Court, which is expressed to be of the same nature as the constitutionally entrenched supervisory jurisdiction of the High Court under s 75(v) of the Constitution: see s 476(1) of the Migration Act.