CDV17 v Minister for Home Affairs

Relevant background 5 The applicant is Malaysian. She arrived in Australia in July 2015. She claims to have left Malaysia because she feared that her personal safety was at risk at the hands of a "loan shark" (from whom she says she had borrowed money that remained unpaid) and her brother (who she claims has previously assaulted her, apparently in connection with drug-related legal troubles, the particulars of which the Court cannot presently articulate). 6 On 9 October 2015, she applied to the Minister for a protection visa. The Minister, by his delegate, refused that application. That refusal was the subject of an application for review by the AAT. On 28 April 2017, the AAT affirmed the delegate's decision to refuse the applicant's application for a protection visa. 7 In doing so, the AAT concluded that the applicant's claims about having borrowed money from a loan shark were untrue and had been fabricated for the purposes of applying for a protection visa. Further, it concluded that her claim about the threat posed to her by her brother had been exaggerated or fabricated. On account of those fabrications or exaggerations, it was not satisfied that there were substantial grounds for believing that, if returned to Malaysia, there was a real risk that the applicant would suffer significant harm (as defined). 8 En route to those conclusions, the AAT adverted to a number of inconsistencies in what the applicant had said about her dealings with loan sharks and the purpose of the loan that she claimed to have obtained. In her initial application for a protection visa, the applicant said that she left Malaysia because she was being threatened by a loan shark. She said that her dealings with the loan shark took place in September 2015, when she was unemployed (a circumstance that she attributed to the failure of her business). She otherwise offered no particulars of how much she borrowed, when or from whom. She said that her company had closed down in September 2015 and that, prior to June 2015, she had worked as a nurse in Malaysia. When asked by the AAT to elaborate upon her dealings with the loan shark, the applicant said that she had borrowed 50,000 Malaysian ringgit in September 2014 (not 2015), and that she had done so to support her mother's failing restaurant business. That business commenced in 2013 and, despite the loan, ceased in December 2014. She also said that, in August 2014, her brother was arrested for "snatch theft" and marijuana possession, and that 30,000 of the 50,000 Malaysian ringgit that she claimed to have borrowed went toward his legal expenses and money that she paid "as his guarantor" (that latter amount was later returned to her). She told the AAT that her tenure as a nurse ceased in January 2015 (not June), and that she resigned at the demand of her matron, who was said to have complained about money lenders having attended her hospital to issue threats toward the applicant, and also about the amount of time that the applicant was spending assisting her troubled brother. 9 The facts summarised in the preceding paragraph are apparent from the AAT's decision of 28 April 2017 (a copy of which was put before the Court for the purposes of the immediate application). That is the only source of factual information relevant to the substantive case that the applicant sought to agitate before the Court below that is presently before this Court. 10 In his reasons in support of the FCC Judgment, the trial judge noted as follows: 12. On 19 May 2017, the applicant filed an application for judicial review of the Tribunal's decision. 13. On 15 May 2017, the applicant affirmed an affidavit which exhibited a copy of the Reasons but which did not otherwise adduce any evidence in support of the application for judicial review. 14. By a Response filed on 7 August 2017, the Minister sought that the application be dismissed on the basis that no arguable case for the relief sought was raised. 15. On 5 December 2017, orders were made, by consent, listing the application for a show cause hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars, a supplementary court book and written submissions in support of the application. The applicant did not take those opportunities. 16. On the day of the hearing the applicant sought an adjournment. The application was opposed. I refused the application. The application had been set down for hearing by consent orders made on 5 December 2017. The applicant had been on notice from the Minister's Response that no arguable case for relief was shown. The applicant was asked when she had decided to consult a lawyer. He produced her phone which displayed a message to the effect that the consultation of a lawyer had been under consideration from at least 12 November 2018. Neither side takes issue with that chronological summary. 11 His Honour's reasons cite, as follows, the four grounds apparently advanced in support of the applicant's claim for prerogative relief: 26. The application contains four grounds of review which read: 1. The Administrative Appeals Tribunal erred in law by taking into consideration facts not relevant to the matter in making the decision. 2. The Administrative Appeals Tribunal erred in law by not taking into considerations [sic] relevant facts in making the decision. 3. The Administrative Appeals Tribunal erred in not taking into consideration relevant Country information in making the decision. 4. The Administrative Appeals Tribunal erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 of the information provided by the Applicant. 12 In the absence of having been taken to the application that was made to the Court below, I take the above as an accurate summary (if not a verbatim record, as it purports to be) of the grounds that the applicant sought to agitate in favour of her claim for prerogative relief. The Minister, by his written submissions, accepts that they were, in fact, the grounds advanced below. 13 The FCC Judgment was pronounced on 30 November 2018. The trial judge's reasons contain the following summary of principle: 20. As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118. 21. Caution must be exercised when considering whether to grant summary judgment. Such caution is equally appropriate upon the determination of a show cause hearing. 22. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised. 23. In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following: a) first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success; b) secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification; c) thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved; d) fourthly, the familiar intensifying epithets such as 'clearly', 'manifestly' 'obviously', 'frivolous', 'untenable', 'groundless' or 'faulty' should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment; see at [46]-[49]. The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J). 24. In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be "wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed." That is, the residual discretion remains to be considered. 25. I apply those principles in determining this show cause application. 14 With respect, there is no error of principle in that summary and neither party alleged otherwise before this Court. 15 The trial judge went on to conclude that none of the four grounds advanced by the applicant could be substantiated, and that her assertion that the AAT's decision was the product of jurisdictional error could not succeed. He proceeded to exercise the discretion reposed in him by r 44.12 of the Federal Circuit Court Rules 2011 (Cth) and dismissed the application. 16 By operation of FCR, r 35.13(a), the applicant had until Friday, 14 December 2018 to file her application for leave to appeal from the FCC Judgment. That deadline came and went. The present application was filed on Monday, 24 December 2018. 17 Two affidavits were read in support of the present application to this Court: one affirmed by the applicant herself, the other by her lawyer, Mr Smart (who now acts for her and has done since 14 December 2018). The applicant's affidavit deposes: 1. I am a 31-year-old national of Malaysia. 2. Two weeks before the hearing on 27 November 2018, I contacted a lawyer Mr Dildeep Singh) [sic] from Melbourne. I found this lawyer from Malaysian [sic] community's WhatsApp page. 3. The lawyer asked me to send my court book, and I sent my court book to him. 4. Two days before the hearing the lawyer phoned me and informed me that he could not attend and represent me in the court. 5. I am a single mother and at that time worked in a remote area of South Australia, Naracoorte. I did not know the ways to deal with my court case. 'I have no understanding of the court system. This resulted in my remaining unrepresented in the Court. 6. I requested the Honourable Judge to allow me an adjournment so that my case could be prepared by a lawyer however it was not granted. 7. I was expecting that Mr Singh will [sic] represent me in the Court, once [sic] he was not available, I could not arrange another lawyer within two days. 8. If an adjournment was granted, I would have appointed a lawyer to represent me in the Federal Circuit Court. Extension of Time 9. I was living in a remote area of South Australia with my daughter and was not represented by a lawyer, I [sic] did not know the time limit and consequences. It took me 14 days to arrange a lawyer. I intended to appeal from the day when I received the judgment. I could hardly manage to arrange a lawyer after 14 days of the judgment. 18 Mr Smart's affidavit deposes: 1. I am the Appellant's lawyer. 2. On 14 December 2018, I arranged an appointment for the Appellant to see her case. 14 December 2018 was the last day of leave to appeal. 3. At that time, I was working on another appeal to the Federal Court. 4. When I first saw the Judgement from the Federal Circuit Court I was of the opinion that it was a final Judgement and I told the Appellant that on Tuesday I will [sic] start work on her case as I was working on the other appeal which was due on Tuesday. I was under the impression that the time is 21 days. In fact, it was 14 days because of interlocutory [sic] judgment. 5. In any event, it would have been impossible for me to bring this leave to appeal on time because of receiving [sic] on the last day and the time required for this appeal and already possessed [sic] by another appeal due in two days. 6. Despite being under the impression of 21 days, I considered working on the weekend on the other appeal to save time for the notice of appeal. Unfortunately, the same weekend I was preoccupied with academic studies and it took me all day Saturday and Sunday. 7. Miscalculation of the final date and preoccupied activities which were impossible to avoid resulted in some days [sic] delay in finalising appeal [sic]. For any inconvenience, I tender my sincere apologies to the Honourable Court. 19 Additionally, the applicant provided the Court with a draft notice of appeal, to be filed in the event that she were to succeed on the present application. That document alleges two errors on the part of the trial judge. Given its slightly unorthodox form, it is appropriate to set the charges out in full (without amendment): The Honourable Judge erred in law by: 1. Summarily dismissing the application. The Judge should have granted the Appellant an adjournment to enable her to be represented by a lawyer. The Appellant lives in a remote countryside of Naracoorte South Australia with the sole care of her one-year daughter. Two weeks before the hearing the Appellant engaged a lawyer form Victoria and sent the lawyer a copy of the Court book. Two days before the hearing the lawyer informed her that he could not attend the hearing. She showed her mobile phone display to the Judge, however, the matter was not adjourned and summarily dismissed. The Judge failed to take into account her personal circumstances that a farm working woman with the care of a one-year daughter in a remote area could not easily arrange a lawyer. She had to work so that to feed herself and her daughter. The Judge failed to consider that the fact whether the Appellant had an arguable case or not, could not be determined in the circumstances without allowing her to be represented by a lawyer. In the circumstances a grant of costs to the Respondents would have balanced the rights of the parties. 2. The Honourable Judge erred in reaching to the conclusion that there was no arguable case. There have been a denial of procedural fairness and errors of law by the Tribunal. Such as discrepancies between the time regarding shut down of the company. The Appellant in her claim mistakenly wrote the company was shut down in September 2015. It was a simple error as the Appellant was in Australia and in the same month September 2015, she prepared her application form. The Appellant told the Tribunal that it was not 2015 but December 2014. The circumstances of the error were not considered by the Tribunal. The company was the restaurant which was their family business. The Tribunal failed to inform itself of this. Furthermore, the Tribunal did not allow the Appellant time to obtain more evidence and in doing so the Tribunal did not take into account the relevant considerations.

principles governing extensions of time AND LEAVE TO APPEAL 20 The considerations relevant to the exercise of the Court's discretion to grant an extension of time in cases such as the present are well established. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Perram, Farrell and Perry JJ), the Full Court, at [20], listed them as follows: (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (see also: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (Flick, Griffiths and Perry JJ); Hunter Valley Developments Pty Ltd v. Cohen (1984) 3 FCR 344, 348-349 (Wilcox J); SZSPR v Minister for Immigration & Border Protection and Another (2013) ALD 109, [16] (Farrell J); BAO15 v Minister for Immigration and Border Protection [2016] FCA 214, [19] (Perry J); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [18]-[19] (Murphy J); BYY15 v Minister for Immigration and Border Protection [2018] FCA 116, [12] (Steward J). 21 Consideration of the merits of the substantive appeal, should an extension of time and leave to appeal be granted, does not require detailed analysis of the grounds upon which it is proposed that the appeal might proceed. It is sufficient that the Court form a "reasonably impressionistic" assessment of their prospects: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, [38] (Tracey, Perry and Charlesworth JJ). 22 The considerations relevant to the exercise of the Court's discretion to grant leave to appeal are equally well-established. They include whether or not an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399 (Sheppard, Burchett and Heerey JJ); Iannuzzi v Commissioner of Taxation [2019] FCAFC 39, [3] (Kenny, Jagot and Banks-Smith JJ); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the costs of the Cup of Tea Case) [2019] FCAFC 36, [2] (Flick, Reeves and O'Callaghan JJ). 23 It is apparent that both species of relief presently claimed require analysis of the applicant's prospects of successfully challenging the trial judge's decision to summarily dismiss the FCC Application for want of an arguable case. It is convenient to focus immediate attention upon that issue.

Nature of the findings complained of 24 The trial judge's power to dismiss the application before him pursuant to r 44.12 of the Federal Circuit Court Rules 2011 (Cth) was conditioned upon his satisfaction that the applicant lacked an arguable case for the relief claimed. It was quintessentially discretionary. To establish that its exercise in the present case was in error, the applicant would need to demonstrate that that exercise miscarried in any one or more of the ways famously outlined in House v R (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). The same applies in respect of the power of the Court below to adjourn - or, as in this case, not to adjourn - proceedings before it. 25 The applicant contends that the trial judge was wrong to conclude that she lacked an arguable case for prerogative relief and that his decision was procedurally unfair because of his refusal of her adjournment application. As to the former, her immediate challenge is to show why this Court should incline to the view that the AAT's decision was arguably the product of jurisdictional error (and, more accurately, that the trial judge's discretion miscarried when he acted upon his contrary conclusion). As to the latter, she must demonstrate that his Honour's discretion not to grant her adjournment application miscarried in a House v R sense.

The FCC finding that the applicant lacked an arguable case 26 The applicant does not assert that the FCC Judgment was founded upon any wrong principle, nor that the trial judge allowed extraneous matters to guide or affect him, mistook any facts, or failed to take account of some material consideration. Instead, she contends, simply enough, that her claim for prerogative relief was at least arguable. To that end, she contends that the AAT denied her procedural fairness - and, thereby, committed jurisdictional error - by not giving her prior warning of (and an opportunity to respond to) the concerns that it had about inconsistencies in her evidence and their potential to ground the sort of adverse findings about her credibility that were ultimately made (and which, in turn, were critical to the rejection of her application for a protection visa). 27 It is perhaps more appropriate to say that that is what she contends now. Given the absence of evidence, it is difficult to know how this contention marries with the case that the applicant advanced in the Court below. It doesn't obviously find expression in any of the four grounds that the trial judge recited in the reasons for his decision (see above, [11]-[12]). In the hearing before this Court, counsel for the Minister contended that the applicant's request for an extension of time and leave to appeal should be adjudged in light of the requirement that she would, if successful, also require leave to agitate a point that was not pressed below; a requirement that was said to render the merits of the substantive appeal (and, thus, her immediate case for an extension of time and leave to appeal) even weaker than his client maintained was already the case. 28 It is not necessary to descend to that additional level of the hypothetical. The immediate and fatal flaw in the applicant's case is that she has not identified any basis upon which to conclude that the trial judge's discretion miscarried; that is to say (as is said above), that she has not identified any wrong principle by which the FCC Judgment was informed, any extraneous matter that guided or affected it, any mistake of fact by reason of which the discretion miscarried, or any material consideration that went unconsidered. What she says now, distilled to its essence, is that the trial judge was wrong to form the view that the AAT decision was not arguably the product of jurisdictional error. Even if she is right about that, that alone is not sufficient to warrant a finding by this Court that his discretion to dismiss the matter under [r 44.12] miscarried. This aspect of the proposed appeal is, with respect, without merit. 29 Even if, contrary to the conclusion above, it were open to this Court to set aside the FCC Judgment merely on the ground that the applicant's case below was arguable, I would not do so. That ground is itself also without merit. The AAT was not obliged to put to the applicant, in advance of finalising its decision, the concerns that it formed about the credibility of her evidence, at least not in the circumstances that presented in this case (see: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 524-525 (McKerracher, Griffiths and Rangiah JJ)). Pressed to identify the source of any such obligation, counsel for the applicant submitted that it was part of the "umbrella of procedural fairness". Respectfully, that submission cannot be accepted.

The FCC's decision to refuse an adjournment 30 For equivalent reasons, a similar finding must be made with respect to the applicant's complaint that the trial judge ought to have granted her adjournment application. Before this Court, the applicant submitted that she required a last-minute adjournment to the proceeding for which she'd had nearly a full year's notice because, only a few days before it, her lawyer inexplicably withdrew his representation of her. Assuming that to be true - and assuming, perhaps wrongly, that it is not an unduly generous reading of the applicant's evidence on the point - there is no evidence that it was explained to the trial judge. From the reasons for the FCC Judgment, it is apparent only that she sought an adjournment in order to secure legal representation. Her efforts to that end, so his Honour was informed, began only two weeks prior to the hearing, despite its having been listed since December 2017. The application was opposed. It was declined. 31 The applicant contends that, in refusing the adjournment application, the trial judge failed to take account of her personal circumstances: in particular, that she is a single mother who, at the time, worked on a farm and resided in rural South Australia. Two points spring immediately for consideration from that contention. First, there is no evidence before the Court that his Honour was informed of those facts, let alone asked to weigh them in the exercise of his discretion to grant or not grant an adjournment. Second, it is not apparent why or how they might properly inform the judicial exercise of that discretion: why or how, for example, it is that a farm-working single mother might be indulged by way of adjournment more readily than any other self-represented litigant. 32 In DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10, Rangiah J (with whom Reeves and Bromwich JJ agreed), considering a trial judge's refusal to grant an adjournment in a matter not dissimilar to what confronted the FCC in this case, observed (at [83]): An adjournment is not granted merely for the asking. Wider issues are at play, even if they were not expressly referred to by the trial judge. As Toohey and Gaudron JJ observed in Sali v SPC Ltd (1993) 67 ALJR 841 at 636: The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. The trial judge must have been conscious that if an adjournment was granted, the time set aside for the hearing would be wasted and another hearing date would have to be found. The Minister had engaged a legal representative for the hearing and was ready to proceed. It is true that allowance must be made for the disadvantages faced by self-represented applicants, particularly those whose first language is not English. However, in circumstances where the appellants had adequate time to seek legal advice, but had delayed in doing so for reasons they did not explain, it was open to the trial judge to give little weight to the mere possibility that they might find an arguable ground. 33 The parallels with the present case are stark (if not, as the Minister contends, relevantly indistinguishable). To those observations, I would add only that a decision not to grant an adjournment, like any other procedural matter, is one with which appellate courts ought not lightly interfere, and one ordinarily best left to the court seized of the proceeding: Sali v SPC Ltd (1993) 116 ALR 625, 632 (Toohey and Gaudron JJ, dissenting, but not on this point); Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177 (Gibbs CJ, and Aickin, Wilson and Brennan JJ), 180 (Murphy J). 34 I do not accept that there is merit to the contention that the trial judge wrongly ignored (if he was told about) the personal circumstances of the applicant that she submits ought to have warranted adjournment of the hearing below.

Conclusion as to the merits of the proposed appeal 35 For the reasons outlined, I consider that the substantive appeal - were an extension of time and leave to appeal to be granted - is (or would be) unmeritorious.

Length of and explanation for the delay 36 It can readily be accepted that the period of delay in this case - 10 days - is not especially lengthy. The Minister accepts (as does the Court) that he would suffer no relevant prejudice were an extension of time to be granted. Nonetheless, there is an obvious public interest in the finality of administrative decision making, to which it is, I think, appropriate to pay some regard. 37 The Minister submits - and I accept - that the applicant has not provided a proper explanation for the delay. In condensed form, her evidence is that: (1) she was unaware of the 14-day time limit for leave to appeal applications; (2) she was unable to obtain legal advice as to a potential appeal until 14 December 2018 (the day that that limit expired); and (3) when she did secure legal representation, her lawyer thought that the time limit was 21 days and was, in any event, too busy to attend to filing an application for leave to appeal sooner than he did. 38 The first is not a valid explanation: SZSPR v Minister for Immigration & Border Protection and Another (2013) 139 ALD 109, [16] (Farrell J). The second remains unexplained. The third is also unsound: SZJRV v Minister for Immigration & Citizenship [2008] FCA 298, [6] (Flick J); SZNYE v Minister for Immigration and Citizenship [2010] FCA 500, [8] (Katzmann J). The applicant's explanation for the delay is unsatisfactory.

Conclusion 39 The circumstances - in particular the inadequacy of the applicant's explanation for having missed the deadline for the filing of an application for leave to appeal and the poor prospects that the appeal would have if leave were granted - incline against an exercise of the Court's discretion to grant an extension of time as sought. That application is refused. 40 It is not, then, strictly necessary to explore whether it would have been appropriate to grant leave to appeal. It can readily be accepted that the applicant stands to suffer substantial injustice if leave to appeal were refused. That, however, is insufficient to salvage the application that she advances. The want of merit inherent in her proposed appeal would, in my view, warrant against an exercise of the Court's discretion to grant leave to appeal. 41 The application is dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.