CEZ16 v Minister for Immigration and Border Protection

The application for leave to appeal 9 The applicant, who represented himself and was assisted by an interpreter at the hearing, proposed to rely on two grounds of appeal, if leave were granted. The first ground involved a claim that he had been denied procedural fairness because the primary judge failed to adjourn the show cause hearing. The second ground claimed that the primary judge failed to comply with the principles of natural justice because of an alleged failure to consider the applicant's capacity to conduct his case as a self-represented litigant, as well as a failure to consider the conduct of the person who claimed to be a lawyer and failed to discharge his duties. The applicant also repeated ground 1 as a particular of ground 2. As noted above, these grounds were said to relate to the orders made in CEZ16 (No 2). 10 The Minister opposed the grant of leave to appeal. 11 The applicant failed to provide a written outline of submissions and made only brief oral submissions in support of leave being granted. When asked by the Court why the FCCA hearing was not fair, he said that he did not have a lawyer and had to argue the case himself and was unhappy that his case had been dismissed on a show cause basis and without a full hearing.

Consideration and disposition of the application 12 The central question is whether this Court should exercise its discretion under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) to grant leave to appeal from the FCCA's judgment, which is an interlocutory judgment. 13 It is well settled that among the considerations which guide the exercise of that discretion is whether the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (see Minister for Home Affairs v SZRWS [2018] FCAFC 51 at [40] per Flick, Robertson and Griffiths JJ and the cases referred to therein). Another relevant consideration is that where the primary judgment relates to a matter of practice or procedure, as is the case here, there is a need for finality and restraint in reviewing such decisions (see, for example, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 and In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318). In the latter case, Jordon CJ said at 323: … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. 14 Although the application for leave to appeal is said to be addressed to the orders made in CEZ16 (No 2), the grounds strongly suggest that the applicant's real complaint is directed to the rejection of his adjournment request. I am not satisfied that the applicant has demonstrated sufficient doubt in the correctness of the primary judge's reasons for refusing his adjournment application. The applicant had no enforceable right to be legally represented at the hearing. Nor am I persuaded that the applicant has any prospects of establishing procedural unfairness. The applicant's claims to the contrary appears to amount to a statement of dissatisfaction with the primary judge's ultimate findings. The primary judge correctly identified the relevant principles guiding the exercise of his discretion, which unquestionably involved a matter of practice or procedure and, in the light of authority, must be approached with appropriate self-restraint. I am not satisfied that the applicant has demonstrated any arguable appealable error in the primary judge's application of those principles to his particular circumstances. The primary judge gave comprehensive and rational reasons why he was not prepared to grant a further adjournment. 15 I have also reviewed the primary judge's reasons for judgment in CEZ16 (No 2). The primary judge summarised the basis for the applicant's claims in support of his application for a protection visa (noting that the applicant had lived in Australia for more than 15 years). As noted above, the primary judge summarised the AAT's reasons and explained why the applicant's sole ground of judicial review was rejected. His Honour also explained why MZAFZ and Singh had no application to the applicant's case because there was no s 438 certificate. 16 I can see no arguable appealable error in the primary judge's decision in CEZ16 (No 2).