CWW17 v Minister for Home Affairs

1. The notice of appeal filed be treated as an application for an extension of time in which to file and serve an application for leave to appeal; and
2. Said application be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) for want of appearance by the applicant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 In this matter, the applicant has filed a notice of appeal from orders of the Federal Circuit Court of Australia. For reasons that will become evident, the applicant requires leave to appeal. The applicant has not appeared. I had the matter called three times outside and there was no appearance. The Department, through its solicitors, has a telephone number, not directly for the applicant but that of Mr Khan, who is the chairman of an organisation, which supports the case of the applicant. The interpreter retained to assist today, Mr Sani, spoke to Mr Khan, with the number having been called and Mr Sani indicated what had been said, that is Mr Khan was attempting to obtain legal representation of the applicant. 2 Given the nature of the matter which will become evident from the facts, I think it appropriate to deal with the matter on the basis that there is no appearance and dismiss the application, with the appeal having been taken as an application for leave, but giving reasons why, prima facie, the application would be dismissed on the merits so that, if an application is made in the future to set aside this order made in the absence of the applicant, the applicant understands with some precision of what he has to persuade the Court for that application to be successful and for leave to appeal to be granted. 3 This is a purported appeal from orders made by a judge of the Federal Circuit Court of Australia on 1 August 2018, dismissing an application to set aside orders made by the same judge on 26 April 2018. The orders on 26 April 2018 were made in circumstances where the applicant did not appear. By those orders, the primary judge dismissed an earlier application by the prospective appellant that had sought to set aside orders earlier made by himself following an earlier hearing on 22 February 2018. On that earlier date also, the applicant had not appeared. The purpose of the hearing on 22 February 2018 was to determine the Federal Circuit Court's competence to hear a substantive claim that had been filed by the prospective appellant on 29 July 2017. The February decision was delivered extempore: see CWW17 v Minister for Immigration [2018] FCCA 582. 4 The respondent has filed a notice of objection to the competency of this purported appeal on the basis that the judgment below was interlocutory in nature and therefore leave to appeal would have to be granted. A notice of appeal may be filed in 21 days. An application for leave to appeal must be filed within 14 days. In this case, the prospective appellant filed his notice of appeal 20 days after the primary judgment was delivered, with the consequence that what is needed is not only an application for leave to appeal but an extension of time in which to file and serve that application for leave to appeal. 5 The respondent does not object to the notice of appeal being treated as an application for an extension of time for leave to appeal and for leave to appeal should an extension of time be granted. Thus, for clarity, I will refer to the prospective appellant as the applicant. Procedural history 6 By way of procedural history, the applicant arrived in Australia on 13 April 2010. He held a subclass 572 visa upon his arrival. The applicant applied for a protection visa on 25 January 2013, which was refused by a delegate of the Minister in July 2013. The then Refugee Review Tribunal (RRT) affirmed the delegate's decision on 29 January 2014. The applicant sought then judicial review of the RRT's decision, with the matter finalised by consent on 17 December 2014, the matter being remitted to the RRT. The RRT reaffirmed the delegate's decision on 11 May 2015. The applicant sought judicial review once again of this second RRT second decision, which application was dismissed on 18 May 2016. An appeal from this decision to this Court was dismissed on 10 February 2017. 7 On 3 April 2017, the applicant then requested that the Minister intervene in his case, pursuant to s 48B of the Migration Act 1958 (Cth) (the Act), and determine that s 48A would not apply to prevent him from making a further protection visa application. The applicant's request was finalised on 5 April 2017 without referral, having been assessed against the Minister's guidelines - s48A cases and requests for section 48B Ministerial intervention. The applicant was informed as to the outcome of his ministerial intervention request on 6 April 2017 and he has sought further judicial review of that refusal to pass the application on to the Minister. 8 The application before the Federal Circuit Court at the hearing on 22 February 2018 was purportedly made pursuant to s 477(2) of the Act. That application was directed toward the decision communicated on 6 April 2017 and sought an extension of time in order to make an application for the grant of a remedy under s 476. As I said, the applicant did not appear at the February hearing. In his absence, the application was dismissed for want of jurisdiction in the Federal Circuit Court on the basis that the decision in question was not a "migration decision" within the meaning of s 476 of the Act, having not amounted to any privative clause decision, or purported privative clause decision, or an AAT Act migration decision, as defined in ss 474 and 474A of the Act. It was also held that the decision was not made under s 48B. 9 As I said, the applicant failed to appear again at the hearing on 26 April 2018 and then the applicant filed the further application in July 2018 seeking to set aside the orders previously made so that he could challenge the 6 April 2017 letter. The primary judgment 10 The primary judge considered, at [9]-[10] of his reasons, the principles relevant to the exercise of the power under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), and in particular the comments of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. The primary judge, pursuant to that considered the explanations provided for the delay given by the applicant. After dealing with delay, the primary judge turned to the question of whether there was any merit in the application itself which turned on whether there were reasonably arguable grounds that he had a reasonable explanation for not attending. The primary judge concluded that the material did not disclose a reasonable explanation for not attending. 11 The primary judge then turned to the question as to whether the applicant had some arguable question that the Federal Circuit Court did have jurisdiction to hear the application; see [18]-[22]. In particular, the primary judge questioned, at [21], the relevance of submissions made by the applicant with respect to one of the decisions made by the RRT in relation to the application for protection. The primary judge, while sympathetic to the applicant's financial hardship, also stressed its irrelevance to the exercise of jurisdiction. 12 The primary judge ultimately concluded, at [23], that it was simply not arguable that the Federal Circuit Court had jurisdiction to entertain the application filed on 29 June 2017. It therefore follows that the application to set aside the orders made in his absence would be refused. The present appeal 13 The present appeal is subject to a notice of appeal which, as I said, I will take as an application to extend time in which to file and serve an application for leave to appeal based on draft grounds in the notice of appeal. The following ground is set out: Miscarriage of justice the learned Judge decline adjournment to engage barrister to represent me to argue my case, the application has been dismissed without the legal representation 14 The applicant has not put on any written submissions to further his argument on this ground, nor has he appeared today. As I indicated to Mr Leerdam, who appears today for the respondent, I propose to deal with this matter on the basis of my view of the matter subject to any argument that the applicant would put. For that reason, it is important for the applicant to understand the essential reasons why his application should be dismissed. 15 I propose, in due course, to make an order dismissing the application for want of appearance. Under the Act and Rules, the applicant will have a right to seek to set aside those orders, but, in so doing, will have to demonstrate, amongst other things, both why he did not appear and, secondly, that there are some grounds or prospects of success in the underlying point, which is the challenge to the letter from the Department of 6 April 2017. 16 The respondent submitted that the balance of the ground of appeal is without merit for three reasons. First is the allegation that the primary judge did not allow him an adjournment to obtain legal representation. That should fail at a factual level because there was no evidence that the applicant sought such an adjournment that was declined. Secondly, the primary judge made no error in dismissing the application in the absence of the applicant being represented because the applicant had no right to legal representation. But, thirdly, and most importantly, it was submitted that the primary judge was correct to conclude that there was no jurisdiction to review the outcome contained in the letter of 6 April 2017 because the applicant's request for ministerial intervention was not referred to the Minister for consideration. Consideration 17 The decision of the primary judge in this respect must be seen in the context of the facts which I have briefly set out. The respondent's submissions at [1]-[9] comprehensively set out the underlying facts. Paragraphs 6 to 9 in CWW17 v Minister for Immigration [2018] FCCA 582 set out the primary judge's reasons. At the root of those reasons is the view expressed by the primary judge, principally by reference to the High Court's decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, that there was no decision under the Act, therefore there could be no migration decision and, therefore, there could be no attached procedural fairness. 18 The High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 dealt with its earlier decision in Plaintiff S10. The decision in SZSSJ was a unanimous decision of the High Court. The discussion at [53]-[55], consequent upon the discussion of the various reasons in Plaintiff S10, makes a number of things clear. First, as made clear at [53], the Minister has no obligation to make any decision under s 48B. It is a non-compellable power and it is comprised of two distinct decisions: a procedural decision whether to consider a substantive decision and a substantive decision to grant a visa or lift the bar. The Minister has no obligation to make either decision and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness. 19 Secondly, in [54], the processes undertaken by the Department to assist in the Minister's consideration of a possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has not made a procedural decision to consider whether to make a substantive decision, any process undertaken by the Department on the Minister's instructions to assist the Minister to make that procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. Having no statutory basis, it is not, relevantly, a migration decision under the Act. 20 Thirdly, in [55], it was made clear that the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or lift the bar or not in any particular case is a question of fact. Here, the letter of 6 April 2017 was described by the primary judge in paragraph 4 of his reasons as follows: The only material that was read into evidence was the affidavit the applicant filed at the time he filed his application in this Court. That affidavit simply attached a copy of the decision which, as I have said, is contained in the letter dated 6 April 2017 from the Department. That letter refers to an application the applicant made under s.48B of the Act that the Minister determine that s.48A of the Act does not apply to prevent the applicant from making an application for a protection visa. 21 That letter is in the application book at AB 10. The letter stated as follows: I am writing to advise you of the outcome of your request for Ministerial Intervention. Your request was assessed against the Minister's Guidelines - s48A cases and requests for s48B Ministerial Intervention, however, it did not meet the Guidelines. This request has therefore been finalised by the Department without referral. 22 On the evidence that was before the primary judge, there was no decision under the Act and therefore no privative decision capable of review within jurisdiction by the Federal Circuit Court. In those circumstances, it would appear, subject to anything that might be put to the contrary of which I am not aware, that the appeal, if leave were granted and if an extension of time were granted, would fail. 23 If the applicant in the future seeks to apply to set the orders I am about to make aside, he will have to address this fundamental problem in relation to the letter of 6 April 2017 and his application to have it somehow reviewed by the Federal Circuit Court of Australia or this Court on appeal. 24 The orders that I propose to make are: (1) the notice of appeal filed be treated as an application for an extension of time in which to file and serve an application for leave to appeal; and (2) said application be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) for want of appearance by the applicant. 25 Application is made for a lump sum order of costs. The applicant has not been put on notice of this. To avoid any further argument about the matters that, really, might only cause further expense, I decline to make the order. The orders of the Court will be as I have indicated. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.