DAE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

order made by: DAVIES J DATE OF ORDER: 9 FEBRUARY 2021

1. The time for seeking leave to appeal from the orders of the Federal Circuit Court of 26 June 2020 be extended to 14 July 2020, and the application filed on that day be treated as having been filed pursuant to this extension of time.
2. The application for leave to appeal be dismissed.
3. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant seeks an extension of time in which to seek leave to appeal and leave to appeal from a decision of the Federal Circuit Court of Australia (FCC) dismissing his interlocutory application for the reinstatement of his judicial review application, which the FCC dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) due to the applicant's failure to attend a directions hearing. The applicant had sought by his judicial review application to review the decision of the second respondent, the Immigration Assessment Authority (Authority) which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Subclass 790) visa. The FCC dismissed the applicant's application for reinstatement of the judicial review proceedings on the basis that the applicant did not have a reasonable excuse for his failure to attend the directions hearing and the sole ground of judicial review advanced by the applicant had no reasonable prospects of success.

Background 2 The applicant is a citizen of Sri Lanka who arrived in Australia on 8 November 2012 as an "offshore entry person": s 5 of the Migration Act 1958 (Cth) (Act) (as in force at the relevant time; now "unauthorised maritime arrival" within the meaning of s 5AA of the Act). On 31 August 2016, the applicant made an application for a protection visa. The applicant participated in an interview with a delegate of the Minister to discuss his visa application and some days later the applicant's representative provided a written submission to the Department of Immigration and Border Protection (now the Department of Home Affairs) (Department). On 12 September 2017, the delegate refused the applicant's visa application. The Department referred the delegate's decision to the Authority for review under the fast track review process contained in pt 7AA of the Act and the applicant's representative provided a further written submission to the Authority. That submission contained new country information and claims which were not before the delegate, including, relevantly, that the applicant had attended Liberation Tigers of Tamil Eelam (LTTE) events since his arrival in Australia (Heroes Day claim). On 11 May 2018, the Authority affirmed the delegate's decision. The Authority did not take the Heroes Day claim into consideration in making its decision. 3 The applicant filed an application for judicial review of the Authority's decision in June 2018. At the time of filing, he was given a directions hearing for 4 September 2019 and the time and date for the directions hearing were completed on the filing cover sheet. The applicant failed to attend that hearing and as a consequence the application was dismissed that same day by a Registrar under r 13.03C(1)(c) of the FCC Rules. The applicant then filed an interlocutory application in the FCC seeking to have the FCC exercise its power under r 16.05(2)(a) of the FCC Rules to set aside the order made on 4 September 2019 and reinstate the judicial review proceeding. On 26 June 2020, the FCC dismissed that interlocutory application: DAE18 v Minister for Immigration & Anor [2020] FCCA 1703 (FCC judgment). 4 The applicant now seeks both an extension of time to seek leave to appeal from the FCC judgment, and leave to appeal from that judgment. An extension of time is required because the applicant was a few days out of time in filing his application for leave. The Minister did not oppose the applicant's application for an extension of time within which to seek leave to appeal. However, the Minister submitted that leave to appeal from the FCC judgment ought to be refused, arguing that the judgment of the FCC is not attended by sufficient doubt to warrant the grant of leave.

Principles 5 Leave to appeal from the FCC judgment is necessary as a decision refusing to reinstate an application is interlocutory in nature: ss 24(1)(d) and 24(1A) of the Federal Court of Australia Act 1976 (Cth); FBS18 v Minister for Home Affairs [2019] FCAFC 196 (FBS18) at [2]; Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3]. In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor Corporation), the Full Court held at 398-9 that leave to appeal from an interlocutory judgment requires the applicant to show both that there is sufficient doubt as to the correctness of the decision below to warrant review and further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The second limb of the test was not in issue, as it may be accepted that substantial injustice would be suffered by the applicant if the first limb of the test is met but leave to appeal was nonetheless refused because he would lose the opportunity to pursue his protection visa application. In issue is satisfaction of the second limb of the test. 6 The power of the FCC to reinstate proceedings is discretionary and found in r 16.05(2)(a) of the FCC Rules, which provides: (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or … 7 Since the decision was discretionary in nature, it attracts the application of the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King) at 504-5 where Dixon, Evatt and McTiernan JJ observed: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 8 Generally a court will have regard to three factors in exercising the power and consider whether, on balance, those factors tend for or against the reinstatement. Those factors, as explained by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7] are: (a) whether there was a reasonable excuse for the applicant's absence from the hearing in which the proceeding was struck out; (b) the existence and nature of any prejudice that might flow to the respondent from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; and (c) whether the applicant has a reasonable chance of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs [2005] FCA 1066 at [18]: The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement. (Ryan J's emphasis) However, as the Full Court observed in FBS18 at [55] and [58], the discretion in r 16.05(2)(a) of the FCC Rules is a broad discretion and there are no statutorily prescribed matters that must be taken into consideration when deciding whether or not it is in the interests of justice to exercise that discretion. Factors commonly cited in case law, such as those listed by Ryan J in MZYEZ, are to be taken as a guide to what may be considered when exercising the discretion in r 16.05 of the FCC Rules, and the statutory discretion should not be fettered by judicially imposed rules so that it becomes equated to a statutory check-list.

FCC Judgment 9 The FCC judgment recorded that the applicant deposed that his reasons for not attending the hearing on 4 September 2019 included (FCC judgment at [17]): (a) he is not literate in English; (b) he required free legal assistance to bring his application to the Court; (c) in the course of [making his original judicial review application], an email address that he does not use was listed as the primary contact point for him; and (d) he checked his email 'by happenstance' and learned of the dismissal at which point he took prompt steps to bring his reinstatement. 10 The applicant relied on one proposed ground of review before the FCC (as extracted at [24] of the FCC judgment): The [Authority] misunderstood the notion of "exceptional circumstances", at [9], in that it accepted that the proposed new claim was "credible personal information" yet it went on to find that there were no exceptional circumstances for reasons that suggest that the new information / claim was not credible (being too vague). In that sense, the two points are in tension - there being a positive finding on 473DD(b)(ii) and a negative finding on credibility under s 473DD(a). (to be edited (sic)) 11 Before the FCC, the Minister contended that the applicant had not provided a reasonable explanation for his failure to attend the directions hearing on 4 September 2019 and did not have a reasonable chance of success on the substantive judicial review application: FCC judgment at [20]. 12 The FCC held that the applicant had not provided a sufficient basis to warrant the setting aside of the Registrar's orders dismissing the proceeding: FCC judgment at [28]. The primary judge reasoned that the applicant's failure to attend the directions hearing on 4 September 2019 was brought about by his own lack of care, in that he provided an email address that he did not use to the lawyers who prepared his original application for judicial review and assumed that the FCC would contact him by post at his physical address to notify him of the hearing: FCC judgment at [29]. The FCC also referred to the applicant's own statement in his affidavit in support of his interlocutory application for reinstatement that he missed the directions hearing due to "a failure to appropriately manage [his] legal affairs": FCC judgment at [30]. 13 The FCC also found that the applicant's sole ground of judicial review advanced before the FCC did not have any reasonable prospects of success: FCC judgment at [31]. The ground related to [9] of the Authority's reasons, where the Authority stated: The new claim, that the applicant attended Heroes Day events in Australia in 2016 and one other time a few years ago to commemorate the deaths of LTTE fighters, relates to events that would have been known to the applicant for some time prior to the SHEV interview. I am satisfied that this amounts to credible personal information for the purposes of s.473DD(b)(ii). The lawyer states that the applicant did not mention these events earlier because his former representative never asked him if he had attended these types of events and given the applicant's age at the time he did not realise the importance of disclosing this information. At the time of the SHEV interview the applicant would have been almost 20 years of age and he was advised in that interview that it was his responsibility to provide all his claims and supporting information as early as possible, including in that interview. He was also asked on more than one occasion if there were any other reasons he feared returning to Sri Lanka. In the SHEV interview the delegate clearly advised the applicant he did not think the applicant would be of any interest to the authorities in Sri Lanka based on his profile and that he did not understand why the authorities would be looking for him now. I find the applicant's explanation for not having mentioned his attendance at these events earlier, particularly given the events commemorated the deaths of LTTE fighters and his central claim was that his links to the LTTE brought him under suspicion, unsatisfactory. There are no details of when or where these events took place (except in the broadest possible terms) and the applicant has provided no other evidence to corroborate this claimed attendance. I am not satisfied that exceptional circumstances exist to justify consideration of the information. 14 The FCC rejected the applicant's contention that there was a tension in the Authority's reasons, relying: (1) upon Bromberg J's decision in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 (CSR16) where his Honour held at [41]-[42] that all that was required for information to be "credible" for the purposes of the test in s 473DD(b)(ii) of the Act was that it was capable of being accepted by the Authority as truthful or accurate or genuine, and that it was only at the deliberative stage that the Authority needed to determine whether the information was true: FCC judgment at [32]; and (2) upon DLB17 v Minister for Home Affairs [2018] FCAFC 230 (DLB17), where the Full Court held at [22] that even if the Authority is satisfied of the credibility of the new information at the lower threshold for the purposes of s 473DD(b)(ii) - that is, that the new information is arguable - there is no prohibition on the Authority considering, and Authority is permitted to consider, whether it is satisfied as to the truthfulness of the new information in assessing the criterion of "exceptional circumstances" for the purposes of s 473DD(a) of the Act.

Application for leave to appeal 15 The applicant seeks leave to appeal from the FCC judgment on the ground that the primary judge erred in dismissing his interlocutory application. The applicant relies on the following proposed grounds of appeal: 1. The learned primary judge fell into error by failing to take into account the "material consideration" (House v The King [1936] HCA 40 at 505) of the Applicant's personal circumstances in considering whether his excuse for absence from the directions hearing was reasonable. 2. The learned primary judge erred by "acting upon a wrong principle" (House v The King [1936] HCA 40 at 505) in determining that the Applicant had no reasonably arguable prospect of success. [His] Honour conflated the words of Bromberg J in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [41], in using them as the standard of satisfaction the [Authority] was open to reach when considering the existence of "exceptional circumstances".

Proposed ground 1 16 The applicant submitted that the primary judge fell into error in the House v The King sense by failing to take into account the "material consideration" of the applicant's personal circumstances in considering whether his excuse for his failure to attend the directions hearing was reasonable. In the applicant's submission, the primary judge failed to take into consideration the applicant's consistent engagement with his visa application process and neglected to account for the evidence indicating that the applicant was a responsive and engaged, though unsophisticated, litigant. According to the applicant, there was no suggestion on the material before the primary judge that he was slow to communicate with his legal representatives, the Authority or the courts. Further, it was submitted, the applicant took "immediate action" when he found out his matter had been dismissed for non-appearance. Relying on Kaur v Minister for Immigration and Border Protection [2014] FCA 915; 236 FCR 393 at 419 [95], the applicant submitted that, based on this record, his failure to attend the directions hearing was out of character and departed from his pattern of conduct. The applicant further submitted that the primary judge failed to take into consideration the applicant's lack of knowledge and experience in legal and formal matters. The applicant pointed to his limited education and English ability, his lack of experience working in an office job, the fact that he was 20 years of age at the time he filed his judicial review application in the FCC, and the fact that he had relied on his mother to arrange his passage to Australia and to hold important documents such as his birth certificate. In oral submissions, counsel for the applicant submitted that due to the applicant's circumstances, "the adherence to email as a form of communication is not necessarily one that he would understand to be the usual course of communications from such an authority as the courts". It was submitted that the applicant did not exercise a lack of care, as found by the primary judge, but rather "fell afoul of unfamiliar procedural rules due to his lack of experience in managing his legal affairs". 17 The Minister submitted that in considering whether the applicant provided an adequate explanation for his failure to attend the directions hearing, the primary judge did consider the applicant's personal circumstances. In the Minister's submission, the primary judge noted that the applicant's explanation for non-attendance included the fact that he was not literate in English, he required free legal assistance to bring his application to the Court, and that an email address that the applicant did not use was listed as the primary contact point for him. The primary judge also noted that the applicant in fact had the assistance of lawyers in bringing his application to the Court, and that he had himself stated that his failure to attend the directions hearing was because of a failure to appropriately manage his legal affairs. The Minister also submitted that the applicant's submissions focused on matters extraneous to the applicant's excuse for failing to attend the directions hearing, in particular his conduct in November 2019 after he found out that the application had been dismissed, which was not relevant to the FCC's assessment of the adequacy of the applicant's excuse for non-attendance at the directions hearing. In circumstances where the applicant had legal assistance in preparing his application and the time and date for the directions hearing were set out on the cover sheet generated on 8 June 2018 - which, it was submitted, negated the applicant's reliance on the fact that he did not check his emails regularly - it was, in the Minister's submission, plainly open to the primary judge to find that the applicant's explanation for his failure to attend the directions hearing was not adequate. 18 In my view there is arguable error in the House v The King sense in the primary judges' consideration as to whether the applicant had provided an adequate explanation for his non-appearance at the directions hearing on 9 September 2014. The primary judge was not bound to consider whether the applicant had provided an adequate explanation for his non-appearance at the directions hearing but, having regarded that factor as material to the exercise of discretion, the primary judge was bound to take account of all the relevant matters that bore upon that question. Critically and significantly, the applicant's explanation for his non-attendance and his acknowledged failure to manage his affairs appropriately included the circumstances that: his English is limited and he has had limited education; he was representing himself because he could not afford to engage lawyers to act for him; he was 20 years old when he filed his application for judicial review; he did not have any friends or family to help him or to whom he could turn for advice; and he genuinely wants to engage in the legal process. Whilst the FCC noted that the applicant has limited English and noted that the applicant had access to community legal services and received legal assistance in lodging the judicial review application, the FCC did not take into account in its consideration, nor engage at all, with the evidence and matters put forward by the applicant regarding his personal circumstances in his explication of the reasons for his failure to manage his affairs and failure to appear at the directions hearing. There is, in my view, a reasonably arguable case that such matters and evidence were material considerations for the FCC in the exercise of its discretion and that the failure to do so constitutes legal error. Accordingly I reject the Minister's contention that ground 1 is without merit.

Proposed ground 2 19 The applicant claimed that the primary judge erred in determining that the applicant had no reasonable prospects of success on his judicial review application. The applicant advanced the following proposed ground of judicial review before the FCC: The IAA misunderstood the notion of "exceptional circumstances", at [9], in that it accepted that the proposed new claim was "credible personal information" yet it went on to find that there were no exceptional circumstances for reasons that suggest that the new information / claim was not credible (being too vague). In that sense, the two points are in tension - there being a positive finding on 473DD(b)(ii) and a negative finding on credibility under s 473DD(a). (to be edited (sic)) 20 The Authority's power to consider new information derives from s 473DD of the Act, which provides: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 21 Before this Court, the applicant submitted that the FCC fell into error in the House v The King sense by acting on a wrong principle in determining the applicant's prospects of success. The applicant submitted that the FCC wrongly equated the assessment of whether there were exceptional circumstances to justify consideration of new information with the deliberative stage of assessing the truthfulness of any credible personal information and, in doing so, "raised the ceiling" to a higher and more substantive standard than what is required at the filtering mechanism stage under s 473DD. In oral argument, counsel for the applicant further submitted that the Authority adopted an unduly narrow interpretation of "exceptional circumstances" for the purposes of s 473DD(a). 22 The applicant's submissions in this Court failed to engage with the Full Court authority cited by the FCC that the matters that may be relevant to determining whether there are exceptional circumstances to justify considering new information under s 473DD(a) may include the Authority's assessment of whether the information is, in fact, credible (as distinct from the lower threshold of credibility in s 473DD(b)(ii)): DLB17 at [22]; see also AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [16]. For the purposes of s 473DD(a), the Authority was entitled to consider the credibility of the new claim in determining whether there are exceptional circumstances. The FCC correctly applied the relevant legal principles in considering whether the proposed ground of review had reasonable prospects of success and the oral argument that the Authority applied an impermissibly narrow interpretation of what constituted "exceptional circumstances" is without substance. 23 Moreover, High Court authority since the FCC judgment was delivered puts this position beyond doubt. In AUS17 v Minister for Immigration & Border Protection [2020] HCA 37 (AUS17), Kiefel CJ, Gageler, Keane and Gordon JJ confirmed the established principle that sub-ss 473DD(a) and (b) are cumulative criteria. It is settled law that the Authority must assess the new information first against the criteria specified in s 473DD(b) and, if met, then against the criterion specified in s 473DD(a): AUS17 at [11]. As the High Court stated in AUS17 at [11], if the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). It is also settled law that that the criteria in sub-ss 473DD(a) and (b) are not the same and it does not follow for the purposes of the assessment of the criterion in s 473DD(a) that, in every case, it will be sufficient for the Authority just to be satisfied that the new information is credible personal information which is open to be or is capable of being accepted by the Authority as truthful. Accordingly, there is no doubt about the correctness of the decision of the FCC that the ground of judicial review had no reasonable prospects of success.

Conclusion 24 In the circumstances, there would be no utility in granting leave to appeal on the first ground only as there is no reason to doubt the correctness of the FCC's conclusion that the application for judicial review had no reasonable prospects of success. The applicant is granted an extension of time within which to file his application for leave to appeal but leave to appeal is accordingly refused. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies.