ETD17 v Minister for Immigration and Border Protection

2. BACKGROUND 4 The primary judge first noted that in order to be granted reinstatement, the applicant must provide a satisfactory explanation for his failure to attend the directions hearing on 7 December 2017 (and arguably 30 November 2017) and for his delay in seeking to set aside the orders made on 7 December 2017, as well as establishing that his substantive application had reasonable prospects of success. 5 With respect to the first issue, the primary judge noted that, while the applicant had obtained medical certificates at various times, he had failed to act promptly in alerting the Court before the first court date on 30 November 2017 of his ailment and had failed to inform the Minister's solicitors at all. The primary judge proceeded on the assumption that the Registrar was empowered to vacate the orders made on 30 November 2017 and relist the first court date, but considered that the applicant's initial non-attendance remained relevant (FCC reasons at [11]). 6 The primary judge considered that the applicant's second non-attendance at the hearing on 7 December 2017 was "harder to explain". The available material before the primary judge indicated that the applicant sought medical attention after having a bad dream. He was kept under observation for some hours at Liverpool Hospital and then attended an after hour's medical facility where he obtained a medical certificate stating his unfitness for work. The primary judge considered that if the applicant was well enough to undertake those steps, he was well enough to come to court and indicate his agreement with the Minister's proposed orders timetabling the matter for hearing. The primary judge considered that his conduct suggested "a determined effort to avoid court attendance." (FCC reasons at [15]). His Honour also observed that the applicant appeared perfectly normal, notwithstanding his claim of various ailments and illnesses at different times (FCC reasons at [16]). 7 In any event, the primary judge considered that there was no serious question to be tried arising on the judicial review application, with the seven grounds of review in large measure going to the merits of the Tribunal's decision (FCC reasons at [17]). As to the issue of procedural fairness raised by the application, the primary judge found that: 18. The Minister was prepared to concede, for the purposes of first court date directions, that a final hearing was justified because of the allegation of procedural unfairness in the grounds. That allegation of procedural unfairness is that the Tribunal conducted its hearing in the English language and that the applicant was thereby disadvantaged. There would certainly be an arguable case of jurisdictional error if the applicant had requested an interpreter for the Tribunal hearing and that request had been denied. The evidence available from Ms Davyskib's affidavit, however, establishes that in his application to the Tribunal the applicant stated that he did not need an interpreter. The applicant conceded under cross-examination that at no stage did he inform the Tribunal that he wished to have an interpreter. The Tribunal recorded that the applicant speaks and writes and reads Punjabi, English and Hindi. 19. In his judicial review application in this Court, the applicant requested a Hindi interpreter. At the outset of the hearing today, the applicant stated, through the interpreter, who had been arranged for today's hearing, that he would prefer a Punjabi interpreter. That request was readily accommodated as the interpreter booked for today's hearing speaks both languages fluently. The impression I gained, however, was that the applicant was willing to use the issue of interpreters as a tactical ploy. 20. It is apparent from the documents before me in the applicant's oral evidence that he has a high level of proficiency in the English language. In the circumstances, in my opinion, the allegation of procedural unfairness before the Tribunal would go nowhere. 8 The primary judge also considered that there was no merit in the applicant's oral submission that the Tribunal erred in failing to consider a statement from his friend regarding the applicant's claimed homosexuality. When invited to show the primary judge where that assertion appeared in his grounds for judicial review, the applicant referred the primary judge to Ground 5 which stated that he was "not a very tech savvy Person [sic]" and was not familiar with online texting. Ground 5 further alleged that the applicant was denied natural justice because the Tribunal "did not find any communication from my smart phone or because I did not know any popular dating apps on smart phone". The primary judge found, however, that "[i]t appears that the Tribunal invited the applicant to display any electronic messages from this person on the applicant's smartphone and he was unable to do so. That is a very different matter from failing to consider a statement." (FCC reasons at [22]). 9 Finally, the primary judge noted the applicant's tardiness in bringing the reinstatement application, concluding that he had adopted "a leisurely approach to the issue of reinstatement" (FCC reasons at [25]). In this regard the primary judge found that the application for reinstatement had been filed 54 days after the most recent dismissal for non-appearance (FCC reasons at [7]). His Honour found, in turn, that this was about one month after the applicant (on his own medical evidence) was sufficiently well to prepare a reinstatement application and had in fact prepared an affidavit in support of that application (FCC reasons at [25]). The affidavit in question had been made on 13 December 2017 but had not been filed until 30 January 2018 (FCC reasons at footnote 5).

2.1 Relevant principles 10 Leave to appeal is required under subs 24(1A) of the Federal Court of Australia Act 1976 (Cth) because the reinstatement decision in respect of which leave to appeal is sought was interlocutory in nature: Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]-[6] (Bromberg J); BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [3] (Rangiah J). 11 However, the first hurdle which the applicant must overcome is that he requires an extension of time within which to seek leave to appeal. In this regard, the time limit for making an application for leave to appeal is 14 days after judgment below was pronounced or on or before a date fixed by the Court below (rule 35.13, Federal Court Rules 2011 (Cth)). The orders were made in the Court below on 9 February 2018. There having been no other date fixed within which an appeal might be instituted, the time limit for making the application ended on 23 February 2018. Accordingly, as the applicant's application was filed on 6 March 2018, an extension of 11 days is required. 12 The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent, and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J). Relevant considerations in deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court). Accordingly, an assessment of the merits of the applicant's appeal is relevant both to determining the application to grant an extension of time and, if an extension were granted, to the application for leave to appeal.

2.2 Should an extension of time be granted 13 In his affidavit in support of the application for an extension of time, the applicant deposes that he attempted to lodge a notice of appeal and the Court asked him to provide further information which he had now attached, including the Form 117 and 118 and Draft Notice of Appeal: see also the application for an extension of time. 14 The Minister opposes the grant of an extension of time. The Minister submits that the explanation given by the applicant is not satisfactory as he had ten days following publication of written reasons by the primary judge on 13 February 2018 within which to lodge his application for leave to appeal but failed to do so, and that ignorance of court processes is no excuse for the delay. That said, the Minister accepts that he would suffer no particular prejudice if the extension of time were granted. 15 Given that the delay in seeking leave to appeal is very short and that the Minister would suffer no prejudice from an extension of time being granted, the real issue is whether any application for leave to appeal has sufficient merit to justify granting an extension of time. In considering this question, the proposed grounds of judicial review should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court)). 16 The draft notice of appeal identifies the following grounds: 1. The judgement of His Honour Judge Driver is affected by error of law as his Honour took the views of the First Respondent's submissions and ignored the compelling reasons I put forward. 2. It is my view that Registrar Morgan does not have the authority to dismiss my application as I did not appear for the Directions of Hearing. 3. Registrar Morgan and His Honour Judge Driver both failed to accept my compelling and compassionate circumstances and the reasons why I did not attend the Directions of hearing. 4. The First Respondent proposed that the case be listed for a final hearing at 10.15 on 9 May 2019 and I believe that my non-attendance led to dismissing my case without taking into account the compelling circumstances and the medical certificate provided. 5. I ask the Honourable Court to accept my application for review. (errors in the original) 17 In my view, none of these grounds has sufficient merit to warrant the grant of an extension of time. In this regard, it would be necessary for the applicant to establish that, in refusing to exercise his discretion to reinstate the proceeding, the primary judge made an arguable error of the kind identified in the decision of House v The King (1936) 55 CLR 499 at 504-505, namely: 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. 18 Proposed Ground 5 does not in its terms raise any ground of appealable error and may be put to one side. 19 Proposed Grounds 1, 3 and 4 contend that the primary judge and the Registrar failed to consider the allegedly "compelling reasons" and "compelling and compassionate circumstances" for the applicant's non-attendance at the directions hearings, and the medical evidence provided. No particulars however are given in the draft notice of appeal of the reasons or circumstances allegedly not considered. In support of his grounds, however, the applicant pointed in oral submissions to a number of considerations which the primary judge allegedly failed to consider, namely: (1) medical reports as to the applicant's mental and physical health; (2) the alleged failure by the Tribunal to advert to the statement given by the applicant's partner in support of his claim to be bi-sexual; and (3) that the applicant did not know that he could have simply accepted the proposed dates for the 2019 hearing because he did not have enough experience with court hearings which were new for him. 20 As to the first of these matters, the appellant relied upon the medical report before the primary judge which was reproduced at p. 90 of the tender bundle and the reference in that report to an opinion by a psychiatrist, Dr Roberts. However, as earlier explained the primary judge did consider that evidence but apparently was not satisfied that the evidence established a satisfactory explanation for the applicant's second non-attendance (FCC reasons at [14]-[16]). That finding was reasonably open to the primary judge and there is no apparent error in his Honour so finding. Insofar as the appellant sought also to rely upon medical reports including from Dr Roberts which were before the Tribunal (as is apparent from the Tribunal's reasons at [46]), there was no error in the primary judge not taking them into account as there is nothing to suggest that they were in evidence before the primary judge. In this regard I note the Minister's submissions that, because the Registrar had dismissed the application for non-appearance on the first court date, no court book had been yet prepared in the FCC reproducing the material before the Tribunal. 21 As to the second consideration, it is apparent from the Tribunal's reasons that it considered the evidence given by the applicant's alleged partner but did not consider that that evidence overcame the cumulative impact of the Tribunal's credibility concerns regarding the applicant, "particularly noting the contrary evidence as between the applicant and [the witness] as to whether they are or have been in a sexual relationship" (Tribunal's reasons at [49]; see also at [4]). As such, any contention that the Tribunal did not have regard to the evidence of the applicant's alleged partner could not succeed. Plainly, the Tribunal did consider that evidence and the applicant's complaint is ultimately that the Tribunal did not accept that evidence. 22 Turning to the third consideration, the primary judge accepted that the applicant's explanation as to why he did not simply agree to the Minister's proposed orders if he was unwell, arguably constituted a satisfactory explanation for his non-attendance on 30 November 2017. As such, it cannot be said that the consideration was overlooked by the primary judge or that the primary judge ultimately gave it much weight in refusing the reinstatement application. 23 The applicant also took issue with the finding by the primary judge that there was no reasonably arguable case of a breach of procedural fairness by reason of the failure to arrange for an interpreter at the Tribunal hearing. In this regard, the failure to provide an interpreter where an applicant lacks sufficient proficiency in English to communicate effectively with a court or tribunal and to understand the proceedings can constitute a breach of procedural fairness. However, in this case the appellant expressly stated that he did not require an interpreter for the Tribunal hearing in his application for review. In this regard, I note that a non-native English speaker is not always able adequately to assess her or his own competency in English particularly in a specialised and stressful environment, and that ultimately it is for the decision-maker to determine whether an interpreter is required: see the Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017, JCCD) at 40; see also the practical guidance as to how to ascertain the need for an interpreter ibid at 117-120. However, in this case the Tribunal found that the applicant speaks, writes and reads Punjabi, English and Hindi (at [13]), and the primary judge found that it was apparent from the documents before him and the applicant's oral evidence that he had a high level of proficiency in the English language. In this regard, the primary judge observed the applicant give evidence in cross-examination during the course of the three hour reinstatement hearing. Nor does the draft notice of appeal identify any particular errors alleged to have been made in interpreting. In these circumstances, I do not consider that any appeal against the primary judge's finding that the allegation of a breach of procedural fairness "would go nowhere", has any reasonable prospects of success. 24 Finally, with respect to proposed Ground 2 of the draft notice of appeal, the Registrar has had express power to dismiss an application for non-attendance under rule 13.03C(1)(c) of the FCC Rules since amendments which took effect on 3 August 2017: see the Federal Circuit Court Amendment (Costs and Other Measures) Rules 2017 (Cth) Sch 1, Pt 2, item 12. Rule 13.03C(1)(c), as amended, relevantly provides that: (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following: … (c) if the absent party is an applicant--dismiss the application… 25 It follows that the Registrar plainly did have power to dismiss the application by reason of the applicant's failure to attend the re-listed first court date on 7 December 2017.

3. CONCLUSION 26 For these reasons the application for an extension of time is dismissed. As the applicant has been wholly unsuccessful on his application, the applicant is to pay the first respondent's costs as agreed or assessed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.