FTK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed with costs. THE COURT DIRECTS THAT:
2. The Administrative Appeals Tribunal be removed as a respondent to the application.
3. The Third Respondent become the Second Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 10 April 2018 the Applicant made an application for a Protection (subclass 866) visa. This application was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('the delegate') on 19 June 2018. The following week, on 26 June 2018, the Applicant sought a review of that decision before the Administrative Appeals Tribunal ('the Tribunal'). On 5 September 2018 the Tribunal affirmed the delegate's decision. The Applicant was required to make any application to the Federal Circuit Court for judicial review of the Tribunal's decision by 11 October 2018 but failed to do so. On 2 November 2018 he applied to the Federal Circuit Court for an extension of time within which to commence such a proceeding. This application was refused on 29 January 2020. 2 The hearing of the application for an extension of time took place immediately before it was determined, that is to say, on 29 January 2020. At the hearing the Applicant represented himself. At the conclusion of argument the Federal Circuit Court immediately proceeded to determine the application. The judge delivered reasons orally and then pronounced the orders dismissing the application. The Applicant was informed by the judge at that time that if he required a copy of the Court's reasons in a written format he could apply for them and they would be provided. The Applicant did not seek a copy of the written reasons. 3 No appeal lies to this Court from a refusal by the Federal Circuit Court to extend the time for the bringing of a judicial review application of a decision to refuse a protection visa: Migration Act 1958 (Cth) s 476A(3)(a). 4 On 4 March 2020 the Applicant filed an application in the Federal Circuit Court seeking an order that his proceeding be reinstated. This application was heard by the Court on 6 March 2020. On the hearing of the application, the Applicant was represented by his solicitor. It was argued on his behalf that the initial dismissal of the extension of time application had been procedurally unfair because he had not had the benefit of an interpreter, was not represented and because the Court had never provided him with a written version of its reasons. 5 On 20 March 2020 the Federal Circuit Court published its reasons for refusing the extension of time application: FTK18 v Minister for Immigration [2020] FCCA 497 ('the Extension of Time Reasons'). 6 On the same day it made orders dismissing the reinstatement application with costs and published separate reasons for those orders: FTK18 v Minister for Immigration (No 2) [2020] FCCA 518 ('the Reinstatement Reasons'). 7 On 9 April 2020 the Applicant filed an application for judicial review in this Court seeking orders quashing the lower Court's orders. The application did not identify whether it sought to quash the orders dismissing the extension of time application or the orders refusing to reinstate that application after it was dismissed. However, the affidavit which accompanied the application to this Court made clear that the orders which were challenged were those dismissing the application to reinstate the earlier extension of time application. Consistently, the focus of the Applicant's submissions was on the Reinstatement Reasons. 8 The basis for the application in this Court was that the Reinstatement Reasons were legally erroneous because they failed to conclude that the orders dismissing the extension of time application had been made in breach of the rules of procedural fairness. That breach was limited to the contentions that the Court below had not delivered written reasons and that the Applicant had been unrepresented (ie the claim made in the Court below that the absence of an interpreter had hindered him in understanding the trial judge's oral reasons was no longer pursued). 9 I reject both of these contentions. One begins first with the fact that the Federal Circuit Court has published written reasons for its dismissal of the extension of time application in the Extension of Time Reasons. This occurred on 20 March 2020 51 days after the orders were made. I make the assumption for the sake of argument that it is a breach of the rules of procedural fairness not to provide a written version of oral reasons within the time provided for any appeal on the basis that this frustrates an applicant's appeal rights. However, in this case there was no appeal right because an appeal does not lie to this Court from an order refusing to extend the time to commence a judicial review proceeding in relation to a migration decision: Migration Act 1958 (Cth) s 476A(3)(a) read with s 477(2). Hence, making that assumption in the Applicant's favour does not establish a breach of the rules of procedural fairness. 10 I am also willing to assume for the sake of argument that it is a breach of the rules of procedural fairness not ever to produce a written version of oral reasons on the basis that this frustrates the Applicant's right to bring proceedings under s 39B of the Judiciary Act 1903 (Cth). However, that is of no assistance because the Court below delivered the Extension of Time Reasons on 20 March 2020 and the Applicant has been at liberty since then to apply under s 39B in relation to the orders dismissing the extension of time application: DTF17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 383 at [17] per Stewart J. Consequently, even making that assumption he has not suffered any procedural unfairness. 11 That leaves the Applicant's contention that he was denied procedural fairness at the hearing on 29 January 2020 because he was not represented, was unable to get a recording of the proceedings before the Tribunal while in detention and did not have anyone to guide him as to the application to the Federal Circuit Court. However, it was apparent from the way the submission was developed that this was an aspect of his contention that the failure to produce written reasons had resulted in a breach of the rules of procedural fairness. This was apparent because the submission was that the absence of representation brought the matter within the Full Court's observations in CQX18 v Minister for Home Affairs [2019] FCAFC 142; 372 ALR 137 at [10] per Allsop CJ, Perry and Gleeson JJ. That case concerned a failure by the judge to produce reasons within the time fixed for an appeal. Given that this is not such a case, the submission goes nowhere. 12 In those circumstances, I do not accept either of the contentions advanced by the Applicant and I therefore do not apprehend any error on the part of the Federal Circuit Court in its Reinstatement Reasons. The application will be dismissed with costs and the Administrative Appeals Tribunal will be removed as Second Respondent: CQX18 v Minister for Home Affairs [2019] FCA 386 at [5]. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.