Khan v Minister for Immigration and Border Protection

Decision of the Federal Circuit Court of Australia 8 In the Court below the learned Judge noted that the Tribunal had made its decision without first inviting the applicant under s 360(1) of the Act to appear before it to give evidence and present arguments. His Honour observed however that the Tribunal had invited that applicant under s 359 of the Act to provide information. Materially s 359C(1) of the Act provides: Failure to give information, comments or response in response to written invitation (1) If a person: (a) is invited in writing under section 359 to give information; and (b) does not give the information before the time for giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the information. 9 The applicant submitted however that the Tribunal's letter of 14 June 2013 was addressed to his erstwhile representative, Mr David Bitel, and that by the time he received the letter Mr Bitel had ceased acting for the applicant. The applicant submitted further that Mr Bitel did not provide the Tribunal's letter to him, and accordingly the applicant remained ignorant of the Tribunal's request for information. 10 The primary Judge observed: 5. Two issues arise. Did the applicant in fact receive the Tribunal's letter dated 14 June 2013? Was the Tribunal in any event entitled to decide the application for review without inviting the applicant to appear before it to give evidence and provide arguments? 11 In summary his Honour found: There was evidence before the Court that the applicant did receive the Tribunal's letter. In particular at [9] and [10] of the primary judgment, his Honour noted the affidavit of Mr Bitel in which Mr Bitel swore that: o by further letter of 28 June 2013, his firm had forwarded a copy of the Tribunal's letter of 14 June 2013 to the last known postal address of the applicant; and o he caused an employee of his firm to send the same letter (attaching the Tribunal's letter of 14 June 2013) to the applicant by email dated 1 July 2013. Mr Bitel did not inform the Tribunal that he was no longer acting for the applicant. In any event, the manner in which the Tribunal may seek information is set out in s 359(3) of the Act which provides: Tribunal may seek information (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given: (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or (b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (4) … Relevantly in this case, s 379A(5) of the Act provides: Transmission by fax, email or other electronic means (5) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by: (a) fax; or … to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or In this case the Tribunal had faxed the letter of 14 June 2013 to Mr Bitel, which was the last fax number provided to the Tribunal by the applicant in his application for review. It followed that the Tribunal was entitled to decide the application without inviting the applicant to appear before it to give evidence and present arguments. 12 Accordingly in a judgment dated 10 October 2014, his Honour dismissed the application.

Proceedings in this Court 13 Rule 36.03 of the Federal Court Rules 2011 (Cth) requires an appellant to file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case the applicant filed an application for an extension of time on 20 November 2014, being 10 days out of the time limit prescribed by r 36.03. 14 The principles guiding the discretion of the Court to grant an extension of time were explained in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and include: the extent of delay; the explanation for the delay; and the merits of the substantive application. 15 In an affidavit filed on 20 November 2014 the applicant deposed that: "I came to know about the judgment very late." "I couldn't arrange the legal material in time due to less knowledge about legal matters." "I didn't have any lawyer so found it difficult to pursue my case." 16 The sole draft ground of appeal in the draft notice of appeal annexed to the affidavit was as follows: I couldn't arrange the legal documents in time due to less legal knowledge. 17 The sole order the applicant has sought is: I want the review of the decision of Federal Circuit Court. 18 The extent of the delay of the applicant in seeking an extension of time is ten days, which in my view is not a long period of time. The Minister in this case submits that the applicant has not provided a satisfactory explanation for his failure to lodge a notice of appeal in accordance with the Federal Court Rules. However while the explanation provided by the applicant - namely he learned of the judgment of the primary Judge late, he lacked legal knowledge, and is self-represented - is not a good explanation, in my view it is a satisfactory explanation in the circumstances of this case. 19 A more difficult hurdle for the applicant concerns the merits of the substantive appeal. 20 At the hearing this afternoon, the applicant from the Bar table informed me that he did not receive the letter or the email from Mr Bitel's office, that he was too ill to attend the Federal Circuit Court hearing of 9 April 2014 where he could have cross-examined Mr Bitel as he had requested, and that he had attended the office of Mr Bitel in the first week of July 2013 and had not been informed of the letter from the Tribunal. 21 I do not consider any of these issues adequate to support an order for extension of time as sought by the applicant. The material before the Court supports a finding that the applicant had not seen fit to inform either Mr Bitel, or more importantly the Tribunal, of changes to his contact details. Both the Tribunal, and apparently Mr Bitel, had endeavoured to contact the applicant at the addresses he had nominated. It was the responsibility of the applicant to ensure currency of his contact details, at least with the Tribunal. In relation to the applicant's somewhat belated challenge to the evidence of Mr Bitel in this Court, I note - and accept - the submission of the Minister that, in light of his illness, the applicant could have sought an adjournment of the hearing in the Federal Circuit Court. This was particularly so in light of the importance of Mr Bitel's evidence in the context of that hearing. In any event, the assertions of the applicant in relation to his interactions with Mr Bitel's office are merely that - assertions from the Bar table in the context of an appeal. So far as concerns the appeal of the decision of the Court below they can be of no weight and it is not appropriate for this Court to treat them as evidence. 22 I accept the submission of the Minister that the draft ground of appeal does not in any way support a case establishing an appealable error in the decision of the primary Judge. In any event I also accept the submission of the Minister that the decision of the primary Judge was open and legally correct. 23 The appropriate order is to dismiss the application with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.