Luke Tamu v Australia for UNHCR [2018] FWC 5853

[1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 14 September 2018.

[2] Mr Luke Tamu (Appellant) lodged in the Commission on 11 April 2018 an application pursuant to section 365 concerning a general protections application involving a dismissal (principal application). It appears that issues have arisen whether there was a dismissal, and if there was a dismissal, the date on which the dismissal took effect and whether the application made pursuant to section 365 was made within the time prescribed under the Act, in accordance with section 366. Issues related to the principal application have been the subject of earlier appeals heard by two differently constituted Full Benches. The first appeal was Tamu v Australia for UNHCR[1], which was dismissed.

[3] A decision in the second appeal was issued on 26 July 2018.[2] In that decision, the Full Bench dealt with a proposition advanced by Mr Tamu that the jurisdictional hearing had already occurred. The Full Bench expressly rejected the proposition.[3] The Full Bench noted that the proposition proceeded upon an erroneous premise, and that no jurisdictional hearing had taken place. The Full Bench also referred to [21] and [26] of the earlier mentioned Decision,[4] in which the earlier Full Bench noted that it was clear the Commission had not made a decision as to whether or not Mr Tamu should be granted an extension of time or indeed if he even requires an extension of time. This was a clear reference to the fact that no decision had been made in relation to either whether there was a dismissal or whether if there was a dismissal, the date on which the dismissal took effect.

[4] Commissioner Spencer has given notice of a hearing to deal with the question of jurisdiction that arises as a consequence of the general protections application made by Mr Tamu. That jurisdictional hearing has been scheduled for 10.00am on Tuesday, 18 September 2018. I take the issuing of the notice of the hearing to be a decision made in accordance with section 589, that is a procedural decision, and which relevantly provides that the Commission may make decisions as to how, when and where a matter is to be dealt with. The Commissioner has plainly made a decision that the jurisdictional matter will be dealt with at a hearing on 18 September. Subsequent to that decision, the Appellant filed a further Notice of Appeal.

[5] The Notice of Appeal sets out the decisions that the Appellant seeks to appeal. The notice provides that the Appellant had applied for the affidavit of Mr Bogan to be expunged and he had applied for Mr Bogan to be excluded from participating in the hearing. He also appeals the notice of listing, which is the notice to which I have referred, and he wishes Mr Bogan, Mr Mellsop and Ms Watters be excluded from the hearing.

[6] The notice of listing issued by the Commissioner gives notice to Mr Mellsop and Ms Watters as contact people at the Respondent for the purposes of receiving the notice. There is nothing in the material, and the Appellant was not able to point to any decision that the Commissioner has made about any person's participation in the hearing or any evidentiary ruling that the Commissioner has made about who may give evidence and what evidence that person might give, for the purposes of dealing with the jurisdictional matter with which the Commissioner proposes to deal on 18 September.

[7] The Appellant initially sought an expedited hearing of the appeal, given the impending hearing. I listed the matter for 10 September 2018 to deal with that issue and advised the Appellant that the Commission was not in a position to constitute a Full Bench to deal with the appeal before 18 September. I noted that the Appellant had not sought a stay of any decision in his Notice of Appeal, and as a matter of fairness, I gave the opportunity to the Appellant to indicate, whether in light of the inability of the Commission to deal with the appeal expeditiously, he sought a stay. At the hearing on 10 September 2018, the Appellant indicated that he wished to press a stay and as a consequence I allowed him to press that application.

[8] I listed the application for a stay order for hearing on 14 September 2018. The principles that are applicable to the grant of a stay can be shortly stated. Essentially, the question of whether or not a stay should be granted depends upon a consideration of whether there is an arguable case with some reasonable prospect of success, both on the question of permission to appeal and the merits of the appeal and whether the balance of convenience favours the grant of a stay. Dealing firstly with the first of those propositions, it is plain that there is no material which suggests that any decision has been made in relation to the participation of particular individuals in, or admission of evidence at, the hearing. The prospects of Mr Tamu obtaining permission to appeal, much less succeeding in an appeal in relation to a matter about which there is no decision, are remote.

[9] Therefore I consider, so far as the appeal concerns "decisions" relating to those evidentiary matters, that there is very little prospect of permission to appeal being granted, much less a successful appeal on the merits in relation to those "decisions". As to the issue of the decision to convene a hearing, the Commissioner has before her an application from Mr Tamu pursuant to section 365 and a suggestion from the UNHCR that the application was lodged out of time. These circumstances plainly raise a jurisdictional question with which the Commissioner must deal. Other than listing the matter for hearing, the Commissioner has made no other decision on the face of the material before me. The decision to convene a hearing to deal with the jurisdictional question, including the question whether the Appellant was dismissed at all, is a decision that the Commissioner quite properly made and in the circumstances, I am not persuaded that there is an arguable case with some reasonable prospects of success both in relation to permission to appeal or the merits of the appeal in relation to the decision by the Commissioner to list the matter for hearing on Tuesday 18 September 2018.

[10] It is therefore unnecessary for me to deal with the question of balance of convenience. However, it seems to me evident that many of the matters that Mr Tamu seeks to agitate in this appeal are matters that should properly be agitated before the first-instance member dealing with the jurisdictional objection. In the circumstances, together with the interlocutory nature of the decision to convene a hearing, I do not consider the balance of convenience favours the grant of a stay, even if I required to consider that matter. For those reasons, the application for a stay order in relation to the decisions set out in the Notice of Appeal is refused.

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Judgment (10 paragraphs)

Luke Tamu v Australia for UNHCR [2018] FWC 5853 (19 September 2018)

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Legislation Cited (1)