The present application
38 Any notice of appeal had to be filed within 28 days after the date judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth) (Rules or FCR), r 36.03. That time ran out on 29 July 2022. The application for extension of time was filed six days later, on 4 August 2022.
39 The Court has a discretion to extend the time before or after it expires and irrespective of whether an application for an extension was made before the time expired: FCR r 1.39.
40 As I observed in SZUTZ v Minister for Immigration and Border Protection [2015] FCA 186 at [9], the Court's discretion to grant an extension of time is a broad one, unencumbered by any express limitations, but that does not mean that the Court is completely at large to do as it pleases.
41 Like any power conferred by the Rules, the power to extend time to appeal must be exercised judicially and, in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), in the way that best promotes the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: FCA Act, s 37M(3). The factors the Court may take into account are not specified. Generally speaking, the Court has regard to the length of the delay; the explanation, if any, for the delay; whether the other party or parties would be prejudiced if an extension of time were granted; and, above all, the merits of the proposed appeal. The overriding consideration is the interests of justice: BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [42] (Colvin J).
42 Where the delay is not lengthy and has been satisfactorily explained and where there is no prejudice to the other party or parties, the Court will usually grant an extension provided that the applicant can demonstrate that the prospective appeal has at least ostensible merit. Consistent with the Court's obligation under s 37M(3), leave will not be granted where the appeal would have no reasonable prospects of success: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] (Finn J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O'Bryan JJ). In making an assessment of the merits, it is well-established that the Court need not go into great detail but is to carry out the assessment "in a fairly rough and ready way": Jackamarra v Krakouer (1998) 195 CLR 516 at [9]; BQQ15 at [33].
43 The application in the present case was supported by an affidavit sworn on 3 August 2022 by Mr Kitoko. Mr Kitoko described himself as the "unrepresented family relative of the applicants" who was assisting them in the day-to-day conduct of the matter. The affidavit discloses that, instead of filing a notice of appeal, on 29 July 2022 - the day the time expired to file a notice of appeal - Mr Kitoko e-lodged an "Originating application for review of a migration decision" in the Federal Circuit Court. Unsurprisingly, the application was rejected for filing. On 3 August 2022 Mr Kitoko was informed of the reason, advised of the documents he needed to file, and told where he could find the relevant forms. Mr Kitoko followed the advice and promptly filed an application for extension of time, a draft notice of appeal and his supporting affidavit.
44 The applicants relied on the written submissions prepared and filed by Mr Kitoko. I refused to grant leave to Mr Kitoko to represent the applicants at the hearing.
45 I am satisfied on the basis of this evidence that the delay is short and that an acceptable explanation has been provided. The Minister does not claim to be prejudiced by the delay. But what of the merits?
46 The draft notice of appeal is 32 pages long. As the Minister pointed out in his written submissions, it is not in proper form no doubt because it was prepared by Mr Kitoko who is not a lawyer. It largely consists of submissions and repeats much of what appears in Mr Kitoko's affidavit. That in itself would not be fatal.
47 The draft notice of appeal proceeds on the false premise that to succeed an appellant must establish that the primary judge fell into jurisdictional error, rather than appealable error. Five grounds are identified. Lengthy, often irrelevant submissions were advanced in support of them. Those submissions, like all the documents in this case and in the court below, were prepared by Mr Kitoko. Mr Kitoko appears to have no appreciation of the difference between pleadings, allegations, accusations, evidence and submissions, and no understanding of the rules of evidence. Passages from judgments are incorporated as submissions and without attribution as if they were the product of his original work. At times, scandalous allegations are made about the conduct of the Minister, his delegates, his lawyers, and the Tribunal, without a scintilla of admissible evidence to support them.
48 Ground 1 alleges that the judgment below was affected by jurisdictional error in that the primary judge "mistakenly asserted or denied the existence of jurisdiction" or "misapprehended or disregarded the nature or limits of her functions or powers".
49 Paradoxically, the submission in support of this ground is that the alleged errors were made within jurisdiction. Regardless, the alleged errors are said to be: failing to take into account the whole explanation for delay, including a claim in the written submissions that the applicants "had been subject of conspiracy"; denial of procedural fairness; bad faith; and fraud when the visa application "had been proceeded by the Minister, the Tribunal and the [FCFCoA]".
50 The errors are said to have been made in [35] of the primary judge's reasons. To put those remarks in context, it is necessary to refer to what her Honour said in the preceding paragraph as well. At [34]-[35] her Honour said this:
34 At the resumed hearing before the Court, the applicants (and Mr Kitoko) contended that the second applicant had previously been told in a call from the Department that she would not be allowed to bring her son to Australia. Whilst evidence of the call was not before the Court, it was submitted that I should nonetheless find that the Tribunal acted in concert with the Department in manufacturing the date of its decision to intentionally deprive the applicants of their rights to review. This was said to be supported by the delay between the stated decision date and the notification of it. It was also said to be supported by a lack of procedural fairness in the approach taken by the Delegate, including delay in making the Delegate's decision. This was contended to have amounted to an abuse of process.
35 The evidence before the Court falls well short of supporting a finding that any such conspiracy occurred. The Tribunal's decision was communicated within the period of 14 days allowed after a decision has been made: s 368A of the Act. The fact that notification occurred on Monday, 7 September 2020 after the decision was made on Thursday, 3 September 2020 does not establish any conspiracy between the Department and the Tribunal. Nor is this established by the applicants' complaints regarding the Delegate's decision. It was confirmed at the hearing that review was not sought of that decision. This Court would not have had jurisdiction to undertake such a review: s 476(2) of the Act.
51 The submission was that:
Following Craig v South Australia, the decision of the Federal Circuit Court made on 01 July 2022 was affected by jurisdictional error in that, as identified at [35] of her reasons for decision, Laing J mistakenly asserted or denied the existence of jurisdiction, or Laing J misapprehended or disregarded the nature or limits of her functions or powers, where her Honour correctly recognized that jurisdiction did exist: s 476(1) of the Act, and, in that, the decision of Laing J was invalid.
52 The submission makes little sense. The primary judge did not deny that she had jurisdiction to hear the judicial review application. Unquestionably, she had jurisdiction and she exercised it. In their submissions in reply, the applicants contended that in [35] of her reasons the primary judge "deliberately asserted that s 476(2) of the Migration Act was the only jurisdiction did exist on her functions or powers to judicially review the Applicants' matters [sic]" and "deliberately denied the existence of s 476(1)". This contention is based on a misreading of the primary judge's reasons. The observation made in the last sentence of [35] of her Honour's reasons had nothing to do with the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) to review a decision of the Tribunal, which was the jurisdiction she exercised. It was an observation about the fact that the FCFCoA had no jurisdiction to review the decision of the delegate.
53 It follows that ground 1 of the draft notice of appeal is doomed to fail.
54 Ground 2 alleges that the primary judge denied the applicants procedural fairness by not considering Ms Vela's oral submission and Mr Kitoko's written submission of "proposed ground three" of the judicial review application. In the affidavit filed in support of the present application, however, Mr Kitoko deposed that on 9 June 2022, "with a leave of the Court", he filed a written submission in which "proposed ground three on the denial of procedural fairness [be] considered by the court in support [of] the applicants' case".
55 I could find no reference in the appeal book to a proposed ground 3. I was informed by the Minister's counsel, Mr Johnson, that the only submissions that were filed by the applicants was a document, filed on 11 February 2021, which referred to only two grounds of review. Mr Kitoko informed the Court that his submission had been rejected for filing. No transcript of the hearing in the court below was tendered or annexed to any of the affidavits. But Mr Kitoko told the Court that the primary judge gave him the opportunity to make oral submissions based on his written submissions. In these circumstances, ground 2 is hopeless.
56 In the draft notice of appeal reference is made in this context (at [19]) to paras [34] and [35] of her Honour's reasons. In the submissions filed in this Court the applicants claimed that, during the lengthy delay in the processing of the visa application neither they nor their sons were notified that "the visa assessments were being conducted" or invited to comment on "any issue that could cause such material delay in processing" and/or "the validity of the application under cl 445.111". The applicants contended that the primary judge made a jurisdictional error by not finding that, in coming to its decision on 12 February 2020, the Minister had failed to comply with ss 51A(1), 56, and 57 "in that the Minister misconstrued and misapplied s 65 of the Act".
57 I infer that the complaint is that the primary judge did not consider the applicants' complaints about the delegate's decision. If that is the case, this ground is doomed to fail because the application before the court sought a review of the Tribunal's decision and her Honour's observation that the FCFCoA had no jurisdiction to review the delegate's decision is undeniably correct.
58 Section 476 relevantly provides that:
(2) The [FCFCoA] has no jurisdiction in relation to the following decisions:
(a) a primary decision[.]
…
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 … (whether or not it has been reviewed)[.]
59 A decision of the Minister or his delegate to refuse to grant a visa to a non-citizen is a "primary decision" within the meaning of s 476 in that it is a "privative clause decision" or "purported privative clause decision" within the meaning of s 474(2) of the Migration Act as it is "a decision of an administrative character made … under [the] Act … other than a decision referred to in subsection (4) or (5)".
60 The submissions went on to allege that the primary judge made a jurisdictional error in not finding that the Tribunal had denied the applicants and/or "visa applicants" procedural fairness in the conduct of the assessment of the visa applications by refusing to consider, or ignoring, Ms Vela's application to be added as a party to the proceeding "in breach of [s] 486B(7) of the Migration Act". These submissions are equally baseless.
61 I understand the "visa applicants" to be a reference to Joshua and his two brothers. They were not parties to the application before the primary judge, so there could be no jurisdictional error in not providing them with procedural fairness. They were not entitled to be heard. An affidavit affirmed by Sophie Lloyd, who appeared for the Minister in the court below, filed with leave after the hearing in this Court, revealed that separate applications for Extended Eligibility visas had been made by each of the two brothers; that their applications had also been rejected; and that in two separate decisions the Tribunal had dismissed applications for review on the same basis as it had dismissed the application to review the refusal to grant Joshua a visa. It does not appear that any application for judicial review was brought in relation to those decisions. They were certainly not the subject of the application before the primary judge.
62 Since Ms Vela's application was made after the Tribunal's decision was made, it was not before the Tribunal. No application was made to the Tribunal for it to revoke its decision and, having regard to the terms of s 368(2A), it had no power to do so. Section 486B of the Migration Act is concerned with consolidation of proceedings and the joinder of parties in certain migration proceedings in the High Court, this Court or the FCFCoA. It has nothing to do with proceedings before the Tribunal.
63 The complaint about not being invited to attend a hearing before the Tribunal was not made in the court below and the applicants require leave to raise it. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). Where no explanation is given for the failure to take the point and the point seems of doubtful merit, leave should generally be refused: VUAX at [46]-[48]. Here, no explanation was given and the point is without merit, not least because the applicants were given an opportunity to be heard on the matters which troubled the Tribunal. Further, because the Tribunal was correct to find that it had no jurisdiction to review the application as it had been brought by Mr Tukala and he was neither the sponsor nor nominator of the application sought to be reviewed, the Tribunal was under no obligation to invite Mr Tukala to a hearing: Benissa v Minister for Immigration and Border Protection [2016] FCA 76; 150 ALD 276 at [34]-[37] (Edelman J).
64 What is more, even if the Tribunal were obliged to invite him to a hearing, its failure to do so could not have been a jurisdictional error as there was no realistic possibility of a different outcome: see Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737, 403 ALR 398 at [1] (Kiefel CJ, Keane and Gleeson JJ) and the authorities referred to there. Providing the applicants with an opportunity to address the Tribunal on the question of jurisdiction would therefore have been a hollow one: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1; Benissa at [30]. Ms Vela's application was made well after the time expired to apply for review. No provision is made in the migration legislation for an extension of time. Section 29(7) of the AAT Act allows the Tribunal to extend the time for making an application for review of a decision if it is satisfied that it is reasonable in all the circumstances to do so. But s 29(7) is in Pt IV of the AAT Act and, with certain exceptions which are not presently relevant, s 24Z provides that Pt IV does not apply in relation to a proceeding in the Migration and Refugee Division of the Tribunal, which is the Division to which Part 5-reviewable decisions are allocated: see Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [60]-[84] (McKerracher, Reeves and Thawley JJ).
65 In these circumstances, it would not be expedient in the interests of justice to grant the applicants leave to advance this contention on appeal.
66 In submissions in reply the applicants also alleged "actual and apprehended bias against the Minister'[s] delegate in Pretoria", the Tribunal's officers, and the Tribunal member.
67 None of the material before the Court is capable of supporting such an allegation. For the reasons already given, the court below had no jurisdiction to inquire into any bias (actual or imputed) on the part of the delegate. The allegation made against the Tribunal is one of actual bias by reason of pre-judgment. It was put this way in submissions (without alteration):
[T]he Full Court in the present case would consider that actual bias exists where the Tribunal Member had pre-judged the case against the applicant, or had acted with such partisanship or hostility as to show that the Tribunal Member had a mind made up against the Applicants and/or the Visa' Applicants and was not open to persuasion in favour of the Applicants and/or the Visa' Applicants. Evidence of actual bias by inference from the facts and circumstances of this case involve an assessment of a series of actions by Ms Jomille Lastimosa and the Tribunal Member which, when taken together, form a whole picture leading to the conclusion of pre-judgment.
68 Where a decision-maker is guilty of bias, whether actual or apprehended, he or she will have committed a jurisdictional error: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. But bias must be "distinctly made and clearly proved": Jia at [69] (Gleeson CJ and Gummow J) and [127] (Kirby J). A finding of actual bias requires a court to be satisfied that the decision-maker was so committed to a conclusion already formed that their mind was incapable of alteration, whatever evidence or arguments might have been presented to them: Jia at [72]. As Gleeson CJ and Gummow J observed in Jia at [72], "[n]atural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion".
69 Nothing in the material before the Court suggests that the applicants would have any prospect of establishing a case of actual bias on the part of the Tribunal. The only evidence about Ms Lastimosa, a Tribunal Services Officer, was a reference in Mr Kitoko's affidavit to an email she had sent to Mr Kitoko on 23 April 2020, the day after the time limit expired, attaching "the payment details form" and apologising for its omission from the previous email.
70 Nor, for that matter, does the material before the Court suggest that there is any prospect that the applicants could make out a case of apprehended bias. That would require the applicants to prove that a fair-minded lay observer, with knowledge of the non-curial nature of the Tribunal and its inquisitorial processes, might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the issues: Re Refugee Review Tribunal and Another; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; 116 LGERA 402; 9 Leg Rep 20 at [26]-[27]. The applicants have not pointed to anything which could raise such an apprehension.
71 Ground 3 is in the following terms:
Further to procedural unfairness, the Administrative Appeals Tribunals decision of 07 September 2020 is and was made in bad faith and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Tribunals decision is attended and invalidated by jurisdictional error.
Particularly, the Tribunal in its decision record of 12 July 2016 made a critical finding of fact that was adverse to my claims, rights and interests. These findings of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative materials.
72 No particulars were provided and the affidavit in support of the application merely repeated the terms of the ground.
73 In the circumstances, I am not persuaded that this ground has any prospect of success.
74 Ground 4 is entitled "[f]raud" and alleges that each of the decisions of the Minister, the Tribunal and the Federal Circuit Court "was affected by conspiracy, dishonesty, deliberate delay amounting to fraud in making profit and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Minister, Tribunals decision or the FCC is attended and invalidated by jurisdictional error".
75 This ground is also bound to fail. Once again, no particulars were provided. The material before the Court provides no support for such serious allegations. What is more, as the Minister submitted, to the extent that this ground seeks to re-assert the matters addressed by the primary judge at [35] of her reasons, it is hopeless for the reasons already given.
76 In submissions the applicants alleged that "the decision" not to invite the applicants to appear at the hearing "was the result of the fraudulent conduct of Tribunal Services Officer, Jomille Lastimosa, and also the Tribunal Member". That conduct is said to be the refusal to consider or ignoring Ms Vela's application to be added as a party to the proceeding in circumstances where no such application was even foreshadowed before the decision was made. Moreover, as have already indicated, once made, the Tribunal had no power to revoke it: Migration Act, s 368(2A).
77 The final ground is ground 5. It reads (without alteration, footnote omitted):
The decision of the Minister of 12 February 2020, the Administrative Appeals Tribunals decision of 07 September 2020 and the decision of the FCC of 01 July 2022, each is and was affected by abuse of process, as result of Minister Dutton deliberately took more than two year and five months (or more than Twenty-Nine (29) months) to handed-down his decision to refuse to grant a Extended Eligibility (Temporary) (Class TK) visa, which was three (3) time the standard period of time lapsed for application processing of an EXTENDED ELIGIBILITY (Subclass 445) visa. and such that the Minister, Tribunals decision or the FCC is attended and invalidated by jurisdictional error and/or by protecting the interest the administration of the justice to the public.
78 The omitted footnote was to Reid International Pty Ltd v Ron Farris Real Estate Pty Ltd [2016] WASC 6 without any pinpoint citation. Insofar as it was conceivably relevant to the proposed ground of appeal, that case was concerned with the question of whether or not an action commenced in the Supreme Court of Western Australia seeking relief under the Competition and Consumer Act 2010 (Cth) should be dismissed or permanently stayed as an abuse of the processes of the court.
79 This ground, too, is bound to fail. No foundation was disclosed for the assertion that the Minister or, for that matter his delegate, deliberately delayed publishing the decision to refuse to grant Joshua's visa. And the applicants did not explain how any delay on the part of the Minister or his delegate amounts to jurisdictional error on the part of the Tribunal. The relationship between the relevant passages of the judgment in Reid to the circumstances in the present case is a mystery.