Arancibia v Minister for Immigration
[2020] FCCA 2217
•5 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARANCIBIA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2217 |
| Catchwords: MIGRATION – New claims raised in amended application for review which in part related to the question as to whether or not there had been procedural unfairness at the time of the review hearing before the Tribunal – requirement for the provision of a transcript to assess the validity of the applicant’s claims – question of practical injustice to be determined upon a reading of transcript – matter adjourned for further hearing after provision of transcript. |
| Legislation: Migration Act 1958 (Cth), s.477(2). |
| Cases cited: SZTES v Minister for Immigration and Border Protection [2015] FCA 719. MZABP v Minister for Immigration and Border Protection [2015] FCA 1391. |
| Applicant: | KARY AURORA ALVAN ARANCIBIA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 945 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 5 August 2020 |
REPRESENTATION
| The Applicant appearing in person |
| Solicitors for the First Respondent: | Sparke Helmore |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The matter be adjourned for further hearing to 9 November 2020 at 9.45am.
The First Respondent shall obtain a copy of the transcript of the hearing before the Administrative Appeals Tribunal and provide a copy of such transcript to the Applicant.
Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
The costs of and incidental to today’s hearing be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 945 of 2019
| KARY AURORA ALVAN ARANCIBIA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant is a self-represented litigant who appeared before the Court with the assistance of an interpreter fluent in the Spanish language.
During the course of early submissions made by the applicant, it became apparent that the applicant was asserting that she had been denied procedural fairness at the hearing before the Administrative Appeals Tribunal (‘the Tribunal’). There were two respects in which the applicant first aired such claims. The first respect was by asserting that her migration agent was unable to make fulsome submissions on the applicant’s behalf during the course of the hearing. The second respect was the claim by the applicant that the migration agent had requested that the Tribunal adjourn the matter because the agent had only been appointed on short notice, and had been unable to continue to represent the applicant during the course of the whole hearing before the Tribunal because of a prior commitment.
Those claims have been live issues in this proceeding since 7 May 2020 when the applicant filed an Amended Application for review pursuant to an order of this court made on 16 April 2020. The Originating Application filed on behalf of the applicant was lacking in particularity to such an extent that the Court would have been unable to fairly adjudicate upon a hearing of the applicant’s claims.
The amended grounds for review as contained in the Amended Application for review filed on 7 May 2020 were as follows:
“1. Jurisdictional error. I, the applicant, claim as the first ground of judicial review that the Tribunal fell into jurisdictional error by breaching the rules of natural justice by not allowing the right to proper representation throughout the Hearing. My Migration Agent requested the Tribunal to adjourn the matter because he was appointed in such short notice and also, he had to attend another matter in Sydney. However, the Tribunal denied this request and conducted the Hearing regardless and, only allowed my Migration Agent to partly participate in the Hearing and the participation was conducted over the phone.
2. I, the applicant, claim as the second ground of judicial review that the Tribunal fell into jurisdictional error by breaching the rules of natural justice by not providing adequate disclosure of relevant issues such as the adequate disclosure of my enrolment records from the Provider Registration International Student Management System’s database. The Tribunal denied me with the right to have appropriate time to consider the new material before me and denied me the right of allowing adequate to provide a response in relation to its findings or claims. Therefore, I submit that I was unable to exercise my right to a fair Hearing and consequently the Tribunal fell into jurisdictional error by failing to provide adequate disclosure and failing to provide adequate opportunity to address the Tribunal’s new material put before me at the hearing.
3. I, the applicant, claim as the third ground of judicial review that the Tribunal fell into jurisdictional error by asking itself the wrong question and placing irrelevant weight on the question whether I have applied for a job in aged care in Peru. The Tribunal acted unreasonably and failed to consider that I have just applied for a student visa and that I was expected to conduct my studies in Australia and finish my studies first in order to be able to secure a position anywhere in Peru or overseas. I submit that the Tribunal blindly applied government policy and have showed its bias in making unfavourable decision against my case.
4. I, the applicant, claim as the fourth ground of judicial review that the Tribunal acted outside government policy and failed to consider my claims that I have enough incentive to return to my home country to be reunited with my son and re-take possession of my real estate in Peru. Rather, the Tribunal relied on the irrelevant circumstances by speculating that my acquaintances at school and my workplace would be an incentive to stay in Australia. The Tribunal was bounded by government policy to consider my incentives to return to my home country such as having family or real estate. However, the Tribunal acted outside of government policy and instead considered factors that the legislation did not allow the Tribunal to consider.
5. I, the applicant, claim as the fifth ground of judicial review that the Tribunal fell into jurisdictional error by disregarding a relevant consideration which the legislation required to be considered and failing to take into consideration relevant matters established by policy such as my migration history as an incentive to return to my country, at the time of assessing whether I am a genuine student. The Tribunal was required under the legislation framework to look at my migration history to see whether I had any previous no compliance of visa conditions in Australia or overseas. However, the Tribunal failed to properly observe the policy and used my migration history in a negative way by declaring that I have been outside Australia only on a few occasions. The Tribunal failed to positively observe that I have been back to Peru three times and I have been outside Australia in other occasions. Moreover, it failed to observe that my immigration history in Australia had not been the result of previous study, but in fact the result of a genuine relationship that ended due to domestic violence. The Tribunal failed to observe that my migration history positively satisfied the legislation for the grant of the visa.”
As to what considerations ought to be taken into account on an application for extension of time, in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [67] of the court’s reasons for judgment, Wigney J said as follows:
“[67] In all the circumstances it cannot be concluded that there was any practical injustice or unfairness to the applicant. The applicant was given every opportunity to present his case that he had good arguable grounds upon which to challenge the Tribunal’s decision. Procedural fairness did not require the Federal Circuit Court judge to put the applicant on notice that, despite the Minister’s consent, his extension application might nonetheless be dismissed on the basis that he did not have reasonable prospects of success. Whilst there may have been some confusion arising from the way in which the hearing was conducted, that confusion did not result in any prejudice or unfairness to the applicant.”
With respect, His Honour was clearly highlighting the issue as to whether or not any practical injustice or unfairness had occurred to the applicant in the matter before him. His Honour acknowledged that such was a consideration relevant to the exercise of the court’s discretion as to whether an extension of time ought or ought not be granted in the interests of the due administration of justice. [1] Similar considerations were raised by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391.
[1] SZTES at [75] per Wigney J.
In circumstances where there is a live issue concerning matters which relate to what transpired at the review hearing before the Tribunal – as was the case here for a period of over three months since the filing of the Amended Application for review on 7 May 2020 – it ought to have been obvious that the resolution of the matters raised in the amended application for review could not be appropriately addressed unless and until a transcript of the hearing before the Tribunal was obtained so that both parties could then address the claims made by the applicant.
The position of the Minister is that of a model litigant. The procurement of a transcript was essential for the fair hearing of the applicant’s claims before this court so that no practical injustice would occur. In the recent decision of the Full Court of the Federal Court of Australia in DHX17 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2020] FCAFC 127, at [44] and [45] of the joint judgment of Collier, Rangiah and Derrington JJ, the question of the exercise of a discretion under s. 477(2) of the Migration Act1958 (Cth) (‘the Act’) was discussed as follows:
“[44] However, it does not follow from the foregoing that the failure by the FCC judge to correctly exercise his discretion under s 477(2) will not result in jurisdictional error. As previously alluded to, it is possible that the magnitude of an erroneous approach to the exercise of the power indicates that the FCC judge misapprehended or disregarded the nature or limits of his functions or powers. Here it was submitted that such an error was revealed by the FCC judge undertaking a substantive analysis of the merits of the appellants’ proposed grounds of review. It was submitted that whilst an impressionistic consideration of the grounds was appropriate, the extensive analysis of their veracity as if they were being determined at a hearing of an application for review, indicated that the Court had misunderstood its function.
[45] This submission was founded upon the approach adopted by Mortimer J in MZABP. The issues in that case were substantially similar to those in the present. The FCC had refused the applicant an extension of time within which to apply for judicial review of a decision of the Refugee Review Tribunal (RRT) affirming the decision of a Minister’s delegate to refuse the grant of a protection visa. Before the Federal Court the applicant sought to argue that the FCC had made a jurisdictional error by misconstruing the power under s 477(2). In a manner similar to the present case, it was alleged that the FCC proceeded upon the basis that it would be in the interests of the administration of justice to extend time only if it were persuaded that the appellant “could succeed” on any of the proposed grounds of review. It was submitted that the FCC should only have determined whether any of the grounds of review were “reasonably arguable or had reasonable prospects of success”. Mortimer J held that as this issue had not been raised by the applicant until the submissions in reply it could not be considered by her as a ground of review. However, her Honour expressed disquiet about the manner in which the FCC had approached the question of the merits of the proposed grounds of review. In that respect she said (at [62] – [63]):
[I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
[46] Mortimer J identified that the erroneous approach to the application of s 477(2) may have resulted from the practice of combining the hearing of an application for an extension of time with the hearing of the application (citing SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES), [102]). Her Honour then proceeded to consider whether the FCC’s approach could be characterised as it exceeding its jurisdiction within the meaning of the principles referred to in Kirk at [72] – [73]. It was observed that in Kirk the plurality held that the misconstruction of a statute which leads a court to misapprehend the limits of its powers should be properly characterised as an error which was jurisdictional in nature. Mortimer J then postulated that, if in the case before her, the primary judge had taken the approach that it would only be “in the interests of the administration of justice” to extend time if persuaded that a ground of review would succeed, that would be a misunderstanding of the discretion in s 477(2) and amount to a misapprehension of the nature of the power conferred.”
In the absence of a transcript of the review hearing before the Tribunal, this Court is of the view that it cannot properly assess the claims of the applicant, either on an impressionistic level or otherwise. Whether or not there was any procedural unfairness at the hearing before the Tribunal will readily be able to be identified once the transcript has been obtained and read by both parties.
It is accordingly appropriate that this matter be adjourned for further hearing of the application for extension of time.
Accordingly the Court considers that it is appropriate that this matter be adjourned for further hearing before this court to 9 November 2020 at 9.45 am.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 11 August 2020
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