BAW18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 860
•27 June 2023
FEDERAL COURT OF AUSTRALIA
BAW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 860
Appeal from: BAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1473 File number: SAD 105 of 2021 Judgment of: CHARLESWORTH J Date of judgment: 27 June 2023 Catchwords: MIGRATION – appeal from orders dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – whether leave should be granted to rely upon grounds not raised at first instance – application for adjournment of hearing refused – appellant failing to make submissions in support of the merits of proposed new grounds – leave to introduce new grounds refused – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 65, 474 Cases cited: BAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1473
Coulton v Holcombe (1986) 162 CLR 1
Craig v South Australia (1995) 184 CLR 163
O’Brien v Komesaroff (1982) 150 CLR 310
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 27 June 2023 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms M Scanlon Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
SAD 105 of 2021 BETWEEN: BAW18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
27 JUNE 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.
3.The appellant is to pay the first respondent’s costs of the appeal, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
This appeal was dismissed by an order made on 27 June 2023. Oral reasons were given on that day. These written reasons for judgment are revised from the transcript.
The Court has before it an appeal from a judgment of the formerly named Federal Circuit Court of Australia (FCCA): BAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1473.
The appellant appears in person before me with the assistance of an interpreter. He appeals from an order of the FCCA dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the then-named Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth).
At first instance, the onus was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163.
The appellant relied on two substantive grounds. The primary judge dismissed the first ground because it seemed to relate to a visa other than a protection visa. His Honour dismissed the second ground on the basis that it did not allege jurisdictional error, but instead amounted to an attack on the merits of the decision.
A notice of appeal was lodged in this Court on 22 June 2021. It contains four grounds, expressed as follows:
1. The decision was affected by jurisdiction of error in that Tribunal denied me procedure of fairness.
2. I was not given enough opportunity to explain my situation.
3. Decision is merely made by looking at previous decision.
4. Fully confused by translator, unable to explain any[thing].
These grounds do not allege appealable error on the part of the primary judge. Rather, they allege errors on the part of the Tribunal that were not argued in the proceedings before the primary judge. They may be interpreted generously given the appellant’s status as a self-represented litigant. So interpreted, the grounds allege that the Tribunal failed to afford him procedural fairness including because the appellant was not given an adequate opportunity to present his case for reasons including the inadequacy of translating services. They also allege that the Tribunal did not engage with the facts and circumstances of his case.
The Court has discretion to grant leave to the appellant to rely upon grounds not alleged on his application for judicial review. Leave may be granted if the Court is satisfied that it is in the interests of the administration of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310 (at 319); Coulton v Holcombe (1986) 162 CLR 1 (at 7 – 8). The principles guiding that discretion are well settled and need not be discussed at length here.
In exercising the discretion, I give considerable weight to the circumstance that the appellant was self-represented in the proceedings before the primary judge. I consider that his self-represented status yields a sufficient explanation as to why he did not raise the new arguments at an earlier time.
It is also relevant to have regard to the apparent merits of the grounds that are now sought to be argued. The difficulty in that respect is that the appellant has filed no written submissions on the appeal that would assist the Court to understand the detail of his argument.
At the commencement of the hearing, the appellant made an oral application for an adjournment of the hearing. He explained to the Court that he wanted more time to consider documents that were relevant to his grounds. I understood that submission to mean that the appellant would like the opportunity to consider documents that may include an audio recording of the proceedings before the Tribunal.
At the first case management hearing on 6 April 2023, I remarked to the Minister’s Counsel that if the Minister had in his possession an audio recording of the Tribunal’s hearing, then that should be provided to the appellant to assist him with the preparation of his case. On the material before me (particularly emails marked MFI-R1) it is apparent that the audio recording was provided to the appellant on 17 April 2023, more than two months ago.
I declined to grant the appellant an adjournment for reasons given orally. Those reasons included the circumstance that the judgment appealed from was delivered more than two years ago, and that the notice of appeal was also filed about two years ago. Whilst I appreciate that the appellant is not proficient in English, I consider that the time that he has had to prepare written and oral submissions in support of his proposed grounds has been more than ample.
I invited the appellant to make oral submissions so that the Court could understand the detail of the basis of his allegations. I indicated to the appellant that he could be afforded an opportunity to supplement his oral submissions with a document directing the Court to those parts of the audio recording upon which he may wish to rely.
The appellant declined to make any oral submissions but re-agitated his application for an adjournment. I remained unpersuaded that the hearing should be delayed, and proceeded to determine the issues arising on the appeal.
As I have mentioned, there is no allegation of appealable error on the part of the primary judge. It is accordingly unnecessary to summarise his Honour’s reasons for dismissing the application for judicial review of the Tribunal’s decision.
It remains to determine whether the appellant should have leave to introduce the proposed new grounds. The difficulty for the appellant is that the Court has no material upon which it can make an assessment of the apparent merits of the proposed grounds. In the absence of written and oral submissions, the material before the Court is limited to the assertions on the notice of appeal itself. I cannot make a proper assessment of the merits of the proposed new grounds, even at the limited level of scrutiny ordinarily applied on an application for leave to raise new arguments.
It was open to the appellant to make brief written submissions supplemented by documentary material later. The consequence of his declining that invitation is that there can be no assessment of the merits of the grounds and leave to introduce them will not be granted.
It follows that the appeal must be dismissed.
Before concluding, it is appropriate to record that the delay between the giving of oral reasons and the publication of these written reasons is not the fault of the appellant.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 27 June 2023
0
8
1