Bi v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Bi v Minister for Home Affairs [2019] FCA 563

Appeal from: Application for leave to appeal: Bi v Minister for Immigration [2018] FCCA 335
File number: NSD 708 of 2018
Judge: MARKOVIC J
Date of judgment: 24 April 2019
Catchwords: MIGRATION – application for leave to appeal – where primary judge dismissed application to reopen case to lead further evidence – where notice of objection to competency against application for leave to appeal – whether application incompetent by reason of failure to comply with r 35.12(2) of the Federal Court Rules 2011 (Cth) – whether application incompetent by reason of failure to include certification required by s 486I of the Migration Act 1958 (Cth) – whether primary judge erred in exercise of discretion – notice of objection to competency dismissed – application for leave to appeal dismissed
Legislation:

Migration Act1958 (Cth) s 486I

Federal Court Rules 2011 (Cth) r 35.12

Cases cited:

ASIC v Rich (2006) 235 ALR 587; [2006] NSWSC 826

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144

House v The King [1936] 55 CLR 499

Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17

Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Date of hearing: 27 February 2019
Date of last submissions: 19 March 2019 (Applicants)
12 March 2019 (First Respondent)
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicants: Mr R Thomas
Solicitor for the Applicants: Fitzgerald Naylor Lawyers
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 708 of 2018
BETWEEN:

SHUJUAN BI

First Applicant

TENG MU

Second Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

24 APRIL 2019

THE COURT ORDERS THAT:

1.The notice of objection to competency filed by the first respondent on 18 September 2018 (Competency Objection) be dismissed.

2.The amended application for leave to appeal filed by the applicants on 20 February 2019 (Amended Application) be dismissed.

3.The first respondent is to pay the applicants’ costs of the Competency Objection.

4.The applicants are to pay the first respondent’s costs of the Amended Application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MARKOVIC J:

  1. This is an application for leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 16 April 2018.  The Federal Circuit Court made two sets of orders on that day: by the first set of orders, which are the subject of this application, it dismissed an application in a case brought by…

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Details
Case
[2019] FCA 563
Decision Date

CaseChat Overview and Summary

In the case of Bi v Minister for Home Affairs, the applicants sought leave to appeal against the decision of the primary judge who dismissed their application to reopen a case to lead further evidence. The Minister for Home Affairs filed a notice of objection to the competency of the application for leave to appeal, arguing that the applicants had failed to comply with certain procedural requirements of the Federal Court Rules 2011 (Cth) and the Migration Act 1958 (Cth). The primary judge dismissed the notice of objection to competency and the application for leave to appeal. The applicants sought leave to appeal the primary judge's decision. The court was required to determine whether the primary judge erred in dismissing the notice of objection to competency and the application for leave to appeal. The court considered whether the applicants' failure to comply with certain procedural requirements rendered the application incompetent and whether the primary judge erred in exercising his discretion.

The court held that non-compliance with the Federal Court Rules 2011 (Cth) is not a matter that goes to the Court's jurisdiction. The court also held that the primary judge did not err in dismissing the notice of objection to competency and the application for leave to appeal. The court found that the applicants had not provided a satisfactory explanation for their failure to comply with the relevant procedural requirements and that the primary judge had acted within his discretion in dismissing the application. The court held that the primary judge's decision was not unreasonable or capricious and that there was no basis for the applicants to be granted leave to appeal. The court dismissed the notice of objection to competency and the application for leave to appeal and ordered that the applicants pay the Minister's costs of the application for leave to appeal.

Orders

Orders of the court

1. The notice of objection to competency filed by the first respondent on 18 September 2018 (Competency Objection) be dismissed.

2. The amended application for leave to appeal filed by the applicants on 20 February 2019 (Amended Application) be dismissed.

3. The first respondent is to pay the applicants’ costs of the Competency Objection.

4. The applicants are to pay the first respondent’s costs of the Amended Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The primary judge dismissed the application in a case. In his reasons the primary judge set out several bases upon which he said that application should be refused, including that:(1)at least as at 29 September 2016 the applicants must have been aware of the orders made for the conduct of the case in February 2015 or, at the very least, must have had knowledge of the order setting the matter down for final hearing. That this was so was evident from the fact that on or about 29 September 2016 the second applicant approached the Minister’s solicitor in an attempt to adjourn the hearing date that had been allocated in the orders made in February 2015, which in fact occurred;(2)the primary judge rejected the applicants’ claim that they had no knowledge of the relevant process. The primary judge also found that there was no evidence to explain why the applicants took no steps to obtain legal advice or otherwise gain the necessary knowledge about how to prosecute their case, which they claimed they lacked;(3)the applicants had not satisfactorily explained why it took them at least 16 months to acquire the knowledge they said was denied to them by their first solicitor, Mr Jones, and that, in the circumstances, the applicants had had a reasonable and fair opportunity to properly prepare for the final hearing;(4)at the final hearing the second applicant made reference to documents he wished to give to the court but he did not identify any specific documents. In any event, the handing down of judgment was adjourned until 12 March 2018 and the applicants were given the opportunity to present the documents they said they were denied the opportunity of providing at the final hearing; and(5)having filed their application in a case, there was nothing in the affidavit in support or in that application that related to the documents that the applicants claimed they wished to provide to the court at the final hearing but which they said they were denied the opportunity to so provide. Nor was there anything from the applicants to indicate the nature of any claimed interpretation errors at the Tribunal hearing and whether such errors were material to any finding made by the Tribunal and the disposition of the application for review such that leave should be granted to the applicants to reopen their case.The Final Judgment The primary judge dismissed the substantive application seeking judicial review of the Tribunal’s decision. The applicants raised three grounds before the Federal Circuit Court, set out in the primary judge’s reasons at [17], as follows:1.The Tribunal has fallen into error concerning the exercise of the discretion.2.The interpreters didn’t translate correctly and effectively between the applicant and the member.3.The decision of the member was made on insufficiency and incomplete evidence.[Errors in original.] The primary judge found that none of those grounds identified error in the Tribunal’s decision.PROCEDURAL HISTORY IN THIS COURT On 27 April 2018 the applicants lodged their application for leave to appeal from the Interlocutory Judgment with the Court (Application). At that time they were represented by Michael Vassili Barristers and Solicitors. On 3 May 2018 the Application was accepted for filing by the Court.

Ratio Decidendi

Legal Principle Established

In the Competency Objection, the Minister objects to the competency of the Application. The Minister seeks to have the Application dismissed summarily as incompetent because the applicants have not complied with r 35.12 of the Rules and because the Application does not comply with the requirements of s 486I of the Act. CONSIDERATIONCompetency Objection The Minister pressed his Competency Objection in relation to the Amended Application. Given the relief sought, it is necessary to consider this first. As noted at [31] above, there are two bases upon which the Minister contends that the Amended Application is incompetent and should be dismissed. The first is the failure by the applicants to comply with r 35.12(2) of the Rules which relevantly provides, in the case of an application for leave to appeal, that:(2)The application must be accompanied by the following:(a)the judgment or order from which leave to appeal is brought;(b)the reasons, if published, for the judgment or order;(c)an affidavit stating the facts that support the application;(d)a draft notice of appeal that complies with rules 36.01(1) and (2); and(e)if the applicant wants to have the application considered without oral argument—a statement to that effect. As set out at [28] and [30] above, the Application and the Amended Application do not comply with r 35.12(2) of the Rules. Nor did the applicants seek an order that the Court dispense with the requirement for compliance with any part of r 35.12(2): see r 1.34 of the Rules. As the Minister observed, the applicants’ defaults could be remedied by later compliance with the Rules. However, given that by the time of the hearing they had not been complied with, the Minister submitted that the Amended Application was incompetent. Before turning to consider whether that is so, it is appropriate to make several observations. The Rules apply to proceedings commenced in the Court and prescribe the procedures to be followed by litigants in the Court in the conduct of proceedings. They have a purpose of assisting the parties and the Court in the orderly conduct and administration of the business of the Court. That said, the Rules are not to be applied inflexibly. There are times where a party may not be able to comply with particular requirements of the Rules or where the Rules are not apt to be applied to the particular circumstances of a case. However, the Rules are not simply to be ignored without explanation particularly where, as here, the applicants were represented at the time of the filing of both the Application and the Amended Application. Putting those matters to one side, the failure to comply with r 35.12(2) of the Rules is not a basis on which I would dismiss the Amended Application as incompetent. Non-compliance with the Rules is not a matter that goes to the Court’s jurisdiction. Put another way, it could not be said that compliance with, relevantly, r 35.12(2) is a precondition to the exercise by the Court of its jurisdiction which is conferred by s 24 of the Federal Court of Australia Act 1976 (Cth). Rather, a failure to comply with r 35.12(2) may have other ramifications. For example, where a draft notice of appeal is not provided and no grounds of appeal are articulated the application for leave to appeal would be dismissed because of a failure by the applicant to establish that there was any basis, let alone an arguable basis, for a grant of leave to appeal.