BJY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1424
•22 October 2021
FEDERAL COURT OF AUSTRALIA
BJY19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1424
Appeal from: Application for leave to appeal: BJY19 v Minister for Immigration (No 2) [2019] FCCA 3183 File number: NSD 1877 of 2019 Judgment of: LEE J Date of judgment: 22 October 2021 Catchwords: MIGRATION – where application for an extension of time filed below seeking judicial review – application for an extension of time refused – legal argument proposed “very weak” – where applicant sought reinstatement below – complaint about conduct of solicitor – application for reinstatement refused – application for leave to appeal – decision of primary judge not attended with sufficient doubt to warrant leave being granted – application for leave to appeal dismissed with costs Legislation: Migration Act 1958 (Cth) ss 476A(3), 477(1), 477(2)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Cases cited: BJY19 v Minister for Home Affairs [2019] FCCA 2156
BJY19 v Minister for Immigration (No 2) [2019] FCCA 3183
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 22 October 2021 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1877 of 2019 BETWEEN: BJY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed with costs.
2.Order 1 not be entered until publication of the revised reasons for judgment.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION AND BACKGROUND
This matter has a long and somewhat convoluted history.
It commenced in July 2013 when the applicant, a citizen of Lebanon, arrived with her (then) husband as an unauthorised maritime arrival. Almost four years later, the applicant applied for a Safe Haven Enterprise Visa (SHEV) as a member of her (then) husband’s family unit. At that time, the applicant did not advance her own claims for protection.
The applicant later separated from her husband and, for the first time in April 2018, advanced her own claims for protection. The applicant’s application for a SHEV was refused in November 2018 by a delegate of the first respondent (Minister) and in January 2019, the second respondent (Authority) affirmed the decision of the delegate.
B THE APPLICATION FOR AN EXTENSION OF TIME
A judicial review application was filed 43 days out of the time limit prescribed in s 477(1) of the Migration Act 1958 (Cth) (Act). It is against this background that an application pursuant to s 477(2) of the Act for an extension of time came before a judge of the Federal Circuit Court of Australia (as it was then known) in 2019. While an original application identifying the grounds of review was filed in April 2019, shortly before the August 2019 hearing, an amended application was filed by the solicitor for the applicant.
As was recorded by the primary judge in BJY19 v Minister for Home Affairs [2019] FCCA 2156 (at [20]), there was only one ground of review particularised in the amended application. It was in the following terms:
1. Ground 1: Jurisdictional Error – Failure to consider claim; The IAA failed to have regard to information and evidence that was before the IAA in breach of s473DB of the Act. Consequently, the IAA failed to exercise its jurisdiction and thereby fell into Jurisdictional error. In addition, or in the alternative, the IAA failed to discharge its obligation that requires A body such as the IAA, which is conducting an inquisitorial review process in which here is a claim for protection under s 36(2)(a) of the Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which his nevertheless raised clearly or squarely on the material before that review body (Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176).
Particulars
1.1 The delegate’s refusal decision dated 29 November 2018 does not consider the claims raised by the applicant as per the applicant’s husband’s statement 4 April 2017 (CB at [171]).
1.2The IAA does not consider the applicant’s claims in full as the IAA does not consider the claims raised by the applicant pursuant to 1.1 above.
(Reproduced without alteration).
Although expressing some doubts about the explanation given for the delay (at [21]), his Honour ultimately found (at [22]) that the delay was “relatively moderate” and the explanation “plausible”. It followed that if an arguable case for judicial review was advanced by the amended application, then his Honour would have granted an extension of time.
In disposing of the substantive merits of the proposed application, his Honour said the following (at [23]–[27]):
23. Having considered the proposed ground of review in the light of oral argument, I am not persuaded that there is any merit in it sufficient to grant the extension of time sought. The applicant’s former husband made a statement in support of his own claims for protection which is reproduced at CB 167-169. The statement includes claims to fear harm from relatives because of marriage issues, a fear of being forcibly recruited into the Sunni militia and, more generally, a fear of sectarian violence which, I am willing to accept, arises squarely from the material.
24.The delegate’s decision is reproduced at CB 214. Relevantly, the delegate states that the applicant’s husband’s individual claims for protection were assessed separately as requested by the applicant and her husband. The delegate notes that in the circumstances, a discussion of the applicant’s husband’s claims is not within the purview of the delegate’s assessment of the present applicant’s claims. The delegate further states that the applicant’s husband’s claims do not include any role of the applicant in any real or imputed political activity, insurgent activity, or sectarian violence, or that involved her in any specific way.
25.Therefore, the delegate did not accept that the applicant’s husband’s claims alluded to the applicant or were related to her in any way, or that these had any relation to her reason for leaving Lebanon. The applicant contends that in that regard, the delegate was wrong, and that the applicant’s husband’s claims, including his claim to fear forcible recruitment, needed to be considered because of the potential impact on her. In my view, the only issue impacting upon this applicant arising out of the husband’s claims was the issue of sectarian violence.
26.The delegate properly referred to that under the heading “Return to Tripoli” in that part of the decision. The applicant had the opportunity, and did, make submissions to the Authority in relation to those parts of the delegate’s decision with which she did not agree. That submission had some impact on the Authority’s decision, in particular in relation to issues concerning her marriage. The Authority refers to the applicant’s statement at [7] of its reasons.
27.The Authority accepted that there were exceptional circumstances to consider new information in relation to the separation of the applicant from her husband. Importantly at [20], the Authority considered the same issue which was considered by the delegate, namely, the risk of sectarian violence in Lebanon, in particular in Tripoli. While the applicant contends that that consideration was inadequate, in my view, the issues raised by the applicant’s husband, insofar as they could have any impact on her own claims, were dealt with at a higher level of generality which obviated any need to deal with the specific claims advanced by the applicant’s husband.
(Footnotes omitted).
At the hearing today, I required the Minister’s representative to provide me with the delegate’s decision and also the statement prepared by the applicant’s former husband. There is no argument articulated before me as to why the reasoning of the primary judge (at [23]–[27]) is infected with error. Upon my review of the material, there is no basis to disagree with the conclusion expressed by the primary judge that there was no arguable case of jurisdictional error by the Authority as alleged by the applicant’s solicitor at the hearing in August 2019.
It followed from the conclusion reached by the primary judge that the application for an extension of time pursuant to s 477(2) of the Act was refused.
C THE REINSTATEMENT APPLICATION
By reason of s 476A(3) of the Act, an appeal did not lie to this Court from the refusal of the application for an extension of time (although, of course, it may have been open to the applicant to seek prerogative relief). What occurred, however, was that an “Application in a Case” was filed by the applicant in the Federal Circuit Court on 16 October 2019 (Reinstatement Application).
Under the “orders sought” section in the Reinstatement Application, the following appeared:
1.The Order of His Honour Judge Driver be set aside.
2.His Honour to give me the opportunity to appear before him because my lawyer Leonard Jacob disappeared and failed to inform me of the outcome of my application before the Court until I contacted the Department and was told that my application before the Court was dismissed on 6 August 2019.
3.I have paid my lawyer $4000 and I have been visiting his office and found it locked and could not reach him either by phone or email.
4.I rely on my affidavit.
The affidavit referred to in the Reinstatement Application was an affidavit by the applicant sworn on 16 October 2019. After setting out her family circumstances, it deposed to the fact that her friend contacted the Department of Immigration to find out about her status in Australia and was told that she was without a visa. Complaints were also made about the conduct of the solicitor, both by reason of his failure to contact the applicant concerning the result of the proceeding before the primary judge and also as to his general lack of assistance in conducting the case. The affidavit then entreated the primary judge “to allow me to appear before him with the assistance of an Arabic interpreter to argue my case”. No additional grounds asserting jurisdictional error on behalf of the Authority were articulated in the Reinstatement Application or in any other material, including the affidavit, before the primary judge.
The primary judge heard and dismissed the Reinstatement Application on 6 November 2019: see BJY19 v Minister for Immigration (No 2) [2019] FCCA 3183.
D THE APPLICATION FOR LEAVE TO APPEAL
The application before me today is an application for leave to appeal from the decision dismissing the Reinstatement Application (given the order dismissing the application for reinstatement was interlocutory): see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
There is no need for me to explain yet again the relevant principles that inform the determination of an application for leave to appeal. I set them out in some detail in Nationwide News Pty Ltd v Rush [2018] FCAFC 70 (at [2]–[5], Allsop CJ agreeing at [18], Rares J agreeing at [12]). In short, an application must: (a) show that in all the circumstances the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave to appeal were refused. It goes without saying that substantial injustice would result if leave were refused in this case if the decision was wrong and hence, the focus must be on whether or not the decision of the primary judge is attended by sufficient doubt.
D.1 The nature of the application
The application for leave to appeal before me contains the following two grounds:
Grounds of application
1. I respect the kindness of [the primary Judge], but I continue to have strong opinion that my application should not be dismissed because I have an arguable case and [the Authority] misunderstood my claim and underestimated the evidence in support of my application.
2. I am hoping that the Federal Court of Australia will look at my case differently because my life is at risk, and I have a genuine fear of returning to Lebanon.
Additionally, an affidavit in support of the application for leave to appeal was filed annexing a draft notice of appeal with five proposed grounds. The five grounds are as follows:
1.[The primary judge] accepted the explanation for the delay but I personally am not satisfied why my lawyer Mr Jacob lodged my application outside the normal time.
2.Even though it was my choice to engage Mr Jacob I was not aware of his professionalism and I know that now he has run away.
3.I still believe that the [Authority’s] decision is affected by error of law as there is no probative evidence to support the [Authority’s] finding that my life will not be at risk if I return to Lebanon.
4.The [Authority] failed to recognise me as a victim and failed to accept me as a refugee as well as failed to see that because of the serious harm I left Lebanon.
5.The [Authority] failed to fully understand my claim and recognise me as a woman at risk.
In relation to these grounds of appeal, two observations can be made. First, it is noteworthy that the first two grounds, which relate to the conduct of the applicant’s previous solicitor, are somewhat beside the point, given: (a) the primary judge accepted the explanation for a delay; and (b) there was no argument articulated before the primary judge as to why there was some sort of miscarriage because of the alleged incompetence of the applicant’s previous solicitor. Secondly, as to the final three grounds, there does not appear to have been any articulation of the alleged errors of the Authority before the primary judge in respect of the Reinstatement Application.
D.2 The relevant timeline
This application for leave to appeal was filed on 14 November 2019. Regrettably, it has had a long history in this Court. On 18 November 2019, the Registrar made a series of orders to ready the application for a final hearing, including a regime for the filing and service of written submissions. The matter was initially set down for hearing before me on 2 July 2021. On 24 June 2021, my Associate received a communication from the applicant seeking to postpone the hearing because of medical difficulties (as indicated in a somewhat Delphic letter from a medical practitioner). On the basis of that material, I vacated the listing and adjourned the hearing to 8 October 2021.
On 6 October 2021, my Associate received a further communication from the applicant requesting a lengthy adjournment on the basis of a medical condition identified by a general practitioner, the details of which are unnecessary to set out in this judgment. In response, my Associate indicated that I was not content to adjourn the hearing on the basis of the material provided to the Court, that the matter would remain listed on 8 October 2021, and that any application for a further adjournment could be made at that time.
After hearing from the parties on 8 October 2021, I adjourned the application until 22 October 2021 and made a number of ancillary orders. Those orders were in the following terms:
1.The hearing for leave to appeal, and if granted, the appeal, be adjourned to 10.15am on 22 October 2021.
2. Notwithstanding the failure of the applicant to comply with the order of 18 November 2019 to file and serve written submissions, the applicant has leave to file and serve any written submissions on which she intends to rely by 5pm on 20 October 2021.
3. In the event that any submissions are filed in accordance with order 2, then the Minister has leave to file any supplementary submissions by 5pm on 21 October 2021.
4. Costs of today be reserved.
In accordance with order 2 of the orders dated 8 October 2021, the applicant filed a document directed to the following points:
(1)her claim for protection as a divorced woman who fears that her ex-husband’s family will take her children from her;
(2)the fact that violence against women in Lebanon exists and the authorities will not provide protection;
(3)complaints about the decision of the delegate;
(4)reference to the earlier decision made by the primary judge refusing leave to extend time; and
(5)imploring the Court to have regard to her unique circumstances because she has a well-founded fear of harm if she is to return to Lebanon.
In broad terms, submissions of a similar nature were repeated before me orally at the hearing today.
D.3 Consideration
While I appreciate the applicant has gone to some effort to express her dissatisfaction with the outcome in the proceeding before the primary judge, what the applicant’s written and oral submissions do not do, is seek to identify error in the dismissal by the primary judge of the Reinstatement Application. The essential reason why that application was refused is because there was no substantive argument advanced to the primary judge to grant reinstatement other than the complaint about the way in which the applicant’s solicitor had represented her.
Of course, as a general proposition, a litigant is bound by the conduct of their advocate; in this case, the applicant is bound by the conduct of her solicitor. But to the extent it was appropriate, his Honour indicated he saw nothing in the material available to him to demonstrate there was something in the conduct of the solicitor that justified the intervention of the Court to vacate its earlier orders: see [7]. The primary judge explained (at [5]) that the reason why the extension of time was refused was because the legal argument proposed to be advanced was “very weak” and there was nothing in the Reinstatement Application which convinced his Honour that the applicant was in a position to advance any arguments of greater substance (a conclusion which, on the material before the primary judge, was entirely understandable).
In a very different context, in Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, Callinan and Heydon JJ, in a joint judgment concerning the incompetence of counsel in the conduct of a criminal trial, noted (at 200–201 [162]):
[J]ust as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel.
On the limited material I have before me, there may be aspects of the conduct of the solicitor which, prima facie, are less than ideal, including the tardy approach to the conduct of the proceedings before the primary judge and the less than professional way in which the amended application was presented with grammatical and other errors. But it would be inappropriate for me to form any definitive conclusions concerning the conduct of the applicant’s erstwhile solicitor without hearing from him. In any event, the relevant question is whether it was open for the primary judge to reach the conclusion that there was nothing in the material available to him to indicate there was something in the conduct of the solicitor to justify the setting aside of the order to refuse the extension of time. In the absence of any articulated reason why there was another cogent ground available that was not advanced by the solicitor on the application to extend time, there is no reason to doubt the correctness of the conclusion reached by the primary judge.
When the true nature of the application is brought into focus, the broad ranging complaints by the applicant made in writing and orally today can be seen, perhaps understandably, as an attempt, in effect, to agitate the merits of the decision of the delegate and the Authority. This is not my role and, for the reasons I have explained, the application for leave to appeal discloses no basis to form the view that the decision of the primary judge is attended with sufficient doubt to warrant leave being granted.
E CONCLUSION AND ORDERS
The application must be dismissed with costs. I will make a further direction that the order I have pronounced not be entered until the time of publication of the revised reasons for this judgment.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 16 November 2021
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