BUD17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Appeal from: Application for extension of time: BUD17 v Minister for Immigration and Border Protection [2017] FCCA 2325
File number: WAD 154 of 2018
Judges: ROBERTSON, STEWARD AND THAWLEY JJ
Date of judgment: 23 August 2018
Catchwords:

MIGRATION – appeal from the Federal Circuit Court of Australia – where Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal – whether jurisdictional error – where Tribunal rejected appellant’s submission or claim on the basis there was no material supporting that submission – where material did support submission – inference Tribunal overlooked critical material – appeal allowed

PRACTICE AND PROCEDURE – application for an extension of time to appeal from orders of the Federal Circuit Court – where delay substantial – where delay explained – where the proposed appeal has merit – application granted

PRACTICE AND PROCEDURE – application for leave to rely on grounds not raised below – where appellant was not legally represented in Federal Circuit Court – where grounds have merit – where no real prejudice to the respondent in granting leave – leave granted

Legislation:

Migration Act 1958 (Cth) ss 438, 424A, 424AA, 476

Federal Court Rules 2011 (Cth) rr 36.03, 36.05

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109

Assistant Commissioner Condon v PompanoPty Ltd [2013] HCA 7; 252 CLR 38

Coulton v Holcombe [1986] HCA 33; 162 CLR 1

Guo v Minister for Immigration and Border Protection [2018] FCAFC 34

Hamod v New South Wales [2011] NSWCA 375

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344

MacPherson v R [1981] HCA 46; 147 CLR 512

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235

SZRKT v Minister for Immigration and Border Protection [2013] FCA 317; 212 FCR 99

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Date of hearing: 23 August 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 87
Counsel for the Appellant: Mr M G S Crowley
Solicitor for the Appellant: AUM Legal
Counsel for the Respondents: Ms S J Oliver
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

WAD 154 of 2018
BETWEEN:

BUD17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

ROBERTSON, STEWARD AND THAWLEY JJ

DATE OF ORDER:

23 AUGUST…

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Details
Case
[2018] FCAFC 140
Decision Date

CaseChat Overview and Summary

In the case of BUD17 v Minister for Home Affairs, the appellant, a citizen of Vietnam, appealed against a decision of the Federal Circuit Court of Australia, which had dismissed an application for review of a decision made by the Administrative Appeals Tribunal (AAT). The appellant's claims involved allegations of corruption and fraud, including involvement in setting up companies to borrow money through dishonest means. The key issue before the court was whether the AAT had made a jurisdictional error in rejecting the appellant's submissions that he would face further charges upon his return to Vietnam, based on the evidence provided.

The court found that the AAT had overlooked critical evidence that supported the appellant's claims of further investigations and potential charges. This amounted to a jurisdictional error. The court also granted the appellant leave to rely on grounds that had not been raised before the Federal Circuit Court, as they had substantial merit and would not prejudice the respondent. The application for an extension of time to appeal was allowed due to the merit of the proposed appeal and the explanation provided for the delay.

Consequently, the appeal was allowed, and the decision of the Federal Circuit Court was set aside. The matter was remitted to the AAT for redetermination according to law, and the Minister for Home Affairs was ordered to pay the appellant's costs of the appeal. The court's decision emphasised the importance of properly considering all relevant evidence when making jurisdictional decisions.

Orders

Orders of the court

1. Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until further order, the name of the applicant and any material that might tend to identify the applicant not be published.

2. The application for an extension of time be granted.

3. The appellant be granted leave to rely on ground 1A and ground 3 in the amended draft notice of appeal.

4. The appeal be allowed.

5. The orders of the primary judge be set aside and in lieu thereof:

(a) a writ of certiorari issue quashing the decision of 22 March 2017 of the second respondent;

(b) remit the matter to the second respondent, differently constituted, for determination according to law.

6. The first respondent pay the appellant’s costs of the appeal.

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

Background

Background to the litigation

For the reasons given below, ground 3 is made out, the appeal should be allowed and the matter remitted to the Tribunal to be determined according to law. In that circumstance, it is not necessary to reach a conclusion in respect of ground 1A or ground 1B. Nevertheless, we observe below that the hearing afforded to the appellant, which was the subject matter of ground 1B, fell short of what was desirable.BACKGROUND The appellant was born in, and is a citizen of, Vietnam. His claims were to the following effect. He ran a real estate business. The success of his business was such that senior Communist Party officials wanted to become hidden equity partners without investing money. He refused to facilitate this or to pay bribes to avoid the issue. Land which was owned by the appellant’s company was rezoned, resulting in losses associated with a fall in value in properties. This caused difficulties with existing lenders such that the appellant caused loans to be made on the black market at high rates. The appellant turned to corrupt banking officials who operated a bank. The appellant set up various companies and borrowed money by dishonest means. The relevant events occurred in 2009 and 2010. The appellant was named as the “ringleader” in an indictment dated [date redacted]. A translated copy of this was relied on by the appellant in his claims for protection described in more detail below. This indictment recorded the “results of investigation” in detail. The appellant was the Chairman of the Board of Members of a particular company. He set up a number of companies and appointed directors. Those companies were used to borrow money from banks. The appellant “used falsified commercial contracts and business plans”; he used “faked certificates of House Ownership and Land Use Right as securities to borrow money”; with the assistance of other accused he fraudulently appropriated a “significant amount of money” and then fled. The indictment included:In order to borrow money easily, [the appellant] usually contacted [a director of a named bank] in advanced to ask him to approve the loan. [The director of the named bank] knew that these companies were set [up] by [the appellant]. These loans were personally borrowed by [the appellant] and were used to rollover overdue loans that [the appellant] borrowed from bank previously. The loans for those companies were not qualified under regulations on loan provision in the operations of credit institutions, but [the director of the named bank] directed [another executive at the named bank] and [another executive of the named bank] not to verify the actual facts in the loan and not to determine whether or not business plans for loan was falsified, to make valuation report for security assets (The value of security assets is enough for loan purposes), and submit the proposals to [the director of the named bank] with recommendation to approve the loan, then submit them to [another body] where [a named individual] was The Director of the [named bank] and Chairman of [the other body] who sign approval for the loan.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant’s proposed grounds of appeal include grounds that were not raised, or not clearly raised, before the Federal Circuit Court. The appellant therefore required leave to rely on those grounds: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. At least in a case of this kind where the consequences for an appellant in leave being denied are serious and might work a substantial injustice, leave will be granted if the proposed grounds have substantial merit and there is no real prejudice to the respondent in permitting them to be raised: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], per Kiefel, Weinberg and Stone JJ. There was sufficient merit in grounds 1A and 3 to warrant leave being granted. As noted above, the appellant did not require leave to raise ground 1B. CONCLUSION The appeal should be allowed.

Ratio Decidendi

Legal Principle Established

At J[42] to J[44], the Federal Circuit Court stated:Consideration…Ground 842.In relation to ground 8, for the reasons already given, I am satisfied that the Tribunal took into account the submissions made on 20 March 2017. Insofar as ground 8 seeks to refer to a document sent on 21 March 2017, the Court sought to explore with the applicant whether that was the document that was the subject of the submissions sent on 20 March 2017. The applicant confirmed that that was the case. 43.For the reasons I have earlier given, those submissions are ones the Court finds was the subject of real and meaningful consideration by the Tribunal. It was not necessary for the Tribunal to expressly refer to the submissions.44.A Registrar of the Court made orders on 5 July 2017 giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed the amended application and put on a further affidavit. That affidavit identified the submissions sent on 20 March 2017 sent to the Tribunal and did not identify or annex any other submissions. No jurisdictional error is made out by ground 8. As noted above, the Federal Circuit Court dismissed the appeal.GROUND 3: JURISDICTIONAL ERROR ON THE PART OF THE TRIBUNAL At T[18], the Tribunal recorded the following:The Interpol Red Notice indicates that the applicant is the subject of an arrest warrant for appropriating property through swindling contrary to Article 139 of the Vietnamese Criminal Code which only carries with a term of imprisonment and not the death penalty. The previous Tribunal put this to the applicant for comment using the procedure under s.424AA of the Act and I also put this to the applicant for comment. The applicant stated that when he returns to Vietnam that there were be further investigations of the officials who have already been convicted and due to his corrupt dealings with these and other officials that he faces being charged and convicted under Article 278(4)(a). I have considered his evidence at the various Tribunal hearings and the evidence contained within the indictment and the Red Notice; however I consider it highly speculative and remote given the factual evidence before me does not indicate that. The Tribunal concluded that the appellant’s claim that he would be charged and convicted under Article 278(4)(a) was “highly speculative and remote”. That conclusion was based upon the Tribunal’s rejection of the submission that, if the appellant returned to Vietnam, there would be further investigations of the officials who had already been convicted. This submission was rejected because “the factual evidence … does not indicate that”. However, the factual evidence which the Tribunal stated it had regard to did in fact support the submission which had been put. It did so in various respects. The indictment included (underline emphasis added):In this matter, [the appellant] is the RINGLEADER. Currently, [the appellant] and [another named individual] fled. They are currently charged of "Appropriating property through swindling". [AB77]…After arresting [the appellant] and [the other named individual], the roles and responsibilities of [three other named individuals] will be considered again according to regulations. [AB78]…In the matter, there are a number of issues related to signing blank commercial contracts to support loan applications for [the appellant]. In the future, if [the appellant] is arrested, such issues will be reviewed and each person related these issues will be considered again according to regulations. [AB79]