CCU15 & Anor v The Federal Circuit Court of Australia & Ors

[2017] HCATrans 144

[2017] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S298 of 2016

B e t w e e n -

CUU15

First Applicant

CUV15

Second Applicant

and

THE FEDERAL CIRCUIT COURT OF AUSTRALIA

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH)

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Third Respondent

NETTLE ACJ

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 12 JULY 2017, AT 2.14 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   On 22 December 2016, the applicants filed in the Sydney Office of the Registry of the High Court an application for leave to appeal from orders of Bell J, made on 24 November 2016, dismissing the applicants’ application for judicial review of a decision of Judge Street of the Federal Circuit Court of Australia (“the primary judge”), made on 28 July 2016 to refuse to extend time for the applicants to apply for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal), made on 29 October 2014, to affirm a decision of the Minister’s delegate to refuse to grant the applicants protection visas.

The applicants failed to comply with r 41.07.6 of the High Court Rules 2004 (Cth) by failing to file the requisite numbers of an application book in proper form by 24 April 2017, with the result that, perforce of r 41.10.1, their application for leave to appeal was deemed to have been abandoned.

On 18 May 2017 the applicants filed a summons seeking orders pursuant to r 41.10.1 that their application for leave to appeal be reinstated.

The power of the Court to order that an application for leave to appeal not be taken to be abandoned is given for the purpose of enabling the Court to do justice between the parties[1].  As with other forms of application for extension of time, the relevant considerations include the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a refusal of an extension[2].  The four main factors are the length of the delay, the reason for the delay, whether there is an arguable case, and the extent of any prejudice suffered by the respondent by reason of the delay[3].  Ultimately, the overarching question is whether it would be just in all the circumstances to grant or refuse the application[4].  But where there has been extended delay, it is also incumbent upon an applicant to demonstrate exceptional circumstances[5].

[1]  See and compare Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J; 93 ALR 479 at

[2]  Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474 [15] per McHugh J;

[3]  See Jackamarra v Krakouer (1998) 195 CLR 516 at 519‑520 [4] and 522 [9] per Brennan CJ

[4]  Jackamarra v Krakouer (1998) 195 CLR 516 at 539‑540 [66] per Kirby J.

[5]  Jeffers v The Queen (1993) 67 ALJR 288 at 289; 112 ALR 85 at 86; [1993] HCA 11.

In this case, the delay is not inconsiderable.  In an appeal regime which requires an applicant to file requisite copies of an application book in proper form within 21 days after the time fixed for filing and serving a reply, a delay of the order of five months which is here involved is inordinate  But, as is apparent from the affidavit of Lydia Shelly affirmed 18 May 2017 in support of the application, there are credible reasons for the delay which occurred.  Possibly, therefore, if delay were the only concern, it would be appropriate to make the order sought.  What is determinative in this case, however, is that there is no arguable case for appeal.

As Bell J observed in her Honour’s reasons for judgment, nothing advanced on behalf of the applicants suggests that the primary judge misapprehended the nature of his discretion or that his Honour’s decision was infected with jurisdictional or other error.  The primary judge found that the delay had been “very long”[6] – which it plainly was – and that the reasons given for the delay were unsatisfactory – which is not disputed – and thus that he was disposed to refuse the application for an extension of time on that ground alone.  As the Minister contends, that was an independent and dispositive basis for the primary judge’s judgment; and it has never been challenged.

[6]  CUU15 v Minister for Immigration [2016] FCCA 1886 at [39].

Further, as Bell J also observed, the primary judge concluded that none of the proposed grounds of application for judicial review of the Tribunal’s decision were of sufficient merit to warrant an extension of time in the interests of the administration of justice; and, evidently, that was a conclusion with which Bell J was disposed to agree.  As her Honour remarked, none of the applicants’ proposed grounds for judicial review in this Court challenged the Tribunal’s disposition of the first applicant’s claim for a protection visa.  Her claim for protection was rejected on credibility grounds and the application for judicial review does not contest the propriety of that finding.  And, so far as the second applicant is concerned, the Tribunal concluded on the evidence that there was not a real chance that he would join or be forced to join an armed militant group in the event that he were to return to Lebanon, either now or within the reasonably foreseeable future.

The applicants seek to contend that the Tribunal failed to take into account the second applicant’s vulnerable status as a child by reference to the Vulnerable Persons’ Guidelines, misapprehended the reason for the second applicant’s non‑appearance before the Tribunal, wrongly accepted that the second applicant made no protection claims of his own, did not afford the second applicant a meaningful opportunity to appear and give evidence and to present arguments, and failed to comply with s 424A of the Migration Act 1958 (Cth). But, as Bell J held, in circumstances in which the second applicant’s claims were made before the Tribunal as a member of the family unit of the first applicant, and in circumstances where both applicants were and were properly to be taken to be represented by the one solicitor and migration agent, Mr Issa, who had been engaged by the first applicant to represent both her and her son, the Tribunal’s failure to consider the Vulnerable Persons’ Guidelines, insofar as they concerned the assessment of claims by child applicants, did not give rise to an arguable ground of jurisdictional error.

By Ground 1 of their proposed grounds of appeal, the applicants contend that Bell J erred in finding that, at the time of the Tribunal’s determination and thereafter when the decision was made to seek ministerial intervention as distinct from commencing proceedings by way of judicial review, “the second [applicant] was under a disability – he not having attained the age of majority – he was in the legal custody of the first [applicant]” who had retained Mr Issa to act on her and the second applicant’s behalf in the conduct of the proceedings and thereafter in relation to the application for ministerial intervention.

That contention is misplaced.  As the Minister has submitted, neither Bell J nor the primary judge held that the second applicant was disabled by his minority from making arguments or claims for himself or participating in the Tribunal’s processes.  The point of their findings was that the first applicant, as the legal guardian of the second applicant, was capable of acting on behalf of the second applicant by applying to the Tribunal for review of the delegate’s decision and appointing the solicitor, Mr Issa, to act on their behalf.  Unquestionably, that is correct.

The applicants’ second ground is similarly misconceived since, as the Minister submits, the primary judge was correct to conclude that the evidence contained in the second applicant’s affidavit, sworn subsequent to the Tribunal’s decision, could not have been considered by the Tribunal and hence could not support a claim of jurisdictional error.  Bell J was correct not to discern jurisdictional error.

In the result, nothing which has been advanced in support of this application provides reason to doubt the correctness of Bell J’s judgment or orders or, therefore, to suppose that the applicants’ proposed appeal from her Honour’s orders would enjoy any realistic prospect of success.  It would be futile to order that the application for order to show cause be treated as not abandoned.

This application is dismissed with costs.

AT 2.14 PM THE MATTER WAS CONCLUDED

480; [1990] HCA 30.

177 ALR 491 at 495; [2000] HCA 67.

and McHugh J, 532 [42] per Gummow and Hayne JJ; [1998] HCA 27.