CNR17 v Minister for Immigration and Border Protection
[2019] FCA 658
•17 May 2019
FEDERAL COURT OF AUSTRALIA
CNR17 v Minister for Immigration and Border Protection [2019] FCA 658
Appeal from: Application for leave to appeal: CNR17 v Minister for Immigration and Anor [2018] FCCA 2683 File number: VID 1216 of 2018 Judge: KENNY J Date of judgment: 17 May 2019 Catchwords: MIGRATION – application for leave to appeal – where application for judicial review was dismissed at a show cause hearing in the Federal Circuit Court – whether the judgment is attended by sufficient doubt to warrant leave to appeal – leave to appeal refused Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25 Federal Circuit Court Rules 2001 (Cth) r 44 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Singh v Minister for Immigration and Border Protection [2017] FCA 1365
Date of hearing: 13 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: S Roberts of Mills Oakley ORDERS
VID 1216 of 2018 BETWEEN: CNR17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
17 MAY 2019
THE COURT ORDERS THAT:
1.The application for leave to be appeal be dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an application for leave to appeal from the decision of the Federal Circuit Court of Australia delivered on 12 September 2018, which dismissed the applicant’s application for judicial review of a decision of the Immigration Assessment Authority (IAA), under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The challenged decision of the IAA, made on 12 May 2017, was to affirm the decision of a delegate of the respondent Minister, to refuse to grant the applicant a Safe Haven Enterprise Visa (SHEV). The Federal Circuit Court’s decision has the citation: CNR17 v Minister for Immigration & Anor [2018] FCCA 2683.
The applicant has not filed any written submissions in support of his application for leave to appeal. The Minister filed written submissions dated 25 March 2019, which were relied on at the hearing.
The applicant appeared at the hearing on 13 May 2019 with the assistance of an interpreter. The Minister appeared by his lawyer at the hearing.
ADJOURNMENT APPLICATION
Before considering the substantive issues raised by the application for leave to appeal, it is convenient to address first a late request made by the applicant at the hearing for an adjournment to enable him to obtain legal representation so that he could provide detailed written submissions about the alleged errors made by the IAA and why he said the primary judge erred.
The Minister opposed the adjournment application on the basis that the applicant has had sufficient time to arrange legal representation, particularly noting that his application for leave to appeal was filed on 24 September 2018 (over seven months ago).
The applicant indicated that he had already sought an adjournment from the Court, but that he had been granted an adjournment of only one week. He said that he had consulted a lawyer who advised that the week adjournment was insufficient. Having regard to the communications between Chambers staff and the parties, to which I am about to refer, it is clear that the applicant mischaracterised what in fact occurred.
By email dated 17 January 2019, Chambers staff notified the parties that the matter was listed for hearing at 10:15am on Monday, 6 May 2019.
On 23 January 2019, Chambers staff received a phone call from the applicant requesting a 1-2 month adjournment to enable him to obtain legal representation. On 29 January 2019, Chambers staff sent an email to the parties advising that the Court did not consider it appropriate to adjourn the hearing as there was sufficient time for the applicant to instruct a lawyer if he wished to do so. This email also expressly confirmed that the hearing remained listed on 6 May 2019.
Although the applicant could not recall whether or not he received the email of 29 January 2019, it was sent to the email address notified on his application for leave to appeal and his draft notice of appeal. After the hearing on 13 May 2019, the applicant also confirmed with Chambers staff that his current email address is the same email address as that to which the email of 29 January 2019 was sent, and that he has subsequently received correspondence sent to that email address notifying him of his hearing date. Accordingly, I am satisfied that the Court notified the applicant that his adjournment request had been refused by sending an email on 29 January 2019 to the address that he had notified.
As to the one week adjournment referred to by the applicant, Chambers staff notified the parties by email dated 19 March 2019 that the hearing of this appeal had been re-listed for hearing on 13 May 2019 (instead of 6 May) at 10:15am and asking that the parties confirm receipt of the email. The applicant did not respond to this email, although the applicant confirmed with Chambers staff on 10 May 2019, that he had received the Court’s various notifications (which it is unnecessary to detail here) about the hearing on 13 May 2019 and confirmed on that date that he would be attending. I note that the change in the hearing date was unrelated to the applicant’s request, made and refused in January 2019, for an adjournment. The change was necessitated by a Full Court listing notified to my Chambers on or about the time the email of 19 March 2019 was sent to the applicant.
I am not satisfied that the applicant has established a sufficient basis for adjourning the hearing on the basis that he needs an opportunity to seek legal representation. It has been open to the applicant to do so for many months, including since 29 January 2019 when he was notified that his adjournment application was refused. As will be apparent, it does not appear to me that the applicant was not duly notified of the outcome of his adjournment application on 29 January 2019. Nor does it appear to me that the applicant could reasonably have been misled by the notification to him that his appeal would be heard on 13 May 2019, instead of 6 May 2019.
Further, it appeared from what the applicant said that he had in fact seen “two or three lawyers” in relation to this appeal and that they had been “unable to help” him. There was one lawyer who, so he said, indicated that he could not help him because there was insufficient time; even if this were so, it does not show that, when the circumstances are considered as a whole, the applicant had an insufficient opportunity to seek and obtain legal assistance.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 28 August 2012. On 1 June 2016, the applicant applied for a SHEV. In summary, the applicant claimed to fear harm on the basis of a real or imputed association with the Liberation Tigers of Tamil Eelam; as a young Tamil male from the East; and for being a returned asylum seeker who departed Sri Lanka illegally. On 20 March 2017, the delegate refused the SHEV application. The delegate’s decision was referred to the IAA on 23 March 2017.
On 12 May 2017, the IAA affirmed the delegate’s decision. The primary judge summarised the key aspects of the IAA’s decision at [7] of his Honour’s reasons, and it is unnecessary to do so again.
On 9 June 2017, the applicant filed an application in the Federal Circuit Court seeking judicial review of the IAA’s decision. The applicant advanced two grounds of review. By ground 1, the applicant alleged that the IAA erred in law by making a decision not taking into account relevant information. By ground 2, the applicant claimed that the IAA ignored relevant material in a way that affected its exercise of powers. No particulars were given of those grounds.
On 12 September 2018, the matter came before the primary judge for a show cause hearing under r 44.12 of the Federal Circuit Court Rules. The applicant appeared in person at the hearing. The primary judge delivered ex tempore reasons, ordering that the application be dismissed on the basis that his Honour was not satisfied that the applicant had raised an arguable case for the relief claimed.
The primary judge emphasised that neither ground of review “raised propositions of fact or law” that would enable him to ascertain whether, and if so how, the IAA fell into jurisdictional error (at [9]). The primary judge held that the IAA “gave proper, genuine and realistic consideration to the applicant’s claims, as it was required to do” and its “conclusions were supported by an evident and intelligible justification of the merits of the applicant’s claims” (at [11]). His Honour concluded that there was no jurisdictional error and, accordingly, dismissed the application.
APPLICATION FOR LEAVE TO APPEAL
As already indicated, the primary judge’s decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules and was therefore interlocutory in nature: r 44.12(2) of the Federal Circuit Court Rules. Accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In order to obtain leave the applicant must satisfy the Court that, in all the circumstances, the decision of the primary judge is attended by sufficient doubt as to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
The applicant’s proposed grounds of appeal were that:
(1)the court below had failed to understand whether the applicant understood the procedure relating to a “show cause” hearing; or that the applicant had the “onus” to persuade the court that his application had raised an arguable case; and
(2)the court below had not asked the applicant what his view was concerning the request by the Minister’s legal representatives to dismiss the hearing and whether he wanted an adjournment.
The applicant’s leave application reiterated these grounds.
Neither of these grounds engage directly with the primary judge’s reasons for judgment. Those reasons disclose diligent attention to the decision of the IAA and the applicant’s claims and submissions. Rather, the grounds challenge the way the primary judge is said to have conducted the “show cause” hearing.
The applicant filed an affidavit in support of his application, which stated that he wished to appeal the primary judge’s decision because he “was not aware of the consequences of the hearing”. There was nothing else before the Court that might at all support this statement.
At the hearing on 13 May 2019, the Court asked the applicant about his legal representation in the Federal Circuit Court. As will be seen, the applicant gave a relatively clear account of his understanding of the events relevant to his representation. There were, however, some understandable uncertainties in his account. Pursuant to an order made at the conclusion of the hearing that day, the Minister subsequently filed an affidavit affirmed by Nicola Johnson documenting the relevant procedural history. This history is set out below.
On 9 June 2017, the applicant filed an application for an order to show cause pursuant to s 476 of the Migration Act 1958 (Cth), seeking review of a decision of the IAA. I interpolate here that the applicant explained at the hearing, and I accept, that he received assistance from his solicitor in drafting this application, although his solicitor was not recorded on the application as acting on his behalf. A notice of address for service was in fact filed by a solicitor on his behalf on 23 January 2018. The applicant was represented by a solicitor when procedural orders were made by consent on 23 January 2018 setting the matter down for a show cause hearing on 12 September 2018. (Although there was some suggestion by the applicant at the hearing that he attended court with his solicitor when these orders were made, Ms Johnson deposed (and having regard to the documents exhibited to her affidavit, I accept) that the orders were made by a Registrar of the Court in Chambers without any appearances from the parties. Nothing really turns on this discrepancy, however.)
The Minister filed written submissions in opposition to the applicant’s application on 28 August 2018. These submissions identified that the matter had been set down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules. In them, the Minister’s submitted that the proceedings should be dismissed on the basis that the grounds raised by the applicant did not raise an arguable case for the relief sought. The Minister’s submissions would therefore have put the applicant on notice that the Minister was seeking the dismissal of the applicant’s judicial review application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules, with costs, on the basis that it failed to raise an arguable case for the relief sought.
A notice of withdrawal as lawyer was filed by the applicant’s solicitor on 5 September 2018, although I note that the applicant indicated at the hearing that he was not notified that his lawyer had withdrawn until two days prior to the show cause hearing.
Although the applicant did not have a lawyer’s assistance at the show cause hearing on 12 September 2018, on his own account he had been represented by a lawyer for more than a year before the hearing (and, at the very least, his solicitor was on record as acting on his behalf for almost eight months) and, as noted, he was legally represented at the time consent orders were in fact made for the show cause hearing. The applicant explained at the hearing on 13 May 2019 that he understood from his solicitor that, at the show cause hearing, he needed to “state the reasons for [his] review request, why … [his] case should be considered on the merits … [s]how reasons”.
There is no evidence before the Court to suggest that the applicant was denied an opportunity to participate properly in the hearing before the primary judge or that he was in any way prejudiced by way of a lack of understanding of the procedure of the hearing. On the contrary, the primary judge’s reasons reveal that at the hearing the applicant was given the opportunity to explain the alleged errors on the part of the IAA, which he did. Further, there is no evidence that any adjournment request was made by the applicant at the hearing. Indeed, the applicant confirmed at the hearing on 13 May 2019 that he never asked the primary judge for an adjournment. Rather, notwithstanding that he accepted that he did not tell the primary judge that his lawyer had withdrawn without his knowledge, the applicant said that the primary judge should have asked whether he wanted an adjournment. The primary judge was not, however, required to examine the applicant as to his understanding of the proceeding, and nor was he required to invite the applicant to make an adjournment request, particularly in circumstances where the applicant had not raised any issue about his lack of legal representation.
In all the circumstances, the applicant’s challenge to the primary judge’s decision, on the grounds he has stated, is untenable. In any case, in the circumstances outlined, any lack of understanding on the applicant’s part would not establish any lack of procedural fairness. A similar submission was made in Singh v Minister for Immigration and Border Protection [2017] FCA 1365, where Perry J held at [33] that the applicant’s lack of understanding as to the meaning of a show cause hearing did not of itself demonstrate a breach of procedural fairness, even though the applicant did not have legal advice prior to the show cause hearing. A fortiori, in this case where the applicant had ample opportunity to make enquiries with his solicitor at the time about the nature of the hearing any lack of understanding would not demonstrate a breach of procedural fairness.
The applicant has not identified any basis upon which it might be said that the primary judge relevantly erred. Nor is there any such error apparent on the materials before the Court. In particular, I cannot discern any error in the primary judge’s identification and application of the governing legal principles. His Honour gave close consideration to the IAA’s decision and the merits of the applicant’s judicial review application, bearing in mind that the applicant had not particularised his grounds of review. For completeness, I would also note that the Court is unable to discern any error in the primary judge’s decision that the IAA’s decision did not involve jurisdictional error.
For the reasons stated, it cannot be concluded that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered on an appeal.
DISPOSITION
Accordingly, the application for leave to appeal should be refused, with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 17 May 2019
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