CWW17 v Minister for Home Affairs

Case [2019] FCA 264

FEDERAL COURT OF AUSTRALIA

CWW17 v Minister for Home Affairs [2019] FCA 264

Appeal from: CWW17 v Minister for Immigration (No. 2) [2018] FCCA 2177
File number: NSD 1520 of 2018
Judge: ALLSOP CJ
Date of judgment: 28 February 2019
Catchwords:

MIGRATION – where application for protection visa dismissed – where request made for ministerial intervention – whether primary judge erred in holding that Federal Circuit Court lacked jurisdiction to review non-referral of request for ministerial intervention to Minister

PRACTICE AND PROCEDURE – application dismissed for want of appearance

Legislation:

Migration Act 1958 (Cth) ss 48A, 48B, 474, 474A, 476, 477

Federal Court Rules 2011 (Cth) r 35.33

Cases cited:

CWW17 v Minister for Immigration [2018] FCCA 582

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636

Date of hearing: 28 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 25
Counsel for the Appellant: The appellant did not appear
Solicitor for the Respondent: L Leerdam of DLA Piper

ORDERS

NSD 1520 of 2018
BETWEEN:

CWW17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

28 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The notice of appeal filed be treated as an application for an extension of time in which to file and serve an application for leave to appeal; and

2.Said application be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) for want of appearance by the applicant.

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


REASONS FOR JUDGMENT
(Revised from the transcript)

ALLSOP CJ:

  1. In this matter, the applicant has filed a notice of appeal from orders of the Federal Circuit Court of Australia.  For reasons that will become evident, the applicant requires leave to appeal.  The applicant has not appeared.  I had the matter called three times outside and there was no appearance.  The Department, through its solicitors, has a telephone number, not directly for the applicant but that of Mr Khan, who is the chairman of an organisation, which supports the case of the applicant.  The interpreter retained to assist today, Mr Sani, spoke to Mr Khan, with the number having been called and Mr Sani indicated what had been said, that is Mr Khan was attempting to obtain legal representation of the applicant.

  2. Given the nature of the matter which will become evident from the facts, I think it appropriate to deal with the matter on the basis that there is no appearance and dismiss the application, with the appeal having been taken as an application for leave, but giving reasons why, prima facie, the application would be dismissed on the merits so that, if an application is made in the future to set aside this order made in the absence of the…

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AGLC
CWW17 v Minister for Home Affairs [2019] FCA 264
Case
[2019] FCA 264
Decision Date

CaseChat Overview and Summary

In the matter of CWW17 v Minister for Home Affairs, the applicant, a non-citizen, sought review of the Federal Circuit Court's decision to dismiss his application for a protection visa and to set aside the orders made in his absence. The dispute primarily focused on whether the Federal Circuit Court had jurisdiction to review the Minister's non-referral of the applicant's request for ministerial intervention to the Minister for consideration. The case reached the court following an appeal from the Federal Circuit Court's dismissal of the applicant's application for leave to appeal the original decision.

The court had to determine two main legal issues. Firstly, whether the primary judge erred in concluding that the Federal Circuit Court lacked jurisdiction to review the non-referral of the applicant's request for ministerial intervention. Secondly, whether the application to extend time to file and serve an application for leave to appeal should be granted given the applicant's absence at the hearing and the dismissal of his application for leave to appeal in his absence.

The court examined the principles relevant to the exercise of the power under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) and concluded that the applicant's explanations for the delay did not provide a reasonable basis for not attending the hearing. The court also found that there was no arguable question that the Federal Circuit Court had jurisdiction to hear the application. The applicant's argument regarding the Minister's obligation to consider his request for ministerial intervention was deemed irrelevant to the exercise of jurisdiction. The court ultimately dismissed the application to set aside the orders made in the applicant's absence.

The court treated the notice of appeal as an application for an extension of time to file and serve an application for leave to appeal. However, given the applicant's absence at the hearing and the lack of written submissions, the court dismissed the application for leave to appeal for want of appearance. The court noted that the applicant had a right to seek to set aside the orders, but would need to demonstrate both why he did not appear and the grounds or prospects of success in challenging the Department's letter of 6 April 2017.

1. The notice of appeal be treated as an application for an extension of time in which to file and serve an application for leave to appeal; and
2. Said application be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) for want of appearance by the applicant.

Orders

Orders of the court

1. The notice of appeal filed be treated as an application for an extension of time in which to file and serve an application for leave to appeal; and

2. Said application be dismissed pursuant to r 35.33 of the Federal Court Rules 2011 (Cth) for want of appearance by the applicant.

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

As I said, the applicant failed to appear again at the hearing on 26 April 2018 and then the applicant filed the further application in July 2018 seeking to set aside the orders previously made so that he could challenge the 6 April 2017 letter. The primary judgment The primary judge considered, at [9]–[10] of his reasons, the principles relevant to the exercise of the power under r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), and in particular the comments of Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. The primary judge, pursuant to that considered the explanations provided for the delay given by the applicant. After dealing with delay, the primary judge turned to the question of whether there was any merit in the application itself which turned on whether there were reasonably arguable grounds that he had a reasonable explanation for not attending. The primary judge concluded that the material did not disclose a reasonable explanation for not attending. The primary judge then turned to the question as to whether the applicant had some arguable question that the Federal Circuit Court did have jurisdiction to hear the application; see [18]–[22]. In particular, the primary judge questioned, at [21], the relevance of submissions made by the applicant with respect to one of the decisions made by the RRT in relation to the application for protection. The primary judge, while sympathetic to the applicant’s financial hardship, also stressed its irrelevance to the exercise of jurisdiction. The primary judge ultimately concluded, at [23], that it was simply not arguable that the Federal Circuit Court had jurisdiction to entertain the application filed on 29 June 2017. It therefore follows that the application to set aside the orders made in his absence would be refused. The present appeal The present appeal is subject to a notice of appeal which, as I said, I will take as an application to extend time in which to file and serve an application for leave to appeal based on draft grounds in the notice of appeal. The following ground is set out:Miscarriage of justice the learned Judge decline adjournment to engage barrister to represent me to argue my case, the application has been dismissed without the legal representation The applicant has not put on any written submissions to further his argument on this ground, nor has he appeared today. As I indicated to Mr Leerdam, who appears today for the respondent, I propose to deal with this matter on the basis of my view of the matter subject to any argument that the applicant would put. For that reason, it is important for the applicant to understand the essential reasons why his application should be dismissed. I propose, in due course, to make an order dismissing the application for want of appearance. Under the Act and Rules, the applicant will have a right to seek to set aside those orders, but, in so doing, will have to demonstrate, amongst other things, both why he did not appear and, secondly, that there are some grounds or prospects of success in the underlying point, which is the challenge to the letter from the Department of 6 April 2017.

Ratio Decidendi

Legal Principle Established

The respondent submitted that the balance of the ground of appeal is without merit for three reasons. First is the allegation that the primary judge did not allow him an adjournment to obtain legal representation. That should fail at a factual level because there was no evidence that the applicant sought such an adjournment that was declined. Secondly, the primary judge made no error in dismissing the application in the absence of the applicant being represented because the applicant had no right to legal representation. But, thirdly, and most importantly, it was submitted that the primary judge was correct to conclude that there was no jurisdiction to review the outcome contained in the letter of 6 April 2017 because the applicant’s request for ministerial intervention was not referred to the Minister for consideration. Consideration The decision of the primary judge in this respect must be seen in the context of the facts which I have briefly set out. The respondent’s submissions at [1]–[9] comprehensively set out the underlying facts. Paragraphs 6 to 9 in CWW17 v Minister for Immigration [2018] FCCA 582 set out the primary judge’s reasons. At the root of those reasons is the view expressed by the primary judge, principally by reference to the High Court’s decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636, that there was no decision under the Act, therefore there could be no migration decision and, therefore, there could be no attached procedural fairness. The High Court in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 dealt with its earlier decision in Plaintiff S10. The decision in SZSSJ was a unanimous decision of the High Court. The discussion at [53]–[55], consequent upon the discussion of the various reasons in Plaintiff S10, makes a number of things clear. First, as made clear at [53], the Minister has no obligation to make any decision under s 48B. It is a non-compellable power and it is comprised of two distinct decisions: a procedural decision whether to consider a substantive decision and a substantive decision to grant a visa or lift the bar. The Minister has no obligation to make either decision and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness. Secondly, in [54], the processes undertaken by the Department to assist in the Minister’s consideration of a possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has not made a procedural decision to consider whether to make a substantive decision, any process undertaken by the Department on the Minister’s instructions to assist the Minister to make that procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness. Having no statutory basis, it is not, relevantly, a migration decision under the Act.