CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1604
•23 November 2022
FEDERAL COURT OF AUSTRALIA
CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1604
Appeal from: Application for Extension of Time and Leave to Appeal: CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1955 File number: QUD 303 of 2021 Judgment of: LOGAN J Date of judgment: 23 November 2022 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal from decision of the then Federal Circuit Court (Circuit Court) to refuse to set aside an order dismissing proceeding on the basis of applicant’s failure to attend hearing – where applicant missed prescribed time limit to appeal from Circuit Court by a matter of days – where applicant provided explanation for failing to attend hearing – where Circuit Court determined that applicant’s grounds of review of decision of the Administrative Appeals Tribunal (Tribunal) did not enjoy sufficient prospects of success – whether appeal enjoyed sufficient prospects of success to warrant grant of leave to appeal – where alleged error in the Tribunal’s decision expressed with such generality to be devoid of meaningful content – where applicant foreshadowed filing further evidence demonstrating error in orders of Circuit Court – where no further evidence filed – appeal did not enjoy sufficient prospects of success to warrant grant of leave – application dismissed Legislation: Migration Act 1958 (Cth)
Federal Court of Australia Rules 2011 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 13.03C, r 16.05
Cases cited: CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1955 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 23 November 2022 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Clayton Utz ORDERS
QUD 303 of 2021 BETWEEN: CYZ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LOGAN J
DATE OF ORDER:
23 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for an extension of time within which to apply for leave to appeal against the orders made by the Federal Circuit Court on 23 August 2021 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by a registrar in a lump-sum if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The applicant arrived in Australia by boat on 11 December 2012. He did not then have a visa issued under the Migration Act 1958 (Cth) (the Act) authorising his entry into Australia. That meant that he was what the Act term as an “unauthorised maritime arrival”. He did, after his arrival apply, under the Act, for a visa. The fate of that visa application has a complicated procedural history. That history is set out in the reasons of the Administrative Appeals Tribunal (Tribunal) dated 2 June 2020. It is not necessary for today’s purposes to repeat that history. Suffice it to say the Tribunal’s decision of 2 June 2020 was in respect of whether or not the applicant should be granted a temporary protection class XD visa under the Act.
The Tribunal assessed the applicant’s claim for such a visa on the basis that he was a citizen of Bangladesh. Before giving a decision, the Tribunal conducted, at the applicant’s request, a hearing. The applicant gave evidence at that hearing with the assistance of an interpreter who was fluent in both the Bengali as well as English languages. At the heart of the applicant’s case for a visa were two particular apprehended fears. One was a fear of persecution based on a relationship between himself and a young lady, who were persons of different classes. The applicant feared persecution, violence even, on the basis of that relationship. He also feared persecution, so he claimed, on the basis of particular political beliefs which he had held in Bangladesh.
For reasons that are set out in the Tribunal’s written reasons of 2 June 2020, the Tribunal did not accept the applicant as credible in relation to either claim. Further, and by reference to country information concerning Bangladesh, the Tribunal assessed the applicant’s claim for fear of persecution on the basis of political beliefs as, in any event, not giving rise to a real chance of persecution. For these reasons, the Tribunal decided on 2 June 2020 to affirm the earlier administrative decision not to grant the applicant a protection visa.
The applicant then sought to challenge the Tribunal’s position by way of a judicial review application in what was then known as the Federal Circuit Court of Australia (Federal Circuit Court). His application was filed within time in that Court. It specified only one ground of review. That ground was that:
1.The Administrative Appeals Tribunal and the delegate of the Minister for Home Affairs erred in law in making his decision.
The applicant’s judicial review application was set down for its final hearing on 29 January 2021. The applicant failed to appear on that day before the Federal Circuit Court. As a consequence, that court, on 29 January 2021, ordered that the application be dismissed pursuant to r 13.03C of the then Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). On 15 March 2021, the applicant filed an application in the Federal Circuit Court for the setting aside of the order made on 29 January 2021, pursuant to r 16.05 of the Federal Circuit Court Rules. That application was heard on 9 April 2021 and determined on 23 August 2021.
The applicant, by affidavit, offered an explanation for his absence on 29 January 2021. He attested in that affidavit to an explanation on his part that the hearing on 29 January 2021 would be conducted by telephone. He also attested to a lack of literacy in both written and spoken English. The learned Federal Circuit Court judge accepted that the applicant had offered an adequate explanation for why it was he had failed to attend on 29 January 2021. He focused his attention in light of that on whether the proposed ground of review enjoyed a sufficient prospect of success to warrant setting aside the judgment given in default of appearance. His Honour concluded that there was no such sufficient prospect: see CYZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1955. Accordingly his Honour dismissed with costs the application to set aside the default judgment.
The applicant now seeks leave to appeal against that order of dismissal. An extension of time is necessary for such an application because it was filed outside, although slightly outside, the time prescribed in the Federal Court of Australia Rules 2011 (Cth) (Rules).
So the questions for determination today are whether or not to grant an extension of time, and if so, whether or not to grant leave to appeal?
In relation to whether or not to grant an extension of time, two considerations are always relevant. One is whether or not there is an acceptable explanation for delay and, related to that, whether there is any material prejudice to a respondent party. The other consideration is whether the proposed appeal would enjoy a sufficient prospect of success to warrant the granting of an extension of time. That particular consideration is not materially different to whether or not a proposed appeal would enjoy a sufficient prospect of success to warrant granting leave to appeal.
The proposed grounds of appeal are as follows:
1.The Administrative Appeals Tribunal and the delegate of the Minister for Home Affairs erred in law in making his decision.
2.The original hearing was set on Friday 29th January 2021 at 12:15pm. I thought that the Court would ring me at this time, but they did not. I did not know that I had to call the Court myself at this time. As such Judge Jarrett dismissed my application on the grounds that I did not make an appearance.
3.I have material evidence which I can provide with legal and interpreter's assistance which will support to change the result in the principal proceeding the orders made on 23 August 2021 by honourable JUDGE JARRETT.
[sic]
The applicant appeared on his own behalf today. He made his submissions, and the proceedings were conducted with the assistance of an interpreter fluent in both English and Bengali. It was evident to me on the hearing of the application that the applicant truly did require the assistance of the interpreter. It was also evident from the applicant’s opening statement, in which he expressed fear of harm if returned to Bangladesh, that he had an imperfect understanding, truly, but I do not doubt genuinely, about the different roles of the courts and the Tribunal in relation to a migration case such as the present. The applicant did not claim, and based on what I have just stated, there is no reason to think that he has any legal training.
The applicant did offer, by affidavit, an explanation in respect of his delay. However, as the Minister pointed out in submissions, the focus of the applicant’s explanation was in relation to absence from attendance in the Federal Circuit Court, not why it was that his present application was filed late.
There is no different set of rules of court applicable to litigants in person. For all that, having regard to what I have already observed in relation to the applicant’s lack of literacy in English and apparent lack of legal training or even comprehension about the different role of the judiciary in matters such as the present, I do not doubt that the applicant faced very considerable difficulties indeed in understanding and complying with the time requirement in the Rules.
Of course there is a public interest in finality in public administration. But in this particular case, the applicant, notwithstanding his very particular difficulties, did move quite quickly to challenge the order of dismissal made by the Federal Circuit Court. He missed the prescribed time limit only by a matter of days. Thus, if the proposed appeal enjoyed a sufficient prospect of success to warrant an extension and a related grant of leave, I would not hesitate to grant the extension.
The real question, as was recognised by the Minister in the submissions, is whether or not there exists any such sufficient prospect? The first proposed ground focuses, as the Minister noted in submissions, not on any error made by the primary judge but rather on the Tribunal and the Minister’s delegate. That is certainly a literal reading of ground one, but ground one takes up a like ground of review in the originating application in the Federal Circuit Court. So it is possible, in my view, to read ground one as promoting error on the part of the primary judge in failing to find that a ground expressed in like terms enjoyed a sufficient prospect to warrant setting aside the order dismissing the proceeding.
That may perhaps be an overly generous reading of ground one, but I consider the interests of justice require it to be read in that way. Even reading ground one that way, the difficulty about it is that the approach of the Federal Circuit Court to the prospective merits of the like ground of review has not been shown to be attended with any error. The ground of review was expressed at such a level of generality as to be devoid of meaningful content as to any jurisdictional error committed by the Tribunal. It does not appear from the reasons for judgment of the primary judge that any such meaningful content was offered by the applicant on the hearing of his application to set aside the dismissal of the proceeding.
As I have mentioned, the Tribunal’s reasons were in part credibility-based and in part based on an assessment as to an absence of a real chance of persecution. The last aspect of the assessment also carried with it a finding as to an absence of any basis for complementary protection. The Tribunal’s reasons in relation to credibility findings on perusal display, with respect, a rational and logical foundation. The findings as to an absence of a real chance of persecution on the basis of political beliefs or an absence of a basis of complementary protection do have a foundation in the country information material before the Tribunal. Thus, I do not consider that there is any error, even one which would have sufficient prospect of success to warrant an extension in the reasoning of the learned primary judge. His Honour’s conclusion as to an absence of sufficient prospect to warrant setting aside the dismissal of the proceeding was unremarkable.
The second of the proposed grounds is directed to a subject upon which the primary judge found in the applicant’s favour. It offers no foundation for a challenge to the order made by the primary judge.
As to ground three, the first observation to be made is that, whatever that material evidence might be, the applicant did not seek even to place that before the Court. In any event, in the ordinary course, the relevant evidence on a judicial review application of this kind before the Federal Circuit Court would be the material before the Tribunal. Exceptionally there might be scope for additional evidence which went to, for example, a foundation for a bias or apprehended bias challenge to the Tribunal or there might be scope exceptionally for the admission of evidence which showed, having regard to inadequacy of translation, that there had been, in truth, no hearing as required by the Act conducted by the Tribunal.
The place for the introduction of such evidence would, in any event, be before the Federal Circuit Court. It may be that such evidence, if it ever existed, could alternatively be introduced in an application for a constitutional of writ directed to the Tribunal in the original jurisdiction of the High Court, but it is neither necessary or even appropriate to consider that subject further.
The long and the short of it is that none of the proposed grounds of appeal enjoy a sufficient prospect of success to warrant the granting of an extension of time. Indeed, though that is sufficient, in my view they enjoy no prospect of success whatsoever. For these reasons, the application for an extension of time within which to apply for leave to appeal against the orders made by the Federal Circuit Court on 23 August 2021 will be dismissed.
Upon my indicating I proposed to dismiss the application, the Minister sought an order for costs. Ordinarily, of course, the exercise judicially of the costs discretion would see an order that costs follow the event. The applicant put in response to the costs application that he could not possibly pay a costs order. I do not doubt, given that he has attested by affidavit that he is unemployed, that he would, at the very least, have difficulty, if not be unable, to pay a costs order. But that is no reason to deny the Minister an order for costs. All it may mean is that any costs which come to be fixed, pursuant to an order, are not paid either in whole or in part. For completeness, I add that, even though many visas for which the Act provides have by, regulation as one eligibility criteria absence of a debt to the Commonwealth, that also is not a basis for refusing a costs order. The further order I make is that the applicant pay the first respondent’s costs of and incidental to the application, to be fixed by a registrar in a lump-sum, if not agreed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate:
Dated: 2 February 2023
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