EUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1961
•13 November 2019
FEDERAL COURT OF AUSTRALIA
EUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1961
Appeal from: EUY17 v Minister for Immigration [2019] FCCA 361 File number(s): NSD 1105 of 2019 Judge(s): RARES J Date of judgment: 13 November 2019 Legislation: Migration Act 1958 (Cth) ss 91WA
Federal Court of Australia Act 1976 (Cth) s 24
Federal Court Rules 2011 r 36.03, 36.05
Federal Circuit Court Rules 1999 r 16.05
Cases cited: Walton v Gardiner (1993) 177 CLR 378 Date of hearing: 13 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The appellant did not appear Counsel for the Respondents: Ms K. Hooper Solicitor for the Respondents: Mills Oakley ORDERS
NSD 1105 of 2019 BETWEEN: EUY17
Appellant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
RARES J
DATE OF ORDER:
13 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The notice of appeal be dismissed as incompetent.
2.The appellant pays the first respondent’s costs.
3.The first respondent’s title be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)Rares J:
This is a purported appeal from the orders of the Federal Circuit Court made on 28 June 2019 that dismissed the applicant’s application in a case that she filed on 5 April 2019 seeking vacation of the final orders that the Federal Circuit Court had made on 20 March 2019. The final orders dismissed her application for constitutional writ relief in respect of the decision that the Administrative Appeals Tribunal made on 10 October 2017 to affirm the decision of the Minister’s delegate not to grant her a protection visa and ordered the applicant to pay the Minister’s costs: EUY17 v Minister for Immigration [2019] FCCA 361.
The trial Judge does not appear to have given any separate reasons for making his orders on 28 June 2019 that provided:
INTERLOCUTORY ORDERS:
(1)The Court notes that the applicant filed an Application in a Case on 5 April 2019 supported by an affidavit with the apparent intention of seeking the vacation of the final orders made on 20 March 2019.
(2)The Court further notes that final judgment in this case was delivered with reasons on 20 March 2019.
(3)The Court further notes that the Application in a Case in these circumstances is probably incompetent.
(4)Pursuant to rule 36.03(b) of the Federal Court Rules 2011 (Cth), the date fixed for the filing of an appeal against my judgment be extended up to and including 12 July 2019.
(5)The Application in a Case filed on 5 April 2019 is dismissed.
(6)The applicant is to pay the first respondent’s costs and disbursements of and incidental to the Application in a Case, fixed in the sum of $450.
Order 4 of those interlocutory orders appears to apply to the orders made on 20 March 2019.
On 12 July 2019, the appellant filed a notice of appeal that appealed only from the whole of the judgment or orders made on 28 June 2019 on the sole ground that:
The Federal Circuit Court made a mistake on [sic] the order of 28 June 2019.
The notice of appeal sought as the only relief:
an order to replace the orders made by the Federal Circuit Court of Australia on 28 June 2019.
Background
When the appeal was called on this morning, the appellant failed to appear. The Court attempted to contact her on two mobile phone telephone numbers that she had given in connection with the various stages of her proceedings. One number when called appeared to have been disconnected and the response on the second number generated a pre-recorded statement that there were call restrictions in place for that number.
On 11 September 2019, the Court’s National Operations team emailed the Minister’s solicitors, noting that the appellant had given an incorrect email address to the Court and that consequently the team had sent notification of the hearing before me today to two postal addresses that the appellant had given, one a physical address and the second, a post office box.
On 6 November 2019, the solicitors for the Minister sent by express post to the appellant’s post office box address a further letter reminding her of the hearing today that attached the Minister’s submissions. I have marked those documents as exhibit A in the appeal. I am satisfied that the appellant has been given adequate notice of the hearing today.
The appellant is a citizen of People’s Republic of China who arrived in Australia on what, subsequently, she admitted to the Tribunal was a false passport. The delegate had disbelieved the appellant’s claim to fear persecution as a practitioner of Falun Gong because of her past experience and fears of future treatment, were she returned to China. The delegate found that, when questioned, she knew little about the practices of Falun Gong, was extremely vague and evasive during the interview and was not, in fact, a genuine Falun Gong practitioner.
The proceeding in the Tribunal
Next, the appellant applied for review of the delegate’s decision before the Tribunal. While the Tribunal was in the course of allocating a time to hear her claims, the Minister’s department became aware that the appellant was using a false passport, and that previously, in 2006, she had entered Australia under another passport and departed from here, in 2011, after a failed claim for protection.
During the course of her evidence before the Tribunal, when confronted with this information, the appellant admitted that she had travelled to Australia in 2006 on her actual passport in her real name, that also gave her real date of birth.
The Tribunal found that the name in the second passport which the appellant used to enter Australia in 2014 and the details in it of her date of birth were bogus. Accordingly it concluded that, by force of s 91WA of the Migration Act 1958 (Cth), the Minister, (and the Tribunal when exercising the Minister’s powers) had to refuse to grant a protection visa to an applicant who had provided a bogus document as evidence of her identity, nationality or citizenship, unless (under s 91WA(2)) the Minister was satisfied that the person had a reasonable explanation for providing the bogus document and produced evidence of his or her true identity, nationality or citizenship or had taken reasonable steps to obtain such evidence. Clearly, the exception in s 91WA(2) could not apply to the appellant and the Tribunal was bound to dismiss the application for protection, which it did.
For more abundant caution, the Tribunal also found that it could give no weight to the appellant’s claims and that she had no credibility.
The proceedings before the trial judge
In the circumstances, it is scarcely surprising that the appellant’s claim for review of the Tribunal’s decision before the trial judge failed. It is not necessary for present purposes to discuss his Honour’s reasons for that decision and the final orders made on 20 March 2019, the correctness of which I have no reason to doubt.
This appeal
After the appellant filed her notice of appeal challenging the 28 June 2019 orders below, the Minister filed a notice of objection to competency on 25 July 2019 on the basis that the orders made on 28 June 2019, which are the sole subject matter of the notice of appeal, are interlocutory and therefore require a grant of leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The notice of objection as to competency is well founded. Order 4 made on 28 June 2019 that appeared to grant the appellant an extension of time to file an appeal up to 12 July 2019 purportedly under r 36.03(b) of the Federal Court Rules 2011 was misconceived.
It is not clear to me how, well after the then 21 day period to file a notice of appeal under r 36.03(a), his Honour could have exercised any power under r 36.03(b) in circumstances where r 36.03(b) provides that an appellant must file a notice of appeal on or before a date fixed for that purpose by the Court appealed from and r 36.05 provides that:
(1)A party who wants to apply for an extension of time within which to file a notice of appeal must file an application, in accordance with Form 67.
By the time of his Honour’s orders of 28 June 2019, the appellant was well out of time (at that time before the subsequent amendment of r 36.03(a)) within which to file a notice of appeal in this Court under r 36.03(a), namely 21 days after the date on which his Honour’s decision was given when he made the final orders. The trial judge had no power to grant what was, in effect, an extension of time after the time to file an appeal provided in r 36.03(a) had expired. Once that occurred the appellant could only seek an extension of time in which to appeal, since the trial judge was functus officio following the making of the final orders on 20 March 2019, save to the extent that he may have been able to vary them under the Federal Circuit Court’s equivalent of the slip rule in r 16.05 of the Federal Circuit Court Rules 1999. However, there was no basis on which his Honour could have made such an order here since the 20 March 2019 orders did not deal with, and were never intended to deal with, an extension of time in which to file a notice of appeal.
But in any event, the appellant did not avail herself of that purported extension of time to challenge the 20 March 2019 orders. Rather she contested only his Honour’s orders of 28 of June 2019. Her reasons for that challenge do not emerge from her ground of appeal. Looking at those orders, I am not able to perceive any basis on which an appeal, if leave were granted, could have any prospect of success. In my opinion, the notice of objection as to competency is good.
In any event, even if the appellant had applied for an extension of time in which to file a notice of appeal against the final orders dismissing her application, any such appeal would have been hopeless and would have had no prospect of success. That is because even if the Tribunal made other errors in its decision, it was bound by force of s 91WA to dismiss the application for review of the delegate’s decision. Therefore, there would be no point in seeking any relief in respect of the Tribunal’s reasons, since it had arrived at the only one result open to it.
It follows that the appellant’s application below was an abuse of the process of the Court because it was foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
Conclusion
In my opinion, the notice of appeal should be dismissed as incompetent and the appellant should pay the Minister’s costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 13 November 2019
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