FBS18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FBS18 v Minister for Home Affairs [2019] FCAFC 196

Appeal from: FBS18 v Minister for Immigration & Anor [2019] FCCA 1655
File number: NSD 1051 of 2019
Judges: FLICK, ROBERTSON AND LEE JJ
Date of judgment: 8 November 2019
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and for leave to appeal from a judgment given in the Federal Circuit Court of Australia – where application for judicial review of decision of Immigration Assessment Authority application dismissed by reason of non-appearance of the applicant – where primary judge refused application to reinstate applicant’s application for judicial review – whether sufficient doubt as to the judgment of the primary judge to warrant its reconsideration on appeal as to whether the primary judge failed to consider one or more relevant considerations or whether the primary judge failed to balance the relevant considerations
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 24(1A)

Federal Circuit Court Rules 2001 (Cth), rr 13.03C(1)(c), 16.05(2)(a)

Cases cited:

AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598

Barbey & Tuttle [2013] FamCAFC 44

BVG17 v BVH17 [2019] FCAFC 17

Clifford & Mountford [2006] FMCAfam 450; 219 FLR 437

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; 33 FCR 397

FBS18 v Minister for Home Affairs [2019] FCCA 1315

FBS18 v Minister for Home Affairs (No 2) [2019] FCCA 1655

House v The King [1936] HCA 40; 55 CLR 499

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook, 2017) at [3.30]
Date of hearing: 8 November 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 66
Counsel for the Applicant: Mr S Tully
Counsel for the First Respondent: Mr G Johnson SC with Mr N Swan
Solicitor for the First Respondent: Mills Oakley
Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court save as to costs.

ORDERS

NSD 1051 of 2019
BETWEEN:

FBS18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGES:

FLICK, ROBERTSON AND LEE JJ

DATE OF ORDER:

8 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The application for an extension of time is granted.

2.The application for leave to appeal is refused.

3.The applicant pay the costs of the first respondent, as agreed or assessed.

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


REASONS FOR JUDGMENT

THE COURT:

Introduction

  1. The applicant applies for an extension of time to seek leave to appeal, and for leave to appeal, from the judgment of a judge of the Federal Circuit Court of Australia given on 14 June 2019: FBS18 v Minister for Home Affairs…

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Details
Case
[2019] FCAFC 196
Decision Date

CaseChat Overview and Summary

The applicant, a national of Sri Lanka, had his application for a Safe Haven Enterprise Visa (SHEV) refused in April 2018. After the Immigration Assessment Authority affirmed this decision, the applicant filed an application for judicial review in the Federal Circuit Court. The primary judge dismissed the application on 17 May 2019 due to the applicant's non-appearance at the hearing. The applicant then sought to have his application reinstated, but this application was dismissed on 14 June 2019. The applicant now seeks an extension of time and leave to appeal from the decisions of the primary judge.

The legal issues in this case revolve around whether the primary judge exercised his discretion appropriately in dismissing the applicant's application for judicial review and whether he adequately considered all relevant factors in declining to reinstate the application. The applicant argued that the primary judge failed to consider or balance certain relevant considerations, such as the potential prejudice to the respondent and the applicant's reasonable excuse for non-appearance.

In reviewing the decision of the primary judge, the court considered the relevant principles of law concerning the exercise of discretion and the setting aside of judgments. The court noted that the primary judge had identified the factors he deemed significant and explained his reasoning. The court found no error in the primary judge's exercise of discretion, as he had adequately considered the relevant factors and reached a reasonable decision. The court also held that the applicant's proposed grounds of appeal did not demonstrate a sufficient error in the primary judge's decision to warrant reconsideration.

The application for an extension of time was granted, but the application for leave to appeal was refused. The applicant was ordered to pay the costs of the first respondent.

Orders

Orders of the court

1. The application for an extension of time is granted.

2. The application for leave to appeal is refused.

3. The applicant pay the costs of the first respondent, as agreed or assessed.

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

Background

Background to the litigation

On each side the hearing was conducted on the basis that if an extension of time were granted and leave to appeal given, the appeal itself would be heard and determined.Background in summary The following is taken from the applicant’s written submissions, which the Minister in his written submissions does not dispute. The applicant is a national of Sri Lanka, arriving in Australia on 26 May 2013 as an unauthorised maritime arrival. In February 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV). His protection claims included a fear of harm as a Tamil Hindu from the northern province of Sri Lanka, as a former Liberation Tigers of Tamil Eelam combatant and as a failed asylum seeker returning from a Western country after fleeing from Sri Lanka illegally. On 27 April 2018, a delegate of the first respondent Minister refused to grant a SHEV to the applicant. On 30 April 2018, the applicant was automatically referred to the Immigration Assessment Authority (IAA). On 24 August 2018, the IAA affirmed the decision not to grant the applicant a protection visa. On 28 September 2018, the applicant filed in the Federal Circuit Court an application for judicial review alleging error by the IAA and an accompanying affidavit. On 3 April 2019, the applicant filed an amended judicial review application. As will appear in more detail below, on 17 May 2019 the primary judge dismissed the applicant’s application, by reason of his non-appearance. On 22 May 2019, the applicant applied for his application to be reinstated, and on 14 June 2019 the primary judge dismissed that application.The statutory provisions Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) relevantly provided:13.03C Default of appearance of a party(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:…(c) if the absent party is an applicant—dismiss the application;… Rule 16.05(2)(a) of those rules relevantly provided:16.05 Setting aside or varying judgments or orders…(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:(a) it was made in the absence of a party;…The grounds The proposed grounds of appeal are to be found in the draft notice of appeal accompanying the applicant’s amended application dated 13 September 2019 and are as follows:1.The Honourable Federal Circuit Court erred in the exercise of its discretion or misapplied Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by:a.Failing to consider one or more relevant considerations, including any prejudice to the first respondent: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7]-[10]; Barbey & Tuttle [2013] FamCAFC 44 (Barbey) at [48], [54], [71] & [90]; and/orb.Failing to balance the relevant considerations: MZYEZ at [7]; Barbey at [90]. The orders sought in the draft notice of appeal are as follows:1. In proceedings SYG 2772/2018:a.Order 1 of the orders made on 17 May 2019 in FBS18 v Minister for Home Affairs & Anor [2019] FCCA 1315; andb.Order 2 of the orders made on 14 June 2019 in FBS18 v Minister for Home Affairs & Anor (No 2) [2019) FCCA 1655be set aside and vacated.2.The appellant’s Application in a Case filed on 2 May 2019 in proceedings SYG 272/2018 (sic) be granted.3.The substantive application for review of a migration decision filed on 28 September 2018 by the appellant in proceedings SYG 2772/2018 be reinstated.4. Proceedings in SYG 2772/2018 be listed for a final hearing.5. The first respondent pays the appellant’s costs of proceedings NSD 1051/2019.In these circumstances it is necessary to consider not only the judgment and orders the subject of the applications to this Court but also the earlier judgment made by the primary judge on 17 May 2019: FBS18 v Minister for Home Affairs [2019] FCCA 1315. Proceedings in the Federal Circuit Court

Evidence

Evidence Before The Court

The primary judge ordered that the application in a case filed on 22 May 2019 be dismissed, with costs.The evidence The applicant read only [25]-[26] of an affidavit affirmed by him on 1 July 2019. We would have rejected any attempt by the applicant to put before this Court factual contentions as to what occurred on 17 May 2019 which had been dealt with by the primary judge and were not the subject of the draft notice of appeal The respondent Minister filed but did not seek to read an affidavit affirmed by Mr David Baddeley, solicitor, on 11 October 2019, which annexed the transcript of the proceedings before the primary judge on 14 June 2019. See our observation at [65] below as to the inappropriateness, given the limited proposed grounds of appeal, of adding to or qualifying the reasons for judgment of the primary judge by reference to what was said on the transcript.The submissions of the parties The applicant submitted that he should be granted an extension of time on the basis that he attempted to file the relevant papers in the Federal Court within time on 28 June 2019 but was unable to do so. He was four days late. In these circumstances, noting that the Minister does not oppose the extension of time, and having regard to the evidence at [26] of the applicant’s affidavit affirmed 1 July 2019 as to his difficulty in filing a particular form, we would grant that extension. The applicant referred to the statement in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] per Ryan J as follows:In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement (sic)(Ryan J’s emphasis.) The applicant also referred to two decisions of the Full Court of the Family Court: Barbey & Tuttle [2013] FamCAFC 44, which at various points makes reference to issues of prejudice, delay and the conduct of the applicant (as to which see [52] below), and Malak & Malak [2016] FamCAFC 114.

Decision

Reasons for decision

Rule 16.05(2)(a) of those rules relevantly provided:16.05 Setting aside or varying judgments or orders…(2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:(a) it was made in the absence of a party;…The grounds The proposed grounds of appeal are to be found in the draft notice of appeal accompanying the applicant’s amended application dated 13 September 2019 and are as follows:1.The Honourable Federal Circuit Court erred in the exercise of its discretion or misapplied Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by:a.Failing to consider one or more relevant considerations, including any prejudice to the first respondent: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) at [7]-[10]; Barbey & Tuttle [2013] FamCAFC 44 (Barbey) at [48], [54], [71] & [90]; and/orb.Failing to balance the relevant considerations: MZYEZ at [7]; Barbey at [90]. The orders sought in the draft notice of appeal are as follows:1. In proceedings SYG 2772/2018:a.Order 1 of the orders made on 17 May 2019 in FBS18 v Minister for Home Affairs & Anor [2019] FCCA 1315; andb.Order 2 of the orders made on 14 June 2019 in FBS18 v Minister for Home Affairs & Anor (No 2) [2019) FCCA 1655be set aside and vacated.2.The appellant’s Application in a Case filed on 2 May 2019 in proceedings SYG 272/2018 (sic) be granted.3.The substantive application for review of a migration decision filed on 28 September 2018 by the appellant in proceedings SYG 2772/2018 be reinstated.4. Proceedings in SYG 2772/2018 be listed for a final hearing.5. The first respondent pays the appellant’s costs of proceedings NSD 1051/2019.In these circumstances it is necessary to consider not only the judgment and orders the subject of the applications to this Court but also the earlier judgment made by the primary judge on 17 May 2019: FBS18 v Minister for Home Affairs [2019] FCCA 1315. Proceedings in the Federal Circuit Court In the earlier judgment, given on 17 May 2019, the primary judge said as follows in his reasons:1.In this matter, there has been no appearance by or on behalf of the applicant when the matter was called. The matter was listed for a show cause hearing at 9.30m but the applicant did not attend at that time. I stood the matter in the list until 11.00am but the applicant had still not appeared. The matter has been called twice at 11.08am and again at 11.33am, and on each occasion there was no answer to the call by the applicant. 2.On the basis of a telephone conversation between the Minister’s solicitor and a person in the offices of the Minister’s solicitors at about 9.30am, it appears that the applicant visited the solicitors’ office at that time and was advised to attend at 80 William Street. Exhibit A1 is a letter which was provided to the applicant at that time. 3.At around 10.15am, my associate was successful in contacting the applicant on his mobile telephone with the assistance of the interpreter at which time the applicant stated that he was on his way home, having had a conversation with someone at the offices of the Minister’s solicitors, which he did not understand. The applicant was requested to attend the Court at 80 William Street. He agreed to do so. In that conversation, the applicant also stated that he had attended the Court at 80 William Street at around 8.00am this morning, but finding no one here, he left. He was reminded that the hearing had been listed at 9.30am.4.At 11.10am, my associate received the document marked as exhibit C1, being an email from the registry, stating that the applicant was at the registry at Queens Square and had been told once again to attend here at 80 William Street. 5.Having waited for the applicant to make his way from Queens Square to the Court, there has again been no appearance. In the circumstances, the Minister seeks the dismissal of the application on account of the applicant’s non-attendance. I agree that that is the appropriate course. There can be no real doubt that the applicant knew where to attend for his hearing and, indeed, when to attend. His visits to various other locations this morning are at best curious.

Ratio Decidendi

Legal Principle Established

The applicant’s claim that the balancing process miscarried because the primary judge failed to consider and balance “other factors” must be rejected, the Minister submitted, for the reasons identified in relation to the first ground of the proposed appeal. The Minister submitted that the discretion was “unfettered”, and that there was no fixed list of factors that must be considered in every case. Here, the Minister submitted, the primary judge identified the factors which he saw as material to his exercise of discretion in the present case and explained how he reached the decision he did. The Minister submitted that the primary judge was not shown to have “overlooked” other factors that he was required to consider, especially in relation to prejudice and delay, which were not matters expressly relied on before the primary judge by either party as relevant to the exercise of discretion.Consideration It will be noted that the applicant does not seek to challenge the findings of fact of the primary judge, the relevance of what the primary judge found to be the applicant’s untruthfulness, or any aspect of the procedure adopted before the primary judge. In our opinion the primary judge was required to consider whether or not it was in the interests of justice to reinstate the applicant’s application. This is what his Honour did, by reference to the particular factors which he considered to be significant. We would infer that the absence of any explicit consideration of other factors meant that the primary judge did not consider them to be material. In House v The King the relevant principles were stated as follows by Dixon, Evatt and McTiernan JJ, at 504-5:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. We derive no present assistance from what the primary judge in Barbey & Tuttle described as the “usual, but not exclusive considerations” by reference to Clifford & Mountford at [34], on which the present applicant relies, as follows:From the abovementioned authorities, it seems to me that the following principles emerge in respect of applications under r.16.05(2)(a): a)The discretion to be exercised is unfettered, but nonetheless to be exercised judicially and bearing in mind the public interest in there being an end to litigation. b)There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under r.16.05(2)(a), namely: i)a reasonable explanation for the applicant’s absence at the trial or hearing; ii)material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and iii)no prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court. c)Matters relevant to the three criteria set out above will include, but will not necessarily be limited to: i)Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial; ii)Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;iii)the conduct of the applicant since the judgment or order sought to be set aside was made.(Emphasis added.)We do not accept the applicant’s submission, as we understood it, that these matters are mandatory relevant considerations. Without an analysis of the reasons for judgment and the contentions put before the primary judge, it is not possible, or desirable, to treat a mere failure expressly to refer to a matter on any such list as involving a House v The King error.