FWR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 430

FEDERAL COURT OF AUSTRALIA

FWR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 430

Appeal from:

Application for leave to appeal: FWR18 v Minister for Home Affairs [2019] FCCA 3448

File number:

NSD 2041 of 2019

Judgment of:

LEE J

Date of judgment:

12 April 2022

Date of publication of reasons:

22 April 2022

Catchwords:

MIGRATION – application for leave to appeal from decision of Federal Circuit Court of Australia (as it was then) – where applicant failed to attend hearing – whether the Immigration Assessment Authority failed to apply the correct test pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) – whether Tribunal failed to take into account a relevant consideration – no error material – application dismissed

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 16.05(2)(a)

Cases cited:

FWR18 v Minister for Home Affairs [2019] FCCA 3448

House v The King (1936) 55 CLR 499

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

10

Date of hearing:

12 April 2022

Counsel for the Applicant:

The Applicant appeared in person, assisted by an interpreter

Solicitor for the First Respondent:

Mr A Moss of Clayton Utz

Counsel for the Second Respondent:

The second respondent entered a submitting appearance save as to costs

ORDERS

NSD 2041 of 2019

BETWEEN:

FWR18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	12 APRIL 2022

THE COURT ORDERS THAT:

1.The application for extension of time and leave to appeal, dated 9 December 2019, stand as an application for leave to appeal.

2.The application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

LEE J:

1. The present application is styled as an “application for extension of time and leave to appeal” from a decision of the Federal Circuit Court of Australia (as it then was) delivered on 15 November 2019: FWR18 v Minister For Home Affairs & Anor [2019] FCCA 3448 (J). As it turns out, in truth, it is an application for leave to appeal, because the application was filed in this Court within the period of time fixed by the orders of the primary judge and an extension of time is not required.

2. The matter has a very long history, tracing back over nine years to when the applicant, a Sunni Muslim of Bengali ethnicity, arrived as an “unauthorised maritime arrival”. During the course of his oral submissions today, the applicant made two points: first, that his life remains in danger, should he be required to return to Bangladesh; and secondly, that he has been in Australia now for a very long time and cannot do anything in Australia without the grant of a visa.

3. I have explained to the applicant that my role is not to decide whether or not he should be granted a visa, but is directed to a different purpose. That purpose is whether the primary judge fell into error in dismissing the applicant’s application in a case, by which the applicant sought reinstatement of his amended application for review of a decision of the Immigration Assessment Authority (Authority) dated 1 November 2018, pursuant to r 16.05(2)(a) of the (then in force) Federal Circuit Court Rules 2001 (Cth).

4. Both the procedural and broader factual background to the application in a case before the primary judge is set out in detail in the primary judge’s reasons: see FWR18 v Minister for Home Affairs [2019] FCCA 3448 (J) (at [1]–[29]). Although there is no challenge to the summary provided by the primary judge, given the applicant is unrepresented, I have taken the time to ascertain whether that procedural and factual background is reflected in the materials in the Court Book and consider that it is clearly correct.

5. The applicant’s reinstatement application was necessary because his Honour found that, notwithstanding the applicant knew of a final hearing in October 2019 of his substantive application, he did not give any reasonable, persuasive or plausible explanation as for why he did not appear on that occasion: J [6]. Despite this finding, the primary judge went on to consider whether or not the applicant had a reasonable argument for asserting that the decision of the Authority in respect of which he sought judicial review was affected by jurisdictional error.

6. His Honour was not satisfied that there was any merit in the underlying application for judicial review and, accordingly, was not prepared to reinstate the application: J [38]. It is trite, of course, that the applicant is required to demonstrate some legal, factual or discretionary error on the part of the primary judge in order to justify appellant intervention.

7. The application in this Court identifies two grounds for the application, which are as follows:

   Ground 1:

   The Immigration Assessment Authority has failed to apply the correct test pursuant to Section 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars:

   In dealing with the Applicant’s claims under Section 36(2)(aa) of the Migration Act, the Administrative Appeals Tribunal explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

   Ground 2: Jurisdictional Error - Failure to Take into Account a Relevant Consideration

   The Second Respondent erred as to jurisdiction by failing to take into account the Applicant’s claims as required by the Migration Act. The IAA adopted hard attitude in assessing or examining the relevant facts presented by the appiicant [sic]. The Tribunal failed to assess the relevant material on logically probative and relevant materials.

8. These grounds essentially repeat the arguments advanced before the primary judge. In particular, ground one was dealt with by the primary judge at J [30]–[34]. I can discern no error on behalf of the primary judge in his conclusion that such a ground could not be made out. As the primary judge correctly noted, it is clear that the Authority set out the test from s 36(2)(aa) of the Migration Act 1958 (Cth) correctly and then proceeded to apply the test by reference to its earlier factual findings and in accordance with an orthodox process of reasoning: J [30]–[34].

9. Ground two was not alleged in terms before the primary judge, but on its face is an invitation for the Court to engage in impermissible merits review: it is not directed to why it is that the primary judge was in error in refusing the reinstatement application.

10. Conscious as I am of the fact that the applicant is not represented, I have reviewed for myself the decisions and reasons of the Authority of 1 November 2018. It does not seem to me that there is any jurisdictional error evident in the approach of the Authority that has not been fastened upon by the applicant. The application for leave to appeal does not disclose an arguable ground of appeal against the decision of the primary judge and the inevitable consequence is that it must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Associate:

Dated:       22 April 2022