FEDERAL COURT OF AUSTRALIA AXE15 v Minister for Immigration and Border Protection [2018] FCA 1809 Appeal from: Application for leave to appeal: AXE15 v Minister for Immigration and Anor [2018] FCCA 1872 File number: NSD 1062 of 2018 Judge: LOGAN J Date of judgment: 7 November 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – alleged jurisdictional error by Tribunal constituted by failure to disclose existence of certificate issued under s 438 of Migration Act 1958 (Cth) – point not raised before Federal Circuit Court – evidence on appeal that no such certificate even issued. Held – leave to amend refused – appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 48A, 438, 438(1)(a) Cases cited: AXE15 v Minister for Immigration and Border Protection (2018) FCCA 1872 Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 Date of hearing: 7 November 2018 Date of last submissions: 7 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Ms B Griffin of Australian Government Solicitor ORDERS NSD 1062 of 2018 BETWEEN: AXE15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 7 NOVEMBER 2018 THE COURT ORDERS THAT: 1. Leave to amend the notice of appeal, so as to add Ground 2, insofar as it is necessary, be refused. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs, of and incidental to the appeal, to be taxed 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: 1 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 22 May 2001. His entry into Australia at that time was lawful as he was then the holder of a Business (Short Stay) Subclass 456 visa issued under the Migration Act 1958 (Cth) (the Act). That visa expired on 22 June 2001. Shortly before its expiry on 18 June 2001, the appellant applied for that class of visa under the Act known as a Protection visa (visa). A delegate of the Minister then having the administration of the Act, the successor to whom the Minister for Immigration and Border Protection (Minister) is named as first respondent, decided on 12 July 2001 to refuse that visa application. The appellant then applied for the review of the Minister's delegate's decision by the Refugee Review Tribunal (Tribunal). On 9 October 2002, that Tribunal decided to affirm the decision of the Minister's delegate not to grant the appellant a visa. 2 The next immigration event of note is that, on 12 November 2013, the appellant was detained in immigration detention. Inferentially, that was because he did not then hold any form of visa authorising his continued presence lawfully in Australia. On 27 November 2013, the appellant filed a second application under the Act for a visa. That second application was a sequel to a judgment of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and a related consequential view formed within the Minister's department that he was not prevented by s 48A of the Act from lodging another visa application on the basis of the complementary protection criteria. That further application was refused by a delegate of the Minister on 13 May 2014. 3 The following month, on 10 June 2014, the appellant applied to the Tribunal for the review of that particular delegate's decision. On 1 May 2015, the Tribunal - differently constituted from the first review - decided to affirm the Minister's delegate's decision not to grant the appellant a visa. The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal's decision on that second occasion. On 5 June 2018, for reasons for judgment delivered orally that day, that court dismissed with costs the appellant's judicial review application; see AXE15 v Minister for Immigration and Border Protection (2018) FCCA 1872. The appellant has now appealed to this Court against that order of dismissal. His grounds of appeal are as follows: 1. Up to date (15-June-2018), I have not yet received the written reasons for judgement handed down by the Federal Circuit Court of Australia on 05-June-2018 and in turn, I cannot completely understand as to why the grounds on which my judicial review application relied were not made out. I asked my former migration agent to write FCC an email, requesting a copy of the written reasons for the judgement, but was told that the chambers staff members will be sending the written reasons within the next 2-3 weeks (Please refer to Annexure 1 for the reply from FCC NSW District Registry on 14-June-2018). I am concerned that by the time I received the judgement, I will miss the prescribed time-limited for appeal to Federal Full Court of Australia. With that being the case, I'd like request special leave to lodge additional grounds for appeal once the written reasons for judgement is received. 2. More importantly, the tribunal did not disclose to me there was an invalid s438 certificate issued to me. I cannot say with certainty that the certificate may have impacted upon the assessment conducted by the Tribunal. I do not believe the Presiding Judge of FCC examined this issued. Even the issue associated with s438 certificate were carefully examined and the presiding judge affirmed it would not have significant implications on the Tribunal's assessment, given the fact that High Court of Australia granted special leave in cases of CQZ15 and BWG15 respectively; I am convinced that FCC should have reserved judgment in my appeal, pending the determination of the High Court appeals in the foregoing matters. [sic] 4 The first of the grounds of appeal is not, in truth, a ground of appeal at all; rather, it is a foreshadowing of the possibility of seeking to amend the notice of appeal so as to add additional grounds of appeal coupled with an explanation as to why that course might be taken. The explanation is evident enough on the face of the first ground. It is understandable but erroneous to conceive that a court's reasons for judgment as delivered orally are not to be taken as then published and that the reasons for judgment are only given when those revised from transcript are later published. Even so, there can be circumstances, particularly where there is a litigant in person whose first language is not English and who is without legal training which warrant the granting of leave to amend a notice of appeal so as to add additional grounds where there has been a delay between the delivery of reasons for judgment orally in a court exercising original jurisdiction, and the subsequent publication of reasons for judgment in writing as revised from transcript. Sometimes, similar considerations can be relevant to the granting of an extension of time within which to appeal. 5 In each situation, questions of procedural fairness to a respondent, in this case the Minister, and the prospective merits of a proposed amended ground of appeal are always pertinent in addition to an explanation for delay. As it happens, in this particular case, and notwithstanding the foreshadowing of the possibility of an application to introduce by amendment additional grounds of appeal, the appellant has not sought leave for the amendment of the notice of appeal to introduce any additional grounds. 6 I turn, then, to Ground 2. Ground 2 raises, or perhaps better put, for reasons which follow, seeks to raise as a jurisdictional error in relation to the Tribunal's decision a question based on an alleged invalidity of a certificate given by a delegate of the Minister under s 438(1)(a) of the Act. Such certificates certify that the disclosure of certain information would be contrary to public interest. A jurisdictional error has arisen, or rather an alleged jurisdictional error has arisen in circumstances where the Tribunal, or its successor, the Administrative Appeals Tribunal does not inform an applicant for review such as the present appellant of the existence of such a certificate or disclose information to an applicant for review. 7 The two cases to which the appellant refers in Ground 2, of which the lead case is Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 were the subject of an appeal, Case M75/2018 heard in the High Court of Australia on 10 September 2018. The appeal was against a judgment of a Full Court of this Court. The judgment of the High Court in respect of the two appeals was reserved on 10 September 2018. 8 The appellant's submission was, firstly, that a like jurisdictional error was present in the circumstances of his case, and further, given that, that the hearing of the appeal should be adjourned pending the determination of the appeals concerned by the High Court. The alleged jurisdictional error relating to s 438 of the Act was not an issue raised in the Federal Circuit Court in the grounds of review heard and determined by that court on the appellant's judicial review application. That would not necessarily preclude his raising the issue in an appeal to this Court, but so doing would require a grant of leave. It cannot be emphasises too strongly that the jurisdiction exercised by this Court in a case of the present kind is appellate, not original. Relevant to whether a grant of leave should be given are the prospective merits of the new issue and also whether raising the issue would occasion any evidentiary embarrassment to a respondent. 9 Here, the only active party respondent is the Minister, the successor to the Refugee Review Tribunal, the Administrative Appeals Tribunal, having quite properly filed, as that Tribunal did in the Federal Circuit Court also, a submitting appearance. 10 There is nothing in the appeal book which discloses that a s 438 certificate was given, much less that information was not disclosed to the appellant. Though offered an opportunity so to do on the hearing today, the appellant did not seek to introduce any evidentiary foundation to ground the alleged jurisdictional error raised in Ground 2. Thus one way of disposing of Ground 2 would be to refuse leave to raise it, because whatever merit the point might have in the abstract, it was not raised on the facts. As it happens, the Minister chose to adopt a course of filing an affidavit (of Mr Gao) relating to the existence or otherwise of a s 438 certificate. He is hardly to be criticised for adopting that course. Indeed, with respect, it is in the circumstances of an appellant who so obviously has a genuine belief that such a point is raised, a stance of consummate fairness that the Minister has adopted this particular course. 11 Annexed to the affidavit of Mr Gao are records of the Minister's department, inferentially prepared in the ordinary course of public administration, relating both to the appellant's initial visa application as well as his second such application. Either on their face, or as a matter of necessary inference from what is disclosed on the face of these records, these evidence that at no stage in the continuum of public administration relevant to this case, up to and including the affirmation of the second delegate's decision by the Tribunal, has there ever been a s 438 certificate issued. The matters evidenced by the affidavit are obviously relevant to the point which the appellant seeks to agitate in his second ground of appeal. Further, it is axiomatic, given that that point was not raised in the point below that the Minister did not, at that time, have an opportunity to introduce such evidence. The case, therefore, for the admission into evidence of the affidavit and its annexures is a compelling one. I, therefore, granted leave for it to be read on the hearing of the appeal. The appellant did not give notice to the Minister's solicitor of any desire on his part to cross-examine the deponent. There is no reason to doubt the veracity of the matters to which Mr Gao deposes or, materially, the authenticity of the departmental records which are annexed to his affidavit. 12 A necessary consequence of this is that the only evidence in this appeal is that there has never been a s 438 certificate issued with respect to any information. What necessarily follows from this is that, in this case, whatever may be the merits of the issue upon which the High Court is presently reserved, the point is wholly theoretical. It does not arise for determination on the facts of this case. Upon reflection, the appropriate course to take, in those circumstances, because the affidavit evidence is relevant both to whether to grant leave and if so how to deal with the ground if leave is granted is just to refuse leave to raise Ground 2. That is because Ground 2 could have no reasonable prospect of success at all in the absence of an evidentiary foundation. 13 It necessarily follows that the appeal must be dismissed. 14 The Minister, upon the indication that the appeal would be dismissed, sought the usual order as to costs, namely, that the appellant pay his costs as taxed. For reasons which were understandable enough on the part of a litigant in person without legal training, the appellant sought to resist the making of such an order on the basis of an inability to pay costs as taxed. It is true that I have a discretion to exercise in relation to costs, but that discretion must be exercised judicially and the basis put forward by the appellant would not form a basis for a judicial exercise of discretion so as to refuse the costs order sought by the Minister. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 November 2018