FEDERAL COURT OF AUSTRALIA CAD17 v Minister for Immigration and Border Protection [2019] FCA 1343 Appeal from: CAD17 v Minister for Immigration and Border Protection [2017] FCCA 3400 File number: ACD 5 of 2018 Judge: O'BRYAN J Date of judgment: 30 August 2019 Catchwords: MIGRATION – application for extension of time to appeal a decision of the Federal Circuit Court of Australia dismissing application for judicial review of a decision of the Administrative Appeals Tribunal refusing application for protection visa – where Administrative Appeals Tribunal dismissed application pursuant to s 426A(1A)(b) Migration Act 1958 (Cth) due to non-appearance of applicant – whether applicant denied procedural fairness by Tribunal's failure to notify applicant of certificate issued under s 438 Migration Act 1958 (Cth) – whether Court should exercise discretion to grant extension of time to file notice of appeal – where appeal has no prospects of success – application refused Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011, r 36.05 Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jackamarra v Krakouer (1998) 195 CLR 516 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 New South Wales v Canellis (1994) 181 CLR 309 N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 Parker v R [2002] FCAFC 133 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 Date of hearing: 21, 30 August 2019 Registry: Australian Capital Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: The applicant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Ms L Crick of Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS ACD 5 of 2018 BETWEEN: CAD17 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: O'BRYAN J DATE OF ORDER: 30 August 2019 THE COURT ORDERS THAT: 1. The application for an extension of time to file a notice of appeal be dismissed. 2. The applicant pay the first respondent's costs in an amount of $7,241. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'BRYAN J: Introduction 1 By application filed on 25 January 2018, the applicant seeks an extension of time under rule 36.05 of the Federal Court Rules 2011 in which to appeal a decision of the Federal Circuit Court made on 15 November 2017 under s 24 of the Federal Court of Australia Act 1976 (Cth). 2 The applicant is a Malaysian national. On 10 February 2016, he applied for a protection visa under the Migration Act 1958 (Cth) (Act). In his application form, the applicant claimed that he was treated unfairly by his step-brothers in Malaysia and claimed that he was treated "like a slave". He did not provide any substantive documents or evidence in support of his claims, which were brief and stated in general terms. On 4 May 2016, a delegate of the first respondent (Minister) refused to grant the protection visa pursuant to s 65 of the Act. 3 On 25 May 2016, the applicant applied to the second respondent, the Administrative Appeals Tribunal (Tribunal), for review of the delegate's decision. On 8 March 2017, the Tribunal invited the applicant to appear before it at a hearing on 11 April 2017. On 4 and 10 April 2017, the Tribunal sent SMS hearing reminders to the applicant's mobile phone number. The applicant did not attend the scheduled hearing on 11 April 2017. Later that day, the Tribunal wrote to the applicant, notifying him of its decision to dismiss the application pursuant to s 426A(1A)(b) of the Act and informing him that he had until 8 May 2017 to apply for a reinstatement of the application. The applicant did not apply for reinstatement. On 9 May 2017, the Tribunal wrote to the applicant confirming its decision to dismiss the application pursuant to s 426A(1E) of the Act. 4 By application filed on 10 May 2017, the applicant sought judicial review of the decision of the Tribunal by the Federal Circuit Court pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. On 15 November 2017, the Federal Circuit Court dismissed the application. 5 On 28 March 2018, this Court made the following order in this proceeding: No later than ten (10) business days before the hearing date the applicant file and serve a written outline of submissions upon which the applicant seeks to rely in support of the application, and in support of any appeal were the Court to grant an extension of time and/or leave to appeal, so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to appeal. 6 The applicant has not filed any written submissions in support of the application or the appeal. 7 On 27 July 2018, the Court made a further order that no action would be taken on the appeal pending the determination of appeals that were then before the High Court of Australia from the decisions of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. Those cases concerned notices given by the Department to the Tribunal under s 438 of the Act and the question whether the failure by the Tribunal to inform the visa applicant of the notice constituted jurisdictional error. A notice under s 438 had been given to the Tribunal in the present case. The High Court determined that question in Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 which was decided on 13 February 2019. 8 Following the determination in SZMTA, the hearing of this application was listed by the Court for 10.15am on 21 August 2019 in Canberra. On 9 July 2019, the Court sent a notice of the listing to the applicant to the address recorded on the court file. It is apparent that the applicant received notice of that listing because he appeared in person at the hearing. The Minister was represented by Ms Crick, a lawyer at Clayton Utz. 9 At that hearing, the applicant was assisted by an interpreter. I asked the applicant whether he wished to address the Court in support of his application and the appeal. The applicant responded that he had not received the appeal papers and had only been provided with a copy of the Appeal Book at Court that morning. For that reason, he was unable to say anything in support of the appeal. 10 Ms Crick informed the Court that Clayton Utz had attempted to provide the appeal papers to the appellant by registered post to the address recorded on the court file and by email to an address used by the applicant during the Federal Circuit Court application. The papers sent to the mail address had been returned to sender. I asked the applicant where he currently resided and he answered that he lived at the address that was recorded on the court file and to which the appeal papers had been sent. I expressed my concern to the applicant that he may have deliberately avoided receiving the papers, but he denied that that was the case. Ms Crick informed me that the email sent to the email address held by Clayton Utz did not generate any form of 'bounce back' (which might indicate that the email was no longer in use). I asked the applicant whether he had a current email address and he told me that he did not. The applicant provided the Court and Clayton Utz with the mobile phone number of a friend on which he could be contacted. 11 In the circumstances, I determined that the hearing should not proceed on that day. It was apparent that the solicitors for the Minister had diligently sought to provide the relevant papers to the applicant to ensure that the hearing could proceed. For unknown reasons, the applicant has made service on him of those papers difficult. While I am conscious of the difficulties that a self-represented litigant has in conducting a case in the Federal Court, which difficulties are increased when the litigant does not speak English, it is troubling when papers served on the litigant's residential address are returned unopened, preventing the litigant receiving appeal papers in an appeal that the litigant has commenced. The end result is that the Minister and the Court have been put to unnecessary expense in attending a hearing that has had to be adjourned. 12 I therefore made orders relisting the matter for hearing on 30 August 2019. In addition to having provided the applicant with the appeal book (which is relatively short in this matter), Ms Crick also provided the applicant with a copy of the Minister's submissions. I asked the applicant whether he had a friend who was able to speak English and assist him with the papers and he said that he did. I considered that 10 days was sufficient time to provide the applicant with an opportunity to revisit the earlier decisions (by the delegate, the Tribunal and the Federal Circuit Court), all of which are relatively short, and to consider the Minister's submissions, which are only 5 ½ pages in length. 13 The hearing proceeded on 30 August 2019. The applicant was again self-represented and was assisted by an interpreter. The applicant addressed the Court briefly. As to the substance of the appeal, the applicant stated that he did not appeal at the Tribunal hearings because he believes that he did not receive the letters notifying him of the hearings. I asked the applicant whether he had made that submission to the Federal Circuit Court and he said that he had not. Otherwise, the applicant submitted that his father had left him in Australia when he was 14 years old and that he feared for his life if he was returned to Malaysia. He considered Australia to be his second home and was seeking assistance. 14 For the reasons set out below, I consider that the appeal, were it to be allowed, would have no prospects of success. For that reason, there is no utility in granting an extension of time in which to appeal. Decision of the Tribunal 15 As noted above, the Tribunal did not assess the merits of the application for review made by the applicant. 16 As the applicant did not appear at the Tribunal hearing on 11 April 2016, the Tribunal made a written statement on that day dismissing his application pursuant to s 426A(1A)(b) of the Act (dismissal decision). On the same day, the Tribunal notified the applicant of the dismissal decision in accordance with s 426B(5) and informed him that he had until 8 May 2017 to apply for reinstatement of the application in accordance with s 426B(6) of the Act. 17 The applicant did not apply for reinstatement. Accordingly, on 9 May 2017, the Tribunal made a written statement confirming its decision to dismiss the application pursuant to s 426A(1E) of the Act (confirmation decision). Decision of the Federal Circuit Court 18 The hearing before the Federal Circuit Court occurred on 15 November 2018. The applicant was self-represented at the hearing and was assisted by an interpreter. At the conclusion of the hearing, the primary judge dismissed the application and delivered ex tempore reasons. 19 In his reasons for decision, the primary judge noted that the application for review filed by the applicant in the Federal Circuit Court sought review of the Tribunal's dismissal decision, but not its confirmation decision (despite the Minister writing to the applicant inviting an amendment of the application for review in that regard) (at [8]). The primary judge also noted that the only ground of review stated in the application for review was that: "The Application [is] effected (sic) by an error of law" (at [9]). An affidavit filed by the applicant in support of the application solely deposed that: "My Application was decided without proof" (at [10]). The applicant did not file any written submissions in support of his application (at [11]). At the hearing, the applicant did not raise any further grounds of review or make any submissions that particularised the alleged error (at [18]). The primary judge concluded (at [19]) that: In my view, given the lack of relevant particularity of the ground(s) of review stated by the Applicant, it is plain that the Application has no reasonable prospect of success. It is impossible for the Court (or the First Respondent) to discern or otherwise to know what the alleged error (legal or otherwise) is in the Tribunal's decision. Moreover, given that he did not even attend the hearing before the Tribunal, it is difficult to conceive of any ground he could raise that would assist him either before the Tribunal or before this Court in an Application to review the Tribunal's decision. Respectfully, the Application has been a waste of the Court's public resources, as much as it undoubtedly has of those of the First Respondent's lawyers. 20 The primary judge otherwise adopted the Minister's submissions and dismissed the application. 21 One additional matter should be noted. The Minister's submissions before the primary judge adverted to the fact that the Tribunal had been notified by the Department that s 438(1)(a) of the Act applied to certain information on the relevant departmental file. However, the Minister submitted that this case did not give rise to the type of error identified in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (Singh). It was submitted that, having regard to the nature of the Tribunal's decisions in this case (involving a summary dismissal for non-appearance without regard to the merits), the documents the subject of the notification were not relevant to the Tribunal's decisions. As noted, the primary judge accepted the Minister's submission on this point. 22 Section 438 is contained in Part 7 of the Act. In broad terms, s 438 of the Act applies to a document or information if (a) the Minister certifies that its disclosure would be contrary to the public interest (other than for the reasons set out in s 437) or (b) the document (or any matter contained in the document) or the information was given to the Minister or the Department in confidence. If the Secretary or the Department gives the Tribunal a document or information to which s 438 applies, the Secretary is required to notify the Tribunal that the section applies. In that event, the Tribunal may disclose the documents or information to the applicant and must give a direction under s 440 restricting publication or disclosure. 23 In Singh, the Full Federal Court considered the analogue of s 438 in Part 5 of the Act, s 375A (although s 375A is in somewhat different terms). The Court concluded that, in a matter before the Tribunal in which a s 375A certificate had been issued in relation to documents or information relating to the matter, procedural fairness required the Tribunal to disclose the existence of the certificate to the applicant. 24 The effect of the Minister's submission to the primary judge was that, although a s 438 notification had been given to the Tribunal and it can be inferred that the Tribunal had not informed the applicant of that notification, the applicant had not been denied procedural fairness in circumstances where no hearing on the merits had occurred and the application had been dismissed for non-appearance. Application to this Court for an extension of time 25 At the relevant time, rule 36.03 of the Federal Court Rules 2011 required a notice of appeal to be filed and served within 21 days after the date on which the orders or judgments were pronounced (the rule was amended in May this year to extend that period to 28 days). Accordingly, a notice of appeal should have been filed by 6 December 2018, being 21 days after the primary judge pronounced the orders on 15 November 2018. 26 The applicant did not file his application for an extension of time in which to appeal until 25 January 2018, some 51 days late. The application itself is dated 6 January 2018 (but was not filed until 25 January 2018). It is apparent that the applicant became aware that he was out of time to file a notice of appeal because he filed an application for an extension of time using the correct form under rule 36.05. On the same day, the applicant filed a supporting affidavit and a draft notice of appeal. The supporting affidavit bears a date on the first page of 22 December 2017, but was sworn on 6 January 2018 and was not filed until 25 January 2018. In the affidavit, the applicant deposes that (errors in original): 1. I am a Malaysian Citizen by birth and came to Australia and applied for protection visa under the determination of Refugee status in Australia. 2. The Delegate of the minister for Immigration and Border Protection refused to grant my protection visa. I applied for review in the Refuge Review Tribunal, but the member of the Tribunal affirmed the delegate decision. 3. I filed for judicial review application before the Federal Judge. Honourable Judge dismissed my application. I was not represented by the any solicitor or barrister and was not aware of time limit. 4. I require extension of time and serve draft notice of Appeal. 27 Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court's discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]: (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. (b) There must be some acceptable explanation for the delay. (c) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension. (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension. (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to "assess the merits in a fairly rough and ready way": Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]. 28 The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13]. 29 Counsel for the Minister submitted that it was clear that the applicant was aware of the Federal Circuit Court's decision of 15 November 2018 because the applicant was present in court when the decision was announced. Accordingly, there was not a satisfactory explanation given for the delay. The Minister did not submit that there was any prejudice to the Minister arising from the delay in the present case. 30 In my view, the applicant's delay is not excessive and is explained, at least in part, by the facts that the applicant does not speak English and is not familiar with the practices of the Federal Court. However, for the reasons explained below, the applicant's draft grounds of appeal do not establish that the decision of the primary judge is attended by sufficient doubt to warrant an extension of time being granted. Indeed, I consider that the appeal has no prospects of success. It is for that reason that I refuse the application for an extension of time. The draft notice of appeal 31 The draft notice of appeal states that the applicant appeals from the whole of the decision of the primary judge. The proposed grounds of appeal are (errors in original): 1. The FM [which can be understood as an abbreviation for Federal Magistrate] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The [applicant] was not represented by any solicitor or barrister and denied natural justice. 32 The applicant did not file any written submissions on this appeal. At the hearing, the applicant did not elaborate on the proposed grounds of appeal. Rather, as noted above, the applicant submitted to the Court that he believes that he failed to receive the letters notifying him of the Tribunal hearings. 33 Ground 1 is misconceived because the Tribunal did not assess the merits of the protection visa application. The Tribunal dismissed the application under s 426A of the Act because the applicant failed to appear. Any allegation of error would have needed to be directed to the legal basis on which the Tribunal decided the matter. The primary judge was correct in his analysis of the basis on which the Tribunal had dismissed the application. 34 By ground 2, the applicant contends that he was denied procedural fairness in the Federal Circuit Court because he was unrepresented. However, in civil cases, there is no common law entitlement or right to legal representation: New South Wales v Canellis (1994) 181 CLR 309 at 328 per Mason CJ, Dawson, Toohey and McHugh JJ. As observed by Katzmann J in SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 (at [40]): Further, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law: Dietrich v R (1992) 177 CLR 292; New South Wales v Canellis (1994) 181 CLR 309 at 328; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 at [93] (Ipp JA, Spigelman CJ and Handley JA agreeing). In civil proceedings procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be … 35 It can be accepted that, in cases where a litigant is self-represented, the court has "an obligation to ensure that [the unrepresented party] suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer": MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J; see also SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at 452 to 454 per Robertson J (Allsop CJ and Mortimer J agreeing) and AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ. 36 In the present case, there is no basis to suggest that the primary judge denied the applicant procedural fairness. The primary judge provided the applicant with an opportunity to be heard. The primary judge independently considered the Tribunal decision and the grounds of review. I agree with the conclusion of the primary judge that, having regard to the basis on which the Tribunal dismissed the application, it is difficult to conceive of any ground that the applicant could have raised before the Federal Circuit Court to show jurisdictional error. 37 The applicant's submission that he believes that he did not receive the letters advising him of the Tribunal hearings faces numerous difficulties. First, that was not a submission that was made to the Federal Circuit Court and is not included as a ground of appeal. The applicant would therefore require leave to raise it. Second, the submission was unsupported by evidence on the part of the applicant. Third, as found by the Tribunal, and supported by the documentary evidence before me, the Tribunal sent the applicant, at the address notified to the Tribunal by the applicant, and being the same address referred to above where the applicant resides, letters notifying the applicant of each of the two hearings before the Tribunal. The Tribunal also sent the applicant SMS messages to the mobile phone number notified by the applicant to the Tribunal. Given the foregoing, I would not grant leave to the applicant to raise that matter as a ground of appeal. 38 In my view, the primary judge was also correct to accept the submission of the Minister that no jurisdictional error arose out of the s 438 notification which had been given to the Tribunal. Since the decision of the Federal Circuit Court in this matter, the issues considered by the Full Federal Court in Singh have been the subject of consideration by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 in relation to notices issued under s 438 of the Act (as in this case). The plurality (Bell, Gageler and Keane JJ) concluded (at [2]) that the giving of a notification to the Tribunal: …triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. 39 Nettle and Gordon JJ similarly concluded that the giving of a notification under s 438 triggered an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant. Their Honours concluded that a breach of that obligation constitutes jurisdictional error (at [78]). However, their Honours decided that, in the circumstances of the cases before them, where the breach of obligation did not deprive the applicant of the possibility of a successful outcome, the court should exercise its discretion to refuse relief (at [79]). 40 In the present case, the documents the subject of the s 438 notification were not relevant to the Tribunal's decisions to dismiss the application and confirm the dismissal. That is because those decisions were based solely on the failure of the applicant to appear at the hearing and the failure of the applicant to seek reinstatement. The Tribunal was not called upon to decide the merits of the application before it. In those circumstances, any failure by the Tribunal to afford the applicant procedural fairness by reason of failing to inform the applicant of the s 438 notification did not operate to deny the applicant the possibility of a successful outcome. Accordingly, any such failure did not constitute jurisdictional error. 41 In my view, the applicant's proposed grounds of appeal have no prospects of success. Conclusion 42 In conclusion, as the applicant's proposed grounds of appeal have no prospects of success, I refuse the application for an extension of time in which to appeal. I will also order the applicant to pay the first respondent's costs of the application, as agreed or taxed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan. Associate: Dated: 30 August 2019