BPI17 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: CHARLESWORTH J
• Judgment Date: 08 May 2019
• Neutral Citation: [2019] FCA 637
• Date: 08 May 2019

FEDERAL COURT OF AUSTRALIA

BPI17 v Minister for Immigration and Border Protection [2019] FCA 637

Appeal from:	Application for leave to appeal: BPI17 v Minister for Immigration & Anor [2018] FCCA 356
File number:	VID 165 of 2018
Judge:	CHARLESWORTH J
Date of judgment:	8 May 2019
Catchwords:	APPEAL AND NEW TRIAL – primary judge summarily dismissing an application for judicial review – appealable error affecting the exercise of the power to summarily dismiss – judicial review application giving rise to an arguable case – whether the substantive merits of the application for judicial review should be determined by the Federal Court of Australia in the exercise of its appellate jurisdiction – appellate jurisdiction concerned with correction of error – remittal of judicial review application to Federal Circuit Court of Australia for determination on its substantive merits ; MIGRATION – protection visa – application for judicial review of administrative decision summarily dismissed – appealable error affecting exercise summary dismissal power – remittal to court at first instance for determination of application on its substantive merits
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 24, 41, 31A Migration Act 1958 (Cth) ss 36, 65, 476 Federal Circuit Court Rules 2001 (Cth) r 44.12 Migration Regulations 1994 (Cth)
Cases cited:	AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 BPI17 v Minister for Immigration & Anor [2018] FCCA 356 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 BZD17 v Minister for Immigration and Border Protection (2018) 161 ALD 441 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Craig v South Australia (1995) 184 CLR 163 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Date of hearing:	15 August 2018, 3 October 2018
Date of last submissions:	24 October 2018 (Respondent) 8 November 2018 (Appellant)
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms C Saunders
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice

ORDERS

		VID 165 of 2018
BETWEEN:	BPI17 Appellant
AND:	MINISTER FOR IMMIGRATIOIN AND BORDER PROTECTION Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	8 MAY 2019

THE COURT ORDERS THAT:

1. The application for leave to appeal is allowed.

2. The requirement that the appellant file a notice of appeal is dispensed with.

3. The grounds of appeal be those specified in the appellant’s draft notice of appeal lodged with the Court on 19 February 2018.

4. The appeal is allowed.

5. The orders of the Federal Circuit Court of Australia made on 12 February 2018 in action MLG744/2017 be set aside and, in lieu thereof, the following orders be made in that action:

   1. pursuant to r 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) the respondent is to show cause at a final hearing why an order for the relief claimed should not be made on the grounds mentioned in the application for judicial review, as particularised in the written submissions filed by the applicant on 15 January 2018;

   2. an order that the costs of the applicant for judicial review of and incidental to the show cause hearing conducted on 12 February 2018 be paid by the first respondent.

6. The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for the conduct of the final hearing and the determination of the application for judicial review.

7. The first respondent pay the appellant’s costs of the application for leave to appeal and the costs of the appeal.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1. This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia (FCC): BPI17 v Minister for Immigration & Anor [2018] FCCA 356. At the hearing of the application, the parties made submissions as to the substantive merits of the proposed appeal so that, if leave were to be granted, the appeal may be finally determined without a further hearing.

2. The appellant is a citizen of Sri Lanka. On 14 February 2014, he applied for a protection visa under the Migration Act 1958 (Cth). A delegate of the then-titled Minister for Immigration and Border Protection refused to grant the visa. The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal.

3. The primary judge summarily dismissed the appellant’s application for judicial review of the Tribunal’s decision. The power exercised by the primary judge was that conferred by r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). It provides:

44.12 Show cause hearing

(1) At a hearing of an application for an order to show cause, the Court may:

(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

4. The order of the primary judge was interlocutory: r 44.12(2). No appeal lies from the judgment except with the leave of the Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

5. The principles guiding the exercise of the discretion as to whether or not to grant leave to appeal from an interlocutory judgment are well settled. Among other things, it is relevant to consider whether the correctness of the judgment is attended with sufficient doubt so as to warrant appellate intervention: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

6. Although interlocutory, the order dismissing the application for judicial review had the practical effect of bringing an end to the application. It did not involve the exercise of a discretion on a point of practice or procedure and so is not of a kind that would attract the cautionary principles discussed by French J (as he then was) in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (at [42]):

The principal was...