FEDERAL COURT OF AUSTRALIA

DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10

ORDERS

THE COURT ORDERS THAT:

1.    The appeals be dismissed.

2.    The appellants pay the costs of the Minister for Immigration and Border Protection as agreed or assessed.

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

REASONS FOR JUDGMENT

REEVES J:

1    I have had the benefit of reading the reasons of Rangiah J in draft form. I agree generally with those reasons and the orders his Honour has proposed.

Associate:    

Dated:    8 February 2019

REASONS FOR JUDGMENT

RANGIAH J:

2    There are four related appeals before the Court. The appellants are all members of the same family. Appellants DKX17 and DKY17 are husband and wife respectively, while DNF17 is their elder daughter, DNG17 is their younger daughter and DNH17 is their son.

3    The appeals are against orders of a judge of this Court (the primary judge) dismissing the appellants’ application for writs of certiorari and mandamus directed to the Federal Circuit Court of Australia. A judge of the Federal Circuit Court (the trial judge) had dismissed the appellants’ application for an extension of time to seek judicial review of decisions of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed decisions of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse to grant protection visas to the appellants.

4    I will summarise the decisions of the Tribunal, the trial judge and the primary judge, before considering the submissions made by the parties.

The Tribunal’s decision

5    The appellants are citizens of Fiji. They are of Indian extraction. On 2 July 2012, the appellants made a combined application for protection visas. Later, the children made separate applications.

6    On 28 March 2013, a delegate of the Minister made the decisions refusing to grant the appellants protection visas. The appellants applied to the Tribunal for review of the delegate’s decisions.

7    Before the Tribunal, the parents gave evidence that they had leased land near a rural village from the Fijian government and farmed the land for many years. They claimed that following the coup in 1987, the family had been harassed by the indigenous Fijian landowners and their associates. The harassment included repeatedly demanding money and food from the family, cutting off the legs of their cattle, threatening to rape their daughters, stealing their property and beating the father.

8    The elder daughter also gave evidence that she had been harassed by indigenous Fijian students when she was at school and at college. This included being beaten and having her clothes torn off by a group of students.

9    The younger daughter also gave evidence that she had been harassed on her way to school in Fiji. As a result, she stayed at home rather than going to school.

10    The son gave evidence of being threatened by indigenous Fijian youths. On one occasion he had been tied up and thrown into some dry grass. The assailants had planned to set the grass on fire, but they were prevented from doing so. He gave evidence that the land owners had burned the family’s sugar cane crop.

11    The family’s treatment led to them leaving Fiji for Australia in 2006. The family home on the leased land was subsequently destroyed by a cyclone. The lease expired in 2008 and was not renewed because the father refused to pay a bribe to the land owners.

12    The Tribunal found the appellants’ evidence of the harassment they had experienced in Fiji to be credible. The Tribunal found that the motivation of the land owners for the harassment was both the appellants’ race and that the land owners wanted the land for themselves. The Tribunal accepted that the appellants have a subjective fear that they will be harmed if they return to Fiji.

13    However, the Tribunal found that the appellants did not have a well-founded fear of persecution if they were to return to Fiji.

14    The Tribunal rejected the appellants’ claim that they would be harassed again by the indigenous land owners or their associates in the village. The Tribunal’s reasons in relation to the parents were that, firstly, an important contributor to the harassment had been the appellants’ proximity to the harassers, but they would no longer be living in the same village since they have nowhere to live there. The Tribunal found that while it was unclear where the appellants might live if they returned to Fiji, they would not be living in the village.

15    The Tribunal found, secondly, that as the land owners had retaken the land, having successfully driven the appellants off it, they no longer had that motivating factor for harassing the appellants.

16    The Tribunal found, thirdly, that the political environment in which the land owners felt free to harass the appellants with impunity had changed significantly for the better. The situation for Fijian Indians had improved since the 2006 coup and race relations have become “generally harmonious”.

17    The Tribunal found, fourthly, that the parents had visited Fiji in 2007 and were not harmed.

18    The Tribunal found, fifthly, that while the mother’s fear of being sexually assaulted by the villagers in the future was understandable, she would not be living in the village if she returned to Fiji and had expressed no intention of returning there.

19    The Tribunal concluded, in relation to the parents:

Taking these factors together I consider the chance remote that the applicants will be subjected to serious harm amounting to persecution by the villagers who previously targeted them, or people associated with them, if they return to Fiji.

20    In relation to each of the daughters, the Tribunal added that the harassment they had experienced was unlikely to be repeated by the perpetrators given the passage of time since the incidents. The Tribunal also noted that the younger daughter and the son had visited Fiji and were not harmed.

21    The Tribunal then rejected the appellants’ claim to have a well-founded fear of persecution for their race and religion in Fiji generally, finding that race relations had improved substantially following the 2006 coup. The Tribunal also rejected claims of a well-founded fear of persecution through general crime and violence.

22    The Tribunal considered the appellants’ claims that they would face economic hardship if returned to Fiji. The Tribunal said:

There is little doubt that the applicants, having been out of Fiji for many years without family support there, will face considerable hardship if they return because they will have no income, at least initially, and nowhere to live. However although its roots can be found in the loss of their land and home some years ago and the subsequent non-renewal of their lease, I am not satisfied that this future hardship is persecution in the Convention sense.

23    For these reasons, the Tribunal rejected the appellants’ claims for protection under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). The Tribunal also rejected the appellants’ claims for complementary protection under s 36(2)(aa) of the Act.

24    However, the Tribunal went on to recommend that the Minister consider exercising the discretion provided under s 417 of the Act to substitute a more favourable decision. The Tribunal said:

Having regard to the applicants’ circumstances, in particular their plainly traumatic experiences in Fiji including serious assaults on the male applicant and two of his children, the serious hardship they will face if they return there and the fact that the male applicant’s three sisters and widowed father are apparently Australian citizens, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s. 417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal considers the case should be referred to the Department to be brought to the Minister’s attention.

25    On 22 November 2013, the Tribunal wrote to the Ministerial Intervention Unit of the Department of Immigration and Border Protection referring the appellants’ cases to the Minister.

26    On 25 November 2013, the Ministerial Intervention Unit wrote to the appellants’ representative advising of the Tribunal’s reference and stating that, “your clients should not discontinue any application for judicial review on the expectation that the Minister will intervene”.

27    Over the next three-and-a-half years, the Department required the appellants to undergo health checks, police checks and other scrutiny. However, on 13 July 2017, the Department wrote to the appellants’ representative advising that the Assistant Minister had personally considered the Tribunal’s reference and had decided that it would not be in the public interest to intervene.

28    In the meantime, the appellants had not made any application to the Federal Circuit Court for judicial review of the Tribunal’s decision.

The judgment of the Federal Circuit Court

29    On 31 July 2017, the parents applied to the Federal Circuit Court for an extension of time to apply for a remedy in respect of the Tribunal’s decision, and the children did so on 4 August 2017.

30    Section 477(1) of the Act prescribes a 35 day limit to make an application to the Federal Circuit Court for a remedy under s 476 in relation to a migration decision. The appellants’ delay in making their applications was over 1,300 days. Section 477(2) gives the Federal Circuit Court a discretion to extend the period if, relevantly, the Court is satisfied that it is necessary to do so in the interests of the administration of justice.

31    The appellants represented themselves before the Federal Circuit Court. The grounds of review set out in their applications were:

The Tribunal failed to take into consideration the significant physical ill treatment and denial of capacity to earn a livelihood of any kind as well as failed to recognise us as refugees based on the information before it and contrary to the Migration Act.

32    The applications set out the appellants’ grounds for an extension of time as follows:

1.    On 22 November 2013 the Tribunal made a decision affirming the decision not to grant us protection visa but referred our case to the Minister for intervention. Since then we complied with all the Minister’s requests such as for health, character check and other requirements and shockingly the letter was not referred to the Minister for final approval.

2.    We submit copy of Ministerial reply dated 13 July 2017 and we have no option but to ask the Honourable Court to accept this review because there is an error in the way the Office of the Minister handled our application.

33    The hearing was set down for 27 October 2017. At the commencement of the hearing, the appellants, through an interpreter, sought an adjournment so that they could obtain legal advice. The appellants explained that they had approached the Legal Aid Office but had not been able to obtain an appointment prior to the hearing. The Minister’s legal representative made submissions opposing an adjournment.

34    The trial judge noted that the application had been filed on 4 August 2017 and that, at a directions hearing held on 20 September 2017, the appellants had been given contact details for legal services providers. However, the appellants had waited until two weeks before the hearing before contacting the Legal Aid Office. Her Honour also considered that their application did not demonstrate any arguable case of jurisdictional error on the part of the Tribunal. Her Honour refused the application for an adjournment.

35    The trial judge then proceeded with the hearing of the application for an extension of time to seek review of the Tribunal’s decision. Her Honour gave ex tempore reasons dismissing the applications.

36    Her Honour’s reasons in DKX17 v Minister for Immigration [2017] FCCA 2627 noted that the appellants’ explanation for the delay in applying for review of the Tribunal’s decision was as follows:

I draw your attention to court book page 224 the tribunal refused us as applicant for protection visa but on page 243 of court book the tribunal referred our case to the department as it can be seen from page 245 in the court book. The member of the tribunal referred the matter and the department requested our family to undergo medical, police check, character check and everything went well until 13th of July 2017, when a shocking letter came from the department saying the matter does not meet public interest criteria. When we received the letter, the officer of department said that we can do federal court and we did so on 31/07/2017 which is within 28 days. Extension of time you honour should be allowed.

(Errors in the original.)

37    The trial judge found that the appellants had not provided a satisfactory explanation for the delay. Her Honour said:

17.    I asked the each of The Applicants if there was anything further any of them wished to say by way of explanation for their delay or in support of their application generally. The explanation for the delay in respect of all of The Applicants is that they sought Ministerial intervention in respect of which they were not informed of the outcome until 13 July 2017.

18.    It is well established that an applicant’s conduct in seeking Ministerial intervention under s.417 of the Act is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the Tribunal on grounds that may otherwise have been available under the Act (see M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

19.    However, it was open to the applicants to seek judicial review of the Tribunal’s decision record at the same time. In the circumstances, the seeking of Ministerial intervention is not a satisfactory explanation for the inordinate delay in excess of 1,300 days.

(Underlining added.)

38    The trial judge noted that the appellants had sought an adjournment in order to obtain legal advice, but that they had only sought legal assistance two weeks earlier.

39    Her Honour went on to say:

Neither of the applicants had anything to say in relation to the manner in which they say the Tribunal’s decision was affected by jurisdictional error and none is apparent on the face of the Tribunal’s decision record.

40    Her Honour then considered the content of the Tribunal’s decision record. Her Honour said that the appellants’ complaints were more in the nature of disagreement with the conclusions of the Tribunal and thereby sought impermissible merits review.

41    The trial judge concluded that:

In light of the unsatisfactory explanation for the applicants’ delay, and the lack of prospects of success of the applicants’ application for judicial review of the Tribunal’s decision, I am not satisfied that it is necessary in the interests of justice that time be extended the applicants.

(Underlining added.)

42    Her Honour dismissed the applications for extensions of time with costs.

The judgment of the primary judge

43    The appellants applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for certiorari quashing the judgment of the Federal Circuit Court and mandamus requiring the Federal Circuit Court to decide the applications for extensions of time according to law.

44    The amended originating application before the primary judge was based on five grounds alleging jurisdictional error on the part of the trial judge. The alleged errors may be summarised as follows:

(1)    The trial judge’s decision not to allow the appellants an adjournment so that they could obtain legal representation was legally unreasonable.

(2)    The appellants were denied procedural fairness by the trial judge’s decision to refuse them an adjournment on the basis that their substantive application lacked prospects of success without first hearing them upon the issue of prospects of success.

(3)    The trial judge erred by failing to find that there was an arguable jurisdictional error in the Tribunal’s reasoning that the hardship the appellants would face was not for a Convention reason.

(4)    The trial judge erred by failing to find that the Tribunal had committed jurisdictional error by not determining whether it would be reasonable for the appellants to relocate from the village to elsewhere in Fiji.

(5)    The trial judge’s exercise of the discretion to extend time to commence proceedings was legally unreasonable as it was premised on a fact which did not exist, namely that the appellants had made a choice to seek Ministerial intervention.

45    Dealing with the fifth ground, the primary judge accepted the appellants’ submission that the trial judge proceeded upon a misapprehension that it was the appellants’ decision to seek Ministerial intervention under s 417 of the Act instead of pursuing judicial review of the Tribunal’s decision. His Honour accepted that the delay in commencing proceedings for judicial review had occurred because the appellants had been induced to believe that the Tribunal regarded their position as justifying a reference under s 417 and because the Department then considered the referral for a lengthy period. His Honour observed that the appellants had not chosen to make the s 417 reference, and their conduct had a different quality to a decision by a disappointed applicant seeking a remedy under s 417 of the Act instead of immediately seeking judicial review.

46    However, his Honour found that the trial judge’s error was not jurisdictional. His Honour held that the error was an error of fact and was made within jurisdiction. Accordingly, certiorari and mandamus could not be granted.

47    Dealing with the third and fourth grounds, the primary judge considered whether the trial judge had applied an incorrect test in the application and failed to appreciate that the Tribunal may have made a jurisdictional error. His Honour recorded the appellants’ argument as being that the Federal Circuit Court judge ought to have been able to perceive an error. His Honour found that the ground of review in the application before the trial judge had wrongly asserted that the Tribunal had failed to take into consideration the appellants’ past ill-treatment and capacity to earn a livelihood, when those matters had in fact been considered. His Honour considered the balance of the ground to be a misconceived invitation to the trial judge to undertake merits review. His Honour held that it was open to the trial judge to conclude that the appellants’ case had little or no prospects of success.

48    The primary judge noted that the appellants had argued that they had a real case before the trial judge that the Tribunal had erred in failing to consider whether it was reasonable for the appellants to relocate to somewhere in Fiji instead of returning to their village. His Honour considered that argument, proceeding upon an assumption that it was open to quash the trial judge’s judgment.

49    The primary judge held that the Tribunal did not need to consider the question of relocation as the Tribunal had found that there was only a remote chance the appellants would be subjected to serious harm by the villagers who previously targeted them, or people associated with them, if they returned to Fiji. His Honour reasoned that the Tribunal was only required to consider the reasonableness of relocation if it found that they had a well-founded fear of persecution for a Convention reason in their village. His Honour considered that as the Tribunal had found that they did not face any such well-founded fear, the question of relocation did not have to be considered.

50    Dealing with the first ground, the primary judge held that the trial judge’s assessment that the appellants had poor prospects of success in their substantive claim (even assuming the claim expressly included the relocation point, which it did not) did not disclose any jurisdictional or other error by her Honour. The primary judge concluded that it was open to the trial judge to refuse the application for an adjournment. The application had been made without evidence to support it. The appellants had not identified any substantive ground of review or good reason to justify a further delay. His Honour held that the trial judge had not made any jurisdictional error in her refusal to grant an adjournment.

51    The primary judge did not deal expressly with the second ground of review.

52    His Honour dismissed the application with costs.

The grounds of appeal

53    The appellants each rely upon identical grounds of appeal. They are:

1.     His Honour erred in not finding that the Federal Circuit Court Judge’s decision not to allow the applicant further time to obtain legal representation was legally unreasonable.

2.    His Honour erred in finding there was no substantive basis on which the Federal Circuit could grant the adjournment the applicant sought to obtain legal representation.

3.    His Honour erred in not finding that the Federal Circuit Court Judge denied the applicant procedural fairness in deciding not to adjourn the application to allow legal representation on the basis that the applicant’s case had no prospect of success without first hearing what the applicant’s arguments in support of their application were.

4.    His Honour erred in not concluding that the Federal Circuit Court judge erred in not addressing matters clearly apparent from the face of the Tribunal decision and the appellant’s application and thereby denied the appellants natural justice:

a.    The Federal Circuit Court Judge overlooked that there was an arguable jurisdictional error in the Tribunal’s reasoning that the hardship that the applicant would face on return to Fiji was not motivated by a Convention reason and that the Federal Circuit Court Judge erred in not appreciating that error arose from the grounds of the application and the material before her, and

b.    The Federal Circuit Court Judge overlooked that it was arguable that the Tribunal failed to complete the exercise of its jurisdiction as it has not determined whether the relocation of the applicant from [the village] to other parts of Fiji would be “reasonable” and that the Federal Circuit Court Judge erred in not appreciating that error arose from the grounds of the application and the material before her.

c.    The Federal Circuit Court Judge failed to appreciate that the reason for the appellants’ filing their application outside the time limit of 35 days was that the matter had been referred to the Minister by the Tribunal rather than the applicants and the Minister took 4 years to decide the intervention request-during which time the applicants were given every indication that their request was likely to be granted.

5.    His Honour erred in not concluding that the Federal Circuit Court judge erred in not addressing matters clearly apparent from the face of the Tribunal decision and the appellant’s application as described in grounds 4(a) to (c) hereof and thereby constructively failed to exercise the discretion in s 476(2) of the Migration act 1958.

6.    His Honour erred in not concluding that the Federal Circuit Court judge erred by finding that the appellants’ reason for their delay was that they had applied for ministerial intervention when there was no probative evidence to support this and the decision was thereby affected by legal unreasonableness.

(Errors in the original.)

Consideration

54    Before considering the grounds of appeal, some observations should be made about the nature of the proceedings before the trial judge in Federal Circuit Court and those before the primary judge in this Court.

55    The application to the Federal Circuit Court sought an extension of time to apply for judicial review of the Tribunal’s decision. The application was brought under s 477 of the Act, which provides, relevantly:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

56    Section 476 of the Act provides, relevantly:

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

…

57    In an application to the Federal Circuit Court under s 476 of the Act, it is necessary for the applicant to demonstrate jurisdictional error on the part of the Tribunal: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76]. In considering an application for an extension of time under s 477(2), the merits of the proposed application for review are relevant: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The Federal Circuit Court ordinarily considers whether the applicant has at least an arguable case that the Tribunal fell into jurisdictional error. That is because it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].

58    Section 476A(3)(a) of the Act prohibits any appeal from an order of the Federal Circuit Court made under s 477(2). Nevertheless, an application to quash such a judgment can be made in the Federal Court’s original jurisdiction under s 39B of the Judiciary Act: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11]; SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [59], [62]. However, it must be remembered that an application for relief under s 39B of the Judiciary Act is not an appeal, and that demonstrating an appealable error is not necessarily sufficient. An applicant for certiorari and mandamus will usually be required to demonstrate jurisdictional error. The disposition of these appeals requires that attention be given to the question of what errors committed by an inferior court may amount to jurisdictional errors.

59    In Craig v South Australia (1995) 184 CLR 163, the High Court held that an error that is regarded as jurisdictional if committed by an administrative tribunal will not necessarily be so regarded if committed by a court. The High Court observed at 179 that “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact”. However, in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, the High Court noted at [70] that even if the word “authoritative” was used in the sense of “final”, that left unanswered the question of whether any particular error is open to review. In that context, it was said that the observation that courts decide questions of law “authoritatively” was “at least unhelpful”. The High Court said at [85] that “[s]ome but not all errors of law made by a court will found the grant of relief.” It emphasised at [71] that it is “neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”.

60    More recently, in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1, the plurality at [24] described jurisdictional error as “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”. Their Honours stated at [25] that “jurisdictional error is an expression not simply of the existence of error but of the gravity of that error.” Their Honours, returning to the type of language used in Craig and criticised in Kirk, accepted that the distinction between non-jurisdictional and jurisdictional errors is “between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised.”

61    In Hossain, the plurality at [27] observed that "whether a particular failure to comply with an express or implied statutory condition…is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute." Their Honours went on to say at [29] that it is ordinarily an “implied condition of a statutory conferral of decision-making authority” that a decision-maker “must proceed by reference to correct legal principles, correctly applied". As will be discussed later in these reasons, that statement was qualified by a requirement that ordinarily the error must be material.

62    In Hossain, Edelman J (with whom Nettle J substantially agreed) at [66] considered that Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] set out the broad test for determining whether an implied legislative condition is jurisdictional, asking "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid".

63    An appeal against orders made by a single judge of this Court is by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]. It is necessary for the appellants to demonstrate some legal, factual or discretionary error made by the primary judge: Allesch v Maunz (2000) 203 CLR 172 at [22]; Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. If such error can be demonstrated, the Full Court has a discretion under s 28(1) of the Federal Court of Australia Act 1976 (Cth) to set aside the judgment and order a retrial or make such order as it thinks fit. Unless the appellants can demonstrate, not merely error by the primary judge, but also jurisdictional error on the part of the Tribunal, there may be no utility in setting aside the judgment under appeal. Further, the grant of prerogative relief under s 39B of the Judiciary Act is discretionary: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28]. If prerogative relief would be refused on the basis of lack of utility, the Full Court may decline to set aside the judgment of the primary judge. Since it is the judgment of the Court to which an appeal is directed, an error in the reasons for judgment which does not materially affect the correctness of the judgment itself will not usually justify intervention by an appeal court.

The first, second and third grounds: whether the Federal Circuit Court erred in failing to grant an adjournment

64    The first, second and third grounds of appeal each assert that the Federal Circuit Court judge committed jurisdictional error when refusing to allow the appellants an adjournment.

65    The appellants applied, at the commencement of the hearing before the Federal Circuit Court, for an adjournment in order to seek legal advice. The Minister’s legal representative made submissions in opposition to the application for an adjournment, arguing that the appellants had been given enough time to prepare for the hearing and that their substantive case lacked merit.

66    The trial judge observed that the applications had been filed on 31 July 2017 and that the appellants had been given the contact details of legal services providers at a directions hearing on 20 September 2017. The appellants asserted that they had made contact with the Legal Aid Office about two weeks earlier, but had not been able to obtain an appointment before the hearing. The trial judge refused the adjournment, ruling as follows:

Well, just so that you all understand, in an adjournment application, what is relevant for the court are the – first, of course, the reasons why you want an adjournment and, second, the opportunities that you’ve already had to obtain legal advice and, third, and of particular relevance in this case, the utility in granting any adjournment and what that means is essentially a consideration of the prospects of success of your application. Now, your application before the court presently is for an extension of time to seek judicial review of decisions of the Administrative Appeals Tribunal. Presently, you are out of time by some significant amount.

There is nothing on the face of the tribunal’s decision record – and I haven’t yet heard from you – to suggest that the tribunal’s decision record is affected by a jurisdictional error and, in the absence of any submission by any of you as to how it is or what is the mistake that you say the tribunal made, other than essentially disclosing a disagreement with the conclusion, it is unlikely that your application for an extension of time has sufficient prospects to justify an adjournment and, for that reason, your applications for an adjournment are refused.

(Underlining added.)

67    After refusing the adjournment, the trial judge proceeded to hear and determine the application for an extension of time.

68    It is convenient to begin by considering the third ground of the notice of appeal. The appellants submit that the trial judge denied them procedural fairness by finding that their application for an extension of time had insufficient prospects to justify an adjournment without giving them the opportunity to make submissions about such prospects. They submit that this issue was squarely raised before the primary judge in the second ground of the amended application, but that his Honour failed to address that ground.

69    The ground was raised before the primary judge. It is not referred to in his Honour’s reasons. It can be accepted that his Honour overlooked that ground, and that was an error. The ground may now be considered on its merits in these appeals.

70    The Federal Circuit Court judge expressly acknowledged that the appellants had not yet made submissions as to whether the Tribunal’s decision was affected by jurisdictional error, but then proceeded to find that it was unlikely that their applications for an extension of time had sufficient prospects to justify an adjournment. The respondents had been provided with an opportunity to make oral submissions as to the lack of merit of the substantive application, but the appellants were not. Procedural fairness requires that each party be given a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Annetts v McCann (1990) 170 CLR 596 at 600-601. It was a denial of procedural fairness to deny the appellants the opportunity to make submissions upon their prospects of success before ruling upon their application for an adjournment.

71    In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ held at [58]-[59] that where there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error. However, the more recent judgment of the High Court in Hossain demonstrates that will not invariably be the case. The plurality said at [29] that where a statute confers decision-making authority, “the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours continued:

[30]     Whilst a statute on its proper construction might set a higher or lower threshold of materiality: cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [56] quoting Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [78], or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40, cf Martincevic v Commonwealth (2007) 164 FCR 45 at [67]-[68].

[31]     Thus, as it was put in Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [23], “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(Underlining added.)

72    In Hossain, in a separate judgment, Edelman J also held that jurisdictional error ordinarily requires materiality. His Honour said:

[72]     In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [56], see also Stead v State Government Insurance Commission (1986) 161 CLR 141. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual: DWN042 v Republic v Nauru (2017) 92 ALJR 146 at [21], may be an extreme case of denial of procedural fairness...

73    Justice Nettle, while substantially agreeing with Edelman J, considered at [40] “that there may be a number of circumstances in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome”, including “where respect for the dignity of the individual may mean that a denial of procedural fairness should be regarded as a jurisdictional error regardless of the effect it may have had on the result…”.

74    Section 477(2) of the Act confers upon the Federal Circuit Court the power to grant an applicant an extension of time to seek review of a decision of the Tribunal. There is no reason to construe the provision other than as “incorporating a threshold of materiality in the event of non-compliance”: Hossain at [29]. The requirement of materiality for there to be jurisdictional error applies to a court as much as it does to an administrative decision-maker. Accordingly, a failure by the Federal Circuit Court to afford procedural fairness to a party will not ordinarily be jurisdictional error unless the party was denied the possibility of a successful outcome.

75    In the present case, after refusing the application for an adjournment, the Federal Circuit Court judge went on to consider the applications for extension of time. In that part of the hearing, the appellants were given the opportunity to make submissions as to whether there was any arguable case that the Tribunal had committed jurisdictional error. Her Honour’s reasons record that the appellants had nothing to say. It follows that even if the appellants had been given the opportunity of making submissions upon that issue at a point in time before the trial judge decided the adjournment application, they could not have taken advantage of that opportunity, and the adjournment would still have been refused. Accordingly, the denial of procedural fairness did not deny them the possibility of a favourable outcome.

76    In Hossain, Edelman J referred at [72] to unusual cases where an error is so fundamental that the error can be described as jurisdictional despite its lack of materiality, such as “an extreme case of denial of procedural fairness”. This is not such a case.

77    In Hossain, Edelman J contrasted at [73] the concept of materiality with the residual discretion to refuse relief. His Honour observed at [74] that while the exercise of discretion on the basis of lack of utility may be “forward looking”, materiality looks backwards to whether the error would have made any difference to the result. Accordingly, it is not relevant to the question of whether the Federal Circuit Court committed jurisdictional error to consider whether the appellants would now be in a position to make submissions that might result in a favourable outcome if the matter were re-heard before that Court.

78    As the denial of procedural fairness was immaterial to the outcome of the proceeding before the Federal Circuit Court, the appellants have not established that the error was jurisdictional. Therefore, the error provides no basis for a grant of certiorari or mandamus.

79    I will turn to the appellants’ first and second grounds of appeal. The first ground is that the primary judge erred by failing to find that the trial judge’s refusal of the adjournment was legally unreasonable. The second ground was not separately developed or explained, but appears to be associated with the first ground.

80    The appellants argue that the refusal of an adjournment was legally unreasonable because it caught them in a vicious circle where they could not get an adjournment to seek legal assistance to identify an arguable error because they could not identify an arguable error. They also point out that there was no apparent prejudice to the Minister in an adjournment being granted.

81    While it may be accepted for present purposes that no issue of prejudice was raised by the Minister, that is usually not a determinative factor in an adjournment application and cannot be seen to be so in this case. The appellants’ argument ignores the conclusion apparently reached by the Federal Circuit Court that the appellants had not done enough to obtain legal advice prior to the hearing. Her Honour noted that the application had been filed on 31 July 2017, some three months before the hearing. At a directions hearing on 20 September 2017, the appellants were given the contact details of legal services providers and the hearing was set down for 27 October 2017. The appellants did not approach the Legal Aid Office until two weeks before the hearing, for reasons they did not explain, and were unable to get an appointment before the hearing.

82    The primary judge found that it was open to the trial judge to conclude that the appellants ought to have done more to obtain legal advice prior to the hearing. I respectfully agree.

83    In circumstances where the appellants sought an adjournment of the hearing for the purpose of obtaining legal advice, the adequacy of their attempts to obtain such advice prior to the hearing was plainly relevant. An adjournment is not granted merely for the asking. Wider issues are in play, even if they were not expressly referred to by the trial judge. As Toohey and Gaudron JJ observed in Sali v SPC Ltd (1993) 67 ALJR 841 at 636:

The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.

84    The trial judge must have been conscious that if an adjournment was granted, the time set aside for the hearing would be wasted and another hearing date would have to be found. The Minister had engaged a legal representative for the hearing and was ready to proceed. It is true that allowance must be made for the disadvantages faced by self-represented applicants, particularly those whose first language is not English. However, in circumstances where the appellants had adequate time to seek legal advice, but had delayed in doing so for reasons they did not explain, it was open to the trial judge to give little weight to the mere possibility that they might find an arguable ground.

85    The trial judge’s decision to refuse the adjournment did not lack an evident or intelligible justification, nor was it a decision that no reasonable decision-maker could have made: c.f. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [105].

86    For these reasons, the appellants’ first, second and third grounds cannot succeed.

The fourth and fifth grounds: whether the Federal Circuit Court erred in not addressing clearly apparent arguable jurisdictional errors in the Tribunal’s decision

87    The Federal Circuit Court judge found that there was no jurisdictional error apparent on the face of the Tribunal’s decision record or in the Tribunal’s conduct of the review. The appellants’ fourth and fifth grounds assert that her Honour overlooked two arguable jurisdictional errors that were apparent or obvious from the Tribunal’s decision record.

88    The fourth and fifth grounds also assert that her Honour failed to appreciate that the reason for the delay in the appellants filing their application was that the matter had been referred by the Tribunal, rather than the appellants, to the Minister, and it had taken over three years to decide the intervention request. That aspect of the fourth and fifth grounds substantially overlaps with, and is best considered as part of, the sixth ground.

89    The first apparent or obvious error alleged by the appellants is that the Tribunal wrongly concluded that the hardship the appellants would face upon return to Fiji was not due to a Convention reason. The appellants argue that the continuing hardship they would face on their return to Fiji was a direct result of the persecutory acts which the Tribunal accepted had occurred in the past, namely the driving of the appellants off their land. They submit that it was illogical for the Tribunal to reason that there was no Convention nexus for the hardship they would face on their return to Fiji since the appellants only faced that hardship because of the persecutory acts of the villagers in the past.

90    The second apparent or obvious error alleged by the appellants is that the Tribunal failed to determine whether it would be reasonable for them to relocate from their village to elsewhere in Fiji. They argue, relying on CRI028 v Republic of Nauru (2018) 92 ALJR 568 at [25]-[26], that as the Tribunal found that the appellants would not return to their former village, it was necessary for the Tribunal to consider whether it was reasonable for them to relocate to another area of Fiji.

91    The appellants submit that these errors were at least arguable and were clearly apparent on the face of the Tribunal’s decision record.

92    There are three premises inherent in the appellants’ fourth and fifth grounds. They are that: first, the Tribunal arguably made the asserted errors; second, such arguable errors should have been apparent or obvious to the Federal Circuit Court judge; and, third, her Honour’s failure to detect these arguable errors was a denial of natural justice.

93    The proceedings before the Federal Circuit Court were adversarial in nature. In those proceedings, the appellants did not rely upon or identify the errors now said to have been made by the Tribunal. Apart from merely citing the tentatively expressed dicta of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [76] and in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [19]-[20], the appellants’ submissions in the appeals have not explained why any failure by the trial judge to detect any apparent or obvious arguable error in the Tribunal’s decision is jurisdictional error. In the absence of any argument upon the issue, I will proceed upon an assumption, without expressing any opinion upon the issue, that such a failure might be jurisdictional error.

94    On that assumption, the appellants’ assertion that the Federal Circuit Court overlooked “apparent”, “obvious” or “clear” arguable jurisdictional errors by the Tribunal may be examined. The only grounds of error raised by the appellants before the trial judge were that, firstly, the Tribunal failed to consider their significant physical and ill-treatment and denial of capacity to earn a livelihood, and, secondly, the Tribunal erred by failing, based on the information before it and contrary to the Migration Act, to recognise the appellants as refugees. The grounds were not particularised and the appellants did not elaborate upon them in their submissions. Accordingly, the trial judge was left to determine whether there was an arguable case of jurisdictional error on the basis of the grounds as articulated and her Honour’s own examination of the Tribunal’s reasons.

95    In determining the application for extension of time, the trial judge was only required to consider the merits of the proposed grounds at “a reasonably impressionistic level” and was not required to conduct “a de-facto full hearing”: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at [21], [38]. The arguable errors the appellants now attribute to the Tribunal require close examination and analysis of the material before the Tribunal and the Tribunal’s reasons for their identification. For example, the appellants argue that the Tribunal found that the appellants were unable to return to their village for fear of persecution when it is not apparent that it did make such a finding. Another example is that the appellants submit that they would only face economic hardship in Fiji because of the past acts of persecution when that is not apparent in circumstances where their home was destroyed by a cyclone and their lease was not renewed for a non-Convention reason. It would be far from apparent, obvious or clear to the trial judge considering the merits at a reasonably impressionistic level that the Tribunal made arguable jurisdictional errors of the kind identified by the appellants.

96    The trial judge made no error by failing to discern the errors on the part of the Tribunal now alleged by the appellants to be arguable.

97    This conclusion makes it unnecessary to consider whether there was in fact an arguable case of jurisdictional error by the Tribunal in failing to consider the question of relocation and failing to recognise that the appellants’ economic hardship resulted from their past persecution. Although the primary judge did consider the merits of the relocation ground, his Honour recognised that it was not necessary for him to do so in order to determine the case. While I would not necessarily concur with his Honour’s opinion that the Tribunal made findings that the appellants could return to their village and there was no more than a remote chance that they would be subjected to significant or serious harm there, it is unnecessary to reach any conclusion upon that matter.

98    The fourth and fifth grounds of appeal cannot succeed.

The sixth ground: whether the Federal Circuit Court committed jurisdictional error by finding that the appellants’ reason for their delay was that they had applied for Ministerial intervention

99    The appellants’ sixth ground of appeal asserts that the primary judge erred in failing to conclude that the trial judge erred by finding that the reason for their delay in applying for review of the Tribunal’s decision was that they had applied for Ministerial intervention. The ground asserts that there was no probative evidence to support this finding and the decision was therefore legally unreasonable.

100    The trial judge stated that the appellants’ reason for the delay was that “they sought Ministerial intervention in respect of which they were not informed of the outcome until 13 July 2017”. In fact, it was the Tribunal that had referred the appellants’ case for consideration for Ministerial intervention. The appellants had not sought such intervention.

101    The primary judge accepted that the trial judge had proceeded under a misapprehension that it was the appellants’ decision to seek Ministerial intervention in lieu of pursuing judicial review. However, his Honour found that the primary judge had made an error of fact, not a jurisdictional error.

102    The authority of the Federal Circuit Court to hear and decide the application encompassed the making of errors of fact (other than errors of jurisdictional fact): see Craig at 179; R v The District Court of the Metropolitan District Holden at Sydney (1966) 116 CLR 644 at 650–651, 653, 654–655. While an error of law may constitute a jurisdictional error, there is no error of law in simply making an error of fact: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77. The application for certiorari and mandamus depended upon the appellants establishing jurisdictional error. The trial judge’s error of fact was not jurisdictional error and the primary judge was correct to so find.

103    In the appeals, the appellants also submit that the trial judge “did not take into account a clearly articulated matter based on established facts”. The relevant “matter” was alleged to be that the reason for the delay was there had been a referral to a Minister by the Tribunal, rather than the appellants, and the Minister had then delayed in deciding the referral. The submission relies upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321, where Gummow and Callinan JJ said at [24]:

To fail to respond to substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

104    However, the trial judge did respond to and deal with the argument made by the appellants as to why their explanation for the delay justified an extension of time. In the course of dealing with the argument, her Honour misunderstood a relevant fact. However, as her Honour dealt with, and did not overlook, the argument, it was not a denial of natural justice of the type described in Dranichnikov.

105    Accordingly, the sixth ground of appeal must be rejected.

Conclusion

106    For the reasons I have given, the appeals cannot succeed.

107    The trial judge made a clear and significant error of fact. However, that error is not able to be corrected by this Court. The attention of the Minister should be drawn to the circumstances of the case.

108    The appeals must be dismissed with costs.

Associate:    

Dated:    8 February 2019

REASONS FOR JUDGMENT

BROMWICH J:

109    I agree, for the reasons Rangiah J has given, that these appeals should be dismissed.

Associate:    

Dated:    8 February 2019