FEDERAL COURT OF AUSTRALIA

SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The costs of the second respondent of and incidental to this appeal be paid by the appellant.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of a Judge of this Court in the migration jurisdiction. The procedural history of the matter prior to it coming before her Honour at first instance is somewhat complicated, and can best be summarised as follows:

(1)    In the Refugee Review Tribunal (“the Tribunal”) the appellant sought review of a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant him a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal dismissed that application.

(2)    The appellant sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia, however as the application was filed some 245 days after the decision of the Tribunal, the appellant required an order extending the 35 day period prescribed by s 477(1) of the Migration Act for the making of the application pursuant to s 477(2) of the Migration Act.

(3)    The application to the Federal Circuit Court for review of the decision of the Tribunal included three grounds, namely that the Tribunal:

i.    … made a mistake that it did not consider that the applicant would suffer harm if he returns to Fiji despite the fact that it accepted the applicant’s fear for persecution in Fiji …;

ii.    … failed to provide the applicant the reason or parts of the reason which it considered to reject the applicant’s review application. The Tribunal did not give any opportunity to the applicant to satisfy the Tribunal on its observations which were drawn against the applicant’s genuine claim for protection in Australia.

iii.    … failed to comply with the Migration Act 1958. The Tribunal accepted the applicant’s claim in a way that it can reject the claim. The Tribunal’s grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to part 7 of the Act 1958. The Tribunal used excessive power to reject the applicant’s review application. The Tribunal did not act according to substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for fear for his life. The Tribunal made procedural mistakes.

(Errors in original.)

(4)    The Federal Circuit Court refused to make the order sought by the appellant pursuant to s 477(2) and dismissed the application with costs.

(5)    The appellant then sought judicial review of the decision of the Federal Circuit Court in the Federal Court of Australia, in the form of orders of prohibition, certiorari and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth). The basis of this application was set out in the appellant’s affidavit dated 27 August 2014. Materially, this provided:

i.    The First Respondent decided that the grounds on which I sought to challenge the validity of the Tribunal Decision (if I were to have been granted an extension of time in order to commence judicial review proceedings to this effect) were without merit and dismissed my application to extend time under s 477 of the Migration Act 1958 (Cth) for that reason, and for no other reason ...

ii.    I am now advised that my second ground of review should have been fairly understood as being a challenge to the validity of the Tribunal Decision on the basis that the Tribunal failed to comply with the requirement under s 424A of the Migration Act 1958 (Cth).

iii.    The First Respondent concluded that “[t]o the extent that the Tribunal relied on country information, it was not obliged to provide that information to the applicant under s 424A of the Act because it is information of the sort described in s 424A(3)(a) of the Act, namely, information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.” ...

iv.    At paragraph 66 of the statement of reasons given by the Tribunal for the Tribunal Decision … the Tribunal refers to a report published on the internet on 13 January 2012 by the Sydney Morning Herald newspaper, concerning, in part, the opinion of a person described as “Vijay”.

v.    This report is “information specifically about another person” within the meaning of s 424A(3)(a) of the Migration Act 1958 (Cth) …

vi.    The import of the opinion of Vijay is that the situation in Fiji for Fijian Indians is better since Commodore Frank Bainimarama assumed the office of Prime Minister of Fiji in 2006, and implicitly, that the risk of harm for such persons has subsided or is subsiding.

vii.    In paragraph 77 of the Tribunal Reasons the Tribunal states that a reason for the Tribunal Decision includes that since 2011, for whatever reason, the level of risk of harm to the applicant had subsided.

viii.    The statement in paragraph 77 of the Tribunal Reasons reveals that a reason for affirming the decision that was under review was that the risk of harm to the applicant, as a result of being a Fijian Indian, had subsided for whatever reason.

ix.    The opinion of “Vijay” is consistent with what was a reason for which the Tribunal affirmed the decision under review.

x.    The Tribunal did not give the applicant clear particulars of this information, being the opinion of “Vijay”.

xi.    The Tribunal did not ensure, as far as was reasonably practicable, that the applicant understood why the information, being the opinion of “Vijay”, was relevant to the review.

xii.    The Tribunal did not invite the applicant to comment on or respond to the information, being the opinion of “Vijay”.

xiii.    The Tribunal was not relieved from the requirement to comply with s 424A by having complied with s 424AA, in relation to this information, being the opinion of “Vijay”.

(6)    The application in the Federal Court was also dismissed with costs. It is this decision which is the subject of the present appeal.

2    When the appeal came before this Court, Counsel for the appellant sought an adjournment on the basis that Counsel (and his instructing solicitors) had been appointed to represent the appellant only two days prior to the hearing. This application was opposed by the Minister. The Court dismissed the application for an adjournment, however made directions for the filing of supplementary submissions by both parties, and indicated that either party could seek the leave of the Court to have the matter return for further oral hearing if necessary. In the circumstances no further submissions have been filed by either party.

3    In his notice of appeal filed 25 March 2015 the appellant claimed, in summary, that the primary Judge erred in failing to find that the decision of the Federal Circuit Judge exhibited the following jurisdictional errors:

    In circumstances where a key factor for consideration in determining whether to order an extension of time pursuant to s 477(2) is the prospect of success of the application – that the appellant’s application for judicial review had no prospect of success.

    That the Tribunal was not obliged to provide information under s 424A of the Migration Act in relation to a newspaper article published in The Sydney Morning Herald on 13 January 2012 concerning the opinion of a person described as “Vijay”, such findings being made on the basis that that information was information of the type described in s 424A(3).

4    The appellant also sought to add an additional ground of appeal, namely that her Honour erred in failing to quash the decision of the Federal Circuit Court on the basis of an error of law apparent on the face of the record.

Decision of the primary Judge

5    In dismissing the application for judicial review the primary Judge made, in summary, the following findings:

    Section 477(2)(b) imposes an express precondition to the exercise of discretion, namely that the extension of time is necessary in the interests of the administration of justice. The statutory precondition is to be formed to the satisfaction of the Federal Circuit Court. Relevant factors for the Court to take into consideration in deciding whether to exercise the discretion include whether there is a reasonable and adequate explanation for the delay, the length of the delay, prejudice to other parties and the merits of the applicant’s underlying case in terms of its arguability (at [2]-[3]).

    The Federal Circuit Court found that the reasons for delay tendered by the appellant were not adequate (at [4]).

    There was no suggestion that the Federal Circuit Court misstated the relevant principles in this case. The Federal Circuit Court Judge focused his reasons on considering whether there was merit in any of the three nominated grounds of review in the application before him (at [5]).

    The Federal Circuit Court concluded that there was no merit in any of those grounds (at [6]).

6    Her Honour observed:

[9]    The applicant focuses in his submissions in this Court on what is said to be a failure by the Federal Circuit Court to find there was a denial of procedural fairness by the Tribunal in relation to a breach of the Tribunal’s obligations under s424A of the Migration Act. Some time in the applicant’s oral and written submissions is spent developing this argument. The argument is based on the Tribunal’s reliance on an article published in the Sydney Morning Herald, to which the Tribunal referred twice in its reasons. The article concerned an Indo-Indian Fijian, identified as Vijay, and his views and experiences of the situation in Fiji for Indo-Fijians after the 2006 coup. The applicants seeks to characterise this article as “information” not caught by the exclusions in s 424A(3). In my opinion, it is unnecessary to consider the merits of the applicant’s argument about s 424A and the Tribunal’s use of this article.

[10]    The invitation to this Court to do so misconceives the supervisory jurisdiction of this Court over the Federal Circuit Court under the Judiciary Act. However, even if I am wrong in that view, I would accept the Minister’s submissions at paragraph 17 of his written submissions that the article is not properly characterised as information “specifically about … another person” within the meaning of that phrase in s 424A(3)(a). I would accept the Minister’s submission that the article is excluded by the terms of that provision from the Tribunal’s obligations under subs (1) of s 424A. Just because it is an opinion about a country situation expressed by an identifiable individual does not take it outside the exclusion, in my opinion.

7    Her Honour referred to authorities including Craig v South Australia (1995) 184 CLR 163, and noted the distinction between circumstances where an inferior court will exercise its jurisdiction, and circumstances where an inferior court makes errors which are properly addressed by way of appeal from the decision of that Court. Her Honour observed at [13]:

In my opinion, this distinction reflects one of the difficulties the applicant faces on this application. That is because what he seeks, in my opinion, is best described as relief in the nature of an appeal …

8    Further, her Honour found at [14] that, on the authority of Craig v South Australia, the reasons of an inferior court do not form part of “the record” for the purposes of review. Her Honour continued:

[15]    The manner in which the Federal Circuit Court exercises its discretionary power under s 477 of the Migration Act will not result in an excess or want of jurisdiction unless, relevantly, its reasons disclose the kind of misapprehension or misunderstanding set out in Craig. I do not accept the applicant’s submissions that the Federal Circuit Court’s reasons disclose a “denial of jurisdiction” as the applicant expressed it in his submissions.

[16]    The Federal Circuit Court evaluated the grounds as expressed on the material available to it, and it is clear, in my opinion, on its reasons, that there was no error or misunderstanding in the sense explained in Craig. If anything, the argument now developed could not reasonably have been appreciated by the learned Federal Circuit Court judge as being put on behalf of the applicant. The applicant, in substance, contends the Federal Circuit Court was wrong to say the judicial review application had no arguable grounds, because there was an arguable basis for saying there was a breach of s 424A. That, in my opinion, is a quarrel with the view formed by the learned Federal Circuit Court judge appropriately instructed as to the law and within his jurisdiction, and it does not itself disclose error.

9    Her Honour noted that, in the Federal Court, the appellant pressed a ground which equated with ground 3 before the Federal Circuit Court, being a generalised allegation of a denial of procedural fairness. Her Honour said:

[18]    In my opinion, there is no basis for the applicant’s contention the Federal Circuit Court should have been alive to a possible breach of s 424A in the way now articulated. The applicant’s second ground of review, which expressly referred to s 424A, and is dealt with at paragraph 18 of the Federal Circuit Court’s reasons, is not relied on by the applicant in this proceeding.

[19]    In no way did that second ground of review raise the argument now put, and the Federal Circuit Court dealt with what that ground did raise without any error, in my opinion …

10    Her Honour concluded in respect of the exercise by the Federal Circuit Court of its discretion under s 477 of the Migration Act:

[21]    …No misunderstanding of applicable principles is apparent; the exercise of discretion by the Federal Circuit Court is not legally unreasonable; there is no misapplication of the principles articulated and there is no irrationality in its reasoning process. There is no denial of procedural fairness to the applicant in the Federal Circuit Court because there was no failure to consider a ground of review plainly raised on the material before it.

Consideration

11    The Federal Circuit Court at [26] of that decision found that an extension of time would not be granted pursuant to s 477(2) of the Migration Act because the application in that Court had no merit. Counsel for the appellant submitted, in summary, that any error in respect of the formation of the state of mind of the Federal Circuit Court Judge in refusing to exercise his discretion in the applicant’s favour must be a jurisdictional error. The issue in respect of which the appellant claimed the Federal Circuit Court Judge erred in refusing to exercise his discretion under s 477(2) of the Migration Act related to the claimed failure of the Tribunal to put to the appellant the “Vijay” material in the newspaper story in The Sydney Morning Herald. Before her Honour, the appellant claimed that this issue had been put to the Federal Circuit Court Judge in the third ground of review before his Honour, in that that ground of review included the claim that “The Tribunal was not fair and just according to part 7 of the Act 1958”.

12    It is in our view dubious that the material in The Sydney Morning Herald article was anything other than country information as found by her Honour, and to that extent within the parameters of s 424A(3). Further, it is similarly dubious that any error of the Federal Circuit Court Judge in considering the third ground of review before him was a jurisdictional error, as distinct from an error which would properly have been the subject of an appeal. In this case, however, as her Honour has correctly pointed out in the decision the subject of this appeal (in particular at [18]-[19]), the alleged breach of the Tribunal of s 424A of the Migration Act in respect of the “Vijay opinion” was never raised with the Federal Circuit Court Judge as forming the basis of a ground of judicial review of the Tribunal’s decision. We agree with the view taken by her Honour that the cursory and general reference to “part 7 of the Act 1958” in the third ground of review before the Federal Circuit Court was both inadequate and ineffective to enliven the issue concerning the “Vijay opinion” or the application of s 424A(1) of the Migration Act in the proceedings before the Federal Circuit Court. It certainly could not be said to raise breach of s 424A of the Migration Act, much less the specific facts concerning the “Vijay opinion” to which the appellant’s application for review of the Federal Circuit Court decision before her Honour was referable. To that extent, it cannot be said that the decision of the Federal Circuit Court was infected by error, jurisdictional or otherwise. Certainly her Honour’s decision in respect of this issue exhibits no appealable error.

13    Further, we note the submissions of the appellant that her Honour erred in the application of the principles discussed in Craig v South Australia, and in respect of her view that the reasons for decision of the Federal Circuit Court did not form part of the “record”. Specifically, her Honour said:

[14]    I note that certiorari is available for error of law within jurisdiction on the face of the record (see Wingfoot Australia Partners Proprietary Limited v Kocak (2013) 303 ALR 64; [2013] HCA 43). No argument was developed by the applicant about this ground, the explanation given being the fact that certiorari is not expressly available under s 75(v) of the Constitution and, therefore, cannot be sought alone under the Judiciary Act. Whether that submission is correct or not – and I say nothing about that issue – I do accept the Minister’s submission that this argument, even if raised by the applicant, would fail on current authority because Craig establishes the record does not include the reasons of an inferior court. I accept the submission there is no relevant statutory modification to what constitutes the record, unlike the circumstances in Wingfoot. Ultimately, as I have noted, in any event the applicant did not rely on any such error within jurisdiction.

14    In Craig v South Australia the High Court observed, relevantly, as follows:

[18]    The fact that the transcript of proceedings and reasons for decision do not, of themselves, constitute part of “the record” does not preclude incorporation of them by reference. That was recognized in Public Service Board of NSW v Osmond where Gibbs CJ, in a judgment which represented the judgment of the Court, referred to “the rule, well established at common law ... that reasons do not form part of the record, for the purposes of certiorari”, and added the qualification “unless the tribunal chooses to incorporate them”. As Gibbs CJ indicated, that qualification can be traced to the judgment of Denning LJ in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw. It has also been accepted in other judgments in this Court. As so accepted, however, it should not be understood as having the effect that a merely introductory or incidental reference to the reasons for decision produces the consequence that the whole or part of the reasons somehow become part of both the formal order and “the record” of the particular court. As Mahoney JA has pointed out, such a result would mean the question of what constitutes “the record” would “be determined by accidents of whether particular words were used in the judgment of the body concerned”. The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and “the record”. If, for example, the formal order incorporates undertakings given by a party “as set out in” a particular designated document or is said to be made “in terms of proposed orders set out in the reasons for judgment”, the order and the record will incorporate only those parts of the particular document or the reasons for judgment which set out, qualify or otherwise affect the content of those undertakings or proposed orders. Conversely, a merely introductory or incidental reference will not suffice to incorporate, in either the formal order or the record, reasons given for making the formal order which do not in fact constitute part of it. Thus, for example, an introductory remark such as the phrase “for the reasons given” or the word “accordingly” will not, of itself, have the effect of incorporating the whole or any part of the reasons for decision in either the formal order or “the record”.

[19]    The determination of the precise documents which constitute “the record” of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that “(o)rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication”. Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record.

[Footnotes omitted.]

15    The issue received further consideration by the High Court in Kirk v Industrial Relations Commission (2010) 262 ALR 569. In that case the Court noted that ordinarily the conclusion that jurisdictional error is shown makes consideration of whether there is an error of law on the face of the record superfluous, but there is continued utility in maintaining the distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error for constitutional reasons ([78], [80]). Their Honours noted further that:

    Traditionally the reasons do not form part of the record for administrative law purposes unless the tribunal giving them chooses to incorporate its reasons (at [83], see Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667).

    In Craig the High Court rejected a more expansive approach to certiorari which would include both the reasons for decision and the complete transcript of proceedings in the “modern record” of an inferior court (at [84]).

    This general position may be modified by legislative intervention (at [88]).

    No application had been made in that case for the High Court to reconsider its decision in Craig (at [85).

16    This Court is bound by the decisions of the High Court in Craig and Kirk. The position as to what constitutes “the record” of the Federal Circuit Court of Australia in this case has not been modified by statute in the terms explained by the High Court at Kirk at [88]. No appealable error is apparent in her Honour’s consideration of relevant legal principles in this respect.

17    In our view this is sufficient to dispose of the appeal. The appropriate order is to dismiss the appeal, with costs.

Associate:

Dated:    7 September 2015