FEDERAL COURT OF AUSTRALIA

SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to: “Administrative Appeals Tribunal”.

2.    The appellant’s application to amend his notice of appeal be refused.    

3.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

LOGAN J

1    I shall ask Robertson J to deliver the first judgment.

robertson j

Introduction

2    This appeal is from the judgment and orders of a judge of this Court (the primary judge) given and made on 17 July 2015 dismissing an application for judicial review of a decision of the Federal Circuit Court of Australia made on 12 August 2014. That application for judicial review was brought in the High Court of Australia, but remitted to the Federal Court under s 44 of the Judiciary Act 1903 (Cth).

3    The decision of the Federal Circuit Court was made under s 477(2) of the Migration Act 1958 (Cth). Section 477 relevantly provides as follows:

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.

…

4    In what follows, I shall refer to the visa applicant as the appellant.

The decision of the Federal Circuit Court

5    The judge of the Federal Circuit Court noted the facts as summarised by the Tribunal as follows.

6    The appellant is a citizen of Afghanistan who arrived at Christmas Island by boat on 18 July 2012. On 15 January 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Afghanistan. On 11 March 2013 the appellant’s application was refused by a delegate of the Minister. The appellant then applied to the Refugee Review Tribunal (the Tribunal) for a review of that departmental decision and was unsuccessful in that review.

7    On 19 August 2013 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s 477 of the Migration Act and the appellant applied for an extension of that limitation period.

8    The appellant relevantly made the following claims in a statement attached to his protection visa application:

(a)    his parents had rented a house in a complex in Kabul which was owned by a Pashtun man. In April 2012, upon returning from work, he was told by his neighbours not to go to his home as Afghan authorities had raided his housing complex and found bombs for use in suicide attacks. His neighbours did not know where his family was so he fled to the house of his father’s friend who then helped him to flee Afghanistan;

(b)    he would be detained and mistreated by the Afghan authorities because they believed that either he or his family were involved in plotting suicide attacks or he would be harmed by his Pashtun landlord and his affiliates as he (the landlord) believed that either he or his family reported the location of the bombs to the Afghan authorities; and

(c)    he did not know if his Pashtun landlord had connections to the Taliban but the fact that he had been planning suicide attacks suggested that he had some connection to Afghan insurgent groups.

9    After discussing the claims made by the appellant and the evidence before it, the Tribunal found that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the The Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 or pursuant to s 36(2)(aa) of the Migration Act. The Tribunal’s decision was based on the following findings and reasons:

a)    while the Tribunal accepted that the [appellant] was a Hazara Shi’a who had spent most of his life in Kabul, Afghanistan, it did not accept that he was a member of the group “unaccompanied Afghan minors” as it found that he was eighteen years old at the time of its hearing and would not be unaccompanied were he to return to Afghanistan because it did not accept that his parents had disappeared or fled from Afghanistan;

b)    the Tribunal found that the [appellant] was not truthful as to the reasons which led him to flee Afghanistan and that his testimony was internally inconsistent, implausible and amounted to a fabrication which in turn undermined his credibility. While it accepted that the [appellant]’s family had rented from a Pashtun landlord, it did not accept that the [appellant] had faced the difficulties he claimed to have faced, such as the existence of explosives in his home, that he had fled to a family friend’s house and then from Afghanistan because of the discovery of those explosives, or that his family had also fled because of those explosives. …

c)    the Tribunal did not accept the [appellant]’s claims that he had not understood the Hazaragi interpreter who had assisted him at his interview with the delegate and that the interpreter had not understood him and only interpreted half of what he had said. In this regard, the Tribunal accepted that there had been some discussion at the interview that the interpreter was not accredited but referred to the [appellant]’s agreement at the start of that interview that he could understand the interpreter, to his representative’s statement at the interview that the [appellant] had indicated to her that he could understand the interpreter and had been able to communicate effectively and to his lack of objection to the interpretation throughout the interview;

d)    in making its adverse credibility findings, the Tribunal considered the submission of the [appellant]’s representative at the end of its hearing that the [appellant]’s mental state was “not flash” but, having listened to the delegate’s interview and having read the [appellant]’s statutory declaration, it was not satisfied that the [appellant]’s mental state impacted his ability to give evidence to the Department or to it;

e)    it did not accept that the [appellant] would face harm as a member of the particular social group “children and young people of Afghanistan” were he to return to Afghanistan. In particular, it did not accept the [appellant]’s claim at the hearing that he would be forced to work day and night and become a dancing boy, implying that he would be sexually exploited despite his age;

f)    the Tribunal was not satisfied that there was any real chance in the reasonably foreseeable future that the [appellant] would be killed, physically harmed or persecuted in Afghanistan by the Taliban or any other group or person by reason of his race, religion, imputed political opinion or for any other reason. In this connection:

i)    whilst the Tribunal accepted that Kabul was not entirely insulated from violence and accepted that there had been some attacks in Kabul, it referred to country information which pointed to a “situation of safety” for Hazaras in the city. It considered that no truthful evidence had been submitted by the [appellant] that he or his family had in any way been targeted in such attacks during his time living in Kabul;

ii)    it accepted that there had been some violence against Shi’a Muslims in Afghanistan but found that Shi’as were generally free to perform their traditional religious practices in Kabul without incident; and

iii)    the Tribunal noted the [appellant]’s claims at its hearing that all policemen were robbers and thieves, that Hazaras were degraded and that the Taliban could do what they please if they caught a Hazara. It also noted his claim that if he was caught by the government his only option would be to do what the police wanted. However, the Tribunal considered that the country information indicated that Kabul was a relatively secure place, that there were large numbers of trained army personnel and that Shi’a Hazaras were relatively safe from persecution.

g)    referring to country information, the Tribunal was not satisfied that the [appellant] would face a real chance of persecution by the Taliban or by anyone else for being a failed asylum seeker returning to Afghanistan from a western country, by reason of being perceived as a spy or by reason of an imputed political opinion;

h)    it did not accept that the [appellant] would be uniquely vulnerable because of his youth, his lack of personal and social connections in Afghanistan or at risk as a perceived opponent as it considered that he did have social connections through his family and it did not accept that a bomb had been found at his home;

i)    while the Tribunal accepted that, despite certain improvements, Hazaras continued to face some discrimination in the areas of accommodation and employment, the Tribunal did not accept that this had been the situation for the [appellant] and his family or would be the case in the future. It found that the [appellant] would be able to work and did not accept that he would be denied an education. It also thought the chance remote that the [appellant] would, for any Convention reason, be denied access or accommodation or that as a Shi’a Hazara in Kabul he would suffer significant economic hardship threatening his capacity to subsist. It further found that poor though the standard of health care services were in Afghanistan, that did not itself amount to persecution and, in any event, the [appellant] would not be denied access to basic services such as to amount to persecution; and

j)    the Tribunal referred to the [appellant]’s claim in his statement that he had been subjected to verbal abuse because of his Hazara ethnicity and that when he worked in a car repair shop he had been denied opportunities for career advancement. While the Tribunal was willing to accept that the [appellant] may have suffered some harassment and insults from people of other ethnicities, it was not satisfied, on the [appellant]’s evidence, that he had suffered treatment such as to constitute serious harm or persecution. It also accepted that the [appellant] might face some harassment or insults in the future but was not satisfied that this treatment would amount to serious harm.

10    The Federal Circuit Court then turned to the extension of time application and to the two questions posed by s 477(2) of the Migration Act.

11    As to the first of these questions, the judge of the Federal Circuit Court said the appellant made an application in writing for an extension of time by including such a request in his application commencing the proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. The initial criteria for the granting of an extension of time had therefore been satisfied.

12    As to the second of these questions, whether it was in the interests of the administration of justice to extend the time for the filing of the application commencing the proceedings, the judge of the Federal Circuit Court said the Court was not confined in the issues which it may consider relevant to its determination of that question. In the present case, relevant considerations were whether the appellant had provided a satisfactory explanation for his delay in commencing the proceedings and whether the proceedings as a whole had a reasonable prospect of success, noting that a matter which did not have such prospects was liable to be dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

13    The judge of the Federal Circuit Court said the appellant had filed an affidavit which set out certain practical difficulties he encountered in the filing of his initiating process. The judge was satisfied that the appellant’s explanation for the delay in commencing the proceedings was a satisfactory one. The judge also noted that the Minister did not oppose an extension of time.

14    The judge of the Federal Circuit Court then considered what he described as the reasonable prospects of success of the judicial review application and said that before the Court would conclude that it was in the interests of the administration of justice to extend the time within which to bring the proceedings, the appellant must demonstrate that he had reasonable prospects of proving that the Tribunal’s decision on his visa application was affected by jurisdictional error. The judge of the Federal Circuit Court concluded that the appellant had not done so. Having reviewed the grounds for judicial review of the decision of the Tribunal and the Tribunal’s reasons, the judge of the Federal Circuit Court said he was not persuaded that there was any basis to find that the Tribunal’s decision was affected by jurisdictional error. Consequently, the substantive proceedings had no reasonable prospects of success. In such circumstances, and notwithstanding that the judge of the Federal Circuit Court had found that the appellant had supplied a satisfactory explanation for his delay in filing his initiating application, the judge of the Federal Circuit Court concluded that it was not in the interests of the administration of justice to extend time to bring the proceedings. Consequently, the appellant’s application for an extension of time was dismissed.

The reasons of the primary judge

15    It is to be recalled that the application to the Federal Court was for judicial review of the judgment of the Federal Circuit Court.

16    Having set out the background, the judge of the Federal Court, the primary judge, said, at [20], that neither the present appellant, nor the Minister, advanced any submissions on the application in relation to the correctness or otherwise of the Federal Circuit Court judge’s consideration of the merits of the present appellant’s case that the Tribunal had erred jurisdictionally. The primary judge said it was also difficult to give any detailed consideration to that aspect of the Federal Circuit Court’s disposition of the matter given that neither the Tribunal’s decision and reasons, nor the material that was before the Federal Circuit Court, was in evidence before the primary judge.

17    At [24], the primary judge said that, importantly, both of the present appellant’s grounds turned largely on arguments based on the Tribunal’s reasons and the proper construction of s 36 of the Migration Act. It was not suggested that the appellant could or would lead any further evidence in support of his application, or put any further material before the court, if his extension application was granted.

18    At [25], the primary judge said it could be readily inferred that the appellant had every opportunity to fully argue these grounds of his application when the matter was heard in the Federal Circuit Court. The appellant was represented by solicitor and counsel at the hearing. He filed detailed written submissions and counsel made oral submissions in support of his case. It was not contended by the appellant that the Federal Circuit Court judge dealt with his grounds in a summary or shorthand fashion given that the Federal Circuit Court judge was considering the grounds in the context of an application for an extension of time. Indeed, one of the points made by the appellant on the application before the primary judge in the Federal Court was that the Federal Circuit Court judge addressed and determined his grounds of challenge to the Tribunal’s decision effectively on a final basis. The appellant contended that the judge of the Federal Circuit Court did not correctly address the question of whether, for the purposes of the extension application, the appellant’s grounds were reasonably arguable, or whether the appellant had reasonable prospects of success.

19    At [26], the primary judge noted that the appellant did not contend on the application before the primary judge in the Federal Court that the Federal Circuit Court judge erred in his consideration and rejection of the two grounds of review of the Tribunal’s decision and reasons. The appellant explained this on the basis that, by reason of s 476A(3)(a) of the Migration Act, he could not bring an appeal in this Court from the judgment of the Federal Circuit Court refusing to make an order under s 477(2) of the Migration Act. The appellant submitted, on this basis, that he could not attack the Federal Circuit Court judge’s reasons for finding that the grounds of his substantive application had no merit. Rather, the appellant’s challenge to the Federal Circuit Court judge’s judgment focused exclusively on the manner in which the Federal Circuit Court judge dealt with the extension application, particularly in light of the fact that the Minister did not oppose the extension application.

20    At [27], the primary judge noted that the Minister did not submit that the grounds relied on before the Federal Circuit Court judge were hopeless or not reasonably arguable. That was consistent with the approach taken by the Minister in the Federal Circuit Court. The Minister maintained, however, that despite his non-opposition to the extension application, the Federal Circuit Court did not err in the exercise of its jurisdiction under s 477(2) of the Migration Act when it dismissed the application.

21    At [51]-[53], the primary judge said that the manner in which the extension application was dealt with by the Federal Circuit Court judge was, in all the circumstances, less than satisfactory. It did not, however, necessarily follow that the appellant was denied procedural fairness. The critical question, in short, was whether as a result of the procedural deficiencies there was any “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38]. The primary judge said that the problem with the hearing in the Federal Circuit Court was the product of a combination of factors. The extension application was set down for hearing at the same time as the substantive application. That was in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this was done, however, it was important for the court and the parties to proceed in a way that made it clear whether the leave or the extension application remained a live issue. In particular, care should usually be taken to ensure that issues that arose in relation to the leave or extension application were dealt with separately and distinctly from the issues that arose on the substantive application. That did not occur here, the primary judge said. Indeed, the primary judge said, having regard to the way the matter proceeded at the hearing in the Federal Circuit Court, and in light of the Minister’s consent or non-opposition to the extension application, the impression appeared to have been given, and the assumption might reasonably have been drawn by the appellant, that there was effectively no issue about the extension of time being granted.

22    At [56], the primary judge rejected the submission on behalf of the appellant that procedural fairness required the judge of the Federal Circuit Court to give him notice that the matter would be decided on the basis of the extension of time issue alone.

23    At [57]-[58], the primary judge said the appellant’s reliance on the fact that the Minister did not oppose the extension application also did not assist. The mere fact that the Minister had consented, or did not oppose, the extension application did not oblige the Federal Circuit Court judge to put the appellant on notice that he might still decide the extension application adversely to him. The primary judge said that an applicant was not entitled to assume that an extension will be granted simply because the Minister did not oppose it. In these circumstances, it was difficult to see why procedural fairness required the Federal Circuit Court judge to inform the appellant that, despite the Minister’s consent or non-opposition, he still needed to persuade the court that the interests of the administration of justice necessitated the grant of an extension. That was all the more so here where the appellant was represented by solicitor and counsel.

24    At [59]-[60], the primary judge said that the apparent confusion that appeared to result from the way the hearing in the Federal Circuit Court was conducted, and in particular the judge of the Federal Circuit Court’s statement “let’s move to the merits”, whilst unfortunate, did not establish a denial of procedural fairness. The problem for the appellant was that he had not demonstrated that he was in any way materially prejudiced or disadvantaged by the somewhat unsatisfactory way in which the hearing in the Federal Circuit Court proceeded. What was the practical injustice? What would or could he have done differently if notice had been given that the Federal Circuit Court judge might, despite the Minister’s non-opposition and the course the hearing had taken, refuse the application for an extension? There was or could be no suggestion that, if put on notice that extension of time was still a live issue, the appellant would or could have put his arguments in support of his substantive grounds of review of the Tribunal’s decision differently or more forcefully. More importantly, this was not a case where the appellant intended to file any further evidence, or put any further material before the court, in support of his substantive application: cf. Shrestha v Migration Review Tribunal [2015] FCAFC 87; SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88.

25    The primary judge said, at [62]-[64], that the highest the appellant was able to put his case was that he was deprived of the opportunity of submitting that his grounds of review of the Tribunal’s decision were at least reasonably arguable, and that accordingly the extension should be granted, even if the Federal Circuit Court judge was ultimately of the opinion that final relief should not be granted. The appellant submitted that had he been able to make this submission, the result would, or at least might, have been that the appellant would have appeal rights. There was a considerable degree of artificiality in that argument, the primary judge said. The appellant argued before the Federal Circuit Court that his grounds of challenge to the Tribunal’s decision were correct. It was implicit in this that he also contended that they were reasonably arguable.

26    At [67], the primary judge said that in all the circumstances it could not be concluded that there was any practical injustice or unfairness to the appellant. The appellant was given every opportunity to present his case that he had good arguable grounds upon which to challenge the Tribunal’s decision. Procedural fairness did not require the Federal Circuit Court judge to put the appellant on notice that, despite the Minister’s consent, his extension application might nonetheless be dismissed on the basis that he did not have reasonable prospects of success. Whilst there may have been some confusion arising from the way in which the hearing in the Federal Circuit Court was conducted, that confusion did not result in any prejudice or unfairness to the appellant.

27    At [69]-[70], the primary judge said that there was an additional difficulty in relation to the appellant’s contention that he was denied procedural fairness because he was effectively deprived of his appeal rights. That difficulty arose from the fact that he had made no attempt to demonstrate that, if he had a right of appeal from the finding in respect of the merits of his substantive application, that right would be of any utility. The appellant had not sought to establish that the Federal Circuit Court judge’s assessment of the merits of his substantive challenge to the Tribunal’s decision was erroneous. Indeed, he had not even attempted to demonstrate that he had even a reasonably arguable case of jurisdictional error on the part of the Tribunal. The appellant submitted that he did not attempt to demonstrate these matters because he was precluded from bringing an appeal from the refusal of his extension application. That submission was rejected by the primary judge. The fact that s 476A(3)(a) of the Migration Act precluded an appeal from the dismissal of an extension of time application by the Federal Circuit Court did not mean that an applicant who commenced judicial review proceedings alleging that the dismissal involved a jurisdictional error was precluded from advancing any argument based on the court’s treatment of the merits of the substantive application.

28    Having reviewed briefly the reasons of the Federal Circuit Court judge’s findings and reasons for rejecting the appellant’s two grounds of challenge to the Tribunal’s decision, the primary judge added, at [72], that to the extent that the appellant’s case that he was denied procedural fairness rested on the contention that he was denied the opportunity to appeal from the judge’s findings in relation to the merits of his substantive application, the absence of any apparent appealable error provided an additional reason for finding that there was no practical injustice or unfairness in the manner in which the court dealt with his application. There was no denial of procedural fairness.

29    As to the question of the Minister’s attitude to the extension of time application, the primary judge noted, at [77]-[79], that the appellant did not appear to rely on any distinction or difference between the Minister’s consent, as communicated by the Minister to the appellant prior to the hearing, and the Minister’s non-opposition, which was communicated to the Federal Circuit Court. To the extent that the appellant did rely on any difference between consent and non-opposition, he faced two difficulties. First, in the particular circumstances of this case, it was difficult to see any material difference between consent and non-opposition. Second, in any event, there was no evidence that the Federal Circuit Court judge was told that the Minister consented to the application. The Federal Circuit Court judge could not relevantly fall into jurisdictional error by failing to have regard to a matter that was not communicated to him. A further and perhaps more fundamental problem for the appellant in relation to this ground was that, even if the Federal Circuit Court judge did not have regard to the Minister’s consent or non-opposition, it did not follow that he made a jurisdictional error. It would only be a jurisdictional error if the Federal Circuit Court judge was bound to have regard to that matter when exercising the power or jurisdiction under s 477(2) of the Migration Act. Section 477(2) of the Migration Act did not expressly state what factors needed to be considered, either in considering the interests of the administration of justice, or in the exercise of the discretion. The question, then, was whether, as a matter of statutory construction, a requirement to consider this factor could be implied having regard to the subject-matter, scope or purpose of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40. A failure to have any regard to the Minister’s consent or non-opposition to an extension application might well amount to an error that, but for s 476A(3)(a) of the Migration Act, would be an appealable error. In the circumstances of this case, however, any such error would be an error within jurisdiction. There was nothing in the subject-matter, scope or purpose of the Migration Act, or s 477(2) in particular, which would support an implication that this factor must necessarily be taken into account as a condition of the exercise of the jurisdiction to extend time. It was for the court to determine what was necessary in the interests of the administration of justice in the particular circumstances of the case.

30    As to the claimed misunderstanding by the judge of the Federal Circuit Court of the question of reasonable prospects of success by conflating that question with whether he would grant final relief in the substantive proceedings, the primary judge held, at [82]-[88], that although there was some merit in the appellant’s submissions, the Federal Circuit Court judge correctly identified the nature of the jurisdiction to extend time under s 477(2). He correctly identified that he was required to be satisfied that it was necessary in the interests of the administration of justice to make an order extending time. He correctly identified, at [10], that he was not confined in the issues which may be relevant to that question. He correctly considered that a relevant consideration was whether the substantive application had reasonable prospects of success. Whilst the Federal Circuit Court judge considered that the absence of reasonable prospects of success was, or was likely to be, determinative of whether it is in the interests of the administration of justice to extend time, that was not the same as equating or conflating the two tests. The appellant’s submissions to the contrary were rejected by the primary judge. A fair reading of the judgment of the Federal Circuit Court judge also did not support a finding that the Federal Circuit Court judge conflated or equated reasonable prospects of success with the question of whether the appellant had made out his case for final relief. Whilst the conclusion at [26] was expressed in somewhat infelicitous terms, the effect of the Federal Circuit Court judge’s findings concerning the merits of the substantive application was that there was no basis for concluding that the Tribunal’s decision was infected by jurisdictional error. That was equivalent to, or tantamount to, concluding that the substantive application was not just weak, but was hopeless or doomed to fail.

31    In that respect the primary judge noted, at [90], but did not finally decide, that even if the judge of the Federal Circuit Court did err by equating the test for the interests of the administration of justice with the question whether the appellant was entitled to final relief, it was nonetheless at least doubtful that this would amount to a jurisdictional error in the circumstances. Whilst it would most likely amount to an error of law, as the reasoning in Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 showed, not all errors of law by an inferior court amount to jurisdictional errors. The ordinary jurisdiction of a court encompassed the authority to decide questions of law, including the identification of relevant issues and the formulation of relevant questions. The Federal Circuit Court’s identification of the issues and questions concerning the interests of the administration of justice would ordinarily therefore fall within its jurisdiction. An error in the formulation of such issues and questions would therefore be an error within jurisdiction.

The grounds of appeal

32    The grounds of appeal from the judgment of the primary judge were as follows:

1.    His Honour erred in law and fact by drawing a distinction, at [33], between the Minister consenting to an extension of time application and not opposing that application, having regard to the context and circumstances.

2.    His Honour erred in failing to find that procedural fairness had been denied to the Appellant in circumstances where the Appellant had been “led to assume or expect that he did not need to address or make further submissions in support of the extension application”, where the Appellant had been denied an opportunity to make submissions on the issue of the strength of the substantive application so advanced, and where His Honour held that the manner in which the Federal Circuit Court Judge dealt with the matter was, at [51], “less than satisfactory” and had not, at [52], made it clear to the Appellant that the extension application was a “live issue”.

3.    His Honour erred in fact and law by failing to find that “practical injustice” had been occasioned, at [61], to the Appellant in circumstances where the Appellant had not been put on notice that the extension of time application would be determined on the merits of the substantive application and/or in the circumstances holding, at [57], that the Appellant’s reliance on the fact that the Minister did not oppose the extension of time application did not assist his position.

4.    His Honour erred in failing to find that the Judge in the Federal Circuit Court had conflated the test for reasonable prospects of success with the question of whether the Appellant had established jurisdictional error in the substantive application and had engaged in “backwards reasoning” and that therefore the Federal Circuit Court Judge had fallen into jurisdictional error and/or was “legally unreasonable”.

5.    His Honour erred in law by holding, at [58], that the fact of the Appellant being represented in the Court below would affect the procedural fairness obligations imposed on the Federal Circuit Court Judge.

6.    His Honour erred in fact and law by holding, at [66], that the creation or preservation of appeal rights alone could not provide a basis for an extension of time application where the Court has concluded that there are no reasonable prospects of success.

7.    His Honour erred in finding at [65] that the Judge in the Court below “could possibly have been persuaded that the grounds were reasonably arguable” in circumstances where His Honour had not heard submissions on this point.

The submissions of the parties

33    The appellant summarised the two issues that arose on appeal as follows:

(i)    Whether His Honour erred in finding that the Appellant was not denied procedural fairness (Grounds 1, 2, 3 and 5); and

(ii)    Whether His Honour erred by failing to find that the Federal Circuit Court had applied the wrong test in respect of the application for an extension of time (Grounds 4 and 6).

In his written submissions, the appellant stated that ground 7 was not pressed.

34    The appellant submitted that the primary judge erred by refusing to grant relief because of a denial of procedural fairness by the Federal Circuit Court because of the absence of any “practical injustice” – failing to properly apply Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [4] and Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; 133 FCR 541. Further, the appellant submitted, the primary judge erred by conflating the issue of the substantive merits of the case for judicial review of the Tribunal’s decision with the appropriate test for granting an extension of time under s 477 of the Migration Act to bring such an application to the Court.

35    As to the grounds directed to denial of procedural fairness, grounds 1, 2, 3 and 5, the appellant submitted that the test to be applied was whether the denial of procedural fairness deprived the party of the possibility of a successful outcome. It was therefore necessary for the Court to find that a properly conducted trial could not possibly have produced a different result and that any new trial would be futile.

36    The appellant submitted that in some cases it was appropriate to grant an extension of time even where the substantive application was ultimately dismissed. The appellant submitted that the present case fell within that category.

37    The appellant submitted that clearly there was practical injustice arising from the deficiencies in the Federal Circuit Court’s approach to the issue of the extension of time which were accepted by the primary judge. Had the appellant been informed that the Minister’s consent (or even the absence of objection) was to be given no weight, submissions could have been made as to the inappropriateness of such a course. Had the appellant been put on notice that the matter would be determined on the basis of the extension of time issue, the appellant would have been given a fair opportunity to present further submissions or evidence which could well have led to an entirely different outcome.

38    The appellant submitted he was denied procedural fairness by reason of not being provided with prior notice of the course pursued by the Federal Circuit Court judge in dealing with the extension of time application.

39    The appellant submitted it was plain that any further submissions or evidence could well have led to his Honour exercising his discretion in granting the extension of time and dismissing the substantive application; in which case, the appellant would not have been precluded from filing an appeal in respect of the Federal Circuit Court decision.

40    The appellant submitted that where the primary judge made findings to the effect that the manner in which the Federal Circuit Court dealt with the extension application created a perception that the application for an extension of time was dismissed so as to avoid appellate review, it should follow that the primary judge should have concluded that there was a denial of procedural fairness.

41    As to the grounds directed to applying the wrong test, the appellant submitted that the primary judge, and the Federal Circuit Court, applied the wrong test by conflating the test for “the interests of the administration of justice” with the question of whether the appellant would be successful in obtaining relief in respect of his substantive application.

42    For the purposes of the extension of time application, the appellant submitted, he was not required to demonstrate that his substantive application would necessarily succeed.

43    The Federal Circuit Court engaged in “backwards reasoning” by first finding the appellant’s substantive case would not succeed and then, having determined that the appellant would not succeed on the substantive application, holding that it was not necessary in the interests of the administration of justice to extend time.

44    The Minister submitted that ground 1 must fail because the paragraph of the judgment of the primary judge referred to in this ground, [33], was a summary of the present appellant’s argument. Further, the primary judge held, at [57], that the Minister’s attitude to the extension application did not oblige the Federal Circuit Court judge to put the appellant on notice that he might still decide the extension application adversely to him and an applicant for an extension of time “is not entitled to assume that an extension will be granted simply because the Minister does not oppose it”. The terms of s 477(2)(b) made it plain that the Federal Circuit Court could not grant an extension of time unless satisfied that it was in the interests of the administration of justice to do so.

45    As to grounds 2 and 3, the Minister submitted that the primary judge found that the Federal Circuit Court judge gave no indication in the course of the hearing that the matter “would” be decided on the basis of the extension of time issue, which would require notice of that fact. The rules of procedural fairness did not require the Federal Circuit Court judge to give notice of his mental processes or provisional views. The Minister submitted that the conclusion of the primary judge in this respect was orthodox and without error. The Minister also submitted that the primary judge was correct to reject the submission that the Minister’s non-opposition, and/or the absence of any comment by the judge of the Federal Circuit Court on that non-opposition grounded an entitlement to be put on notice that the judge of the Federal Circuit Court might nonetheless not be satisfied that it was in the interests of the administration of justice to grant an extension of time. The Minister also submitted that the primary judge was correct to conclude that, if put on notice that extension of time was still a live issue, the appellant would or could have put his arguments in support of his substantive grounds of review differently or more forcefully.

46    As to ground 4, the alleged conflation of the test for “the interests of the administration of justice”, the Minister submitted the Federal Circuit Court judge had correctly identified: first, the nature of the jurisdiction to extend time under s 477(2); secondly, the need for the judge to be satisfied that it was necessary in the interests of the administration of justice to make an order extending time; thirdly, the fact that the judge was not confined in the issues which may be relevant to that question; and, fourthly, that a relevant consideration was whether the substantive application had reasonable prospects of success. The Minister submitted that the absence of reasonable prospects was, or was likely to be, determinative of whether it was in the interests of the administration of justice to extend time, but that did not amount to conflating the two tests.

47    The Minister submitted that ground 5, concerning the content of procedural fairness obligations and whether or not they were affected by the appellant being legally represented in the Federal Circuit Court, failed because the content of procedural fairness varied depending on the circumstances and could include whether a litigant was or was not represented. Reference was made to Hamod v State of New South Wales and Anor [2011] NSWCA 375 and to SZRUR v Minister for Immigration and Citizenship [2013] FCAFC 146; 216 FCR 445 at [37].

48    The Minister submitted that ground 6 failed as what the primary judge had said, about the creation or preservation of appeal rights alone not providing a basis for an extension of time where the court had concluded that there were no reasonable prospects of success, was plainly correct.

49    As earlier noted, ground 7 as originally framed, was not pressed by the appellant.

Consideration

50    It is to be recalled that no appeal lay from the decision of the judge of the Federal Circuit Court and the appellant before the primary judge had to establish jurisdictional error on the part of the judge of the Federal Circuit Court.

51    Denial of procedural fairness could constitute a jurisdictional error but it was necessary for the present appellant to establish that there had been a denial of procedural fairness in the Federal Circuit Court.

52    It is to be accepted that the present appellant was entitled to a fair decision-making process in the Federal Circuit Court.

53    Relevant to that issue is the nature of the power being exercised by the judge of the Federal Circuit Court. A precondition of the discretion to extend the 35 day period was that the Federal Circuit Court was satisfied that it was necessary in the interests of the administration of justice to make the order.

54    That a party consents to an extension of time does not remove the discretion and does not remove the need for the judge of the Federal Circuit Court to be so satisfied.

55    Reliance was placed by the appellant on what was said in the course of the hearing, at page 5 of the transcript of 30 July 2014, when the judge of the Federal Circuit Court said he did not need to hear the present appellant on the extension of time issue as far as a satisfactory explanation was concerned and said “ … let’s move to the merits”. A fuller version of the exchange is as follows:

COUNSEL FOR THE MINISTER: No, your Honour. Your Honour will have seen from our written submissions that we don’t oppose the extension of time.

HIS HONOUR: Yes, I understand that. Thank you. Yes.

COUNSEL FOR THE APPELLANT: And I do thank my friend for that.

HIS HONOUR: Well, I will take the affidavit of Mr Feraz as read.

COUNSEL FOR THE APPELLANT: Yes. And I formally then make the application.

HIS HONOUR: So what would you like to say to me in that regard?

COUNSEL FOR THE APPELLANT: I rely on my written submissions on that point, that it wasn’t a gross or marked delay, that there is an explanation that is unchallenged that is on the court file.

HIS HONOUR: That’s all right. I don’t need to hear you on the extension of time issue as far as a satisfactory explanation is concerned.

COUNSEL FOR THE APPELLANT: Sure.

HIS HONOUR: So just – let’s move to the merits.

56    In context, I do not see how the statements could reasonably have led counsel to think that the second precondition to the exercise of the discretion conferred by s 477(2) was no longer an issue. In this respect I differ from what the primary judge was prepared to assume at [53]-[54] and [59] of his reasons.

57    I reject the appellant’s contention that it was somehow an error to take into account that the present appellant was then represented by counsel. While an unrepresented litigant may have reasonably misunderstood what the judge of the Federal Circuit Court had said, in my view, objectively assessed, counsel could not.

58    On the assumption that counsel before the judge of the Federal Circuit Court did think that an extension of time had been granted, although no order to that effect had been made, it is difficult to see how arguing the judicial review application fully before the judge of the Federal Circuit Court led to any relevant procedural injustice. If counsel had thought that the extension of time had been granted then it would follow that all of the evidence and all of the arguments on the substantive application would have been put.

59    I do not accept the submission that the circumstances of the present case are like those in AAV15 v Minister for Immigration and Border Protection [2015] FCA 700; 230 FCR 454. In that case the Federal Circuit Court judge summarily dismissed the proceeding on the first court date without advance notice being given of the prospect that the proceeding could summarily be dismissed. Nor was that a course urged upon the Court by the solicitor then appearing for the Minister. It was held by Flick J that the transcript exposed no active consideration being given to the explanation provided by the applicant for his apparent delay and certainly no opportunity being extended to the applicant to consider whether any amendment to the grounds of review then relied upon were under consideration or even possible on the available materials. Flick J held that had advance notice been given the applicant may then have come before the Court with a proposed amendment.

60    It appears that a substantial part of the present appellant’s complaint is that he has been denied an appeal from the Federal Circuit Court to this Court, but this is no more than the consequence of the judgment of the Federal Circuit Court refusing to make an order under s 477(2) extending time, and the terms of s 476A(3) of the Migration Act providing that an appeal may not be brought to the Federal Court from such a judgment.

61    Turning to grounds 1, 2, 3 and 5 on which the appellant relied in this aspect of his appeal, I reject each of them as follows.

62    As to ground 1, in my opinion, the ground is misconceived as the primary judge did not make the distinction complained of but was merely recording a submission. In any event, the judge of the Federal Circuit Court noted, at [11], that the Minister did not oppose an extension of time. In my opinion, it would be a matter of complaint, in light of the terms of s 477(2) and the preconditions to the exercise of the discretion, if the judge of the Federal Circuit Court had reasoned that merely because the Minister had not opposed an extension of time or consented to an extension of time, an order granting such an extension would be made.

63    As to ground 2, in my opinion, the observation as to what the present appellant had been “led to assume” was a reference to a submission recorded by the primary judge at [34]. Further, in my opinion, the appellant was not denied any opportunity to make relevant submissions insofar as counsel had a greater opportunity before the judge of the Federal Circuit Court than, perhaps, he otherwise would have had if confined in the way for which the appellant now contends.

64    As to ground 3, in my opinion, no practical injustice has been occasioned in the circumstances of the present case. I have explained above why the Minister’s position on the extension of time application does not assist the present appellant in light of the terms of s 477(2). I have also explained above why, in my opinion, the present appellant was not procedurally disadvantaged because he was able to put all the submissions and any evidence in support of his application for judicial review of the Tribunal’s decision so as to show jurisdictional error on the part of the Tribunal.

65    As to ground 5, in my opinion, the fact that the appellant was represented before the judge of the Federal Circuit Court was relevant to the question whether the appellant was denied procedural fairness because it may have been incumbent on the Federal Circuit Court to explain to a litigant in person the nature of the power conferred by s 477(2), while it was not so incumbent where the present appellant was then represented by counsel.

66    I turn next to consider the competing submissions on whether the primary judge erred by failing to find that the Federal Circuit Court had applied the wrong test in respect of the application for an extension of time.

67    In my opinion, the test applied by the judge of the Federal Circuit Court was whether the proceedings had reasonable prospects of success. It is not and could not be suggested that this was an incorrect statement of part of the content of s 477(2).

68    The judge of the Federal Circuit Court stated that this was the test he was applying at [10], in the heading above [12], in [13]-[14] and in [26]. In light of these express statements of the test the judge of the Federal Circuit Court was applying, I would not conclude, in the circumstances of this case, that the judge had applied a wrong test. In so concluding, I have taken into account the appellant’s submission on this appeal that error was disclosed by the terms of [26] of the reasons of the judge of the Federal Circuit Court, as follows:

I am not persuaded that there is any basis to find that the Tribunal’s decision is affected by jurisdictional error. Consequently, the substantive proceedings have no reasonable prospects of success.

I do not accept that submission.

69    It is to be recalled that this precondition to the exercise of the discretion by the Federal Circuit Court is the Federal Circuit Court being satisfied that it is necessary in the interests of the administration of justice to make the order extending the 35 day period. That distinction was not consistently recognised in the submissions in the Full Court on behalf of the appellant.

70    The Court was referred to the decision of the High Court of Australia in Minister for Immigration and Border Protection v WZARH [2015] HCA 40 (4 November 2015), decided after the judgment under appeal. The High Court, again, rejected the utility of the concept of legitimate expectation. The plurality said, at [30], that the concept may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made. The plurality, at [35]-[36], applied Ex parte Lam, and distinguished it on the basis that in Ex parte Lam the applicant lost no opportunity to advance his case and was afforded a full opportunity to be heard, and for that reason no practical injustice was held to have occurred, whereas in WZARH it could not be said that the respondent lost no opportunity to advance his case. The joint concurring judgment of Gageler and Gordon JJ referred with approval, at [61], to the judgment of Gleeson CJ in Ex parte Lam at [34] that the ultimate question remained whether there had been unfairness. In my view, what the High Court said does not affect the correctness of the analysis of the primary judge.

71    The appellant emphasised the concurring judgment of Gageler and Gordon JJ at [60], as follows:

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

(Footnote omitted.)

72    However, in my opinion, the appellant has not established a failure to afford a fair opportunity to be heard as there stated. I refer here to the reasons of the primary judge at [68] as follows:

It should be emphasised that the conclusion that there was no practical injustice and therefore no denial of procedural fairness, despite the somewhat unsatisfactory manner in which the application was dealt with, has nothing to do with the discretionary nature of the relief. It is well accepted that, if there has been a denial of procedural fairness, an applicant is entitled to relief unless the court is persuaded that the breach could not have had any bearing on the outcome: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541. Here, however, the absence of any practical injustice means that there was no breach.

73    In the present appeal, as I have indicated, the claim of procedural unfairness fails on the facts. I do not accept the appellant’s submission that the proceedings before the judge of the Federal Circuit Court “went off on a different track” or that the appellant was denied the opportunity to make submissions on the reasonable prospects of success.

74    Turning to grounds 4 and 6 of the notice of appeal, I reject them for the following reasons.

75    As to ground 4, it will be apparent from what I have written above that I do not accept that the primary judge erred in failing to find that the judge of the Federal Circuit Court had conflated the test for reasonable prospects of success with the question of whether the appellant had established jurisdictional error on the part of the Tribunal.

76    As to ground 6, I have already explained that, in my opinion, the question of appeal rights is no more than a statutory consequence of the exercise of the discretion conferred by s 477(2).

Application to amend

77    In the course of the hearing of the appeal, the appellant sought to depart from the position recorded by the primary judge at [69] and [70] of his reasons, that is, that before the primary judge the appellant did not attempt to demonstrate that he had a reasonably arguable case before the Federal Circuit Court.

78    The proposed amendment took the following form:

7.    His Honour erred in finding at [65] that the Judge in the Court below “it is difficult to see how, in the circumstances, the judge could possibly have been persuaded that the grounds were reasonably arguable, or that there were reasonable prospects of success”. in circumstances where His Honour had not heard submissions on this point.

79    The application to amend was opposed by the Minister.

80    The appellant submitted that he should be granted leave as the issue was raised by the Full Court as a basis upon which the appeal might be rejected, while adding that in any event the point was a distraction and was inconsistent with the reasoning in WZARH.

81    I do not accept these submissions.

82    I also observe that the appellant’s proposed amendment does not, in my view, raise the issue at [69]-[70] of the reasons of the primary judge. I shall assume, however, that it does, as contended by counsel for the appellant.

83    On that basis, I would refuse leave to amend to now permit the appellant to attempt to demonstrate that he had a reasonably arguable case of jurisdictional error on the part of the Tribunal.

84    The appellant was, before the primary judge, represented by experienced counsel. There was a deliberate forensic choice made before the primary judge. No compelling explanation has been advanced in relation to why that deliberate choice should be permitted to be changed.

85    I would not grant leave to the appellant so radically to alter the nature of his case: that radical alteration being illustrated by the absence before the primary judge of the Tribunal’s decision and reasons, and of the material that was before the Federal Circuit Court.

86    Even in refugee cases, there is a public interest in the finality of litigation: Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481 at 483; Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7.

87    As to ground 7, as proposed to be amended, in the terms in which it is written, I would refuse leave to amend as it is not the substance of what the appellant wishes to raise and also because, as so framed, I see no arguable error in [65] of the reasons of the primary judge.

88    It follows that I would refuse the appellant’s (implicit) application to supplement the record as it was before the primary judge.

Conclusion and orders

89    In my opinion, no error has been established on the part of the primary judge and the grounds of appeal fail.

90    I would dismiss the appeal, with costs. The name of the second respondent should be amended to “Administrative Appeals Tribunal”.

LOGAN J

91    I agree.

Kerr j

92    I agree.

Associate:

Dated:    11 November 2015