FEDERAL COURT OF AUSTRALIA

SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77

ORDERS

THE COURT ORDERS THAT:

1.    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

ALLSOP CJ:

1    I will invite Justice Bromwich to deliver the first judgment.

BROMWICH J:

2    This is an appeal from orders made by a single judge of this Court by which an application for review of a decision of a judge of the Federal Circuit Court of Australia was dismissed. I will refer to the single judge of this Court as the primary judge. The Federal Circuit Court refused to extend the time under s 477(2) of the Migration Act 1958 (Cth) to enable the appellant to have a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, judicially reviewed. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

3    The Federal Circuit Court judge held that the appellant had made a considered choice in pursuing ministerial intervention as a response to the Tribunal decision and therefore found that the delay in seeking judicial review until five months after the Tribunal decision was unacceptable. The application for review was made almost four months after the expiry of the 35-day limitation period. The Federal Circuit Court judge also considered whether extending the time to bring an application for review was otherwise in the interests of the administration of justice and decided it was not.

4    The primary judge interpreted the Federal Circuit Court judge as regarding the case that the appellant sought to bring as arguable, but not particularly compelling. I agree with that interpretation by the primary judge. In any event, it could not be said to have been found to be a case devoid of merit.

5    The appellant relies upon three grounds and acknowledges that success depends on all three being upheld. Those three grounds are essentially: (1) the lack of prejudice to the Minister in granting the application was a mandatory relevant consideration; (2) failing to take that into account was a jurisdictional error; and (3) the Federal Circuit Court failed to take lack of prejudice to the Minister into account.

6    It is convenient to consider the three grounds in reverse order. The primary judge concluded that no inference should be drawn that the Federal Circuit Court judge disregarded there being little or no prejudice to the Minister. This in turn relied upon the Federal Circuit Court judge expressly referring to written submissions in which this was raised. In written submissions before the Federal Circuit Court, it was said “… there is little to no prejudice to the respondents”.

7    The Minister’s written submissions before the Federal Circuit Court analysed the Tribunal’s decision and concluded that there was no prospect that the Court could hold that the Tribunal erred in the exercise of its jurisdiction. Accordingly, those submissions did not take issue with the lack of prejudice to the Minister in allowing the application. Effectively, the case proceeded before the Federal Circuit Court judge upon the common ground that there was no such prejudice. The primary judge considered that what the Federal Circuit Court judge had done had been simply to focus on the considerations viewed as being significant.

8    The appellant therefore had to demonstrate error on the part of the primary judge in reaching the conclusion that the Federal Circuit Court judge had, in fact, taken the lack of prejudice into account. I not only consider that no such error has been demonstrated, but agree with the primary judge. That is, the absence of prejudice to the Minister was not ignored. Rather, it simply was not determinative of the application before the Federal Circuit Court. In my view, the third ground should therefore fail.

9    The second ground of failing to take into account prejudice to the Minister being a jurisdictional error, strictly speaking, does not need to be determined. However, senior counsel for the appellant appears pro bono for which this Court is always grateful. In my view, he and his client should therefore have the courtesy extended of a response to this ground. The primary judge carefully analysed the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 and applied it to s 477(2) of the Migration Act. His Honour, following Craig, held that the appellant’s argument failed to give effect to the breadth of the discretion conferred upon the Federal Circuit Court of Australia by s 477(2) of the Migration Act and further failed to grapple with the important fact that it was a judge and not a member of the executive, such as the Tribunal, who had to determine whether time should be extended.

10    His Honour observed that it was essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining whether his Honour was satisfied that it was necessary “in the interests of the administration of justice” to extend time, being the test in s 477(2). Thus his Honour concluded even if it was a mandatory relevant consideration to take into account lack of prejudice to the Minister, failure to do so would be an error within jurisdiction, not a jurisdictional error. In my view, the view of the primary judge was unassailably correct. I therefore consider that the second ground should also fail.

11    I turn now to the first ground, being an assertion that lack of prejudice to the Minister in granting the application was a mandatory relevant consideration. In order to show that any consideration is relevant in the sense of a decision-maker being obliged to take it into account in making a decision under a statute, that must either be express or it must be implied from the “subject-matter, scope and purpose” of the legislation: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40. I am unable to see that any conclusion can properly be reached that the terms of s 477(2) make any consideration mandatory other than the express test of whether the grant of the extension of time sought is “in the interests of the administration of justice”.

12    It seems to me that Parliament has deliberately set a test for granting or refusing an application for an extension of time that accommodates a myriad of facts and circumstances by which an application for review came to be lodged outside the 35-day statutory time limit. I can see no warrant for putting any additional gloss or qualification on the words used by Parliament. I therefore consider that the first ground of appeal should also fail.

13    As all three grounds of appeal have failed, I would dismiss the appeal with costs.

Associate:

Dated:    1 June 2016

REASONS FOR JUDGMENT

FLICK J:

14    When considering an application to extend time pursuant to s 477(2) of the Migration Act 1958 (Cth), a failure to take into account any absence of prejudice to the Respondent Minister is not a mandatory relevant consideration such that a failure to take it into account constitutes jurisdictional error.

15    Contrary to the submission of Senior Counsel for the Appellant, a conclusion as to whether a particular consideration is jurisdictional does not depend upon an analysis of the facts of any given case, but rather depends upon an analysis of the terms in which a statutory discretion or power has been conferred.

16    Any failure to take into account an absence of prejudice would be an error within jurisdiction: Craig v South Australia (1995) 184 CLR 163 at 180; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [52] to [53], (2013) 236 FCR 442 at 454.

17    But it is not considered that on the facts of the present case the Federal Circuit Court Judge failed to take into account an absence of prejudice. Notwithstanding that the Federal Circuit Court Judge’s reasons do not expressly refer to the absence of prejudice, the absence of prejudice (it would seem) was common ground between the parties and not an issue in need of resolution.

18    I agree with the reasons of Bromwich J and the orders that his Honour proposes.

Associate:

Dated:    1 June 2016

REASONS FOR JUDGMENT

ALLSOP CJ:

19    Subject to the following, I respectfully agree with both Justice Bromwich and Justice Flick. The essential matter upon which the disposition of this appeal turns is the fact that it was fundamentally common ground before the learned Federal Circuit Court judge that there was little or no prejudice to the Minister in granting an extension of time. That was put clearly at the outset by counsel for the appellant. There was no contest with respect to that proposition by counsel for the Minister. The Federal Circuit Court hearing can be seen to be premised upon that lack of prejudice. It was not an error of any character, in my respectful view, not to mention such in an extempore judgment by a busy Federal Circuit Court judge.

20    The question as to when a judge exercising the judicial power of the Commonwealth may commit jurisdictional error as opposed to error within jurisdiction is an important one. It is well-known that error that may be committed by a member of the executive may be jurisdictional error, but error of a like kind when committed by another person, perhaps also in a non-judicial context or in a judicial context, would be error within jurisdiction. One only needs to recall the case of Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194.

21    There is no need, in the present case, to deal with this as a matter of principle. Here, in my view, there was no error. If, however, there was some degree of error in this case, I agree that it could not be seen to be jurisdictional. That last comment should not be used as a logical premise for argument in any further cases. The question of whether an error is jurisdictional is, and always will be, context-specific as cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 329 ALR 491 make clear.

22    May I add my comment to something said by Justice Bromwich. The court is grateful for the assistance given by pro bono counsel and those instructing him. The court is also, if I may respectfully say so, grateful for the assistance for counsel for the respondent and her instructor.

23    For these reasons, I agree with the orders proposed. The orders of the court are:

1.    The appeal be dismissed with costs.

Associate:

Dated: 1 June 2016