FEDERAL COURT OF AUSTRALIA

DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to further amend the notice of appeal in terms of the draft second amended notice of appeal.

2.    A copy of the draft second amended notice of appeal be placed on the court file and stand as the notice of appeal as so amended, without the need for the appellant to file and serve the same.

3.    The appeal be dismissed.

4.    The appellant pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an appeal from a decision of a single judge of the Federal Court (the primary judge) dismissing an application for judicial review of a decision by the Federal Circuit Court. By a decision given on 31 May 2017, the Federal Circuit Court refused to grant the appellant an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act) within which to seek judicial review of a decision of the (then) Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the second respondent, the Minister for Immigration and Border Protection (the Minister), to cancel the appellant’s protection visa. The appellant’s visa was cancelled because he had provided incorrect information in the course of applying for a protection visa, namely, that he had actively proselytized and converted people to Christianity in Egypt as a result of which he was harassed and detained, and that his son who had remained in Egypt (the second son) had been killed, when in fact he was still alive.

2    It was necessary for the appellant to seek an extension of time because s 477(1) of the Act requires an application to the Federal Circuit Court for judicial review to be made within 35 days of the date of the Tribunal’s decision. As the Tribunal made its decision on 6 March 2015, the last date for making an application for judicial review as of right was 10 April 2015. However the application was lodged 19 months out of time on 17 November 2016.

3    Section 477(2) confers power on the Federal Circuit Court to make an order extending that period where two conditions are met, namely:

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

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

4    Three core issues were ultimately pressed on the appeal, namely, whether the primary judge erred in failing to hold that the Federal Circuit Court fell into reviewable error:

(1)    in rejecting the tender of evidence by the appellant regarding attacks on Coptic Christians in Egypt which post-dated the Tribunal’s decision (FCAFC Grounds 1);

(2)    in failing to consider whether any appeal would enjoy reasonable prospects of success in the event that an extension of time were granted and instead applying a higher test, namely, whether Ground 2 of the application for judicial review to the Federal Circuit Court would succeed (FCAFC Ground 2 ); and

(3)    in finding that Ground 2 of the application for judicial review to the Federal Circuit Court lacked reasonable prospects of success on the basis of irrational reasoning (FCAFC Ground 2 particular (e)).

5    In the amended notice of appeal, the appellant characterises each of these alleged errors as jurisdictional in nature. In the alternative, by Ground 6 as presently formulated, the appellant alleges that the Federal Court “failed to issue the Writ of Certiorari based on the denial of procedural fairness even if there was no jurisdictional error.” As the appellant’s case is currently pleaded, the basis on which it is alleged by Ground 6 that certiorari should issue is unclear. However, the appellant seeks leave to file a second amended notice of appeal. If leave is granted, Ground 6 (proposed FCAFC Ground 6) would be amended so as to allege that, even if any of the errors alleged by FCAFC Ground 1 and FCAFC Ground 2(e) are not jurisdictional, each error is an “error of law” in respect of which the primary judge erred in failing to issue a writ of certiorari directed to the Federal Circuit Court. As we later explain, this raises the question as to the circumstances in which a writ of certiorari will lie for non-jurisdictional error.

6    For the reasons set out below, leave should be granted to file the second amended notice of appeal to include FCAFC Ground 6. However, the appeal should be dismissed.

2.    BACKGROUND

2.1    The delegate’s decision to cancel the appellant’s protection visa

7    We note that in summarising the appellant’s claims, we have been mindful of the need to avoid details by reference to which the appellant’s identity might inadvertently be disclosed. For this reason, the claims are summarised at a general level only.

8    The appellant is an Egyptian national who travelled to Australia in early 2011. He applied for a protection visa shortly thereafter and claimed that he and his family feared religious persecution if returned to Egypt.

9    The appellant was granted a protection visa on 9 August 2012. On 7 November 2012, he sponsored his spouse who remained in Egypt for a partner visa. However, as a result of the evidence provided by the appellant’s spouse in her interview with respect to the partner visa application, the appellant was issued with a Notice of Intention to Consider Cancellation on 7 February 2014 under s 107 of the Act (the s 107 notice).

10    Section 107 is located in Subdiv C of Div 3 of Part 2 of Act (Subdiv C) (ss 97-115) which provides for the cancellation of visas based on incorrect information. Under s 107, where the Minister considers that the holder of a visa failed to comply with any of ss 101 to 105 inclusive, the Minister may give a notice to the visa holder which provides particulars of the possible non-compliance and an opportunity to respond. Section 109 in turn provides that the Minister may cancel a visa after considering any response to the s 107 notice and any prescribed circumstances.

11    In the present case, the s 107 notice identified and particularised an alleged non-compliance with s 101(b) of the Act which requires that:

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions on it are answered; and

(b)    no incorrect answers are given or provided.

12    By virtue of s 99, any information which the non-citizen gives, causes to be given, or that is given on her or his behalf, in relation to the visa application is taken to be an answer to a question on the visa application form for the purposes of s 101 of the Act. An answer to a question is incorrect for these purposes even if the person who gave the answer did not know that it was incorrect (s 100 of the Act).

13    The s 107 notice here identified and particularised the claims made by the appellant in his protection visa application and his evidence as to the basis on which he feared harm by reason of his religion. These included: the appellant’s claims as to his second son’s alleged death and the circumstances in which he was allegedly killed; the appellant’s claims to have converted Muslims to Christianity; and his claims to have been arrested, detained and mistreated in 2010 by the authorities. The appellant’s attention was drawn to the fact that his wife had given evidence at her interview that none of her children had died, and that she had denied that the appellant had been detained by the authorities or had converted anyone to Christianity.

14    The appellant responded to the s 107 notice in March 2014 asserting the correctness of the information given by him and the genuineness of his fear. He also stated that his second son had been shot and taken to hospital, a death certificate was issued for his second son in mid-2012, and the family had believed he was dead. However, he said that nearly four months later (and after the grant of the appellant’s protection visa) his second son had reappeared and it turned out that he had been kidnapped. The appellant also said that he did not know that he had to inform the Department of this new information. The appellant sought to account for the discrepancies between his and his wife’s accounts on the basis that his wife was suffering from psychological trauma which resulted in her trying to forget the traumatic events.

15    The appellant’s protection visa was cancelled on 3 October 2014 because the delegate found that the appellant had provided incorrect answers in his application and had not complied with s 101 of the Act.

2.2    The Tribunal’s decision affirming the delegate’s decision

16    The appellant sought merits review of the delegate’s decision by the Tribunal. He appeared before the Tribunal on 27 January 2015 to give evidence and present arguments with the assistance of an interpreter in Arabic and English. The appellant’s migration agent was present and evidence was also received from the appellant’s first son.

17    On 6 March 2015 the Tribunal affirmed the delegate’s decision to cancel the appellant’s visa. In its reasons, the Tribunal identified three issues arising on the review, namely:

a.    Was the s. 107 notice valid?

b.     Was there non-compliance with s 101 of the Act in the way described in the Notice?

c.    If so, should the visa be cancelled?

18    The Tribunal found that the appellant had fabricated the claims in his application regarding his second son. Among other things, the Tribunal found that the appellant and his first son gave three entirely different versions of the events relating to the second son’s alleged death, and considered that:

40. … these discrepancies alone offer the strongest possible indication that the applicant and [his first son] are not persons of credibility and that the applicant had been entirely untruthful in, and had fabricated, the claims concerning [his second son’s] kidnapping, disappearance and death. These matters strongly suggest that other information that was provided in the applicant’s protection visa application was false, and also that [the second son’s] death certificate is a bogus document.

19    The Tribunal also:

(1)    considered that the appellant’s claim in his s 107 response that his second son was detained for several months was inconsistent with the claim made in the appellant’s protection visa application that his second son had died in hospital shortly after being shot (Tribunal reasons at [41]);

(2)    did not accept the appellant’s explanation as to why a government agency had apparently issued a death certificate for his second son (Tribunal reasons at [42]);

(3)    considered it significant that the appellant did not advise the Department that his second son was not dead, and did not accept the appellant’s explanation for failing to do so, finding instead that he was “deliberately deceitful” (Tribunal reasons at [44]-[49]);

(4)    placed significant weight on the discrepancies between the appellant’s evidence and that of his wife, finding that his explanation relating to his wife’s mental health was “nothing more than an attempt to deal with the inconsistencies in evidence” (Tribunal reasons at [50]-[51]; see also at [57]-[58]);

(5)    considered that it was “highly significant” that the information provided as part of his wife’s partner visa application indicated that the second son had been enrolled in tertiary studies during the period of his alleged abduction or death (Tribunal reasons at [54]); and

(6)    considered that it was “highly odd” that an official document bearing the second son’s “ID number” was issued at a time when the second son was considered dead (Tribunal reasons at [54(d)-(e)]).

20    The Tribunal concluded that the appellant entirely lacked credibility and was willing to fabricate evidence and documents to assist his application. In particular, the Tribunal found he had fabricated the claims of his second son’s death and kidnapping, and preferred the evidence of the appellant’s wife (Tribunal reasons at [67]). Accordingly, the Tribunal found that the information given concerning his second son’s death to the Departmental officer and the Tribunal was incorrect and deliberately fabricated (Tribunal reasons at [71]). Further, even if the appellant did not know that his second son was dead, the Tribunal found that the answer provided in the protection visa application was incorrect by virtue of s 100 of the Act and therefore, in providing an incorrect answer, the appellant had breached s 101 (ibid). The Tribunal also found that the answers given in relation to other aspects of the appellant’s claims for protection were not true and were therefore incorrect (Tribunal reasons at [72]). As a result the Tribunal found that the appellant did not comply with s 101 of the Act (Tribunal reasons at [73]).

21    Finally, the Tribunal considered whether in the exercise of discretion the visa should be cancelled pursuant to s 109(1) of the Act. In declining to exercise its discretion in the appellant’s favour, the Tribunal took into account its earlier conclusions that the events described by the appellant as occurring in Egypt were fabricated and that the appellant had made no effort to inform the Department of the incorrect answers when he claimed to have learned that they were incorrect (Tribunal reasons at [85] and [87]). The Tribunal also considered that cancellation would not result in a breach of Australia’s non-refoulement obligations (Tribunal reasons at [105] and [112] – [113]).

2.3    The decision of the Federal Circuit Court refusing the extension of time

22    The appellant’s application for an extension of time under s 477(2) of the Act within which to seek judicial review of the Tribunal’s decision was refused by the Federal Circuit Court.

23    First, the Federal Circuit Court held that, given the substantial delay, there must be “something exceptional” to justify the grant of an extension of time (FCC reasons at [8]-[9]; see also Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at [3] (Gageler J) (by analogy) (delay of 16 months); see also e.g. Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [13] and [16] (McHugh J) (delay of 17 months)). However, the primary judge held, first that no reasonable excuse for the lengthy delay had been given. In so finding, the primary judge held that:

13…. The applicant has, in effect, treated the process of the Court as a plan B in the event that the cheaper course of applying to the Minister failed. That, in my view, is inconsistent with the time imposed by s. 477(1) of the Act, which is to act in the best interests of the Australian public by expediting as far as possible, migration matters and particularly in respect of matters where the person will remain in Australia without a substantive visa pending the outcome of the review.

24    No issue is taken with the finding at [13] of the Federal Circuit Court’s reasons.

25    Secondly, the primary judge considered whether the draft grounds of review had any reasonable prospects of success. The draft grounds were that:

1.    The Tribunal made jurisdictional error by failing to inquire since it failed to conduct an interview with the applicant’s [second] son … who was the subject of the death certificate which was a major credibility concern to the Tribunal [FCC Ground 1].

2.    The Tribunal made jurisdictional error by failing to inquire with the Egyptian authorities the genuineness of the official documents [FCC Ground 2].

3.    The Tribunal made jurisdictional error in that although the Tribunal accepted the applicant’s wife’s evidence given at her spouse visa interview, it failed to consider circumstances of harm described by the wife in its assessment of “Whether the visa cancellation may result in Australia breaching its international obligations” about non-refoulement [FCC Ground 3].

26    While the Federal Circuit Court found that there were no real prospects of FCC Grounds 1 or 2 succeeding (FCC reasons at [18] and [20] respectively), the Federal Circuit Court accepted that FCC Ground 3 had “some merit”, albeit that it was not also without “some difficulties” (FCC reasons at [25]). However, ultimately the Federal Circuit Court judge held that, even though Ground 3 raised “an arguable point, I do not consider, in light of all of the other circumstances, including the lack of reasonable excuse for the significant delay of 19 months, that that is sufficient for me to be satisfied that it is necessary in the interests of the administration of justice to make an order extending the period…” (FCC reasons at [27]).

2.4    The application for judicial review of the Federal Circuit Court decision

27    On 16 June 2017, the appellant applied to the Federal Court for judicial review of the Federal Circuit Court decision under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act), seeking orders in the nature of certiorari and mandamus against the Federal Circuit Court. By an amended appeal filed on 18 July 2017, the issues raised before the primary judge were relevantly that:

(1)    the Federal Circuit Court fell into jurisdictional error by denying the appellant procedural fairness and misapprehending the nature or limits of its discretion under s 477(2) of the Act in excluding evidence on “the latest country situation in Egypt which was relevant to the consideration for extension of time by the Court” (FCA Ground 1);

(2)    the Federal Circuit Court fell into jurisdictional error in that, instead of considering whether the case was arguable, the Federal Circuit Court imposed a higher requirement, that is, whether (relevantly) FCC Ground 2 would succeed (FCA Ground 2); and

(3)    the Federal Circuit Court made a non-jurisdictional error of law by denying procedural fairness to the appellant on the basis pleaded above in FCA Ground 1 (FCA Ground 5).

28    The primary judge dismissed each of these grounds of review, together with two other grounds which are not challenged on the appeal.

3.    THE GROUNDS OF APPEAL AND APPLICATION FOR LEAVE TO AMEND

29    As earlier mentioned, at the hearing of the appeal the appellant sought leave to rely on a second amended notice of appeal. The grounds of appeal the appellant sought to press are that:

1.    The Federal Court erred by not finding that the learned Federal Circuit Court Judge made jurisdictional error by excluding the country information on Egypt [FCAFC Ground 1].

2.    The Federal Court erred by failing to hold that the Federal Circuit Court Judge made jurisdictional error because, instead of considering whether the case was arguable, his Honour imposed a higher requirement, being whether the ground would succeed [FCAFC Ground 2].

…

6.    The Federal Court failed to issue the Writ of Certiorari based on error of law on the part of the Federal Circuit Court Judge even if there was no jurisdictional error [proposed FCAFC Ground 6].

(particulars omitted)

30    In addition to seeking leave to rely on the second amended notice of appeal, the appellant required leave to raise proposed FCAFC Ground 6 because it raised issues not raised before the primary judge.

31    The Court reserved its decision on the question of leave to file the further amended notice of appeal and to raise proposed FCAFC Ground 6. Our reasons for granting leave are set out below.

32    As this Court explained in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs, leave to argue a ground of appeal not raised before the primary judge should be granted only if it is expedient in the interests of justice to do so: [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48]. In so stating, the Full Court referred to the observations of Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7 that:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish

33    The Full Court in VUAX further observed that at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

34    These principles have been reaffirmed in numerous decisions of this Court: see e.g. Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] (Flick and Rangiah JJ (Logan J agreeing)) and Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]-[20] (Griffiths and Perry JJ).

35    In this case, while no explanation was provided by the appellant for his failure to take the point raised in proposed FCAFC Ground 6 before the primary judge, the Minister accepted that the principle of law inherent in the proposed Ground 6 had merit. The Minister also accepted that there was no evidentiary prejudice or embarrassment to the Minister in meeting the second amended grounds of appeal, including proposed FCAFC Ground 6. Further, while the appellant had not developed his argument on proposed FCAFC Ground 6 in written submissions, the Minister was able to meet the appellant’s oral submissions. Nor, despite the invitation from the Court, did the Minister seek to file further written submissions on the proposed ground.

36    In those circumstances in our view it is expedient, in the interests of justice, to grant leave to the appellant to rely on the second amended notice of appeal and to raise FCAFC Ground 6.

4.    ALLEGED NON-JURISDICTIONAL ERRORS OF LAW ON THE FACE OF THE RECORD OF THE FEDERAL CIRCUIT COURT (FCAFC GROUND 6)

4.1    What is the scope of the Federal Court’s jurisdiction to issue certiorari on judicial review of a Federal Circuit Court decision?

37    It was not in issue that, despite there being no pathway to appeal from the refusal by the Federal Circuit Court to extend time under s 477(2) of the Act, the Federal Court had original jurisdiction under s 39B of the Judiciary Act to entertain an application for judicial review of the Federal Circuit Court decision: see e.g Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [10]-[11] (the Court). That being so, the preliminary question raised by FCAFC Ground 6 concerns the scope of the Federal Court’s jurisdiction to issue a writ of certiorari on the application for judicial review of the Federal Circuit Court’s decision.

38    The function of an order in the nature of certiorari “is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights…”: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 (Probuild) at [28] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). Jurisdictional error therefore comprises the principal basis on which a writ of certiorari will issue, thereby enforcing the limits of the decision-maker’s power and functions: Probuild at [29].

39    However, the jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker. Thus, after discussing the scope of errors of a jurisdictional kind in the context of an administrative tribunal, the High Court explained in Craig v South Australia (1995) 184 CLR 163 (Craig) at 179-180 that:

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.

40    It follows that the circumstances in which an inferior Court will fall into jurisdictional error are narrower than in the case of a decision-maker exercising executive power. As the High Court held in Craig at 177-178 :

… jurisdictional error will occur where an inferior Court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior Court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

41    As such, while an error may be jurisdictional when committed by an administrative decision-maker, the same error committed in a judicial context may be an error within jurisdiction: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20] (Allsop CJ). That is not, however, to suggest that the list of errors of a jurisdictional kind in the context of an inferior court in the passage quoted from Craig above is exhaustive. To the contrary, the High Court has cautioned that it does not provide “a rigid taxonomy of jurisdictional error”: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [73] (the Court) (Kirk); see also the helpful analysis by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [29]-[34].

42    In addition, certiorari will lie for a non-jurisdictional error of law on the face of the record: Kirk at [78]-[90]. As developed in the appellant’s submissions, it is apparent that this is the basis on which the appellant seeks a writ of certiorari in FCAFC Ground 6. The availability of certiorari for non-jurisdictional error as a “stand alone” remedy on an application in the Federal Court’s original jurisdiction under s 39B(1) of the Judiciary Act was confirmed in Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; (2014) 226 FCR 302 (Baker), upon which the appellant relied. That case concerned an application for review of an administrative decision, being a decision by the Fair Work Commission. In that case, the Full Court of the Federal Court held that:

29. Despite the omission in s 39B(1) of the writ of certiorari, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court, in relation to matters in which it has jurisdiction, the power to issue or direct the issue of “writs of such kinds, as the Court thinks appropriate”. Moreover, the Full Court has held that, at least in cases which have not been referred to it by the High Court, certiorari is available as a “stand alone” remedy, not merely when ancillary to the relief mentioned in the Judiciary Act… Accordingly, contrary to the parties’ common assumption, at least in the written submissions, provided that an error of law is apparent on the face of the record, certiorari will issue even if the error does not go to jurisdiction.

(citations omitted)

4.2    The Federal Circuit Court’s reasons do not comprise part of the record

43    The availability of the writ of certiorari for non-jurisdictional error of law on the face of the record is affected by what constitutes the “record”. As the appellant pointed out, it was not in dispute in Baker that “the record [was] constituted by the Full Bench [of the Fair Work Commission’s] decision which incorporates its orders and reasons” (at [29]). The parties appeared initially to have proceeded on the assumption that the record of the Federal Circuit Court was similarly constituted in this appeal. However, after the hearing of the appeal, further submissions were invited by the Court as to the correctness of that assumption. As a consequence, the Minister clarified his position and submitted that the Federal Circuit Court’s reasons do not comprise part of the record, in contrast to the position in Baker with respect to an administrative decision.

44    The Minister’s submission should be accepted. The expansive approach to certiorari which would include the reasons for decision and transcript of proceedings in the record of an inferior court was specifically rejected by the High Court in Craig. In so holding, the High Court explained in Craig at 181 that that expansive approach:

… would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law.

45    By contrast, in Kirk the High Court held that the reasons given by the Industrial Court at first instance and on appeal to the Full Bench comprised part of the record (Kirk at [89]). However, the Court held that the decision in Craig did not apply because s 69(4) of the Supreme Court Act 1970 (NSW) expressly provided that “the face of the record” for the purposes of a grant of relief in the nature of certiorari for error of law “includes the reasons expressed by the court or tribunal for its ultimate determination.” Kirk at [89]: see also Probuild at [31] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). The decision in Kirk did not therefore cast doubt upon the correctness of Craig. Rather, noting that no application was made to reconsider Craig, the Court observed that, absent a statutory provision to the contrary, the conclusion in Craig (that the record of an inferior Court does not include its reasons or transcript) confines the availability of certiorari “for the stated purpose of not providing a ‘discretionary general appeal for error of law’.”: Kirk at [85].

46    The decisions in Craig and Kirk were applied by the Full Court of the Federal Court in SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 (SZTSU). Importantly in that case, the Full Court rejected the submission that the primary judge erred in holding that the reasons for decision of the Federal Circuit Court did not form part of the record. Rather, the Court held that:

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.

47    The decision in SZTSU is plainly correct in our view. It follows that the reasons of the Federal Circuit Court are not part of the record. The appellant’s submission that it is ultimately for this Court to determine which documents form part of the record is therefore misconceived to the extent that it is suggested that this Court may decide that the Federal Circuit Court’s reasons form part of the record. The suggestion by the appellant that the principles in Craig are limited to the issue of certiorari “as a constitutional writ” is also misconceived on a number of levels, including that: the relief for which s 75(v) of the Constitution provides does not include certiorari, i.e., certiorari is not a constitutional writ; and in Craig, certiorari was sought under the Supreme Court Rules 1987 (SA) and not s 75(v) of the Constitution, the proceedings having been instituted in the Supreme Court of South Australia (Craig at 174). Nor contrary to the appellant’s submissions, does the complexity in drawing the line between jurisdictional error and errors of law within jurisdiction provide a basis on which this Court could depart from binding High Court authority.

4.3    FCAFC Ground 6 must be dismissed

48    It follows for the reasons set out above that the primary judge was confined to considering only the orders made by the Federal Circuit Court in determining whether certiorari lay for a non-jurisdictional error of law on the face of the record of the Federal Circuit Court. It will be recalled that it is alleged by FCAFC Ground 6 that the Federal Circuit Court fell into non-jurisdictional error on the grounds that it wrongly rejected country evidence post-dating the Tribunal’s decision, applied the wrong test on the application for an extension of time, or “used…illogical or unreasonable” reasoning. As none of these alleged errors is apparent on the face of the orders made by the Federal Circuit Court, it follows that FCAFC Ground 6 must fail. The appellant can therefore succeed only if he can establish that the primary judge erred in holding that the Federal Circuit Court did not fall into an error of a jurisdictional kind on the same grounds.

5.    ALLEGED FAILURE TO FIND JURISDICTIONAL ERRORS BY THE FEDERAL CIRCUIT COURT

5.1    The Federal Circuit Court’s rejection of evidence of increasing attacks against Coptic Christians (FCAFC Ground 1)

5.1.1    The Federal Circuit Court’s findings

49    The first ground of appeal alleges error by the primary judge in failing to hold that the Federal Circuit Court fell into jurisdictional error by rejecting the tender of evidence by the appellant relating to attacks on Coptic Christians in Egypt. Specifically the Federal Circuit Court held that:

6.     I rejected the tender of that evidence because in my view, it is not part of the process of this Court when considering whether to exercise the power under s. 477(2) of the Act, to make any findings of fact of what might occur to the applicant. Nevertheless, even if I had admitted it, it would not have weighed large in my consideration. I accept that it is always possible that an applicant who has once been granted a protection visa or at least applied for a protection visa might face harm upon return to his or her country of origin.

50    The evidence in question comprised three articles annexed to an affidavit affirmed by the appellant’s first son on 15 May 2017 who deposed that the information was provided so as to inform the Court that “returning to Egypt puts our life at risk and therefore we need the opportunity to get our visa cancellation decision fully considered by this Court and an extension of time granted for that purpose.” The appellant’s first son further deposed that the information was provided solely for the purpose of the application for an extension of time. The first article dated 23 February 2017 from the ABC news website referred to Coptic Christians fleeing Egypt and seeking refuge in Australia. The second article dated 11 April 2017 was also from the ABC news website and referred to deadly Palm Sunday attacks on two Coptic churches in Tanta and Alexandria, in Egypt. The Palm Sunday attacks were claimed by the Islamic State, which had reportedly waged a campaign against the Coptic Christian minority. The third article (which is undated) referred to a bomb attack against a Coptic Church in Tanta in which at least 25 people were killed and 60 injured. It is unclear whether this is the same attack that is referred to in the second article. However, while the third article is undated, it is apparent that the first two articles postdate the Tribunal’s decision on 6 March 2015. In addition, the appellant complained of the failure by the primary judge to admit two later news reports of an attack on a bus carrying Egyptian Copts in Minya Province in Egypt, which killed 26 individuals, being an SBS World News item dated 28 May 2017 and article purportedly from the Sydney Morning Herald dated 27 May 2017.

5.1.2    The primary judge’s findings

51    The primary judge admitted both sets of news reports for the limited purpose of establishing the evidence rejected by the Federal Circuit Court, but ultimately held that no error had been established in the rejection of that evidence by the Federal Circuit Court:

26.    The [Federal Circuit Court] accepted, as part of the exercise of discretion, that it was possible, at a general level, that an applicant for a protection visa might face harm upon return to his or her country of origin. I also infer that the judge of the Federal Circuit Court, at [6], considered that it would be unlikely that jurisdictional error on the part of the Tribunal could be established by seeking to tender what was said to be up-to-date country information. The tendency of the newspaper articles would be to contradict findings by the Tribunal.

27    Counsel for the applicant accepted that the Federal Circuit Court was not deciding whether or not the applicant was to return to Egypt. In my opinion the impact on the applicant if time was not extended was that the Federal Circuit Court would not hear the judicial review application brought from the decision of the Tribunal. The impact to which the primary judge referred at [3] was not what might happen to the applicant if, further steps having been taken, the applicant were returned to Egypt.

28    That is how I understand what the [Federal Circuit Court] judge said at [6]: “it is not part of the process of this Court when considering whether to exercise the power under s.477(2) of the Act, to make any findings of fact of what might occur to the applicant.”

5.1.3    The appellant’s submissions

52    The appellant accepted that it was not for the Federal Circuit Court to determine whether or not he would return to Egypt. Nor, counsel for the appellant also explained, was the further evidence sought to be tendered before the Federal Circuit Court in order to establish jurisdictional error on the part of the Tribunal. Rather, the appellant contended that the evidence of violence against Coptic Christians in Egypt at about the time of the Federal Circuit Court hearing was a factor weighing in favour of affording him an opportunity to be heard on the judicial review application by allowing his application for an extension of time. In failing to receive the evidence, the appellant alleged both that the Federal Circuit Court had acted in breach of procedural fairness and proceeded on a misconstruction of its task under s 477(2) of the Act. The appellant submitted that the primary judge erred in not having appreciated these errors, which the appellant characterised as jurisdictional in nature.

5.1.4    Did the Federal Circuit Court misconstrue its task under s 477(2) in rejecting the evidence?

53    In our view, it is arguable that the Federal Circuit Court fell into error at [6] of its reasons in rejecting the tender of the evidence of increasing attacks on the ground that “it is not part of the process of the Court … to make any findings of fact of what might occur to the applicant” insofar as this suggests that such evidence is by its nature irrelevant to an exercise of discretion under s 477(2) of the Act. Rather, arguably the relevance of such evidence must be assessed in the circumstances of the individual case and having regard to the interlocutory nature of the application. However it is not necessary to decide this question here because any such error would not be jurisdictional in nature: see above at [38] to [41]. In this regard, it is not alleged that the Federal Circuit Court disregarded a matter required to be taken into account as a precondition to the exercise of authority by the Federal Circuit Court under the statute establishing the Court and conferring jurisdiction: cf Craig at 177 (quoted above at [40]). Nor could the alleged error be characterised as the Federal Circuit Court having misconceived the nature of the function it was performing in deciding whether or not to extend time or the extent of its powers in the particular circumstances of the case: cf Craig at 177-178 (quoted above at [40]); see also SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150 (Gageler J). At its highest, it is alleged that, in the exercise of the statutory discretion to extend time which is vested in the Federal Circuit Court by s 477(2) of the Act, the Court erred in rejecting the evidence as irrelevant. That is an error within jurisdiction. As the High Court explained in the passage from Craig quoted earlier, “[t]he identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge” of the ordinary jurisdiction of a court of law. It follows that FCAFC Ground 1 to this extent must be dismissed.

5.1.5    Did the primary judge err in failing to find that the Federal Circuit Court acted in breach of procedural fairness in rejecting the evidence?

54    In oral submissions addressing FCAFC Ground 1, the appellant also argued that the primary judge ought to have held that the Federal Circuit Court fell into jurisdictional error on the ground that the rejection of the evidence of increasing attacks against Coptic Christians was in breach of procedural fairness.

55    It is well established that a judge is required to conduct judicial proceedings in accordance with the rules of natural justice and procedural fairness. As, for example, Campbell JA explained in Adamson v Ede [2009] NSWCA 379 (Adamson) (with whose reasons Giles and Hodgson JJA agreed):

54    In Commissioner of Police v Tanos (1958) 98 CLR 383 at 396, Dixon CJ and Webb J (with whom Taylor J agreed) said of the rules of natural justice that “It is hardly necessary to add that its application to proceedings in the established courts is a matter of course.” Similarly, in Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186, Handley JA said: “Compliance with the requirements of natural justice is … an incident of the judicial process”.

55    High Court discussion of Chapter III of the Constitution has emphasised the fundamental role of natural justice in exercising judicial power: Harris v Caladine (1991) 172 CLR 84 at 150 per Gaudron J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J; Leeth v Commonwealth (1992) 174 CLR 455 at 470 per Mason CJ, Dawson and McHugh JJ, 502 per Gaudron J; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 359 [56] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 at 76 [63]-[64] per Gummow, Hayne and Crennan JJ; Kable v Director of Public Prosecutions for NSW (1996) 189 CLR 51 at 116 per McHugh J.

56    However, it does not necessarily follow that a breach of procedural fairness will (necessarily) constitute a jurisdictional error in the context of proceedings in a federal court. As Gaudron and Gummow JJ observed in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [42], while a denial of procedural fairness by an administrative decision-maker will sound in jurisdictional error, “different considerations arise where the Commonwealth officer is a member of a federal court”: semble SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 at [69] (the Court).

57    In support of his submission that a breach of procedural fairness by the Federal Circuit Court is a jurisdictional error, the appellant relied upon a comment by Robertson J (with whose reasons Logan and Kerr JJ agreed) in SZTES v Minister for Immigration and Border Protection that a denial of procedural fairness by the Federal Circuit Court “could constitute a jurisdictional error”: [2015] FCAFC 158 at [51]. However, his Honour’s comment was made in obiter only because the Court in SZTES ultimately found that the claim of procedural fairness failed on the facts: ibid at [73]. Equally, in this case it is unnecessary to decide the point of principle; nor would it be desirable to do so in circumstances where the Minister did not take issue with this first step of the appellant’s argument. Rather, as we later explain, the appellant’s argument fails for other reasons.

58    Secondly, compliance with the requirements of procedural fairness requires that a person be given a reasonable opportunity to present her or his case having regard, among other things, to the established procedures of courts: Adamson at [59]-[63]. In this regard, it is possible that the rejection of evidence by a trial judge may constitute a denial of procedural fairness at least where the ground on which the evidence was admissible was put to the trial judge: cf Adamson at [98]. However, it does not follow that every erroneous ruling on evidence will constitute a breach of procedural fairness.

59    Thirdly, in the present case, the short point is that the Federal Circuit Court judge found in the alternative that, even if the evidence of increasing attacks had been admitted, the evidence “would not have weighed large” in his consideration. In this regard, his Honour accepted that it was always possible that an applicant who has been granted a protection visa might face harm on return to her or his country of origin but considered that other matters outweighed that factor in this case (FCC reasons at [6]). As such, the Federal Circuit Court judge did not simply reject the evidence without providing the appellant an opportunity to have his case on this issue heard and considered. To the contrary, his Honour considered whether, if admitted, the evidence would have impacted upon the exercise of his discretion and found that it would not have led to a different outcome. As such, there was ultimately no practical unfairness demonstrated by reason of the exclusion of the evidence: see e.g. Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [156] (Hayne, Crennan, Kiefel and Bell JJ) approving Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]-[38] (Gleeson CJ); Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [33]-[36] (Kiefel, Bell and Keane JJ); [57]-[61] (Gageler and Gordon JJ). Furthermore, the fact that the Federal Circuit Court judge engaged with the evidence of increasing attacks at a high level of generality, as the appellant contended, and that another judge might have characterised the evidence differently, can be put no higher than an error within jurisdiction even assuming an error in this regard

5.2    Alleged errors by the Federal Circuit Court in determining whether any application for judicial review was “arguable” (FCAFC Ground 2)

60    By FCAFC Ground 2, the appellant alleged that the primary judge ought to have found that the Federal Circuit Court failed to consider whether his case was arguable at a reasonably impressionistic level in deciding whether to extend time under s 477(2) of the Act. Rather, in his submission, the Federal Circuit Court had erred in approaching the issue as if the question were whether FCC Ground 2 (alleging that the Tribunal failed “to inquire with the Egyptian authorities the genuineness of the official documents”) “would” succeed. In support of his submissions, the appellant emphasised the low bar for determining whether an application for an extension of time had sufficient prospects of success, referring to the reasons of French J (as his Honour then was) in Seiler v Minister of Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 as follows:

To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite nontrivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused.

(Cited with approval, e.g., in Mentinck v Minister for Home Affairs [2013] FCAFC 113 at [37] (Griffiths J (with whose reasons Edmonds J agreed)) and [57] (Pagone J).)

61    The appellant also submitted that the primary judge fell into error in “fail[ing] to hold that the reasoning [of the Federal Circuit Court] used to say that the [FCC] Ground 2 does not have prospect of success was irrational because it puts cart before horse.”

62    The Minister accepted that, in the context of an application for extension of time, the Federal Circuit Court would fall into jurisdictional error if it approached the prospects of success as if it were making a final decision: MZABP at [62] (Mortimer J), whose approach was approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCA 110; (2016) 152 ALD 478. Even assuming that the Minister’s concession was rightly made (which it is unnecessary to decide), in our view the primary judge did not err in holding that the Federal Circuit Court examined the grounds at a “reasonably impressionistic level” in considering whether FCC Ground 2 had any reasonable prospects of success. Nor was the reasoning of the Federal Circuit Court irrational.

63    First, no issue was ultimately taken with the primary judge’s finding that, contrary to the appellant’s (then) submission, neither the transcript of argument before the Federal Circuit Court, nor the catchwords to the Federal Circuit Court judgment, can be relied upon to establish the alleged error in the approach by the Federal Circuit Court (FCA reasons at [30]). That proposition is plainly correct. The question whether the Federal Circuit Court erred in the manner alleged falls to be determined by reference to the Federal Circuit Court’s published reasons.

64    Secondly, counsel for the appellant accepted before the primary judge that the Federal Circuit Court had “posed the correct tests”: FCA reasons at [34]. The argument before the primary judge was therefore that the Federal Circuit Court had failed to apply those tests, focusing upon its reasons at [20].

65    Thirdly, the Federal Circuit Court considered whether the Tribunal had given a “rational basis” for rejecting the appellant’s requests for the Tribunal to make inquiries with the Egyptian authorities as to the genuineness of the official documents on which the appellant sought to rely (FCC reasons at [19]-[20]). Specifically, at [63]-[64] of its reasons, the Tribunal found that:

63. The applicant informed the Tribunal that there is nothing to suggest these documents are bogus and the applicant repeatedly invited the Tribunal to verify documents with the relevant authorities. The Tribunal has considered the request but decided not to do so. As the Tribunal explained to the applicant in the course of the hearing, if these documents had been obtained through bribery or any other form of payment, they may well be registered with the relevant agencies and appear to be genuine. In such case [sic], verification would be unhelpful. The applicant suggested that the documents are all issued by different agencies, so they could [not] all have been obtained through bribery. The Tribunal considers that entirely possible. As the Tribunal pointed out in the course of the hearing, information before the Tribunal indicates that fraudulent documents are available in Egypt. In August 2011, [the Department of Foreign Affairs and Trade] reported that:

It is possible to get false copies of a range of official documents in Egypt, from passports to ID cards to education qualifications.

64. The 2010 US State Department Country Report on Human Rights Practices also states that ‘the media routinely reported on confirmed cases of low-level corruption, including the fraudulent alteration of official documents’.

(emphasis added)

66    Read in context, it appears that the fifth sentence at [63] was missing the word ‘not’ (which we have inserted in square brackets) and that, by the ambiguous statement that “[t]he Tribunal considers that entirely possible”, the Tribunal meant to say that it considered that it was entirely possible that all of the documents were obtained through bribery despite having been issued by different agencies. Argument on the appeal proceeded implicitly on the assumption that this understanding of [63] was correct.

67    In finding that the Tribunal’s reasons at [63] afforded a rational basis for considering and refusing the requests to undertake inquiries, the Federal Circuit Court held that:

20. … In particular, it might be questioned what utility might arise from an enquiry made by the Tribunal of an institution which had, in fact produced the document, where the production had been obtained through bribery or any form of payment. In light of that I found that ground 2 similarly does not have any reasonable prospect of success.

68    The summary way in which the Federal Circuit Court dealt with the question of whether FCC Ground 2 had reasonable prospects of success is entirely consistent with the approach endorsed by the Full Court in MZABP. There is no merit in the suggestion that the Federal Circuit Court erred in its approach in this respect.

69    As to the appellant’s argument that the Federal Circuit Court reasoning at [20] was illogical, this turned upon two propositions: first, that the reasoning embodied an unwarranted assumption, namely, that the institutions had been bribed to produce the documents; and secondly, that the Tribunal had failed to appreciate that it ought to make inquiries of authorities in Egypt ‘higher up the chain’ of authority, given that the concern expressed in the country information was with “low level corruption”. However, the first alleged assumption simply reflected the Tribunal’s finding of fact. It is well established that it is not open to the Federal Circuit Court to review findings of fact by the Tribunal on an application for judicial review: see e.g. Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [32] (Kirby J) . As such, no error is demonstrated by the alleged assumption. With respect to the second alleged assumption, the Federal Circuit Court was doing no more than accepting that it was open to the Tribunal to reason at [63] that, if the documents were registered with the government agencies and appeared genuine, the agencies would be likely to verify them. Furthermore, no attempt was made to establish that the present case was one where exceptionally the Tribunal should have made “an obvious inquiry about a critical fact, the existence of which is easily ascertained” so as to give rise to a duty to inquire, in line with the principles in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

70    The appellant also emphasised that the Tribunal rejected some 23 documents on the basis of its impugned reasoning at [63], suggesting that the very number of documents rejected on this basis rendered the Tribunal’s reasoning irrational. However, that finding was based upon country evidence that a range of false copies of official documents could be obtained in Egypt. As such, there is a logical connection between the finding and the evidence on which it was based: cf e.g. DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [41] (the Court). Moreover, in finding that none of the appellant’s documentary evidence was probative or reliable, the Tribunal also took into account its finding that the appellant had obtained a death certificate with respect to his second son, who was alive (Tribunal reasons at [65]). Nor can these findings be divorced from the Tribunal’s findings that the appellant had been wholly untruthful in his protection visa claims, and that his wife’s evidence denying his claims was to be preferred.

71    In these circumstances, the primary judge correctly held that no error had been established with respect to the Federal Circuit Court’s finding that FCC Ground 2 had no reasonable prospects of success.

6.    CONCLUSION

72    For the reasons set out above, the appeal should be dismissed with costs.

Associate:

Dated:    25 June 2018