FEDERAL COURT OF AUSTRALIA

CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The applicant is to pay the costs of the second respondent, the Minister for Immigration and Border Protection, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The appellant is a citizen of Afghanistan. His application for a protection visa was refused by a delegate of the second respondent, the Minister for Immigration and Border Protection (the Minister). The delegate’s decision was affirmed on review by the (then) Refugee Review Tribunal (the Tribunal).

2    By a decision given on 22 November 2016, the first respondent, the Federal Circuit Court (the FCC), 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 the Tribunal’s decision. It was necessary for the appellant to seek an extension of time in the FCC because s 477(1) of the Act requires any application to the FCC for judicial review to be made within 35 days of the date of the Tribunal’s decision. The Tribunal made its decision on 28 February 2013, and it was posted to the appellant on 1 March 2013. The application in the FCC was therefore filed substantially out of time on 27 November 2015. Section 477(2) empowers the FCC to grant an extension of time in the exercise of discretion where two criteria are met, namely:

(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.

3    The appellant sought judicial review of the FCC’s decision refusing the extension of time in the Federal Court (FCA). That application was heard by a single judge of this Court (the FCA judge).

4    In the FCA, the appellant (who then had legal representation) argued that the FCC “did not actually form the state of satisfaction under para. 477(2)(b)”. As a result, the appellant argued that the failure to determine a relevant jurisdictional fact caused the FCC to act outside its jurisdiction and/or constructively to fail to exercise its jurisdiction. On this basis, the appellant sought certiorari to quash the FCC’s decision and mandamus requiring the FCC to determine the application for an extension of time according to law.

5    The FCA judge was not satisfied that the FCC had erred in dismissing the application for an extension of time in the manner alleged. As such, her Honour held that it was unnecessary to determine whether an error of the kind alleged was jurisdictional in nature so as to justify the relief sought: CNC15 v Federal Circuit Court of Australia [2017] FCA 1540.

6    This is an appeal from the FCA’s decision. Neither the first respondent nor the third respondent took any part in the appeal. The notice of appeal identifies one ground of appeal, namely, “[t]he Judge erred in the decision of 20 December 2017 that dismissed the application.” While the appellant did not file submissions in advance of the appeal which elaborated upon the ground of appeal, the appellant, who was unrepresented, made oral submissions at the hearing with the assistance of an interpreter. At the appellant’s request, leave was also granted at the hearing to receive a written submission prepared in support of his appeal by Ms Russell who is not a lawyer and for Ms Russell to be present as a McKenzie friend to explain those written submissions. However, the Court refused leave for the annexures to Ms Russell’s written submissions to be received in evidence on the ground that they were not relevant to the question of whether the FCA judge rightly held that the FCC had not erred in finding that the application for judicial review had no reasonable prospects of success. The Court also took into account that the material could have been, but was not, led before the FCA judge, bearing in mind that the appellant had the benefit of senior counsel before the FCA.

7    For the reasons set out below, the appeal must be dismissed with costs.

2.    BACKGROUND

2.1    The decision of the Refugee Review Tribunal

8    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.

9    The appellant applied for a protection visa on 1 September 2012. He claimed to fear harm from the Taliban, other extremist groups, or Pashtun sympathisers of the Taliban, on a number of grounds, relevantly:

(1)    his race and his religion as a Hazara Sayyed Shia;

(2)    his imputed political opinion as someone supportive of the Afghan government or international forces as a result of his employment with international forces in Afghanistan; and

(3)    his membership of a particular social group, namely, a returnee from Australia and perceived spy for western nations.

10    A delegate refused to grant the visa on 18 October 2012. As a result, the appellant applied to the Tribunal for review of that decision.

11    By a decision made on 28 February 2013, the Tribunal rejected the appellant’s claims and affirmed the delegate’s decision. Its reasons may be summarised as follows.

12    The Tribunal first set out the appellant’s claims, including those made orally before it. The Tribunal then considered whether it was satisfied that the appellant is a person to whom Australia owes protection obligations so as to satisfy the criterion for a protection visa in s 36(2)(a) of the Act on the ground that he was a refugee (the refugee criterion). At the relevant time, it was necessary for the Minister (and therefore the Tribunal on review) to be satisfied that, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, the appellant is unable or unwilling to avail himself of the protection of his country of nationality. Further, by virtue of s 91R(1) (since repealed), the persecution feared must involve serious harm to the appellant, and systematic and discriminatory conduct. Serious harm includes a threat to the person’s life or liberty, or significant physical ill-treatment.

13    First, despite expressing some doubts, the Tribunal proceeded on the basis that the appellant was employed for some time on an international base in Afghanistan as he alleged (Tribunal reasons at [132]). The Tribunal also accepted country information that individuals associated with international forces are at risk of harm if identified as having undertaken that work by the Taliban, other extremist groups, or Pashtun sympathisers of the Taliban (Tribunal reasons at [133]). However, the Tribunal did not accept that the appellant will be imputed to have a political opinion supportive of the Afghan Government or the international forces because it did not consider that he will be identified now or in the reasonably foreseeable future as having worked with the international forces (at [133]-[136]). As to the latter, the Tribunal regarded as “[m]ost significant” (at [134]), the appellant’s actions after his employment with the international forces in taking on employment involving a public position for a number of years without being identified as having worked for the international forces (see also the Tribunal reasons at [129]). For the same reasons, the Tribunal did not consider that the appellant had a real chance of serious harm on the roads of Afghanistan by reason of an imputed political opinion (at [150]-[151]).

14    Secondly, the appellant’s claims to have a well-founded fear of persecution on other grounds were rejected by the Tribunal based upon its assessment of the country information. In particular, the Tribunal did not accept that the appellant’s home region in Afghanistan is dangerous, based upon country information. Furthermore, the Tribunal considered that the overall weight of the country information indicates that there is no evidence of a general campaign by the Taliban insurgency to target Hazara Shias, or that Hazaras are being persecuted by the government of Afghanistan on a consistent basis or discriminated against in a manner that would amount to serious harm as then required by s 91R(1)(b) of the Act (Tribunal reasons at [144]-[146]). The Tribunal also considered country information submitted by the appellant and his agents reporting on attacks including a bomb attack by an extremist group in 2011 targeting Shias. However, the Tribunal found at [146] that “[w]hilst these attacks were horrific and targeted at Shias, their unprecedented nature and the lack of Afghani Taliban involvement mean they do not alter the Tribunal’s assessment that Hazara Shias do not face a real chance of persecution, now or in the reasonably foreseeable future.” For the same reasons, the Tribunal at [150] rejected the appellant’s claim to fear harm on the roads in Afghanistan by reason of his religion and ethnicity. Nor, based upon country information on the risks of returning to Afghanistan, did the Tribunal accept that the Taliban would find out that the appellant had been returned from a Western country and seek to harm him for that reason (Tribunal reasons at [148]-[149]).

15    The Tribunal concluded at [153] on the claim for protection as a refugee that “individually and cumulatively, the [appellant] does not have a real chance of serious harm on return to Afghanistan, and does not have a well-founded fear of persecution for a [Refugee] Convention reason, now or in the reasonably foreseeable future”.

16    The Tribunal then turned to consider whether, in the alternative, the appellant satisfied the criterion under s 36(2)(aa) of the Act for the grant of a protection visa (the complementary protection criterion). In order to satisfy this criterion, the Tribunal must be satisfied that Australia owes protection obligations to the non-citizen because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being returned to her or his country of origin, there is a real risk that she or he will suffer “significant harm”. “Significant harm” is defined in s 36(2A) to include arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

17    The appellant claimed relevantly that there was a real risk that he will face significant harm arising from his work, ethnicity and religion, and as a perceived spy for western nations. The Tribunal again found based on country information that there is no systematic intent by the Taliban or Pashtuns to harm Hazara Sayyed Shias unless “there is a further reason for that harm beyond the racial and religious indicators that the applicant states will be the reason as to why he will face significant harm…” (at [155]). Nor did the Tribunal accept that country information supports the appellant’s assertion that the Taliban and Pashtuns pose a real risk of significant harm in Afghanistan for Hazara Sayyed Shias in particular (at [156]). With respect to the claim to fear significant harm arising out of the appellant’s previous employment with international forces (which may have provided a “further reason” as to why he faced a real risk of significant harm), the Tribunal found at [157] that:

… the Taliban and Pashtuns have no knowledge that the [appellant] is a former employee of international forces. Accordingly the Tribunal does not consider that there is any reason why the Taliban or the Pashtuns from the [appellant’s home] area would seek to harm the [appellant].

18    Again, with respect to the appellant’s claim to fear a real risk of significant harm arising out of his return to Australia or identification as a presumed spy for a Western country, the Tribunal found that it “does not consider that there is a systematic targeting of returnees, and that such returnees are not being considered to be agents of western countries” (Tribunal reasons at [158]). Having found that the “exacerbating condition” of the appellant’s previous employment with international forces would not create a real risk for the appellant, the Tribunal did not accept that the appellant will face a real risk of significant harm for these other reasons (ibid). Finally, the Tribunal did not consider that there was a real risk he will face significant harm on the roads in Afghanistan or that he will be unable to find work as a Hazara Sayyed Shia (Tribunal reasons at [161]).

19    The Tribunal concluded at [163] that individually and cumulatively the appellant does not have substantial grounds for believing that there is a real risk he will suffer significant harm so as to satisfy the complementary protection criterion.

2.2    The FCC decision on judicial review of the Tribunal’s decision

20    The appellant sought an extension of time in the FCC within which to seek judicial review of the Tribunal’s decision some two years and seven months out of time (FCC reasons at [2]). Two proposed grounds of judicial review were identified in the draft application which may be summarised as follows:

(1)    the Tribunal failed to consider an essential integer of the appellant’s claims to fear persecution by reason of the withdrawal of the international security forces from Afghanistan (which he had assisted while in Afghanistan); and

(2)    in reaching the conclusion at [163] that the appellant did not have substantial grounds for believing that there was a real risk he would suffer significant harm so as to satisfy the alternative complementary protection criterion, the Tribunal did not sufficiently consider the evidence and conclusion accepted by it at [101].

21    It will be seen that the first proposed ground challenged the Tribunal’s findings on the refugee criterion, while the second proposed ground challenged the Tribunal’s conclusion with respect to the complementary protection criterion. Further both grounds concern the same integer of the appellant’s claims, albeit that the second focuses specifically upon the Tribunal’s reasons at [101] (quoted below at [41]).

22    The FCC refused the application for an extension of time under subs 477(2) of the Act. In so holding, the FCC took into account that a refusal to extend time would have a significant impact on the appellant (FCC reasons at [25] and [42]). However, the FCC judge found that the length of the delay underscored the need for the appellant to provide an adequate explanation for the delay which the FCC judge found he had not done (FCC reasons at [31]-[34]). Nor did his Honour consider that either proposed ground of review had any reasonable prospects of success, finding rather that:

43. … I accept the submission of the first respondent that the Tribunal made a finding of greater generality with respect to the position of Hazara Shias and that this rendered making a specific finding with respect to the likely impact of the withdrawal of international forces unnecessary.

2.3    The FCA decision on judicial review of the FCC decision

23    As earlier explained, the appellant sought judicial review of the FCC decision in the FCA.

24    Despite there being no pathway to appeal from the refusal by the FCC to extend time under s 477(2) of the Act, it was not in issue below that the FCA had original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) to entertain the application for judicial review of the Federal Circuit Court decision: see, for example, Tang v Minister for Immigration and Citizenship [2013] FCAFC 139, (2013) 217 FCR 55 at [10]-[11] (the Court); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 (DMI16) at [36] (the Court); FCA reasons at [14]. Nor was it in issue that it was necessary for the appellant to establish jurisdictional error on the part of the FCC in order to found the application in the FCA for certiorari to quash the FCC’s decision: Craig v South Australia (1995) 184 CLR 163 (Craig) at 179-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); see also the FCA reasons at [15]. We explain what is meant by the concept of jurisdictional error in this context below at [46] – [47].

25    The grounds of review were set out in the amended originating application dated 27 April 2017 and were conveniently distilled into five propositions by the FCA judge at [17], namely:

(1)    The formation of the state of satisfaction prescribed in s 477(2)(b) of the Act is a jurisdictional fact, the existence of which pre-conditions the exercise of the power to extend the time in which an application for review before the FCC may be made;

(2)    The primary judge did not make an order extending the time because he was not satisfied that it was in the interests [of] the administration of justice to grant the extension within the meaning of s 477(2)(b);

(3)    In so concluding, the [FCC] judge erred in his assessment that the proposed judicial review proceedings had no reasonable prospects of success;

(4)    accordingly the primary judge, “did not actually form the state of satisfaction under s 477(2)(b)”; and

(5)    the absence of the relevant jurisdictional fact caused the FCC to act outside its jurisdiction and/or constructively fail to exercise its jurisdiction.

26    As such, as her Honour explained at [18], “[t]he question of whether the [FCC] erred in determining that the proposed proceedings had no reasonable prospects of success is a critical question arising on the [application]. Counsel for the appellant accepts that this application cannot succeed unless that error is established.” The FCA judge held that no such error had been established in the FCC decision.

3.    CONSIDERATION

3.1    The applicant’s submissions in support of the appeal

27    In his oral submissions on the appeal, the applicant elaborated upon his fear that his life would be in danger if he were returned to Afghanistan and as to the reasons why he delayed in instituting the FCC proceedings. It is understandable that the appellant would wish to focus upon these matters and, in particular, to seek to persuade the Court to accept his claims to fear harm in Afghanistan. However, this Court does not have power to reconsider the appellant’s claims to fear harm or to consider whether he should be granted a protection visa. Nor does this Court have power to rehear the application for an extension of time within which to seek judicial review of the Tribunal’s decision. Rather, as we explain later in these reasons, this Court is limited to determining whether or not the FCA correctly held that the FCC had not fallen into jurisdictional error in dismissing the application for an extension of time in which to seek judicial review of the Tribunal’s decision.

28    In her oral and written submissions, Ms Russell (in her capacity as a McKenzie friend) also made submissions about the appellant’s reasons for not filing his claim in time by reference to evidence which could have been, but apparently was not, led before the FCC and the deteriorating situation in Afghanistan since the Tribunal’s decision. However, these are not matters which could demonstrate jurisdictional error in the FCC’s decision.

29    Ms Russell also submitted that the FCC erred in finding that the Tribunal made a finding of greater generality with respect to the position of Hazara Shias rendering it unnecessary to make a specific finding as to the likely impact of the withdrawal of international forces. As such, she submitted that the FCA judge fell into error in upholding the FCC’s decision.

30    For the following reasons, we consider that no error has been demonstrated in the FCA’s decision dismissing the application for judicial review of the FCC decision not to grant an extension of time.

3.2    Matters not in issue

31    It is helpful first to explain those matters which were not in dispute.

32    First, no issue was taken in the FCA with the factors identified as relevant by the FCC to a determination of whether to grant an extension of time including, in particular, the need for the appellant to demonstrate that the proposed grounds of review “at least have a reasonable prospect of success” (FCC reasons at [30]; see also FCA reasons at [9]). This did not require, as the FCC held at [30], that the appellant demonstrate that he would ultimately be successful.

33    Secondly, it was not contested in the FCC or before the FCA judge that the withdrawal of the international forces was a sufficiently material aspect of the appellant’s claims to fear persecution as to require the Tribunal to engage with the issue and determine it: FCA reasons at [44]. As such, the parties rightly assumed in the FCC (and the FCA) that a failure by the Tribunal to consider that claim as a component integer of the appellant’s claims would result in jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 [25] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, (2001) 233 FCR 136 at [42] (Allsop J (as his Honour then was)). Thus the FCA found that the issue before the FCC turned upon whether the appellant’s construction of the Tribunal’s reasons was reasonably arguable, namely, that the Tribunal failed to consider the likely deteriorating security situation in Afghanistan upon the withdrawal of international forces in finding that it was not satisfied that the appellant did not face a real chance of persecution or a real risk of significant harm now or in the foreseeable future (FCA reasons at [44]).

34    Thirdly, in determining the issue of construction, it was not in issue that the Tribunal’s reasons are to be read fairly: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). As the Full Court explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE):

46. …The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

35    Bearing these matters in mind, the Full Court in WAEE further explained that:

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

36    Applying these principles, apart from the integer of the claim relating to the future withdrawal of international troops, it was not suggested that the Tribunal had not comprehensively addressed the applicant’s claims. Furthermore, as counsel for the appellant acknowledged in the FCC and the FCA, the Tribunal adverted specifically to the appellant’s claim that the predicted withdrawal of international troops formed a basis for his claimed fear of persecution and the Tribunal accepted the need to consider the impending withdrawal when assessing the future security situation in Afghanistan (Tribunal reasons at [101]). As such, the FCA below correctly identified the issue in the following passage:

41    … The case was not one in which the Tribunal had failed to make any reference in its reasons to an issue. Rather, the [appellant’s] case was one in which the Tribunal, having adverted to the issue, failed to engage with the evidence bearing upon it and ultimately failed to grapple with and determine it. More particularly, the Tribunal had failed to engage in any probative reasoning process concerning the implications of the evidence to which it had referred at [101], so it was submitted.

37    It follows that the inference that the Tribunal ultimately did not determine the issue is not readily to be drawn (applying the approach in WAEE).

3.3    Did the FCC err in assessing whether the proposed application for judicial review had any reasonable prospects of success?

38    The critical part of the FCC’s reasons is found at [43] where it held that the proposed application for judicial review did not have reasonable prospects of success on the basis that the Tribunal “made a finding of greater generality with respect to the position of Hazara Shias and that this rendered making a specific finding with respect to the likely impact of the withdrawal of international forces unnecessary…”.

39    In finding that the FCC did not fall into error in so reasoning, the FCA found that the FCC had implicitly held that the interpretation for which the appellant contended was not reasonably open, a conclusion with which the FCA agreed (at [51]). Specifically, the FCA held that, having regard to the express references to the withdrawal of international forces by the Tribunal (at [101]) and the cross-referencing in its reasons:

52.     … it must follow that the Tribunal rejected the [appellant’s] contention that the situation in [the appellant’s home region] would materially deteriorate upon the forces withdrawing, so as to expose him personally to a greater risk of persecution. The Tribunal’s conclusions in respect of that question may well be factually wrong, and perhaps seriously so. But it cannot be said that the Tribunal did not engage with the question at all.

40    We agree with her Honour’s reasoning. The appellant’s construction of the Tribunal’s reasons was not in our view tenable. In this regard, we recognise that the question for the FCC was to be addressed at a reasonably impressionistic level: see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (the Court). Nonetheless the Tribunal’s reasons are lengthy and quite complex so that it requires a degree of care to expose why the appellant’s proposed grounds of judicial review were not reasonably arguable.

41    As earlier explained, the Tribunal expressly referred to the appellant’s claims concerning the relevance of the withdrawal of international forces from Afghanistan to the risks he faced, and recognised the need to consider evidence on this issue in reaching a view about the security situation in Afghanistan “currently and into the foreseeable future”. Specifically at [101], the Tribunal found that:

Views about the security situation in Afghanistan currently and into the foreseeable future must be informed by consideration of the forthcoming 2014 “draw-down” of international forces and ongoing debate regarding the negotiations with the Taliban initiated in 2011. None are entirely positive. Respected commentator Dr Antonio Giustozzi suggests that the prospects for a successful political settlement in Afghanistan before 2014 appear limited because the opposition has little respect for the Karzai government, and that what happens after 2012 depends on the ability of the Taliban to adapt. He notes that there are already signs the Taliban are “… retraining their forces for more conventional operations such as taking towns and cities” and outlines the possibility of the Afghan state being reduced to Kabul and areas dominated by ethnic minorities in the event of a successful Taliban push in 2014/15.

42    Importantly, it is clear from this passage that, while the Tribunal found that no views looking forward are “entirely positive”, it gave weight to the opinion of Dr Giustozzi in describing him as “respected” and, it may be inferred, accepted his opinion that it was possible that the Afghan state may be reduced relevantly to “areas dominated by ethnic minorities” in the event of a successful Taliban push in 2014/15.

43    This finding, in turn, must be construed in the context of the Tribunal’s reasons as a whole. Importantly it forms part only of the extensive examination of country information undertaken by the Tribunal (at [44]-[119]). Significantly for present purposes, in the course of that discussion the Tribunal referred to country information that the Taliban had little or no influence in the appellant’s province where Hazaras form the overwhelming majority (at [146]), that his home province is generally regarded as “a secure province”, that there was no evidence of a general campaign by the Taliban insurgents to target Hazara Shias, that Hazaras were not being persecuted on a consistent basis, and that they now enjoyed a substantial share in the power structure, and economic and social life, of Afghanistan. Later in its reasons, the Tribunal accepted this country information when it considered the appellant’s claims to fear harm as a Hazara Sayyed Shia, on the basis that it was appropriate to consider “country information regarding the Hazara population relevant to the applicant’s claims.” (Tribunal reasons at [142]; see also at [143]-[147]). The Tribunal adopted the same approach with respect to the appellant’s remaining claims, aside from his claim to fear persecution by reason of his employment with the international forces which (it will be recalled) was rejected on the ground that he would not be so identified (Tribunal reasons at [133]-[137]). As such, it is apparent that the Tribunal did not consider that there was a real risk that the withdrawal of international forces would result in a successful Taliban push into the appellant’s home region in the foreseeable future. In other words, the finding rejecting the appellant’s claim to fear harm by reason of the withdrawal of the international troops was plainly subsumed into the finding that his claims should be assessed against country information regarding the Hazara population which was relevant to his claims.

44    It follows that no jurisdictional error is evident in the FCC’s finding that the proposed grounds of the application for judicial review of the Tribunal were not reasonably arguable. There is accordingly no appealable error of law in the FCA’s decision dismissing the application for judicial review of the FCC’s decision.

3.4    Was the error allegedly made by the FCC jurisdictional in any event?

45    Finally, while it is unnecessary to decide given the conclusion at [44] above, in our view an error of the kind alleged here could be put no higher than an error within the FCC’s jurisdiction in any event.

46    The jurisdiction of an inferior court to decide matters is, of course, 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 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.

47    In line with this, the Full Court recently in DMI16 explained that:

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)…; see also the helpful analysis by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585… at [29]-[34].

48    Applying these principles, it was not suggested, for example, that the FCC had misconstrued s 477(2) of the Act, thereby misconceiving the nature of its function or extent of its powers. Nor was there any suggestion that the FCC had misunderstood the manner in which it should approach an assessment of whether or not the proposed application for judicial review had any reasonable prospects of success as an aspect of determining whether it was in the interests of justice to extend time under s 477(2)(b): semble BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 at [39] (Perry J). The disagreement was simply with the FCC’s assessment of the merits of the proposed application for judicial review. That is plainly an error within the FCC’s jurisdiction.

4.    CONCLUSION

49    It follows that no error has been demonstrated in the reasons of the FCA for refusing the application for judicial review of the FCC decision. The appeal must be dismissed with costs.

Associate:

Dated:    22 November 2018