FEDERAL COURT OF AUSTRALIA

FEZ17 v Minister for Home Affairs [2019] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of Sri Lanka who applied for a Safe Haven Enterprise Visa on 14 July 2016 on the basis that he feared the Sri Lankan authorities due to: his Tamil ethnicity, his imputed association with the Liberation Tigers of Tamil Eelam, and his status as a failed asylum seeker who sought refuge in Australia. A delegate of the Minister for Home Affairs determined that the appellant was not entitled to the grant of the visa. The decision of the delegate was then the subject of a review by the Immigration Assessment Authority under Part 7AA of the Migration Act 1958 (Cth), and on 23 August 2017 the Authority reached the same conclusion.

2    The appellant then applied for an extension of time within which to commence proceedings in the Federal Circuit Court of Australia (FCCA) within the original jurisdiction of that Court. By s 477(1) of the Act, the application must be filed within 35 days of the migration decision. In the present case, the application was filed 63 days outside the time required by s 477(1). The FCCA had power under s 477(2) of the Act to make an order extending the 35 day period as appropriate if it was satisfied that such an order was necessary in the interests of the administration of justice.

3    In FEZ17 v Minister for Immigration & Border Protection [2018] FCCA 1216 (Judge Street), the FCCA declined to grant the extension sought. It found that the factors to take into account in considering the application were: the extent of the delay; the explanation for the delay; any prejudice the Minister might have suffered because of the delay; and the merits of the proposed application. Having regard to these factors, the FCCA considered that there was not a sufficient explanation for the delay and that although no particular prejudice had been suffered by the Minister by reason of it, the merits of the application did not warrant the grant of the extension. Accordingly, the FCCA concluded that it was not satisfied that it was necessary in the interests of the administration of justice to extend the time.

4    The appellant then applied pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the FCCA, which the learned primary judge refused; FEZ17 v Minister for Home Affairs [2018] FCA 1689 (Thawley J).

5    The appellant now appeals from that decision. He relies on two grounds, namely that:

(1)    the primary judge made an error of law in concluding that there could be no jurisdictional error by the FCCA in circumstances where the FCCA erred in its ascertainment of the merits of the substantive case for judicial review; and

(2)    the primary judge erred in fact and law in not finding that the grounds of judicial review placed before the FCCA were meritorious and ought to have been weighed by the Federal Court in favour of granting an extension of time.

6    The appellant appeared in person at the appeal with the assistance of an interpreter, and did not file written submissions in support. He made oral submissions to the effect that his appeal should be allowed because the domestic position in Sri Lanka had recently deteriorated following the terrorist bombings in April 2019. He also submitted that the failure to file his initiating documents in the FCCA was the fault of his lawyers. Neither of these matters is relevant to the question of whether or not the decision below was affected by appealable error. This Court has no power to grant a visa to the appellant, which is a matter for the Minister. The current state of affairs in Sri Lanka is accordingly irrelevant. Furthermore, the appellant has not in his several affidavits, or in any arguments made on his behalf, previously raised the behaviour of his lawyers as a reason for his failure to file his application in the FCCA within the 35 day period under s 477(1).

7    The Minister was represented by Mr G. Johnson of counsel, who filed written submissions.

8    The appeal should be dismissed with costs.

9    The first ground of appeal proceeds on a mistaken premise, namely that the primary judge concluded that there could be no jurisdictional error in circumstances where the Court erred in its ascertainment of the merits of the substantive case for jurisdictional review. In carefully expressed reasons addressing the jurisdiction of this Court to consider error on the part of the FCCA in an application for an extension of time under s 477 of the Act, the primary judge identified that relief of the type sought by the appellant may be obtained where there is either:

(1)    jurisdictional error on the part of the FCCA; or

(2)    non-jurisdictional error on the face of the record of the FCCA.

10    The circumstance in (2) did not arise in the present case. In relation to jurisdictional error, after considering relevant authority, including Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179-180, the primary judge said at [21]:

It follows from the foregoing that examples of possible jurisdictional error on the part of the Federal Circuit Court include:

(1)    failure to take into account (or taking into account) a matter which the statute conferring the court’s jurisdiction expressly or impliedly required be taken into account (or ignored) as a precondition to the exercise of power;

(2)    where the court misconstrues the 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 (here, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern); and

(3)    failure by the court to provide procedural fairness.

11    In considering the particular grounds of review that the appellant proposed to advance in the event that an extension of time were to be granted, the learned primary judge’s reasoning was as follows ([23] – [31], emphasis added):

[23]     The asserted jurisdictional errors of the Federal Circuit Court relied upon by the applicant centred on the contended prospect of success of the judicial review grounds which he proposed to advance to that court, if an extension of time were granted.

[24]     The Federal Circuit Court concluded that the proposed judicial review grounds had no, or insufficient, prospects to warrant granting an extension of time: J[15], J[19]-[25].

[25]     This was one factor the Federal Circuit Court took into account in refusing to extend time. The others were the extent of the delay, the explanation for the delay and any prejudice which the other party (the Minister) might suffer if an extension were granted: J[15]-[18].

[26]     The approach taken by the Federal Circuit Court in considering the four matters identified in [24] and [25] above did not reveal jurisdictional error. There is nothing to suggest the primary judge did not understand that the source of the court’s power to extend time was s 477(2) of the Act and that it was the terms of that section which governed whether to extend time, namely whether he was “satisfied that it is necessary in the interests of the administration of justice to make the order”. The four matters taken into account were relevant – see: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]-[27]. It was not suggested that there were further matters he was asked to, but did not, take into account. There was no suggestion that the primary judge treated the factors he considered as exhaustive of the matters which might be relevant – cf: Mentink at [32]-[38]; BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [20]-[25].

[27]     In SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150, Gageler J considered whether the Federal Circuit Court had committed a jurisdictional error in refusing to extend time under s 477(2), saying:

The only question before me … is whether the Federal Circuit Court made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to section 477(2) of the Migration Act. As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection [2016] HCA Trans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time.

That limited question cannot be answered in the affirmative in the present case. Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). The Federal Circuit Court addressed itself to a consideration of those matters and, by any standard, the reasons of the Federal Circuit Court are unobjectionable.

[28]     In ALL16, Gleeson J referred to SZTUT, setting out extracts of the passages of Gageler J’s decision set out above. Her Honour then stated at [24]:

For the same reasons, it is not appropriate for this Court to enter into an examination of whether, in its view, the proposed grounds of appeal did or did not have reasonable prospects of success. That question is squarely within the jurisdiction of the FCCA.

[29]     As her Honour said, this Court’s view of the prospects of success of the proposed grounds is not the issue. Nor would it be sufficient to point to non-jurisdictional legal error in its reasoning on the question of prospects of success – see paragraph [22] above. On the other hand, the Federal Circuit Court’s treatment of the question of the prospects of success of the proposed application for judicial review to that court might reveal that it misunderstood the nature of its function or exceeded its jurisdiction – see: MZABP at [68] (set out at paragraph [19] above); WZAUA at [52]. That was not shown to be the case here.

[30]     In AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36, to which his Honour referred in SZTUT, Gageler J considered whether jurisdictional error had been established in relation to a decision of a Judge of this Court in refusing to extend time under s 477A(2) of the Act. His Honour noted that a writ of prohibition or mandamus would lie for jurisdictional error, “but that such a writ will not lie to set aside [an order] of that court either for non-jurisdictional error of law or for an error in finding a fact which it is within the jurisdiction of that court conclusively to determine”. His Honour’s reasons for refusing relief included:

In Craig v South Australia (1995) 184 CLR 163 at 179 to 180, it was explained by five members of the Court that:

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.

That explanation is apt to describe the ordinary jurisdiction of the Federal Court and it is apt to describe the jurisdiction which was exercised by [the primary judge] in the present case.

There being no suggestion in the present case that [the primary judge] misconceived the nature of the function he was performing in deciding whether or not to award an extension of time under section 477A(2) of the Act, I am unable to characterise either of the errors particularised in the amended application as errors of jurisdiction.

[31]     The Federal Circuit Court’s task was to consider exercising its discretion under s 477(2) of the Act to extend the time in which the applicant could apply for judicial review in that court under s 476. The Federal Circuit Court understood its task: J[1], J[15]. It did not misconstrue the statute or misconceive the nature of its function or exceed its jurisdiction. More specifically, it is not apparent from the reasons of the Federal Circuit Court in dealing with prospects of success (J[20] to J[24]) that it misunderstood the nature of its jurisdiction or the extent of the power conferred. There was no matter which the Federal Circuit Court failed to take into account which the statute conferring its jurisdiction required it to take into account, either expressly or impliedly, as a precondition to the exercise of its power. It did not take into account any matter which it was not permitted to take into account. The applicant did not submit that he had been denied procedural fairness and nor is any denial of procedural fairness apparent.

12    It is apparent from the emphasised passage in [29] of his reasons that the primary judge considered whether the FCCA’s treatment of the prospects of success of the proposed application for judicial review might reveal jurisdictional error. Having regard to the application of the test by the FCCA, the primary judge considered the reasons of the FCCA, and found that it had regard to the prospects of success of the appellant’s grounds of judicial review; see [31] in the excerpt above. Nevertheless, at [33] – [38], out of an abundance of caution, the primary judge went on to consider the merits of each of the grounds advanced by the appellant, and concluded that the FCCA did not err in concluding that the grounds of review he proposed to advance did not have sufficient prospects of success to warrant leave being granted.

13    Having regard to the proper enquiry required to determine whether the FCCA made a jurisdictional error in exercising its discretion to extend time under s 477(2) of the Act, no error of the type alleged in ground 1 is apparent in the learned primary judge’s reasoning. Included within that assessment was an acknowledgement that the FCCA’s treatment of the merits could reveal a misunderstanding of its function, or an excess of its jurisdiction, but that it did not in this case. The primary judge correctly concluded that the FCCA did not misconceive the nature of the function that it was performing. No jurisdictional error has been demonstrated.

14    Accordingly, ground 1 of the appeal must be dismissed.

15    In ground 2, the appellant contends that the primary judge erred in fact and law in not finding that the grounds of judicial review advanced by the FCCA were meritorious and ought to have been weighed in favour of the grant of the extension. This ground in effect repeats the substance of ground 1, and must suffer the same fate.

16    In the future, the Minister may wish to have regard to the observations of Rares J in DUS17 v Minister for Home Affairs [2018] FCA 2120 in considering the appropriate approach at first instance to cases such as the present.

17    The appeal must be dismissed. The appellant must pay the costs of the first respondent.

Associate:

Dated:    17 May 2019