Federal Court of Australia

CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 10 of the affidavit affirmed by the applicant on 18 March 2021 be admitted into evidence. Paragraphs 1–9 of the affidavit are rejected.

2.    The affidavit of Mr McLean affirmed on 6 November 2020, including Annexure LM1, be admitted into evidence.

3.    The orders of the Federal Circuit Court of Australia made on 26 March 2020 be set aside.

4.    The application for an extension of time to file and serve the application for review of a decision of the Administrative Appeals Tribunal be remitted to the Federal Circuit Court of Australia, differently constituted, to be considered in accordance with law.

5.    The second respondent pay the applicant’s costs of the application before the Federal Circuit Court of Australia and of this application 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    The applicant seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Federal Circuit Court of Australia dismissing his application for an extension of time under s 477(2) of the Migration Act 1958 (Cth): CZA19 v Minister for Immigration & Anor [2020] FCCA 686. The application before the Federal Circuit Court judge related to a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the second respondent (the Minister) to refuse to grant the applicant a protection visa.

2    The applicant is a citizen of Poland who arrived in Australia as the holder of an eVisitor visa on 28 October 2009. The applicant was arrested and charged at the border with “Importing a Commercial Quantity of a Border Controlled Drug”. On 2 September 2011, he was convicted and sentenced to a term of imprisonment of 10 years and 8 months. On 16 August 2010, after the expiry of his eVisitor visa, the applicant was granted a Criminal Justice Stay Visa. This visa was cancelled on 6 December 2018 and the applicant has been in immigration detention since that date.

3    On 14 January 2019, the applicant applied for a Class XA Subclass 866 protection visa. A delegate of the Minister refused the applicant’s visa application because the delegate was not satisfied that the applicant was a non-citizen in respect of whom Australia has protection obligations.

4    On 24 May 2019, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. An officer of the Melbourne Immigration Transit Accommodation Centre confirmed that the decision was provided to the applicant on 27 May 2019.

5    The applicant did not file an application for review of the Tribunal’s decision within the specified statutory time limit. The exact date on which the applicant filed his application for review and application for an extension of time is important to the resolution of his application before this Court. The circumstances surrounding the filing of the applicant’s application in the Federal Circuit Court are set out in the section of these reasons dealing with the second substantive ground advanced by the applicant. In summary, the applicant sent by facsimile a bundle of documents, including an application for review and an application for an extension of time, to the Perth Registry of the Federal Circuit Court on 2 July 2019 which was accepted for filing by the Registry almost a month later, on 1 August 2019, these dates being 4 and 34 days, respectively, after the expiry of the time for filing the application for review.

6    The matter came before the Federal Circuit Court judge on 13 February 2020. The applicant had filed an application for an adjournment on 28 January 2020, seeking time to obtain pro bono legal assistance. The applicant appeared unrepresented at the hearing via videolink from the detention centre. He was assisted by a Polish interpreter. The Federal Circuit Court judge explained to the applicant during the hearing that he required an extension of time and that he was 34 days out of time. The matter was adjourned for four weeks. The applicant did not point out to the Federal Circuit Court judge that he recognised that he needed an extension of time and that, in point of fact, he had made such an application for an extension of time in writing; nor did he say that the written application was sent four days after the relevant date.

7    On 12 March 2020, the matter was heard before the same Federal Circuit Court judge. The applicant again appeared unrepresented via videolink with the assistance of an interpreter. In a judgment dated 26 March 2020, the Federal Circuit Court judge refused the application for an extension of time and dismissed the matter. His Honour held that there was no proper explanation as to why the application was filed out of time and that the grounds advanced in the applicant’s substantive application lacked sufficient merit to warrant an extension of time.

8    On 23 July 2020, after obtaining pro bono legal assistance, the applicant filed in this Court an originating application for relief under s 39B of the Judiciary Act and a statement of claim, seeking a writ of certiorari quashing the Federal Circuit Court’s decision and a writ of mandamus directing the Federal Circuit Court, differently constituted, to determine the application for an extension of time in accordance with law. By ss 24(1)(d), 24(1AA)(a) and 20(3)(b) of the Federal Court of Australia Act 1976 (Cth) there was no appeal available to this Court from the refusal to extend time.

9    In his amended statement of claim filed on 6 November 2020, the applicant alleged that the Federal Circuit Court judge failed lawfully to apply the “interests of the administration of justice” test in s 477(2) of the Migration Act for the following reasons:

1.    The First Respondent failed to consider the merits of the grounds of judicial review articulated by the applicant with a view to considering whether the grounds were reasonably arguable.

Particulars

a)    The First Respondent identified that the applicant had complained that the Tribunal had, inter alia, misapplied s 5J of the Migration Act and erred in its finding about effective protection in Poland.

b)    The First Respondent was obliged to consider whether either of those matters gave rise to grounds of judicial review that were reasonably arguable.

c)    The treatment by the Tribunal at [135]-[150] of its decision record of the issue of effective protection under ss 5J and/or 36(2B) was, at least prima facie, erroneous and contrary to authority.

d)    The First Respondent failed to consider whether there was sufficient merit in the prospective grounds of judicial review raised by the applicant’s complaints to justify the extension of time.

2.    The First Respondent failed to give proper consideration to the applicant’s explanation for delay, having regard to the context of the applicant being in immigration detention, having been moved between detention centres and being a person who was not fluent in English.

3.    The First Respondent’s treatment of the applicant’s explanation for delay was unreasonable.

10    The third ground is no longer pressed by the applicant.

11    The matter was initially heard by the Chief Justice on 9 December 2020. Upon considering the submissions advanced by the parties during that hearing, on 14 January 2021 after the parties had consented to the course proposed, the Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act that the original jurisdiction of the Court in relation to the whole of the matter shall be exercised by a Full Court. The matter was heard by the Full Court on 31 March 2021.

The nature of jurisdictional error

12    There was no debate about the proposition that it was necessary to demonstrate jurisdictional error in the approach of the Federal Circuit Court judge for the applicant to succeed.

13    It was recognised in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 that the misconstruction of the relevant statute that led to an inferior court misconceiving the nature of the function which the court was performing or the extent of its powers in the circumstances of the particular case was an example of jurisdictional error. It was an error of that kind that was found to have arisen in Kirk: 239 CLR at 573–575 [72]–[74]. However, it was emphasised too (as it had been in Craig v South Australia [1995] HCA 58; 184 CLR 163) that the line between jurisdictional error and mere error may be particularly difficult to discern in such cases.

14    Therefore, a threshold issue arises as to whether errors of the kind alleged by the applicant, if established, would demonstrate jurisdictional error or would be “mere error”, that is, within jurisdiction.

15    As the reasoning in Craig demonstrates, judicial authority is ample and considerable. This is necessary in order for judges to be able to quell controversies. Appeal rights, though now common, are creatures of statute and allow for a further judicial determination. However where, as here, there is no right of appeal, the nature of judicial power must be respected by all, including other judicial officers. The question to be considered when it is said that there has been jurisdictional error by a judge of an inferior court is properly described as a “limited question” that turns on whether the judge misconceived the nature of the function which the court was performing.

16    Significantly, the extent of the authority of a Federal Circuit Court judge is not established by a description of the kind of matters that may be brought before the Court by reference to their subject matter. Rather, its original jurisdiction is confined to that which is vested in the Court by laws made by Parliament by express provision: s 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and by any necessary implication provided for by s 10(1)(b). As a result, the extent of the authority of a judge of the Federal Circuit Court is a question of statutory construction. In the present case, the authority of the Federal Circuit Court judge was to extend the time within which to undertake a review where “it is necessary in the interests of the administration of justice” for such an order to be made.

17    Therefore, although the authority of the Federal Circuit Court judge was invoked when an application was made seeking an extension of time, the jurisdiction of the Federal Circuit Court was confined by the terms of the statutory provision conferring its jurisdiction. In consequence, an error by the Federal Circuit Court judge as to the scope of such a provision is different to an error as to the law to be applied in the course of the exercise of judicial authority. As s 477(2) confers jurisdiction, it was not for the Federal Circuit Court judge finally to adjudicate on the limits of the Federal Circuit Court's authority on the application. If the decision that was made was guided by a misunderstanding as to the nature and extent of the jurisdiction conferred by s 477(2) then that error could be jurisdictional. It would be jurisdictional if it caused the Federal Circuit Court judge to extend time in circumstances that were not authorised by the provision. It would be jurisdictional if it caused the Federal Circuit Court judge to deny the existence of any authority to extend time in circumstances where there was such authority. It would be jurisdictional if it caused the Federal Circuit Court judge to undertake a consideration of a kind that departed from the nature of the consideration that was required. It would be jurisdictional if the Federal Circuit Court judge concluded that it would be in the interests of justice to extend time, but nevertheless did not do so.

18    However, the jurisdiction of the Federal Circuit Court judge was also circumscribed by the nature of the application that was brought in the particular case. The fact that the Federal Circuit Court judge adopts the correct understanding of the nature and extent of the jurisdiction to extend time that is conferred by s 477(2) is not the end of the matter. That understanding must still be applied in determining the application that was brought by the party invoking the jurisdiction.

19    The relevant jurisdiction that was invoked required the Federal Circuit Court judge to adjudicate whether an extension of time was necessary in the interests of justice on the basis of the matters raised by the particular application. In that regard, two matters are well established. First, no considerations are mandatory for the purposes of the exercise of the discretion: WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 19 at [29]–[33] (Katzmann, O'Bryan and Jackson JJ). Secondly, in determining where the interests of justice lie, the proposed grounds of review should be evaluated at a reasonably impressionistic level (although the repeated statements to that effect may be no more than judicial guidance): Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [58]–[67] (Colvin J).

20    By way of introduction, the two errors alleged by the applicant in the present case were sought to be characterised as manifesting a misconception by the Federal Circuit Court judge of the nature and circumstances of the application in a fundamental manner. It was said that the jurisdiction that was sought to be invoked by the applicant had never been exercised by the Federal Circuit Court judge.

21    To the extent that the grounds raised were to the effect that “proper” consideration was not given to whether a particular ground had merit or the applicant's explanation for delay, they do not articulate jurisdictional error. The task entrusted to the Federal Circuit Court judge was to both identify and evaluate, in the particular circumstances of the application, what matters were of significance when it came to determining whether an extension of time was necessary in the interests of justice.

22    Further, it was not said that the Federal Circuit Court judge was guided by an incorrect understanding of the nature and extent of the jurisdiction to be exercised such that an unduly narrow or wide view of the relevant judicial authority guided the decision. Rather, what was said was that the Federal Circuit Court judge misunderstood or overlooked the particular review grounds that the applicant would advance if an extension of time was granted (ground 1) and that the Federal Circuit Court judge misunderstood the period of the extension that was sought (and required) in order for those grounds to be advanced (ground 2).

Ground 1: Whether the Federal Circuit Court judge failed to consider the merits of the grounds of judicial review articulated by the applicant

23    The applicant submitted that the Federal Circuit Court judge failed to consider the grounds of judicial review which were articulated by the applicant in the affidavit sworn by him on 25 February 2020.

24    The grounds advanced by the applicant relate to [135]–[150] of the Tribunal’s decision. At [135], the Tribunal accepted that the applicant had a prima facie real chance of serious harm arising “as a person of interest to members of organised crime in Poland”. The Tribunal then considered the question of whether the applicant could avail himself of “effective protection” from that threat of harm from the Polish authorities, within the meaning of ss 5J(2) and 5LA of the Migration Act. Section 5J(2) states that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA provides:

Effective protection measures

(1)    For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

 (a)      protection against persecution could be provided to the person by:

   (i)     the relevant State; or

(ii)      a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)      the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)      A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)      the person can access the protection; and

(b)      the protection is durable; and

(c)      in the case of protection provided by the relevant State–the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

25    At [136]–[140], the Tribunal cited country information about corruption in Poland and the Polish judicial system. Based on that country information, at [144]–[147], the Tribunal found that the applicant would have effective protection, as defined in ss 5J(2) and 5LA(1), and therefore did not satisfy the refugee criteria in s 36(2)(a) of the Migration Act. For the same reasons, at [148]–[150], the Tribunal found that the applicant did not face a real risk of significant harm and did not satisfy the complementary protection criteria in s 36(2)(aa) of the Migration Act.

26    In his submissions to this Court, the applicant submitted that the Tribunal misapplied the test in s 36(2B)(b) by failing to consider whether the applicant could avail himself of effective protection from the specific harm that the Tribunal accepted he faced, namely harm from organised crime figures. Section 36(2B)(b) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm. The applicant alleged that the Tribunal relied on the broad and general findings in [144] of its decision, being that the Polish law enforcement system did not have a reputation for widespread corruption and that Poland had a reasonably effective police force and impartial judicial system, to conclude that the risk of significant harm to the applicant was reduced below the level of a real risk. The applicant submitted that, instead, the Tribunal should have assessed the level of available protection by reference to the actual harm feared and the applicant’s individual circumstances. The applicant cited Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211 at [36] in which the Full Court stated that the prescribed standard of protection in s 36(2B)(b) was not satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and the non-citizen has access to such protection. Instead, the Court’s focus must be on the circumstances of the individual non-citizen, rather than the State’s criminal justice system. The applicant submitted that the Tribunal should have considered the specific harm claimed by the applicant and the question of whether that risk of harm would prevail even if protection from the authorities was available: see ABAR15 v Minister for Immigration (No 2) [2016] FCA 721; 242 FCR 11 at [60] (Charlesworth J). So framed with the precision advanced in this Court, the submission has some immediate attraction, at least as an error of law.

27    The applicant did not frame this ground of judicial review in such precise terms before the Federal Circuit Court judge. In his originating application, the applicant stated “The respondent failed to properly exercise his discretion under s 36(2)(a), (aa), (b) or (c) of the Migration Act 1958 (the Act) and s 5J(1)”. On the second page of an affidavit affirmed by the applicant on 25 February 2020, which was accepted for filing by the Federal Circuit Court Registry on the same date, the applicant stated:

GRANT FOR APPEAL

1. The respondent did not properly apply provisions 36(2A) a, c, d and in connection with 5 (1) a, b, d migration act 1958.

2. The respondent did not properly apply the provisions of 36(2)(aa) act 1958 in connection with section 5J(1) a.b.c referring to the report on the organization of human rights and the European court where serious violations of the Convention and Article 7 of European law were confirmed. Report on torture in Poland. Read Human Rights Report …

28    At pages 4–10 of his affidavit, the applicant set out the errors he alleged in the Tribunal’s decision with reference to the paragraph number of the decision record and the page number of the Court Book prepared for the Federal Circuit Court review. The effect was to create a long list of complaints which it was necessary for the Federal Circuit Court judge to interpret and classify in order to evaluate whether they had any merit as raising a ground of jurisdictional error. In respect of [135]–[150] of the Tribunal’s decision and the country information cited by the Tribunal therein, the applicant contended, in summary, that that the Tribunal had declined to make particular findings of fact urged or contended by the applicant and had undertaken a factual assessment of available information which the applicant contended was not correct or reliable. The applicant contended that he had suffered physical harm from criminal organisations in Poland and that changes to Polish law and politicisation of the Polish judiciary had occurred since his departure from Poland such that his fear as to an absence of protection was justified. The applicant referred to a report of the Human Rights Commission in support of his claims.

29    The Federal Circuit Court judge identified the applicant’s grounds of judicial review at [48] and [55]–[61] of his Honour’s reasons, addressing the claims made in the applicant’s originating application, affidavit and oral submissions. At [56], the Federal Circuit Court judge stated:

As best as I can make out, there is really only one ground. That ground is that the Tribunal did not undertake an assessment of his claims, under s.36 of the Act, in a proper, lawful manner. I put this to the Applicant and he agreed. The matters that he wished to point out to me were his “particulars” of that ground.

30    At [62]–[68] of his decision, the Federal Circuit Court judge set out his reasons for concluding that there was no error evident in the Tribunal’s decision and thus that there was not sufficient merit in the applicant’s application to warrant an extension of time:

62. The complaints that were made by the Applicant were mostly arguments against the findings or conclusions made by the Tribunal. The Applicant complained that documents that he had given to corroborate his story [were] not taken into account. However, the Applicant did not have any of these documents translated, nor did he asked for them to be translated. He did not claim to the Tribunal that the documents corroborated his account. This is illustrated in a submission he made both in his February 2020 affidavit and in the hearing before this Court; that the hospital records would corroborate his story that he was poisoned in a prison and dumped at a bus stop. This was the first time that such a claim was made.

63. It would be tedious and unhelpful to go through each and every one of the complaints made by the Applicant. They included claims that there was a wrong assessment of the witnesses that the Applicant produced to the Tribunal; that there were improper questions asked by the Tribunal; that s.5J of the Act was misinterpreted; that protection in Poland is not guaranteed; that Poland is guilty of human rights abuses and the country information used by the Tribunal was wrong; and, that the mental health of the Applicant would suffer if he were returned to Poland.

64. Because my task in this case is not to assess whether or not a jurisdictional error has occurred, but rather to assess whether the Applicant has sufficient merit in his application to warrant this Court giving him leave to file the application out of time, I have not gone through each of the points as I would if this were a review of the Tribunal decision.

65. There is nothing to suggest that the Tribunal took into account “irrelevant considerations” or failed to have regard to “relevant considerations”. The Tribunal decision, itself, was quite comprehensive and spanned 175 paragraphs. There was no stone unturned by the Tribunal, and there was a full assessment of each of the claims made by the Applicant.

66. The Tribunal complied with all of its statutory duties. The Applicant was invited to submit material and attend a hearing in which he gave evidence. He was additionally invited to provide post-hearing information. The Applicant accepted this opportunity.

67. The simple fact of the matter is this: the Tribunal has rejected the Applicant’s story, labelling it as “elaborate”, a “fanciful political conspiracy” and “far-fetched”. The Tribunal also noted a number of inconsistencies and the absence of independent corroborative evidence to support the Applicant’s claims. All of this is within the remit of the Tribunal.

68. It has been held that the Tribunal may reject an Applicant’s claims on the basis that the narrative provided is inherently unlikely (see: SZKOK v Minister for Immigration and Citizenship [2010] FMCA 90 at [30]. This was certainly an option open to the Tribunal on the evidence provided. The Tribunal reached this conclusion after a careful consideration of the Applicant’s claims. The fact that the Tribunal simply did not accept the narrative provided by the Applicant is not indicative of any error on the part of the Tribunal.

31    The applicant submitted that the Federal Circuit Court judge failed to appreciate that the applicant sought to agitate a ground that the Tribunal had erred in its interpretation of “effective protection” under the Migration Act. Having failed to appreciate that ground, the Court’s task of assessing the merits of that ground on an “impressionistic basis” was not undertaken and the jurisdiction that the Federal Circuit Court was called upon to exercise thus remained unexercised.

32    The applicant proposed as an alternative formulation of ground 1 that the Federal Circuit Court judge failed to give sufficient consideration to the proposed grounds of review in the manner required by s 477(2) of the Migration Act. Consistent with the High Court’s comments in Kirk 239 CLR 531, that approach, according to the applicant, represented a misapprehension of or disregard for the task required by the statute.

33    In support of these submissions, the applicant referred to the decisions of Steward J in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400 and Colvin J in AMB19 v Minister for Home Affairs [2020] FCA 439. In CKX16, Steward J held that the failure of the Federal Circuit Court to consider, impressionistically, the merits of a proposed ground of review, which on its face appeared to be substantive, was jurisdictional error in the exercise of the discretion in s 477(2). In AMB19, Colvin J held that the applicant had raised concerns about the Tribunal’s credit findings in oral submissions, which then triggered an obligation on the Federal Circuit Court to consider whether there was any merit in those concerns. The failure of the Federal Circuit Court judge to do so in that case amounted to jurisdictional error.

34    In cases like the present, there is an important distinction between a claim that the Federal Circuit Court judge did not deal with the nature of the application that was made (on the one hand) and a claim that the Court on review should conclude that the Federal Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit (on the other hand). A claim of the latter kind is unlikely to be a claim of jurisdictional error because to seek to identify the nature of the grounds and to assess whether they have merit for the purpose of determining whether it was necessary in the interests of justice to extend time is at the heart of performance of the (within jurisdiction) judicial task. Therefore, the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered. Even then, it is to be noted that when reasons are used to determine whether there has been a failure to deal with the nature of the application that has been made, it is only the crucial arguments that are to be addressed by judges in their reasons and it is for the judge to formulate the issues by considering the application: DL v The Queen [2018] HCA 26; 266 CLR 1 at 12–13 [33].

35    It is because of the difficulty in applying these distinctions in some instances that the High Court has emphasised that the line may be difficult to draw. It is for these reasons that the decisions in CKX16 and AMB19 should be seen to be at the borderline. They do not establish a general principle that a failure to consider a ground that might be discerned after the event by a court on review as not having been addressed demonstrates jurisdictional error in cases where an applicant seeks to invoke the jurisdiction conferred by s 477(2) to extend time.

36    The case must be one where it can be concluded, in effect, that the jurisdiction was not exercised because the nature of the application that was made (being an application to extend time to seek review on particular grounds) was not the nature of the application that was considered.

37    The Federal Circuit Court judge was confronted with a body of material from which there can be extracted and rearticulated what might be seen to be a good point. The Federal Circuit Court judge did not identify it. That may have been appealable error, but it was within the jurisdictional task of identifying the claims and dealing with them. Any error was within jurisdiction.

38    In his submissions to this Court, the applicant submitted that the Federal Circuit Court judge failed to consider a further error said to have been identified by the applicant in his affidavit relating to translation errors. The applicant submitted that he had asserted, in substance, that there were errors in translation during the Tribunal hearing which affected the understanding of the evidence presented during the hearing. Counsel for the applicant pointed to pages 4–5 of the applicant’s affidavit, where he stated in relation to the applicant’s interview with the delegate:

8. The delegate of the Minister did not provide the applicant with a copy of the recording of the hearing, the applicant had no full opportunity to prove the Minister’s error.

9. Due to the lack of a copy of the recording from the interview of Aplicant [sic] with the Minister’s Delegate, the Tribunal did not determine the Minister’s errors based on the errors and comments of the Minister. The applicant did not submit once correct the mistakes of the Minister Delegate in the appeal as well as during the trial.

…

The delegate did not send me a record of the interrogation, where he clearly turned my statement so as not to give me protection, he resisted confusing the facts and ignoring the truth, to a mistake in the translation but why I was not given a recording and in doubt the benefit for the applicant was not used. A lot of mistakes were made where I presented these mistakes before the tribunal but nothing was corrected. The tribunal made mistakes and with many shortcomings presented the version which does not correspond to the factual and legal status.

39    With respect to the applicant and his legal representatives, it is difficult to understand how this passage can amount to a claim by the applicant that there were errors in translation during the Tribunal hearing. We do not find that errors in translation during the Tribunal hearing was an error alleged by the applicant before the Federal Circuit Court and, as a result, the Federal Circuit Court judge did not commit jurisdictional error by failing to consider this ground of review. To the extent that the above passage alleged that there were errors made in translation of the applicant’s interview with the delegate, the Federal Circuit Court judge addressed this claim at [59] of his reasons:

The Applicant also complained about matters to do with the Delegate and that the Tribunal did not [consider] the errors that the Delegate had made. Obviously the Applicant has misunderstood that the Tribunal is there to look at his matter with a fresh set of eyes. He is [sic] also not understood that this Court is reviewing the decision of the Tribunal only.

40    For these reasons, ground 1 of the applicant’s application must fail.

Ground 2: Whether the Federal Circuit Court judge failed to give proper consideration to the applicant’s explanation for delay

41    Section 477(1) and (3)(c) of the Migration Act imposed a time limit of 35 days to apply for a review of the Tribunal’s decision before the Federal Circuit Court. The applicant did not file an application for review within the statutory time limit, which expired on 28 June 2019.

42    The factual circumstances surrounding the filing of the applicant’s application for an extension of time to file an application for review are important to the resolution of this ground. On 2 July 2019, the applicant arranged for a bundle of documents to be sent by facsimile from Yongah Hill Immigration Detention Centre to the Federal Circuit Court Registry in Perth. The bundle of documents included an application for review of a decision under the Migration Act which was undated and an affidavit affirmed by the applicant on 2 July 2019. On the second page of the application for review, beneath the question “Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?” the applicant had ticked a box next to the answer “No”.

43    The body of the applicant’s affidavit stated: “I am applying for the judicial review of the decision of the Administrative Appeals dated 24/05/2019. Attached and marked annexure ‘A’ is a copy of the AAT decision dated 24/5/2019”. Hand-written below this were the words: “‘B’ Application for an extension time ‘C’ App Exemption from paying Court”. Annexed to the affidavit were the Tribunal’s decision record, marked as “A”, and an application for an extension of time marked as “B”. The application for an extension of time, signed by the applicant, appears to have been initially dated 26 June 2019, but this date was crossed out and replaced in handwriting with 2 July 2019. The affidavit and annexures were witnessed by a Justice of the Peace.

44    At the bottom of each page of the application for review, affidavit and annexures was a facsimile time and date stamp which showed that the documents had been faxed to 00892687208, being the facsimile number of the Perth Registry of the Federal Circuit Court, on 2 July 2019 at 3:38 pm. The application in this Court proceeded on the basis that the Registry received the documents by facsimile on that date at that time.

45    For reasons that are not explained in the materials before the Court, the “Notice of Filing and Hearing” applied by the Perth Registry of the Federal Circuit Court to the front of both the application for review and affidavit stated the following:

This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 1/08/2019 2:40:00 PM AWST and has been accepted for filing under the Court’s Rules. Filing and hearing details follow and important additional information about these are set out below.

46    Below the Federal Circuit Court stamp on the Notice of Filing and Hearing attached to the application for review were the words “Dated: 2/08/2019 2:30:18 PM AWST”. Beneath the stamp fixed to the Notice of Filing at the front of the affidavit were the words “Dated: 2/08/2019 2:30:22 PM AWST”.

47    The Federal Circuit Court judge addressed the applicant’s delay in filing his application at [2]–[3], [53] and [73]–[77] of his Honour’s reasons, as follows:

2. As can be seen from the dates, the Applicant has filed his application well outside of the 35 day limit permitted.

3. When the matter first came before me on 13 February 2020, I explained to the Applicant that he had not filed the application on time. The Applicant said that this was due to the conditions within the detention centre. To this end, I allowed the Applicant to make a verbal application for an extension of time.

…

53. As stated above, I explained to him that he had not filed the application on time and that he was 34 days late in filing the application. The Applicant explained that the conditions of the detention centre did not allow him to seek the legal advice he required and he believed he was entitled to. I explained to him that there were numerous Applicants who had appeared before the Court unrepresented and legal representation was not an entitlement. However, I nevertheless allowed the Applicant’s application and adjourned the matter for 4 weeks. I also explained to the Applicant that the matter would be proceeding whether he received the pro bono assistance or not.

…

73. I do not find that there is any merit in the excuse that the Applicant has given for his failure to file his application within the 35 day time limit. The Applicant may be unrepresented, but he seems to have quite a deal of experience with legal systems both here and in Poland. The notice given to him upon the refusal by the Tribunal, was clear that the Applicant had 35 days in which to make this application.

74. I do take into account that the Applicant has been in detention and may have been moved to different detention centres, but there is no evidence that illustrates what “roadblocks” the detention system put in place so as to prevent him being able to file the application within time.

75. The fact is that the Applicant did not even apply for an extension of time when he filed the application. Notwithstanding that his application form noted that an extension of time was required if the application was not made within 35 days of the date of the Tribunal decision, the Applicant still ticked the “no” box in answer to the question as to whether he was seeking an extension of time.

76. It is clear to me that the Applicant was very cavalier as to his responsibilities to file his application within time.

77. I do note that the Minister has not submitted that there is any undue prejudice afforded to him if the extension of time were to be granted.

48    It is clear from these passages in his Honour’s reasons that the Federal Circuit Court judge did not appreciate that the applicant had sent his application for review by facsimile to the Registry on 2 July 2019. Further, it is clear that his Honour did not appreciate that the applicant had also sent an application for an extension of time to the Registry on that date. In these circumstances, the Federal Circuit Court judge stated that an oral application would suffice and it was so treated by him thereafter.

49    The transcript of the hearing before the Federal Circuit Court judge on 13 February 2020 (the first time the matter came before his Honour) demonstrates that the solicitor acting for the Minister indicated to his Honour that the applicant had provided an application for an extension of time as an annexure to his affidavit affirmed on 2 July 2019. That transcript also reflects that the Federal Circuit Court judge explained to the applicant that his application was brought 69 days after the Tribunal made its decision. The applicant did not dispute this during the hearing before the Federal Circuit Court judge on that date. At [10] of an affidavit affirmed by the applicant on 18 March 2021, which was read, subject to objection, at the hearing before the Full Court (and the admissibility of which we consider below), the applicant confirmed that the Federal Circuit Court judge had stated his application was filed 69 days after the Tribunal’s decision. The applicant stated that he was confused by what the Federal Circuit Court judge had said, “but assumed that the Judge must be correct and did not question it”.

50    During the hearing before the Full Court, the Minister accepted that the applicant had sent by facsimile an application for an extension of time on 2 July 2019. The Minister did not, however, accept that the documents had been filed on that date and instead submitted that the Federal Circuit Court judge did not err in finding that the documents were filed on 1 August 2019, 34 days out of time. The Minister submitted that the applicant has not proved what happened to the documents after they were sent by facsimile on 2 July 2019 and in those circumstances the Court should take the filing date as that shown on the Notice of Filing and Hearing attached to the front of each document.

51    Rule 2.05(2) and (3) of the Federal Circuit Court Rules 2001 (Cth) provides for the time at which a document is considered filed in the Federal Circuit Court:

2.05 How documents may be filed

…

(2)     A document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4.

(3)      However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:

(a)      if the whole document is received by 4.30 pm on a day the Registry is open for business—on that day; and

(b)      in any other case—on the next day the Registry is open for business.

52    As the applicant’s bundle of documents were sent by facsimile to the Perth Registry at 3:38 pm on 2 July 2019, and those documents were accepted for filing, the documents should be deemed to have been filed on the date of receipt. Thus, the applicant filed a written application for an extension of time to file an application for review on 2 July 2019. The Federal Circuit Court judge misunderstood both the fact of the existence of this written application for an extension of time and the date of its filing.

53    At this stage it is necessary to consider evidence sought to be read before us to which objection was taken. In his affidavit affirmed on 18 March 2021 the applicant sought to explain (in [1]–[9]) how the documents came to be filed on 2 July 2019 by reference to procedures at the detention centre. These matters were not addressed in detail before the Federal Circuit Court judge. For that reason they can be seen as irrelevant. It may be that if the Federal Circuit Court judge had appreciated the shortness of the relevant time, this evidence may have emerged, but we consider the better course is to reject these paragraphs. Paragraph 10 explains why the applicant did not contradict the Federal Circuit Court judge on 13 February 2020. It should be admitted.

54    The Minister also objects to [11] and Annexure LM1 of the first affidavit of Mr McLean, the applicant’s lawyer. That evidence is admissible to reveal the utility of any relief – that there is an arguable error in the approach of the Tribunal to effective protection.

55    As the matter was argued it developed beyond the expression of the point in ground 2 in the amended statement of claim:

The First Respondent failed to give proper consideration to the applicant’s explanation for delay, having regard to the context of the applicant being in immigration detention, having been moved between detention centres and being a person who was not fluent in English.

56    As the argument developed, the applicant put the matter on the basis that the written application to extend time had not been dealt with; but rather that an oral application initiated by the exchange on 13 February 2020 had been dealt with. The Minister objected to this way of expressing the matter as not pleaded. There was some force in this objection, though there could have been no prejudice in the matter being so argued.

57    We do not consider, however, that the matter is to be analysed by fine distinctions as to the juridical nature of two different applications. There was one application for an extension of time. The Federal Circuit Court judge thought it was oral and 34 days out of time; in fact it was in writing four days out of time. His Honour dealt with it on the basis of the former, not the latter. The fundamental nature of the misconception can be seen by the way his Honour expressed himself about it in [73]–[76] of his reasons: see [47] above. It was, from the nature of the application, a material misconception as to what the applicant was seeking the Court to determine.

58    Consequently, the nature and character of the application has been so fundamentally misunderstood by the Federal Circuit Court judge as to lead to the conclusion that he was not dealing with the matter as placed before the Court.

59    This is not to criticise the Federal Circuit Court judge personally, but the Registry and the application of Rules cannot be divorced from the Court as an institution (as opposed to a judge individually) dealing with the applicant’s application filed on 2 July 2019. The Federal Circuit Court misapprehended fundamentally and materially the extent of the extension required. As the extent of the extension sought was the subject matter of the application, in substantive effect a different application was addressed. The relevant judicial task was not completed, indeed not entered upon: another application has been considered.

60    For these reasons the applicant has demonstrated jurisdictional error on the part of the Federal Circuit Court judge. For the reasons given in dealing with ground 1, this is not a case where it might be said that the application was so lacking in merit that a grant of relief would be futile.

61    We would make the following orders:

(1)    Paragraph 10 of the affidavit affirmed by the applicant on 18 March 2021 be admitted into evidence. Paragraphs 1–9 of the affidavit are rejected.

(2)    The affidavit of Mr McLean affirmed on 6 November 2020, including Annexure LM1, be admitted into evidence.

(3)    The orders of the Federal Circuit Court of Australia made on 26 March 2020 be set aside.

(4)    The application for an extension of time to file and serve the application for review of a decision of the Administrative Appeals Tribunal be remitted to the Federal Circuit Court of Australia, differently constituted, to be considered in accordance with law.

(5)    The second respondent pay the applicant’s costs of the application before the Federal Circuit Court of Australia and of this application as agreed or assessed.

Associate:

Dated: 21 April 2021