FEDERAL COURT OF AUSTRALIA

SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394

FEDERAL COURT OF AUSTRALIA

SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394

CORRIGENDUM

1.    In paragraph 8 of the Reasons for Judgment, delete the first sentence and insert the following sentence:

The primary judge concluded that the failure of the Tribunal to consider the 2012 UNHCR Eligibility Guidelines (‘the UNHCR Guidelines’) was outweighed by the applicant’s failure to adequately explain the delay in making the application to appeal the decision of the Tribunal.

Associate:

Dated:    19 December 2013

THE COURT ORDERS THAT:

1.    The interlocutory application filed 17 December 2013 be dismissed.

2.    The originating application filed 17 December 2013 be adjourned until 9.30 am on 20 December 2013 for directions.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

1    These reasons concern an urgent originating application and interlocutory application to, inter alia, restrain the first respondent (‘the Minister’) from removing the applicant from Australia. The urgency arises from the fact that the Applicant is scheduled to be removed from Australia under s 198(2) of the Migration Act 1958 (Cth) (‘the Migration Act’) by a flight departing from Sydney at 9.50 pm this evening. A Notice of Intention to Remove from Australia was served on the applicant on 12 December 2013, and no challenge to the validity of such notice has been made. The applications are supported by an affidavit of Zali Burrows, solicitor for the applicant, affirmed 17 December 2013.

2    The second respondent, being the Judges of the Federal Circuit Court of Australia (‘FCCA’), are a party to the proceeding due to the nature of the application as is explained below. The second respondent has indicated by email, due to the urgency of the matter, that the Judges do not wish to appear and intend to file a submitting notice.

3    The basis of the injunction sought is to allow the applicant the opportunity to establish jurisdictional error in the decision of Judge Driver delivered in the FCCA on 6 September 2013: see SZSXT v Minister for Immigration [2013] FCCA 1293. By such decision, the primary judge dismissed an application under s 477(2) of the Migration Act for an extension of time in which to appeal a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 11 April 2013. By such decision, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The application for such visa was based on the applicant’s claim to fear persecution in Iraq in consequence of his religion as a Sunni-Muslim.

4    The applicant claimed before the FCCA, and the primary judge accepted, that it was always the intention of the applicant to appeal the decision of the Tribunal. The applicant claimed that his lawyer before the Tribunal was instructed to lodge an appeal. His Honour concluded that even though the Department contacted the applicant on two occasions pointing out that no appeal had been lodged, a misunderstanding between the applicant and his lawyer before the Tribunal was likely to have occurred. However, the primary judge considered that the applicant was clearly informed by the Department in early May 2013 that no appeal had been lodged.

5    The applicant stated that at about this time he then consulted Mr Laba-Sarkis, an interpreter. Mr Laba-Sarkis provided a handwritten request for the CDs of the Tribunal hearing on 6 May 2013. The appeal period expired 10 days later, namely on 16 May 2013.

6    The application was not made to extend the time for filing of an appeal until 11 June 2013. The primary judge found that there was no adequate explanation for this delay. Having agreed with the Minister’s submissions on this aspect, his Honour then continued at [14] of his decision:

The decision plainly turns upon a relocation finding which dominated the Tribunal’s consideration. The Tribunal accepted that the applicant was at risk of serious harm in his home district in a Shia dominated area of southern Iraq. The Tribunal reasoned, however, that the applicant could avoid that harm by relocating to a Sunni dominated area further north, for example, around Mosul. The Tribunal’s consideration of the issue of relocation is detailed and takes into account practical realities.

7    Significantly, the primary judge then stated at [15]:

What troubles me is that at [68] of its decision the Tribunal records that Mr Ford, in a submission to the Tribunal, noted that the 2012 UNHCR Eligibility Guidelines indicated that relocation is not generally an option in Iraq. That observation is not explained and there is no further consideration of the UNHCR Guidelines in the Tribunal’s reasons. The UNHCR Guidelines do not bind the Tribunal. They may not even necessarily be persuasive. However, if the guidelines say what they are reputed to say at [68] of the Tribunal’s reasons, it is surprising that there is no discussion of them in the Tribunal’s reasoning.

[Footnote removed]

8    The primary judge concluded that the failure of the Tribunal to consider the 2012 UNHCR Eligibility Guidelines (‘the UNHCR Guidelines’) to adequately explain the delay in making the application to appeal the decision of the Tribunal. Accordingly, the primary judge in his discretion dismissed the application for an extension of time.

nature of the applications before the Federal court

9    In addition to seeking an injunction to temporarily restrain the removal of the applicant from Australia, the originating application seeks an order that the decision of the FCCA be quashed and that a writ of mandamus be issued to that Court directing it to determine the applicant’s application to extend the time to appeal the Tribunal’s decision according to law.

10    By reason of s 476A(3)(a) of the Migration Act, this Court does not have jurisdiction to hear a direct appeal against the primary judge’s decision. The applicant is not statutorily barred by s 476A(1) however from bringing an application challenging the primary judge’s decision on the basis of jurisdictional error: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [7] – [9]. The applicant submits that the primary judge fell into jurisdictional error due to:

a)    unreasonably failing to give due weight to an error of the Tribunal, namely that the Tribunal failed to properly consider the UNHCR Guidelines;

b)    taking into account an irrelevant consideration by finding that the proper remedy available to the applicant was to approach the Minister rather than the Court; and

c)     a fraud being committed upon the Court by the representative for the applicant, who represented that he had expertise such as to properly conduct the applicant’s application.

11    The interlocutory application simply sought, in effect, an injunction to restrain the removal of the applicant from Australia until such time as the application against the primary judge’s decision has been resolved.

CONSIDERATION

12    It is critical to understand the distinction between a jurisdictional error of an administrative body and a jurisdictional error of a Court. The distinction was explained by the High Court in Craig v State of South Australia (1995) 184 CLR 163 (‘Craig’), where it was stated per curiam at 176-178:

Jurisdictional error

In considering what constitutes “jurisdictional error”, it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. Putting to one side some anomalous exceptions, the inferior courts of this country are constituted by persons with either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a hierarchical legal system entrusted with the administration of justice under the Commonwealth and State Constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are commonly constituted, wholly or partly, by persons without formal legal qualifications or legal training. While normally subject to administrative review procedures and prima facie bound to observe the requirements of procedural fairness, they are not part of the ordinary hierarchical judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part of an inferior court.

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, 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 pre-condition of the existence 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 (See. eg, R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132.).

[Emphasis added]

13    Their Honours continued at 179 – 180:

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. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

14    These excerpts of Craig were referred to by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, a decision which also concerned an application to quash a decision of the Federal Magistrates Court (as the FCCA then was) refusing an extension of time under s 477(2) of the Migration Act. His Honour stated at [52]:

In my judgment, it was within the power which the Federal Magistrate was exercising in the present case for him to choose which factors he regarded as relevant to the exercise of his discretion and thus to select those factors which he intended to take into account when determining whether it was necessary in the interests of the administration of justice to grant an extension of time to the applicant.

15    The first ground of the originating application in the present proceeding does not disclose jurisdictional error of the kind referred to in Craig. It is not the case that the primary judge mistakenly asserted or denied the existence of jurisdiction or misapprehended or disregarded the nature or limits of his functions or powers. His Honour was required to balance competing considerations in light of whether it was ‘necessary in the interests of the administration of justice’ to allow the application for an extension of time: s 477(2). The primary judge weighed the applicant’s failure to explain the delay in bringing his application as against the issue of the Tribunal’s consideration of the UNHCR Guidelines. In these circumstances, the Court is unable to find that his Honour fell into jurisdictional error.

16    The second ground of the originating application concerns [16] of the primary judge’s decision. It states:

That concern in my mind [being the issue of the Tribunal’s consideration of the UNHCR Guidelines] is, however, not sufficiently compelling to overcome the applicant’s failure to adequately explain his delay in coming to Court. If the Tribunal erred in failing to pay proper regard to the UNHCR Guidelines, the applicant has the opportunity to draw that error to the Minister’s Department, with a view to possible consideration of the circumstances by the Minister for Immigration. The Court has no influence over that process.

17    It is important to understand the primary judge’s observation that the applicant could approach the Minister in light of his Honour’s finding that the issue of the Tribunal’s consideration of the UNHCR Guidelines was not sufficiently compelling to overcome the applicant’s failure to explain the delay in making his application for an extension of time. It is not the case that his Honour suggested that approaching the Minister for reconsideration of the applicant’s refused application for a protection visa was a remedy arising out of any jurisdictional error of the Tribunal. Rather, having decided to reject the application for extension of time due to the applicant’s delay, his Honour was merely indicating that the Minister retained a discretion to grant a protection visa to the applicant. This observation does not amount to jurisdictional error.

18    In respect of the final ground of the originating application, there is insufficient material before the Court to suggest that it is reasonably arguable that the representative for the applicant before the FCCA engaged in conduct constituting fraud to the requisite Briginshaw v Briginshaw (1938) 60 CLR 336 standard. The main complaints of the applicant referred to the representative’s preparation of poor evidence and his failure to file documents on time, with the result that the applicant’s case was not properly prepared. As was affirmed per curiam by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53]:

[T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.

19    In view of the above reasons, the Court is not satisfied that the applicant has shown a sufficient likelihood of success to justify the making of the injunction he seeks: see Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65]. In coming to this conclusion, the Court is mindful that the balance of convenience weighs heavily in the applicant’s favour.

20    Accordingly, the applicant’s interlocutory application will be dismissed. The originating application will be adjourned to 9.30 am on 20 December 2013 for directions.

Associate:

Dated:    17 December 2013