FEDERAL COURT OF AUSTRALIA

SZTSU v Federal Circuit Court of Australia [2015] FCA 224

THE COURT ORDERS THAT:

1.    The application for judicial review under section 39B of the Judiciary Act 1903 (Cth), dated 27 August 2014, is dismissed.

2.    The applicant pay the second respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

1    This is an application under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of prohibition, certiorari and mandamus against a judge of the Federal Circuit Court. The subject matter of the application is a decision and orders made by the Federal Circuit Court on 31 July 2014 not to extend the time in which the applicant could bring judicial review proceedings under s 476 of the Migration Act 1958 (Cth). The decision of the Federal Circuit Court was made pursuant to the discretionary power given to it in s 477(2) of the Migration Act. Section 477(2) provides:

(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(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.

2    The Minister for Immigration and Border Protection concedes this Court has jurisdiction to entertain the application based on the decision of the Full Court of this Court in Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; [2013] FCAFC 139 at 56 [2]-59 [11]. That decision is binding on a single justice of this Court and, accordingly, I proceed on the basis the Court has jurisdiction. The familiar considerations informing the exercise of discretion under s 477 were set out by Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 at [46]-[48]. Both parties accepted – and it is the fact – that s 477(2)(b) imposes an express precondition to the exercise of discretion in favour of an applicant, namely that the extension of time is “necessary” in the interests of the administration of justice.

3    It should be emphasised that the statutory precondition is to be formed to the satisfaction of the Federal Circuit Court. That Parliament has expressed the precondition in this way becomes relevant to the exercise of this Court’s supervisory jurisdiction, to which I refer below. As Foster J notes in SZRIQ at [47], there are a number of factors commonly referred to by courts considering whether to grant extensions of time. They include whether there is a reasonable and adequate explanation for the delay, the length of the delay, prejudice to other parties, and the merits of the applicant’s underlying case in terms of its arguability. In this proceeding, the background facts are set out in paragraphs 10 to 14 of the decision of the Federal Circuit Court:

Claims for protection

10. The asserted facts on which the applicant, a national of Fiji, sought a protection visa were as follows. On 20 March 2011 the applicant was assaulted and robbed by four indigenous Fijian men on his way home from his work at a bakery; the assault was race related; as a result of the assault he felt constantly under threat; the applicant’s race, appearance and religion as a Fijian Indian Hindu meant he was at risk of harm generally by indigenous Fijians; as an Indian Fijian he was not treated fairly by the police or the military, and he was not protected by the authorities; the military detained and assaulted people who exercised freedom of speech about the government and that the military abused human rights, although he did not claim this had occurred to him.

Tribunal’s reasons

11. The Tribunal accepted the applicant was robbed and assaulted, and that he was assaulted by indigenous Fijians, and there was an element of racism in the attack. The Tribunal also accepted that the applicant has a fear of being assaulted again, but found this was not well-founded because the applicant had not been assaulted again, and the assault, therefore, appears to have been an isolated incident.

12. The Tribunal also accepted that in the past a small number of Hindu temples had been damaged, but the evidence did not point to Hindus being subjected to attacks in recent years. The Tribunal was satisfied the applicant could practice his religion as he wishes.

13. The Tribunal was not satisfied that military personnel will harm the applicant because of his race, appearance, and religion. The Tribunal was satisfied that, although there is still discrimination in society against Fiji Indians that had subsided under Prime Minister Bainimarama.

14. For those reasons, the Tribunal found that the chance of the applicant’s facing persecution for a Convention reason was remote. The Tribunal also concluded it was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk he will suffer significant harm within the meaning of s.36(2A) of the Act.

(Footnotes omitted.)

4    The application to the Federal Circuit Court was substantially out of time. The applicant was self-represented before the Federal Circuit Court and unsuccessfully sought an adjournment to try to secure legal representation. The Federal Circuit Court refused that application on the basis it considered the applicant had sufficient time to arrange legal representation. The separate reasons for refusing the adjournment are not before the Court on this application. It appears from the Federal Circuit Court’s reasons that the applicant provided an explanation for the delay in filing the judicial review application which related to his unfamiliarity with the Australian legal system, his lack of money for a lawyer and his mental trauma and distress that he was suffering at the time. The Federal Circuit Court considered these explanations at paragraphs 23 to 25 of its reasons and found they were not an adequate explanation for the delay.

5    At paragraphs 6 to 7 of its decision, the Federal Circuit Court set out the principles governing consideration of extension of time applications. There is no suggestion on this application that the Federal Circuit Court misstated the applicable principles. Indeed, at paragraphs 17 to 21 the Federal Circuit Court uses the phrase “not arguable” and, in my opinion, clearly discloses in its reasons that it understood the relatively low threshold on this aspect of s 477(2)(b). The Federal Circuit Court judge focused his reasons on consideration of whether there was merit in any of the three nominated grounds of review in the application before him, relying in part (at [7]) on a statement by Murphy J in SZQGO v Minister for Immigration and Citizenship (2012) 125 ALD 449; [2012] FCA 177 at [29], where his Honour said, in the context of an extension of time for the making of an appeal that:

the Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success.

6    This focus, the applicant submitted, gave rise to error in the Federal Circuit Court’s reasoning. I do not accept that submission, for reasons I develop below. The Federal Circuit Court concluded (at [21]-[22]) that there was no merit in any of the grounds relied on by the applicant and expressed its conclusion in the following terms:

21. The Tribunal’s reasons for decision show the Tribunal understood and considered the applicant’s claims. The Tribunal set out the claims the applicant made, the documentary evidence the applicant submitted to the Tribunal, and the evidence the applicant gave before the Tribunal. The Tribunal gave reasons for not being satisfied the applicant had a well-founded fear of persecution. And there is nothing in the reasons for decision that suggests the Tribunal did not provide the applicant with an opportunity to present his case.

22. For these reasons, I am of the opinion there is no merit in the application the applicant proposes to bring if an order extending time were to be made under s.477(2) of the Act.

7    The Federal Circuit Court made it clear at paragraph 26 of its reasons that the sole ground for refusing the extension of time was the absence of merit in the judicial review claim.

8    I infer from this statement, coming as it does after the Court’s consideration of explanation for the delay by the applicant and prejudice to him, that the Court was prepared to give the applicant the benefit of the doubt on other discretionary factors but returned to the question of merit in the grounds of review as being a significant consideration in the particular circumstances before it, harking back to the statement of Murphy J in SZQGO.

9    The applicant focuses in his submissions in this Court on what is said to be a failure by the Federal Circuit Court to find there was a denial of procedural fairness by the Tribunal in relation to a breach of the Tribunal’s obligations under s 424A of the Migration Act. Some time in the applicant’s oral and written submissions is spent developing this argument. The argument is based on the Tribunal’s reliance on an article published in the Sydney Morning Herald, to which the Tribunal referred twice in its reasons. The article concerned an Indo-Fijian man, identified as Vijay, and his views and experiences of the situation in Fiji for Indo-Fijians after the 2006 coup. The applicant seeks to characterise this article as “information” not caught by the exclusions in s 424A(3). In my opinion, it is unnecessary to consider the merits of the applicant’s argument about s 424A and the Tribunal’s use of this article.

10    The invitation to this Court to do so misconceives the supervisory jurisdiction of this Court over the Federal Circuit Court under the Judiciary Act. However, even if I am wrong in that view, I would accept the Minister’s submissions at paragraph 17 of his written submissions that the article is not properly characterised as information “specifically about … another person” within the meaning of that phrase in s 424A(3)(a). I would accept the Minister’s submission that this article is excluded by the terms of that provision from the Tribunal’s obligations under subs (1) of s 424A. Just because it is an opinion about a country situation expressed by an identifiable individual does not take it outside the exclusion, in my opinion.

11    I accept the Minister’s submission set out at paragraph 6 of his written submissions that unless the Federal Circuit Court misconceived the nature of its function or the extent of its powers in considering whether it was necessary in the interests of justice to grant the extension of time sought by the applicant, then it cannot be said to have fallen into jurisdictional error: SZRIQ at [40] and [53]-[54]; SZSXT v Minister for Immigration and Border Protection [2013] FCA 1394 at [14]-[15]. This submission reflects the distinction maintained in Australian administrative law between judicial supervision for legal error of tribunals and exercises of administrative or executive power, and judicial supervision of decisions made in exercise of judicial power.

12    As to the latter, in Craig v South Australia (1995) 184 CLR 163, the High Court drew reasonably clear lines around the circumstances in which an inferior court will exceed its jurisdiction. In Craig, the Court distinguishes (at 179-180) errors which may result in a successful appeal from jurisdictional error when one is dealing with inferior courts:

… 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.

13    In my opinion, this distinction reflects one of the difficulties the applicant faces on this application. That is because what he seeks, in my opinion, is best described as relief in the nature of an appeal. Picking up on remarks made by the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [70], the applicant made a formal submission that Craig was wrongly decided. I am bound by the decision of the High Court, until it is overruled, in this respect and I say no more about that issue.

14    I note that certiorari is available for error of law within jurisdiction on the face of the record (see Wingfoot Australia Partners Proprietary Limited v Kocak (2013) 303 ALR 64; [2013] HCA 43). No argument was developed by the applicant about this ground, the explanation given being the fact that certiorari is not expressly available under s 75(v) of the Constitution and, therefore, cannot be sought alone under the Judiciary Act. Whether that submission is correct or not – and I say nothing about that issue – I do accept the Minister’s submission that this argument, even if raised by the applicant, would fail on current authority because Craig establishes the record does not include the reasons of an inferior court. I accept the submission there is no relevant statutory modification to what constitutes the record, unlike the circumstances in Wingfoot. Ultimately, as I have noted, in any event the applicant did not rely on any such error within jurisdiction.

15    The manner in which the Federal Circuit Court exercises its discretionary power under s 477 of the Migration Act will not result in an excess or want of jurisdiction unless, relevantly, its reasons disclose the kind of misapprehension or misunderstanding set out in Craig. I do not accept the applicant’s submissions that the Federal Circuit Court’s reasons disclose a “denial of jurisdiction” as the applicant expressed it in his submissions.

16    The Federal Circuit Court evaluated the grounds as expressed on the material available to it, and it is clear, in my opinion, on its reasons that there was no error or misunderstanding in the sense explained in Craig. If anything, the argument now developed could not reasonably have been appreciated by the learned Federal Circuit Court judge as being put on behalf of the applicant. The applicant, in substance, contends the Federal Circuit Court was wrong to say the judicial review application had no arguable grounds, because there was an arguable basis for saying there was a breach of s 424A. That, in my opinion, is a quarrel with the view formed by the learned Federal Circuit Court judge appropriately instructed as to the law and within his jurisdiction, and it does not itself disclose error.

17    The applicant, in this proceeding, relied on three grounds before the Federal Circuit Court. The one pressed in this application was ground 3, expressed before the Federal Circuit Court as a generalised allegation of a denial of procedural fairness, even if one reads it generously:

The Tribunal failed to comply with the Migration Act 1958. The Tribunal accepted the applicant’s claim in a way that it can reject the claim. The Tribunal’s grounds for rejection were not evidenced by any references or documents. The Tribunal willingly rejected the claim. The Tribunal was not fair and just according to part 7 of the Act 1958. The Tribunal used excessive power to reject the applicant’s review application. The Tribunal did not act according to substantial justice and the merits of the case. The Tribunal did not consider the circumstances of the applicant and his genuine claim for protection in Australia for his fear for his life. The Tribunal made procedural mistakes.

18    In my opinion, there is no basis for the applicant’s contention the Federal Circuit Court should have been alive to a possible breach of s 424A in the way now articulated. The applicant’s second ground of review, which expressly referred to s 424A, and is dealt with at paragraph 18 of the Federal Circuit Court’s reasons, is not relied on by the applicant in this proceeding.

19    In no way did that second ground of review raise the argument now put, and the Federal Circuit Court dealt with what that ground did raise without any error, in my opinion. There may be circumstances in which, especially with an unrepresented applicant in proceedings such as this, a reviewing court can say that a contention as to a specific kind of jurisdictional error was fairly raised on the material before the Federal Circuit Court, or ought reasonably to have been recognised or appreciated as raised by the Federal Circuit Court. In such circumstances, it might – and I emphasise the word “might” – be contended the Federal Circuit Court has exceeded its jurisdiction in failing to consider an error that was recognisable.

20    For example, it might be said that it was arguable – that is, not fanciful – that in not considering and dealing with an error plainly raised on the material, and generally adverted to in the grounds of review, the Federal Circuit Court failed to form the requisite state of satisfaction under s 477(2)(b). That may be because such an error is a denial of procedural fairness or because the refusal to extend time which results from a failure to consider something reasonably raised on the material is a legally unreasonable exercise of power in the sense set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 by the High Court, or because the Court’s conclusion has been reached by some legally irrational reasoning, as described by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16.

21    In any given case, such outcomes might be possible. However, no such contentions can properly be made about the exercise of the s 477 discretion by the Federal Circuit Court in this case, nor about the approach taken by the Court to that exercise of discretion. No misunderstanding of applicable principles is apparent; the exercise of discretion by the Federal Circuit Court is not legally unreasonable; there is no misapplication of the principles articulated and there is no irrationality in its reasoning process. There is no denial of procedural fairness to the applicant in the Federal Circuit Court because there was no failure to consider a ground of review plainly raised on the material before it.

22    Despite the clear and determined submissions of counsel on behalf of the applicant, I do not accept that the Federal Circuit Court misunderstood or misapplied s 477, in that its state of satisfaction under subs (2) miscarried in the way that it dealt with the third ground of review before it. To the contrary, I consider the Federal Circuit Court dealt adequately, on the material before it, with the contentions put on behalf of the applicant. In those circumstances, the application for judicial review of the Federal Circuit Court’s decision and orders must fail. I note that the circumstances faced by the applicant are yet another example of the tangible effects of the lack of access to legal representation for persons needing to make legal arguments on judicial review in relation to Tribunal decisions.

Associate:

Dated:    4 March 2015