FEDERAL COURT OF AUSTRALIA

DMI16 v Federal Circuit Court of Australia [2017] FCA 1179

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the second respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    By an amended application dated 17 July 2017, the applicant applies for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of orders of the Federal Circuit Court made on 31 May 2017. Those orders concerned an application for an order for an extension of time under s 477(2) of the Migration Act 1958 (Cth).

2    The Refugee Review Tribunal (the Tribunal) had made a decision on 6 March 2015, affirming a decision of a delegate of the Minister to cancel the applicant’s subclass 866 protection visa.

3    As found by the Tribunal, the applicant is a national of Egypt. He travelled to Australia in January 2011 and made an application for a protection visa on 24 February 2011. In his application the applicant claimed, essentially, that he and his family suffered religious persecution. He claimed he had been badly mistreated and had been facing daily harassment and threats. The applicant was granted a protection visa on 9 August 2012. On 7 November 2012 the applicant sponsored his spouse for a Partner visa. As a result of the evidence provided by the applicant’s spouse in her interview at the Australian Embassy in Cairo, the applicant was issued with a Notice of Intention to Consider Cancellation on 7 February 2014. He provided his response in March 2014. On 3 October 2014 the protection visa held by the applicant was cancelled. The delegate found that the applicant provided incorrect answers on the application form and that he did not comply with s 101 of the Migration Act. The applicant then sought review in the Tribunal of the delegate’s decision.

4    The Tribunal’s decision turned on the provisions of the Migration Act whereby visas based on incorrect information may be cancelled. For example, the Tribunal found, at [99], that the applicant’s claims made in his protection visa application were fabricated and, at [108], that the applicant made a calculated and deliberate decision to be untruthful.

5    At [112]-[114], the Tribunal said:

The Tribunal has formed the view that Australia’s non-refoulement obligations will not be breached as a result of the cancellation but even if Australia does have non-refoulement obligations towards the applicant ([a] claim the Tribunal does not accept), the Tribunal has formed the view that such obligation does not override other relevant factors.

The Tribunal has weighed these factors against the adverse findings that the Tribunal has made above regarding the provision of incorrect answers. The Tribunal concludes that the seriousness of the breach, the likely effect it would have had on the decision to grant the visa and the other instances of non-compliance outweigh the circumstances favouring the applicant in exercising the discretion to cancel the visa.

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

6    The Tribunal referred to a Department of Foreign Affairs and Trade Thematic Report on Egyptian Copts of 28 January 2014.

7    Section 477(1) of the Migration Act required an application to the Federal Circuit Court for judicial review of the Tribunal’s decision to be made within 35 days of the date of the decision. The last date for making that application was 10 April 2015. The application was not lodged until more than 19 months later, on 17 November 2016.

8    Section 477 was in the following terms, so far as relevant:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(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.

…

9    By s 476A(3) of the Migration Act, an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that makes an order or refuses to make an order under s 477(2). By his application, the applicant seeks to establish jurisdictional error on the part of the judge of the Federal Circuit Court.

10    By s 8(3) of the Federal Circuit Court of Australia Act 1999 (Cth), the Federal Circuit Court of Australia is a court of record and is a court of law and equity. In that respect it is to be noted that in Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [67], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said, with reference to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163:

The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as 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” (193). The Court said (194) that:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

By contrast, demonstrable error on the part of an inferior court “entrusted with authority to identify, formulate and determine” relevant issues, relevant questions, and what is and what is not relevant evidence was held (195), in Craig, not ordinarily to constitute jurisdictional error. The Court held (196) that:

“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.”

The footnotes, 193-196, refer to Craig at pages 176, 179, 179-180 and 180 respectively.

The grounds of the application for judicial review

11    The amended application contains five grounds which, omitting particulars, were written as follows:

Grounds of the Application

Jurisdictional error

Ground 1

The Federal Circuit Court made jurisdictional error by denying the procedural fairness to the applicant and by misapprehending the nature or limits of the discretion conferred under s 477(2) of the Act by excluding the evidence on the latest country situation in Egypt which was relevant to the consideration for extension of time by the Court.

Ground 2

The Federal Circuit Court made jurisdictional error in that instead of considering whether the case is arguable the court imposed a higher requirement, that is whether the grounds would succeed.

Ground 3

The Federal Circuit Court made jurisdictional error in exercising its jurisdiction.

Ground 4

The Federal Circuit Court made jurisdictional error in that the Court caused apprehension of bias

Non-Jurisdictional Error – For Certiorari only

Ground 5 (as the alternative to Ground 1)

The Federal Circuit Court made an error of law (a non-jurisdictional error) by denying the procedural fairness to the applicant by excluding the evidence on the latest country situation in Egypt which was relevant to the consideration for extension of time by the Court.

Evidence

12    The first matter is to set out the rulings I made on the admissibility of a number of affidavits.

13    The applicant sought to read the following affidavits.

14    First, there was an affidavit affirmed by the applicant dated 8 June 2017. It was stated to be an affidavit in support of an application under s 39B. The affidavit sets out the grounds of review, including particulars. Only paragraph 5 and its corresponding annexure A were ultimately sought to be read. Annexure A was said to be four pages of country information, being media reports dated 27 May 2017 and 28 May 2017. It may be recalled that the date of the Tribunal’s decision was 6 March 2015. I admitted that material but for the limited purpose of showing what it was that the primary judge rejected. Annexure B is the orders made by the Federal Circuit Court on 31 May 2017 and there was no objection to the tender of that material.

15    Second, there was an affidavit affirmed on 17 July 2017 by the eldest son of the applicant and said to be filed in support of the allegation of apprehended bias on the part of the judge of the Federal Circuit Court. I reject the affidavit. As the Full Court said in SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94 at [12] in rejecting the tender of certain paragraphs of an affidavit affirmed by the first appellant:

The paragraphs concern what the first appellant thought about the strength of her case and about the proceedings before the primary judge. We rejected the material as irrelevant. It is irrelevant because a claim of apprehended bias is to be judged by reference to the apprehension of the fair-minded informed lay observer. The litigant is not that person. The test is an objective one: see Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [12], as approved in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [32]. The fair-minded informed lay observer is not to be confused with the litigant or party: Helow v Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416 at [2].

16    The same principle applies to what a close relation of the applicant closely involved in conducting the proceedings thought or felt about the course of the proceedings, particularly where the evidence sought to be adduced is argumentative. I do not regard the decision in Bernert v ABSA Bank Ltd [2010] ZACC 28 at [33]-[34], on which the applicant relied, as standing for any different proposition. The transcript of the hearing before the judge of the Federal Circuit Court will be in evidence.

17    Third, there was an affidavit affirmed on 17 July 2017 by the eldest son of the applicant. It annexes the transcript of the hearing before the judge of the Federal Circuit Court. I admitted that transcript into evidence and take that affidavit as read.

18    Fourth, there was a further affidavit affirmed by the applicant’s eldest son on 2 October 2017. It attaches a copy of what is said to be the Federal Circuit Court Interpreter and Translator Policy. I admitted that subject to relevance. It also attaches a copy of the same deponent’s affidavit dated 15 May 2017 which was rejected by the Federal Circuit Court at the hearing on 31 May 2017. That affidavit purported to provide country information and took the form of news reports apparently related to events in Egypt in February 2017. I admitted that material but for the limited purpose of showing what it was that the primary judge rejected.

19    The first respondent, the Minister for Immigration and Border Protection (Minister) sought to read the affidavit of Ms Kylie-Jade Margaret Crawford, solicitor, affirmed 21 September 2017. It went to the question of the provision or non-provision of an interpreter and the deponent states that at no time after a certain email was sent at 10:22 AM on 30 May 2017 did she, or anyone from the firm of solicitors, cancel or in any way revoke the request for an interpreter which she had instructed her personal assistant to make, that is, to arrange an interpreter for the hearing of the matter listed before the judge of the Federal Circuit Court on 31 May 2017. That affidavit also annexes the email to which I have referred. I admitted that affidavit subject to relevance. Ms Crawford was cross-examined but I do not regard that oral evidence as relevant to any question I have to decide.

Submissions on each Ground and consideration of those submissions

Ground 1

20    Counsel for the applicant submitted that the jurisdictional error was the exclusion by the Federal Circuit Court of evidence on the latest country situation in Egypt which was said to be relevant to the application for extension of time. It was submitted that the Federal Circuit Court refused to admit an affidavit enclosing several news reports and also two other news reports sought to be tendered which had been sent to the “Second Respondent” a day before the hearing in the Federal Circuit Court. This documentary evidence was said to be relevant to the consideration of whether there was any prejudice to the applicant if time was not extended.

21    The judge of the Federal Circuit Court first set out, at [3], a non-exhaustive list of matters to be considered by the Court in an application for an extension of time. This was not the subject of criticism before me. In my view the primary judge correctly understood the Court’s jurisdiction. That list included “the impact on the applicant if the time is not extended…”

22    At [5]-[6] of his reasons for judgment, the judge of the Federal Circuit Court said this:

The applicant’s Counsel sought to adduce evidence concerning the impact on the applicant if the time was not extended. That evidence related to circumstances concerning actual and potential attacks on Coptic Christians in Egypt.

I rejected the tender of that evidence because in my view, it is not part of the process of this Court when considering whether to exercise the power under s.477(2) of the Act, to make any findings of fact of what might occur to the applicant. Nevertheless, even if I had admitted it, it would not have weighed large in my consideration. I accept that it is always possible that an applicant who has once been granted a protection visa or at least applied for a protection visa might face harm upon return to his or her country of origin.

23    The applicant submitted that this showed that the judge of the Federal Circuit Court misunderstood the power under s 477(2) of the Migration Act on the basis that: “The finding the Court had to make was that there was an increased likelihood that the applicant might be harmed based on the latest country information. The Court had the power to make that finding. It misapprehended its power and said it has no power to make that finding.”

24    The applicant also submitted that the judge of the Federal Circuit Court held “that it was not within its jurisdiction to make a finding as discussed above.” I reject that submission. That is not what the judge of the Federal Circuit Court said.

25    In my opinion no jurisdictional error on the part of the judge of the Federal Circuit Court has been established.

26    The judge accepted, as part of the exercise of discretion, that it was possible, at a general level, that an applicant for a protection visa might face harm upon return to his or her country of origin. I also infer that the judge of the Federal Circuit Court, at [6], considered that it would be unlikely that jurisdictional error on the part of the Tribunal could be established by seeking to tender what was said to be up-to-date country information. The tendency of the newspaper articles would be to contradict findings by the Tribunal.

27    Counsel for the applicant accepted that the Federal Circuit Court was not deciding whether or not the applicant was to return to Egypt. In my opinion the impact on the applicant if time was not extended was that the Federal Circuit Court would not hear the judicial review application brought from the decision of the Tribunal. The impact to which the primary judge referred at [3] was not what might happen to the applicant if, further steps having been taken, the applicant were returned to Egypt.

28    That is how I understand what the primary judge said at [6]: “it is not part of the process of this Court when considering whether to exercise the power under s.477(2) of the Act, to make any findings of fact of what might occur to the applicant.”

Ground 2

29    The applicant’s contention under this ground was that instead of considering whether the case was arguable, the judge of the Federal Circuit Court imposed a higher requirement, being whether the ground would succeed. The applicant submitted that to travel beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review was not a function appropriate to a discretion such as that contained in s 477(2).

30    Much of the submissions on behalf of the applicant were directed to the transcript before the judge of the Federal Circuit Court and what was said in the course of the hearing. I do not accept that that is a permissible use of the transcript. Whether the judge made an error going to his jurisdiction in respect of a ground such as the present must appear from the reasons for judgment. I also reject the submission that the catchwords on the cover page of the judgment may be used for this purpose.

31    In my opinion this ground fails. Whether or not the substantive application had any merit was a relevant factor to the exercise of the discretion under s 477(2). I do not accept the submission on behalf of the applicant that had the Court found that ground 2 was arguable “this along with the Court’s finding about Ground 3 … would have neutralised alleged lack of reasonable excuse for delay.”

32    The judge of the Federal Circuit Court found at [18] that there were no real prospects of ground 1 succeeding. Similarly, the judge found at [20] “that ground 2 similarly does not have any reasonable prospects of success.” I see no jurisdictional error in what the judge of the Federal Circuit Court said about ground 3 at [27]:

I say that this ground raises an available argument because I do not need to come to any firm view about it. I think, however, that even though it is an arguable point, I do not consider, in light of all of the other circumstances, including the lack of reasonable excuse for the significant delay of 19 months, that that is sufficient for me to be satisfied that it is necessary in the interests of the administration of justice to make an order extending the period.

33    In my opinion the judge of the Federal Circuit Court did not go beyond an examination of the grounds at a “reasonably impressionistic level”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] (appeal dismissed MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478). Further, this is by no means a case where other criteria for an extension of time were satisfied: compare AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; 244 FCR 401 at [39].

34    Counsel for the applicant accepted that the judge had posed the correct tests. Indeed my attention was drawn to MZABP at [63] where Mortimer J said that the correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. Nevertheless counsel contended, by reference to [20] of the reasons, that the judge did not apply those tests. I reject that submission. In my opinion, at [19]-[20] the judge of the Federal Circuit Court was addressing himself to the reasons of the Tribunal at [63] where the Tribunal said:

As the Tribunal explained to the applicant in the course of the hearing, if these documents had been obtained through bribery or any other form of payment, they may well be registered with the relevant agencies and appear to be genuine. In such case, verification would be unhelpful.

35    It was this which the judge was addressing at [20] in concluding that the Tribunal had a rational basis for considering the requests made by the applicant for enquiries of the authorities. The judge was not himself embarking on an ultimate assessment of the merits of the judicial review application.

36    In assessing whether a judge of a Court has exceeded his or her jurisdiction, much will depend on how the points were developed before that judge. Further, in my view it was open to, if not required of, the primary judge to explore whether or not the grounds had any substance. In my opinion this is what the judge did.

Ground 3

37    The applicant submits under this ground that the Court failed to consider a factor it was required to in exercising its jurisdiction. It was submitted that the “fact that there is no prejudice to the Respondents if an extension was granted, should have been considered as a positive factor in the applicant’s favour, in the balancing exercise that was required. By finding that it was a neutral matter, whereas if there was some prejudice that would be negative matter, the Court misapprehended its jurisdiction.” Again the applicant made reference to the transcript. An appropriate reference is to the reasons of the primary judge, at [4], as follows:

The first respondent has not put forward any prejudice. Whilst Counsel for the applicant suggested that was a positive fact to be taken into account, I disagree. I find that it is a neutral matter. If there were some prejudice, of course, that would be a negative matter.

38    In my opinion this is not a matter going to the jurisdiction of the Federal Circuit Court. What weight to give to the presence or absence of prejudice is a matter within that Court’s jurisdiction when exercising its discretion under s 477(2).

39    The applicant also submitted that the fact that the applicant had no right of appeal “from the Tribunal’s decision” to affirm the cancellation of his protection visa was a mandatory relevant consideration which the judge of the Federal Circuit Court failed to consider. In this respect the applicant relied on AZAFX at [48]. In my opinion, AZAFX at [48] is directed to the question of whether the applicants in that case were deprived of an opportunity of a “successful outcome” in considering whether there was a practical injustice in the context of a denial of procedural fairness. Further, what was said in AZAFX at [48] was qualified by the observation “at least in cases where the proposed grounds of review are arguable and the other criteria for the grant of the extension are satisfied” which is not the present case.

40    I would not accept that in this case, where the submission was not put to the primary judge, it was a mandatory relevant consideration for the purposes of the exercise of the discretion under s 477(2) that if an extension of time were not granted there would be no appeal from the Federal Circuit Court to the Federal Court of Australia.

41    I note in this respect what Wigney J said in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [97] that: “It is also at least doubtful that the absence of appellate review is a matter that a Federal Circuit Court judge is bound to take into account in arriving at a determination under s 477(2) of the Act.” His Honour said, at [98], there was much to be said for the (similar) view expressed by Foster J in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 236 FCR 442 at [69]. I see no reason to depart from those views. An appeal from Wigney J’s judgment was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.

42    I would express the point as being that the discretionary power being exercised by the Federal Circuit Court is whether or not to grant an extension of time. If an extension of time is granted, then there will be a hearing by that Court of the judicial review application, in which proceedings it would be for the applicant to establish jurisdictional error on the part of the Tribunal. The consequence of an unfavourable exercise of the discretion is that there would be no hearing of that judicial review application by the Federal Circuit Court and there would be no appeal from that discretionary judgment to the Federal Court. In my opinion this is a matter of statutory consequence, rather than a mandatory relevant consideration as that expression is understood in this area of the law.

43    The technical expression “mandatory consideration” or “mandatory relevant consideration” is not to be confused or equated with the broad range of matters which a decision-maker may (permissibly) regard as relevant in a non-technical or colloquial sense. I note that in MZABP, in the context of s 477(2) of the Migration Act, at [58] Mortimer J referred to and distinguished relevant factors “in a permissive rather than a mandatory sense”. Many, if not most, matters may be relevant in a permissive or colloquial sense without those matters being mandatory relevant considerations. What must be borne in mind in the present context is that omitting expressly to refer to the statutory consequence is said by the applicant to mean that the Federal Circuit Court made a jurisdictional error in refusing to grant the extension of time. It is in that framework that whether or not a consideration is mandatory, as a matter of statutory construction, is to be addressed.

Ground 4

44    This ground, reasonable apprehension of bias, had two elements: the first was the issue of an Arabic interpreter and the second that the judge of the Federal Circuit Court had demonstrated, primarily by his questions to counsel in the course of the hearing, that he “could not judge the case in a neutral way”.

45    As to the first element, it goes nowhere. The question of an interpreter arose in the Federal Circuit Court in the circumstances that counsel for the Minister wished to cross-examine the applicant. After discussion in the course of the hearing as to the purpose of any cross-examination, that application was withdrawn. The relevant affidavit was read. The occasion for an interpreter did not arise. Then it is submitted that the judge of the Federal Circuit Court was “partial in the way he handled this issue”. In my view there is no basis for that submission.

46    Turning to the second element, in which I include the claim for partiality in the way the primary judge dealt with the question of the interpreter, I have read the transcript of the hearing before the primary judge and there is no basis for a claim of reasonable apprehension of bias, let alone a basis which is “firmly established”: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 at 553-554. The submission of “unequal treatment” of the parties by the judge of the Federal Circuit Court is not made out. If a judge has difficulties with one side of a case and not another, then necessarily more questions will be asked of that side than of the other. In my view the submission of apprehended bias on the part of the judge of the Federal Circuit Court should not have been put.

Ground 5

47    The applicant submits that the failure to admit the country information was a denial of procedural fairness and even if the error was not jurisdictional the applicant is entitled to the remedy of certiorari. In my view this ground requires no separate consideration as I have already concluded that there was no denial of procedural fairness.

Conclusion and orders

48    The application is dismissed, with costs.

Associate:

Dated:    3 October 2017