FEDERAL COURT OF AUSTRALIA

CKA15 v Minister for Immigration and Border Protection [2017] FCA 1327

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicants are to pay the costs of the First Respondent, either as agreed or taxed.

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

REASONS FOR JUDGMENT

1    The four Applicants in the present proceeding are a husband and wife and two of their children, namely their two sons. The sons were born in 1991 and 1994. There are also two daughters of the marriage.

2    Each of the Applicants is a citizen of Lebanon. The father claims to fear persecution by reason of his being a Maronite Christian. One of the daughters (Lucy) is said to have been kidnapped by members of an Islamic group called Fateh Al Islam and forced to marry and convert to Islam. She was, however, rescued. She later remarried and moved to Canada. The other daughter (Aline) is married, has a child of the marriage and resides in Australia. The other family members fled to a different area and only returned to their home village after those involved in the kidnapping had been arrested.

3    The father and mother and one of the two sons entered Australia in 2013. The other son arrived in 2010.

4    The father claims to fear retribution if he returns to Lebanon, particularly as the terms of imprisonment imposed upon those who kidnapped his daughter have or are about to come to an end. He separately claims that his sons will be given weapons and forced to fight in sectarian wars and that the family will be subject to extortion.

5    Applications were made to the Department for protection visas in July 2013. Those applications were rejected by a delegate in March 2014. Applications for review were made to the then Refugee Review Tribunal. The husband took part in the hearing before the Tribunal in October 2014 and gave evidence. The wife and Aline also attended the Tribunal hearing and both also gave evidence. The Tribunal by way of a letter dated 3 November 2014 invited the Applicants to comment on certain information pursuant to s 424A of the Migration Act 1958 (Cth) (the “Migration Act”). The Tribunal thereafter affirmed the decisions of the delegate on 25 November 2014. In so deciding, the Tribunal concluded (in part) that the “evidence of the father applicant and Aline in relation to how Lucy was abducted was so inconsistent as to not be credible”. The Tribunal went on to find “that the applicants do not have a well-founded fear of persecution for any Convention related reason in Lebanon”.

6    Judicial review was then sought of the Tribunal’s decision by the Federal Circuit Court of Australia. But that application was out of time. The Application for an Extension of Time was only filed in November 2015. The discretionary statutory power to extend time was that conferred by s 477(2) of the Migration Act. The Grounds upon which the extension of time was sought were stated (without alteration) to be:

1.    Unfair entrapment of observers called to witness

2.    Denied procedural fairness.

An Amended Application was filed in March 2016 and provided the following amended Grounds for the application for the extension of time (without alteration):

1.    The Tribunal’s decision is dated 25 November 2014 and the notification is dated 25 November 2014 and the proceeding was filed in this Court on 13 November 2015.

2.    Legal representation was being sought. The Applicant did not understand any impact of short delay.

3.    The delay is relatively minimal and is not that excessive in all circumstances of the applicants and readily explainable.

4.    The Applicants would be persecuted and denied of right to subsist were the Applicants denied the right to pursue their application and return to their country of nationality. The application is on merit.

5.    There is no prejudice to third party including the respondents.

6.    In all circumstances that it is in the interests of justice that the time for filing be extended.

The Amended Application also detailed the “Grounds of Application”. Omitting the “Particulars”, those “Grounds” were stated to be (without alteration):

1.    The Tribunal denied the Applicants procedural fairness and fair hearing in the circumstances where it was clearly indicated that certain persons would not be witnesses.

2.    The Tribunal’s findings on key claims as fear from Lucy’s husband and his supporters (and kidnapping and marriage) … is irrational and / or illogical and failed to ask the correct questions.

3.    The Tribunal failed to consider integers of claims made by the Applicant.

The Federal Circuit Court on 29 May 2017 refused the extension of time: CKA15 v Minister for Immigration & Border Protection [2017] FCCA 1089.

7    On 3 July 2017 an Originating Application was filed in this Court seeking (inter alia) an order quashing the decision of the Federal Circuit Court. An Amended Originating Application was filed on 26 September 2017. Although the decision sought to be reviewed was that of the Federal Circuit Court refusing to extend time, the relief which was sought also extended to an order quashing the decision of the Tribunal. When the matter proceeded to hearing on 11 October 2017 a further application to amend was then made. The hearing was adjourned to the following day when leave was granted to file a Further Amended Originating Application.

8    The application before this Court, it should be recalled at the outset, is not an appeal. It is an application under s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”). In order to obtain relief it is necessary for the Applicant to establish jurisdictional error on the part of the Federal Circuit Court in the decision to refuse to extend time.

9    The Further Amended Originating Application is to be dismissed with costs.

THE DECISION OF THE FEDERAL CIRCUIT COURT

10    The application to the Federal Circuit Court was an application to extend the time within which judicial review of the Tribunal’s decision could be sought.

11    That application was not a mere formality.

12    In resolving that application the Federal Circuit Court Judge had to consider (inter alia):

    the reasons advanced for not bringing the application for judicial review within time; and

    the merits of the proposed Grounds of Review in the event that time was extended.

The Federal Circuit Court Judge directed attention to each of these broadly defined considerations.

13    In exercising the statutory power to extend time, the Federal Circuit Court Judge was correct in identifying the general principles to be applied and correct in stating that the “issue for the Court … is whether it is in the interests of the administration of justice to extend time”: [2017] FCCA 1089 at [7].

14    That Judge was also correct in rejecting a submission advanced on behalf of the Applicants that the delay was “relatively minimal” or “relatively short” and in characterising the delay as “significant”: [2017] FCCA 1089 at [5] to [13].

15    In considering the reasons relied upon for not bringing the application for review within time, the Federal Circuit Court Judge came down in favour of the Applicants concluding (in relevant part) as follows (without alteration):

[29]    In all therefore, in the circumstances of this case, I accept that the applicants have provided a satisfactory explanation for the lengthy delay in coming to this Court. The applicants, following advice, in circumstances where they were unaware of the possibility of coming to Court, pursued Ministerial intervention and when notified of the adverse result, on the evidence, acted as soon as reasonably practicable in making an application to this Court to extend time.

[30]    I agree with the Minister, that given the significant delay, granting the extension of time may undermine the general public interest in the finality of administrative decisions (Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15] – [17] per McHugh J). However, in the current case, given that the delay is albeit, significant, has been satisfactorily explained, this factor is not weighed in favour of the Minister.

Although a different Judge may have reached a different conclusion, the conclusion in fact reached was one open to be reached and does not expose any error of principle such as that explained in House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ.

16    It was the resolution of the second matter which caused the refusal of the extension of time. The Federal Circuit Court Judge was of the view that ultimately none of the proposed Grounds of Review had sufficient merit to warrant an extension of time being granted: [2017] FCCA 1089 at [77].

17    In reaching this ultimate conclusion, the Federal Circuit Court Judge noted that of the three Grounds “of the amended proposed substantive application”, the third Ground was not pressed. The two remaining Grounds were expressed (without alteration) as follows:

Ground 1

1.    The Tribunal denied the Applicants procedural fairness and fair hearing in the circumstances where it was clearly indicated that certain persons would not be witnesses.

Particulars

(i)    The Tribunal considered that it was entitled to examine unprepared witness (although the witnesses also part of the application) ...

(ii)    It was clearly indicated that certain persons would not be witnesses.

(iii)    The witnesses were unprepared and were not present to give evidence …

(iv)    The Tribunal was procedurally unfair to question unprepared witnesses to engage with unprepared witnesses.

(v)    The Tribunal has misdirected itself whether it was required to afford the witnesses procedural fairness.

(vi)    The Tribunal did not carry out substantial justice as required by the Act.

(vii)    The Tribunal committed jurisdictional error.

Ground 2

2.    The Tribunal’s findings on key claims as fear from Lucy’s husband and his supporters (and kidnapping and marriage) … is irrational and / or illogical and failed to ask the correct questions.

Particulars

(a)    The Tribunal invited the Applicants to the hearing.

(b)    Lucy is not in Australia and not an Applicant.

(c)    The Applicants witnesses were narrated events rather than being participants in the events (witness Aline being the only other person at school at the time of claimed kidnapping of Lucy but not first hand witness).

(d)    The Tribunal presumed that had the events claimed occurred the Applicants would have discussed the events and described the events in exact details and not differently.

(e)    No reasonable Tribunal would presume there would be discussion amongst the Applicants of details.

(f)    No reasonable Tribunal would presume the details of claims amongst the Applicants where the incidents giving rise to the claims of details.

(g)    The Tribunal failed to ask correct question and has incorrect question – that all witness should describe events similarly.

(h)    The Tribunal committed jurisdictional error.

18    The gravamen of the first Ground of Review was identified by the Federal Circuit Court Judge in his reasons for decision as follows:

[43]    Ground one asserts a denial of procedural fairness. The complaint was explained to the Court as being that it had been previously indicated to the Tribunal by way of the “Response to Hearing Invitation” form, that the second applicant would not give evidence. Yet the Tribunal, on the day of the hearing, took evidence from the second applicant, and Aline, and in circumstances where they were unprepared to make their “submissions”.

Those reasons continue as follows:

[44]    In written submissions, and before the Court, it appeared that the applicants did not dispute the Tribunal’s statutory power to take evidence. There was no dispute with the Minister’s submission that the Tribunal had a general power to obtain information pursuant to s. 424 of the Act …

The concern of the Applicants was that the evidence which emerged exposed inconsistencies in the factual accounts being advanced. In that respect the Federal Circuit Court Judge stated:

[52]    It is also clear that at the beginning of the hearing the first and second applicants, and Aline, gave to the Tribunal, Aline’s written statement, which is now reproduced at CB 193 to CB 198. It also is clear that this statement takes issue with a number of findings made by the delegate and directly seeks to provide “evidence” on matters relevant to the Tribunal’s consideration of the applicants’ claims, particularly in relation to her sister Lucy, who was the subject of the claimed kidnapping in Lebanon.

[53]    Given that the Tribunal had just been presented with Aline’s statement, and given its relevance to the conduct of the review, the Tribunal told the first applicant that (T1 lines 29 – 32):

“[Member]: I understand that your wife and daughter are here as well. Given that your wife is an applicant, and your daughter’s provided written evidence today, it may well be that I want to take evidence from them as well. So I’ll have them sworn in as well. We’ll just start with the interpreter first.”

[54]    The Tribunal then explained the procedure for the conduct of the hearing. It then proceeded to question the first applicant. It would appear that the applicants’ representative interrupted on a number of occasions during this questioning, and/or was asked questions by the Tribunal (see for example T4 and T5). The point being that the representative was present and participated at the hearing.

[55]    After questioning the first applicant for some time, the Tribunal then indicated that it wanted to ask questions of the second applicant (T17 lines 39 to 40). It is important to note, that given the complaint made by the applicants, both to the Tribunal and now before the Court, that the Tribunal asked the applicants’ representative to bring in the second applicant, and he proceeded to do so without any objection being raised by the first applicant at that time (see T17 lines 43 to 49). The Tribunal then proceeded to question the second applicant in the presence of her representative. [References in the transcript to Helene, in my view, in context, are to “Aline”.]

[56]    It is also important to note that the transcript the applicants have now put before the Court, reveals that the Tribunal’s questions were directed to Aline’s statement, and particularly in support of the central claim made by the applicants regarding the abduction of their other daughter, Lucy. It must be said that on any plain reading of the Tribunal’s questioning and answers at the hearing, that the Tribunal did have a probative basis for making its findings concerning the evidence given by the first and second applicant and Aline at the hearing.

[57]    It is also clear that towards the end of the hearing, the Tribunal made plain, to both the first and second applicants, in the presence of their daughter Aline, its concerns with inconsistencies in the evidence that had been provided (see T35 line 38 to T36 line 38). Importantly, there is nothing from the applicants, or their representative, to indicate any “unpreparedness” on the part of Aline in giving evidence. …

That Judge concluded in part in respect to this Ground:

[66]    In relation to Aline, plainly she was not an applicant before the Tribunal. But the applicants were put squarely on notice both at the hearing, and then by the Tribunal’s letter sent pursuant to s.424A of the Act, of the Tribunal’s concerns arising from her written statement which the applicants and Aline had given to the Tribunal, and her evidence. They were given the opportunity to respond to it. I cannot see that there was any obligation on the Tribunal to further pursue its concerns with Aline herself, given that she was not an applicant before the Tribunal, and had had a fair and meaningful opportunity to explain her written statement to the Tribunal.

19    The second Ground of Review advanced before the Federal Circuit Court was explained by the Judge of that Court as follows:

[69]    The basis of the complaint, as explained before the Court, appeared to be that the Tribunal’s irrational or illogical approach was to assume that the applicants, and their witness Aline, would have discussed the relevant events involving Lucy’s kidnapping, and would have provided a coherent and consistent account of claimed relevant events.

The Ground was rejected as follows:

[73]    In the circumstances of this case, I can only agree with the Minister that to describe the Tribunal’s reasoning as being irrational, illogical or unreasonable, is simply another way of the applicants expressing their dissatisfaction or disagreement with the Tribunal’s decision (Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611).

20    The conclusion reached by the Federal Circuit Court Judge was expressed as follows:

[77]    In all, there is either no merit, or insufficient merit, in either of the two grounds of the proposed substantive amended application to weigh in favour of the application to extend time. For this reason, notwithstanding that the applicants have provided a satisfactory explanation for the delay, and no prejudice would accrue to the Minister if time were to be extended, it would be futile to extend time simply to dismiss the amended proposed substantive application. It is appropriate that the application to extend time be refused. I will make that order accordingly.

21    In expressing the conclusion at para [77] of the reasons for decision, the Federal Circuit Court Judge correctly identified the test to be applied when consideration was being given to an application to extend time. That test simply required a view to be formed as to the prospects of success of the arguments to be advanced should an extension of time be granted. The hearing of an application for an extension of time was not the occasion for the merits of those proposed arguments to be conclusively resolved. If the proposed arguments had merit, it was open to extend time; in the absence of the proposed arguments having any merit or “sufficient merit”, it was open to the Federal Circuit Court Judge to refuse to extend time.

22    The decision of the Federal Circuit Court Judge which is the focus of the present proceeding in this Court, it is to be constantly recalled, was a decision founded upon the exercise of a discretion on a matter going to the practice and procedure of the Federal Circuit Court. As such, in order to establish error it was necessary for the Applicant to identify error that fell within the scope of the following observations of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504 to 505, namely:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …

23    No such error has been exposed.

24    The primary Judge’s assessment as to the merits of the proposed Grounds of Review was correct.

THE ALLEGED JURISDICTIONAL ERRORS

25    The orders made by the Federal Circuit Court were made on 29 May 2017.

26    The Originating Application as first filed in this Court on 3 July 2017 was supported by an affidavit.

27    The Amended Originating Application filed on 26 September 2017 set forth two Grounds, namely:

    that the Federal Circuit Court Judge misconstrued ss 424 and 427 of the Migration Act in deciding whether to extend time; and

    an error on the part of the Federal Circuit Court Judge in failing to find “that the Tribunal fell into error in failing to take into account all the considerations and [in limiting] itself to the statutory grant of power” under ss 424 and 427 of the Act.

The second Ground was expressly abandoned during the course of the hearing on 11 October 2017. It was nevertheless included in the proposed Further Amended Originating Application as filed in Court on the second day of the hearing. That inclusion was a mistake. Reliance was only placed upon the first Ground as amended. As amended the sole Ground relied upon was expressed as the primary Judge having fallen “into jurisdictional error in exercising his discretion pursuant to s 477(2) of the Migration Act”. The Particulars previously provided were substantially repeated and further Particulars provided.

28    Albeit now more appropriately expressed as a challenge to the manner in which the Federal Circuit Court Judge exercised his discretion, leave to amend was opposed by the solicitor for the Respondent Minister. The argument sought to be advanced, so it was submitted on behalf of the Respondent Minister, was more in the nature of an appeal rather than a challenge to the exercise of discretion. But the Ground as redrafted was understood to be a contention that the exercise of the discretion to extend time miscarried because the Federal Circuit Court Judge erred in assessing the merits of the argument.

29    The proceeding is nevertheless to be dismissed and the Ground of review (however it may be construed) rejected for either of two reasons, namely:

    any error committed by the Federal Circuit Court Judge was an error within jurisdiction and hence not susceptible to review under s 39B of the Judiciary Act; and/or

    the absence of any error, be it an error going to jurisdiction or an error within jurisdiction.

Each of these limbs should be briefly explored.

An error within jurisdiction

30    The solicitor for the Respondent Minister was, with respect, on sound ground when submitting that – even as amended – the application made was more in the nature of an impermissible appeal rather than an application that sought to establish an error in the exercise of discretion which went to jurisdiction.

31    Even construed as an argument ostensibly directed to the manner in which the discretion conferred by s 477(2) was exercised, the argument remained more a challenge to the conclusion reached by the primary Judge which was a matter within the jurisdiction entrusted to him as opposed to an error in the identification of the principles to be applied in the exercise of the discretion and hence an error going to jurisdiction.

32    That difference was highlighted by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719. There in issue was again a challenge to the exercise of discretion on the part of a Federal Circuit Court Judge refusing to extend time under s 477(2) of the Migration Act. His Honour there concluded in part as follows:

[38]    It is important to emphasise again that this is not an appeal from the judgment of the Federal Circuit Court. The Court has no jurisdiction to entertain such an appeal: s 476A(3)(a) of the [Migration Act]. This is an application in which the applicant seeks an order in the nature of certiorari quashing a decision of an inferior court on the basis that it made a jurisdictional error or errors. In the present circumstances, it can be concluded that the Federal Circuit Court made a jurisdictional error if it is found that the court either denied the applicant procedural fairness or misconceived the nature of its function or the extent of its powers in considering whether it was necessary in the interests of the administration of justice to grant the extension of time sought by the applicant: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (SZTSU) at [11]. It is not sufficient, however, for the applicant to simply demonstrate that the court made an error, even a legal error, in determining a matter within its jurisdiction.

[39]    In Craig v The State of South Australia (1995) 184 CLR 163, the High Court gave detailed consideration to the circumstances in which an inferior court may be said to have fallen into jurisdictional error. The court said (at 177-178):

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.

… 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.

(Footnote omitted.)

[40]    The court (at 179-180) distinguished errors which may result in a successful appeal from jurisdictional errors by an inferior court:

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.

His Honour continued:

[42]    No detailed submissions were made by either party in relation to the nature of the power or jurisdiction of the Federal Circuit Court to extend time under s 477(2) of the Act. It is readily apparent, however, that to properly consider the applicant’s challenge to the Federal Circuit Court judge’s exercise of jurisdiction, it is necessary to understand the nature of the power under s 477(2) of the Act.

[43]    Section 477(2)(b) of the Act 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: SZTSU at [2]. It is only if that precondition is satisfied that the discretion is enlivened. It should also be emphasised that the statutory precondition is to be formed to the satisfaction of the Federal Circuit Court. That is particularly important here. The Federal Circuit Court might not be satisfied that this precondition has been made out even if the Minister did not oppose, or consented to, the extension application.

33    Similarly, in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 Mortimer J concluded:

[11]    I accept the Minister’s submission … 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 v Federal Magistrates Court of Australia [2013] FCA 1284, (2013) 236 FCR 442] 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.

34    On the facts of the present case, the Federal Circuit Court Judge correctly identified the discretion he was called upon to exercise and the principles to be applied when exercising that discretion. Assuming there to be error, any such error was an error within jurisdiction and not susceptible to relief under s 39B of the Judiciary Act.

Sections 424 & 427

35    But there was in any event no error in the manner in which the Federal Circuit Court Judge approached the application of s 424 or s 427 to the decision of the Tribunal. Even had the argument been raised as a Ground of Appeal, assuming there to have been a right of appeal, it would have been rejected.

36    The first Ground of Review, being the sole Ground now relied upon, has as its essence a contention that the exercise of the discretion to call Aline as a witness miscarried because:

    the Response to Hearing Invitation form submitted by the Applicants to the Tribunal did not nominate Aline as a witness;

    Aline was not a party to the application before the Tribunal; and

    at the time of the kidnapping of her sister Lucy, Aline was a child.

The Tribunal’s exercise of its discretion to “get … information” from Aline pursuant to s 424, it was contended, was irrational and unreasonable and was a denial of procedural fairness. There was no evidence from Aline that at the time she gave evidence before the Tribunal she was “unprepared” to do so. Any case as to unreasonableness or unfairness rested to the extent necessary upon inferences as to whether she was “caught unawares”. And the Federal Circuit Court Judge had made findings of fact which were not challenged in the current proceeding in this Court. Those findings included:

    that there was “nothing from the applicants, or their representatives, to indicate any ‘unpreparedness’ on the part of Aline in giving evidence”: [2017] FCCA 1089 at [57]; and

    that “the applicant’s counsel was unable to explain the submission that she was ‘unprepared’ to give evidence”: [2017] FCCA 1089 at [60].

37    Albeit expressed in terms of a denial of procedural fairness, there was no contention that the Federal Circuit Court Judge had denied the Applicants procedural fairness; the contention was confined to a challenge to the procedure followed by the Tribunal.

38    Section 424 of the Migration Act provides as follows:

Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    A written invitation under subsection (2) must be given to the person:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

Further to s 424(2), s 424B provides (inter alia) that “the invitation is to specify the way in which the information, or the comments or the response, may be given”.

39    Section 427(1) provides as follows:

Powers of the Tribunal etc.

(1)    For the purpose of the review of a decision, the Tribunal may:

(a)    take evidence on oath or affirmation; or

(b)    adjourn the review from time to time; or

(c)    subject to sections 438 and 440, give information to the applicant and to the Secretary; or

(d)    require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

40    Section 424, in conferring power upon the Tribunal to “get any information” is comparable to other Commonwealth legislative provisions enabling an administrative tribunal to obtain information: e.g., Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c). Such provisions are consistent with the fact that such tribunals – including the former Refugee Review Tribunal – are not adversarial in nature but are more akin to inquisitorial or (at least) administrative decision-makers: cf. Re Ruddock in his Capacity as Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 at [58], (2003) 201 ALR 437 at 450 to 451 per Gummow and Heydon JJ. See also: NBMB v Minister for Immigration and Citizenship [2008] FCA 149 at [6] to [7], (2008) 100 ALD 118 at 119 to 120 per Flick J.

41    But such powers do not confer unconstrained discretionary power. At least three constraints assume potential relevance.

42    First, the section itself is confined by its own terms. Section 424 thus only applies where the Tribunal “gets” information “[i]n conducting the review”: ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53 at [23], (2016) 241 FCR 92 at 100 per Tracey and Griffiths JJ. Left open is the more difficult question as to whether the section applies only in respect to information which the Tribunal considers to be “relevant”: [2016] FCAFC 53 at [53] to [55], (2016) 241 FCR 92 at 107 to 108 per Flick J (diss). But when the Tribunal “gets” information in conducting a review pursuant to that section which it considers to be “relevant”, the Tribunal must thereafter “have regard to that information”: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30, (2009) 238 CLR 489 at 501 to 502. French CJ, Heydon, Crennan, Kiefel and Bell JJ there concluded:

[37]    … Section 424(1) confers a “general power” on the RRT to “get any information that it considers relevant.” The only limitation on that power is that the RRT “must have regard” to that information in making its decision. As pointed out by the first respondent, the general power is apt for the obtaining of country information which might involve research or utilisation of library resources or publicly available information on the internet. However, the language is plainly not confined so as to preclude the obtaining of information from a person by telephone. That process is consonant with the inquisitorial nature of the RRT and the statutory obligation upon it to adopt procedures which are not only “fair [and] just” but are also “economical, informal and quick” (s 420(1)).

(Footnote omitted.)

The Court there concluded that the Tribunal could telephone a person for the purpose of obtaining information without following the procedures set out in ss 424(3) and 424B. The powers conferred by s 424(1) and s 424(2), it was said, were “significantly dissimilar” powers. On this issue, their Honours concluded (at 503 to 504):

[45]    … Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.

[46]    The general power to “get” information and the specific power to “invite” in writing the giving of additional information are capable of co-existing without the latter being repugnant to the former. …

(Footnote omitted.)

The power to “get” information pursuant to s 424(1) is thus to be distinguished from the power to “invite … a person to give information” pursuant to s 424(2): Minister for Immigration and Citizenship v SZKJT [2009] FCA 984 at [26], (2009) 111 ALD 562 at 566 per Lindgren J. The power conferred by s 424(1) is a power “to conduct inquiries through informal means”: cf. SZOFK v Minister for Immigration & Citizenship [2011] FCA 88 at [20] per Stone J.

43    Second, albeit unexpressed, it may be assumed that the discretion conferred by s 424(1) – like all statutory conferrals of discretion – is “constrained by law”: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [23], (2013) 249 CLR 332 at 348 per French CJ. “[F]reedom from legal control”, as the Chief Justice there recognised, “is a quality which cannot … be given under our Constitution”: citing Shrimpton v Commonwealth (1945) 69 CLR 613 at 629 per Dixon J. Every discretion, it was further recognised, “has to be exercised … according to ‘the rules of reason’”: [2013] HCA 18 at [24], (2013) 249 CLR at 349 per French CJ citing R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 per Kitto J.

44    A third potential constraint may arise by reason of the common law rules of procedural fairness. Ordinarily, an exercise of a discretion on the part of a decision-maker to obtain evidence from a source not proffered by a party may call for a party affected to be given an opportunity to be heard: e.g., Australian Postal Corp v Kember [2003] FCA 800 at [25] to [27] per Finn J. But, within the specific context of the Migration Act, s 422B states that the provisions in Part 7 Division 4 (being sections 422B to 429A) are “an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with”. “[T]he common law obligations of procedural fairness”, it has thus been said in AVF15 v Minister for Immigration and Border Protection [2017] FCA 1094 at [28] per Moshinsky J, “have, to the extent provided in the Division, been supplanted by obligations arising under the Act in relation to the Tribunal’s hearings (subject to an overarching obligation to act in a way that is fair and just: s 422B(3)).”

45    But none of these matters expose error on the part of the Tribunal and, more importantly, no jurisdictional error on the part of the primary Judge.

46    On the facts of the present case, the Tribunal may be said to have gotten information from Aline pursuant to s 424(1) – but it thereafter had regard to that information. Indeed, it is the very fact that the Tribunal had regard to her evidence and relied upon it in forming an assessment as to the credibility of the claims for protection being advanced which is the source of grievance on the part of the present Applicants.

47    Nor could it be said that in so exercising the discretion to “get” information from Aline, the Tribunal was acting in an irrational or unreasonable manner. One of the very factual foundations for the fears being advanced on behalf of the Applicants arose out of the kidnapping of Aline’s sister, Lucy, and the imminent release from imprisonment of those involved in the kidnapping. Albeit a child at the time of the kidnapping, Aline was no longer a child when she was giving evidence to the Tribunal. Her account of the events was unquestionably of relevance to the factual inquiry being undertaken by the Tribunal. Although the Applicants may not have wished for Aline to have been questioned in regard to the statement that she had jointly prepared, and had not proposed themselves to call her as a witness, their unwillingness to do so could not preclude the Tribunal from informing itself by reference to the evidence she gave. Even opposition on the part of the Applicants to the Tribunal pursuing such a course, assuming there to have been opposition, cannot preclude the Tribunal from exercising the discretionary power.

48    Nor could it be suggested that the Tribunal in getting evidence from Aline was doing something that may have been unexpected – even if it was, perhaps, unwanted. Notwithstanding a request made by the Tribunal that it be provided in advance of the hearing with “written submissions setting out all claims made and maintained by the applicants”, Aline was a signatory to the jointly prepared written statement. It was a document of some six typed pages. The statement provided that it had been “prepared by myself, mum, dad and my sister Lucy”. The detail and content of the statement exposes detailed consideration being given in advance of the hearing to the factual matters the family were seeking to have taken into account. A claimant cannot, with respect, be surprised at the prospect that a person who has provided evidence in support of claims is then called upon to answer questions in respect to the evidence they have provided.

49    To deny to the Tribunal the opportunity to “get” such information as it considered relevant, moreover, would be to deny to the Tribunal its inquisitorial function and manacle it to being the mere arbiter of such information as was adduced before it by either a claimant or the Respondent Department. As was recognised by Kirby J (albeit in a dissenting judgment as to the ultimate conclusion) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, (2004) 207 ALR 12 at 33:

[73]    … the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures. This feature of the Tribunal’s operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial.

To characterise the function of an administrative decision-maker as “inquisitorial” by reference to (inter alia) a statutory power to “get” information or to “inform itself in any way it thinks fit” is nothing exceptional. Thus, when construing a comparable provision in the Medical Practice Act 1994 (Vic), Maxwell P in Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193, (2008) 21 VR 29 at 37 to 38 observed:

[28]    … The words “may inform itself …” were plainly intended to have work to do. They have a meaning and a purpose quite distinct from the meaning and purpose of the words “not bound by rules of evidence”. Far from the phrase “may inform itself” being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts. For the purposes of “determining the matter before it”, the panel is authorised to “inform itself in any way it thinks fit”, subject always to the overriding obligation to accord procedural fairness.

…

[30]    By giving the panel power to inform itself “in any way it thinks fit”, Parliament has clearly differentiated the panel’s conduct of a formal hearing from the judicial paradigm. Whereas the judicial function is essentially passive — in the sense that the court relies on the adversarial parties to present the evidence and define the issues for decision — the panel’s work is thus stamped with an inquisitorial character. …

Justices Neave and Weinberg agreed. See also: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [69], (2012) 84 NSWLR 474 at 491 per Meagher JA (Whealy JA agreeing).

50    Finally, and assuming that the Applicants were entitled to procedural fairness in respect to the exercise of the discretion conferred by s 424(1), they had the opportunity to make submissions at the time had they so wished. At the time they appeared before the Tribunal they were then represented by a registered migration agent, who apparently then raised no opposition.

51    The circumstances in which Aline (and the Applicant wife) came to give evidence crystallised when the husband wrote to the Tribunal a letter dated 16 November 2014 in response to the Tribunal’s letter issued under s 424A. The husband then wrote (in part) as follows (without alteration):

Madam member

Please allow us before we answer your queries to rise some issues of concerns that had eventuated from the hearing.

•    For legal reason and your permission we would like to record our objections for calling on my wife and daughter to give evidence who appeared at the hearing as an observers. While the department requested that only the main applicant need to be interviewed. That decision was taken by the case officer in consulting with our migration agent prior to the department initial interview. My family was not applicant’s only dependents of the main applicant. Which suggest that your decision to call his wife to give evidence on suggestion by yourself at the beginning of the hearing that my wife was an applicant you would like her to give evidence in which she was not prepared and no prior suggestion by the tribunal that the family must give evidence.

…

•    The tribunal induced my wife and Daughter to give evidence on the day of the hearing without prior notice and the tribunal never issued a notice inviting my daughter to give evidence at the hearing we believe that there is an element of miscarriage of justice and procedural fairness and natural justice was not preserved. My daughter’s submission clearly stated it was in support of my family review application was not a statement or an affidavit she has never intended to give evidence and my wife was in similar position as she believe she was at the tribunal as an observer not to be called to give evidence.

•    The member requested that my wife and daughter, that she would like them to give evidence, both did not object to that request as they did not know their legal rights and the member did not offer them any explanations of their rights whether they would or shouldn’t and the consequences should they do.

•    Based on the above objection raised I will reserve my right to refuse to comment on stated particulars numbered 7 to 22 in your natural justice letter of 3 November 2014 which involve evidence from my wife and daughter or related to their evidence. That in my view the tribunal has entrapped my wife and daughter into giving evidence without prior invitation by the tribunal which they were shocked by that move and was not prepared to give such evidence. Prior to the hearing date the tribunal requested we give names of persons or witnesses that will attend to give evidence. …

In addressing this concern, the Tribunal recorded in its reasons for decision:

11.    The father applicant also included a written objection to the effect that his wife and daughter were only in attendance as observers, were not given sufficient notice as witnesses and were “entrapped” into giving evidence. The Tribunal has carefully considered the father applicant’s objection. However, the Tribunal notes that it is well established that the Tribunal follow an inquisitorial process of review, which enables it to actively investigate and obtain relevant information. …The Tribunal accepts that the mother applicant stated in the response to hearing invitation that she would not take part in the Tribunal hearing. However, she nevertheless attended (unlike the son applicants). The Tribunal explained at the start of hearing why it wished to take evidence from the mother applicant and the daughter which was because credibility issues had been raised by the delegate and because of the late provision on the day of the hearing of a submission by the daughter. None of the applicants, their daughter or their representative, who was present at the hearing, raised any objection to the Tribunal taking evidence from the mother applicant and daughter either at that time, after a break during which they could have discussed the issue with their representative or when the representative was invited to make submissions at the close of the hearing. The mother applicant and daughter were advised that the Tribunal wanted to take evidence from them and they waited outside for approximately an hour before the Tribunal took their evidence in relation to factual issues about which they claimed to have knowledge or about which the Tribunal would have expected them to have knowledge if the evidence of the father applicant was truthful. The Tribunal is satisfied that in these circumstances it was reasonable to take oral evidence from the mother applicant and daughter at the hearing.

On the facts of the present case, and assuming that there had been a denial of procedural fairness in the Tribunal obtaining evidence from Aline during the hearing, it may be that any denial of procedural fairness could not be remedied by the s 424A letter which had been provided after the Tribunal hearing and the opportunity thereafter for the claimants to respond. By then, on one view of the facts, the “horse had bolted” – the evidence had been obtained and the inconsistencies in the account exposed (or further exposed). An opportunity to comment upon potential prejudice which may not have arisen had Aline not given evidence, on such an approach, was irredeemable.

52    Although there may be circumstances in which a subsequent opportunity to be heard may “cure” an initial denial of procedural fairness (cf. Twist v Council of the Municipality of Randwick (1976) 136 CLR 106), there may be both reason to now question the application of such a generally expressed principle (cf. Byrne v Marles [2008] VSCA 78 at [81], (2008) 19 VR 612 at 635 to 636 per Nettle JA (Dodds-Streeton JA and Coghlan AJA agreeing)) and to question whether a subsequent opportunity to be heard could “cure” any denial of procedural fairness that may have been occasioned during the current Tribunal hearing process.

53    But there is no need to pursue any consideration as to whether an initial denial of procedural fairness may be “cured” by a subsequent opportunity to be heard. There was no denial of procedural fairness in the manner in which the Tribunal proceeded. Both before the Federal Circuit Court and this Court there was a submission that procedural unfairness arose by reason of the fact that Aline fronted the hearing in support of her parents and brothers but was unprepared for questioning. But that submission was found to have been without foundation. The Federal Circuit Court Judge rejected the argument as follows:

[59]    Before the Court, the applicants’ submissions, as expressed by their counsel, did no more than repeat the complaints made by their representative and the first applicant to the Tribunal. I cannot see how it can be said to have been procedurally unfair of the Tribunal, in the circumstances of this case, to have proceeded to obtain evidence from Aline in relation to a statement that she herself had drafted, and which had been submitted, in her presence, to the Tribunal at the commencement of the hearing.

[60]    Before the Court, the applicants’ counsel was unable to explain the submission that she was “unprepared” to give evidence. It is not clear what further preparation Aline would have required to further explain her own statement. This is not a situation where the Tribunal randomly selected a relative to confirm or deny evidence given by the applicants before it. Aline attended at the hearing with her parents and gave a written statement in support of their claims.

Before this Court, Counsel was equally “unable to explain” or identify the factual basis upon which a conclusion could be drawn that Aline was “unprepared” to give evidence. Any inference as to unfairness arising from the fact that the Applicants did not intend to call Aline to give evidence is both contrary to the finding of the Federal Circuit Court and an inference which is denied by the care with which the statement was prepared.

54    No denial of procedural fairness emerges from the manner in which the Tribunal proceeded – either in respect to its decision to call upon Aline to give evidence or the procedure it followed in obtaining that evidence.

55    Different considerations may have arisen had the Applicants or the registered migration agent requested – and been denied – an adjournment or an adequate opportunity to first consult with Aline before she gave evidence. But no such application was made. On the facts, prior notice was given (albeit only at the commencement of the hearing) of the Tribunal’s intention to call for Aline to give evidence and there was an opportunity thereafter to consider that foreshadowed course and voice any objection to the course proposed. Even though the Applicants may not have been legally represented before the Tribunal, they did have the assistance of the registered migration agent. Even if not expressed in terms that a lawyer may have employed, there was no impediment in the path of the Applicants or their agent voicing their concerns to the Tribunal prior to Aline’s evidence having been obtained. Belated objections raised to procedural decisions taken by an administrative decision-maker have the potential to only foster the prospect of claimants taking such benefit as may follow from the course proposed but reserving unto themselves the ability to later voice objection if the course turns out to be prejudicial to their interests.

56    Different considerations may also arise in circumstances where the Tribunal seeks to “get” information from a person who may be present at a Tribunal hearing (but not otherwise a participant) and who has not provided a statement intended to be used as part of the Tribunal’s deliberations.

57    Irrespective of any argument founded upon procedural fairness and assuming s 424 and s 424A is an exhaustive statement of the procedural fairness to which the Applicants are entitled, this final argument was also recast as an argument founded upon legal unreasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332. But, even as recast, the argument has no merit.

The failure to take into account relevant considerations

58    The second Ground of Review has been abandoned.

59    But it should nevertheless be noted that the Particulars formerly provided in respect to that Ground were in substance very much a repetition of the first Ground.

60    At the time of the kidnapping of her sister in 2005 Aline was 17 years old. To the extent that the second Ground previously sought to advance an argument that the Tribunal failed to take into account “Aline’s age at the time of accident and the fact that she was a young person”, this does not appear to have been an argument raised for resolution before the Federal Circuit Court. Moreover, and perhaps more fundamentally, it was an argument which did not appear to have been raised for consideration by the Tribunal. Although other objections were voiced in respect to the manner in which the Tribunal obtained evidence from Aline, no submission was advanced to the Tribunal that inconsistencies between the father’s evidence and that of Aline may have been attributable (at least in part) to her age at the time of the kidnapping. In the absence of such a submission being advanced before the Tribunal, it could hardly be an error for the Tribunal to not take into account a submission not made.

61    The second Ground, accordingly, was properly abandoned. It either added nothing to the first Ground or was an argument not available to be relied upon in the present proceeding.

CONCLUSIONS

62    No jurisdictional error has been made out in respect to the decision of the Federal Circuit Court Judge in the exercise of the discretion to extend time.

63    The submissions advanced on behalf of the Applicant, with respect, failed to:

    identify any error in the identification of the principles to applied when exercising the discretion conferred by s 477(2)

or, alternatively:

    identify any other error, be it jurisdictional or non-jurisdictional.

64    The Further Amended Originating Application, accordingly, should be dismissed.

65    There is no reason why costs should not follow the event. Those costs should include the costs incurred by reason of the proceeding having to be stood over to the following day to enable the Applicants to further amend the former Amended Originating Application.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Applicants are to pay the costs of the First Respondent, either as agreed or taxed.

Associate:    

Dated:    15 November 2017