FEDERAL COURT OF AUSTRALIA

BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the first respondent’s costs, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    If the parties agree on a lump sum figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 24 January 2018.

4.    In the absence of any joint proposed order, pursuant to paragraph 3 of these orders:

(a)    on or before 4 pm on 31 January 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b)    on or before 4 pm on 14 February 2018, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.    In the absence of any agreement having been reached on or before 28 February 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    This is an application made under s 39B of the Judiciary Act 1903 (Cth) seeking to quash a decision of the Federal Circuit Court refusing to extend time to allow the applicant to seek review of a decision of the Immigration Assessment Authority (IAA).

2    The applicant is a Lebanese national who arrived in Australia by boat at Christmas Island on 14 December 2012, following previous refusals of a temporary business visa and a sponsored family visitor visa in 2008 and October 2012 respectively.

3    On 21 June 2016, the applicant lodged an application for a Safe Haven Enterprise Subclass 790 Visa (SHEV), which was refused by a delegate of the Minister on 14 February 2017. The delegate’s decision was affirmed by the IAA on 22 March 2017.

4    On 10 May 2017, the applicant filed an application for an extension of time for the filing of an application for judicial review. Under s 477(1) of the Migration Act 1958 (Cth), an application is required to be made to the Federal Circuit Court within 35 days of the migration decision. The applicant’s proposed application was filed 13 days late, necessitating the extension of time application.

5    The Federal Circuit Court refused the extension of time application on 26 July 2017: BVW17 v Minister for Immigration & Anor [2017] FCCA 1739. There is no appeal available from that decision. Accordingly, the applicant has sought judicial review of that decision before this Court. The Minister accepts the Court has jurisdiction to determine the claim for relief but submits relief should be refused.

6    Despite some reservations about the conduct of the hearing in the Federal Circuit Court, to which I return at [88]-[91] below, I have concluded that the application for judicial review is to be dismissed.

Background

7    Before the delegate and the IAA, the applicant claimed to have a well-founded fear of harm from Hezbollah and Sunni extremist groups operating in Tripoli. His claims included that he had a profile as an opponent of the extremists because he had acted as an informant for the Lebanese Armed Forces (LAF), and that his family were well known as LAF supporters. He claimed to have been threatened and harmed by extremists in the past, including being stabbed by members of a terrorist group because he was informing the LAF that they were getting guns and ammunition. He claimed that three of his brothers had been killed in sectarian violence in 1976, 1984, and 2015 respectively. He also claims that his personal information was published online due to the data breach on the Department’s website in 2014 (see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180), and that groups in Lebanon who wish to harm him may have access to this information.

8    Both the delegate and the IAA refused his SHEV application, largely on the basis that they found the applicant’s claims implausible and not consistent with country information.

Federal Circuit Court decision

9    The applicant was unrepresented before the Federal Circuit Court, and appeared by video-link from detention on Christmas Island with the assistance of an Arabic interpreter. His application for an extension of time was opposed by the Minister. The applicant did not file any written submissions or affidavits, despite orders being made allowing him to do so. The Minister filed his submissions on 21 July 2017, five days before the hearing on 26 July. At the hearing, the applicant made oral submissions and was asked by the Federal Circuit Court to give sworn evidence. He was briefly cross-examined by the Minister’s legal representative, at the invitation of the Federal Circuit Court judge. It is common ground in this proceeding that the applicant was not given an opportunity to reply to the Minister’s submissions at the hearing.

10    In refusing the extension of time application, the Federal Circuit Court judge stated that she had considered the applicant’s reasons for the delay in filing his application for judicial review, and the prospects of success of the applicant’s grounds for review. As I set out below, one of the applicant’s grounds of review is that, in fact, her Honour did not consider the applicant’s explanations for the delay.

11    The applicant had expressed his grounds for the extension of time in the following way to the Federal Circuit Court:

1. I do not have legal representation or anyone to assist me.

2. I did not have legal assistance to submit my application for the Protection claims.

3. I am waiting for documents to arrive from my country of nationality of further facts.

4. I am in offshore Immigration detention.

12    On being asked by her Honour to do so, the applicant confirmed these were the reasons for the delay. Her Honour then requested the applicant to explain the reasons for delay through sworn evidence.

13    Her Honour said:

HER HONOUR: Thank you. Sir, if you wish to rely on that- what you have told me this morning and what you’ve written in your application as your evidence to explain your delay, you will need to take an oath and give that evidence as sworn evidence. And it may be that the solicitor for the Minister will then wish to ask you some questions about your sworn evidence. So do you wish to rely on that evidence?

THE INTERPRETER: I would like to say to her Honour all that.

HER HONOUR: Do you wish to rely on what you have said to me this morning in relation to your explanation for your delay?

THE INTERPRETER: The delay is not because of me; the delay is because of them because after I lodged my complaint, they gave me the papers. And also I signed after I received them when the case manager gave them to me.

HER HONOUR: Very well, sir. I will have you sworn in and you can give that evidence under oath. The interpreter will be sworn in first, and then you will be sworn in. Very well…

14    The Federal Circuit Court considered this sworn evidence concerning the explanation for delay briefly in its reasons at [13]-[14]:

The applicant was then sworn in to confirm his evidence for his explanation for delay given that he had failed to file any evidence in support in accordance with Orders made by a Registrar of this Court on 25 May 2017. The explanation given by the applicant under oath was that the delay was not because of him but because of ‘you’. The applicant said after he had made a complaint to the Ombudsman and the case manager, he was given all papers and then he lodged his application for judicial review.

In cross-examination, the applicant agreed that he had been handed a copy of the decision of the IAA on 23 March 2017 at 12:00pm by a CIRCO [sic – Serco] officer.

(Emphasis in original.)

15    The Federal Circuit Court considered that this explanation for the delay was “wholly unsatisfactory” (at [15]). Paragraphs [13]-[14] of the Court’s judgment was not an entirely accurate summary of the way the applicant expressed his reasons. The “because of ‘you’” comment, which I infer from the way it is expressed in the reasons, her Honour found something of a challenging answer and took exception to, came after the applicant had been questioned repeatedly by her Honour about the explanation for the delay. The response “because of you” was not the way the applicant initially expressed the reason. Initially, prior to being sworn in, he said:

THE INTERPRETER: Okay. The delay is not attributed to me. The delay is for - attributed to them because they didn’t give me the file on time and I made a complaint before the Ombudsman, and the 35 days elapsed. And I've been for – I have been here in the - for four and a half years in the immigration detention centre. And they gave me the file - the whole file too late.

...

THE INTERPRETER: After long time elapsed, they did it.

...

THE INTERPRETER: The delay is not because of me; the delay is because of them because after I lodged my complaint, they gave me the papers. And also I signed after I received them when the case manager gave them to me.

16    As I note below, it is also factually correct that in her reasons, the learned judge does not refer to a number of matters raised by the applicant in his evidence as explanations for the delay.

17    As it needed to do, the Court then considered the applicant’s substantive grounds for review, which were:

1. The Purported Decision of the Minister from Immigration and Border Protection (Respondent) and His Department (IAA) on 22 March 2017 is legally unreasonable in that it is vitiated by Judicial Error and has denied me Procedural Fairness.

2. The Immigration Assessment Authority (IAA) Ignored relevant information.

3. The Immigration Assessment Authority (IAA) came to the wrong conclusion based on the factual evidence before him/her.

4. I believe the Immigration Assessment Authority (IAA) misunderstood my circumstances and the real harm I will suffer if I am returned to my country of nationality.

5. There was no International Treaties Obligation Assessment (ITOA) for the discloser of my personal and private information on February 2014, now known as the ‘DATA BREACH’.

18    The Court considered, without making a final finding, that each of these grounds appeared to have no prospects of success: [46]-[47]. The Court held that, because it was satisfied that the applicant’s substantive application for judicial review of the IAA’s decision had insufficient prospects of success, and because the explanation for the delay was unsatisfactory, it was not satisfied that it was necessary in the interests of justice to extend time to the applicant.

19    The applicant filed an application for judicial review to this Court on 10 October 2017. The application was amended on 15 November 2017.

Relevant provisions and the jurisdiction of the court

20    Section 477(2) imposes an express precondition to the exercise of discretion in favour of an applicant: namely that the Court is satisfied the extension of time is “necessary” in the interests of the administration of justice. The subsection 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.

21    While this Court has no jurisdiction to hear an appeal from the Federal Circuit Court in relation to a refusal to grant an extension of time by reason of s 476A(3)(a) of the Migration Act, this Court does have jurisdiction to consider an application under s 39B of the Judiciary Act for review of that decision: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [11]; MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [26].

22    A distinction is maintained in Australian law between judicial supervision for legal error by tribunals or other administrative decision-makers, and judicial supervision of decisions made in exercise of judicial power. As I said in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [11]:

…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.

23    In MZABP, I considered the High Court authorities concerning this distinction at [30]-[34]. I do not propose to repeat what I said there. Some passages from the High Court’s reasons in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 are, however, necessary to return to in considering the applicant’s grounds of review: see [59] below.

24    As I said in SZTSU at [3], it should be emphasised that the statutory precondition that the extension of time is “necessary” in the interests of the administration of justice is to be formed to the satisfaction of the Federal Circuit Court. There will be an inevitable, and permissible, range of judicial views expressed in forming this state of satisfaction, with the weight given to a range of factors likely to vary depending on particular factual circumstances and the judicial view taken of them.

25    Both SZTSU and MZABP were affirmed on appeal: SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129; MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110.

Resolution

26    In their written submissions at [9], counsel for the applicant attempted to bring some of the grounds of review together under the umbrella of a denial of procedural fairness. The first three grounds of review are, together with other factors, brought together in ground 4, which relates to legal unreasonableness. However there is no other drawing together of various grounds in the amended application by reference to some broader allegation of denial of procedural fairness. Accordingly I do not propose to consider the submissions in [9] as advancing matters outside the amended application as framed.

Ground 1

27    The applicant contends that:

The Federal Circuit Court (Court) denied the Applicant procedural fairness at the hearing on 26 July 2017 by not giving him an opportunity to reply to the Minister’s submissions.

28    The applicant submits that the content of procedural fairness depends on the circumstances of the case and the statutory context. Relying on Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367; 180 LGERA 1 at [6], the applicant contends that the fact that he was self-represented was a relevant factor. The applicant submits:

The opportunity to reply was particularly important because the Applicant was not represented, and a non-English speaker. The Applicant had not filed any written submissions, and had only received the Minister’s submissions shortly before the hearing. The presence of an interpreter at the hearing enabled the Applicant to glean something of the content of the Minister’s case.

29    The applicant contends that, had he been invited to make reply submissions, the Federal Circuit Court might have identified an arguable ground of review in respect of the IAA decision. This is on the basis that the Minister made oral submissions that the IAA had adequately addressed the applicant’s claims concerning the harm to his brothers. However, the applicant contends that the IAA finding dealt only with harm experienced by the applicant’s family members in the past, whereas the applicant made more expansive claims regarding his family. In particular, the applicant submits that the IAA did not consider the applicant’s claims that he was at risk of harm because his family was well known as LAF supporters, did not make reference to his claim that his family’s tyre business supplied tyres at a discounted rate to the LAF, and made no finding as to whether the applicant’s brother was coordinating intelligence activities for the LAF. By not giving him a chance to reply and preventing him raising these issues responsively to the Minister’s submissions, the applicant contends that the Federal Circuit Court denied him procedural fairness, and exceeded its jurisdiction.

30    The Minister submits that there is no statutory requirement for the Court to allow a reply, and there is no basis for a submission that the fact of not making submissions in reply reveals jurisdictional error. The question is whether, in all of the circumstances, the Court accorded procedural fairness, and in particular, whether the applicant was given a reasonable opportunity to present evidence and make submissions.

31    The Minister submits that in this case, the applicant had a chance to put on written submissions, but did not. The applicant had received the Minister’s submissions in advance of the hearing. The Minister contends that no new arguments or materials were raised by him during oral submissions, and the applicant had taken the opportunity to address the Court on each of his grounds.

32    Further, the Minister submits there is no basis for the applicant’s submissions before this Court that he might have identified an arguable ground of review if he had been granted a reply.

33    In Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [37], the Full Court (Mansfield, Tracey, Mortimer JJ) said, of the obligations of the Federal Circuit Court in dealing with applications for judicial review of migration decisions:

It is axiomatic that the primary judge was obliged to accord procedural fairness to the appellant: Taylor v Taylor (1979) 143 CLR 1; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350 per Mason J; Allesch v Maunz (2000) 203 CLR 172 at 184-185 per Kirby J.

34    The Minister did not cavil with this proposition in submissions, nor with the proposition that generally, part of a fair hearing would involve affording a reply to an applicant, including a self-represented applicant. Those concessions were properly made.

35    Accepting those basic propositions, the real question is whether the applicant was denied an opportunity that would have been of real, practical value to him because there were matters the Court can be satisfied he may have said. Procedural fairness, including before a Court, must always focus on the realities of how a litigant was treated and what opportunity, in a practical sense, has been lost or what effects, in a practical sense, have been visited upon a litigant. See Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 per Gleeson CJ, particularly at [37] where his Honour said:

A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(Footnotes omitted.)

36    Gleeson CJ’s analysis concerning “practical injustice” is regularly invoked and applied on judicial review of administrative decisions. However, it was also applied in the context of the judicial review of a Federal Circuit Court decision under s 477(2) in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [51] and [68] (Wigney J). SZTES was upheld on appeal: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.

37    Although in an exercise of judicial power, the requirements of procedural fairness may be more formally identified, and in some cases require closer adherence to particular procedures given long standing justifications for those procedures, in my opinion it is still appropriate to assess a claim of denial of procedural fairness in circumstances such as the present by looking for what it is, by way of an opportunity, that the particular litigant can be said to have lost.

38    I should however make it clear that this ground is not resolved by the proposition in the Minister’s submissions that there is no “statutory requirement” for a reply. There is no statutory requirement for many of the procedures adopted by a Court in how it conducts an oral hearing: rather, the procedures adopted are founded on long experience of what provides a fair hearing to the parties. A reply is generally seen as one of the components of a fair oral hearing, because the first time an applicant will have heard how her or his opponent develops the argument will be during the hearing itself.

39    Nor is this ground to be resolved by the Minister’s contention that the applicant had the Minister’s written submissions in advance. There is no evidence one way or the other whether the applicant could understand enough English to read them, let alone whether, even if he could read the words, he understood the legal content. This submission by the Minister simply does not engage with the reality of the situation of someone in the applicant’s position.

40    Rather this ground is to be resolved by considering the applicant’s contention that what can be accepted to be a departure from the usual hearing process, where that process is designed to ensure procedural fairness, denied him an opportunity to put issues before the Court that may have influenced the Court’s conclusion on his extension of time application. If the applicant could make good this proposition, then the ground would be made out.

41    I do not consider the applicant can make good that proposition. The only evidentiary basis before the Court is what the transcript of the Federal Circuit Court hearing reveals about the applicant’s initial statements (and evidence), and then the Minister’s submissions in response. It is clear that, during the applicant’s initial submissions to the Court, the Federal Circuit Court judge did attempt to direct the applicant’s attention to what he needed to tell the Court to persuade it that his grounds of review had some prospects of success. For example, her Honour said:

HER HONOUR: You have said in ground 2 that the Assessment Authority ignored relevant information. I am just asking you – you have not identified what that information is, and I’m asking you what is the relevant information you say that the Authority ignored?

42    The Minister’s responsive oral submissions were then very brief. As the Minister’s counsel described it in this proceeding, it appears the Federal Circuit Court judge did not wish to hear very much from the Minister’s lawyer. Indeed, her Honour cut the Minister’s lawyer off on a number of occasions:

HER HONOUR: Thank you. Yes, Ms Buchanan. Are you going to be much longer?

MS BUCHANAN: No, your Honour. I .....

HER HONOUR: Thank you. Thank you. No. Thank you, Ms Buchanan. Can you ask the applicant please to be quiet now? Yes, Ms Buchanan.

MS BUCHANAN: With respect to grounds 2 and 3, it appears that the applicant’s submissions today were raising issues about information not considered or wrong conclusions being come to, related to information that he was seeking still from Lebanon.

HER HONOUR: Thank you. Can I hear you on ground 5, please?

MS BUCHANAN: Yes. On those grounds, a lot of it seemed to relate to the applicant’s brother’s death which, as I’ve said, the IAA considered.

HER HONOUR: No, no. Ground 5.

MS BUCHANAN: With respect to ground 5, the – that there was no International Treaties Obligations Assessment, we say no error arises from that. That is a separate matter that can’t give rise to any error in the IAA decision. There have been some cases where applicants have claimed, related to International Treaties Obligations Assessments arising from the data breach, that they should have been given ITOAs, rather than other processes.

...

MS BUCHANAN: Sorry. There have been other cases where applicants have contended, arising from what has become known as the data breach, they should have been given ITOAs, rather than had their claims assessed in other processes.

HER HONOUR: Thank you. I don’t need to hear you any further. Thank you.

43    The Minister’s lawyer was not permitted to address ground 4 of the applicant’s grounds, which appeared to be the one challenging how the IAA dealt with his claims about his family. There is no evidentiary basis to suppose, had the applicant been asked whether he wished to say anything in reply, that the applicant would have identified that the IAA failed to consider a claim he had made. Nothing in what the Minister’s lawyer said could have triggered such a response. Rather, there is an evidentiary basis for supposing the applicant may well have repeated, more or less, what he had already said to the Federal Circuit Court about why his claims had merit. That is, it seems to me, what the Federal Circuit Court apprehended he would do, and why it did not give him an opportunity to say anything more.

44    It is of concern that the Federal Circuit Court shut the hearing down, and gave the applicant no chance for a reply. It certainly does not give the appearance of fairness. However, in the circumstances I am not persuaded it was a denial of procedural fairness.

Ground 2

45    The applicant contends that:

The Court failed to take into account a consideration relevant to the extension of time application, being the Applicant’s explanation for his failure to file within 35 days.

Particulars

a.     The Applicant’s explanation for failing to make his judicial review application within 35 days was:

i.     he did not have all of his papers;

ii.     he did not have legal assistance;

iii.     he was in immigration detention; and

iv.     he was in isolation in immigration detention.

b.     The Court found the Applicant’s explanation ‘wholly unsatisfactory’ (at [15] of its judgment).

c.     The Court did not provide reasons for its conclusion that the Applicant’s explanation was ‘wholly unsatisfactory’, except that the Applicant had received the Independent Assessment Authority (IAA) review on 23 March 2017.

46    The Federal Circuit Court’s reasons in relation to the applicant’s explanation for the 13 day delay are as follows:

12.     The applicant’s explanation for his delay as disclosed in his initiating application was interpreted for the applicant and he confirmed those reasons.

13.     The applicant was then sworn in to confirm his evidence for his explanation for delay given that he had failed to file any evidence in support in accordance with Orders made by a Registrar of this Court on 25 May 2017. The explanation given by the applicant under oath was that the delay was not because of him but because of ‘you’. The applicant said after he had made a complaint to the Ombudsman and the case manager, he was given all papers and then he lodged his application for judicial review.

14.     In cross-examination, the applicant agreed that he had been handed a copy of the decision of the IAA on 23 March 2017 at 12:00pm by a CIRCO [sic – Serco] officer.

15.     In the circumstances, the applicant’s explanation for his delay is wholly unsatisfactory.

47    The applicant submits that the Federal Circuit Court did not properly form the requisite state of satisfaction that the extension of time was not necessary in the interests of the administration of justice pursuant to s 477(2) of the Migration Act. He submits that the Federal Circuit Court’s reasons contain no analysis in support of its conclusion that the applicant’s explanation was “wholly unsatisfactory”. He contends that it can be inferred from the Federal Circuit Court’s reasons that it had “no proper regard to the important parts of the Applicant’s explanation for delay, merely considering it sufficient that he had been duly notified of the IAA’s review.”

48    Further, the applicant submits that the Federal Circuit Court failed to consider his grounds for an extension of time cumulatively. He submits that the Court failed to identify the connection between his incapacity to represent himself and his belief that his judicial review application required his entire file. He relies on the decision of Charlesworth J in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; 244 FCR 401 at [78], where her Honour said:

…a judge of the FCC will commit jurisdictional error if the formation of the satisfaction required under s 477(2) (being a pre-condition to the exercise of the power) if the judge takes into account an irrelevant consideration or disregards a relevant consideration when determining what the interests of the administration of justice require.

49    During the hearing before the Federal Circuit Court, the applicant made submissions and gave sworn evidence concerning the delay. In submissions, the applicant informed the Court that:

The delay is not attributed to me. The delay is for – attributed to them because they didn’t give me the file on time and I made a complaint before the Ombudsman, and the 35 days elapsed. And I’ve been for – I have been here in the – for four and a half years in the immigration detention centre. And they gave me the file – the whole file too late.

50    After being sworn in, the following exchange occurred:

HER HONOUR: Very well. Sir, as you know, I have explained to you that it is necessary – I withdraw that. As I have explained to you, you have an opportunity to explain to the court the delay of 13 days in filing your application for judicial review of the decision of the Assessment Authority. Under the Migration Act you have 35 days in which to launch such an application from the date of the decision of the Assessment Authority’s. You filed your application 13 days past that date. What is your explanation for that delay?

THE INTERPRETER: The delay is not because of me, your Honour. It’s because of you. It’s – after I made the complaint and – to the Ombudsman and the case manager gave me the papers, I lodged my application straightaway to the court.

…

HER HONOUR: Is there anything further you wish to say about your explanation for your delay?

THE INTERPRETER: The delay is because of you, not because of me.

51    The applicant relies on the following exchange during cross-examination:

MS BUCHANAN: And is it not the case that you were handed a copy of the Immigration Assessment Authority’s decision in relation to your protection application on 23 March 2017 at 3.12 pm by a Serco officer?

THE INTERPRETER: I received the papers and they were missing. And there were too many papers that were missing. When they gave me the papers there was something missing. There were too many papers that were missing. And after that I spoke to the case manager and to the Ombudsman to give me the entire file. And also at that time I was isolated from the rest of the residents there because there was a clash among New Zealanders and myself. So they isolated me from the rest of the residents there.

52    The applicant contends that neither the Court nor the Minister asked the applicant to expand on what documents were missing from his file, and no attempt had been made to clarify who had the applicant’s file. The following exchange then occurred:

HER HONOUR: Sir, you were asked a question, ‘Were you handed a copy of the decision of the Assessment Authority on 23 March 2017 at 12 pm by a Serco officer?’ That is a yes or no question.

THE INTERPRETER: Yes, your Honour. I received – on that date I received some papers but they were missing. Too many papers were missing. And at that time I was in isolation.

HER HONOUR: Well, I will understand your answer to be that you agree you were handed a copy of the decision of the Assessment Authority on 23 March 2017 by a Serco officer.

THE INTERPRETER: Yes, that’s right, but the papers were not complete. There were too many papers that were missing.

53    The Minister correctly accepts that the explanation for delay given by an applicant is a factor to be taken into account in an application for an extension of time. However, the Minister contends that a failure by an inferior court to take into account such a factor does not in itself amount to jurisdictional error. Even if the applicant’s explanations were not properly considered (which the Minister denies), that would not amount to jurisdictional error in the sense of failing to reach the necessary state of satisfaction for s 477(2). Failure to consider a relevant factor does not lead inexorably to a conclusion that there was jurisdictional error in the decision.

54    The Minister contends that in any case, the Federal Circuit Court understood the applicant’s explanation, discussed the issue with him, including taking sworn evidence, and set out his explanation in the judgment. It was not required to do more than state its finding in the way that it did so. Although it might have expressed its reasons for its findings more fulsomely, the fact that it did not does not give rise to jurisdictional error.

55    There are some real gaps in the evidence about precisely what the applicant meant by having tried to get “missing papers”, and about the chronology around when he asked for his file, when he made his complaint to the Ombudsman and how this fitted (or failed to fit) into the time after he received the IAA decision. Counsel for the applicant contends these gaps were immaterial to the ground of review, because the ground is focussed on the proposition that the Federal Circuit Court did not show any interest in the applicant’s explanation. Instead, her Honour narrowed the issue to whether the applicant received a copy of the IAA decision. The applicant’s counsel contends her Honour failed actively to engage with the explanations the applicant gave to the Court. Her Honour could, and should, have sought to clarify what the applicant was saying about the “missing papers” and the timing of these events, because it could have been highly relevant to the 13 day delay.

56    I accept the applicant’s submissions that, as a matter of fact and based on the transcript of the Federal Circuit Court hearing, her Honour appeared disinterested in the applicant’s detailed explanations for the delay. Her Honour instead did focus on the question of whether the applicant received a copy of the IAA decision and appeared to consider that to be the critical issue. This focus is also reflected in her Honour’s reasons. It is also correct that her Honour appears to have ignored the applicant’s claim that he was being held in isolation in detention on Christmas Island when he received the IAA decision. This was plainly a material fact which might have contributed to the explanation for the 13 day delay. Her Honour does not refer to this evidence in her reasons and I infer did not take it into account.

57    I am prepared to find that the learned Federal Circuit Court judge did not take into account the whole of the applicant’s explanations for the delay as he gave them in oral evidence, and completely failed to take account of his explanation relating to being held in isolation.

58    However, I do not consider these failures disclose an error going to the jurisdiction of the Federal Circuit Court in exercising the power conferred on it by s 477(2) of the Migration Act. Those errors were made within the jurisdiction conferred on her Honour.

59    In Kirk at [67] and [71]-[72] the plurality said:

67.     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”. The Court said 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, in Craig, not ordinarily to constitute jurisdictional error. The Court held 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.”…

71.     It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.

72.    First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that 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” (emphasis added). Secondly, the Court pointed out that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks’ Union.

(Footnotes omitted.)

60    One of the examples given by the plurality is the failure to take into account a matter the statute renders a mandatory consideration, or (to put it another way), that the statute renders an inviolable condition on the exercise of the power conferred. In the language of judicial review this is a failure to take into account a relevant consideration, although that phrase has come to be employed, in submissions and sometimes in authorities, in contexts where it clearly does not carry this meaning, and instead refers to failure to consider a claim made, or evidence proffered. That is not how the ground “failure to take into account a relevant consideration” is properly understood, as the extract from Kirk at [72] makes clear, and as Mason J’s reasoning in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 demonstrates. I accept the Minister’s submission that the explanation for a person’s delay in filing an application is not of that kind, on a proper construction of s 477(2).

61    The relevant consideration, if that be the correct way to express it, is set out in s 477(2)(b): namely, whether it is necessary in the interests of the administration of justice to grant the extension of time. Earlier in these reasons I have described this as a precondition to the exercise of power: although I prefer to express it that way, its characterisation need not be finally determined. The point is, it is that matter which conditions the Court’s power. In contrast, a permissible (and, it can be accepted, usual and important) factor which will contribute to the determination of what is necessary in the interests of the administration of justice is for the Court to understand what is the applicant’s explanation for being out of time.

62    However there is nothing in the scope, subject matter and purpose of s 477(2) which gives rise to an implication that Parliament intended that adequate and genuine consideration of any explanation for the delay was to be a matter conditioning the exercise of power to extend time, independently of the stated precondition in s 477(2)(b).

63    I respectfully agree with what I understand to be the similar approach taken by Wigney J in SZTES at [78]–[79] and Griffiths J in SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [57]. Griffiths J’s approach was affirmed on appeal in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456. I respectfully agree in particular with what Bromwich J said at [11]-[12] on appeal.

64    That said, there may well be circumstances where, if the Federal Circuit Court completely omits to consider an explanation for delay in considering an extension of time application under s 477(2), the Court will be found to have misunderstood the content of the s 477(2)(b).

65    Given the approach I have taken, it is not necessary to express any concluded view on the approach taken by Charlesworth J in AZAFX at [78], on which the applicant relied. However I note, with respect to her Honour, that the approach her Honour proposed is one that is generally used to express the applicable principle in reviewing an exercise of administrative power where the power is conditioned by the formation of a state of satisfaction. Indeed, that was the circumstance in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; 123 FCR 298, the decision on which her Honour relied for the proposition she set out. Whether that same approach should be adopted in relation to a statute, such as a s 477(2), which confers a discretionary judicial power in terms which require the Court to be satisfied of a matter, is a question that should be left for another day.

Ground 3

66    The applicant contends:

The Court exceeded its jurisdiction in failing to consider a jurisdictional error affecting the IAA review, which were recognisable on the material before the Court, or ought reasonably to have been recognised or appreciated by the Court. In not considering and dealing with an error plainly raised on the material, the Court failed to form the requisite state of satisfaction under s 477(2)(b). Such an error was a denial of procedural fairness.

Particulars

a.     It was obvious from paragraph 12.8 of the Minister’s submissions dated 21 July 2017 that the IAA had prejudicial material before it that it purported not to consider and that therefore there was an argument (based on the authority of AMA16 v Minister for Immigration & Ors [2017] FCCA 303) that there was bias.

67    The applicant’s counsel spent some time in the hearing taking the Court through the primary documents in the Court Book before the Federal Circuit Court which she submits were clearly irrelevant to the IAA review, and prejudicial to the applicant. These included documents about the applicant’s criminal record, about criminal offences the applicant was alleged to have committed, and about the applicant’s allegedly poor (and sometimes allegedly violent) behaviour in detention.

68    Section 473CB of the Migration Act sets out the material which is to be provided by the Secretary to the IAA in respect of each fast track reviewable decision. Relevantly, s 473CB(1)(c) imposes an obligation on the Secretary to give the IAA:

(c)     any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review

69    It was apparently pursuant to that provision that these documents were given to the IAA in respect of the applicant. It might be difficult to understand how the Secretary could have formed the view that this material was relevant to the IAA’s task, but no more need be said on that matter.

70    Clearly, the IAA understood the documents were not relevant. At [49] of its reasons, it stated:

I note that there is information in the delegate’s decision and in the referred material relating to character and security concerns about the applicant. The applicant has stated that he was convicted of criminal offences and imprisoned in Lebanon in about 1999; while he initially stated that he was arrested by Syrian forces on political charges, he subsequently stated that in fact they were criminal offences, including robbery, and he had been imprisoned in a different location from that originally stated. The applicant has provided penal certificates and other documentation from Lebanon indicating that he has no criminal record and is of good character. In the light of his own admission, I find that the applicant does in fact have a criminal conviction in Lebanon and the documentary evidence stating otherwise is inaccurate. As to the other matters mentioned in the referred material, there is no evidence before me of any of the matters raised, and the basis for the concerns raised is not at all clear. As the IAA is not permitted, in any case, to make directions in relation to whether an applicant meets or does not meet criteria for the grant of a protection visa relating to criminal, character or security matters, any allegations made in relation to such matters are not relevant to my consideration of the application. The applicant has not claimed that he fears harm of any kind arising from these matters. I have therefore not had regard to any information on file which refers to criminal activity on the part of the applicant or any of his relatives – apart from the applicant’s own claims about his sister-in-law – including for the purpose of assessing the credibility of the applicant’s protection claims.

71    The applicant advanced two main arguments. First, that the Federal Circuit Court should have appreciated there was a ground of apprehended bias to be argued concerning the IAA’s possession of such documents, because a similar ground had been upheld by Judge Riley in AMA16 v Minister for Immigration & Ors [2017] FCCA 303 at [23]-[40], and affirmed by a Full Court in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136. Judge Riley’s decision was handed down several months before her Honour’s decision in this proceeding. Second, that the Federal Circuit Court should have appreciated such a ground existed because of the presence and nature of the documents themselves, had it gone through the documents in the Court Book in the way counsel took this Court through those documents.

72    The Minister contends that the error alleged was not raised in any form by the applicant before the Federal Circuit Court. The Minister submits that this Court is not engaged in an appeal, but rather is concerned with the Federal Circuit Court’s exercise of power in refusing to extend time. The Minister contends that, while a court should construe more generously the grounds raised by an unrepresented litigant when considering the merits, it does not extend to requiring the court to consider the materials and assess possible errors not put to it.

73    In developing this ground, the applicant referred to my decision in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158. Counsel for the applicant submits that in that case, I observed that jurisdictional error may arise where there is an “error recognisable or reasonably recognisable on the materials”. At [113]-[114] of that decision, I said:

If, in circumstances involving the exercise of a judicial discretion, a court is or should be put on notice, through the evidence and material before it, of an arguable substantive legal error in the decision sought to be reviewed (including denial of procedural fairness by the Tribunal), then the Court has a duty to assist a self-represented person sufficiently to ensure the arguments about that legal error can be properly developed and considered. What that involves in any given case may vary depending on individual circumstances. Similarly, if a court is or should be put on notice, through the evidence and material before it, of an arguable procedural problem in its own proceeding that may deprive a litigant of an effective choice in the proceeding, or impede the litigant’s opportunity to present her or his case and arguments, then in my opinion the Court may have a duty to assist a self-represented person to surmount that procedural problem.

In the present case, there is no basis, and the applicant’s submissions did not suggest, that the Court failed in its duties to the applicant because there was some obviously arguable substantive legal error apparent on the evidence and material which the Court itself should have identified. Rather, the applicant focused on what I have described as a “procedural problem” in the Federal Circuit Court’s own proceeding: the status and role of the applicant’s legal representation.

74    The Minister relied on SZTSU to contest the applicant’s submissions. At [18]-[21] of SZTSU, I said:

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.

75    The point I was making in MZAIB is not the point the applicant’s counsel identified in her submissions. In MZAIB at [113]-[114], I was dealing with the obligations of the Federal Circuit Court, where that Court was “put on notice, through the evidence and material before it, of an arguable substantive legal error in the decision sought to be reviewed”. In those circumstances, I expressed the view that the Federal Circuit Court was obliged as part of ensuring a fair hearing, to “assist a self-represented person sufficiently to ensure the arguments about that legal error can be properly developed and considered”. I noted that what might be involved in this would “vary depending on individual circumstances”. I noted those principles applied to any processes of the Federal Circuit Court itself that needed explanation to a self-represented litigant. Those principles are not relevant to the present proceeding: no argument is raised that her Honour failed to assist the applicant in the way she was obliged to do. Indeed, as I have noted above, her Honour did endeavour to explain to the applicant what he needed to address. And for reasons I explain below, there is nothing that should have put her Honour on notice about an arguable substantive error in the IAA decision. That is a higher bar than that described by counsel for the applicant as an “error recognisable or reasonably recognisable on the materials”.

76    My observations, obiter, in SZTSU, make a different point. They focus not so much on the assistance to be given to a self-represented litigant, but on what might be obvious to the Federal Circuit Court on the materials before it, and because of something said in the grounds of review by an applicant. The situation I was not prepared to discount (at [20] in SZTSU) was one where “in not considering and dealing with an error plainly raised on the material, and generally adverted to in the grounds of review” an argument might be put that the Federal Circuit Court had failed to form a state of satisfaction about whether an extension of time was necessary in the interests of the administration of justice. That would be because it is unlikely to be in the interests of the administration of justice for a supervising court to allow an administrative decision affecting a person’s liberty, and status in Australia (as these decisions do) to stand if it is obviously affected by a jurisdictional error and the applicant has, at least to some extent, identified that error. It would be a rare situation that an applicant raised a ground, at least generally, and the Court was also put on notice about that ground because of the nature of the materials and evidence before it, yet the Court did not deal with such a ground in considering whether to grant an extension of time. However, as I stated in SZTSU and reaffirm here, I am not prepared to discount that such a situation could possibly arise. It was not the case in SZTSU and it is not the case here.

77    It is not the case here because the applicant did not, in any sense, advert to an error in the nature of apprehended (or even actual) bias in his grounds of review. Bias is a concept that many lay people understand, at least to some extent, and it is an allegation often made by self-represented litigants. In that sense, it is a more readily understandable concept than most other grounds of judicial review. Yet the applicant did not say, in any way, that the IAA was biased against him because of the materials the Department had handed over to the IAA. He did not mention in his submissions to the Federal Circuit Court, or in his evidence, the adverse information in the Court Book and before the IAA. He focussed on what had happened to him and his family in Lebanon. He did not refer to [49] of the IAA reasons, and use that as a way to question why the IAA had that material. There is no basis in the present case to consider any further the reservations to which I referred in MZAIB and SZTSU.

78    Further, the presence of the disavowal by the IAA at [49] of its reasons distinguishes this case from AMA16: see Dowsett J at [4] and Griffiths J (with whom Charlesworth J agreed) in AMA16 at [78].

Ground 4

79    In ground 4, the applicant contends:

4.     The Court’s decision not to extend time under s 477(2)(b) was legally unreasonable in the circumstances here where:

a.     The Applicant was only 13 days out of time.

b.     The refusal to extend time resulted from a failure to consider an argument that was recognisable on the material before the Court, that the IAA review was affected by jurisdictional error.

c.     The Applicant’s explanation for failing to make his application on time was:

i.     he did not have all of his papers;

ii.     he did not have legal assistance;

iii.     he was in immigration detention: and

iv.     he was in isolation in immigration detention.

d.     The Applicant required an interpreter to communicate.

e.     The Minister's submission - in English - were not provided until at least the date they bore, being 21 July 2017 (5 days before the hearing).

f.     The hearing was via video link.

g.     The Court did not invite the Applicant to respond to the oral submissions of the Minister.

h.     The consequences for the Applicant of being refused an extension of time were potentially grave given this was a judicial review of a decision to refuse a Temporary Protection Visa.

80    The applicant contends that s 477(2) contains a statutory discretionary power, and that the Federal Circuit Court had to apply the statute to the evidence and arguments in a reasonable way. In his submissions, the applicant generally repeats what he stated in ground 4, extracted above, without making any further submission. In relation to his explanation for failing to make his application on time, he submits that no reasonable decision-maker could have considered his explanation wholly unsatisfactory on the basis that:

The Applicant believed he needed to receive further documents before he could apply for a judicial review. It was a reasonable belief, particularly for a layperson in the Applicant’s circumstances of being isolated in detention without a lawyer, and not speaking English. Importantly, the Applicant’s unchallenged evidence was that once he received his file, there was no further delay.

81    The Minister contends that ground 4 adds nothing of substance, and the submissions assume the correctness of most of the other complaints already made and discussed in the other grounds. The Minister contends that the Federal Circuit Court’s decision was not legally unreasonable, and the conclusion it reached had an evident and intelligible justification.

82    I accept that ground 4 assumes the correctness of the other grounds, at least in part. However, it seeks to have the Court examine these matters cumulatively.

83    The question of whether a decision which is legally unreasonable can be characterised as a jurisdictional error when it appears in the reasoning of a court exercising judicial power is a question I left open in MZABP at [76]. As far as I am aware, that decision has not been resolved by the Full Court of this Court or by the High Court. The Minister submits that in the circumstances, there is no need for this Court to decide that question, given that the Federal Circuit Court’s decision was not legally unreasonable. I agree.

84    For the purpose of considering ground 4, I have put the question in [83] to one side, and have assessed whether, even on the current state of the law concerning administrative decisions, the applicant could make out a case of legal unreasonableness.

85    Even though the plurality reasons in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 might contemplate legal unreasonableness arising either on an “outcome” basis (see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 359-360 (Dixon J), and see the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [44]-[45]), or due to an absence of an evident and intelligible justification for the exercise of power in the reasons given (see Li at [72] and [76] per Hayne, Kiefel and Bell JJ and Singh at [46]-[47]), in the present case the latter approach must be taken. That is because the Federal Circuit Court has given reasons for the exercise of the discretionary power in s 477(2), and it is those reasons which must disclose an evident and intelligible justification for that exercise of power. The situation is unlike Li, where the Tribunal’s reasons focussed on why the decision under review was affirmed, and gave no real indication about why the adjournment application was refused.

86    Even if, as I have found, her Honour’s reasoning in relation to the applicant’s explanation for the delay was incomplete, that lack of completeness on one (non-mandatory) factor feeding into the exercise of discretion does not render her Honour’s reasons lacking in an evident and intelligible justification for the refusal to extend time. Her Honour’s reasoning does not fall within the principles set out in Li.

87    At the hearing, I indicated to the parties that if I were persuaded the Federal Circuit Court’s exercise of power was legally unreasonable, I would call the parties back for further submissions on the broader and more complex question to which I have referred at [83] above. Given my conclusion, it is not necessary to hold a further hearing.

Conclusion

88    None of the applicant’s grounds of review have been made out. The application will be dismissed. There is no reason for anything but the usual order as to costs, although I propose to adopt the approach set out in the Court’s Costs Practice Note (GPN-COSTS) and give directions to enable the Court to fix costs by way of a lump sum.

89    It must be remembered that judges of the Federal Circuit Court are under enormous pressure in terms of their caseload, and they deal with tremendous numbers of judicial review applications in the migration jurisdiction, each of which requires the application of an area of law that can be technically complex, yet this is frequently done in circumstances where applicants have no legal representation, no functional English and no familiarity with the Australian legal system. These are very challenging circumstances to review exercises of public power.

90    There were several aspects of the way the hearing was conducted that were less than ideal, and which have given rise to the grounds of review. The applicant was cut off regularly by her Honour. His participation in the hearing was driven by a firm question and answer regime on the part of the Court, not conducive to the applicant feeling that he had been listened to, and had had a fair hearing, even if according to law there was no denial of procedural fairness. Some of what he said was ignored, when it should not have been.

91    None of these matters meant the jurisdiction of the Federal Circuit Court miscarried, but the necessarily sharper focus on how a hearing was conducted which accompanies an application of this kind can serve as a reminder of how such pressures can bring judicial officers closer than is desirable to failing to give a fair hearing.

Associate:

Dated:    13 December 2017