FEDERAL COURT OF AUSTRALIA

CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision and orders of the Federal Circuit Court below.

2.    A writ of mandamus directing the Federal Circuit Court, differently constituted, to determine the applicant’s application for extension of time in accordance with law.

3.    The second respondent pay the Applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

INTRODUCTION

1    This is an application made pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision made by the Federal Circuit Court (the “FCC”) to refuse to extend the required period of time within which to file an application to the FCC for judicial review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”). The Tribunal’s decision had been to affirm a decision of the second respondent (the “Minister”) to refuse the grant of a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the “Act”).

2    Pursuant to s 477(1) of the Act, the applicant had a period of 35 days within which to make that application for review. He was 16 days late. Pursuant to s 477(2) the FCC has a broad power within which to extend the time period for the filing of that application. Section 477(2) provides:

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.

The FCC refused to extend time because it found, in essence, that the applicant’s case for review of the Tribunal’s decision was futile.

BACKGROUND

3    The applicant is a national of Fiji. He resided in Australia on a Child (Class AH) visa from September 2000 to December 2001 and again from December 2002 until August 2015 when that visa was cancelled. He was then detained under s 189(1) of the Act and, on 8 September 2015, he made a valid application for a Protection (Class XA) visa. In applying for his Protection visa, the applicant said he feared he would be killed if he were returned to Fiji, although he declined to explain why he held this fear, beyond stating that his claims were of a personal nature. On 19 October 2015, the Minister, by his delegate, refused to grant the applicant the Protection visa on the basis that the applicant had not provided sufficient details about his claims to satisfy the Minister that he met the criteria under either s 36(2)(a) or s 36(2)(aa) of the Act.

Proceedings in the tribunal

4    The Tribunal heard the matter on remittal pursuant to an order of the FCC made by consent. The Tribunal had previously affirmed the decision of the Minister to refuse to grant the Protection visa. However, that decision was set aside by the FCC on the basis that the Tribunal had not provided the appropriate notice of the hearing.

5    It was before the Tribunal on remittal that the applicant first described events in Fiji in 2002 which, in the applicant’s submission, led to his fear of being killed if he were returned to Fiji. The applicant, representing himself, said that, on his way home from school approximately a month prior to his return to Australia in 2002, he witnessed a Fijian man with two bodyguards slit the throat of another man. In the applicant’s submission, the man with bodyguards grabbed the applicant, who was the only witness to the incident; threatened him that if he returned he would be killed; and discovered his identity by searching his school bag and finding a proof of age card. The Tribunal accepted that the applicant had not disclosed this narrative to anyone at any time prior to this hearing. The Tribunal allowed the applicant additional time after the hearing to submit any further information and submissions.

6    The Tribunal set out the relevant criteria for application for a Protection visa under s 36(2)(a) and s 36(2)(aa) of the Act. As discussed below, it would appear that the applicant now disputes the Tribunal’s construction of s 36(2)(aa).

7    The Tribunal accepted that the applicant had a subjective fear of being killed if he were returned to Fiji on the basis that he had witnessed a man being killed in 2002 and subsequently threatened. The Tribunal also said it accepted that “the applicant’s perception that the killer was important or powerful at that time, because he had bodyguards, was a reasonable assumption on the applicant’s part”. Notwithstanding these findings, the Tribunal affirmed the decision under review on the basis that it did not accept the applicant has a well-founded fear of persecution. It did not accept “that the threat made in 2002 by this unknown man has any basis in fact in 2016”. Citing MIEA v Guo (1997) 191 CLR 559, the Tribunal described the claim that the applicant would be harmed by this man as “mere speculation”.

Proceedings in the FCC

8    The applicant represented himself before the FCC. At par [8] of the reasons for decision, the learned primary judge set out the five grounds upon which the applicant relied. They were as follows:

1.    The Administrative Appeals Tribunals decision of 12 July 2016 is and was irrational, illogical and was not a decision that was based on findings or inferences of fact supported by logical grounds such that the Tribunals decision is attended and invalidated by jurisdictional error.

2.    Particularly the Tribunal in its decision record of 12July 2016 made a critical finding of fact that was adverse to my claims, rights and interests. These findings of fact was not open to be made by the Tribunal in that it was contrary to the evidence, and not based upon probative materials.

3.    The Administrative Appeals tribunal denied me procedural fairness in coming to its decision on 12 July 2016 for failing to consider and take into account the best interest of a child as a primary consideration in accordance with the United Nations Convention on the Right of a Child (CROC).

4.    The Administrative Appeals tribunal denied me procedural fairness in coming to its decision on 12 July 2016 failing to consider all my claims and the integers of my claims for protection.

5.    The Administrative Appeals Tribunal denied me procedural fairness in coming to its decision on 12 July 2016 in that it misconstrued and misapplied section 36(2)(aa) of the Migration Act 1958.

The primary judge carefully considered and then rejected each of the first four grounds for review. However, his Honour did not expressly address ground five.

Section 39B Grounds of Review

9    By an originating application filed 8 December 2017, the applicant sought judicial review of the decision of the FCC, and for that purpose identified the following two grounds of review in his statement of claim:

1.    The decision of the First Respondent made on 24 February 2017 was affected by jurisdictional error in that the First Respondent failed to consider proposed ground 5 of the application for review by the First Respondent filed on 1 December 2016 at all, as identified at [8] of its reasons, but not otherwise mentioned nor dealt with by the First Respondent (see also [7]).

2.    The decision of the First Respondent made on 24 February 2017 was affected by jurisdictional error in that the First Respondent’s discretion under s 477(2) of the Migration Act 1958 (Cth) miscarried, by reason of that judgment:

a    relying upon its own interpretation of a recording of the Tribunal hearing (which was before it as hearsay evidence and was noted at [23] to be ‘very difficult to hear’) in order to find a proposed ground unarguable (see [28]) which ground alleged that a claim by the Applicant had been ignored notwithstanding that the Applicant had first hand evidence which the Court knew of (see [22]) but did not take;

b.    extending beyond an examination of proposed ground 4 at a reasonably impressionistic level by expressing, at [20], ‘cautio[n] to ensure that potential grounds are properly explored’ and then listening to the recording of the Tribunal hearing and provide his Honour’s own interpretation of it; and

c.    not having any regard at all to:

i.    the period of time for which the extension of time was sought, namely 16 days;

ii.    the explanation for the delay, including that the Applicant was detained and was unrepresented at all relevant times; nor

iii.    the absence of prejudice to the Respondent by the grant of an extension of time.

10    The applicant seeks orders in these terms:

1.    A writ of certiorari quashing the decision and orders on the application for extension of time of the Federal Circuit Court in the matter of CKX16 v Minister for Immigration & Anor (MLG1874/2016) made on 24 February 2017.

2.    A writ of mandamus directing the Federal Circuit Court, differently constituted, to determine the Applicant’s application for extension of time in accordance with the law.

3.    The Second Respondent pay the Applicant’s costs of this application.

Proceedings in this Court

11    Before me, the Minister was represented by Mr Yuile of counsel, and the applicant was represented, pro bono, by Mr Albert of counsel. The Court is indebted to Mr Albert for his assistance.

12    For the reasons which follow I am satisfied that ground one of the applicant’s case succeeds. As such, it is unnecessary for me to consider the merits of the second ground relied upon.

13    The applicant submitted that the learned primary judge erred in failing to determine “at all” whether the fifth ground of potential review was arguable. He did not contend that consideration of every ground specified was mandatory in the context of an exercise by the FCC of its power in s 477(2). Rather, whether the merits of a given ground should be considered for the purposes of determining a grant of an extension of time, depended, he submitted, upon a qualitative assessment of that ground. Here, the fifth ground was said to be separately and distinctly articulated. It raised for consideration the application of the complimentary protection provisions of the Act and, critically, was the only ground which addressed those provisions. In these circumstances, he submitted, the FCC should have considered it. Its failure to do so constituted a jurisdictional error.

14    The Minister disagreed. He submitted that the learned primary judge had in fact considered ground five, albeit not separately. His consideration of it, it was submitted, was subsumed within a general finding at par [6] of the reasons below, which states:

In the first hearing, the applicant was asked to expand upon his grounds for judicial review as set out in his written material. In substance, the applicant’s arguments largely relate to a merits review of the Tribunal’s decision as he strongly disagrees with the findings of the Tribunal as to whether or not he remains at risk if he were to return to Fiji. To the extent that the applicant’s claim is a merits-based review of the Tribunal’s decision, this application must be refused as merits based review is not available on judicial review proceedings.

He also contended that the same ground had been subsumed by a further general finding at par [29]:

In the circumstances it seems to me that there is no point extending time to bring this application, as there is not an arguable ground that has been raised by the applicant. In the circumstances, I therefore formally dismiss the current application.

15    The Minister relied on the decision of Mortimer J in MZZLD v Minister for Immigration and Border Protection (No.2) [2017] FCA 31, which concerned an application for review of another decision of the FCC which had refused an extension of time under s 477 of the Act. Mortimer J accepted that a ground could be addressed when subsumed within a more general finding, which rejected several grounds of review. Her Honour relevantly said at paragraphs [39]-[40]:

While it is true, as the applicant submits, that there is no specific reference to ground 6 and the rationality argument in the Federal Circuit Court reasons, in my opinion there did not need to be. As I have set out above, the Federal Circuit Court considered that ground had little or no prospects of success in the same way it considered the other grounds also lacked prospects. It was not obliged to set out reasons in any more detail than it did in the whole of [31]. Her Honour chose to set out more detail on some of the grounds and should not be criticised for doing so. However, she was not obliged to in the course of considering an exercise of the s 477 discretion. Her task was to conscientiously form an opinion on where the interests of justice lay, including conscientiously considering the material and arguments about grounds of review, but it was not part of the Court’s task to do that exhaustively, as if it were finally determining the judicial review application.

I accept the Minister’s submissions that her Honour was also likely referring to ground 6 in [36] where she refers to findings of race or ethnicity being “subsumed” in the broader or more general findings. While “subsumed” might not be the most appropriate description, there is certainly no jurisdictional error apparent in the reasoning in [36]. Prospects of success were but one factor in the exercise of the s 477 discretion and the Federal Circuit Court clearly took the view the prospects, on all grounds, were minimal. It cannot be said that was an unreasonable view, on the evidence before the Court in this proceeding.

16    In any event, the Minister submitted that even if it was not possible to read pars [6] and [29] as having subsumed ground five, declining to consider that ground did not amount to jurisdictional error; it was an error made within jurisdiction. In that respect, the Minister emphasised the width of the power reposed in the FCC by s 477(2). He referred to the well-known distinction, drawn by the High Court in Craig v South Australia (1995) 184 CLR 163 and in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, between jurisdictional error committed by an administrative body and jurisdictional error committed by an inferior court. As the High Court said in Kirk at [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.

[footnotes omitted]

17    Here, consideration of the fifth ground was not, it was submitted by the Minister, a mandatory matter to take into account: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. Nothing in the language of s 477(2) obliged the FCC to take it into account. In that respect, s 477(2) should be read, it was contended, as leaving it to the FCC to determine how best to consider and apply the usual considerations of delay, prejudice and merit. Failure to consider all or any of these matters might constitute error, but not jurisdictional error.

18    In support of that contention, the Minister relied on SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389, which concerned another s 39B application to this Court following a refusal by the FCC to extend time under s 477. In that case, the applicant had submitted, amongst other grounds, that the FCC had made a jurisdictional error when it failed to address “the impact on him of time not being extended; the absence of any prejudice to the Minister; and the interests of the Australian community” (par [25]). This argument was rejected by Griffiths J who held that a matter does not become a mandatory relevant consideration merely because it is raised by one of the parties. His Honour said at par [57]:

Having regard to all these authorities, I accept the Minister’s submission that the Court should reject the applicant’s contention that the primary judge fell into jurisdictional [error] by not taking into account relevant considerations. The applicant’s contention fails to give effect to the breadth of the discretion conferred upon the FCCA under s 477(2) and also fails to grapple with the important fact that it was a Judge and not an executive officer who had to determine whether or not time should be extended. It was essentially a matter for the primary judge to determine and assess what were the relevant considerations to be weighed in determining whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. In determining which matters were relevant or not it might be expected that the primary judge would have regard not only to the subject matter, scope and purpose of the legislation, but also to the parties’ submissions. That is not to say, however, that a consideration becomes a mandatory relevant consideration merely because one of the parties has raised it. Furthermore, as the passage from [15] of Craig indicates … a failure by an inferior court to take into account a mandatory relevant consideration in determining a question within jurisdiction does not ordinarily involve jurisdictional error. The applicant has not pointed to any particular feature of his circumstances which would mean that, if in fact the primary judge failed to take into account the lack of prejudice to the Minister, this would amount to jurisdictional error.

19    This decision was unsuccessfully appealed to the Full Court of the Federal Court: SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456. Bromwich J said at pars [10] -[11]:

His Honour observed that it was essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining whether his Honour was satisfied that it was necessary “in the interests of the administration of justice” to extend time, being the test in s 477(2). Thus his Honour concluded even if it was a mandatory relevant consideration to take into account lack of prejudice to the Minister, failure to do so would be an error within jurisdiction, not a jurisdictional error. In my view, the view of the primary judge was unassailably correct. I therefore consider that the second ground should also fail.

I turn now to the first ground, being an assertion that lack of prejudice to the Minister in granting the application was a mandatory relevant consideration. In order to show that any consideration is relevant in the sense of a decision-maker being obliged to take it into account in making a decision under a statute, that must either be express or it must be implied from the “subject-matter, scope and purpose” of the legislation: see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39-40. I am unable to see that any conclusion can properly be reached that the terms of s 477(2) make any consideration mandatory other than the express test of whether the grant of the extension of time sought is “in the interests of the administration of justice”.

The foregoing passages support the general thrust of the Minister’s submission, that it is a matter for the FCC to decide for itself what is and what is not “necessary in the interests of the administration of justice” for the purposes of s 477(2). I note, however, that Allsop CJ also observed at par [21]:

The question of whether an error is jurisdictional is, and always will be, context-specific as cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 329 ALR 491 make clear.

20    Both parties relied upon the decision in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508, which was yet another application to this Court to review a refusal by the FCC to extend time under s 477(2). In that case, Mortimer J accepted that the court below had erred when it did not take into account the whole of the explanation for delay, including a claim that the applicant in that case had been held in isolation on Christmas Island when he had received the decision of the Immigration Assessment Authority. Mortimer J decided that these types of error were made within jurisdiction. Mr Yuile relied on par [62] where her Honour said:

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).

This passage again supported the proposition that what is conferred upon the FCC is a broad power, which it is entitled to exercise, and that errors going to the application of that power will often not be jurisdictional in nature.

21    In contrast, Mr Albert relied on par [64] which states:

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 … s 477(2)(b).

22    In Mr Albert’s submission, the Court below had quite “completely” omitted to consider a ground for review. He also placed, for that purpose, considerable reliance on a decision of Charlesworth J in AZAFX v Federal Circuit Court & Ors (2016) 244 FCR 401. In that case, an issue for determination was whether the FCC had committed jurisdictional error, for the purposes of exercising its power in section 477(2), when it considered the substantial merits of the applicant’s case. Charlesworth J decided that this constituted jurisdictional error and said at [78]:

In light of what was said in both NAAV and Craig, 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. That is what occurred in the present case. The learned FCC judge erroneously took into account the substantive merits of the proposed judicial review grounds. On the proper construction of the Act, that was a consideration the learned FCC judge was required to ignore in forming the satisfaction upon which the very power to grant the extension of time was conditioned. Expressed another way, the FCC judge erroneously disregarded the fact that the proposed grounds of judicial review were reasonably arguable. Either way, the error involved a misapprehension of a pre-condition to exercise of the discretion.

It is unnecessary for me to decide whether I agree with this general expression of principle. Nor, need I decide what are and what are not the mandatory relevant considerations for the purposes of the exercise of the power conferred by s 477(2); it is possible that the only mandatorily consideration is the requirement that the Court observe and apply the statutory test set out in the provision. As Mortimer J said in BVW17 at par [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.

23    It does not follow from this observation that the exercise of power under s 477(2) by the FCC is not amenable to judicial review. If the FCC were to mistake its function under s 477(2), or if it were to apply an incorrect construction of the words of the provision, it would commit jurisdictional error. Another example of possible jurisdictional error was identified by Mortimer J in MZABP v Minister for Immigration and Border Protection & Ors (2015) 242 FCR 585 at [68] when her Honour said:

If, for example, her Honour in the present case could be said to have taken the approach that it would only be in “the interests of the administration of justice” to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred.

24    A further example of jurisdictional error would be a failure to provide procedural fairness. In that respect, the applicant relied on the well-known dictum from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]:

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

The applicant submitted that the failure here to deal at all with ground five fell within this principle and was analogous to the total failure to consider delay referred to by Mortimer J in BVW17.

Consideration

25    The Minister did not submit that the FCC was at liberty to ignore any grounds of review placed before it. At the same time, the applicant did not submit, as already mentioned, that the Court was obliged to consider every ground of review raised by the parties. What divided them was the identification of the particular circumstances in which a court was or was not obliged to have no regard to a ground of review.

26    A significant difficulty that arises in this matter is that I have no transcript before me to enable me to evaluate how ground five was put, if put at all, by the applicant to the learned primary judge. There is a distinct possibility that it was not raised at all and that this explains why it was not expressly addressed below. I was referred to an affidavit sworn by the applicant and filed in the FCC in which the following grounds were expressed to be relied upon:

7.    The Tribunal’s decision is vitiated by jurisdictional error and legally unreasonable in that in assessing my claims for protection under section 36(2)(aa) of the Migration Act 1958, the tribunal erred giving its findings at paragraph 49 that I am a witness of truth. The tribunal misconstrued what fear is and constructively failed to exercise jurisdiction.

…

9.    The Tribunal failed to address all the elements of Complementary protection.

These grounds appear to raise the interrelationship between the applicant’s fear of returning and the construction or application of s 36(2)(aa). More than this I do not have.

27    It is convenient that I deal first with the submission that the fifth ground was in fact considered by the learned primary judge, the point having being subsumed within more general findings. In my view, notwithstanding the eloquence of Mr Yuile, I cannot be certain that ground five was in fact addressed in pars [6] and [29]. In the case of par [6], that is especially because par [8] commences with the words “I turn then to the grounds in the original application.” Those grounds are then set out and included ground five. It follows that, inferentially, the subject matter of par [6] could not have encompassed ground five. That conclusion is supported by the opening words of par [6] which refer to what the applicant was asked to expand upon at the first hearing. What follows in that paragraph is a description, in my view, of what was said at that hearing and no more.

28    Similarly, I cannot with sufficient confidence conclude that par [29] covers ground five. It commences with the phrase “[i]n the circumstances”. Those circumstances, previously set out in the judgment, do not include a consideration of ground five. I am, accordingly, not satisfied that ground five was addressed by the learned primary judge.

29    The next issue for determination is whether the learned primary judge made a jurisdictional error in not considering ground five. One commences with the proposition from SZUWX that a matter does not become a mandatorily relevant consideration because one of the parties raises it. It would thus not be a breach of the rules of procedural fairness to fail to address a ground of review that raised an irrelevant matter or was manifestly absurd. But where the ground raised is substantive, or appears to have substance, in my view an inferior court should address it concordantly with Dranichnikov. Failure to do so would, in my opinion, constitute “such a fundamental misunderstanding of the discretion in s 477(2)” in the sense described by Mortimer J in MZABP, as to constitute jurisdictional error.

30    I cannot find with any confidence that ground five on its face is meritless, or absurd, or irrelevant. Nor can I find that it raises a good substantial point. All I can say is that, on its face, it raises an issue going to the misapplication of s 36(2)(aa) and possibly to the correct interpretation of that provision. The potential importance of ground five, when read together with par [7] of the affidavit referred to above, was underscored by the applicant’s reference to Lord Hoffmann’s speech in R v IAT; ex parte Shah [1999] 2 All ER 545 at 565, where his Lordship said: “persecution = serious harm + failure of state protection.” In the applicant’s submission, s 36(2)(aa) could cover the mental distress caused by the threat made in Fiji in and of itself.

31    The dictum set out above from Dranichnikov is not an exhaustive statement of principle. For example it is not confined to arguments which rely upon “established facts”. As Griffiths J observed in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [78]:

…I do not accept that procedural unfairness occurs only if the Tribunal has failed to deal with a substantial and clearly articulated submission which relies upon an established fact. That would preclude a finding of procedural unfairness (or, I would add, a constructive failure to exercise jurisdiction) if the Tribunal failed to deal with a submission of substance relating to a legal issue, such as a question of statutory construction.

32    Here, as already mentioned, ground five may relate to a legal issue, namely a potential misconstruction of s 36(2)(aa). Moreover, as counsel for the applicant stressed, it was the only ground that squarely raised for consideration the application of the complimentary protection provisions of the Act. In my view, the FCC was bound to consider its possible merit, and address it in its reasons for decision regardless of whether the applicant, who was self-represented, had raised it in oral submissions. It was identified as a potential error of law in both the affidavit filed by the applicant and in the application to the court below. The failure to consider it constituted a breach of procedural fairness. It was a constructive failure to exercise jurisdiction: cf DWN042 v Republic of Nauru [2017] HCA 56 at [17]. It will accordingly be a matter for the FCC to determine whether the ground has sufficient merit to justify a grant of an extension of time for the purposes of s 477(2) of the Act.

33    If the error here did not constitute jurisdictional error, on one view, the writs of certiorari and mandamus are still, in any event, able to be issued. That is because, on this view, those writs may issue where an inferior court fails to provide procedural fairness. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Hayne J said at [169]:

Casting the question as whether a want of procedural fairness is an error within or without jurisdiction may appear to invite attention only to the content of the word “jurisdiction” or the content of the phrase “jurisdictional error”. An inquiry confined in that way would be too narrow. Once it is accepted that the Constitution did not intend to freeze at 1900 the development of the common law regulating the issue of any of the prerogative writs, the question whether a departure from the requirements of procedural fairness will ground the issue of prohibition depends upon the closeness of the analogy between that departure and other errors that will ground the writ. In that regard, it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended.

This passage was relied on by Doyle CJ, with whom Bleby and Sulan JJ agreed, in Police and State of South Australia v Lymberopoulos and Others (2007) 98 SASR 433 at par [54]. Doyle CJ also relied on other cases, including R v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Annetts v McCann (1990) 170 CLR 596, in concluding that writs of certiorari and prohibition may issue for breach of procedural fairness, where the error is not jurisdictional in nature. His Honour said at [59]-[63]:

59    More significant is the decision in Annetts v McCann (1990) 170 CLR 596. Mr McCann SM was a coroner conducting a coronial inquest into the deaths of two young men, the inquest being conducted under the provisions of the now repealed Coroners Act 1920 (WA). The parents of the two young men were represented at the inquest by counsel, who was allowed to question witnesses. The coroner declined to permit counsel to make a closing address, holding that he had an unfettered discretion to decide who could address him. The parents of one of the boys sought an order for prohibition and mandamus. The Full Court of the Supreme Court of Western Australia declined to make the order. On appeal, the High Court (by majority) made the order.

…

61    …It is apparent that the majority proceeded on the basis that orders for prohibition and mandamus could be made because of the failure to comply with the requirements of natural justice. There is no suggestion that the error by the coroner was treated as a jurisdictional error.

…

63    Watson and Annetts stand as authorities that bind this Court. Each of them, in particular Watson, has been referred to with apparent approval on numerous occasions. They appear to me to stand for the proposition that an exercise of power by an inferior court, made without observing applicable requirements of procedural fairness, can be prevented by an order in the nature of prohibition if the power has not yet been exercised, and can be quashed by an order in the nature of certiorari if the power has been exercised. That is so even though the anticipated error or actual error does not amount to jurisdictional error.

In my view, what is said in par [63] above would also extend to a writ of mandamus. An application for special leave to the High Court was refused on 16 November 2007: [2007] HCATrans 692; cf Zurich Bay Holdings Pty Ltd v Brookfield Multiplex Engineering and Infrastructure Pty Ltd [2014] WASC 40.

34    It follows that, I will accordingly order:

(1)    a writ of certiorari quashing the decision and orders of the FCC below;

(2)    a writ of mandamus directing the FCC, differently constituted, to determine the applicant’s application for extension of time in accordance with law; and

(3)    an order that the second respondent pay the applicant’s costs as agreed or assessed.

Associate:

Dated:    26 March 2018