FEDERAL COURT OF AUSTRALIA

ALL16 v Minister for Immigration and Border Protection [2018] FCA 419

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to file electronically the amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) by 5 pm today.

2.    The applicant be granted leave to rely on the amended originating application for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to ground 1 and no other ground.

3.    The amended originating application be dismissed.

4.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

(Revised from transcript)

GLEESON J:

1    This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) for judicial review of a judgment of the Federal Circuit Court of Australia (“FCCA”): ALL v Minister for Immigration [2017] FCCA 2067. In that judgment, the FCCA refused the applicant’s application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (“Migration Act”).

2    In the FCCA, the applicant sought an extension of time to file and serve an application under s 476 of the Migration Act for review of a decision of the Refugee Review Tribunal (“Tribunal”), made on 4 March 2015, affirming an earlier decision made by a delegate of the first respondent Minister (“Minister”) not to grant the applicant a protection (Class XA) visa.

3    The application to the FCCA was approximately 10 months outside the period of 35 days prescribed for such an application under s 477(1) of the Migration Act.

4    The decision of the FCCA judge was to refuse to exercise the discretion available under s 477(2) to extend the 35-day period within which an application must be made for a remedy to be granted in exercise of the Court’s original jurisdiction under s 476 in relation to a migration decision. There is no right of appeal from the decision: s 476A(3)(a) of the Migration Act. The FCCA decision is amenable to judicial review, but in order to obtain relief the applicant must demonstrate jurisdictional error, as opposed to error within jurisdiction: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; [2016] 238 FCR 456 at [10] (Bromwich J), [16] (Flick J), [20]-[21] (Allsop CJ).

5    At the hearing of the application, the applicant sought leave to rely on a proposed amended application. After hearing submissions, I decided to consider whether that leave should be granted at the same time as the appeal. A party seeking leave to amend bears an onus of satisfying the Court that grounds exist for exercising the discretion in his or her favour: Brisbane South v Taylor (1996) 186 CLR 541 at 547. Leave to amend will be refused where it would be futile: Caason Investments Pty Ltd v Cao [2015] FCAFC 94 at [21].

Background

6    The following background facts are taken from the Minister’s submissions, which were not relevantly disputed.

7    The applicant claims to be a citizen of Iran, of Ghashghai (Turkish) ethnicity and a Shia Muslim. He arrived in Australia at Christmas Island without valid travel documents on 1 August 2012 and is therefore an ‘unauthorised maritime arrival’ within the meaning of s 5AA of the Migration Act

8    On 18 October 2012, the Minister lifted the bar imposed by s 46A(1) of the Migration Act, allowing the applicant to lodge a protection visa application. The applicant did so on or about 22 November 2012.

9    In essence, the applicant claimed to fear harm if he were to return to Iran by reason of a long-standing (five-year) relationship with a girl of Arabic ethnicity (Sara), whose father was a high ranking officer of the Sepâh who discovered the relationship and who, the applicant claimed, would harm him if he returned to Iran.

10    He claimed that, while in Indonesia, Sara informed him that she was pregnant, and had to arrange for an abortion as her father will kill her if he finds out.

11    He later produced a document which was said to be a summons (apparently emailed to him by his brother some four months before his protection visa interview) that ordered him to appear on a rape charge and to expect two more summonses.

12    The applicant also made statements to the effect that:

(1)    he was studying heating and cooling mechanics in college, but had a disagreement with a teacher about Islam and the government, following which he repeatedly failed his studies, took four years to complete his course, and this affected his ability to obtain work; and

(2)    in March 2012 he was stopped by the Basiji, who found alcohol on him, and took him in for questioning; he was released after paying some money.

13    At the interview before the delegate, held on 28 March 2013, the applicant also produced a baptism certificate from the Liberty Baptist Church at North Ryde, but stated he did not wish to rely on his baptism for the purposes of his protection claims.

14    On 21 August 2013, the Minister’s delegate refused the applicant’s protection visa application, essentially on credibility grounds.

15    The applicant sought review of the delegate’s decision by the Tribunal on 27 August 2013, and his (new) migration agent provided written submissions on his behalf on 1 December 2014. In those submissions, it was stated that the applicant claimed persecution on the following Convention-related grounds:

(1)    imputed political opinion;

(2)    religion; and

(3)    membership of particular social groups: “failed asylum seekers from western countries” and “Iranians having illegitimate relationships outside marriage”.

16    On 4 December 2014 the applicant, through his agent, provided the Tribunal with a letter from Pastor Piper of the Liberty Baptist Church at North Ryde.

17    The evidence given by the applicant at the hearing is summarised in the Tribunal’s reasons for decision under various headings at paras 24-36 (“Relationship with Sara”), 51-58 (“Converted to Christianity”) and 76 (“Failed asylum seeker from a western country”). The Tribunal found that the applicant was not a credible witness and, at [90], rejected all his claims and was not satisfied that he has a well-founded fear of refugee Convention-related persecution for any of the reasons put forward by him. At para 91, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Refugee Convention reason. At para 98, the Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Iran, there is a real risk that he will suffer significant harm.

FCCA judgment

18    Following a brief summary of the procedural background, the FCCA judge turned to consider the extension of time application. The consideration of the issues arising under s 477(2) of the Migration Act commences at [7] of the FCCA judgment, where his Honour correctly referred to the legislative requirements imposed by that provision.

19    At [8] of the judgment below, his Honour referred to the relevant principles applying to such extension of time applications, referencing SZRIQ v Federal Magistrates Court [2013] FCA 1284; (2013) 236 FCR 442 at [46]-[48], and SZTRY v Minister for Immigration [2015] FCAFC 86 at [6]. His Honour to noted that these authorities identify the extent of the delay, the explanation for the delay, the prejudice to the other party, and whether the application is sufficiently arguable to justify the extension of time as relevant factors when considering whether it is in the interest of the administration of justice to make such an order.

20    His Honour then proceeds to make a number of findings respecting these issues, including that:

(1)    the delay was significant (at [9]);

(2)    no prejudice is asserted by the Minister (at [10]);

(3)    there is no adequate explanation for the delay (at [10]-[13]); and

(4)    the grounds sought to be raised by the applicant were not sufficiently arguable to warrant an extension of time granted (at [14]).

21    In particular, [10]-[14] of the FCCA judge’s reasons state:

10.    The Minister does not assert any prejudice that would be suffered by the granting of an extension of time. The Minister, however, submits that there is no adequate explanation by the applicant for his delay in coming to court. I agree.

11.    The applicant stated in support of his original application that his reason for filing out of time was that “I did not know that I only had 35 days to file my application.”

12.    In his affidavit made on 15 August 2017, the applicant repeats that he was unaware of the time limit, and that he was directed to his current legal representative in February 2016 by a Justice of the Peace. He refers to having financial hardship and could not afford formal legal advice. I note, however, that the applicant was represented by migration agents during his protection visa application process and that a migration agent assisted him before the Tribunal.

13.    The applicant’s explanation for his delay is not adequate. The applicant’s circumstances are the same as those confronting most, if not all, of applicants in this jurisdiction.

14.    Notwithstanding these difficulties, counsel for the applicant strenuously sought to persuade me of the merit of the amended application. I am not persuaded by those submissions.

Application to this court

22    The nature of jurisdictional error was explained in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 177-180, as follows:

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

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. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

…

[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

23    In SZTUT v Minister for Immigration and Border Protection & Anor [2016] HCATrans 150, Gageler J considered whether the FCCA made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to s 477(2), saying:

As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time.

… Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). …

24    For the same reasons, it is not appropriate for this Court to enter into an examination of whether, in its view, the proposed grounds of appeal did or did not have reasonable prospects of success. That question is squarely within the jurisdiction of the FCCA.

Proposed amended application

25    The proposed amended application identifies four ground of review, numbered 1, 3, 4 and 5, respectively. Those grounds, not including the lengthy particulars, are in the following terms:

Ground 1: The primary judge denied the applicant procedural fairness by denying the applicant an extension of time, giving rise to jurisdictional error

1.    The primary judge acted in excess or want of jurisdiction at [10], [13] and/or [14] of the judgment by exercising the discretion unreasonably or by misapplying, misunderstanding or misconstruing the applicable law by finding that it was not in the interests of justice to grant the applicant an extension of time pursuant to section 477(2)(b) of the Migration Act 1958 (Cth).

Ground 3: Misapplication of law section 91R(3) of the Migration Act 1958 (Cth)

3.    With regard to ground four of the amended application filed 29 August 2017, the primary judge erred at [20] of the judgment, by finding “the Tribunal’s reasons in support of its finding under s 91R(3) are logically supported by the Tribunal’s discussion of the evidence, and the conclusion reached by the Tribunal on that evidence was open to it.” To the contrary, there was not an insufficient (sic) logical or evidentiary basis for the Tribunal to find at [75] of the decision record that the applicant’s conduct in Australia was “otherwise” that for the purpose of strengthening his refugee claims. The Tribunal therefore erred by misinterpreting, misunderstanding or misapplying the applicable law with regard to section 91R(3) of the Migration Act 1958 (Cth) and by disregarding this conduct in the assessment of the refugee criterion.

Ground 4: Misapplication of law or failure to ask the correct question regarding the appellants’ (sic) conversion from Islam to Christianity under the complementary criterion

4(a)    With regard to ground (5)(a)(b)(c) of the amended application filed 29 August 2017, the primary judge erred at [21], by finding “there is no substance to Ground 5”. To the contrary, the Tribunal erred by misinterpreting, misunderstanding or misapplying the applicable law, or from Shia Islam to Christianity with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant’s conversion from Shia Islam to Christianity was “genuine” or “disingenuous” for the purpose of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faces a real risk of harm under the complementary criterion, given apostasy is punishable by death in Afghanistan per se, irrespective of whether the conversion is genuine of disingenuous.

4(b)    Further, it was an irrelevant consideration whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous for the purposes of the complementary criterion, given apostasy is punishable by death in Afghanistan per se.

4(c)    As a consequence, the Tribunal erred at [95] by simply adopting the reasoning pursuant to section 91R(3) of the Migration Act 1958 (Cth) under the refugee criterion and by failing to provide adequate reasoning regarding apostasy under the complementary criterion pursuant to section 36(2)(aa) and each of the considerations regarding significant harm under 36(2A) of the Migration Act 1958 (Cth).

Ground 5: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)

5.    With regard to ground six of the amended application filed 29 August 2017, the primary judge erred at [31], by finding “there was no practical injustice and hence no procedural unfairness in the failure by the Tribunal to disclose the invalid certificate or the documents purportedly covered by it”. To the contrary, the non-disclosure of certain information under section 438 of the Migration Act 1958 (Cth) by the delegate to the Minister on 22 August 2013, in relation to the Department file CLF/2012/2348498, folios 109, 110 and 111, (a) constituted a denial of procedural fairness or alternatively (b) was not a process according to law.

26    As noted above, under the heading ”Particulars”, the proposed amended application contains a large number of paragraphs in support of each ground, which assert to the effect that the FCCA judge erred in concluding that various grounds of review sought to be raised in the FCCA had no prospects of success.

27    On their face, proposed grounds 3, 4 and 5 are not directed to the question of whether the FCCA judge made a jurisdictional error in refusing the extension of time application. There is no suggestion in those grounds of appeal that the FCCA judge “misconceived the nature of the function he was performing in deciding whether or not to award an extension of time” under s 477(2): cf AUK15 v Minister for Immigration and Border Protection & Anor [2016] HCA Trans 036 at line 1615. The applicant’s written submissions did not attempt to explain proposed grounds 3, 4 and 5 as errors of jurisdiction.

28    At the hearing Mr Williams sought to tender the affidavit of Dominic Eberl affirmed 15 June 2017 in support of proposed ground 5. That document is not relevant to the question of whether there is any jurisdictional error raised by that ground. The oral submissions made by Mr Williams went into the merits of proposed grounds 3, 4 and 5 as errors by the Tribunal in some detail. However, they did not address whether the FCCA judge had misconceived the nature of his function in refusing to grant an extension of time. Accordingly, I accept the Minister’s submission that these grounds are misconceived and I refuse leave to amend the application to rely on those grounds.

29    I accept that proposed ground 1 alleges a jurisdictional error and, since the Minister made submissions directed to that ground, I will grant leave to rely on the amended application containing ground 1.

Ground 1: denial of procedural fairness

30    The particulars to ground 1 contend that the FCCA’s findings at [10], [13] and [14] involved error.

31    In writing, the applicant made the following submissions:

(1)    The FCCA judge’s “weighing exercise” only engaged two of the factors relevant to whether an extension of time is necessary in the interests of justice (said to be the reason for the delay and the merit of the application) and was “therefore sufficiently deficient to raise doubt over the cogency of the exercise of the discretion”.

(2)    The FCCA judge failed to consider the impact on the application if he is refouled to Iran without having his claims properly heard and determined according to law, citing MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 (“MZZGC”).

(3)    There is a satisfactory explanation for the delay, contrary to the finding of the FCCA judge, being the applicant’s unawareness of the time limit.

(4)    Where the Court finds that there is not an adequate explanation, the interests of justice may nevertheless compel the granting of an extension of time, especially where there is a clear jurisdictional error by the decision maker under review.

(5)    There is little to no prejudice to the respondents in granting an extension of time.

(6)    The impact on the applicant will be significant if an extension of time is not granted, as the applicant will be refouled to Iran without having his claims properly heard and determined according to law, where he faces a real risk of persecution.

32    In MZZGC, Mortimer J said, at [13]:

In applications for judicial review in respect of migration decisions, if there is merit in a ground of review, it is generally obvious there may be substantial injustice to a party in refusing leave, because the party will be fixed with an arguably unlawful decision that affects her or his migration status in Australia, with all the consequent adverse effects the absence of secure migration status brings, including exposure to detention and removal. When, as here, the application is for a protection visa and the claim made is based on a fear of persecution, in my opinion especially careful consideration should be given to the question of an extension of time, because the claimed consequences for an applicant on refoulement to the country against which the claim for protection is made are of a fundamentally serious kind. That is not to suggest a different standard is applied: rather, it is to acknowledge the nature of the decision for which judicial review was sought and the possible consequences for an applicant if, indeed, that decision was not made in accordance with Australian law and in a procedurally fair manner.

33    The Minister submitted that:

(1)    While ground 1 asserts to the effect that the FCCA misapplied, misunderstood or misconstrued the applicable law by finding that it was not in the interests of justice to grant the applicant an extension of time pursuant to s 477(2)(b), the particulars supporting this ground and the applicant’s written submissions do not support that contention but seek to challenge the actual exercise of the discretion in refusing the application for extension of time.

(2)    To the extent that under this ground the applicant seeks to argue that the FCCA judge in this case misconceived the nature of the function he was performing in deciding whether or not to make an order for an extension of time, that proposition is not supported by the terms of the judgment below.

(3)    In any event, for more abundant caution, while the FCCA judge, correctly, dealt with the grounds of the amended application before it at a ‘reasonably impressionistic level’, there is no error of law, let alone jurisdictional error, in its consideration of any of those grounds and, for the reasons he gave, his Honour correctly held that those grounds were not sufficiently arguable to warrant the exercise of the discretion in the applicant’s favour.

Consideration

34    None of the matters raised by the applicant indicate any jurisdictional error on the part of the FCCA judge. In particular, they do not indicate any denial of procedural fairness. The criticism that the FCCA judge engaged with only two of the relevant factors is unfounded: his Honour also both considered the extent of the delay, finding it to be significant (at [9]), and noted that the Minister did not assert any relevant prejudice (at [10]). As appears from the passage set out above, Mortimer J’s observations in MZZGC were in the context of a conclusion that there is merit in a ground of review. In this case, the FCCA judge did not detect any merit, let alone “a clear jurisdictional error by the decision maker under review” as posited by the applicant.

35    Although he disagreed with the finding, counsel for the applicant, Mr Williams, did not suggest that the FCCA judge was not entitled to find that the explanation for the applicant’s delay was unsatisfactory.

36    The absence of prejudice was identified by the FCCA judge.

37    Finally, I have listened to Mr Williams detailed submissions concerning the alleged arguable errors made by the Tribunal. I have read the Tribunal’s decision. I do not detect any reason to doubt the FCCA judge’s assessment of the merits of the proposed grounds of review of the Tribunal’s decision. In any event, any such assessment was squarely within the jurisdiction of the FCCA.

Conclusion

38    The application must be dismissed. Costs should follow the event.

Associate:

Dated:    27 March 2018