FEDERAL COURT OF AUSTRALIA

BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the further amended originating application so as to add ground 8 of the draft second further amended originating application filed on 20 April 2018 is refused.

2.    Subject to paragraph 1 above, the application for leave to amend the further amended originating application in terms of the draft second further amended originating application filed on 20 April 2018 is allowed.

3.    The application for judicial review of the decision of the Federal Circuit Court of Australia given on 17 March 2017 is dismissed.

4.    The applicant is to pay the first respondent’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

PERRY J:

1.    INTRODUCTION

1    The applicant sought judicial review in the Federal Circuit Court (the FCC) of a decision of the second respondent, the Immigration Assessment Authority (Authority). By its decision, the Authority affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), refusing to grant the applicant a Temporary Protection (Class XD) Subclass 785 visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    This is an application for judicial review of a decision of the FCC dismissing the applicant’s application for an extension of time in that Court pursuant to subs 477(2) of the Act. In addition, on 11 December 2017, being the day before the application was initially listed for hearing, the applicant sought to file an application for leave to file and serve a further amended originating application so as, among other things, to raise a new ground (proposed FCA ground 8) not raised before the primary judge. Proposed FCA ground 8 raised various issues in relation to a non-disclosure certificate under s 473GB of the Act and referred to the document subject to that non-disclosure certificate in respect of which a confidentiality undertaking had been given. As a consequence of the late amendment, the hearing was adjourned part-heard to 19 March 2018. On the second day of the hearing, the applicant sought leave to rely upon a second further amended originating application. The proposed second amended originating application was filed subsequently on 20 April 2018 (the second further amended application), albeit not under cover of an affidavit as required by the orders made on 19 March 2018 (including as varied by orders on 18 April 2018). The proposed second further amended application was otherwise in the same terms as the draft further amended originating application save that it also included ground 1(f).

3    For the reasons set out below, the application for leave to file and serve the second further amended application is allowed save that leave to amend to raise proposed FCA ground 8 is refused, and the application for judicial review of the FCC’s decision is dismissed with costs.

2.    BACKGROUND

2.1    The application for a protection visa and decision by the delegate

4    The applicant is a national of Afghanistan. He entered Australia as an unauthorised maritime arrival in late 2012 and was taken into immigration detention pursuant to subs 189(3) of the Act. He was released from immigration detention on 23 April 2013 upon being granted a temporary humanitarian visa and subsequently various bridging visas.

5    On 12 May 2015, the Minister lifted the bar imposed by s 46A of the Act on the lodgement of a valid visa application by the applicant who then lodged an application for a Temporary Protection class XD subclass 785 visa. As such, it was not in issue (as the delegate found) that the applicant satisfied the definition of a fast track applicant under subs 5(1)(a) of the Act, and the delegate’s decision was therefore a fast track reviewable decision subject only to limited merits review by the Authority.

6    In support of his application, the applicant made a statement dated 17 June 2015 setting out his claims for protection. The applicant claimed to fear harm from the Taliban in Afghanistan by reason of:

(1)    his Shia Muslim religion;

(2)    his political opinion as a result of supporting his daughters (who were minors) being educated and his wife working as a teacher;

(3)    his imputed political opinion as a result of his opposition to his daughters being “married off as children”; and/or

(4)    his imputed political opinion as a “traitor” as a result of living in Australia.

7    The applicant’s claim for protection was made only on his own behalf as he identified his wife and minor daughters as residing in Pakistan.

8    The applicant attended an interview with the delegate on 18 November 2015.

9    By a decision given on 2 May 2016, the delegate refused to grant the applicant a protection visa. The delegate accepted that the applicant had received two letters threatening his family due to his wife’s teaching position and his daughters’ enrolment in school, and a demand that his eldest daughter be engaged to a Taliban member (delegate’s reasons at [162] and [172]). With respect to the claims to fear persecution as a refugee so as to satisfy the criterion in subs 36(2)(a) of the Act, the delegate found that there was a real chance that the applicant would be killed by anti-government elements (AGEs) in Kandahar, Afghanistan, by reason of his religion and therefore that his fear in this respect was well-founded (delegate’s reasons at [207]). However, the delegate did not accept that the applicant’s fears as to the consequences of his support for his wife’s teaching position, his daughters’ education or his refusal to allow his eldest daughter to be married were well founded (delegate’s decision at [220]). Further, the delegate found that the applicant was able to relocate to Kabul and therefore was not satisfied that the real chance of persecution on the grounds of his religion related to all areas of the receiving country, as required by subs 5J(1)(c) of the Act (delegate’s reasons at [222]-[234]). The delegate also found, with respect to the complementary protection criterion in subs 36(2)(aa) of the Act that it would be reasonable for the applicant to relocate to Kabul (delegate’s reasons at [247]-[257]).

2.2    The decision of the Authority on the fast track review affirming the delegate’s decision

10    On 3 May 2016, the Minister referred the delegate’s decision to the Authority pursuant to s 473CA of the Act. In a letter of the same date, the Authority wrote to the applicant and, among other things advised him that the Department had provided it with all of the documents that it considered relevant to his case, including the material provided by him to the departmental officer. The Authority also explained in the letter that it can consider new information only in limited circumstances explained in the attached factsheet and Practice Direction. The applicant did not seek to place any new information before the Authority.

11    On 27 May 2016, the Authority affirmed the decision not to grant the applicant a protection visa.

12    In its reasons, the Authority set out the applicant’s claims and referred among other things to the fact that during the protection visa interview, the applicant claimed that his family received a third letter which asked for his whereabouts and where he was hiding. With respect to the applicant’s claims, the Authority:

(1)    accepted that the applicant’s wife had taken a temporary teaching position in 2012 in a primary school in Kandahar (Authority’s reasons at [14]);

(2)    accepted that the applicant’s wife received a threatening letter from the Taliban approximately five months after taking on the temporary teacher position and that, due to their fear of attack, the applicant’s wife resigned from her job a few days later (Authority’s reasons at [16]);

(3)    accepted that the applicant received a threatening letter from AGEs or the Taliban demanding that he withdraw his daughters from school and demanding the marriage of his eldest daughter (Authority’s reasons at [19]);

(4)    accepted as credible, the applicant’s claims to object to the underage marriage of his daughters, given his “convincing account of encouragement of their education and genuine concern for their safety” (Authority’s reasons at [20]);

(5)    while accepting that Shia Muslims are a minority in Kandahar and that people in the community may have been aware that the applicant and his family were Shia, did not accept the applicant’s claim that his family was specifically targeted with the threatening letters because they were Shia (Authority’s reasons at [22]-[25]); and

(6)    did not accept as credible the applicant’s claim that he did not know the exact circumstances around his younger brother and parents’ relocation to Kabul and details surrounding the receipt of the third letter, which he claimed his brother had said was received by the family and sought information about the applicant’s whereabouts (Authority’s reasons at [26]-[27]).

13    The Authority considered first the applicant’s claim for protection under subs 36(2)(a) of the Act, as a refugee. Section 5H provides that a person is a refugee if, owing to a well-founded fear of persecution, the person is unable or unwilling to avail herself or himself of the protection of her or his country of nationality. A person has a well-founded fear of persecution as defined in subs 5J(1) of the Act if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

(emphasis added)

14    By subss 5J(4) and (5) of the Act, a person fears persecution for one or more of the reasons in subs 5J(1)(a) if, among other requirements, the persecution involves “serious harm to the person” such as a threat to the person’s life or liberty, significant physical ill-treatment of the person, or denial of capacity to earn a livelihood of any kind which threatens the person’s capacity to subsist.

15    The Authority found first that the prospect that the applicant would be seriously harmed on return to Kandahar on the basis of his wife’s previous employment as a teacher was “remote” (Authority’s reasons at [30]-[33]). Secondly, the Authority accepted that, if the applicant were to return to Kandahar with his wife and daughters, he would seek to continue to educate his daughters and send them to school. On this basis, the Authority was satisfied that the applicant will face a real chance of being killed by the author of the second threatening letter by reason of his imputed political opinion in taking such action (Authority’s reasons at [34]). The Authority also found that if the applicant were to return to Kandahar, the chance that he will face serious harm from AGEs or the Taliban on the basis that he has refused their demand to have his eldest daughter marry was “more than remote” (Authority’s reasons at [35]). Although this phrasing is somewhat awkward, I understand the Authority to have accepted that the applicant faced a real chance of serious harm by reason of his position with respect to the proposed underage marriage of his eldest daughter.

16    However, the Authority did not consider that the applicant faced a real chance of serious harm in Kabul and therefore found that the real chance of persecution did not relate to all areas of Afghanistan so as to satisfy the criterion in subs 5J(1)(c) of the Act. Rather, the Authority did not consider that the applicant would face a real chance of serious harm if he relocated to Kabul, finding relevantly that:

37. Although country information confirms the continual targeting of teachers and students in relation to girls education, there are few references of such incidents occurring in Kabul. Education facilities for girls tend to be better in Kabul and girls’ participation in education is significantly higher than in other parts of the country. Whilst violence against women is still common, women in Kabul tend to enjoy greater freedom of movement and better opportunities for employment, education and access to healthcare than in other parts of Afghanistan. There is also no evidence to indicate that the Taliban/AGEs will pursue the applicant in Kabul as a result of his support for the education of his daughters/girls and the employment of his wife/women as teachers or for his daughters’ previous attendance at school and his wife’s former employment as a teacher in Kandahar. For these reasons I do not consider the applicant will face a real chance of serious harm in Kabul from the Taliban or AGEs. The applicant claims that if he went to Afghanistan he still thinks it is crucial to send his daughters to school. Based on the above information, I also do not consider that the applicant will face a real chance of serious harm if his daughters re-join him in Kabul and are sent to school there.

17    Nor did the Authority consider that the applicant had an association or profile which would make him a specific target in Kabul. In so finding, the Authority considered that:

38. In September 2015 DFAT assessed that the security situation across the country deteriorated significantly over the last 12 – 18 months, but security is better in major urban areas like Kabul, although attacks remain a common occurrence even in these areas.… DFAT notes that people associated with the government or the international community are at a significantly higher risk than ordinary Afghans in Kabul. Although the applicant claims that the second threat letter he receives [sic] said they he [sic] would be found anywhere, I consider that the applicant does not have an association to the government or international community that would make him a specific target in Kabul. I have not accepted that the applicant’s brother received a third threat letter asking for his whereabouts and I see little incentive for the author of the second letter to pursue the applicant outside Kandahar for having ignored their demand to marry his eldest daughter. There is no information to support his claim that AGEs/Taliban seek out individuals who have refused the proposed marriage of their daughter in Kabul. Country information referred to above confirms that the main targets for attack by AGEs/Taliban in Kabul are high-profile institutions connected to the Afghan government or international community there. For this reason I do not consider the applicant will face a real chance of serious harm in the reasonably foreseeable future in Kabul for refusing the under-age marriage of his daughter to AGEs/Taliban.

18    The Authority also found that given the infrequency of attacks against the Shia population in Kabul, the prospect of the applicant being targeted on the basis of his religion in the reasonably foreseeable future was remote (Authority’s reasons at [39]-[40]) and also did not consider based upon the country information that there was a real risk that he would face serious harm in Kabul on the basis of having returned from a western country (Authority’s reasons at [41]).

19    Having rejected the applicant’s claims to fear persecution so as to satisfy the refugee criterion, the Authority considered whether it was satisfied that Australia owes complementary protection obligations to the applicant because there is a real risk that, if returned, he will suffer significant harm so as to satisfy the alternative criterion in subs 36(2A). Under s 36(2A), a person will suffer significant harm if among other things the person will be arbitrarily deprived of her or his life.

20    Given its earlier findings, the Authority was satisfied that there were substantial grounds for believing that the applicant would face a real risk of being arbitrarily deprived of his life in Kandahar (Authority’s reasons at [46]). However subs 36(2B)(a) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.

21    The Authority found that it was reasonable for the applicant to relocate to Kabul and accordingly was not satisfied that there is a real risk that the applicant would face significant harm as defined in s 36(2A) of the Act (Authority’s reasons at [56]-[57]). In reaching that view, the Authority found among other things that:

53. I have taken into account the possibility that the applicant’s wife and daughters may reunite with him if he relocates to Kabul and the applicant’s claim that if he goes back to Afghanistan it is crucial for him to send his daughters to school.… The 2016 UNHCR Guidelines claim that [AGEs] continue to carry out direct attacks against schools, teachers and students, especially in relation to education for girls. In support of this claim it cites references to incidents occurring in provinces such as Herat and Nangahar. I note that there was no reference to such incidents having occurred in Kabul. I have also given weight to DFAT’s 2015 assessment that the quality and participation of education for girls is significantly higher in Kabul. Although, at times, some families decline to send their children to school in response to security incidents in Kabul, there is no information to indicate that female students and girls’ schools are regularly targeted in Kabul. I have also considered that the applicant’s wife may decide to enter the teaching profession again in Kabul.

22    Nor did the Authority find that the applicant had any association with high profile government institutions or a particular profile that would make him a target of attacks (Authority’s reasons at [55]).

2.3    The FCC’s decision refusing to extend time within which to seek judicial review of the Authority’s decision

23    The applicant sought judicial review of the decision by the Authority in the FCC. It is not in issue that that application (the FCC application) was filed three days after the 35 day period specified by s 477(1) of the Act and accordingly required an extension of time under s 477(2).

24    Prior to the hearing, the FCC granted the applicant leave to amend the application (FCC reasons at [22]). The grounds of the amended application were extensive and set out at length so-called particulars which appeared to be a mix of quotations from the Authority’s decision and narrative, making it difficult to discern with clarity precisely what the grounds were. Such prolix, repetitive and confusing pleading, which was repeated in the application for judicial review in this Court, is not to be encouraged.

25    The primary judge held that the various grounds of review did not identify any arguable jurisdictional error. In short, first those grounds alleging in various ways a failure to consider “the claims of the wife and daughters” to fear harm raised no arguable case of jurisdictional error because the application for the protection visa was that of the applicant, and not his wife and daughters (FCC reasons at [24]-[26]). Secondly, his Honour held that, to the extent those grounds alleged in various ways a failure to consider the applicant’s claims, they did not identify any arguable jurisdictional error because the Authority did in fact consider those claims (FCC reasons at [24] and [26]). Nor was it arguable that the Authority’s findings that the applicant could relocate lacked any evident and intelligible justification (FCC reasons at [27]). Finally the primary judge rejected as unarguable any breach of procedural fairness either on the ground that it was unclear what use the Authority had made of information subject to a non-disclosure certificate under s 473GB of the Act and whether the Authority had considered whether to disclose the documents covered by the non-disclosure certificate, or on the ground that the non-disclosure certificate itself was invalid. Specifically, his Honour held that s 473DA of the Act is an exhaustive statement of natural justice which excludes the common law rules of procedural fairness (distinguishing MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081) (FCC reasons at [28]-[29]). As such, the primary judge concluded that the grounds identified in the FCC application lacked sufficient merit to warrant an extension of time and that it was not therefore in the interests of justice to do so (FCC reasons at [30]).

3.    CONSIDERATION

3.1    Relevant principles

26    It was not in issue that, despite there being no pathway to appeal from the refusal by the FCC to extend time under subs 477(2) of the Act, the Federal Court had original jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to entertain the application for judicial review of the FCC decision: see e.g Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [10]-[11] (the Court); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 (DMI16) at [37] (the Court).

27    That being so, it is well established that the jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker. Thus, after discussing the scope of errors of a jurisdictional kind in the context of an administrative tribunal, the High Court explained in Craig v South Australia (1995) 184 CLR 163 (Craig) at 179-180 that:

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

28    Nor will a breach of procedural fairness necessarily constitute a jurisdictional error in the context of proceedings in a federal court. As Gaudron and Gummow JJ observed in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [42], while a denial of procedural fairness by an administrative decision-maker will sound in jurisdictional error, “different considerations arise where the Commonwealth officer is a member of a federal court”: semble SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 at [69] and [73] (the Court); and DMI16 at [56]-[57] (the Court).

29    In distinguishing between an error by a court within jurisdiction and a jurisdictional error, the High Court, without intending to be exhaustive, held in Craig at 177-178 that:

    … 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.

30    Thus, as the Full Court recently held in DMI16:

41.     As such, while an error may be jurisdictional when committed by an administrative decision-maker, the same error committed in a judicial context may be an error within jurisdiction: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20] (Allsop CJ). That is not, however, to suggest that the list of errors of a jurisdictional kind in the context of an inferior court in the passage quoted from Craig above is exhaustive. To the contrary, the High Court has cautioned that it does not provide “a rigid taxonomy of jurisdictional error”: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [73] (the Court)…; see also the helpful analysis by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 …. at [29]-[34].

3.2    The application for judicial review of the FCC decision

31    The alleged grounds of review of the FCC decision in the second further amended application can be summarised as follows:

(1)    the primary judge denied the applicant procedural fairness and/or committed jurisdictional error and/or committed an error on the face of the record at [21] and [30] of his reasons by holding that it was not in the interests of justice to grant the applicant an extension of time pursuant to subs 477(2)(b) of the Act because:

(a)    the finding by the primary judge at [21] that the applicant’s explanation for the three day delay was not satisfactory was unreasonable, procedurally unfair, or in excess of jurisdiction (FCA ground 1(a));

(b)    the finding by the primary judge at [30] that the grounds lacked sufficient merit to warrant an extension of time misapplied, misunderstood or misconstrued the applicable law (FCA ground 1(b)); and

(c)    the “following grounds” (which I take to be FCA grounds 3, 4, 6, 7 and proposed FCA ground 8) shows that the FCC grounds of judicial review had sufficient merit to warrant the extension of time (FCA ground 1(f)).

(2)    The remaining grounds allege that the primary judge exercised his discretion unreasonably or misapplied the applicable law by finding at [24], [25] and [27] that FCC grounds 1, 2 and 4 respectively lacked sufficient merit (FCA grounds 3, 4 and 6 respectively) and in finding no arguable jurisdictional error because the applicant’s wife and daughters were not applicants for protection (FCA ground 4).

32    I also note that the applicant expressly “withdrew” FCA grounds 2 and 5 of the second further amended originating application. In addition, at the hearing, the applicant explained that in light of the decision in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16), he no longer pressed the second part of FCA ground 7 which challenged the primary judge’s finding at [29] that the provisions of Part 7AA of the Act dealing with fast track applications excluded the common law rules of procedural fairness. However the applicant pressed the first aspect of FCA ground 7 challenging the primary judge’s finding at [29] that there was no arguable case that the s 473GB certificate was invalid. In this regard, the s 473GB certificate, which was annexed and marked “Annexure A” to the affidavit of Gabrielle Doyle affirmed 18 November 2016, appeared to have been in evidence before the primary judge and was included in the misnamed “Appeal Book” filed in this proceeding. However, the Minister disputed the proposition that the documents subject to the s 473GB certificate had been in evidence before the FCC. These documents, which were the subject of an undertaking as to confidentiality below presumably upon their production, were initially said by Mr Williams, counsel for the applicant, to have been in evidence before the FCC. However, ultimately his submission went no higher than to say that the documents had been filed and marked for identification. The parties indicated that they would advise me if agreement was reached as to the position with respect to these documents before the FCC but no further communication on the issue was received. As such, absent any material indicating that those documents were ultimately received in evidence by the FCC, it must be concluded that they were not.

3.3    Alleged errors of law on the face of the FCC record

33    It was not in issue that the constitutional writs and certiorari will lie for non-jurisdictional error on the face of the record. However, the record for these purposes does not include the transcript or reasons of the FCC, as the Full Court held in SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 (SZTSU) at [16] (the Court) (applying Craig). In so holding, the decision in SZTSU was held to be plainly correct by the Full Court in DMI16 at [47] (the Court). As all of the applicant’s current grounds of review of the FCC’s decision rely upon the FCC’s reasons to establish error, it follows that relief cannot issue in so far as the applicant seeks relief on the ground of error of law on the face of the record.  The critical question is therefore whether the applicant has established the existence of jurisdictional error in the FCC’s decision.

3.4    Alleged jurisdictional errors

34    For the following reasons, I accept the Minister’s submissions that all of the grounds must be dismissed.

3.4.1    FCA Ground 1

35    Turning to FCA ground 1, the primary judge found that the relevant question was whether an extension of time should be granted under subs 477(1) of the Act, the application having been filed after the 35 day period identified in subs 477(1) (see FCC reasons at [19]). That is plainly correct save that his Honour erroneously refers to subs 477(1) as the source of the power to grant an extension of time instead of subs 477(2). Notwithstanding that error, his Honour immediately thereafter correctly finds that the “material considerations for an extension of time are the explanation for the delay, whether there is any particular prejudice, and the merits of the application in determining whether it is necessary in the interests of the administration of justice to make an order extending time” (FCC reasons at [20]). The reference to the need to be satisfied that it is necessary in the interests of the administration of justice to make the order, picks up the language of the criterion in subs 477(2)(b) for the making of such an order (the first criterion that an application has been made that complies with s 477(2)(a) having plainly been met). It is apparent that the primary judge then applied that test (subject to the matters discussed at [37]-[39] below) and determined whether it was in the interests of justice to make the order sought: see above at [25].

36    Secondly, applying the principles explained at [27]-[30] above, the applicant’s complaint that the primary judge’s finding at [21] that the applicant’s explanations for the delay are not satisfactory is an attempt impermissibly to take issue with a matter squarely within the jurisdiction of the FCC. Further and in any event, while the applicant identified severe depression and self-harm as the grounds for seeking an extension of time and deposed in his affidavit in support of the application that “Medical support for extension will be sent ASAP”, the only medical evidence before the FCC was a discharge referral. This indicated only that he had sustained a laceration to his arm while cleaning his car, and that he had been admitted to, and discharged from, the emergency department of a hospital on 21 June 2016, some 25 days after the Authority’s decision. The primary judge’s reasons at [21], while brief, demonstrate that his Honour had regard to this material in finding that the explanation for the delay was unsatisfactory. Given the inadequacy of the evidence in support of the applicant’s alleged explanation, it is also plain that there would have been no merit in the proposition that the primary judge’s reasons at [21] demonstrated an error in the exercise of discretion in accordance with the principles in House v The King (1936) 55 CLR 499, quite apart from the question of jurisdictional error. Moreover, it is apparent that ultimately the primary judge did not hold the absence of a satisfactory explanation for delay against the applicant, identifying instead at [21] that “the material issue in the present case are [sic] the merits of the application.”

37    Thirdly, as a consequence of matters raised in arguendo, the applicant submitted that the primary judge had erred at [30] in taking “into account the principles and caution in Spencer v Commonwealth (2010) 241 CLR 118 at [24]-[25] and [59]-[60]” in concluding that the FCC grounds lacked sufficient merit to warrant an extension of time. It was accepted by the respondent that this argument was sufficiently raised by FCA ground 1, albeit that it had not been previously articulated. The decision in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) concerned an appeal against an exercise of the power under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to summarily terminate proceedings on the ground that they had no reasonable prospects of success. The High Court held in Spencer that, by virtue of subs 31A(3) of the FCA Act, it was no longer necessary for a party seeking summary dismissal to demonstrate that the claim was hopeless or bound to fail, in order to satisfy the Court that an application had no reasonable prospects of success.

38    The question of whether a claim has sufficient merit to warrant the grant of an extension of time is a different question from that considered in Spencer. In this regard, the applicant emphasised the low bar for determining whether grounds of appeal or judicial review have sufficient prospects of success in the context of an application for an extension of time. For example, French J (as his Honour then was) in Seiler v Minister of Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (Seiler) at 98 explained that:

    To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused.

    (Cited with approval, e.g., in Mentink v Minister for Home Affairs [2013] FCAFC 113 (Mentink) at [37] (Griffiths J (with whose reasons Edmonds J agreed)) and [57] (Pagone J))

39    Read as a whole, it is unclear whether the primary judge in fact applied the test in Spencer, as he refers simply throughout his reasons to whether the grounds identified any “arguable jurisdictional error.” If his Honour did, however, err in this way, I tend to the view that such an error could constitute only a non-jurisdictional error within jurisdiction. However, it is unnecessary to determine that question because his Honour was plainly correct on any view of the matter to find that the FCC grounds did not disclose an arguable jurisdictional error by the Authority, applying the appropriate standard expressed in Seiler, for the following reasons. (In so finding I note that the principle in cases such as Seiler may eventually be revisited in light of the enactment of subs 31A(3) of the FCA and its FCC equivalent. However, no such proposition was argued before me and in any event I would be bound by the Full Court’s decision in Mentink.)

40    First, at the heart of grounds 1 and 2 of the FCC application was a complaint that the Authority had failed to consider “the claims of the wife and daughters” to fear harm if they relocated and “against the correct social group of the wife and daughters” (emphasis added). Those grounds were rejected by the primary judge primarily on the basis that the application for protection was that of the applicant and not his wife and daughters (FCC reasons at [24] and [25]). That finding was plainly correct. It will be recalled that the applicant’s wife and daughters remained in Pakistan and that the only application for a protection visa was that of the applicant on his own behalf. In this regard, s 47 of the Act imposes an obligation upon the Minister only to consider a valid application for a visa, while s 473CC imposes an obligation upon the Authority only to review fast track decisions referred to it by the Minister under s 473CA, as occurred here. As such, the Authority could not have fallen into jurisdictional error in failing to consider claims of which it was not seized by persons who had not made an application for protection visas.

41    Secondly, ground 3 of the FCC application alleged a failure to give a proper, genuine or realistic consideration to the applicant’s claims or those of his wife and daughters referring to same particulars as for FCC ground 1. The primary judge however found that the Authority’s reasons reflected a real and genuine consideration of the applicant’s claims in the evidence, and reveal that the Authority took into account the applicant’s concerns in relation to his daughter’s education and his wife’s role as a teacher. As such, the primary judge considered that ground 3 was in substance an invitation to the Court to engage in impermissible merits review (FCC reasons at [26]). No jurisdictional error appears to be raised by the FCA grounds challenging this finding.

42    Ground 4 of the FCC application challenged the Authority’s finding that it was reasonable for the applicant “and his family” to relocate from Kandahar to Kabul on the ground that it lacked a sufficient logical or evidentiary basis or was unreasonable. The primary judge rejected that ground on the basis that the finding was open on the material before the Authority and could not be said to lack an evident and intelligible justification. Nor, the primary judge found, did the “summary of findings and the so-called particulars” in the amended application for judicial review identify any basis on which the decision could be said to be illogical or unreasonable (FCC reasons at [27]). In this regard, no issue as to the reasonableness of the applicant’s family relocating to Kabul arose because the Authority was not seized of any protection visa application by them as I have previously explained. By way of completeness, I note that there was no suggestion that this was a case akin, for example, to NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922 (NBCY). The applicant in NBCY feared persecution if returned to South Korea by reason of the severe psychological harm to him that would follow from his reasonably held fear that, as consequence of his return, retaliatory measures would be taken against his family. In that case, it was not of course sufficient to dismiss the applicant’s claim as to the impact on him of his family’s suffering if he were returned, on the basis that the family members were not visa applicants (as Tamberlin J held in NBCY at [24]-[26]).

43    In so far as the Authority considered the applicant’s claims with respect of the issue of relocation, I am unable to find any error in his Honour’s reasoning. As I have earlier explained, the Authority’s finding that the applicant would not face a real chance of serious harm in Kabul from the Taliban or AGEs was based upon a consideration of the evidence or lack thereof, including: the fact that there were few references in the country information to the targeting of teachers and female students in Kabul as opposed to other parts of Afghanistan; the greater access to educational facilities in Kabul, freedom of movement and employment for girls in Kabul; and the lack of any evidence indicating that the Taliban or AGEs would pursue the applicant to Kabul for the reasons he had claimed (see above at [16]-[18] and [21]-[22]). As such, there was an evidential basis for the findings and, while others might reasonably have reached a different view, this is not sufficient to establish legal unreasonableness: see e.g. DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALD 641 at [30(5)] (the Court).

44    Finally, ground 5 of the FCC application alleged a denial of procedural fairness on the basis that it was unclear how, pursuant to subs 473GB(3) and (4) of the Act, the Authority considered whether to disclose those documents or information covered by the s 473GB non-disclosure certificate (assuming that the Authority proceeded on the basis that the certificate was valid). Alternatively, if the certificate was invalid, the applicant also alleged in addition to the denial of procedural fairness, a jurisdictional error by reason of the Authority not following a procedure according to law. The primary judge rejected that ground for the following reasons:

28. Ground 5 seeks to raise an argument in relation to a certificate issued under s.473GB of the Act. The certificate in the present case referred to a particular document concerning the applicant’s identity. There is nothing on the face of the material to suggest that the Authority took into account the certificate in determining the applicant’s claims. Further, the applicant’s identity was not an issue before the Authority and the Authority accepted the applicant’s country of citizenship.

29. Part 7AA of the Act is different to the statutory provisions in Part 7 of the Act. I do not accept that there is any arguable case that the certificate in the present case is invalid. The provisions of Part 7AA of the Act and in particular, s.473DA of the Act exclude the common law rules of procedural fairness of the kind that were dealt with by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. Mr Williams of counsel sought to argue that the Authority should have identified in its reasons how it dealt with the certificate information. The Authority does not need to do so. Ground 5 does not identify any arguable jurisdictional error.

45    As explained above at [32], the applicant no longer presses FCA ground 7 insofar as it alleged a breach of procedural fairness in the sense of the natural justice hearing rule in relation to the s 473GB certificate. It follows that the applicant must also be taken to have disclaimed his argument in FCA ground 1 that the FCC erred in not finding that this argument was sufficiently arguable to warrant an extension of time below. Furthermore, the Minister accepted before the FCC and on the present application that the non-disclosure certificate was invalid. That being so, it is difficult to understand the primary judge’s finding without elaboration that there was no arguable case that the non-disclosure certificate was invalid. That notwithstanding, given that the parties accepted that the non-disclosure certificate was invalid, the applicant cannot now suggest that there was an arguable case before the FCC that the Authority ought to have considered under subs 473GB(3) and (4) whether to disclose the information subject to the non-disclosure certificate. Those subsections could have been enlivened only if a valid non-disclosure certificate had been made under s 473GB of the Act which was not the applicant’s case. Nor in any event, did the applicant articulate any logical basis for the proposition that the invalidity of the certificate alone would taint the validity of the Authority’s decision.

3.4.2    FCA Grounds 3, 4, 6 and 7

46    The conclusions reached as to FCA ground 1 would suffice to dispose of FCA grounds 3, 4, 6 and 7 (to the extent it is maintained). However, insofar as these grounds were pursued independently of any error alleged in FCA ground 1, I agree with the Minister’s submission that FCA grounds 3, 4, 6 and 7 proceed on the assumption that the primary judge fell into jurisdictional error by reason of his failure to uphold alleged jurisdictional errors made by the Authority. However, as the Minister submits, that assumption wrongly treats an application for judicial review as if it were an appeal under s 24 of the FCA Act and also fails to respect the fundamental distinction between judicial review of an administrative decision and judicial review of a decision of an inferior court (see above at [27]). As such, these grounds not only seek to elide the distinction between jurisdictional error and appealable error on the part of inferior courts; they would undermine the restrictions imposed upon the Federal Court’s appellate jurisdiction by subs 476A(3) of the Act. That section provides that no appeal may be instituted in the Federal Court from an order of the FCC under s 477(2) of the Act extending or refusing to extend time within which to institute judicial review proceedings in that Court.

47    Against this, the applicant submitted that the Minister mischaracterised the pleadings which he said had been “tightened up” so as to “sound in the language of Craig; they don’t sound in the language of an appealable point”. However, the question of whether the second further amended application alleges jurisdictional error by the FCC does not turn upon mere matters of language, but upon the substantive nature of the grounds raised.

3.5    The application for leave to rely upon proposed ground 8

48    Proposed ground 8 of the second further amended application raised a new ground in light of the decision in BBS16 at [100] (the Court) which had not been argued before the primary judge. As such, it was necessary for the applicant to seek leave to rely upon the proposed new ground in this Court. The applicant contended that the decision in BBS16 raised the possibility of pleading either that: the Authority unreasonably exercised its discretion under subs 473GB(3); or that the manner in which the Authority dealt with the non-disclosure of information under s 473GB gave rise to a reasonable apprehension of bias, despite ruling out the possibility of pleading that non-disclosure could constitute a breach of procedural fairness in the context of Part 7AA fast track decisions on review by the Authority. The documents to which the certificate related were received in evidence as Exhibit A-1 only in support of the applicant’s application for leave to amend to include proposed ground 8, with the question of whether they were received on the substantive application dependent upon whether leave was granted to the applicant to rely upon proposed ground 8.

49    The Minister opposed the grant of leave to amend to raise the new ground on three bases: first, the proposed ground 8 lacked merit; second, the ground was raised extremely late in the proceeding; and thirdly, the Minister was prejudiced in light of the extremely lengthy amendments to the originating application as a consequence of which the proposed application insofar as it concerned ground 8 was oppressive.

50    In my view, the leave to amend to raise the new ground should be refused as it enjoys no reasonable prospects of success.

51    Proposed ground 8 alleges that the Authority’s decision was affected by jurisdictional error either based on an unreasonable exercise of the discretion under subs 473GB(3) or “by way of a reasonable apprehension of bias, given the way in which the [Authority] dealt with the non-disclosure of information under section 473GB, in violation of the exhaustive statement of natural justice rule under section 473DA or in violation of the exercise of the [Authority’s] functions under section 473FA.” The pleading is elaborated on by over 40 alleged particulars set out over almost 5 pages, albeit that they do little to clarify with any precision the points sought to be raised.

52    Fundamentally, however, proposed ground 8 does not identify any jurisdictional error by the primary judge, as the Minister submits. The applicant submitted that “all we need to argue is that there was an arguable case before his Honour … that the IAA made a jurisdictional error. If that’s the case, his Honour misapplied the appropriate law and wasn’t properly seized of his jurisdiction”. That submission is directly contrary to the authorities earlier discussed. Rather, applying those authorities, it is manifest that the allegations in proposed ground 8 fail to identify any error going to the primary judge’s jurisdiction on the application for an extension of time such as a failure to take into account a matter which is a precondition to the exercise of his authority to make an order or decision, or a misconception as to the nature of his function or extent of his powers. Indeed, the proposed pleading does not in terms identify any manner in which the primary judge is said to have fallen into error even within jurisdiction. At its highest, it is to be inferred that the applicant alleges that the primary judge erred in failing to hold the decision of the Authority invalid on the basis of an argument that was not raised by the applicant below. As such, the ground is untenable in the context of an application for judicial review of the FCC decision, and leave to amend the further amended originating application to raise the new ground should be refused. It follows that leave to tender the documents to which the non-disclosure certificate related on the substantive application should also be refused.

53    Finally and in any event, the fact that BBS16 left the argument as to apprehended bias (or bias) open in the context of fast track decisions does not obviate the need to identify: (1) what it is said might lead the Authority to decide the applicant’s case otherwise than on its legal and factual merits; and (2) to articulate the logical connection between that matter and the risk that the decision maker will decide the matter otherwise than on its merits (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) which was recently approved, e.g., in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [21] (Kiefel, Bell, Keane and Nettle JJ)). Yet no such exercise was embarked upon by the applicant; nor are these matters self-evident.

4.    CONCLUSION

54    For these reasons, the application for leave to file and serve the second further amended application should be granted save that leave to amend to raise proposed FCA ground 8 is refused. The application for judicial review of the decision of the FCC is dismissed with costs.

Associate:

Dated:    9 October 2018