FEDERAL COURT OF AUSTRALIA

WZAUA v Minister for Immigration and Border Protection [2018] FCA 1599

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Unless a party notifies the Court in writing by 4.00 pm on Thursday 25 October 2018, indicating opposition to this order as to costs, the applicant pay the first respondent’s costs of the application, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an application under s 39B(1) of the Judiciary Act 1903 (Cth) that orders in the nature of writs of certiorari and mandamus issue to the Federal Circuit Court of Australia, to quash the decision made in the matter of WZAUA v Minister for Immigration and Border Protection [2016] FCCA 2640 on 30 November 2016 and to direct that Court to determine the applicant’s application for an extension of time according to law. The decision of the Federal Circuit Court was to refuse an application under s 477(2) of the Migration Act 1958 (Cth) to extend the time in which to make an application under s 476 of that Act, for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 16 December 2013.

2    The application in this Court was accompanied by an affidavit of the applicant’s lawyer, Melinda Jackson, and an amended statement of claim, in which it was alleged that:

1.    The Federal Circuit Court denied the applicant procedural fairness, by declining to receive submissions from the applicant in relation to whether the certificate under section 438 of the Migration Act before the Administrative Appeals Tribunal was disclosed to the applicant, thereby amounting to jurisdictional error;

2.    The decision of the Federal Circuit Court was affected by jurisdictional error, in that the Court applied the incorrect test to the exercise of its discretion under section 477(2) of the Migration Act;

3.    The Federal Circuit Court applied the wrong test in determining what constitutes jurisdictional error … ;

4.    The Federal Circuit Court applied the wrong test in relation to when claims not made expressly before the Tribunal arise on the materials … ; and

5.    The Federal Circuit:

  a.    denied the applicant procedural fairness, or alternatively,

b.    took into account an irrelevant consideration, and thereby fell into jurisdictional error,

in finding that the Minister suffered any irremediable prejudice ... .

3    The applicant confirmed at the hearing that she abandoned ground 4.

4    Subsequently, the parties filed further affidavits in this Court. The respondent Minister filed two affidavits sworn by Maria Ngo, a lawyer for the Minister, on 28 July 2017 and on 20 October 2017 respectively. Noosheen Mogadam, a lawyer at the Asylum Seeker Resource Centre (ASRC), affirmed an affidavit on 20 October 2017, which was filed on the applicant’s behalf. There was no objection to the admission of these affidavits.

5    In addition to the Court Book filed in this matter, the Court also received a copy of the written submissions filed by the parties in the Federal Circuit Court proceeding.

BACKGROUND

6    The applicant, a citizen of Zimbabwe, made an application for a Protection (Class XA) visa on 27 May 2011. A delegate of the respondent Minister refused that application on 2 July 2013. The applicant applied to the Tribunal for review of the delegate’s decision on 1 August 2013. The Tribunal affirmed that delegate’s decision on 16 December 2013.

7    The Tribunal made its decision on the basis that it was not satisfied that the applicant had a well-founded fear of being persecuted in Zimbabwe for any reason set out in the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and did not satisfy the requirements of s 36(2)(a) of the Migration Act. The Tribunal did not accept that the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act.

8    The applicant applied to the Federal Circuit Court on 31 March 2014, for an extension of time in which to seek judicial review, in circumstances where s 477(1) of the Migration Act fixed a 35-day period in which a judicial review application could be made under s 476 to the Federal Circuit Court and the applicant’s application was filed 68 days late. Section 477(2) confers a discretion on the Federal Circuit Court to extend the 35-day period as the Court considers appropriate in certain circumstances, including that the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”: see s 477(2)(b). The applicant therefore made an application for an extension of time pursuant to s 477(2), which was accompanied by her proposed judicial review application.

9    There was a hearing in the Federal Circuit Court on 15 September 2014, and the primary judge reserved his decision on that date. The applicant’s submissions to the Federal Circuit Court were set out by the primary judge (at [27] of his reasons) as follows:

The applicant submitted that:

a)    the 35 day time limit for filing the Proposed Judicial Review Application expired on 20 January 2014;

b)    she was detained on 13 February 2014, preceding which arrangements had been made by the Department of Immigration and Border Protection … for her departure from Australia on 10 February 2014 … ;

c)    she lacked the financial capacity to source legal advice: see the Departmental email of 4 February 2014 … ;

d)    the Applicant’s September 2014 Affidavit refers to the applicant's initial lack of understanding that she could represent herself before the Court, which was dispelled on speaking to fellow detainees after 13 February 2014;

e)    she signed the Extension of Time and Proposed Judicial Review Application on 21 February 2014. It appears, from the facsimile machine imprints on the Extension of Time and Proposed Judicial Review Application, that the process of filing the Extension of Time and Proposed Judicial Review Application in the Registry commenced on 24 March 2014 and the Extension of Time and Proposed Judicial Review Application was marked by the Registry as filed on 31 March 2014. The … Extension of Time and Proposed Judicial Review Application were therefore between 62 and 69 days out of time;

f)    there is a reasonable explanation for the applicant's delay, and in the circumstances the extent of the delay is far from substantial and unacceptable; and

g)    the Proposed Judicial Review Application has merit: a reviewable error is identified and there is sufficient doubt that the Tribunal Decision is affected by jurisdictional error. For that reason an extension of time to seek review ought to be granted: Deighton v Telstra Corporation Ltd (Unreported, Full Court Federal Court of Australia, WAG 74 of 1997, 17 October 1997); Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397; (1991)104 ALR 621; FCR at 398-400.

10    It was not said at the hearing that this summary was incorrect.

11    In late July 2016 the ASRC became informally aware of the applicant’s proceeding in the Federal Circuit Court and of the fact that the applicant’s legal representative at the earlier hearing had since retired and gone overseas.

12    On 7 September 2016, while judgment in the Federal Circuit Court was still reserved, Beach J delivered judgment in this Court in MZAFZ v Minister for Immigration [2016] FCA 1081; 243 FCR 1.

13    On 28 September 2016, the ASRC filed a notice of address for service on behalf on the applicant in the Federal Circuit Court proceeding. It appears that around this time WZAUA v Minister was listed for judgment on 31 October 2016.

14    On 14 October 2016, a lawyer for the Minister emailed the applicant’s solicitor with a copy of a certificate issued to the Tribunal in the applicant’s case under s 438 of the Migration Act. In this email, the lawyer for the Minister also said (amongst other things):

As discussed, we attach a copy of the s 438 certificate in relation to this matter noting that it was not included in the Court Book.

As you are well aware, this matter is listed for judgment on 18 October 2016. I seek your views on whether you believe the certificate and the decision of Beach J in MFAFZ v Minister for Immigration and Border Protection should be brought to his Honour’s attention prior to judgment.

15    The applicant’s legal representative replied to the Minister’s lawyer by email on 16 October 2016, stating that she was of the view that “the matter of the s 438 certificate” should be disclosed to the Court and indicating a basis on which the Tribunal “may have breached … procedural fairness” obligations, having regard to MZAFZ. Her email continued:

My suggested course of action is to bring this certificate and the judgment in MZAFZ to the attention of the Court, but indicate that the parties are not inclined to make submissions on this issue if it is unnecessary to decide. The Court may then choose to:

1.    Hand down judgment anyway;

2.    Hear brief oral submissions from the parties immediately prior to judgement; or

3.    Adjourn and receive further written submissions.

16    Some days later, on 27 October 2016, the lawyer for the Minister wrote to the primary judge’s associate. Omitting formal parts, the letter stated:

This matter has been listed for judgment in the Federal Circuit Court at 4:00pm on Monday, 31 October 2016 before His Honour. I have carriage of this matter on behalf of the first respondent.

Having reviewed our files, we have discovered that a certificate under s 438 of the Migration Act 1958 was issued by the Department to the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) with regards to a document in the applicant's file. This may raise a potential issue in light of the recent judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

We contacted the applicant's representatives on 14 October 2016 and advised them of the above issue.

The parties feel obliged to raise the above issue with the Court prior to the handing down of judgment. Having conferred, the parties are not inclined to make submissions on this issue unless the Court so requires.

(Emphasis added)

17    Before this letter was sent to the primary judge’s chambers, the lawyer for the Minister had sent a draft of the letter to the applicant’s legal representative. The applicant’s legal representative had responded:

I am happy with the content of the letter, thank you.

18    The letter sent to the Federal Circuit Court was in the same terms as the draft provided to the applicant’s legal representative. There was no mention in this letter of the fact that the s 438 certificate and MZAFZ might provide a basis for a further proposed judicial review ground on the basis of breach of procedural fairness, notwithstanding the applicant’s legal representative had indicated some days earlier that she was of that view.

19    At 5:50 pm on 27 October 2016, a deputy associate to the primary judge responded to the Minister’s lawyer, by email copied to both parties, stating that:

The Court does not require written submissions with regards to MZAFZ v Minister for Immigration and Border Protection.

However, please note that due to an ongoing absence of a Chambers’ staff member because of illness, judgment delivery has been re-listed to 17 November 2016 at 9:15am ... .

(Emphasis original)

20    Judgment in WZAUA v Minister was ultimately delivered on 30 November 2016.

Judicial review for error – federal circuit court

21    It was common ground that, on account of s 476A(3)(a) of the Migration Act, no appeal lies from the judgment of the primary judge but that this Court has jurisdiction to review his Honour’s decision under s 39B of the Judiciary Act: see Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [11].

22    In Australian law, there is a distinction between judicial review for legal error by a tribunal or other administrative decision-maker, and judicial review for legal error by a court in the exercise of judicial power. The seminal case is Craig v South Australia [1995] HCA 58; 184 CLR 163, in which the High Court said, at 177, that there will be jurisdictional error where an inferior court mistakenly assumes or denies jurisdiction, or misconceives the nature or limits of its jurisdiction. Jurisdictional error can also occur where an inferior court disregards a matter that the governing statute conferring jurisdiction on the court requires be taken into account, or takes into account a matter that that statute requires not be considered, as a pre-condition to the exercise of its jurisdiction in the particular case.

23    As the Court noted in Craig, at 178, the line between jurisdictional error and an error within jurisdiction can be difficult to discern. As the Court also noted at 179-180, in contrast to administrative bodies:

… 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.

24    Later, in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, the High Court doubted the utility of the concept of the “authority” of inferior courts to explain the basis for distinguishing reviewable errors in the case of decisions of an inferior court from such errors in the case of a tribunal or other administrative decision-maker: see at [70]. The Court in Kirk went on to observe that “[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”, and that the reasoning in Craig “is not to be seen as providing a rigid taxonomy of jurisdictional error” but is to be understood as providing examples of jurisdictional error by an inferior court: see [71] and [73].

25    In some cases, as discussed in Kirk, both appellate and judicial review may be available for the correction of legal error. In other cases, there may, as in this case, be no right of appeal, and the applicant can seek relief only by way of judicial review.

Ground 1 – Denial of procedural fairness?

The parties’ submissions

26    The applicant submitted that the Federal Circuit Court denied her procedural fairness by not responding to the information about the s 438 certificate, which came to light after the 15 September 2014 hearing and was conveyed to the Court by the letter of 27 October 2016. Counsel for the applicant submitted at the hearing in this Court that there was a denial of procedural fairness because “the primary judge failed to deal with an argument that clearly arose of the materials, or, in the alternative, the primary judge failed to give the applicant an opportunity to make submissions on the issue in circumstances where it had been raised before his Honour”. The applicant submitted that it should be inferred that the primary judge did not respond to this “post-hearing development” from the circumstance that neither the existence of the s 438 certificate nor the decision in MZAFZ was mentioned in his Honour’s reasons for judgment.

27    The applicant submitted that the correspondence between the parties and the Court concerning the existence of the s 438 certificate before the Tribunal and MZAFZ must be understood in the context that the parties’ representatives were obliged to draw any developments in the law affecting the matter to the Court’s attention, although they were not entitled to file post-hearing submissions without the leave of the Court. Counsel for the applicant also observed at the hearing in this Court that “the applicant … could not, before or during the Federal Circuit Court hearing, have made any clearly articulated argument with respect to the certificate, because it was a matter that wasn’t within the applicant’s knowledge” at the time.

28    The applicant submitted that the Federal Circuit Court’s failure to respond to this post-hearing development was a breach of procedural fairness, because it was the substantive equivalent of either “not responding to a clearly articulated argument” or “not dealing with an argument which clearly ‘arises on the materials’”. The applicant contended in written submissions that the primary judge should have responded to the 27 October 2016 letter as follows:

i.    First, to read MZAFZ v Minister of Immigration (2016) 243 FCR 1 (MZAFZ).

ii.    Second, depending on what view his Honour took of those issues, his Honour should have either:

a)    considered in his reasons whether the principles identified in that case could assist the applicant in this case; and/or

b)    invited further submissions from the parties as to the appropriate steps to be taken, in light of the correspondence to the Court.

29    The applicant submitted that it was plain enough that the primary judge ignored the potential issue arising from MZAFZ, or, at least, that issue “did not receive the attention and response required from the FCC judge, bound by the obligations of procedural fairness”. This, so the applicant submitted, was a breach of the hearing rule. It was irrelevant, so the applicant contended, whether an issue identified in MZAFZ would have been sufficient, in the applicant’s case, to justify a successful outcome on either the extension of time application or judicial review because “[t]here was a prima facie argument to be made that the decision in MZAFZ should lead to a successful outcome on the application for an extension of time, and the applicant was deprived of the opportunity to advance that argument”. The applicant referred to a court’s duty with respect to self-represented litigants, citing MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158. The applicant’s point was that she was deprived of the possibility of a successful outcome on the extension of time application, and this entitled her to the relief she sought. The applicant also submitted that her case was fortified by the fact that the primary judge did not have a copy of the s 438 certificate or any information relevant to the issues raised by MZAFZ, especially given the serious issues at stake. Counsel for the applicant submitted that “the distinguishing factor in this case was the disclosure of the section 438 certificate at the same point in time” as the delivery of judgment in MZAFZ.

30    The Minister submitted that the applicant’s submissions proceeded from a misconception of the material before the primary judge at the time of judgment. In particular, the primary judge was not informed by the 27 October 2016 letter that the Tribunal had before it “dob-in information that was subject to a certificate under s 438 of the Act”. According to the Minister, the most his Honour “could have known [was] that there was a certificate and it may raise a MZAFZ-type issue”. The Minister submitted that, when considering the content of the procedural fairness obligations, it should be kept in mind that the applicant was represented by “competent and experienced solicitors”, and that they did not inform the Court about the nature of the potential issue, or whether they needed further time to consider whether it was an “actual issue”, with “a sufficiently arguable prospect of success” to justify an extension of time. There was, so the Minister submitted, no argument for the primary judge to address in the discharge of his jurisdiction.

Consideration – Ground 1

31    It is important to recall that, although the letter of 27 October 2016 notified the Court that a s 438 certificate had been issued to the Tribunal in respect of a document on the applicant’s file and that this “may raise a potential issue” in light of Beach J’s decision in MZAFZ, the letter expressly advised the Court that the parties did not want to make submissions “on this issue” unless the Court required them to do so.

32    It is also important to bear in mind that the primary judge was not told whether or not the certificate had been disclosed to the applicant at the Tribunal or more recently. Nor was his Honour informed about the nature of the document that attracted the certificate. Nor did the applicant, by her lawyer, outline the nature of any argument that Beach J’s decision “may raise” in her case. The applicant’s legal representative did not make any application to amend the applicant’s proposed judicial review application, and nor did her legal representative intimate that the applicant might wish to apply for leave to amend her proposed judicial review application and needed time to consider whether such an amendment should be made and what form it should take. Furthermore, although there was a copy of the certificate included in the Court Book filed in this Court, the certificate was not placed, or sought to be placed, before the primary judge.

33    In the circumstances of this case, there can be no denial of procedural fairness. An applicant, with the benefit of legal representation, cannot complain that she was denied an opportunity that she told the decision-maker she did not seek, or that no account was taken of an argument that she did not raise: compare Francuziak v Minister for Justice [2015] FCAFC 162; 238 FCR 332 at [41]. Further, I accept that, as the Minister submitted, the facts disclosed to his Honour were not enough to show that the applicant might well have available to her a judicial review ground with some prospects of success, based on Beach J’s decision in MZAFZ; and that on this basis fairness required that the applicant should be given an opportunity to make submissions about that ground.

34    The manner in which a court discharges its duty to ensure a fair hearing varies, depending on the relevant circumstances, including whether or not a litigant has legal representation. The statements concerning the performance of the duty where a litigant has no legal representation (such as appear in MZAIB at [113], Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[310], Shrestha v Migration Review Tribunal [2015] FCAFC 87; 229 FCR 301 at [53], and Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [89]-[92]) are not applicable here. The applicant in this case had legal representation in the Federal Circuit Court (and in this Court), and it is unhelpful to consider what may have been required of the primary judge as if (contrary to the fact) the applicant was not legally represented before him.

35    For the reasons stated, ground 1 is not made out.

GROUND 2 – incorrect test under s 477(2) applied?

The parties’ submissions

36    The applicant contended that the decision of the primary judge was affected by jurisdictional error because his Honour applied an incorrect test in exercising the discretion conferred by s 477(2) of the Migration Act. The applicant submitted that although the primary judge correctly stated the test to be applied under s 477(2), he in fact “applied a much higher threshold to the issue of ‘merits’ than [he] should have” done. Referring to MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[67], the applicant submitted that the primary judge assessed the merits on a more thorough basis than appropriate in that he went “well beyond ‘an impressionistic analysis of the merits’” such as the authorities required in an extension of time case such as this. In the alternative, the applicant submitted that the primary judge took into account an irrelevant consideration, being “a view about the merits of the matter which was formed by examining an issue outside of the scope of the jurisdiction conferred by s 477(2) of the Act (and in reality, exercising the jurisdiction under s 476(1) of the Act)”. The applicant submitted that the distinction between the exercises of jurisdiction under s 477(2) and under s 476(1) was important “in light of the serious consequences of dismissing applications under s 477(2)”. In reply submissions, the applicant contended that it was “difficult to see how his Honour could have made such firm findings with respect to the absence of any prejudice to the applicant unless he had reached such a firm, and not impressionistic, view of the merits of her case”. The applicant added that it was difficult to understand the delay between the hearing and the delivery of judgment had his Honour confined his analysis to an impressionistic view of the merits.

37    In response, the Minister submitted that the reasons of the primary judge disclosed that his Honour correctly applied the test in relation to the merits.

Consideration – Ground 2

38    The primary judge set out the provisions of s 477 of the Migration Act in his reasons at [29]. Section 477(2)(a) expressly provided that the applicant must specify “why the applicant considers that it is necessary in the interests of the administration of justice” to make an order for the extension of time; and s 477(2)(b) expressly stated that the Federal Circuit Court may extend time if “satisfied that it is necessary in the interests of the administration of justice” to do so. As the Full Court stated in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [53], the formation of this satisfaction is a pre-condition to the exercise of power under s 477(2). It is apparent from subsequent passages in his Honour’s reasons that his Honour well understood that he was required to be so satisfied if he were to grant the applicant the extension of time that was sought.

39    This does not, of course, answer the applicant’s submission that the primary judge misapplied the test because he effectively entered into a determination of the merits of the proposed judicial review grounds, rather than confining himself to the more limited question, whether the grounds disclosed an “arguable” or “sufficiently arguable” case to justify the extension of time.

40    Much the same point was raised at one point in MZABP, in which a challenge by way of judicial review was made, as in this case, to a refusal to extend time under s 477(2). The applicant in that case argued that the Federal Circuit Court had misconstrued the nature of its powers. In reply, towards the end of the hearing, the applicant submitted that the primary judge “decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Act”: see MZABP at [60]. In that case, Mortimer J did not rule on this submission: see MZABP at [61]. Her Honour did, however, express her disquiet about the way in which the Federal Circuit Court had dealt with the merits of the applicant’s proposed grounds of review. In particular, in passages relied on by the applicant in this case, her Honour said, in obiter dictum (at [62]-[63]):

[I]t will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

This approach has been accepted by the Full Court: see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21]-[23] and [38] and Guo v Miniser for Immigration and Border Protection [2018] FCAFC 34 at [27].

41    Turning to the decision of the Federal Circuit Court in MZABP’s case, Mortimer J commented (at [67]-[68]) that:

In the present case, the Federal Circuit Court’s reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review … , and because of the extent of the consideration given to each ground.

Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court’s jurisdiction is another and difficult question. In Kirk [2010] HCA 1; 239 CLR 531 (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. 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.

42    For another approach to a similar problem, see AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; 244 FCR 401 at [78]-[80]; compare BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [65] and DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [62].

43    Although there is some force in the applicant’s submissions in support of ground 2, on balance, I am not persuaded that the primary judge erred as alleged. First, his Honour expressly recognised that the relevant question on an extension of time application was “whether the merits of the Proposed Judicial Review Application are arguable or have reasonable prospects of success” and that it was “not necessary for the applicant to positively establish that the application will succeed at final hearing”: reasons, at [61]. At the same time, his Honour correctly noted that “it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success”. Drawing on the authorities, his Honour acknowledged (at [61]) that:

In determining whether the grounds of review are arguable, reasonably arguable, or have reasonable prospects of success only requires the Court to deal with the grounds of review, and to examine them, in a reasonably impressionistic manner, and without the full consideration of all of the arguments which would be necessary upon a consideration of the merit of each of the grounds of review, the issue being not whether the applicant would be successful in the ultimate outcome, but whether an extension of time ought to be granted because an impressionistic, and necessarily preliminary examination of the grounds of review, reveals that the grounds of review, or any of them, might be arguable, reasonably arguable, or have a reasonable prospect of success, if fully examined as to their or its merit … .

44    His Honour can be seen to have applied this approach to each of the proposed grounds of review (set out in his reasons at [55]-[56]). One can put aside, for present purposes, his Honour’s detailed statement of the parties’ submissions (at [57]-[60]). It is common ground that there is no error here. One can also put aside, for present purposes, his Honour’s statement of the accepted bases for judicial review and relevant principles (at [62], [65]), and an outline of the task of the Tribunal (at [63]). These latter matters provided the context in which his Honour assessed the applicant’s proposed grounds, against the test he had correctly stated, in the manner he had correctly identified.

45    In relation to the first three proposed judicial review grounds, his Honour simply said (at [66]):

As to grounds 1, 2 and 3 (save to the extent that ground 3 might overlap with ground 4) they raise no arguable grounds of review, being no more than unparticularised assertions of jurisdictional error by the Tribunal. An unparticularised assertion of jurisdictional error cannot succeed: SZELX at [18]-[19] per Emmett FM, and see now WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited).

46    One must accept, so it seems to me, that his Honour concluded, at “a reasonably impressionistic level”, that these grounds were not arguable. No error is shown at this point of his Honour’s reasons.

47    A fourth proposed ground was considered by his Honour at greater length, but this was commensurate with its greater factual complexity and greater particularisation. As to this proposed ground, his Honour held that the applicant’s assertion that the Tribunal did not consider her claim that she had a well-founded fear of persecution in Zimbabwe because she was a supporter of the Movement for Democratic Change (MDC) “cannot succeed”, because the Tribunal “clearly set out the claims … in that regard and considered [them]”: reasons, [67]. His Honour also held that a related claim had no prospects of success because it was not made, or clearly articulated, before the Tribunal: see reasons, [69]-[73]. His Honour added (at [74]) that “[t]he case now depends upon country information sought to be put before the Court … [and] not before the Tribunal”, concluding that:

In the circumstances, the case now being sought to be made not being one before the Tribunal, it cannot be made upon judicial review to this Court. … It further follows, that the claim that the Tribunal failed to consider the applicant’s claim of persecution based upon her being a female aged under 30 eligible for membership … is not one which is clearly arguable.

48    The difficulties that his Honour identified were clear. Once identified, it was open to his Honour to conclude that the prospects of success on proposed ground 4 were not such as to warrant the extension of time that the applicant sought.

49    On this basis, I can discern no error in his Honour’s conclusion (at [75] and [77(c)]) that:

… with ground 4 being the only ground of any substance, and it not being a ground clearly arguable on the merits of the Amended Proposed Judicial Review Application, that the merits of the Amended Proposed Judicial Review Application do not weigh in favour of an extension of time.

…

[T]he failure of the applicant to make out any proposed ground of review which has arguable merit effectively means that such an application would have no prospect of success, and the Court should not therefore extend time

50    Reading his Honour’s reasons as a whole, and having particular regard to [77], it seems to me that his Honour’s use of the expression “not … clearly arguable” was intended to signify “lacking any prospect of success” and does not lead to the conclusion that his Honour had applied an impermissibly high threshold.

51    Given the way in which proposed ground 4 was framed, it was appropriate for his Honour to consider, as he did, whether the claims had been made and considered at the Tribunal level and the extent to which the applicant sought to rely on further information that had not been before the Tribunal, as part of his assessment as to whether the ground was sufficiently arguable to justify the extension of time that was sought. As the Minister submitted in this Court, with respect to proposed ground 4, the primary judge in effect dealt with some essentially threshold issues concerning whether in fact that ground might be said to arise from the Tribunal’s decision and, deciding that it did not, his Honour held that the proposed ground lacked any arguable basis.

52    In these circumstances, it cannot be said that the Court applied the wrong test, or misapplied the correct test, in exercising its discretion under s 477(2) of the Migration Act and that in this way it mistook its jurisdiction or exceeded it. Ground 2 must therefore fail.

53    The delay between the hearing and the delivery of judgment does not provide a basis in this case to impute relevant jurisdictional error to the primary judge, as the applicant at one stage suggested.

GROUND 3 – wrong test for jurisdictional error?

The parties’ submissions

54    In support of ground 3, the applicant submitted that the primary judge applied the wrong test in determining what constituted jurisdictional error. The applicant submitted that his Honour’s statements of principle in his reasons, particularly at [62] and [65(c)], was too narrow; ignored decisions such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 and Minister for Immigration and Border Protection v MZYTS [2013] FCA 114; 230 FCR 431; and reflected a misunderstanding of the applicable law. The applicant contended that this Court should infer that these statements of principle were material to the outcome of the case and, in particular, affected his Honour’s appraisal of the applicant’s proposed fourth ground. This ground was that “the Tribunal failed to give proper genuine and realistic consideration to the whole of the applicant’s claim by failing to consider whether the applicant had a well-founded fear of suffering serious harm in Zimbabwe in the foreseeable future because she is a supporter of the MDC and as a female under 30 years is eligible for [a particular membership]”.

55    The Minister submitted that the primary judge’s summary of the law in his reasons at [62]-[65] had to be read in the context of the proposed judicial review application and, in that context, a “detailed exegesis on the nuances of jurisdictional error” was unnecessary. In any event, the Minister submitted the applicant has not identified anything in his Honour’s reasons that indicated that he erred in applying the law to the material before him in determining whether the applicant had raised a sufficiently arguable case to justify the extension of time the applicant sought.

Consideration – Ground 3

56    As may be seen from the earlier discussion at [47] above, I accept that paragraphs [62]-[65] must be considered together. In these paragraphs, the primary judge outlined the circumstances in which the Tribunal’s decision was reviewable, the duty of the Tribunal to consider the applicant’s claims as made and “clearly articulated, or clearly discernible from the claim made”, the nature of judicial review and the applicable principles. This outline was plainly not intended to be exhaustive; rather, it was broadly related to the applicant’s proposed judicial review grounds and, particularly, to proposed ground 4. As will have been seen, this was essentially “a failure to consider a claim ground”. The duty of the Tribunal in this regard was specifically addressed by his Honour at [63]-[64] of his reasons. One may readily infer that his Honour approached this ground in conformity with these paragraphs.

57    There was no suggested or readily discernible error in [63]-[64]. I would not therefore conclude that there was error of the kind alleged by the applicant in ground 3 of the application made to this Court.

58    In the course of argument on this ground at the hearing, a question arose as to the submissions addressed to his Honour in the Federal Circuit Court. Having now read those submissions, I would not reach a different conclusion.

59    Ground 3 is therefore not made out.

GROUND 5 – Minister’s prejudice?

The parties’ submissions

60    Under ground 5, the applicant contended that the primary judge was plainly wrong to find that the Minister would suffer prejudice if the extension of time were granted. The applicant claimed that this error amounted to either a denial of natural justice or taking into account a consideration that the primary judge ought not to have done in the exercise of the discretion under s 477(2) of the Migration Act.

61    The applicant submitted that the office held by the Minister could not be prejudiced in the way his Honour suggested and that, by referring to the Minister’s entitlement to the “fruits of the litigation”, his Honour took into account a prohibited irrelevant consideration because there was no “litigation” before the Tribunal and no “fruits” available to the Minister to enjoy from the Tribunal’s decision. The applicant contended that his Honour “misunderstood the nature of the issues at play” and that this affected his view that the Minister suffered prejudice by the grant of an extension of time.

62    The Minister submitted that when the primary judge accepted that there was prejudice to the Minister, his Honour was referring to prejudice in the sense of the Minister's unfulfilled expectation that the matter would not be litigated after the relevant time limit expired. The Minister accepted that ordinarily this ought to attract little weight in applying the test under s 477(2), but that it did not follow from this that there was jurisdictional error arising from his Honour’s reference to this consideration.

Consideration - Ground 5

63    Ground 5 focussed on [49]-[51] of the primary judge’s reasons. These paragraphs read as follows:

Prejudice to the Minister and impact upon the applicant

[49]    There must be some prejudice arising in this case from the fact that the Minister might rightfully have thought that the applicant’s right to review the Tribunal Decision was at an end by reason of the limitation period having expired. In conventional parlance, the Minister is prejudiced by reason of the fact that he was entitled to consider that the fruits of the litigation were his.

[50]    The impact on the applicant of a failure to extend time for making the application is arguably considerable if the applicant establishes an arguable case of jurisdictional error, because a failure by the Tribunal to properly determine the application to it according to law may, if there are valid grounds for granting a Protection Visa (which is matter for the Tribunal), expose the applicant to a risk of persecution in her home country. In this case, for reasons set out below, there is not an arguable, or sufficiently arguable, case of jurisdictional error in the Tribunal Decision, and therefore there is no prejudice to the applicant from a failure to extend time.

[51]    It follows that to the extent that there is prejudice to the Minister, and no prejudice to the applicant, this factor does not weigh in favour of an extension of time in which to file the Proposed Judicial Review Application.

(Emphasis added)

64    It can be accepted that, as the applicant submitted, the comments in these paragraphs explained his Honour’s subsequent conclusion that “[e]ven if the length of, and failure to explain, the delay were alone not enough to warrant the dismissal of the Extension of Time Application, the effect of a consideration of the other factors leads to the same result”, because, amongst other things, there was prejudice to the Minister: see reasons, [77(a)].

65    It can also be accepted that, for the reasons the applicant stated, the terms in which his Honour expressed himself were inapposite. Nonetheless, despite the concerns to which his Honour’s language gives rise, it seems to me that his Honour’s comments, when read in the context of his reasons as a whole, are best understood as recognising, in a somewhat clumsy way, that there is a public interest in the finality of administrative decision-making and that this is given effect in limiting the availability of the judicial review process by the time-bar in s 477(1) of the Migration Act. Furthermore, it does not appear that his Honour placed a great deal of weight on this factor; and this does not mean that his Honour failed to take account of other competing public interests, such as the need to maintain the lawfulness of administrative action. Rather, his Honour’s reference to the former and not to the latter interest reflected his conclusion that the applicant’s proposed judicial review application lacked any prospect of success. After referring to the prejudice to the Minister, the primary judge not only referred to the absence of public interest in the matter generally but also to “the failure of the applicant to make out any proposed ground of review which has arguable merit”, concluding that this “effectively means that such an application would have no prospects of success, and the Court should not therefore extend time”. His Honour’s reference at [51] to there being “no prejudice to the applicant” was no doubt intended to be a reference to this conclusion.

66    Also relevant to his Honour’s consideration was the circumstance that the applicant was unable to appeal from his decision on the applicant’s extension of time application. It may be reasonably inferred that his Honour considered that this matter was sufficiently addressed in his conclusion that the applicant’s proposed judicial review application had no prospects of success. This inference is strengthened by the fact that his Honour was clearly aware of the statutory context attending the discretion in s 477(2). While the primary judge did not expressly refer to this matter, I am not persuaded that his Honour failed to take this consideration into account in declining to exercise the discretion to extend time.

67    For the above reasons, ground 5 is not made out.

DISPOSITION

68    In the course of the hearing, I also expressed some concern about some comments of the primary judge about the applicant’s delay. These comments did not form the basis of any proposed ground of review, however, and delay-related issues were not the subject of any detailed argument. Whether or not they might disclose jurisdictional error in the decision of the Federal Circuit Court was not explored. In the circumstances, it does not seem to me appropriate to explore these issues further.

69    For the foregoing reasons, the applicant’s judicial review application should be dismissed, with costs.

Associate:

Dated:    24 October 2018