FEDERAL COURT OF AUSTRALIA

ADN18 v Minister for Home Affairs [2018] FCA 1677

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 26 June 2018 be dismissed.

2.    The applicant 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

GRIFFITHS J:

1    The applicant seeks judicial review under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) in respect of a decision of the Federal Circuit Court of Australia (FCCA) which refused his application for an extension of time under s 477 of the Migration Act 1958 (Cth) (the Act). The FCCA’s decision is reported as ADN18 v Minister for Home Affairs [2018] FCCA 1421.

Summary of background matters

2    The applicant is a citizen of Sri Lanka and is a Hindu Tamil from the Jaffna District in the Northern Province. He claimed to fear harm by reason of his Tamil ethnicity, his status as a returnee to Sri Lanka, a court case which was allegedly brought against him in Sri Lanka because he was suspected by the CID of being a member of the LTTE, his illegal departure from Sri Lanka, the instability of his village and his claim that he could not relocate as he would need to register with the relevant authorities.

3    On 20 January 2017, the Minister’s delegate refused to grant the applicant a protection visa. His application was automatically referred to the Immigration Assessment Authority (IAA) which, on 3 November 2017, affirmed the delegate’s decision.

4    The decision was made against the background of the applicant having provided submissions to the IAA on 11 February 2017 in support of his case. The IAA had regard to that part of the document which it found to have the character of submissions. It also identified “new information” in the document as defined in s 473DC of the Act, which information had not been before the delegate even though extracts pre-dated the delegate’s decision. The IAA found that the applicant had not explained why this material could not have been provided earlier or why it should be regarded as credible personal information. The IAA concluded that it was not satisfied that there were exceptional circumstances to justify considering the new information under s 473DD of the Act. It is well to set out [6] and [7] of the IAA’s decision record on these matters, noting that these paragraphs are central to the appeal:

6.    All of the above information was not before the delegate and is therefore new information. The information relates to general country conditions in Sri Lanka. The new information all pre-dates the delegate's decision and no explanation has been provided as to why it could not have been provided before the decision was made or why it may be regarded as credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. The applicant has not satisfied me as to the matters set out in s.473DD(b) of the Act and I am therefore unable to consider the information; nor am I satisfied there are exceptional circumstances which justify considering it.

7.    The submission states that because the applicant was a money lender he could be imputed to be wealthy and there were risks involved in such activity which were not assessed by the delegate. There is no indication in the material before me that the applicant fears harm on the basis of his money lending and/or a perception that he might be wealthy, and in his oral evidence (SHEV interview) the applicant did not raise any claim around his activities as a money lender. I find this to be new information. In his SHEV interview he described in general terms one or more transactions in which people who borrowed, money from him wouldn't repay him and would blackmail him by saying they would report him to the CID; they thereby avoided paying him and he lost 35-40 lakh. He did not provide any detail around these incidents and the broader suggestion that he feared harm because of his role as a money lender or a perception that he was wealthy was not made, nor did he claim that he was, in fact, wealthy or that he would be perceived to be. The new information all pre-dates the delegate's decision and no explanation has been provided as to why it could not have been provided before the decision was made or why it may be regarded as credible personal information which was not previously known and had it been known, may have affected consideration of the applicant's claims. The applicant has not satisfied me as to the matters set out in s.473DD(b) of the Act. At the applicant's protection interview the applicant and his representative were advised of the limits on the IAA's ability to consider information not provided to the Department. They were also advised that the delegate would have regard to any information which was provided before a decision was made. I am not satisfied there are exceptional circumstances which justify considering the new information and have not considered this matter further.

5    The IAA said that it had significant concerns about the applicant’s credibility, with particular reference to the way in which his claims for protection had developed at almost every stage of the process. It found that the applicant had fabricated, exaggerated or embellished incidents to enhance his profile as a person to whom Australia might owe protection obligations.

6    The IAA did accept that on one occasion in October 2009 the applicant was detained by the Sri Lankan Army (SLA) and that, three months later, he was taken into custody and asked to identify people from photographs. It rejected claims by the applicant that he was detained on other occasions.

7    The applicant’s claims in relation to his brother were rejected by the IAA as fabrications.

8    The IAA was not satisfied that the applicant was at risk of harm if returned to Sri Lanka because of his Tamil ethnicity, imputed political opinion, age, gender, being from the north, his family associations or because of his previous contact with the authorities. In making these findings, the IAA found that the applicant had either fabricated or embellished aspects of his claims while he was in Australia, including by posting pro-LTTE material on his Facebook page (referring to s 5J(6) of the Act).

9    The IAA rejected those parts of the applicant’s claims that he was at risk of harm because of his illegal departure from Sri Lanka and being a failed asylum seeker.

10    The IAA rejected the applicant’s claim for protection under s 36(2)(aa). It found that the chance that the applicant would come to the attention of the Sri Lankan authorities on return as a result of the material he placed on his Facebook page to be remote. Similar findings were made in respect of the applicant’s attendance at commemoration events in Australia relating to post-conflict Tamil separatism.

The FCCA proceeding

11    The applicant required an extension of time under s 477 of the Act because he was 34 days late in filing his application for judicial review.

12    The FCCA found that the applicant did not provide a satisfactory explanation for the delay. It also found that there was no prejudice to the first respondent. The primary judge described “the material issue” as the merits of the proposed grounds.

13    The primary judge concluded that none of the three proposed grounds gave rise to a sufficiently arguable case to warrant an extension of time.

14    As to proposed ground 1, which claimed that the IAA had failed to consider a claim that was made out on the facts, namely that the applicant was a money lender, the primary judge described as correct the IAA’s finding at [7] of its decision record that no such claim fairly arose on the material before it. His Honour concluded that the ground lacked sufficient merit to warrant an extension of time.

15    As to proposed ground 2, which was related to ground 1 (see [21] below), the primary judge reiterated that no claim that the applicant was a money lender or feared extortion arose fairly on the material before the IAA. In any event, the primary judge found that the IAA did have an intellectual engagement with the submissions advanced by the applicant in relation to the money lending. The primary judge also said that the IAA was correct to characterise the applicant’s claims concerning alleged blackmail, being wealthy and at fear of extortion as constituting new information.

16    As to proposed ground 3, which related to the applicant’s claims concerning his Facebook posts and what might occur as the result of conduct of third parties, the primary judge said that the applicant had made no claim to fear harm due to the conduct of third parties and there was no obligation on the IAA to consider such a claim if it did not fairly arise on the material.

17    Thus, because of the inadequate explanation of the delay and the insufficient merits of each of the three proposed grounds, the primary judge concluded that he was not satisfied that it was necessary in the interests of the administration of justice to extend time under s 477 of the Act. It is notable that, in dismissing the application for an extension of time, the primary judge made express reference to the core concept in s 477 of the Act as to whether it was necessary in the interests of the administration of justice to extend time. This is a clear reference to the statutory text in s 477(2).

The proceeding in this Court

18    The applicant’s originating application contained the following two grounds:

Ground 1

The Federal Circuit Court Judge committed jurisdictional error in that he did not properly consider the proposed grounds of review.

Ground 2

The Federal Circuit Court Judge committed jurisdictional error because his assessment that the proposed grounds did not have arguable merit was so unreasonable and inconsistent with established legal principles.

The parties’ submissions summarised

19    In his outline of written submissions, the applicant submitted that the relevant question was whether the primary judge erred in his appraisal of the merits of the proposed grounds and whether any such error was jurisdictional.

20    The applicant submitted that jurisdictional error will occur if the primary judge misapprehends the merits of the proposed application for judicial review, such that “he has constructively failed to take those merits into account as a matter of significant weight in favour of an extension of time”, citing BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 (BTK16) at [29] per Perry J. It is desirable to set out that paragraph from her Honour’s reasons for judgment, which does not support the applicant’s submission:

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.

21    In his written outline of submissions in this proceeding, the applicant stated that “the relevant ground in the proposed application for judicial review is ground 2”. This is a reference to proposed ground 2 in the amended application before the FCCA, which was as follows (without alteration):

Ground 2

The Authority’s reasoning at [CB 463, 7] to not consider submissions put to the Authority is affected with legal error.

Particulars

1.    The Authority states at [CB 463,7] that the applicant "in his SHEV interview he described in general terms one or more transactions in which people who borrowed money from him wouldn’t repay him and would blackmail him by saying they would report him to the CID they thereby avoided paying him and he lost 35-40 lakhs”.

2.    What the Applicant raised during the SHEV interview described by the Authority at (CB 463, 7] was that.

  2.1     he lent money to one or more persons and

2.2     that persons who he lent money blackmailed him saying they will report him to the CID and

  2.3     that he lost 35 - 40 lakhs

3.    On this basis it is clear that the Applicant squarely raised the claim before the delegate that he was a money lender who had been blackmailed (synonyms of blackmailed are being "threatened'' / "extort'') by those who borrowed money from him.

4.    The IAA fell into error at [CB 463, 7] when it inferred that the Applicant did not satisfy the Authority “as to the matters set out in s.473DD(b) of the Act because the claim referred at 2 above was raised at the SHEV interview, therefore the information in the submission [CB454, 2] was not new information in its entirety.

22    The applicant pointed to [27] of the primary judge’s reasons for judgment in which his Honour stated that “the proposition that the claim advanced was not new information within s.473DD of the Act is also lacking in merit”. His Honour then added that the IAA was correct “in identifying alleged blackmail, being wealthy and alleged fear of extortion as being new information”.

23    The applicant contended that the primary judge’s reference at [27] of his reasons for judgment to the “claim as advanced by the applicant” was to the applicant’s claim that he was a money lender and feared extortion. The applicant submitted that, at [26] of the reasons for judgment, the primary judge had found that no such claim squarely arose from the material before the delegate. His Honour said there that the IAA was correct to find in [7] of his decision record, in determining “whether the new information being the new claim met the criteria under s.473DD(b)”, that no such claim fairly arose on the material before the IAA.

24    After referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 (M174) and the plurality’s definition of “information” as having the ordinary meaning of “a communication of knowledge about some particular fact, subject or event”, the applicant submitted that the primary judge’s approach disclosed jurisdictional error in the following two ways:

(a)    if the IAA was wrong as a matter of fact and the applicant’s claims relating to him being a money lender or a wealthy person was raised before the delegate, then there would be “new information” within the meaning of s 473DD and the IAA would have made a jurisdictional error in applying that provision, which would also have infected the primary judge’s refusal to extend time. This submission depended upon acceptance of the applicant’s argument that, as argued below, there was sufficient material before the delegate to consider that the claim had been raised; and

(b)    even if the IAA correctly found that these claims were not raised before the delegate, there would still be no “new information” within the meaning of s 473DD. That is because, where the underlying evidence remains the same, it cannot be “new information” for “a submission to be made that the underlying evidence, on a basis different from that advanced before the Delegate, nonetheless affords a basis for a protection visa”. This would merely be a new submission arising out of existing evidence, and not “new information” under s 473DD of the Act.

25    The Minister’s submissions may be summarised as follows. As to the matters summarised in [24(a)] above, the Minister submitted that the IAA gave detailed reasons as to why the applicant’s claims concerning his role as a money lender amounted to new information. The IAA appreciated that, in his SHEV interview, the applicant had “in general terms” described one or more transactions in which people who had borrowed money from him would not repay him and would blackmail him to avoid repaying their debts. However, the Minister submitted that it was open to the IAA to find as it did that the applicant did not claim before the delegate that he feared harm as a money lender or was, in fact, wealthy or that he would be perceived to be wealthy. Thus, the Minister defended the IAA’s finding that the claim relating to the applicant’s role as a money lender in the submission made to the IAA constituted a new claim and was “new information”, as defined in s 473DC(1).

26    The Minister then submitted that the real question for the Court is whether the primary judge fell into jurisdictional error in his reasoning and conclusion concerning the matter raised in [24(a)] above. The Minister submitted that the primary judge was not required to engage in an in-depth analysis of the merits of the proposed second ground of judicial review below. The Minister drew attention to the narrower operation of the notion of jurisdictional error in respect of an inferior court, as opposed to an administrative decision-maker, as emphasised by the High Court in Craig v South Australia [1995] HCA 58; 184 CLR 163 (Craig) at 179-180 (see also the relevant observations in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 (SZUWX) at [10] per Bromwich J with whom Allsop CJ and Flick J agreed).

27    Accordingly, the Minister submitted that the applicant’s first argument did not establish jurisdictional error on the part of the primary judge.

28    As to the second matter summarised at [24(b) above], the Minister submitted that the argument now made by the applicant had not been advanced below, consequently it could not be said that the primary judge fell into jurisdictional error in refusing to grant an extension of time.

29    In any event, the Minister submitted that the argument failed on its merits. The Minister described the essence of the argument as being that a new claim raised by an applicant in a submission to the IAA is not, or is not capable of being, new information if it relies upon the same “evidence” that was before the delegate. The Minister submitted that the applicant’s approach involved too narrow a meaning being given to the word “information” in ss 473DC(1) and 473DD and was inconsistent with the High Court’s description in M174 at [24] of the word “information” having its ordinary meaning, being a communication of knowledge about some particular fact, subject or event.

30    The Minister also pointed out that the applicant’s argument had been considered and rejected by McKerracher J in CVK16 v Minister for Immigration and Border Protection [2017] FCA 1434 (CVK16) at [50] where the question arose whether there is an impediment on the IAA considering new claims which are based on the same existing information that was before the delegate:

50.    Such a submission for the appellant might well have force in a different forum and thus does give pause for consideration. In courts of law, if all the same information or evidence is relied upon before the reviewing court and there is otherwise no prejudice, a different legal consequence could be advanced and considered. However, the Migration Act dictates a limited function of the Authority. As the primary judge observed (at [44]), if such a submission were accepted, it would disregard what is plainly Parliament’s intended interpretation of s 473DC and s 473DD. In my view, it is plain that Parliament’s intention in enacting these provisions was to restrict applicants to material put before the delegate, save in exceptional circumstances. The provisions must be read in their context. That context includes these factors:

(a)    The Authority does not stand in the shoes of the original decision maker in the same way as the AAT. It cannot substitute its own decision; it can only affirm the decision or remit the case for further consideration.

(b)    The Authority’s function is not to deal with the applications for review but to review adverse decisions referred to it by the Department.

Consideration and determination of the application

31    As the applicant’s originating application revealed, he appreciated that, for his judicial review challenge in this Court to succeed, he had to establish that the primary judge fell into jurisdictional error in refusing his application for an extension of time. As set out above, the two claimed jurisdictional errors are as follows:

(a)    the FCCA committed jurisdictional error in not properly considering the proposed grounds of review (ground 1); and

(b)    the FCCA committed jurisdictional error because the primary judge’s assessment that the proposed grounds did not have arguable merit was so unreasonable and inconsistent with established legal principles (ground 2).

32    It is well to remember that not only must the applicant establish jurisdictional error, the doctrine of jurisdictional error also operates differently in respect of an inferior court than is the case with an administrative decision-maker, as was emphasised in Craig. In particular, the plurality in Craig stated at 179-180 that, in contrast with the position relating 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.

33    Applying these principles, ground 1 necessarily fails. As initially presented by his counsel (see [24(a)] above), this ground turns on whether the primary judge erred in not accepting the applicant’s contention that the IAA erred in finding that his claims relating to him being a money lender or a wealthy person had in fact been raised before the delegate. This contention raised a question of fact which the primary judge determined adversely to the applicant. Even if the primary judge erred, in the way contended by the applicant, any such error would not be a jurisdictional error, having regard to Craig and SZUWX.

34    In oral address, the applicant’s counsel contended that, in determining an application for an extension of time under s 477 of the Act, it was a mandatory relevant consideration for the primary judge to assess the strength of the proposed grounds of review. When asked by the Court to identify any authority in support of that proposition, counsel referred to BTK16 at [29] per Perry J, MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [68] per Mortimer J, and AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 (AYX15) at [9(5)] per Perry J (note that AYX15 concerned the power of the Federal Court to extend time to enable an appeal to be brought from the FCCA, which is a different statutory regime to an application under s 477 of the Act which is the case here). These cases do not support the applicant’s contention regarding mandatory relevant considerations. The passage from BTK16 says nothing about whether or not an assessment of the strength of proposed grounds of review is a mandatory relevant consideration. The passage from MZABP also addresses a different issue, namely whether jurisdictional error would occur if in reviewing an application for an extension of time the primary judge proceeded on the basis that time should only be extended if the primary judge is persuaded that a ground of review would succeed. Finally, in the passage referred to AYX15, Perry J simply said that the merits of a proposed appeal are properly to be taken into account in determining whether to grant an extension of time. That is uncontroversial, but it falls short of stating that such an assessment is a mandatory relevant consideration when dealing with an application under s 477 of the Act.

35    The applicant’s contention also sits uncomfortably with statements made in SZUWX at [11]-[12] per Bromwich J (with whom Allsop CJ and Flick J agreed). Those statements were directed to the issue whether or not lack of prejudice to the Minister was a mandatory relevant consideration, but they apply equally to the assessment of the prospects of proposed grounds of review. That is not to say that such an assessment is not relevant; it plainly is. But the applicant put his case much higher, by reference to the assessment being a mandatory relevant consideration (see the observations in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [61]-[64] per Mortimer J). In any event, in the exercise of his jurisdiction, the primary judge did assess the strength of the three proposed grounds of review. The applicant’s disagreement is with the merits of that assessment.

36    In respect of ground 2 as pleaded in the originating application before this Court, counsel made no submissions nor pointed to any authority which supported the contention that the primary judge’s assessment that the proposed grounds did not have arguable merit was unreasonable and inconsistent with established legal principles. This ground must fail.

37    As to the second argument described at [24(b)] above, this argument turns on the meaning and application of s 473DD, the terms of which are:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

38    The short answer to this argument is that it necessarily fails because it raises a contention which was not put to the primary judge who, therefore, cannot have committed any jurisdictional error in relation to it.

39    The applicant sought to distinguish what McKerracher J said in CVK16 at [50] on the basis that this passage differed from what was said subsequently in M174 at [17] and [24]. There is no inconsistency between what McKerracher J said at [50] and these subsequent observations of the plurality in the High Court. To the extent that the applicant contended that the relevant passage in CVK16 was plainly wrong, I respectfully disagree. Justice McKerracher’s analysis at [50] is plainly correct, for the reasons given by his Honour.

40    Accordingly, I accept the Minister’s alternative contentions as summarised in [29] and [30] above.

Conclusion

41    For these reasons, the originating application will be dismissed, with costs.

Associate:

Dated:    7 November 2018