FEDERAL COURT OF AUSTRALIA

DUS17 v Minister for Home Affairs [2018] FCA 2120

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for review of a migration decision be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The applicant pay the first respondent’s costs fixed in the sum of $2,300.

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

REASONS FOR JUDGMENT

RARES J:

1    This is an application seeking Constitutional writ relief against a decision of the Federal Circuit Court of Australia made on 21 September 2018 refusing the applicant an extension of the 35 day period by about four months in which he could apply, under s 477 of the Migration Act 1958 (Cth), for a review of the decision of the Immigration Assessment Authority given on 14 March 2017 to affirm the Minister’s delegate’s decision not to grant the applicant a protection visa.

Background

2    The applicant filed his extension application on 24 August 2017. In his affidavit in support of the application, affirmed on 22 August 2017, he said that he had not lodged the application for judicial review in time because he did not have sufficient money or the language skills to communicate with legal support people. He said that he did not agree with the Authority’s decision, as he believed that it was unfair and had not taken into account the circumstances of his case.

The Authority’s decision

3    In essence, the Authority accepted that the applicant was a Shia Muslim and a citizen of Iraq who had arrived in Australia on 14 March 2013. On 5 April 2016, he lodged an application for a protection visa. On 1 February 2017, the delegate refused to grant the visa.

4    Both the delegate and the Authority accepted that the applicant had witnessed the shooting of his friend in March 2010, the applicant had given evidence in support of the prosecution’s case at the trial of his friend’s murderer and the outcome of the trial in May 2010 had been a conviction of the murderer, who was then sentenced to 25 years in prison.

5    The Authority said that the main point in issue for its decision was whether the applicant was, and remained, the subject of a threat or threats from the family of the murderer. It accepted that, prior to the trial, both the applicant and another friend, who had witnessed the murder, had been threatened by members of the murderer’s family if they testified against him. It found that, however, both of them had testified and no harm had come to them. It rejected the applicant’s more recent claim that the murderer’s family had visited him two years later, in 2012, to apprise him that the murderer had brought an appeal. The Authority found that it was not plausible that the murderer’s family would expect that an appeal against sentence would be likely to be successful only two years after the original sentence. It found that there was no benefit to that family from them making any further threats to the applicant after he had testified at the trial, since, if the threats were carried out, another member of the family would be charged with murder.

6    For those reasons, the Authority was not satisfied that the applicant had been the subject of any further threats or actions from the murderer’s family after he gave evidence at the trial in May 2010 or that the other friend, who was a witness to the murder, had been shot by the murderer’s brothers in February 2013, as the applicant had claimed to the Authority. It did not accept that the applicant would be in any danger of harm from the murderer’s family, the murderer’s tribe or any militias associated with that tribe, should he return to his home city. It found that the applicant had continued to work in his home city and reside in the family home until February 2013 without coming to any harm from the murderer’s family or their associates. Therefore, the Authority was not satisfied that, in the future, there was a real chance that the threat made against the applicant in 2010 would be realised or converted into actions causing him serious or significant harm or that the threat itself amounted to serious harm. For that reason, it was not satisfied that the applicant was entitled to a protection visa on the basis of his claims on Refugees Convention grounds under s 36(2)(a) or for complementary protection under s 36(2)(aa).

The proceedings in the Federal Circuit Court

7    The applicant’s grounds in his application before the Federal Circuit Court were that, first, the Authority had failed to take into account a relevant consideration and had taken into account irrelevant considerations, namely, that the Authority had failed to take into account the tribal threats that the applicant would face were he to return to Iraq and that it had not assessed those threats, although it recognised that he had been threatened. He contended that it had committed a legal error in not considering and accepting country information that suggested that tribal laws were the dominant factor in Iraq. He also asserted that it had erred in concluding, without legal foundation, that nothing had happened in the two years after the initial threat because the absence of any targeting during that period of time did not mean that there was no real chance of persecution and, therefore, it failed to apply the correct test for the grant of a protection visa. Secondly, the Authority’s decision was unreasonable (but the applicant gave no particulars of how it was), and thirdly, the Authority had failed to take into account the complementary protection criteria.

8    The judge summarised and considered the Authority’s decision and the applicant’s arguments. His Honour noted that the applicant had explained from the bar table that he was without funds or income and could not pay lawyers to retrieve his file, which was the reason for his delay. His Honour said that he understood that the applicant might have had financial difficulties but that of itself was not a satisfactory reason for his delay.

9    Although the Minister had not identified any material prejudice if an extension of time were granted, his Honour concluded that the more material issue in the circumstances of the case was whether, on a preliminarily impressionistic level, there was sufficient merit in the grounds advanced by the applicant to make it necessary to grant an extension of time in the interests of the administration of justice under s 477(2)(b) of the Act. His Honour examined each of the grounds advanced in the application below.

10    The judge found that, in relation to the first ground, a fair reading of the Authority’s decision did not support the allegation that it had failed to take into account the applicant’s claim to fear harm from members of the tribe. That was because it had referred to his claim to fear harm from the tribe and militia and made findings adverse to the applicant on those issues. His Honour found that the particulars in the first ground also had no support in the Authority’s reasons because it, having accepted that the murderer’s family had threatened the applicant in 2010, rejected his claims of further threats thereafter. The judge found that, at an impressionistic level, those findings appeared to be open to the Authority and, therefore, the first ground lacked sufficient merit to warrant an extension under s 477(2)(b).

11    His Honour rejected the second ground of review, finding that the Authority’s reasons on their face, at an impressionistic level, reflected a compliance with the statutory regime in the conduct of the review and that it had given logical and rational reasons in support of the adverse findings that it made. He found that there was no apparent legal unreasonableness in process, conduct or outcome apparent on the face of the material before him and, therefore, the second ground also lacked sufficient merit to warrant an extension of time.

12    His Honour rejected the third ground on the basis that the Authority had, in fact, considered the complementary protection criteria and concluded that the applicant did not satisfy them. He said that the Authority was entitled to take into account the adverse findings it had made in considering the applicant’s Refugees Convention claims for protection in concluding that the complementary protection ground was also not made out and that, therefore, the third ground afforded no sufficient reason to warrant an extension of time.

13    The judge concluded that, in the circumstances, having found that the explanation for the applicant’s delay in filing and seeking to challenge the Authority’s decision was not satisfactory, and where there were insufficient merits in respect of the proposed grounds in his application, he was not satisfied that it was necessary in the interests of the administration of justice to extend time under s 477 and dismissed the application with costs.

This application

14    On 24 October 2018, the applicant filed his originating application in this Court, seeking an order for certiorari quashing the Federal Circuit Court’s decision and an order for mandamus referring the matter back to that Court to be determined according to law. The ground of his application was that his Honour erred in finding there was no jurisdictional error in the decision of the Authority. But the applicant stated in that ground, as was the case, that his Honour’s reasons, having been delivered orally, had not been published at the time of the filing of the originating application. The second ground promised that the applicant would particularise his grounds once the judge’s reasons were published.

15    The applicant affirmed an affidavit dated 17 October 2018 that simply said that he disagreed with the findings of his Honour for not granting an extension of time because of legal errors that the judge made.

16    On 16 November 2018, the matter was listed before me for the first case management conference, the day after his Honour’s written reasons were published. However, the applicant did not appear on that occasion and I ordered that, unless he filed and served an affidavit explaining the non-appearance on or before 23 November 2018, the proceeding would be dismissed with effect from 24 November 2018.

17    The applicant filed an affidavit explaining his non-appearance on 16 November 2018 and the matter came before me for case management on 30 November 2018. On that occasion I ordered the Minister to file written submissions and an application book on or before 4 December 2018, and the applicant to file and serve written submissions, any further evidence on which he proposed to rely and any amended originating application on or before 13 December 2018, in the expectation that the applicant might wish to revise matters. I originally set the matter down for hearing on 18 December 2018 but, on 11 December 2018, the parties agreed (on the basis that the applicant had instructed a lawyer who was not available to appear on 18 December 2018) that the hearing would be listed today instead.

18    The applicant appeared today and argued his case in person (he did not raise any issue about the non appearance of the lawyer for whose convenience I had fixed the hearing today). I note that on 13 December 2018 the lawyer wrote to the Court saying that she had ceased to act for the applicant.

19    He asked initially, today, for an adjournment because he said he was seeking legal representation, had no income, and needed more time to formulate his case and to raise money with which to engage lawyers. He said he was late in filing in the Federal Circuit Court because he owed his solicitor money. He said, understandably, that he found it difficult because of his lack of English and the technical nature of the proceeding to formulate proper grounds himself and needed a lawyer to do so. In essence, he stated that his case had merit because he had been threatened and would be harmed were he to return to Iraq. He claimed that the Authority erred in failing to be satisfied that a second threat had been made in 2012 and that his life was in danger were he to return to Iraq.

Consideration

20    Section 477 provides that:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (emphasis added)

…

21    Importantly, s 476A(3)(a) provides that despite s 24 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), no appeal lies to this Court from a decision of the Federal Circuit Court that “makes an order or refuses to make an order under subsection 477(2)”. That section reflects a legislative choice by the Parliament to confine ordinary appellate rights in respect of discretionary decisions by the Federal Circuit Court to extend, or to refuse to extend, time in which an application for review of a migration decision by, relevantly, the Authority, can be made outside of the 35-day period prescribed under s 477(1). Here, because of s 476A(3), the applicant, had no right to appeal, or to seek leave to appeal to this Court, from the Federal Circuit Court’s decision. Thus he has sought that constitutional writs issue, under s 39B of the Judiciary Act 1903 (Cth), to set that Court’s decision aside. The applicant had a right to seek that relief, and if refused on a final basis, would have a right to appeal to a Full Court under s 24(1)(a) of the Federal Court Act. However, in determining how this Court should proceed in a matter, s 37M(1) of the Federal Court Act requires that the Court act to achieve “…the overarching purpose of the civil practice and procedure provisions … to facilitate the just resolution of disputes … according to law … and as quickly, inexpensively and efficiently as possible”. Under s 37M(2):

…the overarching purpose includes the … objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload…

22    Rule 1.31 of the Federal Court Rules 2011 provides that the Court, in making any order in a proceeding, may have regard to the nature and complexity of the proceeding, and may deal with it in a manner that is proportionate to its nature and complexity. Rule 1.32 provides that “[t]he Court may make any order that it considers appropriate in the interests of justice”.

23    And r 1.40 provides that:

The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

(a)    on its own initiative; or

(b)    on the application of a party…

24    The Court has power, under s 31A(2) of the Federal Court Act, to give judgment for a party on the ground that the applicant has no reasonable prospect of successfully prosecuting the proceeding. The Court has an identical power under r 26.01 where a party applies to it for such an order and can also do so exercising either or both a power under r 26.01 or its inherent power on the basis that the proceeding is an abuse of the process of the Court.

25    Were I to decide this matter on a final basis, the applicant would have a right of appeal under s 24(1)(a) of the Federal Court Act because it would be a final judgment of a judge of the Court. However, s 24(1A) provides that an appeal cannot be brought from an interlocutory judgment, unless the Court or a judge gives leave.

26    Section 24(1D)(b) expressly provides that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A). Moreover, an order dismissing a proceeding as an abuse of process is interlocutory: Re Luck (2003) 195 ALR 1 at 4 [10], per McHugh ACJ, Gummow and Heydon JJ.

27    The Minister did not initially make any application for summary dismissal, and no affidavit as required by r 26.01(2) has been filed or served at least 14 days before today, indeed at all.

28    Today, I raised with the parties whether an appropriate course was for me to give judgment for the Minister under s 31A(2) of the Federal Court Act if I were satisfied that the applicant had no reasonable prospect of successfully prosecuting the proceeding for the purposes of ensuring the efficient management of the Court’s business, including its appellate business, and having regard to the intention of the Parliament to exclude appeals from decisions under s 477.

29    Prior to the enactment of provisions like s 31A and the current form of r 26.01(1)(a), Barwick CJ discussed the principles on which a court could summarily dismiss proceedings either in its inherent jurisdiction or under rules of Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. Barwick CJ noted that, as has been emphasised also in cases involving s 31A (see Spencer v Commonwealth (2010) 241 CLR 118), the power to summarily dismiss, whether under the inherent power, rules of Court or provisions such as s 31A, must be exercised with great caution. His Honour quoted with approval what Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, namely:

But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

30    In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:

Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [See, e.g., Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210 at pp. 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964), 112 C.L.R. 125 at pp. 128-130] … The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police [[1982] A.C. 529 at p. 536] as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. (emphasis added)

31    In CKW15 v Federal Circuit Court of Australia [2018] FCA 2010 at [35]-[42], I discussed, in a slightly different context, the principles relevant to the grant of Constitutional writ relief against the Federal Circuit Court in cases involving its exercise of its discretion, under s 477(2), to refuse or grant an extension of the 35 day period. In particular, I adopted what McHugh J (whose decision has been followed by Full Courts of this Court) had said in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496 [15]-[17] in refusing an extension of time in which to seek a writ of certiorari under the then High Court Rules (see also Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4], per Brennan CJ and McHugh J; 539-542 [66], per Kirby J). McHugh J referred with approval to the statement of the Judicial Committee of the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, and continued:

“[t]he rules of court must prima facie be obeyed”… In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.

An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned. (emphasis added)

32    Here, the applicant must establish that the Federal Circuit Court judge made a jurisdictional error in exercising his discretion. Because it is a Court, the Federal Circuit Court has power to err in its fact-finding within its jurisdiction. As I pointed out in CKW15 [2018] FCA 2010 at [42]:

… ordinarily, a court has power to err within jurisdiction in its fact-finding. Here his Honour was required to make an evaluative judgment as to whether he was satisfied that it was necessary in the interests of the administration of justice to order an extension of time, based on the applicant specifying why that should be so.

33    Having carefully read the reasons of the Authority and of the judge, I am unable to discern any basis on which the applicant could possibly succeed in arguing that his Honour made a jurisdictional error in his decision not to grant the applicant an extension of about four months in which to bring proceedings after the 35 day period in s 477(1) had expired. Such a judgment classically involves the exercise of a judicial discretion that could only be interfered with on the grounds identified by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505.

34    In the present case, his Honour carefully considered the applicant’s arguments and gave reasons that appear to me correctly to have evaluated them in finding that none of them supported the grounds on which he claimed to be entitled to the extension of time. His Honour was also entitled to take the view that the applicant’s inability to pay lawyers to retrieve his file was not a satisfactory reason for his delay: cf. Ex parte Marks 177 ALR at 496 [17].

35    While I am satisfied that I would be justified to dismiss this proceeding on a final basis, in my opinion, the appropriate course to take for the reasons I have given, is that I should do so summarily under s 31A(2). That is because the applicant has no reasonable prospect of successfully prosecuting the proceeding. The legislative intention in s 476(3)(a) to prevent this Court being burdened with appeals from decisions under s 477 would be frustrated if an applicant not only could bring a claim for Constitutional writ relief in the original jurisdiction of this Court against a decision of the Federal Circuit Court under s 477, but then would have a right to appeal to a Full Court of this Court in circumstances where, ordinarily, under s 25(1AA)(a) of the Federal Court Act, an appeal from the Federal Circuit Court would be heard by a single judge. The multiplication of proceedings that the Parliament has intended be confined, should not be encouraged even though the applicant has followed a course that is otherwise open to him: cf. Walton 177 CLR at 393.

Conclusion

36    For these reasons, I am satisfied that the applicant’s case is foredoomed to fail. It therefore constitutes an abuse of the process of the Court and should be dismissed summarily under s 31A(2) of the Federal Court Act, because it has no reasonable prospect of succeeding: Walton 177 CLR at 393. I will order that the applicant pay the first respondent’s costs fixed in the sum of $2,300.

Associate:

Dated:    7 February 2019