FEDERAL COURT OF AUSTRALIA
EWX17 v Minister for Immigration and Border Protection [2019] FCA 235
Date of hearing: | 13 February 2019 |
Registry: | New South Wales |
Division: | General Division |
National Practice Area: | Administrative and Constitutional Law and Human Rights |
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Category: | Catchwords |
Number of paragraphs: | 18 |
Counsel for the Applicant: | Mr O Jones |
Counsel for the First Respondent: | Mr L Leerdam of DLA Piper Australia |
Counsel for the Second Respondent | The Second Respondent filed a submitting notice save as to costs |
Counsel for the Third Respondent: | The Third Respondent made no appearance and filed no submitting notice |
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave to rely upon an amended originating application be refused.
2. The originating application be dismissed.
3. The applicant pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMWICH J:
1 The applicant seeks judicial review of orders made by a judge of the Federal Circuit Court of Australia, under s 39B of the Judiciary Act 1903 (Cth). His Honour dismissed an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to bring an application for judicial review of a decision of the Immigration Assessment Authority. Under s 476A(3)(a) of the Migration Act there is no right of appeal from that decision. Hence the applicant’s resort to s 39B.
2 The limits on judicial review of a decision to refuse an extension of time under s 477(2) are formidable. In short, the applicant must demonstrate jurisdictional error on the part of the primary judge, because that is what s 39B requires when judicial review is sought of a judicial decision and there is no assertion of non-jurisdictional error on the face of the record: see Craig v South Australia (1995) 184 CLR 163 at 177-180; Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [2]-[11], especially [10]; DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37]-[42]. Examples of what would constitute jurisdictional error on the part of a Federal Circuit Court judge identified in a number of first instance decisions in this Court help to illustrate the point, such as:
(1) requiring that success on the ground of review be demonstrated when applying the statutory test in s 477(2) of the “interests of the administration of justice”, because that would entail a fundamental misunderstanding or misapprehension of the nature of the discretionary power: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [68]; and
(2) failure to afford procedural fairness in the hearing and determination of the application: CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400 at [24].
3 The applicant represented himself before the primary judge. In his reasons, his Honour outlined the nature of the applicant’s claim for a protection visa, considered the reasons given for the application being filed late, and accepted those reasons as being satisfactory so as to satisfy the first limb of s 477(2). His Honour then summarised the Authority’s decision in some detail, considered the grounds of review in the judicial application sought to be relied upon, and heard from the applicant.
4 The primary judge was not satisfied that either the pleaded ground sought to be relied upon, or anything raised orally by the applicant, identified any sufficiently arguable case of jurisdictional error to make an extension of time “necessary in the interests of the administration of justice”, being the statutory test in s 477(2)(b). The applicant must therefore establish that his Honour, in making his decision upon that basis, acted outside his power or authority, or otherwise failed to perform, or incorrectly performed, the task entrusted to him in relation to the application for an extension of time. That is, the applicant must demonstrate a fundamental failure by his Honour to perform the jurisdictional task. Demonstrating mere error of fact or law will not suffice. Nor will it suffice to identify some further step that could have been taken, but did not have to be.
5 The applicant expressly abandons all of the grounds in the originating application filed on 4 October 2018. Instead, he seeks leave to file an amended originating application with the following grounds as set out in his written submissions:
The primary judge made a jurisdictional error by denying the Applicant, who was self-represented, procedural fairness as the primary judge did not consider whether, apart from the Applicant’s suggested grounds, the Authority had made a jurisdictional error, in circumstances where the Authority had made a finding of fact which was legally unreasonable in the sense of lacking an evident and intelligible justification, being the conclusion of the Authority at paragraph 16 of its decision that there were discrepancies in the Applicant's accounts of being detained and interrogated by the CID.
In the alternative, the primary judge made a jurisdictional error of legal unreasonableness or failing to give proper, genuine and realistic consideration to the Applicant’s case by dismissing the application for an extension of time in circumstances where his Honour had accepted the explanation for the delay and lack of prejudice and the Authority had made a jurisdictional error of legal unreasonableness by making a finding of fact which lacked an evident and intelligible justification being its perception at paragraph 16 of its decision that there were discrepancies in the Applicant's accounts of being detained and interrogated by the CID.
6 The Minister opposes the grant of leave. He was right to do so. The grounds are misconceived and should therefore not be entertained. For the reasons that follow, the application for judicial review must be dismissed with costs.
7 The applicant via his counsel accepted that for his application to succeed on the grounds he wished to advance, three hurdles had to be overcome. The applicant had to:
(1) be able to find jurisdictional error in the primary judge’s refusal of an extension of time by reason of his Honour not going beyond what was advanced in support of the application for an extension of time, including the grounds of review sought to be relied upon, and in particular by delving into the detail in ways that were not mentioned before his Honour;
(2) establish that failing to delve into those matters constituted a jurisdictional error; and
(3) establish antecedent jurisdictional error on the part of the Authority.
8 Unfortunately for the applicant, he must fall at all three hurdles. Each may be adequately considered in a concise way.
First and second hurdles
9 As to the first two hurdles, the suggestion that there was any jurisdictional obligation on the part of the primary judge to go beyond what was raised before his Honour, and that failure to do so is capable of constituting a jurisdictional error, are both without foundation. In SZTSU v Federal Circuit Court of Australia [2015] FCA 224, the applicant invited Mortimer J to find a failure in the decision of a judge of the Federal Circuit Court of Australia to refuse an extension of time application by arguing in this Court the merits of the judicial review case sought to be advanced. Her Honour described the invitation to do so as misconceived, by reason of failing to appreciate the very limited scope of the supervisory jurisdiction of this Court over the Federal Circuit Court. That was because jurisdictional error could not be established in the absence of demonstrating something akin to a misconception by the Federal Circuit Court judge of the nature of the function being exercised or the extent of the powers available in considering whether it was necessary in the interests of justice to grant the extension of time sought: see SZTSU at [9]-[11]. If, following SZTSU, regard may not be had to matters that were raised before the primary judge as to the merits of the judicial review case in refusing the grant of an extension of time, it is impossible to see how regard must be had to issues as to the merits of the judicial review case that were not raised before his Honour.
10 It should be noted that his Honour (at [8]) made reference to the very topic that is relied upon as a source of jurisdictional error on the part of the Authority, as discussed below, being an adverse credibility finding. Yet on the applicant’s case, even this additional step would not suffice.
11 No proper source of a jurisdictional obligation on the part of the primary judge to effectively conduct his own, independent, review of the Authority’s decision, including in this case by going beyond the Authority’s reasons and considering the applicant’s initial entry interviews and subsequent statutory declaration in order to identify error, was identified. The suggestion that failing to do so amounts to a denial of procedural fairness cannot be accepted: the applicant had a right to be heard, which was clearly given; he did not have a right to the primary judge to make his case for him. The first two hurdles are not surmounted.
Third hurdle
12 The third hurdle, affecting both proposed grounds of review in this Court, concerns adverse credit findings by the Authority. A question in the form used to conduct initial entry interviews of asylum seekers who arrived by boat in the relevant period, and apparently asked of the applicant, was: “Were you ever arrested or detained by the police or security organisations?” The answer recorded in the form was:
Held by CID for 7 days suspected of being LTTE, released without charge. Had to present myself daily for 3 months to sign a paper. Have been regularly beaten during interrogations.
13 In a subsequent statutory declaration the applicant stated (omitting paragraph numbers):
Oct-2009: Interrogated by the CID
On around October 2009, three members of the CID took me away to a room for questioning. They showed me their identity card, and started physically assaulting me. When I was nearly unconscious, they started interrogating me about what I was doing in Mullivaikkal, and why I had been living separately from my wife and children at this time. As I was apart from my family, the CID believed that I had been involved with the LTTE.
They eventually released me on the condition that I report to them when called upon.
Nov-2009: Taken to Joseph Camp
On around November 2009, the CID asked me to return to their office. As soon as I got there, they put me into a vehicle and drove me to Joseph Camp, a SLA camp in Vavuniya District, Northern Province.
Once I got there, I was taken into a room and interrogated by three members of the CID. They accused me of being with the LTTE and asked me about buried weapons. I told them that I had only been forcefully recruited by the LTTE for a few days, and was not a combatant. However, they continually assaulted me by punching me and hitting me with batons.
For the next seven days, I was continuously interrogated and accused of being with the LTTE. They would frequently assault me during these interrogations, and only gave me very minimal amounts of food or water after they had beaten me. They kept insisting that I tell the truth, and would leave me to ‘think’, then return and ask if I was going to tell them the truth. However, they did not believe me, and kept assaulting me.
Eventually, they moved me to another building in Joseph camp, where they detained me in a dark cell with iron bars. For the next three months, I was brought to a room and interrogated by different officials. After the interrogation was over, I was made to sign a piece of paper, and then returned to my cell.
14 The Authority said of these two versions of events (at [16]):
I do not accept that the applicant was interrogated and detained by the CID in or around November 2009. In his statutory declaration, the applicant stated that he was detained for seven days, and then moved to another cell and detained for a further three months. In his entry interview, the applicant stated that he was detained for seven days, then released and was required to report for a further three months. I consider the discrepancies in the applicant’s accounts to be significant, and this leads me to conclude that the applicant has fabricated his claims relating to this incident so as to create a profile upon which to apply for protection.
15 The Authority therefore drew a distinction between:
(1) the entry interview reference to being detained for seven days and then being required to report daily for three months; and
(2) the statutory declaration reference to being detained for seven days and then being detained for a further three months.
16 The applicant submits that there is no relevant justification for the discrepancy perceived by the Authority, and suggests an alternative interpretation of what the applicant said on the two occasions. It is not necessary to set out that alternative. Assuming in the applicant’s favour that this alternative understanding was a reasoning process that the Authority could have engaged in, but did not, this cannot constitute a legal error, let alone a jurisdictional error, unless that alternative understanding was the only reasonable conclusion that was open. On any view, that is a very difficult thing to establish.
17 In this case, the applicant did not come close to showing that the Authority was not entitled to reason as it did. To the contrary, I see nothing wrong in the Authority perceiving a discrepancy between the answer given at the initial entry interview and what was said in the subsequent statutory declaration. Nor do I see anything wrong in regarding a change from three months of reporting after an interrogation of seven days, to three months in detention after such an interrogation as a significant change, and therefore an inconsistency that it could rely upon in assessing the applicant’s credit. No error is demonstrated, and certainly no jurisdictional error. The third hurdle must also fail.
Conclusion
18 Neither proposed ground of review can possibly succeed. Leave to rely upon them must therefore be refused. The originating application must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. |
Associate:
