FEDERAL COURT OF AUSTRALIA

ADN18 v Minister for Home Affairs [2019] FCA 692

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an application for an extension of time to appeal of two days from a decision of Griffiths J (the primary judge) (ADN18 v Minister for Home Affairs [2018] FCA 1677) dismissing the applicant’s application for Constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of a judge of the Federal Circuit Court (ADN18 v Minister for Home Affairs [2018] FCCA 1421) (the trial judge) refusing the applicant an extension of time of a little over a month under s 477 of the Migration Act 1958 (Cth) in which to challenge a decision of the Immigration Assessment Authority that affirmed the Minister’s delegate’s decision to refuse to grant a safe haven enterprise, or protection, visa to the applicant.

2    The applicant gave evidence that he approached this Court’s Registry on 27 November 2018, being one day before the 21 days in which he could file a notice of appeal of right, but was informed by staff in the Registry that he needed to provide more information to satisfy them that he was entitled to a fee waiver. He said that he tried to make a statutory declaration in support of that application that night but could not find a justice of the peace before whom he could make it. He applied again to the Registry on 28 November 2018, seeking to lodge the notice of appeal without any statutory declaration supporting his financial circumstances, and was rebuffed. He then approached the Registry on 29 November 2018, together with the documents that he needed, but was then told that he was out of time and needed to file the present application, which he did the next day.

3    The Minister accepts that the short delay is not a source of prejudice, but contends that the extension of time should be refused because any appeal would have no arguable prospects of success.

4    The applicant appeared before me today representing himself, assisted by an interpreter, but he had been represented by counsel before the primary judge and the applicant had been represented by a solicitor before the trial judge.

Background

5    The applicant is a citizen of Sri Lanka and a Hindu Tamil. On 9 June 2016, he lodged his application for the visa. On 20 January 2017, a delegate of the Minister refused to grant it. The Minister referred that decision to the Authority under Pt 7AA of the Act.

6    On 11 February 2017, the applicant’s representative provided a written submission that the Authority described as consisting of argument and commentary on evidence that was before the delegate.

7    At the heart of the proposed judicial review application that the applicant wished to make to the Federal Circuit Court was his contention that he feared harm when he returned to Sri Lanka because he was a money lender. The Authority noted that the applicant’s submission to it had raised the contention that, were he to return to Sri Lanka, he would be imputed to be wealthy and that there were risks involved in the activity of money lending that the delegate had not assessed.

8    The Authority found that there was no indication in the material before it that the applicant had claimed earlier that he feared harm on the basis of his money lending and or a perception that he might be wealthy, and that in his visa interview, he had not raised any claim concerning his activities as a money lender.

9    The Authority found that this claim to fear harm by reason of his being a money lender was new information. However, it also found that in the visa interview, the applicant had described, in general terms, transactions that he had had with people who had borrowed money from him, would not repay him, then would blackmail him by threatening to report him to the Criminal Investigation Department and thus would avoid paying him money they owed, causing him significant financial loss. The Authority noted that the applicant had not provided any detail around any such incidents. It found that 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 as a claim that he was, in fact, wealthy or would be perceived to be so. It found that this information all predated the delegate’s decision and that the applicant had not given any explanation as to why he could not have provided the information before the delegate’s decision was made or as to why it might be regarded as credible personal information not previously known and that, had it been known, it might have affected consideration of his claims. The Authority, thus, concluded that the applicant had not satisfied it about the matters set out at s 473DD(b) of the Act.

The proceeding before the trial judge

10    The applicant argued three grounds of review before the trial judge, namely that the Authority:

    had not considered a claim made out on the facts, namely, the risk to him from his money lending activities and the blackmail associated with it;

    had not considered submissions put to it about the money lending argument; and

    had erred in failing to identify the full extent of conduct that the applicant had engaged in in Australia on Facebook which might expose him to risk due to conduct by third parties were he to return to Sri Lanka.

11    The trial judge noted that the delay beyond the 35 day time limit in s 477(1) was 34 days, which was “not insubstantial” and that none of the applicant’s desire to obtain legal representation or his other explanations were a sufficient reason to explain his delay.

12    The trial judge considered the first ground and found that the Authority had correctly stated in its reasons that no claim concerning the applicant being a money lender fairly arose on the material before the delegate. He held that the first proposed ground “lacks sufficient merit to identify an arguable case of jurisdictional error” in the Authority’s decision, that warranted the grant of an extension of time.

13    His Honour noted that the second ground was, in part, related to the first. He found that there was no claim before the delegate that the applicant was a money lender or feared extortion that fairly arose on the material before the Authority, leaving aside the submission that the applicant had made to it. He concluded that the proposition that the claim advanced was not new information within s 473DD also lacked merit. The trial judge found that “on the face of the material” before him, the Authority had been correct “in identifying alleged blackmail, being wealthy and alleged fear of extortion” as new information. His Honour found that the second ground did not raise an arguable jurisdictional error, seemingly on the basis that all of those matters were known to the applicant before the delegate’s decision and he had not explained why he had failed to raise the claim earlier.

14    The trial judge rejected the third ground on the basis that the applicant had not raised a claim in relation to his Facebook posts before the Authority involving the conduct of third parties. He found that the Authority’s reasons showed that it had taken into account his claims for complementary protection “concerning his conduct in Australia” by “posting material on Facebook”, and that the applicant had not made a claim to fear harm “due to the conduct of third parties”. The trial judge found that this claim lacked sufficient prospects of success.

15    Accordingly, the trial judge dismissed the application for an extension of time under s 477(2) with costs.

The proceeding before the primary judge

16    The applicant argued before the primary judge that the trial judge had committed a jurisdictional error by not properly considering the proposed grounds of review and that his assessment, that those grounds did not have arguable merit, was so unreasonable and so inconsistent with established legal principles that he committed jurisdictional error.

17    The primary judge noted that where the decision-maker is a court, principles relating to jurisdictional error operate differently to those before an administrative decision-maker as Brennan, Deane, Toohey, Gaudron and McHugh JJ cogently explained in Craig v South Australia (1995) 184 CLR 163 at 179-180. That is because the ordinary jurisdiction of a court of law encompasses authority to decide questions of law and questions of fact in a matter over which it has jurisdiction and in doing so, the court will not exceed its jurisdiction or commit jurisdictional error merely by making erroneous findings of fact or law. Their Honours noted that ordinarily, where an appeal is available from decisions of an inferior court, the appeal court can correct errors in the court below.

18    The primary judge found correctly that, applying the principles in Craig 184 CLR at 179-180, the first ground necessarily failed because it challenged a finding of fact that the trial judge had determined adversely to the applicant but that this was not a jurisdictional error. Moreover, a decision-maker does not make an error of law by making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ applying Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.

19    Griffiths J also rejected the applicant’s argument that a mandatory relevant consideration in the exercise of jurisdiction under s 477 was the assessment of the strength of the proposed ground of review. His Honour referred to authorities where single judges of this Court had discussed considering the merits of such an application but none had held that such a consideration, while relevant, was mandatory. But, in any event, as his Honour found, the trial judge had assessed the strength of the three proposed grounds of review and found them lacking sufficient merit, so that the trial judge did not make the jurisdictional error alleged.

20    The primary judge rejected the second ground, saying that no authority supported the contention that the trial judge’s assessment of the proposed grounds as not having arguable merit was unreasonable or inconsistent with the established legal principles. Griffiths J noted that s 473DD provided that, for the purposes of making a decision in relation to a fast-track reviewable decision before it, the Authority could not consider any new information unless it was satisfied that, first, there were exceptional circumstances to justify it doing so and, secondly, the applicant had established that any new information either given, or proposed to be given, to it was not, and could not have been, provided to the Minister before he made the decision to refuse the visa, under s 65 of the Act, or was credible personal information that was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

21    As the primary judge said, the short answer to that argument was that it necessarily failed. That was because the argument had not been put to the trial judge who, therefore, could not have committed a jurisdictional error in failing to address it. The primary judge also followed the decision of McKerracher J in CVK16 v Minister for Immigration and Border Protection (2017) 257 FCR 297 at 309 [50]. He said that this discussion was plainly correct and consistent with a subsequent decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at 608 [24]. There, Gageler, Keane and Nettle JJ held that the expression, “new information” in ss 473DC, 473DD and 473DE, was limited to “information (which may or may not be recorded in a document) in the ordinary sense of a communication of knowledge about some particular fact, subject or event that meets the two conditions set out in s 473DC(1)(a) and (b)”, namely, that, first, the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa and, secondly, the Authority considers that it may be relevant.

This application

22    The proposed grounds of appeal from the primary judge’s decision are that his Honour erred in holding that:

    the trial judge had acted within jurisdiction under s 477 by refusing the application for an extension of time;

    the trial judge had not been obliged to take into account the merits of the proposed application for judicial review as a mandatory relevant consideration;

    the trial judge had not constructively failed to take into account the merits of the proposed application for judicial review; and

    the new claims or inferences based on information before the delegate were new information, within the meaning of Pt 7AA of the Act.

Consideration

23    An application for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to obtain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] (and see also at 539-543 [66] per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F, namely:

We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.

24    In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.

25    The first ground is without content and, in any event, is answered by the decision in Craig 184 CLR 163.

26    The second and third grounds are related. As the primary judge found, the trial judge had taken into account the merits of the proposed application for judicial review in considering an extension of time under s 477(2) but found them to be lacking in substance. Therefore, the question whether or not those merits had to be considered as a mandatory relevant consideration could not arise on the facts here because the trial judge had considered and rejected them. Thus, neither the second nor the third ground has any realistic prospect of success because, first, the trial judge took the merits into account and, secondly, he found that they lacked sufficient substance.

27    In my opinion, the fourth ground also lacks any sufficient prospect of success. I am unable to see any arguable error in the reasons of the primary judge. They appear to me to be plainly correct.

28    In my opinion, the case that the applicant sought to bring in the notice of appeal from the primary judge’s decision has no realistic prospect of success. Therefore, there is no basis on which to grant the short extension of time that the applicant needs in which to bring the proposed appeal. I do not consider it to be in the interests of justice to grant the extension of time.

Conclusion

29    For these reasons, the application for an extension of time must be dismissed with costs.

Associate:

Dated:    17 May 2019