FEDERAL COURT OF AUSTRALIA

APP17 v Minister for Immigration and Border Protection [2019] FCA 794

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicants pay the first respondent’s costs of and incidental to the application as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of a judge of the Federal Circuit Court of Australia to refuse an extension of time in which to bring an application for judicial review of a decision of the Administrative Appeals Tribunal, as provided for by s 477(2) of the Migration Act 1958 (Cth). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of protection visas to the applicants. Section 476A(3)(a) of the Migration Act provides that no appeal may be brought from an order or a refusal to make an order under s 477(2).

2    Section 477(2) provides:

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.

3    The primary judge not only refused the extension of time application, but also added, unnecessarily but understandably, an order that the application was “otherwise dismissed”. An appeal against that otiose order would not be incompetent because it would not be, strictly speaking, contrary to the prohibition in s 476A(3)(a): see SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; 200 FCR 207 at [19]; but cf SZRBN v Minister for Immigration and Citizenship [2012] FCA 984 at [21]-[23] and BZABK v Minister for Immigration and Citizenship [2012] FCA 774; 205 FCR 83 at [35]-[38].

4    The applicant initially brought such an appeal, but it had no meaningful content, because even if the otiose order that the application for an extension of time was “otherwise dismissed” was overturned, the specific order dismissing that application would remain in force. In apparent recognition of this, that appeal proceeding was abandoned and dismissed, with a consent order as to costs in the Minister’s favour. This proceeding was commenced in replacement of the appeal.

5    This application is therefore not an appellate procedure, enabling any general review of the primary judge’s order refusing an extension of time, or his Honour’s reasons for doing so. No more can be sought or granted than the quashing of the impugned order or decision, relevantly in this case, for established jurisdictional error, there being no suggestion of any error on the face of the record (that is, error of law on the face of the impugned order itself, without reference to the reasons, transcript or evidence unless somehow incorporated in the order: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 180-183).

6    It is helpful to begin with a short outline of the nature of jurisdictional error, a vexed topic. In Craig, as directly relevant to this application (omitting footnotes), the High Court:

(1)    non-exhaustively identified the nature of errors that will be jurisdictional (at 177):

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

(2)    gave a number of examples of jurisdictional error, and commented upon its application to a statute conferring jurisdiction (at 177-178):

… 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.

and

(3)    outlined what will generally not constitute a jurisdictional error (at 179-180):

… 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.

7    In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82, it was observed in relation to the passage reproduced above at [6(2)] and the difficultly in distinguishing between jurisdictional error and error within jurisdiction (at [163], omitting footnotes):

The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

8    In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [69], the majority of six justices built on Aala, casting doubt on the assumption in Craig that any clear distinction can necessarily, and in all circumstances, be easily be drawn between a court and an administrative tribunal. That is especially so at the State and Territory level where the ambit of a tribunal is unconstrained by Chapter III of the Constitution and thereby the stricter separation of powers between judicial and executive functions, subject to the jurisprudence on limits concerning Chapter III State and Territory courts. Just as important was dispensing with the notion that courts can be shielded from judicial review because they can “authoritatively” determine, or have “authority” to decide, questions of law as a point of distinction with tribunals. This umbrella label was found to be unhelpful because, in substance, it obscures the need to consider whether or not the question of law at issue was itself determined within jurisdiction: Kirk at [70].

9    Craig is illustrative of what may constitute jurisdictional error, rather than amounting to any exhaustive taxonomy: Kirk at [73]. In this case, the example of jurisdictional error given in Craig and reproduced above at [6(2)] is useful because it articulates the divide between jurisdictional error and error within jurisdiction in the context of the application of a provision of a statute conferring power to extend the time within which to bring a proceeding, which is what is in play in this application. The terms of s 477(2) are central to the jurisdiction exercised by the primary judge, and whether there was any error in the exercise of that jurisdiction.

10    The sole legitimate issue in this application is whether the primary judge’s refusal of the extension of time in which to bring a judicial review application was infected by jurisdictional error, or at most was only an error in the exercise of that jurisdiction. That is, even if all of the arguments as to error advanced by the applicants were made out, did that amount to anything more than deciding issues within jurisdiction incorrectly? The Minister’s case is that not only are the matters raised in support of this application doing no more than taking issue with how the jurisdiction was exercised, asserting no more than errors within jurisdiction, but that there was no error in the exercise of jurisdiction by the primary judge either. There was no suggestion that his Honour either exceeded jurisdiction, or failed to exercise jurisdiction, such as by overlooking altogether a basis for seeking an extension of time, or by overlooking a proposed ground of review (as happened in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400).

11    Ordinarily, and certainly in this case given the terms of s 477(2) of the Migration Act being addressed by the primary judge, the assessment of whether or not there is jurisdictional error in the exercise of judicial power does not depend upon any analysis or review of the facts, or the correctness or otherwise of the factual findings made, as opposed to the context provided by those facts, but rather upon an analysis of the terms in which a statutory discretion or power has been conferred: see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 at [15], [21].

12    It is essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining the presence or absence of satisfaction that it was necessary, in the interests of the administration of justice, to extend time in accordance with s 477(2): SZUWX at [10]. In SZUWX, the Full Court found that there had not been any failure to take into account the absence of prejudice to the Minister in granting an extension of time under s 477(2), but held that even if there had been such a failure, it would have been an error within jurisdiction, and therefore not reviewable. This highlights the steep hurdle the applicants face and the limited scope of the grounds and arguments that they can rely upon.

13    Given that the applicants applied in writing for an extension of time as required, and given that the primary judge was not satisfied that it was “necessary in the interests of the administration of justice” to make such an order, the applicants must establish this conclusion was infected not merely by some error of fact or law, but rather an error going to the very jurisdiction being exercised. Given the broad and unconfined scope of the test to be applied, it was, within the scope of legal reasonableness in the application of that test so as to be within jurisdiction, a matter for the primary judge as to what considerations to take into account in ultimately deciding whether or not his Honour was satisfied that the statutory test had been met.

Before the primary judge

14    In this case, the applicants were 259 days late in filing their application for judicial review of the decision of the Tribunal to affirm the refusal of protection visas. Their evidentiary case to explain this was that, after receiving the Tribunal’s decision, the first applicant obtained advice to the effect that he could make an application for a protection visa for his daughter, with him and his wife, the second applicant, as family members to that application. However, the applicants did not discover until later that this advice was incorrect in that the second protection visa application by them was invalid because of the prior, unsuccessful, protection visa application. The applicants’ argument was that poor advice provided a reasonable excuse for the delay. Affidavit evidence described the various steps that were taken. The primary judge clearly considered that evidence in detail, searching for what was not said, as well as what was by way of explanation for the delay.

15    The primary judge found that the evidence established that the applicants were aware of the availability of judicial review and of the time limit for making such an application. His Honour found that by pursuing a protection visa via the alternative route of an application by their daughter, the applicants had accepted that the Tribunal’s decision was valid. His Honour held that the delay was not reasonable in the circumstances and was therefore without any reasonable excuse.

16    The primary judge then considered the merits of the application sought to be brought, upon the limited basis that if there was any significant merit, that might justify an extension despite the lack of a reasonable excuse for the significant delay. His Honour cited the observation of Gageler J in Vella v Minister for Immigration and Border Protection [2015] HCA 42; 326 ALR 391 at [3] in support of the proposition, in applying the identical test for an extension of time in the High Court in s 486A(2)(b) of the Migration Act, that a case had to be exceptional to meet that test when a lengthy period of time was in issue.

17    The primary judge expressly assessed the merits of the proposed grounds of review not as a final determination, but on a “fairly broad brush approach” as to whether there were reasonable prospects on the basis of the arguments and evidence. That was a course that was plainly not just open to his Honour, but wholly appropriate as the extension of time application is not a hearing on the merits of the proposed grounds of review: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [63]-[66]. His Honour was not deciding the merits of the judicial review application, but rather whether there was a sufficient indication of such merit existing for it to be in the interests of justice for such a challenge to be permitted to take place.

18    The applicants’ underlying claim for protection visas turned on claims made by the first applicant. He claimed he would be harmed by guerrillas in Columbia who had extorted money from his stepfather. The Tribunal rejected those claims as fabrications, found that the first applicant did not fall within any of the categories of people most at risk, and that any residual risk of harm was remote.

19    There were three grounds raised in the applicants’ proposed further amended application for judicial review.

20    The first proposed ground was that the Tribunal had failed to comply with its obligations under s 424A of the Migration Act in rejecting evidence from the applicant at the delegate hearing, supporting the conclusion that the applicant was not credible. The applicants argument was that evidence given at the delegate’s hearing did not fall within the exception to the operation of s 424A in s 424A(3). The primary judge found that the substance of this ground did not involve any issue of information that was a rejection, denial or undermining of the applicant’s claims, so was inconsistent with SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [17]. His Honour was therefore not satisfied that this ground had any real prospect of success.

21    The second proposed ground was that the Tribunal’s decision was unreasonable, based on two points: non-acceptance of the first applicant’s claims about his stepfather, being claims that had been accepted by the delegate but rejected by the Tribunal; and an alleged failure to give the first applicant a proper opportunity to address the Tribunal’s concerns about that claim, by way of further documents which he said he might be able to produce, but did not.

22    As to the first aspect of the second proposed ground, the primary judge noted that the Tribunal had made it clear that although the delegate had found aspects of the first applicant’s evidence credible, it had to make its own determination as to whether he was telling the truth. His Honour regarded this as putting the first applicant on notice that his credibility was an issue in the review, giving him the opportunity required by s 425 to give evidence on this issue and make submissions if he wished to do so. Further, his Honour observed, the Tribunal in any event asked questions on this topic at the end of the hearing. His Honour therefore characterised this ground as being in substance an argument that the Tribunal was required to give him a further and better opportunity to think about giving additional evidence. His Honour did not regard this to be a reasonably arguable case of denial of procedural fairness.

23    As to the second aspect of the second proposed ground, the primary judge considered the Tribunal’s reasons in relation to the mooted additional documents and could not see anything unreasonable in the way in which this had been addressed.

24    The third proposed ground concerned an alleged failure of the Tribunal to apply the real chance test. His Honour was unable to discern anything wrong with the Tribunal’s analysis and application of that test, derived from Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379, and now reflected in ss 5H and 5J of the Migration Act. His Honour did not accept that the Tribunal had taken a purely mathematical approach to that test, even though arithmetic was deployed in the context of country information, because the Tribunal went further than just probabilities.

25    The primary judge concluded by observing that while his Honour could not dismiss the possibility that any of the grounds of review might not succeed at a final hearing, given the extensive delay and not being satisfied that there was a reasonable basis for it, he was not satisfied that it was necessary in the interests of justice to make an order extending the time for bringing the judicial review application, so dismissed the extension of time application.

The asserted grounds of jurisdictional error by the primary judge

26    It should be observed at the outset that the originating application seeks an order setting aside the orders made by the primary judge and an order remitting the matter to the Tribunal. That would be an exercise of original jurisdiction in judicially reviewing the Tribunal’s decision. The only possible exception to the exclusion of original jurisdiction of this Court to judicially review Tribunal (or delegate) migration decisions arises as an incident of the exercise of appellate jurisdiction by way of rehearing, not by way of judicial review.

27    The limited nature of this application should have been even more apparent in this case, having regard to the litigation history leading to the commencement of this proceeding, outlined at [3]-[4] above. The most that the applicants were entitled to obtain was remittal of the extension of time application to the Federal Circuit Court to have that application heard and determined afresh.

28    The seeking of a remittal order was therefore at all times wholly inappropriate, should never have been sought, and must be dismissed out of hand. It is improper for a judicial review application of this kind to be sought to be used to bypass the lack of original jurisdiction reposed in this Court to conduct judicial review itself of the Tribunal’s decision.

29    As to the order sought setting aside the orders made by the primary judge, the grounds are set out in an affidavit of a solicitor from the firm acting for the applicants. Those grounds mirror the proposed grounds of judicial review before the primary judge and assert that the Federal Circuit Court:

(1)    “erred in failing to recognise” that the Tribunal had “failed to carry out its statutory duty”, listing as particulars the text of s 424A of the Migration Act;

(2)    “erred in failing to find that the Tribunal’s decision was unreasonable”, listing as particulars what had transpired before the delegate and before the Tribunal on the topic of the claims concerning the first applicant’s step father; and

(3)    “erred in failing to recognise that the Tribunal failed to apply the Real Chance test”, listing, as particulars, the Tribunal’s reliance on country information and the use that was put to that country information in assessing the risk faced by the first applicant.

30    Each of the above grounds are in the form of grounds of appeal from a substantive judgment of the Federal Circuit Court, and not in the form of grounds asserting jurisdictional error. There is not a single pleaded assertion of any jurisdictional error by the primary judge, let alone any identification of any part of the primary judge’s reasons said to contain such an error, whether by commission or omission. The applicants’ written and oral submissions do not improve upon the pleaded grounds, but rather in large measure repeat them verbatim, after reciting assertions that are not apparently connected to the pleaded grounds of review.

31    The first additional assertion in the applicants’ written submissions that is unconnected to the pleaded grounds of review is that the primary judge applied the wrong test in relation to the application for an extension of time, referring to his Honour’s consideration of the delay in bringing the application and the explanation given for that delay. The recounting of what his Honour considered does not contain any assertion as to how that in any way involved applying the wrong test. His Honour expressly and repeatedly stated the correct test, and appropriately applied it. The first additional assertion is therefore baseless.

32    The second additional assertion in the applicants’ written submissions that is unconnected to the pleaded grounds of review is that the primary judge failed to follow what are said to be the “principles” in Mitco DB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712 concerning the pursuit of administrative remedies before applying to a court as being able to constitute an acceptable reason for delay. Apart from no such argument ever having apparently been advanced before his Honour, that case concerned a choice being made between pursuing a challenge to an adverse tariff concession order in the Tribunal rather than in this Court, a problem later emerging in the choice that was made due to significant and complicated legal and policy issues, and, as a result, a finding of a reasonable explanation for delay. That was a situation far removed from the present and of no assistance whatsoever. The second additional assertion is therefore also baseless.

33    Each complaint developed at the hearing of the application, as first raised in the applicants’ written submissions, takes issue with the reasoning and conclusions of the primary judge, both as to the finding of the delay being unreasonable (not a pleaded ground) and as to his Honour’s consideration of the prospects of any of the proposed judicial review grounds succeeding and the conclusions reached. The applicants relied upon the summary of what is required to establish jurisdictional error in WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [10], latching onto the phrase “performed the task in a manner that is fundamentally inconsistent with its character as a court of record”. The problem with each of those complaints is that in attempting to establish such fundamental inconsistency, they go no further than taking issue with the reasoning and conclusions of the primary judge and do not address the exercise of jurisdiction per se. There was nothing that the primary judge did that was remotely, let alone fundamentally, at odds with the ordinary assessment of whether or not the test in s 477(2) had been met to his Honour’s satisfaction. Each complaint is in substance advanced as though this was an appeal. Despite that, no error at all is apparent. For that reason alone, no jurisdictional error is established. But even if every single asserted error had been demonstrated, each and every such error would have been within jurisdiction, going no further than a complaint about the evaluative conclusions reached by his Honour.

34    No proper case of jurisdictional error has even been asserted beyond the bald, unsubstantiated and plainly incorrect assertions made in written submissions, but not in the pleaded grounds, that the wrong test for an extension of time had been applied. The judicial review application must therefore be dismissed with costs.

35    A final observation to be made is that this application under s 39B should not have been brought in the absence of some proper basis to assert jurisdictional error. At no stage did it rise higher in substance than an attempt to bypass the prohibition on appeals from s 477(2) decisions. The reason for spelling this out in some detail is that future applications of this kind may give rise to the Minister applying for indemnity costs and even a special costs order.

Associate:

Dated:    30 May 2019