FEDERAL COURT OF AUSTRALIA

EWX17 v Minister for Home Affairs [2019] FCA 1656

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed by the applicant on 25 March 2019 is dismissed.

2.    The applicant pay the costs of the first respondent as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for an extension of time to appeal from a decision dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) for judicial review of a decision of the Federal Circuit Court of Australia (Federal Circuit Court): EWX17 v Minister for Immigration and Border Protection [2019] FCA 235. The Federal Circuit Court had refused to grant the applicant an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (Migration Act) to seek judicial review of a decision of the second respondent (Authority).

Background

2    By decision dated 26 September 2017 the Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant a Safe Haven Enterprise visa (SHEV) to the applicant.

3    The last date for making an application for judicial review of the Authority’s decision was 31 October 2017: see s 477(1) of the Migration Act. The applicant lodged his application with the Federal Circuit Court on 8 November 2017, which was eight days out of time. Accordingly the applicant sought an extension of time in which to lodge his application pursuant to s 477(2) of the Migration Act.

4    On 20 September 2018 the Federal Circuit Court dismissed the applicant’s application for an extension of time. Whilst the Court accepted the applicant’s explanation for the delay, it was not satisfied that there was sufficient merit in the single proposed ground of judicial review to grant an extension of time: see EWX17 v Minister for Immigration [2018] FCCA 2705. The proposed ground was that:

1.    I will be imputed with LTTE profile.

Particulars

I was in the Charles Unit as a fighter. I will be suspected of LTTE. I was in Zone 4 camp. From 1996 until 2009 I was away with LTTE in 2006–2007. I was participating in war.

5    On 4 October 2018 the applicant lodged an application for relief under s 39B of the Judiciary Act with this Court.

the proceeding before the primary judge

6    Before the primary judge in this Court the applicant abandoned the grounds in his originating application and instead sought leave to rely on the following two grounds:

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.

7    The primary judge set out the relevant principles, noting that the limits on judicial review of a decision to refuse an extension of time under s 477(2) of the Migration Act “are formidable”. His Honour observed that the applicant would need to show jurisdictional error on the part of the Federal Circuit Court judge and that in order to succeed the applicant would need to establish that the Federal Circuit Court judge, in making his decision, acted outside his power or otherwise failed to perform, or incorrectly performed, the task entrusted to him in relation to the application for an extension of time.

8    The primary judge found that the two proposed grounds of review were misconceived, that they should not be entertained and that the applicant’s judicial review application should be dismissed.

9    In relation to the first ground the primary judge found that there was “[n]o proper source of a jurisdictional obligation on the part of the [Federal Circuit Court] to effectively conduct [its] own, independent, review of the Authority’s decision” and that “[t]he suggestion that failing to do so amounts to a denial of procedural fairness cannot be accepted”: at [11].

10    In relation to both the first and second ground the primary judge found that “the applicant did not come close to showing that the Authority was not entitled to reason as it did”. His Honour concluded that there was nothing wrong in the Authority perceiving a discrepancy in the applicant’s evidence and relying on that inconsistency in assessing his credit: at [17].

The application for an extension of time

11    As at the date of the primary judge’s orders, 28 February 2019, the applicant was required to lodge any notice of appeal from the orders made by the primary judge within 21 days of those orders being made: r 36.03 of the Federal Court Rules 2011 (Cth) (Rules) (superseded). The applicant failed to do so and on 25 March 2019, four days after the expiration of the 21-day period, he lodged an application for an extension of time to appeal from the decision of the primary judge. That application was accompanied by an affidavit affirmed by the applicant on 25 March 2019 in which he set out the history of the proceeding, said that he only found out about the primary judge’s judgment on 22 March 2019, and recorded his proposed grounds of appeal. Seven of the grounds included in the applicant’s affidavit are also included in a draft notice of appeal annexed to his affidavit. These grounds are (as written):

1.    The Federal Court [the primary judge] would have held that there is no justification for the discrepancy perceived by the Immigration Assessment Authority, and it constitute a jurisdictional error.

2.    The Federal Court [the primary judge] would have held that the Federal Circuit Court [Judge] did not consider for himself whether his Honour perceived in the material before thee Federal Circuit Court, independently of the matters raised by the applicant, whether there was any basis for an allegation of jurisdictional error by the Immigration Assessment Authority.

3.    The Federal Court [the primary judge] failed to hold the Immigration Assessment Authority was legally unreasonable.

4.    The Federal Court [the primary judge] failed to hold that the decision of the Federal Circuit Court Judge found an accepted explanation for delay and no prejudice to the Minister, then there would be no evident and intelligible justification for refusing the extension of time.

5.    The Federal Court [the primary judge] would have considered that the Federal Circuit Court has a duty to undertake proper, genuine and realistic consideration of the applicant’s case, requiring it to perform “an active intellectual process directed at” the applicant’s case (AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [23)-[24] Perram).

6.    The Federal Court [the primary judge] would have held that the Federal Circuit Court [Judge] should have satisfied that it was necessary in the administration of justice to grant extension of time pursuant to s 477(2) of the Migration Act 1958 and the proposed grounds of the substantial application did demonstrate sufficient prospect of success and if this task was taken on 20 September 2017 potential jurisdictional error would have been identifies.

7.    The Federal Court [the primary judge] failed to make an order remitting the case to the Federal Circuit Court reconsideration according to law, leading at the very least to a grant by the Federal Circuit Court of the application for an extension of time (See for an example, AZAFX v Federal Circuit Court of Australia [2016] FCA 1139).

12    In his affidavit the appellant also includes two additional “grounds”, which are those grounds that were raised before the primary judge (see [6] above).

13    The applicant has also filed written submissions in which he submitts that the primary judge was wrong to dismiss his application, given that the Federal Circuit Court found there was an acceptable explanation for the delay and no prejudice to the Minister; there was “no evident and intelligent justification” for refusing his extension of time; and the delay is short, the extension should be granted and the matter referred to a Full Court of this Court. The applicant refers to AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133 (AVQ15) at [21]-[28].

14    A copy of the applicant’s written submissions relied on before the primary judge are annexed to the applicant’s submissions and to his affidavit relied on before me. Those submissions do not address the proposed grounds of appeal included in the draft notice of appeal or the factors relevant to whether an extension of time should be granted (see below) and thus do not advance the applicant’s case on this application in any meaningful way. The applicant also made oral submissions at the hearing which largely went to his claims for protection and are not relevant to this application.

Legal Principles

15    The considerations to be taken into account in determining whether an extension of time should be granted include the length of the delay, whether there has been an adequate explanation for the delay, whether there is any prejudice to the respondent, although the mere absence of prejudice is not enough to justify the grant of extension of time, and the merits of the proposed grounds of appeal, if leave was granted: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Insofar as the merits are concerned, the proposed grounds of appeal should be considered at a “reasonably impressionistic level” and the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (MZABP) at [62].

Consideration

16    The applicant is only four days out of time. The Minister accepts that the delay is not significant. The applicant’s evidence is that he only became aware of the primary judge’s decision on 22 March 2019. In oral submissions the applicant suggested that, based on what his lawyer told him, he thought he had 28 days in which to file an appeal but that misapprehension was dispelled by his barrister who informed him he had 21 days to do so. The Minister submitted that the primary judge’s judgment was delivered by email to the applicant’s counsel and the Minister’s solicitors on 28 February 2019. Be that as it may, the applicant’s uncontested evidence is that he did not become aware of it until some three weeks later. While there is no explanation as to why that was so, I accept that to be the case. Upon receipt, the applicant acted swiftly, lodging his application three days later.

17    The Minister accepts that he will suffer no prejudice if an extension is granted.

18    The remaining issue is the merits of the proposed grounds of appeal. Before turning to consider them and because of their nature it is useful to set out the principles applicable to an application under s 39B of the Judiciary Act for judicial review of orders made by a judge of the Federal Circuit Court, which was the application before the primary judge. As the primary judge observed, in order to succeed before him the applicant was required to demonstrate jurisdictional error on the part of the primary judge. In FEZ17 v Minister for Home Affairs [2018] FCA 1689 (FEZ17) at [16]-[22] Thawley J summarised the relevant principles as follows:

16    Judges of the Federal Circuit Court must act within the limits of the jurisdiction conferred on them by statute. To succeed in an application under s 39B(1), an applicant bears the onus of establishing jurisdictional error. In WZAUG at [10], Colvin J said:

What must be identified by an applicant is that the Federal Circuit Court has acted outside its power or authority or has failed to perform the particular task entrusted to it or has performed the task in a manner that is fundamentally inconsistent with its character as a court of record.

17    The jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker: DMI16 at [39], setting out the following passage from Craig v South Australia (1995) 184 CLR 163 at 179-180:

In contrast, 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.

18    Some of the circumstances in which an inferior court will fall into jurisdictional error were described in Craig at 177-178 in the following way:

… [J]urisdictional 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 precondition of the exercise 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.

See also: WZAUA at [22]-[24], per Kenny J.

19    An example of jurisdictional error was provided by Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [68]:

… If, for example, her Honour in the present case could be said to have taken the approach that it would only be in “the interests of the administration of justice” to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred.

20    After setting out this passage, Steward J in CKX16 at [24] stated:

A further example of jurisdictional error would be a failure to provide procedural fairness. In that respect, the applicant relied on the well-known dictum from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]:

To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

See also MZAIB at [53] and [78], per Mortimer J, and SZTES at [52], per Robertson J, with whom Logan and Kerr JJ agreed.

21    It follows from the foregoing that examples of possible jurisdictional error on the part of the Federal Circuit Court include:

(1)    failure to take into account (or taking into account) a matter which the statute conferring the court’s jurisdiction expressly or impliedly required be taken into account (or ignored) as a precondition to the exercise of power;

(2)    where the court misconstrues the 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 (here, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern); and

(3)    failure by the court to provide procedural fairness.

22    It is not sufficient for the applicant to demonstrate non-jurisdictional legal error in the reasoning of the Federal Circuit Court or an erroneous finding of fact; the applicant has to demonstrate jurisdictional error, as opposed to error within jurisdiction: AUK15; SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at [10] (Bromwich J); [16] (Flick J); [20]-[21] (Allsop CJ).

19    I turn then to consider the proposed grounds of appeal.

Grounds 1 and 3

20    By proposed grounds 1 and 3 the applicant in effect contends that the primary judge erred in finding that the Authority did not act unreasonably in perceiving there to be a discrepancy in his evidence and relying on the inconsistency to conclude (at [16] of its decision record) that the applicant was not interrogated and detained by the CID in or around November 2009.

21    In the second proposed ground which the applicant sought to rely on before the primary judge he contended that the Federal Circuit Court judge made a jurisdictional error of legal unreasonableness or failure to give proper, genuine and realistic consideration to the applicant’s case by dismissing the application for an extension of time in circumstances where the Federal Circuit Court judge had accepted the explanation for the delay and lack of prejudice to the Minister, and alleged that the Authority had made a jurisdictional error of legal unreasonableness by making a finding of fact which lacked an evident and intelligible justification at [16] of its decision record. The relevant finding was the Authority’s perception that there were discrepancies in the applicant’s accounts in relation to his detention and interrogation by the CID.

22    As the principles distilled in FEZ17 establish, the role of the primary judge was not to judicially review the Authority’s decision but rather to consider whether, in exercising his discretion under s 477(2) of the Migration Act, the Federal Circuit Court judge fell into jurisdictional error because he failed to take into account a matter which the statute conferring the Court’s power required him to take into account as a precondition to the exercise of the power; misconstrued the statute and thus the nature of the function to be performed or the extent of his powers; or failed to afford procedural fairness. Whether the Authority acted unreasonably was not a matter for the primary judge. Consistent with the Court’s role on an application of the nature before the primary judge, his Honour considered what the Federal Circuit Court judge had done and concluded that no error was demonstrated on the part of the Federal Circuit Court judge.

23    In addressing the applicant’s proposed grounds, the primary judge identified three hurdles which the applicant had to overcome. The third hurdle concerned the Authority’s finding at [16] of its decision record. His Honour noted that the Authority drew a distinction between the applicant’s entry interview, where he said he was detained for seven days and then required to report daily for three months, and his statutory declaration, where he said he had been detained for seven days and was thereafter detained for a further three months. The primary judge concluded that the applicant did not come close to establishing that the Authority was not entitled to reason as it did and found that there was nothing wrong with the Authority perceiving a discrepancy between the answer given at the initial entry interview and what he said in his subsequent statutory declaration. There was no error on the part of the primary judge who at that point was considering whether there was, as an aspect of establishing error on the part of the Federal Circuit Court judge, any antecedent error on the part of the Authority.

24    In his written submissions the applicant refers to the decision in AVQ15 at [21]-[28]. In that case a Full Court of this Court found that the primary judge had erred by failing to find that the Administrative Appeals Tribunal (Tribunal) had failed to carry out its statutory task by failing to consider relevant information. The Tribunal found that there were inconsistencies in the appellant’s written claims and the evidence he gave before the Tribunal. However, in that case the appellant had stated in his statutory declaration that the matters contained therein were not an exhaustive statement of the reasons why he could not return to his country of origin and that he would provide information in relation to his protection claims during his interview. The Full Court found that the Tribunal, in making its finding of inconsistency between the appellant’s written and oral evidence, had overlooked what the appellant had told the departmental officer at his interview. That factual scenario does not arise in this case and thus AVQ15 has no application.

25    For those reasons grounds 1 and 3 have no merit.

Ground 2

26    By proposed ground 2 the applicant contends that the primary judge erred in not finding that the Federal Circuit Court should have considered for itself whether there was any basis for an allegation of jurisdictional error in the Authority’s decision, independently of the matters raised by the applicant.

27    Once again the applicant misconceives the role of the primary judge. As his Honour noted, referring to the decision in SZTSU v Federal Circuit Court of Australia [2015] FCA 224, the Court in exercising its supervisory jurisdiction does not consider the merits of the judicial review case that was before the Federal Circuit Court but rather considers whether that Court has, for example, misconceived the nature of the function being exercised or the extent of the powers available in considering whether an extension of time should be granted pursuant to s 477(2) of the Migration Act. As the primary judge observed, given that, in exercising that function, the Court cannot have regard to matters that were raised before the lower court about 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” in that court. His Honour also noted that no jurisdictional obligation requiring the Federal Circuit Court judge to conduct his own independent review of the Authority’s decision by going beyond the Authority’s reasons had been identified. I am satisfied that there is no merit in this ground.

Ground 4

28    By proposed ground 4 the applicant contends that the primary judge erred in not considering that, in circumstances where the Federal Circuit Court had accepted his explanation for the delay and that there was no prejudice to the Minister, there was no evident and intelligible justification for refusing the extension of time. The Minster observed that this ground was not strictly before the primary judge and thus the applicant would require leave to raise it on appeal. Putting that matter to one side, in my opinion the ground has no merit.

29    Although the Federal Circuit Court accepted in the applicant’s favour that there was an acceptable explanation for the delay and that the Minister would not suffer prejudice, it does not follow that an extension of time will be granted. In exercising the discretion conferred by s 477(2) of the Migration Act, the court must be satisfied that it is necessary in the interests of the administration of justice to grant the extension. In this case, having considered the merits of the single proposed ground of appeal, the Federal Circuit Court concluded that it was not in the interests of justice to do so. As Mortimer J said in MZABP at [62]:

As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. …

30    In the circumstances it cannot be argued that the Federal Circuit Court acted in excess of or for want of its jurisdiction in dismissing the application for an extension of time.

Grounds 5 and 6

31    By proposed grounds 5 and 6 the applicant contends that the primary judge erred in not finding that the Federal Circuit Court had failed to properly consider the proposed grounds of his substantive application. Once again, these grounds are new. At the hearing before the primary judge the applicant abandoned his previous grounds and relied on the two proposed grounds (set out at [6] above).

32    For the same reasons as set out at [20] above grounds 5 and 6 have no merit. The primary judge was not required to form a view about the prospects of the proposed ground of judicial review put to the Federal Circuit Court. In any event the applicant’s sole proposed ground of judicial review, set out at [4] above, was considered by that Court. In doing so the Federal Circuit Court noted that that claim was not made before the Authority and that it did not fairly arise from the material before it. The reasons of the Federal Circuit Court do not reveal that it misconstrued the nature of its function in dealing with its consideration of the merits of the proposed ground of judicial review or that it failed to take into account any matters it was required to take into account or took into account any matters which it was not permitted to take into account.

Ground 7

33    By proposed ground 7 the applicant contends that the primary judge erred in failing to remit the matter to the Federal Circuit Court which would have led to an extension of time being granted. This ground has no merit. The primary judge was not satisfied that the applicant had demonstrated that the Federal Circuit Court had committed any jurisdictional error in exercising its discretion under s 477(2) of the Migration Act and thus it followed that his Honour was required to dismiss the application before him.

34    The applicant refers to the decision in AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401. However, his reliance on that case is misplaced. There Charlesworth J found that there had been an error on the part of the primary judge because he had conflated the issue of consideration of the substantive merits of the proposed application for judicial review with the appropriate test for granting an extension of time under s 477(2) of the Migration Act and thus committed an error of law. That is, her Honour found in that case the primary judge had gone beyond what he was required to do in that he had failed to confine himself to a consideration of whether the proposed grounds of review in that case had reasonable prospects of success or were reasonably arguable. That has not occurred here. Rather the primary judge was not satisfied that there had been a failure by the Federal Circuit Court in the performance of its jurisdictional task and his Honour accordingly dismissed the application before him.

conclusion

35    For those reasons I am of the opinion that the applicant’s proposed grounds of appeal have no merit such that, despite the short delay in the commencement of the proceeding and the fact that no prejudice will be suffered by the Minister, his application for an extension of time should be refused. As the applicant has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

36    I will make orders accordingly.

Associate:

Dated:    10 October 2019