FEDERAL COURT OF AUSTRALIA

EQJ17 v Minister for Home Affairs [2020] FCA 33

ORDERS

THE COURT ORDERS THAT:

1.    Order 2 of the orders made on 21 November 2018 be vacated.

2.    The Federal Circuit Court of Australia be joined as the third respondent to the proceedings.

3.    The application for judicial review of the decision of the Federal Circuit Court of Australia is dismissed.

4.    The applicant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the third respondent, the Federal Circuit Court of Australia (FCC), refusing to grant the applicant an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act) within which to seek judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The IAA had affirmed an earlier decision by a delegate of the first respondent, the Minister for Home Affairs (the Minister), not to grant the applicant a temporary protection (subclass 785) visa (protection visa). The applicant, who is a citizen of Iraq, claimed to fear harm from the Mahdi army by reason of his inadvertent discovery of a store of ammunition and weapons at a house owned by members of the Mahdi army.

2    It was necessary for the applicant to seek an extension of time in the FCC under s 477(2) because s 477(1) of the Act requires an application to the FCC for judicial review to be made within 35 days of the date of the IAA’s decision. As the IAA’s decision was given on 18 January 2016 and the application for an extension of time was filed only on 18 November 2017, the FCC application was 603 days outside the period of 35 days prescribed for an applicant to make an application under s 477(1) of the Act.

3    While no appeal lies to this Court from the FCC’s decision to refuse the extension of time by operation of s 476A(3) of the Act, there is no issue in principle as to the competency of the application for judicial review of the FCC decision: DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454 (DMI16) at [37] (the Court).

4    As I later explain, in order to succeed on the application in this Court, the applicant must demonstrate that the FCC fell into jurisdictional error. Furthermore, the scope of jurisdictional error in this context is strictly confined.

5    For the reasons set out below, no such error is identified and the application for judicial review of the FCC decision must be dismissed.

2.    PROCEDURAL MATTERS AND DEFERRAL OF JUDGMENT BY CONSENT

6    It is helpful to summarise the procedural history of this matter, given that it has a degree of complexity and in order to explain the delay since the application was filed.

2.1    The grounds of judicial review of the FCC decision

7    The applicant is unrepresented before this Court.

8    The application for judicial review does not identify any grounds of judicial review of the FCC decision but simply sets out the relief which the applicant seeks. In order to address that deficiency, orders were made at the case management hearing on 21 November 2018 for the filing of any affidavit evidence on which the applicant proposed to rely with the intention that the applicant explain, among other things, the errors allegedly made by the FCC. Orders were also made for the Minister to file any evidence in response, as well as granting leave for the Minister to withdraw a notice of objection to competency and for the filing of written submissions. I also urged the applicant to seek legal advice to help him to prepare for the hearing. The applicant filed an affidavit pursuant to those orders on 21 December 2018 setting out a number of grounds, as I later explain.

9    While the Minister filed written submissions on 4 March 2019 in accordance with orders made on 21 November 2018, no written submissions were filed by the applicant. However, the applicant appeared and made brief oral submissions in support of his application for judicial review of the FCC decision.

10    At the hearing of the application on 11 March 2019, I raised the issue of whether the primary judge at [12] of his reasons, in dealing with the applicant’s concern that his psychological condition impacted his ability to institute an application to the FCC, constructively failed to exercise his jurisdiction by merely asserting conclusions without explaining the basis for those conclusions. Ms Burnett, the Minister’s solicitor, sought an opportunity to prepare further written submissions on this issue (T6.31-34). Timetabling orders were therefore made providing the parties with an opportunity to file written submissions addressing this issue pursuant to which the Minister filed and served written submissions on 18 March 2019.

11    While the applicant did not file any submissions on this issue, I have considered whether the primary judge fell into jurisdictional error on this ground also.

2.2    Deferral of judgment by consent pending the High Court’s decision in BVD17 v Minister for Immigration and Border Protection (S46/2019)

12    Finally, in May 2019 the present application was identified on a list provided by the Minister to the Court of cases which might be affected by the then pending decision of the High Court in BVD17 v Minister for Immigration and Border Protection (S46/2019). As a result, the Registry emailed the parties advising that the matter was potentially affected by that High Court appeal, and seeking the parties’ position as to whether the delivery of judgment should be deferred pending the High Court’s decision. On 22 May 2019, the parties advised by email that they agreed that judgment should be deferred. I note in this regard that the applicant was not in immigration detention.

13    The High Court delivered judgment in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 (BVD17) on 9 October 2019. However, that judgment did not assist the applicant in this case. In BVD17, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ identified the issue before the High Court as follows:

1. … The question of general importance in the present appeal is whether the giving of a notification under s 473GB(2)(a) triggers an equivalent obligation of procedural fairness on the part of the Immigration Assessment Authority ("the Authority") to disclose the fact of notification to a referred applicant in a review under Pt 7AA.

2. The short answer is that procedural fairness does not oblige the Authority to disclose the fact of notification under s 473GB(2)(a) to a referred applicant in a review under Pt 7AA. The short reason is that s 473DA precludes such an obligation from arising.

14    In the present case, a delegate of the Minister notified the IAA under s 473GB(2)(a) of the Act that in the delegate’s view, a document or information identified in the certificate should not be disclosed to the applicant or his representative (Court Book (CB) 116). It is apparent that the IAA did not disclose the fact of this notification to the applicant. As the decision of the High Court in BVD17 makes clear, the IAA’s non-disclosure to the applicant of the notification it received could not give rise to any error: see BVD17 at [34]-[35] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

3.    BACKGROUND

3.1    The applicant’s claims

15    The applicant entered Australia in 2012 as an unauthorised maritime arrival and applied for a protection visa on 12 June 2015 pursuant to an invitation to do so. As earlier mentioned, the applicant claimed to fear harm from the Mahdi army if returned to Iraq. He claimed that he had been hired by a local officer of the Mahdi army, Mr Z, to undertake work on his house and that while undertaking that work, he had accidentally discovered a store of ammunition and weapons. He informed Mr Z of his discovery and was accused of being a spy for the Americans or the Iraqi government. He was attacked by members of the Mahdi army as a result of his discovery. They also raided his family home and forced the applicant and members of his family to flee. The applicant further claimed to fear harm due to the security situation in Iraq and, in particular, the recent increase in militia activity in southern Iraq.

3.2    The delegate’s decision

16    The delegate refused the protection visa application on 17 December 2015. The delegate did not accept the applicant’s claims that he had been contracted to undertake work on a house owned by a member of the Mahdi army, that he discovered the roomful of ammunition and weapons, or that he had been threatened by members of the Mahdi army (CB110). Nor, although the delegate accepted that the applicant had a subjective fear of harm in respect of the security situation in southern Iraq, did the delegate consider that there was any Refugee Convention or other reason why he would be personally targeted (CB111).

3.3    The IAA’s decision

17    The delegate’s decision was referred to the IAA on 21 December 2015 and affirmed by the IAA on 18 January 2016. The IAA stated that it had regard to the material referred by the Secretary of the Department pursuant to s 473CB of the Act and to those parts of the submission from the applicant received by the IAA on 8 January 2016 which reiterated a number of the applicant’s claims and challenged various aspects of the delegate’s decision, on the basis that this material was not new information within the meaning of s 473DC of the Act (IAA decision at [5]-[7]). However, the IAA was not satisfied that there were exceptional circumstances justifying consideration of the remainder of the country information provided in the applicant’s submission which was not before the delegate, given among other things that the applicant was aware of the delegate’s concerns regarding his credibility and adverse country information, and that he had been given an adequate opportunity to respond to those concerns (IAA decision at [8]).

18    The IAA referred to country information as to the indefinite freezing of the Mahdi army’s activities on 28 August 2008, and an announcement that year by Muqtada al-Sadr that the majority of the Mahdi army would be transitioned into a sociocultural organisation (the Mumahidun) while a small group of well-trained and tightly controlled fighters (the “Promised Day Brigades”, or PDB) would continue to target the foreign coalition (IAA decision at [16]-[17]). The IAA also referred to an interview with Muqtada al-Sadr in 2013 in which he stated that the Mahdi army (PDB) was still in existence under his leadership but was non-operational (IAA decision at [18]).

19    In contrast to the delegate, the IAA accepted that the applicant had been paid to undertake work at the house of the Mahdi army member, that he had discovered a store of weapons and ammunition in that house, and that the Mahdi army might store weapons and ammunition at the houses of members. However, the IAA was not satisfied that the applicant’s discovery or knowledge of the weapons or ammunition posed a threat to the Mahdi army or the PDB or would be of concern to them “given the changed nature of [the] Mahdi Army’s existence by 2012 that the PDB were only armed to fight the coalition who had departed Iraq in 2011, and that the possession of weapons by such persons was common knowledge” (IAA decision at [21]).

3.4    Application for an extension of time to the FCC

20    By an application lodged on 17 October 2017, the applicant applied to the FCC seeking an extension of time under s 477(2) of the Act. He was represented by counsel and at the hearing on 12 September 2018, was granted leave to rely on an amended application filed on 3 September 2018 (CB163).

21    Section 477(2) of the Act confers power on the FCC to make an order extending the 35 day period in which an appeal must be lodged where two conditions are met, namely:

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

(2)    the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

22    The FCC refused the applicant’s application for an extension of time for two reasons:

(1)    the applicant had given an inadequate explanation for the delay; and

(2)    in any event, the merits of the amended application for judicial review were insufficient to warrant an extension of time under s 477(2).

23    As to the second ground, the primary judge’s findings as to the merits of each ground “at an impressionistic level” (FCC reasons at [11]) may be summarised as follows.

(1)    Proposed ground 1 challenging the IAA’s finding that under s 473DD of the Act there were no exceptional circumstances to justify considering the applicant’s new country information lacked merit because the IAA did not misapply s 473DD of the Act. On the face of the IAA’s reasons, it had regard to the nature of the new information (FCC reasons at [15]).

(2)    Proposed ground 2 was properly conceded by the applicant’s counsel as it was bound to fail on the current state of the law (FCC reasons at [16]).

(3)    Proposed ground 3, that the IAA overlooked or failed to consider the applicant’s submission that the Mahdi army “faced a challenge from a splinter group” and “that the weapons he discovered had ‘Iranian numbers on the boxes’”, lacked merit because it invited the FCC to engage in impermissible merits review (FCC reasons at [17]).

(4)    Proposed ground 4 alleged that the IAA used country information relating to an event in 2008 to assess the correctness of an event which took place in 2012. The primary judge found that this ground lacked merit because the IAA’s reasons were “footnoted by reference to country information, dated 1 March 2013, and [were] referrable to a fact being asserted by the [IAA] as to what had occurred at a particular time” (FCC reasons at [18]).

(5)    Proposed ground 5 alleging jurisdictional error in the IAA’s reasons at [35]-[37], lacked merit because, on a fair reading of its reasons, the IAA correctly applied the law relating to the real chance test of serious harm (FCC reasons at [19]).

(6)    Finally, proposed ground 6 alleged that the IAA fell into jurisdictional error at [49] of its reasons in concluding that any risk of significant harm to the applicant was “remote” based on DFAT country information that Shias in Shia-dominated provinces of southern Iraq were at a “low risk” of generalised violence. The primary judge found that this ground lacked merit because it was open to the IAA to refer to that country information and that, reading the IAA’s reasons as a whole, the IAA did not misapply the statutory provisions (FCC reasons at [20]).

4.    CONSIDERATION

4.1    The limited scope of judicial review of the FCC decision

24    It is important to stress that this is an application for judicial review of the FCC decision and not an appeal. The fact that the FCC’s decision can be challenged only by judicial review is a consequence of s 476A(3) of the Act which provides that no appeal may be brought to the Federal Court from a decision of the FCC refusing to make an order under s 477(2) to extend time. As a result, it is not sufficient, for example, for the applicant to demonstrate that the FCC erred in failing to find that the IAA fell into jurisdictional error. A jurisdictional error on the part of the FCC itself must be established.

25    The jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker such as the IAA and therefore the scope of jurisdictional error in this context is narrower: CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 (CNC15) at [46] (the Court). Thus, after discussing the scope of errors of a jurisdictional kind in the context of an administrative tribunal, the High Court explained in Craig v South Australia (1995) 184 CLR 163 at 179-180 that:

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.

(emphasis added)

26    In line with this, the Full Court recently explained in DMI16 some of the limited circumstances in which an inferior court, such as the FCC, may fall into jurisdictional error:

40. It follows that the circumstances in which an inferior Court will fall into jurisdictional error are narrower than in the case of a decision-maker exercising executive power. As the High Court held in Craig 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 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.

41. As such, while an error may be jurisdictional when committed by an administrative decision-maker, the same error committed in a judicial context may be an error within jurisdiction: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20] (Allsop CJ). That is not, however, to suggest that the list of errors of a jurisdictional kind in the context of an inferior court in the passage quoted from Craig above is exhaustive. To the contrary, the High Court has cautioned that it does not provide “a rigid taxonomy of jurisdictional error”: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [73] (the Court) … see also the helpful analysis by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 … at [29]-[34].

27    In the case of s 477(2) of the Act, as Wigney J held in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES (FCA)):

43. Section 477(2)(b) of the Act imposes an express precondition to the exercise of discretion in favour of an applicant, namely that the extension of time is “necessary” in the interests of the administration of justice … It is only if that precondition is satisfied that the discretion is enlivened. It should also be emphasised that the statutory precondition is to be formed to the satisfaction of the Federal Circuit Court.

(citations omitted)

28    On the other hand, as Wigney J also observed (at [44]), s 477(2) does not define or confine the matters to which the FCC can or should have regard in considering the interests of the administration of justice. For example, Foster J said in SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 that:

46. There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

47. The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a)    Whether there has been a reasonable and adequate explanation for the applicant’s delay;

(b)    Whether there is any prejudice to the Minister;

(c)    Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

48. The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

29    Consistently with this, in dismissing the appeal from SZTES (FCA), Robertson J (Logan and Kerr JJ agreeing) in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 agreed with Wigney J’s approach, observing in the course of discussing his reasons that:

29. … Section 477(2) of the Migration Act did not expressly state what factors needed to be considered, either in considering the interests of the administration of justice, or in the exercise of the discretion. The question, then, was whether, as a matter of statutory construction, a requirement to consider this factor could be implied having regard to the subject-matter, scope or purpose of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40. A failure to have any regard to the Minister’s consent or non-opposition to an extension application might well amount to an error that, but for s 476A(3)(a) of the Migration Act, would be an appealable error. In the circumstances of this case, however, any such error would be an error within jurisdiction. There was nothing in the subject-matter, scope or purpose of the Migration Act, or s 477(2) in particular, which would support an implication that this factor must necessarily be taken into account as a condition of the exercise of the jurisdiction to extend time. It was for the court to determine what was necessary in the interests of the administration of justice in the particular circumstances of the case.

(emphasis added)

4.2    The issues raised by the grounds of judicial review of the FCC decision and in the applicant’s oral submissions

30    The applicant identified the following grounds of judicial review of the FCC decision in his affidavit filed on 21 December 2018.

(1)    Ground 1: The applicant did not have sufficient documents to explain why he was late in lodging his application for judicial review when his application for an extension of time was dismissed. However, he now had a psychological report showing the reasons for the delay (as attached to his affidavit).

(2)    Ground 2: The applicant did not lodge an application for judicial review of the IAA decision in time because of psychological issues from which he suffered:

2. … I am suffering from sever[e] psychological issues including depression and PTSD, my lawyer advised me about the (35) days limit to apply for Judicial Review, however, my severe depression affected every aspect of my life, for example I was and still unable to work because or to financially support myself, I heard from other people that I needed to pay Court filing which I was unable to afford, also my depression and the financial hardship associated with prevented me from communicating with other people who might be of help such as RACS and legal aid.

3. In around September 2017, I decided to seek my current lawyer’s assistance because I was advised by some friends who came to visit me in my house that I should regularise my visa status in Australia, they also encouraged me to seek Judicial review of the IAA decision, my friends knew about the fear that I have from going back to Iraq, they also knew about the depression that I was suffering from, they encouraged me to seek a solution to the situation that I was going through, therefore, I lodged my current application in October 2017.

(Errors in the original; emphasis added. See also the applicant’s oral submissions at T4.40-46)

(3)    Ground 3: The applicant also sought to rely upon country information which the IAA had not received in support of his claim that the militia stack weapons and ammunition in residential areas within Baghdad. The applicant said that this “was one of the reasons why the [IAA] did not accept [his] case” (applicant’s affidavit at [5]).

31    In addition, at the hearing, the applicant submitted that the FCC decision was incorrect because:

(1)    after his application for a protection visa was rejected, he was told that he would “have to depart” (T4.36), but he was confused and did not know where to go; and

(2)    if he had known about the 35 day time limit within which to institute an appeal to the FCC, he would have complied with it (T5.2).

4.3    The application must be dismissed

32    Grounds 1 and 2 and the applicant’s oral submissions seek to explain the applicant’s reasons for the delay in commencing proceedings in the FCC. While it is understandable that the applicant wishes to raise these matters, they are not capable of establishing jurisdictional error by the FCC.

33    First, while ground 1 asserts that the applicant lacked sufficient documents to explain why he was late and “now I have a psychological report which shows the reasons”, the psychological report dated 8 September 2018 and attached to his affidavit was in fact before the FCC (and is reproduced at CB153-157). Furthermore, the primary judge accepted at [12] that the applicant’s explanation for the delay based upon his psychological condition was supported by the psychologist’s report. However, the primary judge did not consider that the psychologist’s report or other factors relied upon by the applicant provided a satisfactory explanation for the “inordinate” delay (at [12]). Subject to any possible issue as to the sufficiency of the primary judge’s reasons, it follows from the authorities referred to at [25]-[29] above that any factual or legal error in the FCC’s assessment of the adequacy of the applicant’s explanation for the delay is a matter within its jurisdiction.

34    As to the caveat referred to, I raised a question in arguendo at the hearing of the application about the adequacy of the primary judge’s reasons at [12] dealing with the applicant’s submission that his psychological condition impacted upon his ability to bring judicial review proceedings in the FCC. At [12] the primary judge held that:

The delay in the present case is inordinate. The explanation for the delay initially advanced was the inability to cover the expenses and having difficulty speaking English. That explanation was sought to be expanded by the applicants asserting psychological problems of depression, anxiety and stress supported by a psychologist’s report. Neither the psychologist’s report, nor the applicant’s affidavits including problems with expenses or difficulty speaking English provide a satisfactory explanation for the inordinate [delay] in the present case. On the ground of inadequate explanation alone, the Court is satisfied that this is a case where it is not necessary in the interests of administration of justice under s 477(2) to extend time of the Act.

35    As the Minister accepted in his supplementary submissions at [4], the failure by a judge to give adequate reasons may amount to a constructive failure to exercise jurisdiction: COZ16 v Minister for Immigration and Border Protection [2018] FCA 46; (2018) 259 FCR 1 (COZ16) at [32] and [56] (Griffiths J) (approved in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [190]-[191] (the Court)); see also e.g. Minister for Home Affairs v DUA16 [2019] FCAFC 221 at [81] and [82] (Griffiths J, Mortimer and Wheelahan JJ agreeing at [98] and [185] respectively).

36    However, having carefully considered the relevant legal principles, the Minister’s submissions, and the reasons of the primary judge as a whole, I have concluded that the primary judge’s reasons at [12] were not so deficient as to give rise to a constructive failure to exercise jurisdiction.

37    It is true that the primary judge made no mention of the diagnosis of post-traumatic stress disorder (PTSD); nor did his Honour refer to the psychologist’s opinion that the applicant’s depression, anxiety and stress were each “severe”, or to the negative impact of the applicant’s psychological condition upon his quality of life and daily routine. However, while the reasons of the FCC do not specifically engage with the psychologist’s findings on these matters, equally the psychologist’s report did not directly address the question of whether the diagnosis could have been so debilitating as to explain the extreme delay by the applicant in seeking judicial review. In particular, it did not explain the impact of the applicant’s psychological condition upon his capacity to function in respects which may have prevented him from applying for judicial review in the FCC before the expiry of the 35 day period or otherwise over the substantial period of the delay.

38    In that context, in my view it was sufficient for the primary judge to find that the psychologist’s report either alone or together with the applicant’s evidence, failed to provide a satisfactory explanation for the 603 day delay. In this regard, it must also be borne in mind that, given the extreme delay, ordinary principles required the applicant to establish that his case was “exceptional” before the FCC could be satisfied that it is necessary in the interests of justice to make an order extending the period within which the appeal may be instituted: see e.g. Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at [3] (Gageler J) (by analogy) (delay of 16 months); see also e.g. Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [13] and [16] (McHugh J) (delay of 17 months); and AYX15 v Minister for Immigration and Border Protection [2017] FCA 1037 at [12] (Perry J) (delay of 17 months).

39    Secondly, ground 2 effectively takes issue with the primary judge’s finding that his psychological issues provided a satisfactory explanation for the inordinate delay in instituting proceedings in the FCC. However, as I have explained, this Court does not have power on judicial review of the FCC’s decision to rehear the applicant’s application for an extension of time within which to seek judicial review of the Tribunal’s decision but can intervene only where jurisdictional error is established.

40    Thirdly, with respect to ground 3, the fact that the IAA did not receive certain country evidence upon which the applicant wished to rely cannot establish that the FCC fell into jurisdictional error applying to the principles earlier referred to. This is so even if the IAA itself fell into jurisdictional error in refusing to receive that evidence: see by analogy CNC15 at [28] (the Court).

41    Fourthly, as in CNC15 at [48], there was no suggestion that the FCC had misunderstood the manner in which it should approach an assessment of whether or not the proposed application for judicial review had any reasonable prospects of success as an aspect of determining whether it was in the interests of justice to extend time under s 477(2)(b). To the contrary, the primary judge here correctly explained that the principles to be applied were the merits of the proposed grounds considered at an impressionistic level, the explanation for the delay, and whether there would be any prejudice to the Minister if the extension were granted: FCC reasons at [10]-[11].

42    Finally, at [20] of the FCC decision, the primary judge found that proposed ground 6 of the amended application lacked sufficient merit to warrant the grant of an extension of time. Ground 6 of the application before the FCC was quoted by the primary judge as follows:

6. The IAA, in assessing the applicant's complementary protection claim, found at [49] that “DFAT also reported that Shias in Shia dominated provinces of southern Iraq, such as the applicant, are at low risk of generalized violence”. Yet the IAA continued that “any risk of significant harm [to the applicant] is remote” High Court authority indicates that a “low risk” of harm is greater than the threshold of a “real chance” of harm. The IAA fell into jurisdictional error in applying the real chance or real risk test.

(FCC reasons at [14])

43    The primary judge’s reasons for dismissing this ground are, in their entirety, as follows:

20. In relation to ground 6, Mr Zipser referred to the reasoning in paragraph 49 of the Authority’s reasons and the reference to a low risk of generalised violence in the DFAT report. That was a correct quotation from the DFAT report. The Authority’s reasons do not however reflect an erroneous application of the real chance test. In relation to significant harm, it was open to the Authority to refer to the country information and on a fair reading of the reasons as a whole, the Authority did not misconstrue or misapply the statutory provisions in determining the claim for complementary protection. No sufficiently arguable case of jurisdictional error is made out by proposed ground 6 to make an extension of time necessary in the interests of the administration of justice.

44    I note that Ground 6 did not expressly identify the High Court authority relied upon. Nor did the Court Book include the written submissions of the parties before the FCC, or transcript of the FCC hearing. Nor did the primary judge refer to any High Court authorities. There is thus no evidence of which High Court authority or authorities (if any) were referred to in support of ground 6 by the applicant’s counsel before the FCC or as to how the point was actually argued in the FCC.

45    That said, however, the primary judge failed to deal in any meaningful way with the substance of the submission as to the failure by the IAA to distinguish between a low risk of harm, on the one hand, and the question of whether or not there is a real, and not remote, risk of harm, on the other hand. Yet a failure to appreciate the distinction between these concepts, if established, may well have given rise to an arguable ground of judicial review.

46    In this regard, in assessing the merits of a proposed ground of appeal, the FCC is required to consider the substance of that ground, albeit in an impressionistic way. As the Full Court held in Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60 at [242] (Mortimer J (Besanko J and Flick J agreeing at [1] and [88] respectively)):

… where the reasons of the Court disclose a failure to deal with the fundamental elements of a party’s case, an appellate court might be persuaded the trial judge constructively failed to exercise the jurisdiction conferred on the Court: see COZ16 at [44]-[45], referring to the New South Wales Court of Appeal’s decision in Goodwin v Commissioner of Police [2012] NSWCA 379.

(See also BVG17 v BVH17 [2019] FCAFC 17 at [46]-[47] (Collier, Rangiah and Perry JJ))

47    Thus, if the primary judge’s decision had turned upon the merits of the proposed application, his failure to consider the substance of proposed ground 6 may well have constituted a constructive failure to exercise jurisdiction and, therefore, a jurisdictional error.

48    However, the primary judge found that an extension of time should not be granted “[o]n the ground of inadequate explanation alone” (FCC reasons at [12]; emphasis added). Accordingly, any inadequacy in the primary judge’s reasons at [20] on the alternative ground that the proposed application lacked any real merit would not be material to the decision and therefore could not constitute a jurisdictional error: see Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 264 CLR 151 at [10] (Kiefel CJ, Gageler and Keane JJ), applying Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.

5.    CONCLUSION

49    It follows for these reasons that the application must be dismissed with costs.

Associate:

Dated:    29 January 2020