FEDERAL COURT OF AUSTRALIA

DTF17 v Minister for Immigration and Border Protection (No 2) [2020] FCA 383

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 15 November 2018 is dismissed.

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

THE COURT DIRECTS THAT:

1.    The Immigration Assessment Authority be removed as a respondent to the application.

2.    The third respondent be renumbered as the second respondent and be re-styled as The Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application in which the applicant seeks the grant of the constitutional writs of mandamus and certiorari directed to the Federal Circuit Court of Australia so as to quash orders of that Court. Those orders were made on 13 September 2018 dismissing the applicant’s application for an extension of time under s 477(2) of the Migration Act 1958 (Cth): DTF17 v Minister for Immigration & Border Protection [2018] FCCA 2666. The extension of time was sought for an application for judicial review of a decision of the Immigration Assessment Authority. That decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a Temporary Protection (Class XD) visa.

2    For the reasons given by Perram J in CQX18 v Minister for Home Affairs [2019] FCA 386 at [2]-[5], the Authority should not be a party to this proceeding, and neither should the judge of the Circuit Court who made the decision in question. The proper parties are the Minister and the Circuit Court. I will make directions accordingly.

Background

3    The applicant is of Tamil ethnicity from Eastern Sri Lanka. He states that during the 2010 and 2011 elections in Sri Lanka he was a supporter of the Tamil National Alliance (TNA) political party. On multiple occasions the applicant was apparently threatened and harassed by members of a rival group, Tamil Makkal Viduthalai Pulikal (TMVP), as a result of his support of the TNA. He fears harm from the TMVP if he returns to Sri Lanka.

4    On 22 March 2017, a delegate of the Minister refused the applicant’s claims for a Temporary Protection Visa. The matter was then referred to the Authority for review by operation of s 473CA of the Act. A representative of the Minister notified the Authority that s 473GB of the Act applied to a certain document because it was provided to the Minister in confidence.

Before the Immigration Assessment Authority

5    On 13 July 2017, the Authority affirmed the decision of the delegate of the Minister to refuse the applicant a protection visa. The Authority accepted the applicant’s claims that he was involved with the TNA and was threatened by members of the TMVP. The Authority also accepted that there is a real chance that the applicant will be targeted for serious harm by the TMVP if he returns to Eastern Sri Lanka. However, the Authority found that the applicant would not face a serious chance of harm outside of Eastern Sri Lanka and so would be able to relocate to another area of Sri Lanka and he would not be at risk. The Authority went on to reject the applicant’s other claims on the basis of an imputed association with the Liberation Tigers of Tamil Eelam, discrimination as a Tamil, illegal departure, failed asylum seeker status and for complementary protection.

Before the Federal Circuit Court

6    A proceeding in the Circuit Court for the quashing of the decision of the Authority was commenced on 21 August 2017. The proceeding was brought four days outside the 35 day period imposed under s 477(1) of the Act. The applicant sought an extension of time under s 477(2) of the Act. Section 477(2)(b) relevantly provides that an extension of time order is to be granted where the Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

7    The matter was heard on 13 September 2018. The applicant explained to the Circuit Court judge that the reason for the delay was because of his financial difficulty in paying the Court filing fee. The Circuit Court judge found that the delay was not substantial. The judge went on to state that if there was otherwise merit in the grounds of the application, the Court would have extended time.

8    The prospective application for review advanced three unparticularised grounds of review:

1. Immigration Assessment Authority made a jurisdictional error.

2. The applicant family had lengthy involvement with LTTE.

3. If he send back he will be persecuted. (sic)

9    The judge dealt with each ground of the application in turn and ultimately determined not to grant an extension of time by reference to the lack of sufficient merit in the grounds advanced in the application. For each ground the Circuit Court judge stated that the relevant ground “lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.”

10    Orders dismissing the extension of time application were made on 13 September 2018. Reasons for judgment were also delivered orally on 13 September 2018 but, as will be seen, written reasons were not published until 14 December 2018.

Judicial Review Proceedings

11    The judicial review application in this Court was filed on 15 November 2018, together with an affidavit. The affidavit identifies two grounds of review, namely:

Ground One: Jurisdictional Error – The primary judge erred by failing to give and/or publish reasons for dismissing the Applicant’s Application for an extension of time leading to a conclusion that the primary judge failed to consider the Applicant’s application and as such failed to exercise jurisdiction.

Particulars

a. On 13 September 2018, the Primary Judge made orders dismissing the Applicant’s application for an extension of time in the Matter. On 4 October 2018, the Primary Judge’s Associate advised the Applicant via his counsel that the reasons will be published in 2-4 weeks. As of the date of this application, the Primary Judge has not published the reasons for dismissing the Matter.

Ground Two: Jurisdictional Error – The Primary Judge failed to consider or find that the Authority failed to turn its mind to whether it thinks it appropriate to disclose any matter contained in the 473GB certificate to the referred applicant and as such failed to exercise the discretionary powers conferred on it pursuant to s 473GB(3) within the bounds of legal standard of reasonableness. Non-disclosure of the existence of the certificate and the factors that influenced the exercise of its discretion under 473GB(3), undermined the Applicant’s participation in the proceeding such that the Applicant was denied procedural fairness, leading to an Authority decision that was plainly unjust and lacking an evident and intelligent justification.

Particulars

a. The Certificate was issued on 23 March 2017 [CB 224]. The Certificate was review material and the Authority had regard to Certificate.

b. The Authority has a discretion whether or not to disclose the certificate under section 473GB(3). Consequently, the Authority was required to effect a satisfactory compromise between the demands of disclosure and the need for confidentiality. The Authority exercised its discretion under 473GB(3) unreasonably in that it failed to disclose the existence of the certificate or the factors that influenced the exercise of its discretion.

(sic)

12    By s 476A(3)(a) of the Act, no appeal lies to this Court against the order of the Circuit Court under s 477(2) to refuse the application for an extension of time. It is doubtless for that reason that the applicant has been forced instead to seek relief by way of review of the decision of the Circuit Court in the original jurisdiction of this Court under s 39B(1) of the Judiciary Act 1903 (Cth). As will be seen, the absence of an appeal procedure, whether by way of right or only by leave, is relevant to the applicant’s first ground of review.

13    The jurisdiction of this Court to hear and determine an application under s 39B(1) of the Judiciary Act for review of a decision of the Circuit Court under s 477 of the Act was confirmed in Tang v Minister for Immigration & Citizenship [2013] FCAFC 139; 217 FCR 55 at [11].

14    Jurisdictional error comprises the principal basis on which the remedies provided in s 39B(1) of the Judiciary Act will issue: Kirk v Industrial Court of NSW [2010] HCA 1; 239 CLR 531 at [56]); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; 264 FCR 454 at [38]. Because an application under s 39B(1) of the Judiciary Act is not an appeal, its success depends upon the applicant being able to demonstrate jurisdictional error on the part of the Circuit Court judge; it will not suffice to demonstrate any jurisdictional error on the part of the Authority as may be sufficient for an appeal: SZTES v Minister for Immigration & Border Protection [2015] FCAFC 158 at [50].

15    On 6 December 2019, the date previously listed as the hearing date, I heard an application by the applicant for an adjournment. On that date I delivered judgment in DTF17 v Minister for Immigration & Border Protection [2019] FCA 2074 granting an adjournment and relisting the matter for hearing on 6 March 2020. The procedural history of the matter and the reasons for its delay since 2018 are set out in the reasons for that judgment.

16    By the time the matter came on for hearing again on 6 March 2020, the applicant had not amended his grounds of review. He appeared before me self-represented with the assistance of an interpreter who interpreted between the English and Tamil languages.

Ground 1: Publishing of reasons

17    On 14 December 2018, the Circuit Court judge published written reasons for the decision made on 13 September 2018 to dismiss the application. The reasons had been delivered ex tempore when the orders were announced. Even if there was some general basis for the absence of the publication of reasons within a certain timeframe constituting jurisdictional error, upon publication the materiality of such a ground fell away, c.f. CQX18 v Minister for Home Affairs [2019] FCA 386 per Perram J at [15]-[19]. Put differently, although the Circuit Court’s reasons had not been published at the time the review application was filed on 15 November 2018, they were published approximately a month later which event overtook the complaint that no written reasons had been furnished.

18    Although not specifically raised by ground 1, in fairness to the applicant, who was self-represented before me, I will also consider whether the late publication of the written reasons was a denial of procedural fairness.

19    Since there was no possibility of appealing against the judgment of the Circuit Court, the late publication of reasons cannot have affected any ability to frame an appeal within any applicable time limit. There is nothing before me to suggest that the kind of issues that arose in AAM17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1951 or CQX18 v MHA [2019] FCAFC 142; 372 ALR 137 arise in this case.

20    In short, I do not see any realistic basis for it to be contended that the lateness of the provision of written reasons gives rise to any jurisdictional error in the nature of procedural unfairness.

21    In the circumstances, review ground 1 must fail.

Ground 2: The s 473GB Certificate

22    The s 473GB certificate ground was not advanced by the applicant in the Circuit Court. The Circuit Court judge was thus not in a position to consider whether jurisdictional error on the part of the Authority arose from the non-disclosure by the Authority of the s 473GB certificate in his consideration of the extension of time application.

23    The applicant asserts that the Circuit Court failed to consider, or find, that the Authority failed to turn its mind to the disclosure of the s 473GB certificate and failed unreasonably to exercise its discretionary powers under s 473GB(3). The applicant asserts that he was denied procedural fairness as a consequence.

24    Under s 473CB(1)(c) of the Act, the Secretary to the Minister must provide to the Authority any material in the Secretary’s possession or control which is considered by the Secretary to be relevant to the review.

25    The Minister concedes in this case that neither the s 473GB certificate, nor the document identified in the certificate (an identity assessment form relating to the applicant) were provided to the Authority by the Secretary as required under s 473CB of the Act.

26    The Minister concedes that he cannot maintain an argument that the Authority considered exercising its discretion under s 473GB(3) of the Act, as it had neither the relevant certificate nor the identity assessment form in its possession. As the Authority was never provided with the certificate or the identity assessment form, the occasion for the exercise of the discretion under s 473GB(3) never arose.

27    This review ground will be established if the Circuit Court judge was bound by procedural fairness to have regard to the failure of the Authority to inform the applicant of the certificate when the Circuit Court exercised jurisdiction under s 477(2) of the Act. Section 477(2) of the Act does 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: SZTES at [29]. It is clear that under s 477 of the Act a relevant factor to the determination by the Circuit Court to grant an extension of time includes whether the applicant has demonstrated, at an fairly impressionistic level, that the proposed grounds of review are reasonably open: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] (approved on appeal in MZABP v Minister for Immigration & Border Protection [2016] FCAFC 110 at [38] and in CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 at [39]-[40]).

28    The applicant’s argument is essentially that had he known about the s 473GB certificate at the time of his application before the Circuit Court he would have argued that there was jurisdictional error in the Authority because he had not been made aware of the existence of the certificate by the Authority and was thus denied procedural fairness by the Authority (see SZVDC v Minister for Immigration & Border Protection [2018] FCAFC 16; 259 FCR 154 at [69]). The applicant submits the denial of the opportunity to make this argument out as reasonably open before the Circuit Court was thus a denial of procedural fairness.

29    However, whether or not that is so depends on whether the argument could possibly have been successful before the Circuit Court, i.e. could ‘practical injustice’ have resulted? See Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38].

30    The question then becomes whether, realistically, the Authority’s decision was affected by jurisdictional error due to a failure by the Secretary to provide to the Authority relevant material as required under s 473CB of the Act.

31    The point at which the Secretary must form a state of mind of relevance as to the applicable documents for the purposes of s 473CB(1)(c) is at the time of referral of the matter to the Authority: Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136; 254 FCR 534 at [73]; EMJ17 v Minister for Immigration & Border Protection [2018] FCA 1462 at [41].

32     The identity assessment form is a Department form which outlines various findings of an assessing Identity Officer in relation to the applicant. The form records that based on research and interview the assessment of the applicant’s identity is “Identity as claimed”. It could only have been relevant to the issue of the applicant’s identity – which was not a matter of any dispute before the Authority.

33    A breach of procedural fairness does not amount to jurisdictional error unless it is material, and it can only be material to a decision if compliance could realistically have resulted in a different decision: Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [2]-[3], [45]. The question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof: SZMTA [4], [46].

34    I find that the identity assessment could not have made any difference to the Authority’s decision. The identity assessment form is an innocuous document that is not relevant to any issue that the Authority considered and decided adversely to the applicant.

35    The Minister also concedes that the s 473GB certificate itself was not given to the Authority. Again, the Minister submits that even on the assumption of relevance under s 473CB(1)(c) of the Act, in the circumstances, any non-compliance by the Secretary in providing the certificate to the Authority was not material having regard to the issues on the review.

36    To the extent that s 473GB(2) of the Act was engaged in the present case and the Authority had been aware of the s 473GB certificate, the High Court in BVD17 v Minister for Immigration & Border Protection [2019] HCA 34 at [2] and [35] has confirmed 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.

37    In the circumstances, even if the point relying on the s 473GB certificate had been raised before the Circuit Court, it could not have succeeded. Ground 2 must accordingly fail.

The applicant’s new document

38    The applicant tendered a letter dated 19 December 2019 addressed to “To Whom It May Concern”. It is, in effect, a positive letter of reference as to the applicant’s character, and it asserts that he will be in danger if he returns to Sri Lanka. The applicant said that the letter is from his Village Headman. As compelling as the letter is, it has no relevance to the matters that I am called upon to decide – it is not relevant to the question of whether the Circuit Court judge was in jurisdictional error.

Conclusion

39    In the circumstances, the application falls to be dismissed. The costs should follow the result.

Associate:

Dated:    23 March 2020