Federal Court of Australia

GJA18 v Federal Circuit Court of Australia [2021] FCA 340

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the second respondent’s costs, such costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    This application concerns the refusal of the Federal Circuit Court (FCC) to extend time for the filing of an application under s 477(1) of the Migration Act 1953 (Cth) in circumstances where that application was filed approximately 18 months out of time.

2    The application is made pursuant to s 39B of the Judiciary Act 1903 (Cth) for the grant of the constitutional writs of mandamus and certiorari directed to the FCC to quash orders of that Court and to direct the Court, differently constituted, to determine the application. Those orders, made on 10 June 2020, dismissed the application for an extension of time under s 477(2) of the Migration Act. The extension of time was sought by the applicant to make an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 31 May 2017 affirming a decision of a Delegate of the Minister not to grant the applicant a Safe Haven Enterprise (subclass XE-790) Visa (SHEV).

Legislation

3    For the purposes of determining the substantive issues on this application the relevant statutory provisions are s 476 and s 477 of the Migration Act which provide:

476    Jurisdiction of the Federal Circuit Court

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    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.

4    It was accepted by both parties that the applicant was unable to appeal the primary judge’s decision to refuse to grant an extension of time to apply for a review of the IAA’s decision (Migration Act: s 476A(3)(a)). The only avenue available to the applicant was by way of s 39B of the Judiciary Act and to apply under s 476A for judicial review of the primary judge’s decision on the basis that it was invalid by reason of jurisdictional error.

5    In this regard it must be kept in mind that the FCC is an inferior court and its decisional freedom and corresponding immunity from jurisdictional error is broader than that of an administrative decision maker: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20]. This was made clear in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 179-180 where the High Court said in relation to the difference between administrative decision makers and inferior courts:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise of purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

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.

Background

6    The applicant is an Iranian national, who arrived in Australia as an unauthorised maritime arrival on 25 August 2012. In his application for a SHEV, the applicant made a series of claims for protection, including that he:

    has two body tattoos and body tattoos are illegal in Iran;

    was shot in the leg in 1383 (2004) by security officers, and then handcuffed, arrested, and taken to hospital. He was then moved to prison where he was investigated and his fingerprints and photographs taken. He was later sentenced to a five year good behaviour bond;

    joined in the festivities on Ashura Day in 1388 (2009), where he removed his shirt. The Basij arrived and were very violent towards the people. The applicant managed to escape;

    was playing sport with friends in 1390 (December 2011) at the end of Azar. A group of men in plain clothes came and arrested them and made them lie down and take off their shirts. They were photographed, possibly for the purpose of identifying it they were at the 1388 protests;

    departed the country whilst on a bond and failed to report to the police station as he was required. The applicant’s parents’ house was raided about two weeks after he departed.

7    On 10 November 2016, the Delegate refused the applicant’s application for a SHEV. The Delegate accepted some of the applicant’s claims, but did not accept the claims relating to the illegality of body tattoos in Iran; nor the claims relating to Ashura Day in 1388; the claims in relation to 1390 at the end of Azar; nor the circumstances of the applicant’s departure. The Delegate was not satisfied that the applicant met the requirements of s 36(2) of the Migration Act. At the time of the Delegate’s decision, the applicant was subject to a bridging visa that had been granted on 16 May 2016.

8    The matter was referred to the IAA on 15 November 2016. On 6 December 2016, the 21 day period in which the applicant was entitled to make submissions and provide new information to the IAA expired. The applicant made several requests for an extension of time but did not make a submission or provide new information by the date of the IAA decision, being 31 May 2017.

9    The IAA accepted that the applicant may face difficulty obtaining work; possible harassment, warnings, or fines in relation to his tattoos; and that he will be questioned upon return to Iran, but it did not find that this would amount to a real chance of him being seriously harmed in the reasonably foreseeable future; nor a real risk that the applicant will suffer significant harm. The IAA affirmed the decision of the Delegate.

10    On 17 July 2017, Refugee Legal referred the applicant’s case to Victoria Legal Aid. Thereafter, between 28 August 2017 and 21 November 2018 there was a series of approximately 11 interactions, or attempted interactions between Victoria Legal Aid and the applicant which comprised the giving of assistance of a ‘general kind’, sending the applicant the relevant Court application forms with instructions on how to complete them, and culminated in a lawyer completing the forms on 21 November 2018 and the filing of the application on 3 December 2018.

11    An amended application was filed on 22 November 2019. That application contained two grounds of review:

1.    The Immigration Assessment Authority lacked jurisdiction in respect of the Minister’s delegate’s decision concerning [the applicant] because he was not a ‘fast track applicant’ and the Authority only has jurisdiction in respect of such people under the Act.

2.    Alternatively, the Authority erred by merely reciting (at [10]) and then failing to consider, in the relevant legal sense, a significant and clearly articulated claim raised by the Applicant, namely that he was at risk of harm because Iran is an Islamic state and he ‘had small parties every now and again’ and he drank alcohol including on a significant public holiday.

12    The application for review came before the FCC for final hearing on 3 December 2019 and Reasons for Judgment were delivered on 10 June 2020.

13    The applicant was represented in the FCC by the same counsel who appeared before this Court. Written submissions were filed on behalf of the applicant in the FCC on 22 November 2019. When the matter came on for final hearing on 3 December 2019, the primary judge queried the applicant’s explanation for delay in filing in the FCC and the applicant thereafter sought to adduce further evidence in relation to delay. The matter was adjourned to enable the applicant to file further material in support of the application to extend time. Two additional affidavits were filed on 6 April 2020, one by the applicant and one by a solicitor at Victoria Legal Aid acting on behalf of the applicant (Reasons [9]-[10]). The matter came back before the primary judge on 12 May 2020.

14    The FCC refused the application for an extension of time and dismissed the application for review of the decision of the IAA. The primary judge found that (1) the length of the delay in bringing the application, being approximately 18 months, was such that the delay alone was a sufficient basis to refuse the application to extend time; (2) the length of the delay in bringing the application, taken together with the failure to adequately explain the delay, was also a sufficient basis to refuse the application to extend time; (3) the length of the delay in bringing the application, taken together with the failure to adequately explain the delay, and the other considerations pertaining to the interests of the administration of justice, was also a sufficient basis to refuse the application to extend time (Reasons [84]).

15    As to the substantive application, the primary judge found that ground one of the grounds of review was sufficiently arguable but that ground two was not. As to ground two, the primary judge held (Reasons [82]-[83]):

Questions as to whether a decision-maker properly considered and engaged with a claim, or dealt with it, ordinarily involve assessments of degree. So much can be seen when courts have to apply concepts as ‘not too readily’ drawn, or whether a submission is ‘of substance’. When this background is considered, in my view, a court needs to be cautious before it dismisses an argument as being not ‘sufficiently arguable’.

In the present matter, I am able to readily observe and understand the Applicant’s argument. My view, however, is when the findings of the Authority are looked at in context, and when the matter is assessed at an impressionistic level, that this particular ground of review is not sufficiently arguable. I tend to prefer the view articulated by the Minister.

16    There was no challenge to the primary judge’s findings in relation to the second ground of review raised by the applicant in the FCC.

17    In forming his view on the merits of the substantive application, the primary judge correctly identified that the FCC’s task was to assess whether the substantive case is “sufficiently arguable”, and was not to travel “beyond an examination of the grounds at what should be a reasonably impressionistic level” (Reasons [66]): MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] citing with approval MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].

18    Ground one contended that the IAA lacked jurisdiction in respect of the Delegate’s decision concerning the applicant because, upon the grant of a bridging the visa he was, for the purposes of the Migration Act, a lawful non-citizen, and so neither an unauthorised maritime arrival nor a fast track applicant. Consequently, everything that the IAA did after the grant of the bridging visa was beyond power.

19    As the primary judge observed (Reasons [68]):

…There is little doubt that the point raised by ground one, if it were to be accepted, is a substantive one. The consequence for the Applicant (and no doubt for many others in his shoes in other cases) is that if the ground were to be upheld, the Applicant would not be regarded as a ‘fast track applicant’ for the purposes of the Act. This would produce the result that the Applicant was entitled to a review of the delegate’s decision by the Administrative Appeals Tribunal under Part 5 of the Act, rather than review by the Authority as part of the fast track process established under the Act.

(original emphasis)

20    Subsequent to the decision of the FCC, and subsequent to the hearing of this application, the Full Court has held, in accordance with previous observations of Perram J (with whom Robertson and Abraham JJ agreed) in CLM18 v Minister for Home Affairs [2019] FCAFC 170; (2019) 272 FCR 639 at [3]-[4], that the granting of a bridging visa in circumstances such as those that pertain to the applicant, whilst changing his immigration status from unlawful non-citizen to that of a lawful non-citizen pursuant to s 13 of the Migration Act, does not mean that the applicant is no longer an unlawful maritime arrival. That designation continues to apply to the applicant because he entered Australia by sea at one of the places mentioned in s 5AA(1)(a) of the Migration Act and became an unlawful non-citizen because of that entry: BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [106].

21    For the reasons given in BXT17, ground one as framed before the FCC, is no longer arguable.

The applicant’s present application

22    By his Statement of Claim filed on 3 July 2020, the applicant’s sole ground of complaint is that the decision of the FCC made on 10 June 2020 was affected by error, in that the FCC:

a.     failed to lawfully apply the ‘interests of the administration of justice’ test in s 477(2) of the Migration Act 1958 (Cth) or, alternatively, failed to consider a significant matter bearing on the question of what is in the ‘interests of the administration of justice’, namely that this application concerned a protection claim;

b.    reached a decision which was legally unreasonable in all the circumstances, including that this was a case concerning a protection claim in respect of which a ground was positively found to be ‘sufficiently arguable’.

Was there a failure to lawfully apply the ‘interests of the administration of justice’ test?

23    As to the first “particular” of the ground on which the application is based, the applicant contends that the FCC misconceived the nature and extent of its power under s 477(2) of the Migration Act which, properly described, amounts to jurisdictional error. The applicant contends that the error arises from the FCC, having properly considered four factors that are identified in the case law to be relevant to what was in interests of the administration of justice, namely, the extent of any prejudice to the respondent, whether the grounds of review are “sufficiently arguable”, the extent of any delay, and the explanation for the delay, failing to go further by substantively engaging with the effect of the application relating to a protection claim.

24    In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 382 ALR 246, the Full Court set out the following observations to provide guidance when attempting to ascertain whether a jurisdictional error has occurred in the exercise of power under s 477(2).

[65]    First, it seems to be fairly well established that the discretion is not confined by any obligation on the FCC to take into account or to ignore any particular matter. The nature, scope and purpose of the section does not identify any mandatory relevant consideration nor any consideration which must be excluded. That is subject to the requirement that the court must ascertain whether it is in the interests of justice to extend time for the making of a review application. Rather than regarding that as a relevant consideration of any kind it is more properly seen as the object of the exercise of power.

[66]    Second, it follows that a failure to take into account certain factors which are often relevant to the exercise of power, such as any explanation for delay or any prejudice or absence of prejudice to the Minister, will not, per se, result in a jurisdictional error of failing to take into consideration a relevant circumstance. The same might be said of a failure to take into account the merits of the appellants’ proposed grounds of review.

[67]    Third, however, depending upon the circumstances, evidence that the FCC omitted to take into account the merits of the appellants’ proposed grounds of review could evidence that it has acted upon a misconception of its function or a misunderstanding of its power and thereby committed a jurisdictional error. Whilst there may be cases where any relevant delay has been contumelious or contumacious and the prejudice to the Minister so great that an omission to consider the merits of the proposed grounds of review may not suggest a misunderstanding of function or power such cases would necessarily be rare. However, there is no need to reach any conclusion on that issue.

[68]    Fourth, the fact that, on an application under s 477(2), the FCC has engaged in more than an impressionistic evaluation of the appellant’s proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction … the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. Where the proposed grounds are examined for the purposes of ascertaining whether they would succeed were an extension granted, it is apparent that the power and the function to be performed are misunderstood.

[69]    This fourth conclusion is coherent with the historical and prevailing attitude of the common law not to deny access to the courts to litigants who have some arguable claim. In this respect, an important consideration is that s 477(2) enables the FCC to extend the time in which a person may seek review in circumstances where no other avenue of redress exists. For the intending applicant it is clear that the consequences of a refusal to extend time are legally and practically significant. In relation to the former, their access to the courts for the purposes of ventilating their claimed rights will be terminated. In respect of the latter, it is regularly said that the gravity of the consequences to a bona fide asylum seeker of being denied access to the Courts may, of itself, be a real reason for granting an extension: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.

25    The applicant points to three matters in particular that the FCC is said to have disregarded: the history of the proceedings and the conduct of the parties; the nature of the litigation; and the consequences for the parties of the grant or refusal of the application for an extension of time.

History of proceedings

26    The applicant contended that, “For the Minister to take almost five years on [the visa application] process and then resist an extension of time of less than a third that length of time for [the applicant] to challenge it is surprising”. The applicant submits that this “was relevant to the question of whether justice was served overall by requiring strict compliance with an extendable statutory time frame”, and that by failing to consider it, the FCC was acting “contrary to authority and not in accordance with the relevant provision”. Whether the FCC could be considered to be requiring “strict compliance” with the time frame in the context of the length of the delay in this matter is questionable. In any event, no submission to that effect was made in the applicant’s written submissions filed before the FCC and no mention of such a submission having been made orally appears in the Reasons.

27    As to the history of the proceedings, the primary judge detailed the history of the matter from the date of the applicant’s arrival (Reasons [3]-[9]), which revealed there had been long periods of delay relating to the applicant’s visa application, albeit without comment, and which drew attention to the application for judicial review having been filed on 3 December 2018, approximately 18 months out of time (Reasons [12]). In oral submissions, counsel for the applicant complained that the reference to “approximately 18 months” of delay was “just wrong; it was less than 17 months”. Even if that is so, that is an error within jurisdiction and is not a matter that bears on the current application. In his written submissions to the FCC, the applicant described the application for judicial review being “over 17 months late”. Nothing turns on this point.

28    The applicant complains also that “the link between this proceeding and a deprivation of liberty means that the Court should have been more lenient to an application for an extension of time” and this matter was ignored by the FCC. There is no basis for this complaint. The primary judge dealt at length with the effects of immigration detention on the applicant’s delay in pursuing his application for review (Reasons [43]-[46]).

Nature of the litigation

29    The applicant contends the “position of vulnerability of an asylum seeker are matters of significance when determining what is in the interests of the administration of justice” and these factors and the nature of the case more generally were not considered by the FCC.

30    It cannot be suggested that the FCC did not consider the consequences for the applicant, as an asylum seeker, in determining that it was not in the interests of the administration of justice for time to be extended. The primary judge accepted that “detention would have come as a shock to the Applicant, that he would have felt anxious and depressed, and would have been focused on surviving, or getting through the detention” (Reasons [44]).

31    The Full Court has recently reiterated, in the context of the exercise of the discretion in s 477(2) to extend time, that an applicant would not normally be required to demonstrate more than that their proposed grounds of review had some prospects of success following “a threshold assessment of merit” (DHX17 at [90], using the term adopted by Gageler J in EBT16 v Minister for Home Affairs [2019] HCA 44; (2019) 374 ALR 443 at [7]). The Full Court observed that, “Whether that standard of veracity is described as being ‘arguable’, ‘reasonable arguable’, ‘sufficiently arguable’, or ‘having reasonable prospects of success’ or some other description, the hurdle is low” (DHX17 at [76]).

32    The Full Court continued (DHX17 at [77]):

The above focus on the veracity of any proposed grounds of review does not result in any conclusion that the mere existence of some merit will warrant the granting of an extension of time. As the authorities have established, the discretion is to be exercised after the weighing of all the relevant circumstances of the particular case, with the apparent strength of any proposed ground being but one consideration.

(original emphasis)

33    In the present case, having considered the applicant’s explanation for the delay and having concluded that one of the applicant’s grounds of review was sufficiently arguable, the primary judge said (Reasons [85]):

Ground 1 of the grounds of review is sufficiently arguable. In my view however, that aspect does not, when considered in conjunction with the matters above, [which included a finding that the only other ground, being that the IAA fell into error by failing to consider a claim raised by the applicant that he was at risk of harm in Iran, was not sufficiently arguable at [83]] persuade me to exercise the discretion under s 477(2) of the Act. It is simply one matter that I must consider alongside the matters I have referred to above. It does not outweigh those other matters. In my view, as I have indicated, those matters provide an independently sufficient basis to dispose of the Application.

(original emphasis)

34    No error is shown in the primary judge’s approach.

Consequences for the parties of the grant or refusal of the application

35    The applicant contends that the FCC considered the consequences for the Minister of an extension time but did not consider the consequences for the applicant, other than to note that he would not be able to appeal the refusal of the extension of time.

36    The consideration of the “consequences for the Minister” was in the context of the primary judge’s consideration of whether there was any prejudice to the Minister if time were to be extended. The primary judge recorded that the Minister did not assert that he would suffer from any prejudice and he would therefore not have regard to any prejudice to the Minister in determining the application (Reasons [57]).

37    In addition to the primary judge’s obvious cognizance of the applicant’s claim to be a refugee and that he was in detention, the primary judge also recorded that the matters that arise for consideration include that there is no right to appeal from this decision to the Federal Court of Australia (Reasons [59]). Although observing that this was not a matter that any party addressed him on (Reasons [60]), the primary judge, nevertheless, said that “it is a matter of some import, and one which tends to favour the grant of an extension of time” (Reasons [61]).

38    The applicant points to a passage from the judgment of Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [191], in which, in the context of proceedings for prerogative relief arising from the refusal by the Refugee Review Tribunal to grant the applicant a protection visa on the basis that she did not show she had a well-founded fear of persecution, their Honours said, “It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”. The applicant submitted that “what the High Court said was ‘necessary always to bear in mind’ did not seem to enter the mind of the Federal Circuit Court judge on this application”.

39    The passage from the judgment of Gummow and Hayne JJ should be set out in its entirety. Their Honours said:

Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.

40    Having reached the conclusion that the applicant’s claim, that the IAA had erred in failing to consider, in a relevant legal sense, a significant and clearly articulated claim raised by the applicant, was not sufficiently arguable, no error of jurisdiction is shown on the part of the primary judge in his weighing of the various considerations which informed his decision that it was not in the interests of the administration of justice to extend time for the filing of the application.

Was the decision “legally unreasonable”?

41    As to the second “particular” of the ground on which this application is based, the applicant contends that the FCC committed a jurisdictional error by failing to engage with its statutory task by: finding that there was an arguable ground for review yet still elevating the importance of an extendable time limit over the importance of the rule of law or the basic humanitarian objectives protected by s 36 of the Migration Act; finding that the applicant had the necessary forms to apply to the FCC from an early stage; improperly weighing the extent of the applicant’s homelessness, his back injury, his mental state, and his inadequate English abilities; and, acting procedurally unfairly in speculating how the applicant navigated the Centrelink system or emailed the IAA. In so doing, it is argued that the primary judge reached a decision which was legally unreasonable in all the circumstances.

42    A decision can be considered “legally unreasonable” in the context of judicial review proceedings if no reasonable repository of power could have taken the impugned action or decision: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at [19]; Minister for Immigration v Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [53]; Minister for Immigration v Border Protection v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [23]-[26].

43    Towards the conclusion of the hearing of this matter, the Minister raised the fact that these matters of alleged procedural unfairness had only been raised in oral submissions and were not squarely raised in the grounds of review. The various matters had, however, been raised in the context of the allegation of legal unreasonableness in the applicant’s written submissions. The applicant contended that none of the matters had been put to him in the course of the hearing before the FCC. It was accepted by the Minister that the applicant had not been cross-examined on his affidavit evidence.

44    Leave was ultimately sought and given for the applicant to file a Notice to Admit. The Notice, filed on 7 December 2020, required the Minister to admit that the applicant was not addressed or questioned about any aspect of his sworn evidence by counsel for the Minister, that he was not addressed or questioned about any aspect of his sworn evidence by the primary judge, and that the primary judge did not raise or otherwise provide an opportunity for the applicant to comment on various circumstances surrounding his receipt of Centrelink payments. By a Notice of Dispute, filed on 18 December 2020, the Minister disputed the truth of each of the facts set out in the Notice to Admit.

45    On 12 February 2021, the applicant sought leave, in Chambers and without filing a formal application, to file further affidavit evidence which would comprise the transcript of the proceedings before the FCC. The Minister objected on the basis that the decision in BXT17 could mean the applicant might accept it would be futile to remit the matter to the FCC and, in any event, it would be productive of wasted costs. I refused leave and indicated that my reasons for doing so would be included in this judgment.

46    First, the applicant did not seek leave to amend the Statement of Claim to allege procedural unfairness as a ground of error on the part of the FCC. That was a matter that had been squarely raised by the Minister in his written submissions, together with the need for the applicant to obtain and file a transcript of the two hearings before the FCC if the complaint was to be pursued. To the extent that the evidence sought to be adduced goes to that issue, it should not be admitted.

47    Secondly, as the Full Court observed in DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454 at [56]:

However, it does not necessarily follow that a breach of procedural fairness will (necessarily) constitute a jurisdictional error in the context of proceedings in a federal court. As Gaudron and Gummow JJ observed in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [42], while a denial of procedural fairness by an administrative decision-maker will sound in jurisdictional error, “different considerations arise where the Commonwealth officer is a member of a federal court: semble SZVDC v Minister for Immigration and Border Protection (2018) 259 FCR 154 at [69] (the Court).

48    In this case, even if, assuming in favour of the applicant, that the transcript of the proceedings before the FCC does indeed reveal that none of the matters outlined above were put to the applicant either in cross-examination or by the primary judge that would not amount to a denial of procedural fairness by the FCC. Compliance with the requirements of procedural fairness "requires that a person be give a reasonable opportunity to present her or his case having regard, among other things, to the established procedures of courts” (DMI16 at [58]).

49    It should be recalled that the matter first came before the primary judge for final hearing on 3 December 2019, at which time, the primary judge gave the applicant the opportunity to supplement the evidence he proposed to adduce in explanation of his delay in filing the proceedings in the FCC. The matter was adjourned, and two additional affidavits were filed before the matter came back before the primary judge on 12 May 2020.

50    The primary judge indicated that he had “reviewed carefully the affidavits the Applicant seeks to rely on to explain the delay” and set out a detailed summary of the proceedings from the date the applicant learned of the decision to refuse his visa application (Reasons [23]-[24]). The primary judge indicated that the summary of the relevant events had been “taken from the affidavits relied on by the applicant” and that he accepted them “as an accurate factual summary of what occurred” (Reasons [25]). The applicant was not disbelieved.

51    The primary judge observed that there was a range of reasons on which the applicant sought to rely when explaining his delay, being (Reasons [25]):

a.    he lacked the funds to brief a lawyer;

b.    he suffered from a back injury and was unable to leave home;

c.    he was suffering from anxiety, depression and shock, and that he was focussed on surviving in detention;

d.    he was homeless for a period; and

e.    he had difficulty with English.

52    The primary judge dealt with each of these reasons and drew the inferences he was entitled to draw from the totality of the evidence before him. He accepted that the applicant lacked the funds to pay for a private lawyer (Reasons [27]) but found that he had access to legal advice three months after the decision of the IAA (Reasons [33]). He accepted that the applicant had injured his back, but found, based on the evidence of the applicant’s lawyer and the lack of medical evidence, that it was not so significant as to prevent him from seeking advice (Reasons [36]). He accepted that the applicant was homeless after being evicted but found, based on the applicant’s evidence that the applicant quickly took up accommodation with some Iranian acquaintances (Reasons [38]), and in the absence of any further evidence as to his homelessness (Reasons [39]), that it was for an “incredibly short” period which did not explain the delay in filing (Reasons [41]). He accepted that the applicant suffered shock and strain from being placed in detention, but found, in light of the fact that the applicant was not detained until 12 months after being informed of the IAA’s decision, and in the absence of any medical evidence to establish he was mentally incapable of completing the forms (Reasons [45]), that his detention did not provide an explanation for the delay. He accepted that the applicant has limited English skills (Reasons [47]), but inferred from a range of matters that he “either had to have some understanding of English, or assistance from others with written English, or knowledge as to how to ask for assistance with English from others” (Reasons [48]) such that his lack of English language skills did not explain the delay (Reasons [53]).

53    The applicant was not denied procedural fairness by the FCC, nor was the decision “legally unreasonable”.

Post-hearing submissions

54    As has been noted above, after the hearing of this application, the Full Court delivered judgment in BXT17. The parties were invited to file submissions as to the consequences of BXT17 for this application. The applicant also sought and was granted leave to file additional submissions on the consequences of the decision of the Full Court in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 405, which was also delivered after the hearing of the application. The second respondent was also granted leave to file submissions on McHugh.

55    The applicant submitted that the outcome in BXT17 has no bearing on the outcome of the current application for two reasons: first, because the ground in common with BXT17 was not the only ground raised before the FCC; and second, the strength or weakness of the second ground played no role in the outcome in the FCC.

56    In circumstances where the applicant advanced no ground challenging the findings of the primary judge in relation to ground two before the FCC, and where a unanimous decision of the Full Court has foreclosed the argument in respect of ground one, although I am cognizant that an application for Special Leave to Appeal to the High Court of Australia has been filed in BTX17, the applicant’s submission cannot be accepted.

57    It would be futile to remit the matter to the FCC for leave to extend time to review a decision of the IAA in circumstances where the only basis for such a review has been held by the Full Court to be unarguable.

58    As to the decision in McHugh, I do not accept that a decision granting the Minister leave to rely on a notice of contention, filed seven weeks out of time, in circumstances where opposition to leave being granted was not raised with the Minister or the Court until the appellant’s oral reply submissions is any way analogous to the matters in issue in these proceedings.

Conclusion

59    The applicant has failed to demonstrate that the FCC erred jurisdictionally in any of the ways contended. It follows that the application must be dismissed with costs.

Associate:

Dated:    13 April 2021