Federal Court of Australia

DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 646

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal in this proceeding filed on 10 June 2024 be amended such that it is substituted by an originating application for judicial review under s 39B of the Judiciary Act 1903 (Cth) in the form of the proposed application submitted to the Court on the applicant’s behalf.

2.    “A Judge of the Federal Circuit and Family Court of Australia (Div 2)” be added as a third respondent to the proceeding.

3.    Filing and service of the amended process be dispensed with.

4.    The final hearing of the proceeding proceed forthwith.

5.    The proceeding be dismissed.

6.    The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,965.

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

REASONS FOR JUDGMENT

(Ex tempore, revised)

WHEELAHAN J:

Introduction

1    Shortly after 8.00 pm on Monday 10 June 2024, which was a public holiday in Melbourne, the applicant, who was unrepresented and in detention, appeared by video link with the assistance of an interpreter and made an urgent application to me as duty judge to enjoin the Minister by his officers from taking steps to remove him from Australia. The applicant’s removal was scheduled to take place the following day at 8.00 am. The background to the urgent application was that on the previous Friday, 7 June 2024, a judge of the Federal Circuit and Family Court of Australia (Div 2) (the Circuit Court) had dismissed an application by the applicant for an enlargement of the 35-day time limit under s 477(1) of the Migration Act 1958 (Cth) within which the applicant was entitled to bring an application to the Circuit Court for judicial review of a decision of the Administrative Appeals Tribunal dated 10 April 2024. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the applicant’s application for a protection visa. The applicant had filed his application for judicial review in the Circuit Court on 31 May 2024, which was about two weeks late. The judge also refused an application for an injunction precluding the applicant’s removal from Australia, and dismissed the application for judicial review.

2    Towards the outset of the hearing on Monday, I proposed that an interim order should be made until 4.00 pm today, and that the applicant’s application be adjourned. Counsel for the Minister initially stated that her instructions were to oppose this course, submitting that the applicant’s claims lacked merit, and that I should proceed to hear the interim application that evening. I did not accept this submission, and stated my intention to make an order enjoining the Minister from removing the applicant. I took this course so as to preserve the subject matter of the application and to ensure in the circumstances that the applicant would receive a fair hearing, whatever the merits of his underlying claims, thereby protecting the integrity of the Court’s processes: see Tait v The Queen (1962) 108 CLR 620 at 623 (Dixon CJ). Upon stating my intention to make orders, counsel for the Minister obtained instructions to give an undertaking that the applicant would not be removed before 4.00 pm today. The Court acted upon this undertaking, and adjourned the interlocutory application.

3    The Minister later extended the undertaking to the final hearing and determination of the proceeding and, in addition, any further proceedings in the Circuit Court should the applicant be successful in this Court.

4    The Court made a referral for pro bono legal representation for the applicant, and has been assisted by the generosity of experienced and competent counsel, Mr Christopher McDermott, who took up the request, appeared for the applicant on the return of the interlocutory application today, and prepared associated paperwork on the applicant’s behalf.

Background

5    The background to the matter is set out in the reasons of the Circuit Court judge, to whom I will refer as the primary judge: DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 519 at [3]–[21]. That background was not disputed and is incorporated by reference in these reasons.

6    The applicant was unrepresented before the primary judge. There were two applications before the primary judge of an interlocutory character: (1) the application under s 477(2) of the Act to extend time for the making of an application to the Circuit Court for judicial review of the decision of the Tribunal; and (2) an application for an injunction to prevent the applicant’s removal from Australia. The applications were supported by two affidavits of the applicant, to which the primary judge referred. The applicant’s first affidavit annexed a copy of the Tribunal’s reasons to which the primary judge referred, and which his Honour considered. There was also before the primary judge an affidavit of the solicitor acting on behalf of the Minister, to which the primary judge also referred. His Honour stated that only minutes before the hearing commenced, the Minister filed a court book; however, due to its late filing his Honour did not have regard to it.

7    In relation to the application to extend time, the primary judge took account of the conventional considerations by reference to the condition for the exercise of power in s 477(2) of the Act, that is, that the Court must consider that the extension is in the interests of the administration of justice. This involves an evaluative judgment as to a state of satisfaction which is “not low”, because the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 at [10], [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ) in relation to the corresponding provision in s 476A(1)(b) of the Act. There were no mandatory relevant considerations: Katoa at [13]. The primary judge appropriately referred to authority containing guidance in relation to the exercise of a discretion to extend time, including the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. His Honour addressed: (1) the extent of delay; (2) the explanation for the delay; (3) whether there was any prejudice to the Minister; and (4) the merits of the application for judicial review.

8    In summary, the primary judge concluded that although the applicant’s delay was slight, his Honour was not satisfied on the evidence that the applicant had an acceptable explanation for the delay. The Minister had not claimed that there was any relevant prejudice, which the judge held was a factor that weighed in favour of the applicant. As to the merits of the application, his Honour set out the applicant’s grounds of review. The grounds were unparticularised, and were generic in character, claiming that the Tribunal’s decision was affected by an error of law, and that the Tribunal had denied the applicant procedural fairness. His Honour considered that the lack of particularisation was a sufficient basis upon which the grounds could be dismissed. However, his Honour asked the applicant to expand upon his grounds in oral submissions. His Honour set out a summary of the submissions that were made, and addressed them. The applicant made submissions that the Tribunal had not considered certain of his claims. As to those submissions, the primary judge referred to relevant paragraphs of the Tribunal’s reasons, and held that the applicant’s claims of error by the Tribunal were not sufficiently arguable, and had little to no prospect of success. Otherwise, his Honour stated that, to the extent that the applicant cavilled with findings of fact, the Court could not engage in a merits review, and that the points raised had no prospect of success. On the question of denial of procedural fairness, the primary judge stated that the applicant was unable to identify how he was denied procedural fairness, and that his Honour’s own review of the Tribunal’s reasons disclosed that the applicant was afforded procedural fairness. His Honour held that the applicant had not established a prima facie case, and in the context specifically of the application to extend time, held that the applicant’s case was not sufficiently arguable.

9    Before the Court last Monday were three significant documents lodged by the applicant: (1) an originating application seeking relief under s 39B of the Judiciary Act 1903 (Cth); (2) an application for leave to appeal, along with a document purporting to be a notice of appeal; and (3) an affidavit of the applicant, which did not appear to have been correctly sworn, but annexed some documents. Nothing turns on the fact that the affidavit was not correctly sworn, as the documents were admissible on their face. No doubt owing to the urgency of the application, only the application for leave to appeal was sealed by the Registry of the Court.

10    Before me today, the applicant’s claim in this Court has been refined by counsel. By a proposed amended originating application, the applicant seeks relief in the Court’s original jurisdiction under s 39B of the Judiciary Act on the ground that the primary judge’s decision refusing the extension of time was affected by jurisdictional error. That is realistically the only course open to the applicant, for there is no appeal to this Court from an order of the Circuit Court under s 477(2) refusing an extension of time: s 476A(3)(a). See also Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [11]; DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37]. I will make orders to regularise the procedural situation, including an order that a Judge of the Circuit Court be added as a third respondent to the proceeding. In circumstances where the Minister is the proper contradictor, it is unnecessary that the Circuit Court be served with the proceedings at this point.

11    In addition, at the commencement of the hearing counsel for the applicant sought an order that the matter proceed to a final hearing forthwith, to which counsel for the Minister consented. These reasons are therefore concerned with the final disposition of the applicant’s application to this Court in its original jurisdiction under s 39B of the Judiciary Act for relief on the grounds that the orders of the Circuit Court are affected by jurisdictional error.

The applicant’s claim before this Court

12    The applicant puts forward one ground of jurisdictional error by the primary judge supported by particulars. In the applicant’s ground set out below, the Tribunal is referred to as the second respondent, and the primary judge is referred to as the third respondent –

In refusing to grant an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act), the Third Respondent constructively failed to exercise jurisdiction.

Particulars

A.    The Third Respondent failed to consider a critical integer of the Applicant’s allegation of an arguable case of jurisdictional error, in that the Second Respondent erred in its assessment of the reasonableness of the Applicant’s relocation within India, having regard to its specific findings of fact (as identified in the Applicant’s Submissions filed on 13 June 2024 at [21]-[22]).

B.    The Third Respondent’s failure to consider the matters in Particular A was material to the (purported) exercise of its discretion under s 477(2) of the Act, and to its (purported) exercise of discretion to refuse to grant the interim injunctive relief sought by the Applicant.

13    In support of this ground, counsel for the applicant submitted that the Circuit Court constructively failed to exercise jurisdiction by not identifying an obvious claim arising from the face of the materials and the Tribunal’s own findings of fact concerning the dispositive issue of the reasonableness of relocation of the applicant in India, to where he would be returned. Some further background is necessary at this point in order to place the applicant’s submissions in context.

Further background

14    The applicant married his wife in 2016. The applicant’s wife travelled to Australia, obtaining a student visa. The applicant subsequently arrived in Australia in 2017. He left Australia briefly in mid-2018 before returning and has remained in Australia since that time. Until February 2023, the applicant was a lawful non-citizen, being a secondary applicant to his wife’s post-study work visa. Upon that visa expiring, the applicant became an unlawful non-citizen. The applicant then obtained a bridging visa for a period of about three weeks in September 2023 before being taken into immigration detention where he has remained. In November 2023, the applicant applied for a protection visa, which was refused by a delegate in December 2023, and the refusal was affirmed by the Tribunal in April 2024.

15    It is unnecessary to set out a complete summary of the Tribunal’s statement of reasons (R), which were clear and detailed. The following are some features of the reasons that are relevant to the arguments presented on this application.

16    The applicant’s claims made prior to the Tribunal’s hearing were set out at R[9] and [10]. The essence of those claims is that, as a Sikh, if the applicant returned to India, Hindu organisations would hunt him down and kill him.

17    The applicant’s claims for protection developed before the Tribunal. From R[42] to [61], the Tribunal set out a range of claims that were made before the Tribunal, not all of which were raised in advance of the hearing. These claims were set out under the general headings of “Sikh religion”, “Political activism”, “Land dispute”, “Drug use in Australia, mental health” and “Relocation”. The claims relating to “Sikh religion” and “Political activism” largely mirrored what I have already summarised.

18    At R[47], the Tribunal records that the applicant raised the issue of a “Land dispute” as a new claim at the hearing. Essentially, the claim was that the applicant and his mother had been involved in a dispute over land with his paternal cousins. When asked by the Tribunal why he feared harm from a land dispute, the applicant claimed that he had been sexually abused when he was in year 6 by his cousins: R[49]. The applicant claimed that his cousins had abused him with the intention of ruining his and his mother’s reputation in their village. He further claimed that this incident led people in the village to believe that the applicant was homosexual. The applicant then explained that he feared that if he returned to the village, his relatives would bribe the local authorities to put him in gaol, at least in part because his cousin was in control of the village. At R[52], the Tribunal extended the applicant an opportunity to provide further documents and information in support of these claims.

19    At R[53]–[57], the Tribunal dealt with the applicant’s claims concerning his mental health. The substance of the applicant’s claim was that he had begun to use drugs at least partly because of mental health issues. Another contributing factor was said at R[53] to be an argument between the applicant and his wife, during which the applicant’s wife accused the applicant of being gay. The Tribunal’s reasons record the applicant’s claim that this affected him seriously, and contributed to his drug use. Relevantly for the submissions of the applicant, the Tribunal noted at R[56] that it had encouraged the applicant to speak to a counsellor or health professional at the detention centre where he was being detained.

20    The Tribunal dealt, at R[58]–[61], with the possibility of the applicant relocating within India, so as to avoid any serious harm he may have feared. The Tribunal’s reasons essentially state that the applicant was informed that relocation was an issue the Tribunal would consider. In this section of its reasons, the Tribunal reiterated that the applicant was given an opportunity to provide further evidence in support of his claims. In this context, at R[60]–[61], the Tribunal dealt in particular with further information or documents the applicant might provide about his mental health, although at R[61] noted that the applicant did not put on further substantive information on this topic.

21    At R[78], the Tribunal accepted that the applicant had been a victim of sexual abuse and that people in his home village considered the applicant to be gay. The Tribunal accepted that if the applicant were required to return to his home village, he would be forced to confront his abusers and may again be imputed as “gay” by people in the village. The Tribunal referred to country information that indicated that gay people lacked protection, and faced intolerance, abuse, and violence in their daily lives. On balance, the Tribunal considered at R[80] that there was a real chance of persecution of the applicant in his home village on the ground that he was a man perceived to be gay.

22    The Tribunal then turned its attention to whether the applicant’s well-founded fear of persecution applied to all areas of India, and to the question of relocation, and whether relocation was reasonable, as required by the definition of refugee in s 5H informed by s 5J(1)(c), and s 36(2B)(a) of the Act. At R[83], the Tribunal stated that there was no evidence to suggest that people outside the applicant’s home village would become aware of his sexual assault or impute him as being a gay man. Having regard also to other claims made by the applicant, including the fact that he is a Sikh, the Tribunal at R[85] did not accept that there would be a real chance of persecution should he relocate to a large urban centre in India outside of Punjab. The Tribunal addressed these issues taking account of various possibilities.

23    The Tribunal made a similar finding in relation to the complementary protection criterion, addressing also the impact of the applicant’s mental health, his past drug use, and his historical sexual assault on the reasonableness of relocation. The Tribunal specifically noted at R[96] and [98] that neither the applicant nor his wife had claimed or suggested that she would accompany him upon his return to India. The Tribunal stated at R[97] that it had invited the applicant to provide further evidence to the Tribunal in relation to his capacity to move to another city in India, and had encouraged the applicant to speak to a counsellor or health professional at the immigration detention centre about matters discussed at the hearing, stating that it would have regard to this information when considering the impact, if any, of relocation. The applicant did not provide to the Tribunal any submissions specifically directed to relocation: R[98]. The Tribunal stated that the medical records obtained by the Tribunal, being those provided by the applicant before the hearing and those received in response to a summons issued by the Tribunal, contained no information about the sexual assault of the applicant, or an assessment of the potential impact of the applicant’s mental health or drug use if he was required to return to India. The Tribunal concluded at R[99] that having regard to country information, the absence of any information to suggest that it would not be reasonable for the applicant to relocate to another city in India, and the applicant’s oral evidence that he had resolved not to use drugs again, the Tribunal was satisfied that it would be reasonable for the applicant, and his wife should she choose to accompany him, to relocate to an area outside Punjab, such as a large urban centre in Delhi, and that there would be no real risk of significant harm to him should he do so. The Tribunal did not accept that there was a real risk that the applicant would suffer significant harm in India for reasons relating to his Sikh religion, his actual or imputed political activism, his mental health, his past drug use, his mother’s land dispute, his separation from his wife, his past sexual assault, or being imputed as a gay man, and concluded that the applicant did not satisfy the criterion set out in s 36(2)(aa) of the Act.

The applicant’s submissions

24    Counsel for the applicant submitted that the Tribunal was obliged to consider whether there was a level of risk of harm faced by the applicant in the suggested area of potential relocation in an assessment of reasonableness in the particular circumstances of the case. Counsel submitted that the particular circumstances included the Tribunal’s finding that it was possible that the applicant would be required to relocate to a new area without being in the company of any family support, specifically his wife. It was submitted that, necessarily, that factor may give rise to subsequent enquiry from state actors or community members with whom the applicant may come into contact as part of the process of relocation as to why he, as a married man, was not living with his wife, which might give rise to the applicant having practically to disclose the historical circumstance that the Tribunal was prepared to accept. Moreover, it was submitted, the Tribunal also contemplated the need for the applicant to engage with mental health professionals here in Australia in order that he might successfully address some of the potential health risks arising from his past experiences of abduction and assault by his family: R[97]. It was submitted that this necessarily might require the applicant practically to disclose those experiences to mental health professionals in India within the posited areas of relocation. In that context, the applicant would not be reasonably expected to withhold critical information necessary for any treatment he required.

25    Counsel for the applicant submitted that in circumstances where there was general evidence before the Tribunal as to adverse experiences for persons identified as gay, it was incumbent upon the Tribunal as part of its own statutory task to consider the risk calculus for the applicant as part of the reasonableness of any such relocation. It was submitted that the Tribunal did not do so, and its finding at R[83] that there was “no evidence before the Tribunal to suggest that people outside the applicant’s home village would become aware of his sexual assault and/or impute him as being a gay man” had an infirm factual foundation by reason of the Tribunal’s other findings. In oral argument, counsel for the applicant captured these submissions by stating that the Tribunal had failed to consider the risk posed to the applicant by the combination of returning to India as a single man, with the prospect that he would be in a situation where he would disclose to a mental health professional the fact and circumstances of his sexual abuse as a child. Counsel relied on the risk to the applicant of inappropriate or unlawful disclosure of this information in India as a matter that arose on the facts as found by the Tribunal: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]).

26    Counsel for the applicant submitted that if the submissions at [24]–[25] above were accepted, then jurisdictional error in the Circuit Court’s decision would be manifest from its “fundamental misunderstanding of the nature of the application … [addressing] the wrong grounds, [overlooking] part of the grounds altogether or so fundamentally [misunderstanding] the basis for the application that in effect the application is not considered”, citing CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; 285 FCR 447 at [34]. It was submitted that, put another way, the discretion in s 477(2) of the Act miscarried through the Circuit Court’s failure to identify a significant arguable error in the Tribunal’s decision which ought to have been relevantly picked up in an impressionistic assessment of a broad ground of general legal error, as was asserted by the self-represented applicant.

Consideration

27    The starting point is to identify the nature of the jurisdiction exercised by the primary judge. I have referred already to the High Court’s decision in Katoa. For the purposes of considering whether in its evaluative judgment the Circuit Court was satisfied that it was in the interest of the administration of justice to extend time for filing an application for judicial review, the Circuit Court was entitled, if not guided by authority, to look at the merits of the proposed claim for judicial review at a “reasonably impressionistic level”. There could be no error, let alone a jurisdictional error, in the primary judge taking that course.

28    The next stage in assessing whether the primary judge fell into jurisdictional error is to identify the principles relating to jurisdictional error by inferior courts essayed by the High Court in Craig v South Australia (1995) 184 CLR 163 at 176–8 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), and Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 407 ALR 222 at [55]–[57] (Gordon, Edelman, Steward and Gleeson JJ). In the case of inferior courts, as opposed to administrative decision-makers, jurisdictional error takes on a different complexion. Courts have jurisdiction to be wrong, including by making errors of law and failing to take some matters into account which they are required to take into account. As to what might amount to jurisdictional error by an inferior court, the majority in Stanley stated at [57] –

The circumstances in which an inferior court may fall into jurisdictional error are not closed. In Craig, the Court gave examples of the circumstances in which an inferior court will fall into jurisdictional error, including, as is presently relevant, “if it misconstrues [the statute conferring its jurisdiction] … 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”, or “if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”, or if it “disregards … some matter in circumstances where the statute … conferring its jurisdiction requires that that particular matter be taken into account … as a pre-condition of the existence of any authority to make an order”. For instance, in Samad v District Court of New South Wales, certiorari was granted to quash a decision based on the District Court Judge’s misapprehension of the scope of his discretion to cancel a licence. In this case, it is not necessary to go beyond the instances of jurisdictional error by an inferior court that were identified in Craig and reinforced in Kirk.

(Footnotes omitted.)

29    In CZA19 at [34]–[37], the Full Court gave specific consideration to the principles relating to jurisdictional error in the context of a decision by a Circuit Court judge under s 477(2) of the Migration Act. The Full Court noted that there is an important distinction between a claim that a Circuit Court judge did not deal with the nature of the application that was made, and a claim that the Court on review should conclude that the Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit, with the latter kind of claim unlikely to be jurisdictional error. The Full Court held at [34] that the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. Rather, the Full Court held, what is required to demonstrate jurisdictional error is a “fundamental misunderstanding of the nature of the application”.

30    The Full Court held at [35] that it is important to note that previous cases “do not establish a general principle that a failure to consider a ground that might be discerned after the event by a court on review as not having been addressed demonstrates jurisdictional error in cases where an applicant seeks to invoke the jurisdiction conferred by s 477(2) to extend time”.

31    At [38], the Full Court made the following statement, which I respectfully consider to be apposite to the present case –

The Federal Circuit Court judge was confronted with a body of material from which there can be extracted and rearticulated what might be seen to be a good point. The Federal Circuit Court judge did not identify it. That may have been appealable error, but it was within the jurisdictional task of identifying the claims and dealing with them. Any error was within jurisdiction.

32    While, of course, this statement is a conclusion reached in the particular circumstances of the case before the Full Court, it nevertheless demonstrates how the principles set out by the Full Court at [34]–[37] work themselves out in practice.

33    It is important also to distinguish the process in a court from the statutory task of the Tribunal engaged in merits-based review. The former process is adversarial, even where a party is unrepresented. The latter process is concerned with the Tribunal reaching the preferable and correct view on the basis of the material before it. There are implied obligations on the Tribunal as part of its review function to consider substantial, clearly articulated arguments relying on established facts: Dranichnikov at [24]. That obligation extends to unarticulated claims raised squarely on the material available to the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58] (Black CJ, French and Selway JJ). However, such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. The principles referred to in NABE are not applicable to adversarial processes in a court, and instead the applicable principles are those referred to by the Full Court in CZA19.

34    In the present case, the primary judge was required to examine the merits of the applicant’s claim only at a reasonably impressionistic level, although in an appropriate case a judge can undertake a more detailed examination to reach a state of satisfaction that a claim is hopeless, because it is within jurisdiction to have regard to the merits in such manner as the judge considers appropriate in the circumstances: Katoa at [18]–[19]. The primary judge went further than the grounds of review advanced by the applicant, and sought to have the applicant flesh out in the oral hearing his complaints about the Tribunal’s decision, which the primary judge then considered. This approach was in accordance with the judicial guidance of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]–[10].

35    The applicant did not put any claim or argument before the Circuit Court of the type articulated by able counsel who appeared on his behalf on this application. Nor did the Tribunal’s reasons record the claims now put by the applicant. Counsel submitted that they arose from the facts found by the Tribunal. It is unnecessary that I form an opinion on that question, because I am comfortably of the view that the claims did not have any prominence, or even any presence, in the case that was advanced by the applicant to the primary judge. Accordingly, there was no error by the primary judge in not considering these claims, still less a jurisdictional error of the type referred to in Stanley at [57], while acknowledging that the categories are not closed.

36    The application will be dismissed.

Associate:

Dated:    14 June 2024