AZAFJ v Minister for Immigration and Border Protection
[2016] FCA 291
•24 March 2016
FEDERAL COURT OF AUSTRALIA
AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291
File number: NSD 105 of 2016 Judge: BROMWICH J Date of judgment: 24 March 2016 Catchwords: MIGRATION – application for review of a decision of the Federal Circuit Court of Australia refusing an application for an extension of time – where prolonged delay in seeking discretionary relief Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) Pt 8 Div 2, ss 36(2)(aa), 476A, 477, 477(1), 477(2), 477A(2)
Cases cited: AZAFJ v Minister for Immigration [2015] FCCA 1355
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531
NAUV v MIMIA [2005] HCATrans 96
NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389
Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55
Date of hearing: 11 March 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 64 Counsel for the Appellant: Mr S Boland Solicitor for the Appellant: Shelly Legal Counsel for the First Respondent: Mr M J Smith Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent submitted save as to costs Counsel for the Third Respondent: The third respondent submitted save as to costs ORDERS
NSD 105 of 2016 BETWEEN: AZAFJ
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
THE JUDGES OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
24 MARCH 2016
THE COURT ORDERS THAT:
1.The amended originating application lodged on 26 February 2016 and accepted for filing on 2 March 2016 be treated as an application under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Federal Circuit Court of Australia to refuse the application before that Court under s 477(2) of the Migration Act 1958 (Cth) to extend the time for bringing an application for review.
2.The amended originating application be dismissed.
3.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Introduction
This proceeding is brought by an amended originating application in relation to a decision of the Federal Circuit Court of Australia delivered on 19 May 2015 to refuse an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth), AZAFJ v Minister for Immigration [2015] FCCA 1355.
The extension of time application was made in order to enable the applicant to bring an application in the Federal Circuit Court for review of a decision of the second respondent, the Refugee Review Tribunal (now the Administrative Appeals Tribunal). The Tribunal had affirmed a decision by a delegate of the first respondent, the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection), not to grant the applicant a Protection (Class XA) visa.
Initially the applicant sought an extension of time pursuant to s 477A(2) of the Migration Act in which to review the Federal Circuit Court’s decision. However, at the hearing, with the agreement of the applicant via his counsel, and with the consent of the Minister (foreshadowed in his written submissions), I determined that I would treat this as an application under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Federal Circuit Court in the exercise of this Court’s original jurisdiction.
The treatment of the amended originating application as having been brought under s 39B was necessary because that is the only way in which this Court has any jurisdiction to entertain this application at all, having regard to the limitations on this Court’s jurisdiction in migration matters contained in s 476A of the Migration Act: see Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at 56-9 [2]-[11], especially the last sentence in [9]; see also SZTES v Minister for Immigration and Border Protection [2015] FCA 719, upheld on appeal [2015] FCAFC 158.
For the reasons that follow, I am not satisfied that the primary judge fell into jurisdictional error in refusing the extension of time application. Even if I am wrong about that, I would not have exercised the discretion to grant relief in any event having regard to the applicant’s significant delay in bringing proceedings both in this Court and in the Federal Circuit Court, the lack of any satisfactory or sufficient explanation for those delays, and the lack of any serious prospect of success in the underlying proposed application for review.
Background and chronology of key events
The applicant is a citizen of Afghanistan. He arrived at Christmas Island on 15 May 2012. The following key events ensued up to the time of the filing of the application in this Court:
Date Event 18 June 2012 The applicant participated in an “irregular maritime arrival entry interview”. 29 August 2012 The applicant lodged his application for a Protection (Class XA) visa with supporting documents and was interviewed on the same day. 5 September 2012 The applicant was interviewed by a delegate of the Minister. 18 October 2012 The delegate of the Minister refused the grant of a protection visa. 25 October 2012 The Refugee Review Tribunal received an application for a review of the delegate’s decision dated 24 October 2012. 16 January 2013 Hearing at the Tribunal attended by the applicant, assisted by an interpreter and a registered migration agent. 10 July 2013 The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa, essentially accepting that the applicant had a subjective fear of persecution for a convention reason, but not being satisfied that his fear was objectively well-founded. In particular, and as relevant as the present application unfolded, the Tribunal made adverse findings as to imputed political opinion at [47] and as to complementary protection at [82] which are now the subject of complaint. 12 July 2013 Tribunal’s 10 July 2013 decision record faxed and posted to the applicant’s solicitors. 14 August 2013
Last day for applying to the Federal Circuit Court for a review of the Tribunal’s decision, by virtue of a 35 day time limit in s 477(1) of the Migration Act (subject to a discretion in s 477(2)(b) to extend that period if an application is made in writing specifying why the applicant considers that it is “necessary in the interests of the administration of justice to make the order”). 3 September 2014 The applicant applied to the Federal Circuit Court for a review of the Tribunal’s decision, and for an extension of time in which to bring that application. 19 May 2015 The extension of time application was heard in the Federal Circuit Court and dismissed in an ex tempore judgment. 16 January 2016 The applicant filed an originating application for judicial review in the Federal Court, subsequently amended.
Before the Federal Circuit Court, the applicant’s sole pleaded ground for an extension of time in making his application was that he was “unable to access a lawyer to act for him”. The sole ground advanced for judicial review of the decision of the Tribunal was that it had “relied on information and the situation in Afghanistan in Daikundi Province was not up to date. The Tribunal used information from 2012.” (The quotation of this ground in the Federal Circuit Court judgment at [1] contains a typographical error in referring to “2013” rather than “2012”.)
The application for an extension of time was supported by an affidavit of the applicant which set out certain attempts that the applicant had made to seek legal advice and at [10] said that he wished to apply for judicial review of the decision of the Tribunal because it had relied on “incorrect information about the safety of Daikundi Province in Afghanistan”.
The applicant’s submissions in the Federal Circuit Court took issue with the conclusion of the Tribunal as to the dangers faced by the applicant in returning to his village in Daikundi province in Afghanistan. There was no reference to any asserted jurisdictional error.
Written submissions for the Minister in the Federal Circuit Court pointed to the lateness of the application and characterised it as being little more than seeking to assert a disagreement with the Tribunal’s ultimate finding, not raising any reviewable error. The application for review was further characterised as being no more than re-agitating the merits of the visa application claim with no error going to jurisdiction being asserted or being apparent.
At the hearing of the extension of time application, the primary judge raised with the applicant’s solicitor the fact that the application only dealt with merits and invited her to develop any argument she wished to as to why there was jurisdictional error. That invitation was declined.
In the course of the hearing in the Federal Circuit Court, counsel for the Minister submitted that the application for extension of time should fail because the delay was extensive and there was no prospect that the application could succeed. The primary judge agreed with the Minister and gave an ex tempore judgment dismissing the application for extension of time, and the application, with costs. In reaching that conclusion, his Honour:
(1)described the explanation for the delay as being completely inadequate and said that on that ground alone the application for an extension would be dismissed: [5];
(2)further found that the application failed to disclose any arguable jurisdictional error and none had been developed at the hearing: [6]; and
(3)reproduced key passages from the Tribunal’s decision at [8] and [9], and at [11] said that the proceedings were one in which there was no prospect of success and no proper basis to seek an extension of time.
As noted above, on 16 January 2016, almost eight months after the adverse decision in the Federal Circuit Court, the applicant lodged an originating application for judicial review in this Court.
Overview of the applicant’s case and the Minister’s response
The case brought on behalf of the applicant in this Court, drawn from the amended originating application, written submissions and oral submissions at the hearing, may be summarised as asserting that the Federal Circuit Court fell into jurisdictional error in refusing his extension of time application because:
(1)the primary judge at [11] of his judgment made a substantive finding that the applicant’s claim was hopeless in circumstances in which any reasonable inspection of the decision of the Tribunal upon which that conclusion was based indicated that this conclusion could not be supported and was simply unfair;
(2)the primary judge failed to ensure that the applicant was afforded procedural fairness, because, when his Honour became aware that the applicant was not properly represented by reason of his then solicitor’s failure to advance a case of jurisdictional error on the part of the Tribunal, and lack of experience, his Honour failed to take any steps to remedy that fundamental defect in the proceedings, relevantly to give the applicant an opportunity to get better quality legal representation.
Both claims depended upon making good an assertion that [47] and [82] of the Tribunal’s decision was so irrational or otherwise so unreasonable as to constitute jurisdictional error.
On the question of delay, the applicant’s case was that, if there was an arguable case of jurisdictional error, relief should not be withheld because of the potential dire consequences for him in being sent back to Afghanistan. The applicant effectively asserted that cases denying relief for substantial delay should be distinguished by reason of concerning less serious consequences for the party in default. In support of this argument, counsel for the applicant pointed out that the comments of McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 (Marks) at 495-6 [15]-[16] about extensive delay being a sufficient reason to deny relief irrespective of the merits of the delayed case arose in the context of an employment-related dispute. There is some force in that observation, but not to the point that delay becomes a virtually irrelevant consideration if the potential consequences are sufficiently dire.
The Minister’s answer to the applicant’s case, drawn from written submissions and oral submissions at the hearing, may be summarised as follows:
(1)relying on Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-80 and Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 at 573-4 [72], while an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues the statute or other instrument it is dealing with and thereby misconceives the nature of the function which it is performing or the extent of its powers in the given case, in this case the Federal Circuit Court had correctly stated the test posed by s 477(2) of the Migration Act and had applied that test without error, let alone jurisdictional error;
(2)in particular, the Federal Circuit Court judgment at [5] had correctly stated the test to be applied in considering an extension of time application under s 477(2) of the Migration Act – this appears to be common ground, with the applicant taking issue with the application of the test and the process by which the conclusion was reached, rather than its formulation or expression;
(3)the second limb of the test, relating to demonstrating an arguable case of jurisdictional error on the part of the Tribunal, needed to be applied to the case as framed or advanced by the applicant, not to some other theoretical or possible jurisdictional error that had not been framed or advanced;
(4)alternatively, even if (contrary to the Minister’s primary contention) the Federal Circuit Court was required to go beyond the case as framed or advanced by the applicant, neither of the alleged jurisdictional errors now advanced in relation to [47] or [82] of the Tribunal’s reasons were errors at all, let alone jurisdictional errors, but rather were factual findings and conclusions reasonably open to the Tribunal, and therefore there was no error on the part of the Federal Circuit Court in uncritically quoting from the Tribunal’s findings;
(5)as to the allegation of jurisdictional error by reason of a denial of procedural fairness by failing to take a different course such as giving the applicant an opportunity to obtain better legal representation, there was no such obligation and therefore no such jurisdictional error.
On the question of delay, the Minister’s case was that the delay in bringing these proceedings was so prolonged and unexplained that even if there was an arguable case, relief should be refused, relying upon Marks at 495-6 [15]-[16] and also Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (Aala) at 108-9 [56]-[57] (followed in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 322 [80] and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 618 [28]).
Consideration of the grounds advanced in this Court
The applicant advanced four grounds in support of his application. It is convenient to deal with ground 1 last.
Grounds 2 & 3: The Federal Circuit Court’s treatment of [47], Tribunal’s reasons
The amended originating application asserts:
(1)as ground 2, that the primary judge erred in the exercise of his discretion under s 477 of the Migration Act by “failing to take a relevant consideration into account, namely that the Tribunal made a finding in respect of the [applicant’s] credit that was irrational or otherwise so unreasonable as to constitute jurisdictional error”; and
(2)as ground 3, substantially the same point, but cast as “failing to take a relevant consideration into account, namely that the Tribunal relied upon a basis to reject the [applicant’s] asserted family association with the Islamic Wadhat (sic) Party, that was factually erroneous and was so unreasonable as to constitute jurisdictional error”.
The basis of this asserted irrationality or unreasonableness to the point of constituting jurisdictional error turns on [47] of the Tribunal’s judgment. Because heavy reliance is placed on the words used in that paragraph it is worth reproducing in full as follows:
In his further statutory declaration of 8 January 2013 the applicant raises for the first time that his second cousin was a member of the Islamic Wadhat (sic) Party. He claims this party was directly involved in fighting the Taliban during 1994/95 when the Taliban was taking land in the applicant’s area. The applicant has not provided any particulars of how this places him in serious harm now or in the reasonably foreseeable future under a Convention reason and made no reference to this at the hearing whatsoever, until it was raised by me at the end of the hearing. The Tribunal is not satisfied in light of this that this amounts to any adverse political opinion which can be imputed to the applicant.
The applicant’s particulars to both ground 2 and ground 3, developed further in written and oral submissions to the same effect, characterised [47] as “patently false” in finding that the applicant had raised his family’s association with the Islamic Wahdat Party for the first time in his statutory declaration to the Tribunal, because that association had been raised in an interview with the delegate on 18 June 2012. This finding was said to have been acted upon by the Tribunal as an erroneous basis upon which the applicant’s asserted family association was rejected and additionally used as a false foundation upon which his credit was adversely affected. This was said to be compounded by the reference to this not being referred to at the hearing until raised by the Tribunal member.
There are a number of problems with the applicant’s characterisation of [47] of the Tribunal’s reasons. First, it suffers from a mischaracterisation of what the Tribunal was actually saying. Secondly, even if the errors asserted in relation to [47] are made out, those findings were a matter for the Tribunal’s fact-finding function and therefore within its role and jurisdiction. Thirdly, the primary judge was entitled to record what the Tribunal had found without that being characterised as either agreement or disagreement with the conclusions reached, that being a matter solely for the Tribunal.
The materials before the Court evidence three references by the applicant concerning the Islamic Wahdat Party. The first occurred not long after arrival in Australia. In his 18 June 2012 interview record, the following details were recorded as having been provided by the applicant in response to the question of whether the applicant or members of his family had been associated or in any way involved with any political group or organisation:
When we were in Daikundi there was this party called Hezbi Wahdat, my father’s family was cooperating with them.
The second reference to the Islamic Wahdat Party occurred several months later. In the notes of the interview by the Minister’s delegate on 5 September 2012, the following was recorded:
Question:We need to address other issues of your claim. You mentioned that your father invol[ved] in Wadath (sic).
Answer: Not my father, exten[ded] family.
Question:Have you been threatened because you support your extended family?
Answer: Yes. When the gov[ernment] is collapsed talib[an] come to kill us.
The third reference to the Islamic Wahdat Party took place shortly before the Tribunal hearing in January 2013. In the applicant’s statutory declaration dated 11 January 2013 (not 8 January 2013 as recorded by the Tribunal) the applicant stated as follows:
8.My second cousin was a member of the Islamic Wahdat Party. This party was directly involved in fighting with the Taliban during 1994/1995 when the Taliban was taking land in our area.
9.As I am from a village, which has 150 houses the Taliban will know if I am returned to Afghanistan.
10.I believe that the Taliban will harm me for reason of my cousin’s involvement with the Wahdat Party and that I will be killed.
The applicant’s submissions assert that the applicant “raised this issue at each stage of his application for protection under the Migration Act”, and denied any recent invention that he was said to have been accused of by the Tribunal at [47]. The problem with this reasoning is that the first two references to the Islamic Wahdat Party reproduced at [24] and [25] above were general in nature, whereas the third reference reproduced at [26] above, and relied upon by the Tribunal, was more detailed, and contained a more specific claim.
As quoted above at [21], the Tribunal at [47] said “In his further statutory declaration of 8 (sic) January 2013 the applicant raises for the first time that his second cousin was a member of the Islamic Wadhat (sic) Party”. That seems to be a factually correct way to describe the third reference to the Islamic Wahdat Party.
Moreover, the Tribunal did not appear to accuse the applicant of “recent invention” or any other accusation or conclusion of fabrication, although there was a reference to a need for prompting.
It was this further and more detailed claim that the Tribunal at [47] was describing as having been raised for the first time, not the more generalised claims of a family association with the Islamic Wahdat Party reproduced above at [24] and [25]. Viewed objectively, this third reference to the Islamic Wahdat Party was also, on its face, the single strongest claim made on this basis by the applicant of a Convention reason for his fear of persecution.
The Tribunal raised this later and more detailed claim with the applicant at the hearing. It was reasonable for the Tribunal do this, and not leave such a claim on the face of the statutory declaration without seeing what the applicant might say as to how the conduct of his second cousin some 17 years previously would be imputed to him. If that conduct could have been a reasonable basis for imputing a political opinion to the applicant, that may have made any fears of persecution he held arising from that involvement well-founded at the time of the Tribunal’s consideration of the application.
It was equally reasonable for the Tribunal to draw this later and more specific claim to the applicant’s attention when it was evident he was not going to do so himself at the hearing. It was also reasonable to comment on the lack of further detail then provided, as well as the need for prompting.
The use of the term “particulars” by the Tribunal should not be taken to mean formal legal particularisation. That entails attributing too precise a legal meaning to a term used to connote a lack of detail or specifics. Tribunal reasons should not be read so minutely: see Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] 271-2.
There is nothing to indicate that the Tribunal went further than to fail to be satisfied that any conduct by the applicant’s second cousin amounted to any adverse political opinion which could be imputed to him.
There is also nothing to indicate the Tribunal rejected as a fact that the applicant’s cousin had engaged in the activities described, nor denied the existence of a subjective fear arising from those activities, nor even made any adverse credit finding from this assertion, but rather was recording of a lack of satisfaction that this activity by the applicant’s cousin gave rise to the applicant having any well-founded basis for his fear of persecution for a Convention reason. It does not seem that this part of the Tribunal’s reasons even constitutes a conclusion that was not fairly open to the Tribunal. It does not even rise to the level of a factual error.
Even if the factual reasoning errors asserted in relation to [47] of the Tribunal’s reasons had been made out, in the sense that it was factually wrong to say that a similar claim had not been made before, this did not entail any lack of appreciation of the Tribunal of its proper role, and would therefore be an error within jurisdiction. Moreover, even if the same claim had been made before, that did not remove the need for a nexus to be present between the applicant and conduct of his cousin, so as to give rise to him having a well-founded fear of persecution arising from such conduct.
The primary judge was entitled to record what the Tribunal had found without that being characterised as either agreement or disagreement with the conclusions reached, that being a matter solely for the Tribunal. On an extension of time application the primary judge was not required to carry out an assessment of the availability of the factual findings made by the Tribunal, especially when the only ground advanced before his Honour concerned the currency of country information relied upon by the Tribunal.
Even if there had been something wrong with the Tribunal’s approach, it is difficult to see how that could constitute an error, let alone a jurisdictional error, on the part of the Federal Circuit Court. The point being taken now was not raised, and was not in any sense obvious. As the above analysis indicates, it was not even correct.
I reject the suggestion made on behalf of the applicant that the primary judge had in some way opened up merits review in the Federal Circuit Court merely by recording the findings of the Tribunal.
Grounds 2 and 3 must therefore fail.
Ground 4: The Federal Circuit Court’s treatment of [82], Tribunal’s reasons
Ground 4 in the amended originating application asserts that the primary judge erred in the exercise of his discretion pursuant to s 477(2) of the Migration Act by failing to take into account relevant considerations. The asserted relevant considerations are that the Tribunal had made findings in respect of the safety of certain roads between Kabul and Daikundi Province and the “corollary danger” to the applicant in the context of his application for complementary protection pursuant to s 36(2)(aa) of the Migration Act. The findings made are said to be so irrational or so unreasonable as to constitute jurisdictional error and/or to amount to applying the wrong test at law.
The complaint turned on [82] of the Tribunal’s reasons, which was as follows:
As aforementioned, I accept that there have been attacks by insurgents on the roads between Kabul and Daikundi but, in giving weight to the advice of the Australian Department of Foreign Affairs and Trade, accept that the insurgents target individuals associated with the Government of Afghanistan or the international community. I note, for the sake of completeness, that on the evidence before me I do not accept that there is a real risk that [the applicant] will be perceived as being associated with the Government of Afghanistan or the international community, and that he is therefore an ordinary traveller in that sense.
This ground founders on both a legal basis and a factual basis, and again does not fall into the territory of jurisdictional error.
As to the legal basis, s 36(2)(aa) of the Migration Act requires the Minister, and thus his delegates and the Tribunal, to apply a test of whether the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to a receiving country, there is a “real risk that the non-citizen will suffer significant harm”. On a fair reading of [82], in context that is precisely what the Tribunal was assessing. Namely, whether the return of the applicant to Afghanistan, assuming he returned to his home province, would entail any “real risk” of significant harm arising out of travel between his home province of Daikundi and the capital, Kabul. Thus it cannot be said that the Tribunal was applying the wrong test. It cannot therefore be said that the Federal Circuit Court failed in any way to appreciate an error in that respect amounting to jurisdictional error on the part of the Tribunal.
As to the factual basis, or the application of the test, the Tribunal had earlier noted that in general, travel between Daikundi province and other parts of Afghanistan, including Kabul, was common practice for traders of foodstuffs and narcotics. Road travel in general was depicted as being safe. However, while there was no clear evidence that any ethnic group was a particular target, individuals associated with the government or international community may be at greater risk. (Tribunal reasons at [66]-[68].)
This explains why the Tribunal at [83] was focussing, in the risk assessment required by s 36(2)(aa) of the Migration Act, on whether the applicant might be taken to be any more than an ordinary traveller, so as to be at any “real risk” of significant harm. This process of reasoning was open to the Tribunal. Not only does s 36(2)(aa) not preclude a risk assessment of this kind; it positively requires it in certain circumstances. There can be no criticism of the Tribunal for carrying out such a task, making its own assessment of the facts and conclusions to be drawn from the material before it; and no criticism of the Federal Circuit Court in referring to the conclusions reached through this process without any adverse comment.
As with grounds 2 and 3, even if there had been something wrong with the Tribunal’s approach, it is difficult to see how that could constitute an error, let alone a jurisdictional error, on the part of the Federal Circuit Court given that the point being taken now was not raised, and was not in any sense obvious.
Ground 4 must therefore fail.
Ground 1: Alleged denial of procedural fairness due to inadequate legal representation
Ground 1 is an asserted denial of procedural fairness by the primary judge by failing to approach the matter as if the applicant were an unrepresented party because of the asserted lack of capability of his then solicitor. A leap of logic was then made between what is asserted to be a poor level of legal representation and no legal representation at all. Authorities concerning entirely unrepresented litigants were relied upon to assert that the primary judge had an obligation to offer the applicant an opportunity to seek out “proper legal advice”.
This argument misconceives the nature of a court’s obligations in relation to self-represented litigants (even if that was properly applicable to the present situation, which I do not consider to be the case). In any event, it cannot be the obligation of any civil jurisdiction court to delve into the quality and capability of a lawyer acting for a litigant. That is not to say that a court may not choose to do so in an appropriate case.
As the Minister pointed out, albeit by reference to authority arising in a somewhat different statutory context, procedural fairness requires only that a party be given a reasonable opportunity to present his or her case, which does not extend to ensuring that a party takes best advantage of that opportunity: see Re Coldham; Ex parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 84 ALR 208 at 220, applied by the Full Court in Grace Pushpa Wati v Minister for Immigration & Multicultural Affairs [1997] FCA 1052; (1997) 148 ALR 578 at 587.
In this case, the Minister’s written submissions before the Federal Circuit Court pointed to the lack of any jurisdictional error being asserted. The primary judge specifically raised the need for this to be at least arguable at the hearing of the extension of time application. There was no jurisdictional error by way of denial of procedural fairness by the Federal Circuit Court in failing to do more.
Even if, contrary to the above, there had been any greater obligation because the primary judge ought to have intervened by reason of a perception of inexperience or inability on the part of the applicant’s then solicitor, it is difficult to see how that circumstance resulted in any operative denial of procedural fairness in this case, in the sense of making any practical difference or otherwise producing any practical injustice: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2013] HCA 6; (2003) 214 CLR 1 at [37]-[38] 13-14.
The lack of any basis for finding practical injustice is especially apparent in light of the characterisation above of the reasoning at [47] and [82] of the Tribunal’s decision as entailing no error at a factual level, let alone at a jurisdictional level. If no factual error, let alone jurisdictional error, was able to be established now in this Court, it is difficult to see what more might have been achieved by an intervention by the primary judge of the kind now urged on behalf of the applicant. It simply could not have made any difference.
It follows that ground 1 must also fail.
Delay and discretion
Delay in seeking discretionary relief can be an important consideration in declining to grant that relief: see Aala at 108 [56], quoting R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400.
In some cases, even when there has been an express finding by a court of jurisdictional error such as by way of denial of procedural fairness, sufficient or extreme delay or other like conduct and the absence of any acceptable explanation for it may be a sufficient reason alone to deny the grant of discretionary relief under s 39B of the Judiciary Act: see NAUV v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 124; (2004) 82 ALD 784 [38]-[45] (special leave to appeal refused: NAUV v MIMIA [2005] HCATrans 96); see also SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 322-4 [79]-[84].
Thus if the claim of jurisdictional error is at best questionable and the delay is both substantial (for example, well outside a statutory time limit, or concerning a case below in which there has been such a delay) and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.
The delay from the decision of the Federal Circuit Court on 19 May 2015 until the filing of the present application on 21 January 2016 was simply dismissed in the applicant’s submissions as being “[a]s it happened”. It was baldly asserted that the applicant’s circumstances offered “a sufficient explanation” as to why he did not meet the deadline for his application for review in the Federal Circuit Court. It was also said that the merits of his claim of jurisdictional error were such that the interests of justice warranted an extension of time to enable his application for review to be heard in this Court.
The explanation for the delay was not developed any further at the hearing, save as to a reference to an affidavit of the applicant sworn 6 January 2016 at [9]-[16]. Those paragraphs go no further than to outline the applicant’s sporadic and general attempts to seek legal advice and to seek ministerial intervention, noting financial and linguistic constraints. None of those circumstances are either exceptional or acceptable for such prolonged delay.
It follows that:
(1)even if I was wrong in concluding that there was no discernible jurisdictional error on the part of the Tribunal so as to give rise to an arguable case in the Federal Circuit Court; and
(2)even if I was wrong in finding no jurisdictional error on the part of the Federal Circuit Court in refusing the extension application,
this was not an appropriate case in which to deploy s 39B to bypass, by such a significant degree, and with so little by way of explanation, the statutory time limit in bringing the proceedings in the Federal Circuit Court, nor to overcome the delay in bringing proceedings in this Court.
It is notable that had the Federal Circuit Court simply granted the extension of time application, it is difficult to see that the result could have been any different. No jurisdictional error was advanced in the application, in the written submissions, or orally in that Court. Nor is any such error presently apparent. An application to raise for the first time on an appeal in the appellate jurisdiction of this Court at best tenuous claims of jurisdictional error on the part of the Tribunal would not have enjoyed strong prospects of success.
Conclusion and disposition
The metes and bounds of the exercise of discretion under s 39B of the Judiciary Act cannot be exhaustively stated. However, s 39B operates in this context as a special exception to the express jurisdiction and time limits enacted in Div 2 of Pt 8 of the Migration Act. I would be slow to intervene in the absence of a compelling explanation for the failure to comply to such a marked degree with those statutory deadlines. I would be exceedingly slow to intervene in such a case where there is little in the way of a reasonably compelling argument in favour of the finding of the necessary jurisdictional error. This case falls short of both those modest hurdles. No proper case for judicial review on any ground has been made out.
The amended originating application must be dismissed with costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 24 March 2016
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