DBA16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DBA16 v Minister for Home Affairs [2018] FCA 1777

File number(s): VID 1290 of 2018
Judge(s): WHEELAHAN J
Date of judgment: 23 November 2018
Catchwords:

ADMINISTRATIVE LAW – Judiciary Act 1901 (Cth), s 39B - jurisdictional error – courts – application to the Federal Circuit Court of Australia for extension of time under Migration Act 1958 (Cth), s 477(2) refused because Anshun estoppel bound to succeed – merits of the proposed claim  - whether merits considered on a final basis or on an impressionistic level –  no jurisdictional error.

MIGRATION – application to Federal Circuit Court of Australia for extension of time under Migration Act 1958 (Cth), s 477(2) – correct approach

Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 476, 476A(3), 477(2)

Migration (Validation of Port Appointment) Bill 2018

Cases cited:

Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579

Australian Education Union v Lawler (2008) 169 FCR 327

AZAFX v Federal Circuit Court of Australia [2016] FCA 1139

BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508

Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245

Craig v South Australia (1995) 184 CLR 163

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198

DBA16 v Minister for Immigration [2017] FCCA 320

DBA16 v Minister for Immigration [2017] FCA 1580

DBA16 v Minister for Home Affairs [2018] FCCA 2761

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178

DBC16 v Minister for Immigration and Border Protection [2018] FCCA 1802

DBD16 v Minister for Immigration and Border Protection [2018] FCCA 1801

DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95

Egglishaw v Australian Crime Commission (2007) 164 FCR 224

Henderson v Henderson (1843) 3 Hare 100

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375

Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Norbis v Norbis (1986) 161 CLR 513

Port of Melbourne Authority v Anshun (No 2) [1981] VR 81

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

R v Carroll (2002) 213 CLR 635

S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55

Timbercorp Finance Pty Ltd (in Liq) v Collins (2016) 259 CLR 212

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174

Waterways…

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Details
Case
[2018] FCA 1777
Decision Date

CaseChat Overview and Summary

In the case of DBA16 v Minister for Home Affairs, the applicant, DBA16, sought an extension of time to bring a second application for judicial review in the Federal Circuit Court of Australia (FCCA) under section 476 of the Migration Act 1958 (Cth). The application was made in relation to a decision of the Immigration Assessment Authority (IAA) that had affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise Visa. The applicant's earlier application for judicial review had been dismissed by the FCCA and the appeal to the Federal Court was dismissed on 14 December 2017.

The central issue before the court was whether the FCCA had erred in refusing to extend the time for the applicant to file a second application for judicial review. The court had to consider the approach to be taken in determining whether it was in the interests of justice to extend time and whether the merits of the proposed claim should be considered on a final basis or on an impressionistic level.

The court found that the FCCA had not erred in refusing to extend time for the applicant to file a second application. The court held that the FCCA was correct in considering the merits of the substantive application as relevant to determining whether it was necessary in the administration of justice to make an order extending time. The court agreed with the approach taken by Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, that the threshold for determining whether a claim has reasonable prospects of success is whether the grounds are plainly hopeless on an impressionistic reading and consideration without full argument. The court also noted that it is not appropriate to undertake an exhaustive examination of the merits of the proposed claim as if they had been fully considered, developed, and argued.

The court further held that the principles relating to jurisdictional error have a different application to decisions of inferior courts than they do to administrative decisions. The court referred to the High Court's decision in Craig v South Australia (1995) 184 CLR 163, which stated that a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

The court dismissed the application with costs.

Orders:

1. The application is dismissed with costs.

Orders

Orders of the court

1. The application is dismissed with costs.

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

Background

Background to the litigation

By operation of s 476A(3) of the Migration Act no appeal may be brought to the Federal Court of Australia from an order of the FCCA refusing an application for an extension of time under s 477(2). However, this Court has original jurisdiction under s 39B of the Judiciary Act to entertain applications for constitutional writs, including in relation to orders made on application to the FCCA under s 477(2) of the Migration Act: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, at [11]; DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37].Background The applicant applied to the FCCA for an extension of time within which to bring an application seeking relief in the original jurisdiction of the FCCA under s 476 of the Migration Act. By that proposed application, the applicant sought relief directed to a decision of the Immigration Assessment Authority (IAA) made 15 September 2016 which had affirmed a decision of a delegate of the first respondent (the Minister) dated 20 July 2016 to refuse to grant the applicant a Safe Haven Enterprise Visa. The proposed application to the FCCA would have been the applicant’s second application to that court seeking judicial review of the decision of the IAA. An earlier application was dismissed on 23 February 2017 in DBA16 v Minister for Immigration [2017] FCCA 320, and an appeal to this Court from that decision was dismissed by Lee J on 14 December 2017: DBA16 v Minister for Immigration [2017] FCA 1580. In order to explain how the present circumstances arise, I set out below by way of background some findings and observations of Lee J in the applicant’s appeal to this Court at [2017] FCA 1580, [2] to [8] –[2]The IAA had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise Visa (subclass 790) (Visa). The evidence read on the appeal establishes that the appellant was, to use the words in s 5AA(1) of the Migration Act 1958 (Cth) (Act), an “unauthorised maritime arrival”, in that he entered Australia at an excised offshore place. That happened because the vessel upon which the appellant was travelling to Australia was intercepted by a Royal Australian Navy ship on 7 April 2013, four nautical miles north of the Ashmore Islands. Due to problems with the vessel’s engine, the naval ship embarked all those on the distressed vessel and the next morning arrived at the Ashmore Islands within the Territory of Ashmore and Cartier Islands. The appellant was then transferred to an Australian Customs vessel and conveyed to Darwin, disembarking on 14 April 2013.[3]The significance of the appellant being an unauthorised maritime arrival is that persons who entered Australia at an excised offshore place when the appellant arrived are subject to the fast track review process (FTRP) introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which relevantly inserted Part 7AA into the Act. The statutory regime introduced by Part 7AA is summarised in some detail in two recent Full Court decisions: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[26] per Griffiths J and BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [64]-[75] per Charlesworth J.[4]It suffices for present purposes to say that, as the simplified outline in s 473BA of the Act states, Part 7AA:provides a limited form of review of certain decisions…to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.[5]The FTRP scheme was intended to introduce “rapid”, “efficient” and “streamlined” processing of the relevant caseload (which, according to the Minister’s second reading speech, was approximately 30,000 persons). Three important aspects of the scheme (which are said to facilitate the streamlined nature of the process) deserve mention.[6]First, in accordance with s 473CA of the Act, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after a decision is made under s 65 of the Act. Accordingly, unlike Part 7 of the Act, the person whose visa application is rejected need not apply for review (hence, Part 7AA uses the term “referred applicant”).[7]Secondly, the “core function” of the IAA under Part 7AA is to “arrive at the correct or preferable decision in the case before it according to the material before it”: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 342 [10] per French CJ. Having said this, the scheme does not give to the IAA the power to set a decision aside and substitute a new decision; it may, however, remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation.[8]Thirdly, in comparison to the position under Part 7 of the Act, the FTRP scheme limits referred applicants’ rights under Part 7AA of the Act to give (and the IAA’s duties to receive and consider) material in support of their claims. This limitation has occurred by the legislature defining exclusively the referred applicants’ rights: see s 473DA(1), which provides that “[Division 3], together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA].”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The FCCA dismissed the applicant’s application for an extension of time primarily on the ground that the applicant’s claim would be met with a successful claim of Anshun estoppel, and was therefore bound to fail. The FCCA concluded at [97] of its reasons that it was not in the interests of justice to extend time for the applicant to file a second application.The decision of the Federal Circuit Court of Australia The FCCA considered that the merits of the substantive application were relevant to determining whether it was necessary in the administration of justice to make an order extending time. In relation to the approach to be taken to the assessment of merits, the FCCA set out at [41] and [42] the following passages from the reasons of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [63] and [66] –[63]The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. …[66]… In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court. Earlier, at [61] and [62], Mortimer J addressed the vice of determining an extension of time application after undertaking an exhaustive examination of the merits of the proposed claim –[61]… Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Migration Act.[62]This was not a matter identified in the amended application as a ground of review in relation to the Federal Circuit Court decision. It was not a matter on which the first respondent made any detailed submissions. It cannot be considered as a basis for granting any relief in this proceeding. However, lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court, it is appropriate that I express my disquiet about the way in which the Federal Circuit Court dealt with the factor of the merits of the applicant’s proposed grounds of review. As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

Ratio Decidendi

Legal Principle Established

In relation to the applicant’s reliance on the decision of Charlesworth J in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139, counsel for the Minister submitted that the decision was distinguishable and, in any event, wrong on the ground that the observations at [78] concerning taking into account irrelevant or relevant considerations drew on authorities concerning administrative decision-makers, relying upon the comments of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [65], which are referred to at paragraph [36] above. Consideration The principles relating to jurisdictional error have a different application to decisions of inferior courts than they do to administrative decisions. That is because the jurisdiction of an inferior court is ordinarily broader than that of administrative decision-makers. In a frequently cited passage, the High Court in Craig v South Australia (1995) 184 CLR 163 at 179-180 stated the position in relation to inferior courts as follows –[T]he 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. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. Earlier, at p 177-178 the Court had said –Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. (Footnote omitted)