Director of Public Prosecutions18 v Minister for Home Affairs
[2019] FCA 825
•4 June 2019
FEDERAL COURT OF AUSTRALIA
DPP18 v Minister for Home Affairs [2019] FCA 825
Appeal from: Application for extension of time: DPP v Minister for Home Affairs & Anor [2018] FCCA 3350 File number: NSD 2339 of 2018 Judge: STEWART J Date of judgment: 4 June 2019 Catchwords: MIGRATION – application for an extension of time to appeal orders of the Federal Circuit Court of Australia – application dismissed Legislation: Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Migration Act 1958 (Cth) s 476, Part 7AA
Cases cited: Allesch v Maunz [2000] HCA 40; 203 CLR 172
Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344
Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 40
MZABP v Minister for Immigration and Broider Protection [2015] FCA 1391; 242 FCR 585
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478
Parker v R [2002] FCAFC 133
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476
R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; 48 FCR 83
Singh v Minister for Home Affairs [2019] FCAFC 3
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Stern K and Westgarth G, “Standards of Appellate Review in Public Law Australia” (2019) 26 AJ Admin L 9
Date of hearing: 27 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Karwan Eskerie of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2339 of 2018 BETWEEN: DPP18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
STEWART J
DATE OF ORDER:
4 JUNE 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
Introduction
This is an application for an extension of time to appeal from the orders and judgment of the Federal Circuit Court (FCC) in DPP18 v Minister for Home Affairs [2018] FCCA 3350.
The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority dated 19 June 2018, affirming a decision of a delegate of the Minister to refuse the grant of a Safe Haven Enterprise (subclass 790) Visa (SHEV) (the protection visa) under the Migration Act 1958 (Cth).
Rule 36.03 of the Federal Court Rules 2011 (Cth) (FCR) as it was at the time required a notice of appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. As the orders were pronounced on 19 November 2018, the notice of appeal should have been filed by 10 December 2018. In fact, the application was made on 14 December 2018, and was therefore four days late.
It is well-settled that the factors to be taken into account when considering whether an extension of time should be granted include the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349 [17]-[22], adopted by the Full Court in Parker v R [2002] FCAFC 133 at [6].
Rule 36.05 of the FCR makes provision for an application for an extension of time within which to file a notice of appeal, and in particular provides that the application may be made during or after the period mentioned in r 36.03.
In this matter, the first respondent, being the Minister, accepts that there is no prejudice to him if the Court grants an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision-making.
The Minister also accepts that the reason for the delay, although briefly stated by the applicant in his affidavit, are satisfactory. They are that the applicant, who is self-represented and lives in Western Australia, attempted to file his appeal in the Perth registry of this Court, but was apparently told that he had to file it in the Sydney registry. That is presumably because the primary judgment of the FCC is a judgment of a judge of that Court in Sydney.
However, the Minister submits that the applicant’s draft ground of appeal has no merit and does not establish that the decision of the primary judge is attended by any, let alone sufficient, doubt such as to warrant an extension of time being granted.
The approach by the Minister means that the focus of this application must be on the merits of the proposed appeal. In that regard, it is important that at the stage of deciding whether time should be extended the Court does not get drawn into deciding the appeal itself; the applicant is not required to show that he will succeed in the appeal if time is extended. That is particularly so where, as in this case, the record is incomplete – I have only the decision of the Authority and of the primary judge without any of the evidence that was before them or the decision of the delegate.
At this stage, the court considers what has been described as “the outline of the case” without “going into much detail on the merits”: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and at 540 [66] per Kirby J adopting the approach of Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E-F.
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 per Mortimer J at 599 [66] is instructive in relation to the present statutory context. Her Honour stated that “unless the grounds are hopeless … 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 consider and determine the grounds of review with a full consideration of them”. That approach was endorsed by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 at [21]-[23] and [38] per Tracey, Perry and Charlesworth JJ.
The focus of my enquiry is accordingly whether the proposed appeal is “hopeless”, or whether it has some reasonable prospect of success in the sense that “there is a finite non-trivial probability that it will succeed”: Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; 48 FCR 83 at 98 [29] per French J, adopted in Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] per Griffiths and Edmonds JJ.
Background
The applicant, identified by the pseudonym DPP18, is a citizen of Sri Lanka. He arrived in Australia (Christmas Island) on 25 April 2013 as what is described as an “unauthorised maritime arrival” (see s 5AA of the Act). He applied for the protection visa on 30 March 2017 on the basis of claims that were later summarised by the Authority in its reasons for decision as follows:
•He is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion, who was born in the Vavuniya District of the Northern Province of Sri Lanka.
•He lived in the Vavuniya District until he was seven years old in 1993, when fighting broke out between the LTTE and the Sri Lankan Army (SLA) and he was sent to live with his aunt in Trincomalee in the Eastern Province.
•Problems started in the Trincomalee community in 2005, and the SLA killed five of his classmates, and it became very unstable and unsafe in Trincomalee.
•He left Sri Lanka in 2006 and travelled to Malaysia to escape the war. He travelled on a Sri Lankan passport and had a three month visa, however he stayed for approximately three years, until he was arrested in 2009, detained in immigration detention, and deported to Sri Lanka.
•He returned to Trincomalee and approximately five days after arrival there he was approached by two members of the Karuna Group and asked to attend their offices. When he attended later that day they questioned him about any previous association with the LTTE and allowed him to leave. He realised he was probably not safe in Trincomalee and decided to move to Vavuniya. However, the situation in Vavuniya was worse and the civil war between the LTTE and the SLA was at its peak, so he returned to Trincomalee.
•In Trincomalee he came into contact with some members of the Tamil Makkal Viduthalai Pulikal (TMVP) party. He felt safe with them and decided to join the party. He worked as a driver for party members, and helped with other party duties, including cleaning the party office and sometimes performing watchman duties. During the Provincial Council elections he distributed information to the public and put up posters.
•He supported the party for his own safety and in extraordinary circumstances, but he was perceived to be a person who supported the Sri Lankan Tamils aspiration for self-determination, and his views were known to all.
•He was very scared of being caught by the SLA and sent for rehabilitation, or of being detained under the Prevention of Terrorism Act (PTA) because of his views about self-determination of Tamils. Armed members of the TMVP were being asked by the government to either join the police or military service, or attend rehabilitation camps operated by the SLA, and there were frequent reports of torture in the camps, and mysterious deaths after returning from rehabilitation.
•The Sri Lankan government distrusts returning Tamil asylum seekers because they believe the LTTE is waiting for an opportunity to rise up again.
•His brother fled to Norway approximately 10 years ago because he was an active combatant in the LTTE, and his father was involved with the LTTE before he married his mother.
•He will be arrested, tortured and killed by the SLA and the CID because of his Tamil ethnicity, his Hindu religion, and for being a member of the TMVP party and escaping the military run rehabilitation camp. There is nowhere in Sri Lanka where he could escape the threat of harm by the authorities, as it is the authorities who are the perpetrators.
The applicant’s application for the protection visa was refused by the delegate. It was then automatically referred to the Authority under Part 7AA of the Act. As indicated, the Authority affirmed the delegate’s decision.
The Federal Circuit Court
The applicant then applied to the FCC for a constitutional writ within that Court’s jurisdiction under s 476 of the Act. The primary judge identified (at [16]) the sole ground in the application as follows:
1.The Authority committed jurisdictional error by making a finding that was illogical, irrational and unreasonable,
Particulars
a. At paragraph 7, the Authority outlined the applicant’s claims. In particular, the applicant claimed that he was approached by two members of the Karuna Group approximately five days after he returned to Trincomalee from Malaysia.
b. At paragraph 18, the Authority held that the applicant’s suggestion that the Karuna Group may have known about his father and brother’s involvement with the LTTE, was ‘‘purely speculative”.
c. At paragraph 19, the Authority referred to the country information about the Karuna Group, noting that it was founded by a ‘breakaway LTTE leader Colonel Karuna’.
d. Given that the Authority was aware of the connection between the LTTE and the Karuna Group, it was illogical to have considered that the suggestion that the Karuna Group may have known about his father and brother’s involvement with the LTTE, was “purely speculative”.
As indicated, the primary judge rejected that ground. His Honour reasoned as follows:
[20]It is apparent from the Authority’s reasons, which are not to be read with a keen eye for error, that the Authority provided a logical and rational reasons in support of its finding as to the knowledge of the Karuna Group. In that regard, the Authority referred to the fact that the applicant did not specifically refer to being questioned by the Karuna Group about his father and brother’s involvement with the LTTE. That is a logical and rational basis to support the finding made by the Authority that the proposition that the Karuna Group had knowledge of the father and brother’s involvement was purely speculative. The reasons given by the Authority as to the absence of any suggestion of questioning about the association means that the finding in paragraph 18, the subject of challenge, cannot be said to lack an evident and intelligible justification.
[21]I accept the first respondent’s submission that no extreme illogicality has been established in respect of the adverse finding and that the disagreement with the adverse finding is one in respect of which reasonable minds could differ about the assessment of the evidence. In these circumstances, the finding cannot be said to be illogical, irrational or legally unreasonable. No jurisdictional error as alleged in ground 1 is made out.
The application for an extension of time
As required by r 36.05 of the FCR, the application before me is accompanied by a draft notice of appeal. The ground of appeal is recorded in manuscript as follows:
JURISDICTIONAL ERROR DUE TO NO FOLLOWING OR FACTS PRESENTED. (sic)
In his submissions, the Minister with some justification criticises that ground of appeal as meaningless, without particulars, and failing to address the primary judge’s reasons. The Minister submits that although the task of the primary judge was to determine whether the Authority’s decision was affected by jurisdictional error, in respect of which reference was made to Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476, the task of this Court is to determine whether the judgment of the primary judge is affected by appealable error. In the latter regard, the Minister cites SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. There, the Full Court, in the context of an appeal from a single judge of the Court on a review application from a decision of the Migration Review Tribunal, said that it is necessary to show error in the judgment appealed from. Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [22] was referred to as authority. However, that case dealt with the nature of an appeal to the Full Court of the Family Court of Australia under the Family Law Act 1975 (Cth) where different considerations might apply.
In any event, recently the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 dealt explicitly with the role of this Court in an appeal from the FCC on a review application from a decision of the Refugee Review Tribunal (the Tribunal) where the ground of review was the unreasonableness of the Tribunal’s decision such as to amount to jurisdictional error. Given that in this case the Authority’s decision was challenged before the primary judge on the basis of unreasonableness, the case is directly on point. There are four judgments all of which support the same result in the case.
In relation to the applicable appeal standard, Kiefel CJ (at [18]) said that the question on appeal is whether the Tribunal’s decision was legally unreasonable and whether the primary judge’s reasoning in this regard was correct. It is necessary for the Court to decide these questions for itself rather than to defer to what the primary judge has held and require the appellant to identify some error in the primary judge’s reasoning.
Gageler J (at [20]) said much the same:
[T]he appellate court must reach its own conclusion as to whether the administrative decision was unreasonable. That is to say, the appellate court must determine not whether the conclusion of the primary judge was open but whether the conclusion of the primary judge was, in the opinion of the appellate court, the right conclusion.
Similarly, Nettle and Gordon JJ (at [85]), recognising that the determination of unreasonableness is an evaluative exercise, said that it is not right for the appeal court to determine, for example, that the purported exercise of power by the decision-maker was valid because it was not legally unreasonable but then, nonetheless, go on to conclude that it was open to the primary judge to reach the opposite view.
The reasoning of Edelman J (at [154]-[155]) was to the same effect.
The four judgments are helpfully analysed by Kristina Stern and Georgina Westgarth in their recent article: Stern K and Westgarth G, “Standards of Appellate Review in Public Law Australia” (2019) 26 AJ Admin L 9.
The upshot is that it will not be necessary in the prospective appeal for the applicant to show error in the reasoning of the primary judge. Attention is accordingly directed to the reasoning of the Authority, and particularly the criticism of it inherent in the ground of appeal that was advanced before the primary judge.
Returning to the articulated ground of appeal, I am prepared to accept in the applicant’s favour that what is sought to be asserted is that the ground of review before the primary judge should have succeeded. That means that the question of the prospect of success of the prospective appeal must be answered with reference to whether the Authority committed jurisdictional error by making a finding that was “illogical, irrational and unreasonable” on the particulars identified.
The question of whether an administrative decision is so unreasonable as to be invalid is a question arising from the extent of the decision-maker’s power: is the decision such as to amount to an abuse of power? Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action: Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 36 per Brennan J.
The position has been recently summarised in Singh v Minister for Home Affairs [2019] FCAFC 3 at [61] per Reeves, O’Callaghan and Thawley JJ as follows:
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:
(1)is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(2)“lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
(3)is plainly unjust, arbitrary, capricious or lacking in common-sense: [Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; FCAFC 11] at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration & Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
To undertake the necessary evaluation, it is convenient to quote the relevant parts of the Authority’s decision that are referred to in the ground of review. In that regard, at paragraph [7] of the Authority’s reasons, as quoted above, in the fifth bullet-point it is recorded that the applicant claimed that approximately five days after returning from Trincomalee he was approached by two members of the Karuna Group and questioned about any previous association with the LTTE.
In paragraph [18], the Authority relevantly stated the following:
In his statement of claims the applicant said that after returning to Sri Lanka from Malaysia, in 2009, he returned to Trincomalee, and was soon after questioned by members of the Karuna Group about any association with the LTTE. At the SHEV interview the applicant said they approached him because he was a new person in the place, and because they wanted him to join with them. The applicant was consistent in his statement of claims and during the SHEV interview regarding being questioned by the Karuna group, and I accept it is plausible that as a new person in the area that he was questioned as claimed. Despite suggesting, both in his statement of claims, and at the SHEV interview, that the Karuna group might have known about his father and brother’s association with the LTTE, the applicant did not specifically refer to being questioned about their involvement with the LTTE. I consider the suggestion that the Karuna group might have known about his father and brother’s LTTE involvement is purely speculative, and I do not accept that. (My emphasis.)
In paragraph [19], as stated in the ground of review, the Authority referred to the country information about the Karuna Group, noting that it was founded by a “breakaway LTTE leader Colonel Karuna”.
The question then is whether it was legally unreasonable for the Authority to have considered that the suggestion that the Karuna Group might have known about the applicant’s father and brother’s involvement with the LTTE was “purely speculative”.
I do not see the basis for any illogicality, unjustness, arbitrariness, capriciousness, or lack of common-sense or evident and intelligible justification in the Authority’s reasoning in relation to the point taken in the ground of appeal. At its highest, the review ground argues that the Authority made an error in its characterisation of a particular claim made by the applicant as “purely speculative”. In making that characterisation, the Authority was performing its task in evaluating the evidence before it and making factual findings. Not only was that characterisation open to it, but it seems in any event to follow from the applicant’s claim that the Karuna Group “might” have known about his father and brother’s association with the LTTE; the applicant’s claim in its own terms was speculative. Moreover, the fact that the applicant did not say that he was questioned by the group about his father or brother’s involvement with the LTTE further supports the conclusion that the suggestion that the group knew of that involvement as purely speculative.
In the circumstances, I do not consider the prospective appeal to have any prospect of success.
In oral submissions before me the applicant sought to raise additional matters. He complained that he had not been given a transcript or a copy of the recording of his arrival interview before he was interviewed for the purpose of his protection visa application (what is referred to as his SHEV interview). He said that this is what led to differences between what he said in the two interviews. However, the Authority in its decision accepted the applicant’s explanation of why he had not raised certain things at his arrival interview which he then raised at his SHEV interview.
The applicant also said that he was not called to be interviewed by the Authority. There was, however, no duty on the Authority to interview the applicant: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [75] per Reeves, Robertson and Rangiah JJ.
The applicant also complained generally that at different stages lawyers acting for him had not put the case as they should have put it, or as they were instructed to do. This complaint, however, lacked specificity and was not supported by any evidence. In any event, it had not been raised before the primary judge, was not covered by the ground of review taken before the primary judge, and is not covered by the draft notice of appeal before me.
In the circumstances, I cannot see any possible merit in any of the points which the applicant raises.
Conclusion
It follows that the application for an extension of time must be refused. There is no reason why the costs should not follow the result.
40 I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.
Associate:
Dated: 4 June 2019
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