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FKV17 v Minister for Home Affairs

FKV17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA
FKV17 v Minister for Home Affairs [2022] FCAFC 93

Appeal from: FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950

File number(s): QUD 1 of 2020

Judgment of: GREENWOOD, RANGIAH AND BEACH JJ

Date of judgment: 25 May 2022

Catchwords:
MIGRATION – consideration of whether the Federal Circuit Court (the “primary court”) engaged in jurisdictional error in considering an application and ultimately exercising the discretion arising under s 477(2) of the Migration Act 1958 (Cth) (the “Act”) to extend (or not extend) the 35 day period within which an application must be made before the primary court seeking a remedy for the grant of the constitutional writs under s 476 of the Act – consideration of the text, subject matter and purpose of s 477(2) of the Act

MIGRATION – consideration of whether there is any limitation derived from the text, subject matter and purpose of s 477(2) concerning the extent to which the primary court is entitled to engage with the likelihood (or otherwise) of an applicant succeeding in obtaining a remedy under s 476 of the Act when considering the exercise of the discretion under s 477(2) – consideration of whether the primary court engaged in jurisdictional error by considering the contended grounds of s 476 relief “as if” those grounds were before the primary court for determination when deciding whether the 35 day period is to be extended or not under s 477(2) of the Act

MIGRATION – consideration of whether the text, subject matter and purpose of the section requires the primary court to go no further than deciding whether the contended grounds for relief under s 476 of the Act are simply “arguable” or “sufficiently arguable” and whether the frame of mind to be brought to the extension decision is an “impressionistic” assessment of the contended grounds – consideration of the obiter observations of a single judge of this Court in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62], [63] and [66]

MIGRATION – consideration of the distinction between contended error on the part of an administrative decision‑maker on the one hand and contended error in the exercise of the judicial power of the Commonwealth by an inferior court on the other hand, in assessing whether error by an inferior court constitutes jurisdictional error – consideration of whether the decision of the Full Court of this Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 is wrongly decided

MIGRATION – consideration of whether any error on the part of the primary court in the exercise of the discretion under s 477(2) of the Act, if non‑jurisdictional error and thus error within jurisdiction, is nevertheless susceptible of a remedy under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in the exercise of the Federal Court’s original jurisdiction “in any matter arising under any laws made by the Parliament”, being a matter arising under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FCAFC 93
Decision Date: 25 May 2022

CaseChat Overview and Summary

The case of FKV17 v Minister for Home Affairs involved the appellant, FKV17, appealing against the decision of the Federal Circuit Court (the primary court) to refuse an application to extend the time limit for seeking a remedy under section 476 of the Migration Act 1958 (Cth). The primary court had concluded that the application was made outside the 35-day period stipulated in section 477(2) of the Act. The dispute centred around the interpretation and application of section 477(2), specifically the extent of the primary court's discretion and the factors it should consider when deciding whether to extend the time limit for filing an application under section 476.

The court was required to determine whether the primary court had engaged in a jurisdictional error by considering the merits of the applicant's grounds for relief as if they were being determined in the primary court, instead of merely assessing whether the grounds were arguable or sufficiently arguable. Additionally, the court needed to address whether there was any limitation on the primary court's discretion under section 477(2) concerning the likelihood of the applicant succeeding in obtaining a remedy under section 476. The court also considered whether any non-jurisdictional error made by the primary court in exercising its discretion under section 477(2) was susceptible to a remedy under section 39B(1A)(c) of the Judiciary Act 1903 (Cth).

The court found that the primary court had indeed engaged in a jurisdictional error by delving into the merits of the applicant's grounds for relief rather than merely assessing their arguability. The court emphasized that the primary court should have adopted an impressionistic assessment of the merits to decide whether the grounds were sufficiently arguable. The court also held that there was no limitation on the primary court's discretion concerning the likelihood of success under section 476. Finally, the court concluded that any non-jurisdictional error by the primary court was not susceptible to a remedy under section 39B(1A)(c) of the Judiciary Act 1903 (Cth).

In light of the above, the appeal was allowed, and the orders of the Federal Circuit Court were set aside, except for the order requiring the appellant to pay the Minister's costs. The Federal Circuit Court and the Family Court of Australia (Division 2) were directed to hear and determine the appellant's application for an extension of time according to law. The Minister was ordered to pay the appellant's costs of the appeal and the costs in the Federal Circuit Court that were thrown away as a result of the orders.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 2 of the orders made by the Federal Court of Australia on 25 November 2019 be set aside except insofar as it ordered the appellant to pay the first respondent’s costs.

3. The orders made by Federal Circuit Court of Australia on 20 August 2018 be quashed.

4. The Federal Circuit Court and Family Court of Australia (Division 2) hear and determine the appellant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time according to law.

5. The first respondent pay the appellant’s costs of the appeal and the appellant’s costs in the Federal Circuit Court of Australia thrown away as a result of Orders 3 and 4.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the hearing was set down for Monday, 13 August 2018, the hearing occurred on Thursday, 16 August 2018. Both the appellant and the Minister were represented by counsel. The decision of the primary judge At [4], after a brief introduction, the primary judge observes that the application before him is “for leave to file out of time” and observes that “I did hear full argument on the merits of the substantive application”. The Minister describes the primary judge’s analysis of each ground of review as “shortly and firmly expressed” and as going no further than a “fairly broad brush approach” to the merits and one not disclosing “substantially more than an impressionistic evaluation of the merits”. However, as the primary judge regarded himself as having heard full argument on the merits of the review application, this Court ought to accept that assessment as at least the approach the primary judge adopted. At [5] to [24], the primary judge sets out a description of the claims of the appellant which provided the foundation facts said to support the appellant’s Protection visa claims. At [25] to [34], the primary judge identified aspects of the primary findings of the Tribunal. The Tribunal’s reasons comprise 19 pages and clearly enough, the 10 brief paragraphs in the primary judge’s reasons do not seek to closely examine the detail of the findings or the analytical foundations for the findings. At [35], the primary judge identifies Ground 1 of the review application. At para 56 of the Tribunal’s reasons, reference is made to a Certificate issued by the Department under s 438 of the Act certifying that the disclosure of information at particular nominated folios of the departmental file (Folios 46 to 50 and Folio 78) would be contrary to the public interest. Ground 1 of the review application challenged the validity of that Certificate and contended that as a consequence of reliance on an invalid certificate, the non‑disclosure of information under s 438(1)(a) of the Act constituted a denial of procedural fairness by reason of ss 424A, 424AA or 425 of the Act. At [37] to [52], the primary judge examined the ground and concluded that para 56 of the Tribunal’s decision had been included in error. The primary judge described para 56 of the Tribunal’s reasons as “quite anomalous” as Folio 46 was the Protection visa application itself; Folio 50 was the affidavit of the appellant in support; and Folio 78 was the Protection visa decision record. The primary judge notes that at para 56 the Tribunal had said that it had not taken information in these folios into account, when clearly the Tribunal reasons (described by the primary judge as “very thorough”) demonstrate that information in these fundamental folios had been taken into account, as was mandatory. Having examined the ground, the primary judge concluded at [49] that the inclusion of para 56 in the Tribunal’s reasons was in error and concluded that that was “the only rational conclusion that I could come to, given the state of all the evidence before me”.

Ratio Decidendi

Legal Principle Established

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Appeal from:	FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950
File number(s):	QUD 1 of 2020
Judgment of:	GREENWOOD, RANGIAH AND BEACH JJ
Date of judgment:	25 May 2022
Catchwords:	MIGRATION – consideration of whether the Federal Circuit Court (the “primary court”) engaged in jurisdictional error in considering an application and ultimately exercising the discretion arising under s 477(2) of the Migration Act 1958 (Cth) (the “Act”) to extend (or not extend) the 35 day period within which an application must be made before the primary court seeking a remedy for the grant of the constitutional writs under s 476 of the Act – consideration of the text, subject matter and purpose of s 477(2) of the Act MIGRATION – consideration of whether there is any limitation derived from the text, subject matter and purpose of s 477(2) concerning the extent to which the primary court is entitled to engage with the likelihood (or otherwise) of an applicant succeeding in obtaining a remedy under s 476 of the Act when considering the exercise of the discretion under s 477(2) – consideration of whether the primary court engaged in jurisdictional error by considering the contended grounds of s 476 relief “as if” those grounds were before the primary court for determination when deciding whether the 35 day period is to be extended or not under s 477(2) of the Act MIGRATION – consideration of whether the text, subject matter and purpose of the section requires the primary court to go no further than deciding whether the contended grounds for relief under s 476 of the Act are simply “arguable” or “sufficiently arguable” and whether the frame of mind to be brought to the extension decision is an “impressionistic” assessment of the contended grounds – consideration of the obiter observations of a single judge of this Court in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62], [63] and [66] MIGRATION – consideration of the distinction between contended error on the part of an administrative decision‑maker on the one hand and contended error in the exercise of the judicial power of the Commonwealth by an inferior court on the other hand, in assessing whether error by an inferior court constitutes jurisdictional error – consideration of whether the decision of the Full Court of this Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 is wrongly decided MIGRATION – consideration of whether any error on the part of the primary court in the exercise of the discretion under s 477(2) of the Act, if non‑jurisdictional error and thus error within jurisdiction, is nevertheless susceptible of a remedy under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in the exercise of the Federal Court’s original jurisdiction “in any matter arising under any laws made by the Parliament”, being a matter arising under…