SZTES v Minister for Immigration and Border Protection

Case [2015] FCA 719

FEDERAL COURT OF AUSTRALIA

SZTES v Minister for Immigration and Border Protection

[2015] FCA 719

Citation: SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Parties: SZTES v MINISTER FOR IMMIGRATION and BORDER PROTECTION and ORS
File number: NSD 51 of 2015
Judge: WIGNEY  J
Date of judgment: 17 July 2015
Catchwords:

MIGRATION – application to extend time in which to bring judicial review proceedings – nature of power under s 477(2) of the Migration Act 1958 (Cth) – whether extension of time necessary in the interests of the administration of justice

ADMINISTRATIVE LAW – judicial review of decision of the Federal Circuit Court to refuse to extend time under s 477(2) of the Migration Act 1958 (Cth) – whether decision involved jurisdictional error – whether applicant was denied procedural fairness – relevance of absence of right of appeal – whether the Federal Circuit Court misunderstood the test for reasonable prospects of success

Legislation: Constitution, s 73
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 7, 11
Federal Circuit Court of Australia Act 1999 (Cth), s 20
Judiciary Act 1903 (Cth), ss 44, 78B
Migration Act 1958 (Cth), ss 36, 36(2)(a), 36(2)(aa), 36(2B)(c), 476, 476A(3)(a), 477, 477(1), 477(2), 477(2)(b)
Cases cited: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Craig v The State of South Australia (1995) 184 CLR 163
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541
Hickey v Australian Telecommunications Commission (1983) 72 FLR 291
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Pozniak v Minister for Health (unreported, Federal Court of Australia, Burchett J, 14 March 1986)
Re Bryant; Ex parte Guarino (2001) 178 ALR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
Shrestha v Migration Review Tribunal [2015] FCAFC 87
SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Date of hearing: 27 April 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 102
Counsel for the Applicant: Mr S Prince with Mr P Bodisco
Solicitor for the Applicant: SBA Lawyers
Counsel for the First Respondent: Mr A Markus
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs
Solicitor for the Second Respondent: Australian Government Solicitor
Counsel for the Third Respondent: The Third Respondent filed a submitting notice save as to costs

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

CaseChat Overview and Summary

The case of SZTES v Minister for Immigration and Border Protection involves an Afghan citizen who had applied for a protection visa under the Migration Act 1958 (Cth). After his application was refused, the applicant sought a review by the Refugee Review Tribunal, which was also unsuccessful. The applicant then sought judicial review of the Tribunal's decision in the Federal Circuit Court, but his application was filed beyond the statutory time limit. Consequently, the applicant sought an extension of time to file his application for judicial review under s 477(2) of the Migration Act. The Federal Circuit Court dismissed the application for an extension of time, and the applicant sought to challenge that decision in the High Court.

The central legal issue before the court was whether the Federal Circuit Court had jurisdiction to grant an extension of time under s 477(2) of the Migration Act, and if so, whether the court had exercised that jurisdiction correctly. Specifically, the court had to determine whether the Federal Circuit Court had made a jurisdictional error in dismissing the applicant's extension application, or whether it had misconceived its powers in assessing whether an extension of time was necessary in the interests of the administration of justice. The court also had to consider whether the applicant had been denied procedural fairness in the handling of the extension application.

The court held that the Federal Circuit Court had jurisdiction to grant an extension of time under s 477(2) of the Act, and that the court had correctly exercised that jurisdiction. The court found that the Federal Circuit Court had not made a jurisdictional error in dismissing the applicant's extension application, nor had it misconceived its powers in assessing the necessity of an extension of time. The court also found that the applicant had not been denied procedural fairness in the handling of the extension application. The court held that the Federal Circuit Court had correctly considered the applicant's explanation for the delay in filing the application and the prospects of success of the substantive judicial review application. The court found that the applicant had provided a satisfactory explanation for the delay, but that the substantive judicial review application had no reasonable prospects of success because the Tribunal had not made any jurisdictional errors. Consequently, the court held that it was not in the interests of the administration of justice to grant an extension of time.

The court dismissed the applicant's application for an order in the nature of certiorari to quash the decision of the Federal Circuit Court. The court also ordered that the applicant pay the respondents' costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant to pay the respondents’ costs.

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

Background

Background to the litigation

This application raises an important issue in relation to the nature of the jurisdiction under s 477(2) of the Act and the manner in which the Federal Circuit Court approaches that jurisdiction, especially where, as here, the extension application is listed for hearing at the same time as the substantive judicial review application. The issue is of particular importance given the absence of any right to appeal an adverse decision on an extension application. BACKGROUND The applicant is a citizen of Afghanistan. On 15 January 2013, he applied for a protection visa under s 36 of the Act. On 11 March 2013, that application was refused by a delegate of the Minister for Immigration and Border Protection (Minister). Shortly thereafter the applicant applied to the Refugee Review Tribunal (Tribunal) for a review of the decision to refuse his visa application. That review application was unsuccessful. In a decision dated 27 June 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant’s visa application. Undeterred, the applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision pursuant to the Federal Circuit Court’s original jurisdiction under s 476 of the Act. In his application to the Federal Circuit Court, the applicant claimed that in affirming the delegate’s decision to refuse his visa application, the Tribunal made two jurisdictional errors. First, he claimed that the Tribunal took into account irrelevant considerations; and second, he claimed that the Tribunal applied the incorrect statutory test for the visa in question. The problem for the applicant, however, was that his application was filed 18 days after the expiry of the 35 day time limit for the making of such applications imposed by s 477(1) of the Act. The applicant was accordingly required to obtain an extension of time within which to bring his application pursuant to s 477(2) of the Act. Under s 477(2) of the Act, the Federal Circuit Court has a discretion to extend the 35 day period in which review applications can be filed if two conditions are satisfied. First, it is necessary for an application for an extension of time to be made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make an order extending time. This condition was not a problem for the applicant. His review application satisfied this condition because it both sought an extension of time and set out why the applicant considered it was necessary in the interests of the administration of justice to make the extension order. The second condition, however, turned out to be a problem for the applicant. To enliven the Federal Circuit Court’s discretion to extend time, s 477(2)(b) of the Act requires the Federal Circuit Court to be satisfied that it is necessary in the interests of the administration of justice to make an order extending time. THE HEARING IN THE FEDERAL CIRCUIT COURT

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That was the last mention of the extension application. Counsel for the applicant made submissions in relation to the substantive issue of whether the Tribunal had erred jurisdictionally as contended by the applicant. Counsel for the Minister also addressed that issue. The Federal Circuit Court judge reserved his decision. THE JUDGMENT OF THE FEDERAL CIRCUIT COURT On 12 August 2014, the Federal Circuit Court judge handed down a judgment in which he dismissed the application for an extension of time. The Federal Circuit Court judge found that the applicant had satisfied the first condition for an extension of time under s 477(2) of the Act. The applicant had made an application in writing for an order extending time which specified why the applicant considered that it was necessary in the interests of the administration of justice to make such an order. In relation to the second condition in s 477(2) of the Act, the interests of the administration of justice, the judge noted that the considerations or issues potentially relevant to this condition were not confined, but emphasised the need for an explanation of the delay and reasonable prospects of success. The judge said (at [10]-[11]): The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. The Court is not confined in the issues which it may consider relevant to its determination of that question. In this case, relevant considerations are whether the applicant has provided a satisfactory explanation for his delay in commencing the proceedings and whether the proceedings as a whole have a reasonable prospect of success, noting that a matter which does not have such prospects is liable to be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001. The applicant filed an affidavit which set out certain practical difficulties he encountered in the filing of his initiating process. I am satisfied that the applicant’s explanation for the delay in commencing these proceedings is a satisfactory one. I also note that the Minister did not oppose an extension of time. In relation to the prospects of success, the Federal Circuit Court judge gave fairly detailed consideration to each of the grounds in the applicant’s substantive judicial review application, together with the applicant’s submissions in support of those grounds. The Federal Circuit Court judge found that the Tribunal had not erred as alleged by the applicant, or at least that he was not persuaded that there was any jurisdictional error on the part of the Tribunal. The judge’s conclusion in relation to the interests of the administration of justice is in the following terms (at [26]-[28]): I am not persuaded that there is any basis to find that the Tribunal’s decision is affected by jurisdictional error. Consequently, the substantive proceedings have no reasonable prospects of success. In such circumstances, and notwithstanding that I have found that the applicant has supplied a satisfactory explanation for his delay in filing his initiating application, I conclude that it is not in the interests of the administration of justice to extend time to bring these proceedings. Consequently, the applicant’s application for an extension of time will be dismissed.

Ratio Decidendi

Legal Principle Established

Fifth, in dismissing the extension application on the basis that the applicant was not entitled to final relief, the Federal Circuit Court judge effectively deprived the applicant of his appeal rights.CONSIDERATION It is important to emphasise again that this is not an appeal from the judgment of the Federal Circuit Court. The Court has no jurisdiction to entertain such an appeal: section 476A(3)(a) of the Act. This is an application in which the applicant seeks an order in the nature of certiorari quashing a decision of an inferior court on the basis that it made a jurisdictional error or errors. In the present circumstances, it can be concluded that the Federal Circuit Court made a jurisdictional error if it is found that the court either denied the applicant procedural fairness or misconceived the nature of its function or the extent of its powers in considering whether it was necessary in the interests of the administration of justice to grant the extension of time sought by the applicant: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (SZTSU) at [11]. It is not sufficient, however, for the applicant to simply demonstrate that the court made an error, even a legal error, in determining a matter within its jurisdiction. In Craig v The State of South Australia (1995) 184 CLR 163, the High Court gave detailed consideration to the circumstances in which an inferior court may be said to have fallen into jurisdictional error. The court said (at 177-178): An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. 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.)