BTU17 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 The applicant applies under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Federal Circuit Court of Australia refusing to extend time under s 477(2) of the Migration Act 1958 (Cth) to bring proceedings for judicial review of a decision of the Immigration Assessment Authority - see: BTU17 v Minister for Immigration & Anor [2018] FCCA 3227. 2 The primary judge summarised the relevant background facts at J[3] to J[6] and the Authority's decision at J[7] to J[11]. It is not necessary to repeat them. 3 The Federal Circuit Court has jurisdiction under s 476 of the Migration Act to review certain "migration decisions" in its original jurisdiction. However, s 477(1) imposes a 35-day period within which an application may be brought for a remedy under s 476. Subsection 477(2) provides: The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been 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 the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make that order. 4 The relevant "migration decision" was a decision of the Authority, dated 6 February 2017, affirming a decision of a delegate of the Minister for Immigration and Border Protection (the first respondent) not to grant the applicant a Temporary Protection Visa. 5 The applicant filed his application in the Federal Circuit Court 79 days after the Authority's decision, and 44 days outside of the period required by s 477(1). 6 There is no right of appeal to this Court from a decision of the Federal Circuit Court under s 477(2) by reason of s 476A(3)(a) of the Migration Act. That section provides: Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); … 7 The combined effect of ss 20(3)(b), 24(1)(d) and 24(1AA)(a) of the Federal Court of Australia Act 1976 (Cth) has the same result. 8 However, it is well established that this Court has original jurisdiction under s 39B of the Judiciary Act to entertain an application for judicial review of the Federal Circuit Court's decision refusing an extension of time - see: FEZ17 v Minister for Home Affairs [2018] FCA 1689 at [8]. 9 To succeed in an application under s 39B of the Judiciary Act, the applicant bears the onus of establishing jurisdictional error. As Colvin J observed in WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [10], the applicant must show that the Federal Circuit Court has: (1) acted outside its power or authority; or (2) failed to perform the particular task entrusted to it; or (3) performed the task in a manner that is fundamentally inconsistent with its character as a court of record. 10 Examples of possible jurisdictional error on the part of the Federal Circuit Court include: (1) failure to take into account a matter which the statute conferring the court's jurisdiction expressly or impliedly required be taken into account as a precondition to the exercise of power; (2) taking into account a matter which the statute expressly or implicitly required not be taken into account in exercising the power; (3) where the court misconstrues the 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 (here, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern); and (4) failure by the court to provide procedural fairness. See: FEZ17 at [16] to [21]. 11 It is not sufficient merely to demonstrate legal error in the reasoning of the Federal Circuit Court or an erroneous finding of fact; the applicant has to demonstrate jurisdictional error, rather than error within jurisdiction: SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at [10] (Bromwich J); [16] (Flick J); [20]-[21] (Allsop CJ); FEZ17 at [22]; DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [58] (Rangiah J, with whom Reeves and Bromwich JJ agreed). 12 The applicant identified the basis for relief under s 39B in the following way in his originating application: On the grounds stated in the accompanying affidavit dated 24 May 2018, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903: 1. An order that the decision of driver [sic] in the Federal Circuit Court made on 8th of November 2018 dismissing the applicant's application for an extension of time under s 477(2) of the Migration Act 1958 be quashed. 2. An order that the matter be remitted to the Federal Circuit Court to be determined according to law, the Primary Judge dismissed the application for an extension of time although there is [sic] serious question to be tried, namely that the delegate accepted that my brother, [M], was responsible for the deaths of at least five militia members, neither the delegate nor the authority assesses the possible retribution against me as a family member of My brother [M], , [sic] I was not represented at the Federal circuit court [sic], hence I was unable to articulate my claims very well, it was in the interest [sic] of administration of justice to grant me an extension of time for these reasons. 13 Despite the reference to an "accompanying affidavit" dated 24 May 2018, there was no supporting affidavit filed. The Court Book, however, includes an affidavit dated 23 April 2017, filed in support of the applicant's application to the Federal Circuit Court, to which I have had regard. 14 At [14] of its reasons, the Federal Circuit Court stated: Section 477(2) of the Migration Act empowers the Court to extend time in the interests of the administration of justice. Considerations bearing upon that exercise of discretion are not confined. Commonly, the Court has regard to the length of the delay, the reasons for the delay, any prejudice and the prospects of success if an extension of time is granted. 15 That was a correct statement of the task entrusted to the court by the statute. Specifically, the Federal Circuit Court evidently understood that the statute did not limit the considerations which might be relevant to the question whether it was in the interests of the administration of justice to extend time - cf: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38]; BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [20]-[25]; EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675 at [32]-[36]; FEZ17 at [26]. 16 In reaching the conclusion that the application for an extension of time should be dismissed, the Federal Circuit Court paid particular attention to the following matters which were plainly relevant to the exercise of the discretion: (1) the extent of the delay; (2) the explanation for the delay; and (3) whether the application disclosed a serious question to be tried. 17 As to the first matter, the primary judge considered the delay was "moderate". 18 As to the second matter, the primary judge took into account the applicant's explanation that the delay was caused by financial incapacity, physical and emotional illness and language difficulties. The primary judge noted that the applicant was represented by a solicitor when his application for judicial review was filed but that he was unwilling or unable to pay further amounts required by his solicitor. The primary judge referred to the fact that the applicant sought an extension of time and an adjournment of the proceedings in order to obtain pro bono legal assistance. The primary judge concluded that the applicant had already had sufficient opportunity to obtain representation. His Honour concluded that the applicant's explanation for the delay was not persuasive. This consideration, which was open, weighed against an extension of time. 19 As to the third matter, the primary judge noted that the absence of a persuasive explanation for the delay "could, nevertheless, be overcome if the application disclosed a serious issue to be tried": J[17]. However, the primary judge was not satisfied the proposed application had merit. The primary judge noted that the application, in respect of which the extension of time was sought, contained three proposed grounds of review: 1. The Immigration Assessment Authority "IAA" failed to take into account relevant consideration, the "IAA" took into account irrelevant consideration. 2. The Immigration Assessment Authority "IAA" failed to test [complementary] protection principles in any case. 3. The Immigration Assessment Authority "IAA" decision is unreasonable. 20 His Honour recorded at J[19]: I invited the applicant to orally address those arguments. He was unable to do so. I invited the applicant to tell me what in his view was wrong with the Authority decision. He was unable to address that question either. In his submissions in reply, the applicant told me that he wants to remain in Australia. He asked me to treat him as my son, which I took to mean an invitation for sympathetic consideration. 21 His Honour then proceeded to address each of the three grounds by reference to the content of the Court Book, including the affidavit which had been filed in support of the application and the Authority's reasons. 22 The primary judge's assessment of the merit of each ground, or whether the ground disclosed a "reasonable question to be tried", was unobjectionable and demonstrated a conscientious engagement with the jurisdiction entrusted to the Federal Circuit Court. 23 In SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150, Gageler J stated: The only question before me … is whether the Federal Circuit Court made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to section 477(2) of the Migration Act. As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection [2016] HCA Trans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time. That limited question cannot be answered in the affirmative in the present case. Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). The Federal Circuit Court addressed itself to a consideration of those matters and, by any standard, the reasons of the Federal Circuit Court are unobjectionable. 24 The question of whether the grounds of review had merit, disclosed a reasonable issue to be tried or had reasonable prospects of success was a matter within the jurisdiction of the Federal Circuit Court and is not a matter for this Court unless the Federal Circuit Court went about its examination of those issues in a manner which involved jurisdictional error: ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [24] (Gleeson J); FEZ17 at [27] - [32]. 25 It was not established in the present case that the Federal Circuit Court dealt with the question of merit or prospects of success, or whether there was a serious question to be tried, in a manner which suggested that it misunderstood the nature of its function or exceeded its jurisdiction - see: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [68] (Mortimer J); WZAUA v Minister for Immigration and Border Protection [2018] FCA 1599 at [52] (Kenny J). 26 The primary judge considered, at J[21] to J[29], whether the applicant's proposed grounds of review raised a serious question to be tried, and concluded that the proposed grounds of review did not have sufficient prospects to warrant the grant of an extension of time. 27 In respect of the first ground of review, the primary judge reasoned as follows: (1) The "relevant consideration" for the purposes of the applicant's first ground of review was his statutory declaration. The "irrelevant consideration" was his arrival interview. The applicant also referred to facts to which the Authority did not refer, and findings of fact with which he did not agree: J[21] to J[23]. (2) The applicant's argument that the Authority made findings that were contrary to what he asserted in his statutory declaration would not establish jurisdictional error. It was open to the Authority having considered the claims advanced by the applicant to reject those claims. It was open to the Authority to observe, and find, that the applicant had not claimed that any threat was made by the Mehdi Army to him or his brothers during the claimed encounter. It was open to the Authority to reject the claim advanced for the first time to the delegate that the applicant feared harm from tribes due to M's killing of five militia men: J[24]. (3) In the circumstances of the case, the fact that the Authority took into account what the applicant said, or did not say, at his entry interview would not amount to jurisdictional error: J[25]. (4) The Authority did not misunderstand or fail to appreciate the claim as it was advanced. Although the Authority did not refer expressly to some of the detail of the 2014 encounter with the Mehdi Army or the fact that the Army insulted the applicant's family, or the fact that the Iraqi Army became involved and were shooting at the Mehdi Army, the Authority addressed the substance of the applicant's claims at A[10]-[11], and [15]: J[26]-[28]. 28 As to the second and third grounds, the primary judge sought to have the applicant provide further detail or particulars of his grounds, but was unsuccessful - see: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and [10]. The primary judge could not identify jurisdictional error on the part of the Authority on the basis of ground 2 and ground 3. In this respect, the primary judge exercised the jurisdiction entrusted to him, afforded procedural fairness and performed his function consistently with what was expected of a court of record.