CCD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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

BROMWICH J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a 5 February 2020 decision of a judge of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia, the third respondent) to refuse an application for an extension of time within which to apply for judicial review of a decision of the second respondent, Immigration Assessment Authority. The application was filed in this Court on 27 September 2021. The delay in hearing the application was occasioned by attempts to obtain pro bono representation for the applicant. 2 The Authority had, on 16 August 2018, affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant a protection visa to the applicant. The primary judge summarised the Authority's decision at [12]-[32]. In substance, the decision to affirm the refusal of a protection visa was based upon a lack of any basis for the political profile claimed by the applicant, supported by country information, leading to a conclusion that the Authority was positively satisfied that there was no real chance that the applicant would face serious harm for reasons of his actual or imputed political opinion or for the religious, ethnic or particular social group reasons advanced, both individually and cumulatively. In short, the applicant was found by the Authority not to meet the definition of a refugee under s 36(2)(a)of the Migration Act 1958 (Cth), and not to meet the complementary protection criteria in s 36(2)(aa). 3 The applicant's combined judicial review application and application for an extension of time to bring that application under s 477(2) of the Migration Act was filed in the Federal Circuit Court on 24 May 2019. That was about 8 months after the 35 day time limit from the date of the Authority's decision provided by s 477(1). 4 Section 477(2) provided as follows (since amended in an immaterial way to refer to Division 2 of the Federal Circuit and Family Court of Australia in place of the former Federal Circuit Court of Australia): 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 the order. 5 The principle reason why the application for an extension of time was refused by the primary judge was the extreme and inadequately explained delay in filing the application for judicial review, with his Honour finding that it was not necessary in the interest of the administration of justice to extend the time for the filing of the originating application: see [38]. 6 The judicial review grounds relied upon by the applicant were interpreted broadly by the primary judge to comprise both the expressly pleaded ground in the originating application and additional grounds in the applicant's subsequent affidavit affirmed on 14 August 2019. As to the latter grounds in the affidavit, his Honour overtly and repeatedly referred to this being considered at an impressionist level and found that the case sought to be brought was, on its face, unsustainable, without considering the merits in any greater detail: see [39]-[45]. His Honour also characterised the proposed ground in the originating application to reflect an invitation to engage in merits review, and also revisited aspects of the issues raised in the applicant's affidavit: see [46]-[53]. In short, no arguable case for judicial review of the Authority's decision was able to be discerned by his Honour. 7 The applicant's grounds of judicial review in this Court are as follows (verbatim): 1. His Honour Judge Street in the FCC failed to provide reasons for his finding that the applicant's reason for delay was not acceptable. Particulars i. His Honour failed in the FCC failed to consider the applicant request for an extension of time under s 477 of the Migration Act 1958 (Cth) and provide a cogent reason for not accepting the reasons for delay and failed to order a copy of the reasons to be provided to the applicant allowing him to understand the reasons and appeal the decision. Where an applicant is unrepresented and cannot properly speak or understand English the duty of the provide a copy of its reasons and adequately explain it reasons for rejecting the applicant's reasons for filing his application out of time. 2. The second respondent the Immigration Assessment Authority erred by failing to provide procedural fairness to the applicant failing to invite, get new information and or ask the applicant to provide information with respect to his claim as a failed asylum seeker as the source of serious or significant harm under s 473DC (1) to (3) of the Migration Act 1958 (Cth). 8 I will first address ground 2 and then ground 1. 9 Detailed particulars were also provided for ground 2 in the applicant's originating application. However, it is not necessary to reproduce them as the judicial review application before this Court does not permit consideration of grounds directed to the underlying decision of the Authority. Rather, an application for judicial review of a decision to refuse an extension of time under s 477(2) is required to establish jurisdictional error on the part of the primary judge in relation to that decision: see DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 per Collier, Rangiah and Derrington JJ at [28]. It follows that ground 2 cannot succeed because it cannot be brought in the first place. 10 As to ground 1, it is convenient first to refer to authority to frame that ground. In DHX17 the Full Court considered a wide range of authority on the topic of judicial review of a decision to refuse an application for an extension of time under s 477(2) in some detail, and provided the following useful summary of conclusions able to be drawn to provide guidance when considering whether jurisdictional error has occurred in the exercise of the power under s 477(2): [65] First, it seems to be fairly well established that the discretion is not confined by any obligation on the FCC to take into account or to ignore any particular matter. The nature, scope and purpose of the section does not identify any mandatory relevant consideration nor any consideration which must be excluded. That is subject to the requirement that the court must ascertain whether it is in the interests of justice to extend time for the making of a review application. Rather than regarding that as a relevant consideration of any kind it is more properly seen as the object of the exercise of power. [66] Second, it follows that a failure to take into account certain factors which are often relevant to the exercise of power, such as any explanation for delay or any prejudice or absence of prejudice to the Minister, will not, per se, result in a jurisdictional error of failing to take into consideration a relevant circumstance. The same might be said of a failure to take into account the merits of the appellants' proposed grounds of review. [67] Third, however, depending upon the circumstances, evidence that the FCC omitted to take into account the merits of the appellant's proposed grounds of review could evidence that it has acted upon a misconception of its function or a misunderstanding of its power and thereby committed a jurisdictional error. Whilst there may be cases where any relevant delay has been contumelious or contumacious and the prejudice to the Minister so great that an omission to consider the merits of the proposed grounds of review may not suggest a misunderstanding of function or power such cases would necessarily be rare. However, there is no need to reach any conclusion on that issue. [68] Fourth, the fact that, on an application under s 477(2), the FCC has engaged in more than an impressionistic evaluation of the appellant's proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction. That seems to follow from the observations in a number of the cases considered above. Although Ms Graycar's submission that there is no binding authority to that effect should be accepted, there is no doubt that the overwhelming weight of opinion supports the proposition. As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. Where the proposed grounds are examined for the purposes of ascertaining whether they would succeed were an extension granted, it is apparent that the power and the function to be performed are misunderstood. [69] This fourth conclusion is coherent with the historical and prevailing attitude of the common law not to deny access to the courts to litigants who have some arguable claim. In this respect, an important consideration is that s 477(2) enables the FCC to extend the time in which a person may seek review in circumstances where no other avenue of redress exists. For the intending applicant it is clear that the consequences of a refusal to extend time are legally and practically significant. In relation to the former, their access to the courts for the purposes of ventilating their claimed rights will be terminated. In respect of the latter, it is regularly said that the gravity of the consequences to a bona fide asylum seeker of being denied access to the Courts may, of itself, be a real reason for granting an extension: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627. 11 After considering some of the principles emerging from cases dealing with summary dismissal of an action and the possible application of parallel reasoning to an application for an extension of time, Collier, Rangiah and Derrington JJ further observed: [75] It is true that a power to extend time, such as that in s 477(2), is not the same as summary dismissal and the occasion for its exercise follows consequentially upon the failure of the applicant to comply with the statutory limits. Moreover, an application for an extension of time to commence proceedings implies that the opposing party has something in the nature of a vested right in relation to the issues which have already been concluded by statutory processes: cf Jackamarra v Krakouer (1998) 195 CLR 516. Nevertheless, a refusal to exercise the power to extend time has the same practical consequences as summary dismissal with the result that the same tenderness concerning the exclusion of persons from the courts is inherent in the power's exercise. [76] It is, therefore, consistent with the courts' exercise of cognate powers, that in the exercise of the discretion in s 477(2) an applicant would not normally be required to demonstrate more than their proposed grounds of review had some prospects success following "a threshold assessment of merit". Whether that standard of veracity is described as being "arguable", "reasonably arguable", "sufficiently arguable" or having "reasonable prospects of success" or some other description, the hurdle is low. If, then, a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power. [77] The above focus on the veracity of any proposed grounds of review does not result in any conclusion that the mere existence of some merit will warrant the granting of an extension of time. As the authorities have established, the discretion is to be exercised after the weighing of all the relevant circumstances of the particular case, with the apparent strength of any proposed grounds being but one consideration. 12 The applicant did not provide any written submissions. At an earlier time, he had the benefit of pro bono assistance, but the lawyers concerned withdrew prior to the hearing. The applicant was invited to make oral submissions both in chief and in response to the Minister's submissions. The submissions were both furnished to him in writing and addressed orally. Apart from referring to the hearing of the application for an extension of time being relatively brief, on both occasions the applicant referred only, and at some length, to the merits of his case and of his fears and concerns about being returned to his home country. No jurisdictional error was referred to. 13 The Minister submits that: (a) The primary judge's approach to the assessment of whether it was necessary in the interests of the administration of justice to extend time was consistent with authority, and in particular, his Honour assessed the merits of the applicant's substantive case by reference to the correct standard, including by repeated references to the necessity to assess the merits at an "impressionistic level". (b) The applicant relies on an asserted failure by the primary judge to provide reasons for finding that his reasons for delay were not acceptable, but this was squarely dealt with by his Honour at [38]. That is, clear reasons were in fact given. (c) The applicant complains that the primary judge failed to order that a copy of his Honour's reasons be provided to him, allowing him to understand those reasons and appeal the decision. However, that takes the applicant nowhere in light of the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 388 ALR 257. It should further be noted in any event that the reasons were furnished to the applicant and included in the Court Book filed on 21 February 2022; and that the delay in bringing this application was said by the Minister only to arise on the question of discretion to withhold relief if jurisdictional error was established. 14 I agree with the Minister's submissions. I can discern no error at all on the part of the primary judge in dismissing the application for an extension of time, and therefore necessarily no jurisdictional error. It follows that ground 1 must also fail.