CKW15 v Federal Circuit Court of Australia

The legislative context 4 Relevantly, s 477 provided: 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) 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. (emphasis added)

The applicant's evidence 5 The only evidence in the Court file of any explanation by the applicant for delay consisted of affidavits that his solicitor had sworn on 17 November 2015 and 17 July 2018. The 2015 affidavit did not play any part in the hearing before his Honour or me. The 2018 affidavit, however, was before his Honour. It consisted of three paragraphs in which the solicitor said only that he was the applicant's solicitor and that he annexed two documents, the first, a medical report dated 31 August 2017 by a neurosurgery registrar and the second, a report by the applicant's general practitioner, Dr Hanna El-Khoury dated 13 July 2018. 6 The registrar's report referred to the applicant having had operations in 2014 and 2016, in each of which a benign pilocytic astrocytoma had been resected from his hypothalamus. The registrar said that the applicant had given a history that, prior to 2014 he had had about five years' experience of headaches, sleep disturbance, personality change, irritability and difficulty concentrating. The registrar opined that those symptoms were certainly attributable to the tumour's growth pattern and its presentation in 2014. 7 The general practitioner reported that the applicant had attended her on three occasions in 2011. She said that the first diagnosis of the tumour occurred in April 2014 and that there was "no doubt" that it had been the cause of many years of headaches of different intensity that were variable and difficulties of concentration and that: I can't rule out the effect of decline concentration along headache and sleep disturbance on his reasoning and memory. This effect can trace back many years from initial presentation to us in 2011. I believe that [the applicant] had been for years pre 2011 suffering from headache, decline concentration caused by his brain tumour which with no doubt have negative effect on his reasoning, planning and could be memory decline. (emphasis added) (errors in original) 8 The applicant argued before the trial judge that these medical reports constituted fresh evidence that was not available at the time that the Tribunal made its decision relating to a then undiagnosed brain tumour that had affected him both at the time he gave evidence and beforehand in the course of applying for his protection visa.

Background 9 The applicant arrived in Australia from Lebanon in March 2010 holding a student visa that expired on 5 August 2012. Four days later, on 9 August 2012, he applied for a protection visa. He made several claims about his sexuality. He claimed that he was still a virgin and that he could not return to Lebanon because his family and religious persons who disapproved of his sexuality would cause him to be harmed. 10 The Minister's delegate refused to grant the visa on 15 November 2012. The delegate found that the applicant had not attended for an interview to discuss his claims and had not responded to an opportunity to provide further information in support of them. The delegate found that there was a lack of detail in the application that caused the delegate to doubt the applicant's credibility. The delegate noted that the applicant had only sought protection after his student visa had expired having arrived in Australia well over two years beforehand, which also raised for the delegate serious concerns as to the genuineness of the applicant's claims.

The Tribunal's decision 11 On 14 December 2012, the applicant sought a review of the delegate's decision in the Tribunal. On 28 August 2013 his representative lodged a further statutory declaration by the applicant that the Tribunal summarised in five pages of its decision record. It said that the applicant had appeared before it to give evidence and present arguments with the assistance of an interpreter on 18 September 2013 and that on 11 October 2013 the applicant's representative had lodged with it a report from a psychologist. It also noted that the applicant had been represented throughout by his registered migration agent. 12 It suffices to say that, having had regard to the applicant's evidence in its entirety, the Tribunal did not accept the inconsistencies in it, which the Tribunal had discussed with him at the hearing. It did not accept that those matters could be attributed to any embarrassment or anxiety that the applicant may have had in discussing his sexuality or the impact upon him of the traumatic events in the past that he alleged. These claims included that he had been sexually abused by one of his uncles and that, as he raised for the first time during the hearing in the Tribunal, another uncle had beaten him. 13 The Tribunal had grave concerns about the applicant's credibility and evidence and did not accept any of his claims. It said that he had not suggested in his statutory declaration that he had been physically abused by two different uncles and did not accept the applicant's explanation for the omission to raise this claim earlier that it was a horrible thing that he was trying to forget. The Tribunal did not accept his claims that he had suffered any physical or sexual abuse from any of his uncles or any other family member. 14 The Tribunal gave little weight to the psychologist's report. It noted that the psychologist's report was dated 3 October 2013, being the same day that the applicant had presented for the first and only time before the psychologist for appraisal and that the report recounted the applicant's then background and protection claims as set out in his statutory declaration made on 22 August 2013 that the Tribunal had summarised at length. The Tribunal noted that the psychologist had applied the Wechsler Adult Intelligence Scale IV Test, the Williams Test of Delayed Recall and the Minnesota Multiphasic Personality Inventory and that he had estimated that the applicant's intellectual testing was in the middle of the below average range, his powers for delayed recall were reasonably sound and that his personality was indicative of depression, anxiety and significant social introversion or withdrawal. The psychologist concluded that the applicant had not experienced any major physical health problems, although, as a result of the alleged sexual abuse perpetrated upon him in his early adolescence, he had developed post-traumatic stress disorder that had exacerbated his pre-existing apprehensiveness and fear that his sexual orientation would be discovered. 15 The Tribunal accepted that the psychologist had based his conclusions on the applicant's statements during a single consultation and or his statutory declaration prepared for the purposes of the Tribunal's hearing. The Tribunal noted that it had not been suggested that the psychologist had otherwise been made aware of previous written statements that the applicant had lodged with his protection visa application. Accordingly, it found that the psychologist had given his report in good faith, but on the basis of limited information. It accepted the psychologist's intellectual testing conclusions as to the applicant's powers for delayed recall being reasonably sound and his personality being indicative of depression, anxiety and significant social introversion. However, its own concerns about the applicant's credibility caused it to give little weight to the psychologist's report to the extent that it tended to corroborate the applicant's claims of the events underlying his refugee claims. 16 Ultimately, the Tribunal did not accept that the applicant had any well-founded fear of persecution for any Convention reason were he to return to his home in Lebanon then or in the reasonably foreseeable future. It also found that he was not a person in respect of whom there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australian to Lebanon, there was a real risk that he would suffer significant harm from any of the persons or groups whom he claimed might harm him. Accordingly, the Tribunal also rejected, for the same substantive reasons, the applicant's claim for complementary protection.

The proceeding before the Federal Circuit Court 17 The applicant argued to the trial judge that two medical reports were relevant to show that there was a sufficiently arguable case to warrant an extension of time being granted on the basis of the decision in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 566 [457]-[459], where Weinberg J said (and see also SZIHM v Minister for Immigration and Multicultural Affairs [2006] FCA 1614 at [15]-[16] per Middleton J): It should be noted that neither Lockhart J nor Sackville J considered whether it would be open to a party seeking to affirm a decision impugned on the basis of Wednesbury unreasonableness to rely upon expert evidence, tendered to show that the decision was in fact entirely reasonable. In principle, albeit with some reluctance (having regard to the additional time and costs taken up with such evidence), I can see no reason why, in an appropriate case, such evidence should not be admitted. Wednesbury unreasonableness is, in some respects, simply a variant of the ground that a decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts that did not exist, or that the decision-maker based the decision on a finding of a particular fact that did not exist. If additional evidence is available, in cases reliant upon such grounds, there is no reason in principle why such evidence should not also be admissible where the ground is couched in terms of unreasonableness. That is not to say that the tender of such evidence should be encouraged. Nor is there any basis for a conclusion that it can be admitted as of right. As Sackville J correctly observed, everything depends upon the grounds of review, and the circumstances of the case. (emphasis added) 18 The trial judge summarised the two reports in a way that has not been criticised on this application. He recounted the applicant's argument that in light of those reports, it should be seen that the Tribunal had taken into account, in its adverse credibility findings, inconsistent evidence that the applicant had given and that, had the two reports been before the Tribunal, it would have taken them into account in forming that credibility assessment. He recorded the applicant's counsel's submission that no reasonable Tribunal, if hearing the matter now and presented with the two reports, could have failed to take those reports into account expressly in determining the applicant's credibility, and that as a result, although the Tribunal could not have known of the subsequently discovered tumour at the time it gave its decision, the Court ought exercise its powers to quash the Tribunal's decision and remit the matter for a re-hearing. 19 His Honour noted that, during the course of argument it was common ground that during the two-year period before the applicant applied for judicial review, he had sought Ministerial intervention presumably under s 417 of the Act. 20 The trial judge found, based on the test in Australian Retailers 148 FCR at 566 [458], that the medical reports did not establish either an actual state of facts that had not existed or that the Tribunal had based its decision on a finding of a particular fact that did not exist when it concluded adversely on the applicant's credibility. His Honour noted that the Tribunal had not based its decision solely on its adverse credibility findings but had also taken into account, as a material factor, the delay of the applicant in seeking protection and that he had only done so shortly after having become an unlawful non-citizen on the expiry of his student visa. His Honour found that the two medical reports did not establish a fact that would have made the Tribunal's adverse credibility findings: …something that could be said to be so unreasonable that no reasonable decision-maker, taking the reports into account, could have rejected the applicant's credibility on the basis of the inconsistencies and other matters referred to by the Tribunal. 21 He found that the two new medical reports rose no higher than material that would be relevant to a fresh assessment, but they did not establish themselves an actual state of affairs or fact upon which it could be said that the decision of the Tribunal had been based on a mistaken premise. Accordingly, he was not satisfied that the sole ground pressed below raised sufficient prospects of success to show cause why the proceedings should not be dismissed under r 44.12. His Honour considered that this, together with the inordinate delay in commencing the proceedings, more than two years after the decision of the Tribunal, caused him not to be satisfied that an extension of time was necessary in the interests of the administration of justice under s 477 and, therefore, dismissed the extension of time application.

The applicant's submissions in this Court 22 Before me, the applicant argued that his Honour's decision to refuse to extend time was affected by jurisdictional error. He contended that the decision was legally unreasonable because there was no evident or intelligible justification for refusing the extension of time, having regard to the test for administrative decision-makers in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76] and the more recent decision in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] per Kiefel CJ and [82] per Nettle and Gordon JJ. 23 He argued that his Honour had been wrong to consider that the new ground lacked sufficient merit to outweigh the applicant's unexplained and inordinate delay in commencing the proceeding, and that his Honour's reasoning was so wrong that it was unreasonable. He also argued that the strength of his case, based on the medical evidence was such that it could overcome the lengthy and unexplained delay. He contended that because the medical evidence was fresh, it ought to have been weighed against the other evidence of the applicant's capacity in order for the Tribunal to evaluate his credibility within the bounds of legal reasonableness. He submitted that, in some way, his Honour had been unreasonable in failing to appreciate this. 24 The applicant argued that the existence of the two new reports supported his being granted an extension of time because, had the Tribunal been aware of the tumour in 2013, it may not have formed its adverse view of his credibility, presumably, because of the general practitioner's opinion that she could not rule out the possible effect (of the tumour) on the applicant's "decline concentration" or "could be memory decline". The applicant submitted that the inconsistencies in his evidence on which the Tribunal concluded he was not credible could have been attributed to the effects of the tumour. The applicant contended that his Honour erred in the exercise of his discretion under s 477 to refuse to grant an extension of time over the two years to seek Constitutional writ relief in respect of the Tribunal's decision.

Consideration 25 In the circumstances before the trial judge in order to satisfy him that it was necessary in the interests of justice to grant the extension of time under s 477, the applicant first, had to explain his delay and, secondly, how the medical evidence, such as it was, that he presented over four years after the Tribunal's decision, warranted a conclusion that if admitted at the hearing of the judicial review application following the grant of an extension, it could or would have led to a grant of final relief quashing the Tribunal's decision. 26 A fundamental problem with the applicant's argument is that the Tribunal disbelieved the applicant about his claims as to his sexuality, its alleged manifestation and his having been beaten by one and then two of his uncles and sexually assaulted by one of them with recent psychological evidence that, after testing, his powers for delayed recall were reasonably sound. The two recent medical reports were written at a high level of generality. Neither addressed or evaluated the nature or extent of the inconsistent accounts of his history that the applicant had given prior to and during the hearing in the Tribunal. 27 The proposed ground of review for which the applicant sought an extension of time was that the Tribunal had made a decision based on a fact which did not exist due to evidence not available at the time of the Tribunal's decision, so as to make that decision legally unreasonable. Implicit in that ground that no reasonable person in the position of the Tribunal could, or would, have reached its findings on the lack of the applicant's credibility had it been apprised of the two new medical reports, or, at least, would have had to have had regard to those so that it was open to it to have come to a different conclusion. 28 The ground (and the evidence in support of it) did not engage with the fact that the psychologist had opined in 2013 that his testing that revealed that the applicant's powers for the delayed recall were reasonably sound. The doctors were not asked to comment on that topic. But even if that deficiency could be put to one side, neither new report suggested that the tumour, in fact, had affected the applicant's memory. Indeed, the registrar's report was silent on the topic of the applicant's memory and other cognitive abilities except for difficulty concentrating. The general practitioner's report, at best, could not rule out a possibility of a "memory decline" or an effect, that she did not elaborate or identify, that she described as "negative effect on his reasoning, planning and could be memory decline". 29 Neither report expressed any reasoning process or explained the nature or degree of any impact that the tumour had on the applicant's memory. Neither report referred to any diagnosis based on an examination of the applicant as to any change in, or effect on, his memory occasioned by the tumour at any time. Nor did the general practitioner set out the facts on which she speculated that the tumour could have operated to affect the applicant. That is, she did not identify what was the particular reasoning or memory about which she was commenting or at what time the applicant exhibited any particular symptoms so that a reader would be able to understand and evaluate whether and to what degree those symptoms might explain or bear on the claims that the applicant had made at various stages of his participation in the process of seeking a protection visa between August 2012 and October 2013. 30 For example, the applicant first applied for a protection visa on 9 August 2012 at a time when, according to the general practitioner, his memory may have been in decline. But there is no information in either medical report to enable a person in the position of the Tribunal or a court to evaluate, first, how accurate or reliable the applicant's account of his claims was on 9 August 2012 or, secondly, how that may or may not have changed in the period up to and including the hearing in the Tribunal on 18 September 2013 or when the psychologist tested his powers of recall on 3 October 2013. If the applicant's memory was unreliable when he first made his claims that, of course, would not explain that anything he later said could be more or less, or as, reliable as an earlier version. The new evidence did not identify anything that the Tribunal ought to have made of the applicant's changing claims during the 14 months from his visa application to suggest how it could have been legally unreasonable for the Tribunal (had it had before it the two new reports) not to be satisfied by any of the applicant's claims as to facts he said had happened to him. Those claims were not matters depending solely on memory. 31 Far from demonstrating that, had it known of the new reports when it made its decision, the Tribunal would or could have acted differently, the reports left the position, at best, unclear, and at worst, unfavourable to the applicant's case, because they could suggest that the applicant could not give a reliable account of his claims. 32 Under s 36(2)(a) and (aa) of the Act, the applicant had the obligation of satisfying the Tribunal that his account, whatever it was, was such that it should find that there was a real chance that he would suffer persecution for a Convention reason or significant harm were he to be returned to Lebanon. If his memory was affected by the tumour at the relevant times, in 2012 and 2013, the two reports do not explain how that effect operated and, more importantly, in what way the Tribunal could, let alone should, have reached a different conclusion favourable to the applicant. 33 Nor did the applicant explain to his Honour the reason why he took 18 months from the time of the April 2014 diagnosis to 18 November 2015 to apply to the Federal Circuit Court for the extension of time or why he had delayed in doing so more than 35 days from the time of the Tribunal's decision. The new medical evidence was silent on that topic. The applicant, personally, gave no evidence at all to his Honour to explain his circumstances, nor did he raise his alleged memory problems or the effect of the tumour at the times that he first applied to the Court below in November 2015 or in his amended application on 20 May 2016. He only did so in an affidavit by his solicitor, sworn after his Honour made an order on 5 July 2018 that he show cause under r 44.12. That affidavit was bereft of any explanation for the delay, even in its preparation, particularly having regard to the date of the registrar's report that was written over 10 months before. 34 In that context the trial judge was left with no evidence at all to explain the applicant's delay in bringing his application in November 2015, two years after the Tribunal's decision, other than that he had sought Ministerial intervention, which I assume was under s 417. The basis for that intervention was not before his Honour or me. It can be inferred, safely enough, that in essence the applicant sought to persuade the Minister to accept what the Tribunal had rejected. 35 It is well established that an applicant can choose to seek another remedy, such as under s 417, as opposed to relief in exercise of a right, under s 476, to apply to the Federal Circuit Court for a remedy, but that ordinarily the exercise of that choice does not provide a sufficient reason for the favourable exercise of the discretion under s 477(2) to grant an extension of time. 36 In M211 of 2003 v Refugee Review Tribunal (No 1) (2004) 212 ALR 520 at 525-527 [16]-[24], Black CJ, Sackville and Sundberg JJ considered the authorities dealing with the discretion to grant an extension of time in which to bring proceedings to challenge an administrative decision in the context of an applicant's having decided in the meantime to seek Ministerial intervention under s 417 of the Act. Their Honours did not address s 477 because it not apply to the circumstances. The Full Court noted what McHugh J had said in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496 [15]-[17] in refusing an extension of time to seek a writ of certiorari under the then High Court Rules. Their Honours also considered a number of decisions where judges of this Court had applied Ex parte Marks 177 ALR 491 (212 ALR 525-527 [16]-[24]). 37 They referred to some of those decisions that had treated an applicant as having abandoned the right to seek judicial review by his or her first pursuing, until its ultimate refusal, an application under s 417 for Ministerial intervention. However, the Full Court did not decide that point since it considered that the prospects of the application before it succeeding on judicial review were very poor: M211 of 2003 212 ALR 527-528 [27], 529 [36]. In Ex parte Marks 177 ALR 495-496 [16]-[17], McHugh J said: Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court. An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned. (emphasis added) 38 The position is a fortiori here: see also Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J and 539-543 [66] per Kirby J. In DKX17 v Federal Circuit Court of Australia [2018] FCA 515 at [34], I said: In substance, an application under s 477 is one in which the applicant for an extension must satisfy the Federal Circuit Court that it should extend the 35 day period prescribed in s 477(1) because it is necessary in the interests of the administration of justice to make the order. That involves the applicant identifying for the Federal Circuit Court a proper basis for the exercise of its discretion, as s 477(2)(a) requires. 39 In essence, the applicant here seeks to challenge in this Court, the formation of a discretionary judgment as to whether his Honour was satisfied that it was necessary in the interests of the administration of justice to order an extension of time. 40 Ordinarily, courts review the exercise of judicial discretions by judicial officers in accordance with the standard that Dixon, Evatt and McTiernan JJ identified in House v The King (1936) 55 CLR 499 at 505. Where proceedings are taken in a superior court to challenge an inferior court's orders on the ground of jurisdictional error, it is necessary to distinguish between errors that are, in fact, jurisdictional and those that are non-jurisdictional, as French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ held in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 571-574 [66]-[73] in applying Craig v South Australia (1995) 184 CLR 163 at 177-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. 41 Importantly, in Kirk 239 CLR at 572 [67], French CJ, Gaudron, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: demonstrable error on the part of an inferior court "entrusted with authority to identify, formulate and determine" relevant issues, relevant questions, and what is and what is not relevant evidence was held [184 CLR 163 at 179-180] , in Craig, not ordinarily to constitute jurisdictional error. The Court held [184 CLR 163 at 180] that: "a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error." (emphasis added) 42 In other words, ordinarily, a court has power to err within jurisdiction in its fact-finding. Here his Honour was required to make an evaluative judgment as to whether he was satisfied that it was necessary in the interests of the administration of justice to order an extension of time, based on the applicant specifying why that should be so. 43 The applicant gave his Honour no explanation for his inordinate and unexplained delay of over two years. The case which he wished to bring was flimsy in the extreme. There was a lack of detail in the new medical evidence as to how any impact on his memory from the effect of his tumour condition was manifest. That material made no attempt to reconcile any impact the psychologist's conclusion based on testing of the applicant that his powers for delay and recall were reasonably sound. Moreover, as I have found, nor did either doctor explain to what extent any observations he or she had made as to the applicant's medical state, or likely state, at the time that the psychologist gave that opinion or earlier in his visa application process could have borne on a different conclusion that the Tribunal might have made, had it taken into account the medical reports. 44 The applicant also argued that, in Australian Retailers 148 FCR at 566 [458], Weinberg J had suggested that the test of Wednesbury unreasonableness was in some respects a variant of the ground of judicial review that a decision-maker lacked jurisdiction to make a decision because jurisdiction was dependent on an actual state of facts that did not exist, or the decision-maker based the decision on a finding of a particular fact that did not exist, had opened the basis for judicial review of Tribunal decisions in circumstances such as those before his Honour. He also argued that the standard of unreasonableness now to be applied in granting Constitutional writ relief against judicial officers was determined by what Hayne, Kiefel and Bell JJ said in Li 249 CLR at 367 [76]. He argued that his Honour's reasons demonstrated unreasonableness because they lacked an evident and intelligible justification. 45 That argument is specious. His Honour's reasons identified a reasonable justification for the formation of his discretionary judgment. In my opinion, his Honour explained why he rejected the argument based on the test in Australian Retailers 148 FCR at 566 [458] in a way that is not only intelligible and evident, but, in my opinion, on the facts, clearly correct.

Conclusion 46 For these reasons I am of opinion that the application must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.