Consideration
27 In M211 of 2003 (2004) 212 ALR 520 at 525-527 [16]-[24], Black CJ, Sackville and Sundberg JJ considered the authorities dealing with an extension of time in which to bring proceedings challenging an administrative decision in the context of an applicant's decision, in the meantime, to seek Ministerial intervention under s 417 of the Act. (Their Honours did not address s 477, because it did not then apply to the circumstances.) The Full Court noted what McHugh J had said in Ex parte Marks 177 ALR 495-496 at [15]-[17] in refusing an extension of time under the then High Court Rules to seek a writ of certiorari, as well as to a number of decisions where judges of this Court had applied that decision (212 ALR at 525-527 [16]-[24]). They referred to some of those decisions that had treated the 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 (212 ALR at 527-528 [27], 529 [36]).
28 The position before the trial judge here was different in the sense that it was not the applicants who had initiated the procedure under s 417, but the Tribunal. The applicants acquiesced, it may be said, understandably, in the Tribunal's reference to the Minister's Department in support of a more favourable outcome. The Department's letter of 25 November 2013 was not expressed in the clearest of terms, apposite to the particular situation in which the applicants found themselves, but rather, seems to have been a standard letter addressed to the situation of a person who seeks himself or herself to have the Minister intervene, as opposed to that occurring on a reference from the Tribunal. When the Department is dealing with persons whose first language is not English and, whose situation is particular, it is important that letters of this kind are written in plain terms to bring to the person's notice the danger of the particular course of action which the applicants, in this case, appear to have allowed to transpire.
29 It may be that the considerations in some of the decisions to which the Full Court referred in M211 of 2003 212 ALR 520, were potentially equally apposite to the applicants' case. However, the applicants found themselves in the position that, after deciding their claim adversely to them, the Tribunal of its own initiative referred their cases to the Minister under s 417, seeking that he consider giving them a more favourable outcome.
30 In my opinion, her Honour appears to have proceeded on the misapprehension that it was the applicants' decision to seek the Minister's intervention under s 417, in lieu of their deciding to pursue judicial review. However, they were in a position where the Tribunal had sought that intervention in their favour as being what it saw as the, or an, appropriate way of progressing the consideration of their migration status. In those circumstances, the substantive delay before the applicants commenced their proceedings below occurred because they had been induced to believe that, first, the Tribunal regarded their position as justifying it making a reference under s 417, and secondly, after the Tribunal did so, the Department duly considered that referral for virtually the entire period of delay. They were subjected to the very checks during that period that were calculated to convey to them the impression that the Tribunal's reference was receiving consideration in due course.
31 The applicants did not choose to make the s 417 reference. Rather, that reference occurred because a responsible part of the Executive Government, being the Tribunal that had rejected their claim, told them as lay people, that the reference that it made was, in their circumstances, the appropriate way to deal with their application for a visa. Of course, they accepted and acquiesced in what the Tribunal had initiated. But, that conduct had a different quality from a decision by a disappointed applicant in the Tribunal to seek a remedy under s 417 instead of choosing immediately to seek judicial review.
32 In my opinion, the applicants did explain why they came to make their application under s 477(2)(a) after the 35 day period following the Tribunal's decisions. However, the question for decision under s 477(2)(a) is whether the applicants specified to her Honour why they considered that it was in the interests of the administration of justice that it was necessary for her Honour to grant them the extension that they sought. That question included consideration of the merits of the application for judicial review. That then raises the applicants' contention that her Honour applied an incorrect test on the extension application and failed to appreciate that the Tribunal may have made a jurisdictional error.
33 In MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at 482-483 [21], 486 [38], Tracey, Perry and Charlesworth JJ found no error in, and expressly endorsed, the approach of the primary judge in that case as to how the Federal Circuit Court should have approached the grant of an extension of time under s 477(2) as follows:
21 Her Honour nonetheless continued to express her "disquiet" about the manner in which the FCC had dealt with the factor of the merits of the appellant's proposed grounds of review in considering the application to extend time "lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court" (at [61]). In this regard, her Honour held first that:
62. … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516; 153 ALR 276; [1998] HCA 27 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
63. The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" (see SZTES [2015] FCA 719 at [48]; SZRIQ v Federal Magistrates of Australia (2013) 236 FCR 442; 139 ALD 252; [2013] FCA 1284 … at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. (emphasis added)
34 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.
35 Here, the applications to the Federal Circuit Court identified the applicants' grounds for the extension of time as being that the Tribunal had made the reference under s 417 on 22 November 2013 and that they had complied with all the Minister's requests, such as for health and character checks, and had done nothing more until the Minister's decision dated 13 July 2017 to refuse the application had been communicated to them. Their ground for judicial review was that:
The Tribunal failed to take into consideration the significant physical ill treatment and denial of capacity to earn a livelihood of any kind as well as failed to recognise us as refugees based on the information before it and contrary to the Migration Act.
36 The applicants' case below was that the Tribunal's decision on its face revealed an error as specified in the ground of review. They contended that her Honour ought to have been able to perceive some such error, despite the absence of any analysis or assistance of a meaningful kind from them. It was open to the trial judge to conclude that the applicants' case had little to no prospects of success. The ground of review below wrongly asserted that the Tribunal had failed to take into consideration the applicants' past ill-treatment and their capacity to earn a livelihood. The Tribunal had taken those matters into consideration. The balance of the ground was a misconceived invitation to the Court below to undertake merits review.
37 Understandably, lay persons, such as the applicants are not able to analyse the intricacies of judicial decisions under the Act or the meaning of jurisdictional error. The argument before me on this application, as to the interests of justice, was that the applicants had a real case that the Tribunal erred in failing to consider whether it was reasonable for the applicants to relocate to somewhere in Fiji instead of returning to their village.
38 I will consider that argument on the assumption that it is open on an application for a writ of certiorari to quash her Honour's decisions. Relevantly, the Tribunal did not need to consider the question of relocation and did not approach its decision-making on that basis. It found that the wife had not expressed any intention of returning to her village. The Tribunal also found that the reasons why the applicants had been subjected in the past to the treatment amounting to persecutory conduct in their village, no longer existed there. It then found that:
Taking these factors together, I consider the chance remote that the applicants [being the husband and wife] will be subjected to serious harm amounting to persecution by the villagers who previously targeted them, or people associated with them, if they return to Fiji.
39 In that context, once it found that the applicants did not wish to return to the village, the Tribunal was not required to go on to consider that they might not want, or be able, to go somewhere else. The fact that they did not wish to return to their village was irrelevant, once the Tribunal had found that, first, they could return there and, secondly, there was no more than a remote chance that they would be subjected to the significant or serious harm that they feared. The Tribunal found that, by reason of both the changes of Government and circumstances in Fiji in the seven years that the applicants had remained in Australia, there was no real chance or risk that they would suffer persecution or conduct amounting to significant harm in their village or anywhere else in Fiji for the purposes of s 36(2)(a) and (aa) were they to return to Fiji or to Sabeto. As French CJ, Hayne Kiefel and Keane JJ said in SZSCA 254 CLR at 327 [23]:
If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee. (emphasis added)
40 The applicants sought to rely on what Tracey, Mortimer and Moshinsky JJ had said in CSO15 [2018] FCAFC 14 at [42] and [47] as requiring the Tribunal to consider whether there was some place, other than Sabeto, to which the applicants could relocate and that it was practical to expect them to do.
41 In my opinion, properly understood, the Tribunal's reasons do not suggest that the applicants could not return to Sabeto if they chose. Rather, they, through the wife, had expressed to the Tribunal no intention of wanting to return there to live. The Tribunal had found that, when the wife visited Sabeto in 2007, she did not claim to have suffered or been subjected to any harm. The applicants never suggested, in the Tribunal, that they could not relocate or live in Sabeto (and even if they had, the Tribunal found that they could live there without a real risk of serious or significant harm). Their case was that nowhere in Fiji, including Sabeto, was safe for them. The Tribunal rejected that case and found that there was no real chance or risk that the applicants would suffer significant or serious harm anywhere in Fiji. It found that conditions elsewhere in Fiji did not suggest that the applicants would be at risk of substantial or significant harm for the purposes of engaging Australia's protection obligations.
42 In those circumstances her Honour's assessment, at a general level, that the applicants had poor prospects of success on their substantive claim (even had it expressly included the relocation point, which it did not) does not disclose any jurisdictional or other error by her Honour: cf. M211 of 2003 212 ALR 528 [27], 529 [36].