FEZ17 v Minister for Home Affairs

JUDGE STREET IN HIS CAPACITY AS A JUDGE OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent

JUDGE: THAWLEY J DATE OF ORDER: 7 NOVEMBER 2018

1. The application be dismissed.
2. The applicant pay the first respondent's costs as agreed or assessed. 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). 2 Section 477(2) confers on the Federal Circuit Court the discretion to extend the time within which an application may be made in respect of a remedy in exercise of the court's original jurisdiction under s 476 of the Act in relation to a migration decision. 3 The relevant "migration decision" was a fast track reviewable decision of the Immigration Assessment Authority dated 23 August 2017, affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa. 4 Section 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 the order. 5 The applicant filed his application 98 days after the Authority's decision, and 63 days outside of the period required by s 477(1).

NATURE OF THIS COURT'S JURISDICTION 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 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 same result flows from the combined effect of ss 20(3)(b), 24(1)(d) and 24(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). 8 It is not in dispute, however, 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: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11] (Rares, Perram and Wigney JJ); SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [2] (Wigney J); SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [15], [50] (Robertson J, with whom Logan and Kerr JJ agreed); MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [49] (Mortimer J); Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 at [3] (Bromberg J); ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [4] (Gleeson J); CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400 at [23] and [24] (Steward J); WZAUG v A Judge of the Federal Circuit Court of Australia [2018] FCA 649 at [4] (Colvin J); DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37]; WZAUA v Minister for Immigration and Border Protection [2018] FCA 1599 at [21] (Kenny J). 9 Section 39B(1) of the Judiciary Act provides: Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. 10 In DMI16, the Full Court of this Court held that relief may be obtained in an action of the present kind in respect of: (1) jurisdictional error on the part of the Federal Circuit Court; and (2) non-jurisdictional error on the face of the record of the Federal Circuit Court.

Non-jurisdictional error on the face of the record 11 Although s 39B(1) does not mention the writ of certiorari, s 23 of the Federal Court of Australia Act 1976 (Cth) gives the Court, in relation to matters within its jurisdiction, the power to issue or direct the issue of "writs of such kinds, as the Court thinks appropriate". 12 Section 23 provides: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 13 The Court in DMI16 held that certiorari will lie for a non-jurisdictional error of law on the face of the record as a "stand alone" remedy on an application of the present kind under s 39B(1): at [42]. 14 However, the reasons of the Federal Circuit Court do not constitute a part of the record: DMI16 at [44], [47]. Certiorari will only lie for a non-jurisdictional error of law if the error is apparent on the face of the orders of the Federal Circuit Court: DMI16 at [48]. 15 It was not suggested that there was any such error in the present case.

Jurisdictional error 16 Judges of the Federal Circuit Court must act within the limits of the jurisdiction conferred on them by statute. To succeed in an application under s 39B(1), an applicant bears the onus of establishing jurisdictional error. In WZAUG at [10], Colvin J said: What must be identified by an applicant is that the Federal Circuit Court has acted outside its power or authority or has failed to perform the particular task entrusted to it or has performed the task in a manner that is fundamentally inconsistent with its character as a court of record. 17 The jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker: DMI16 at [39], setting out the following passage from Craig v South Australia (1995) 184 CLR 163 at 179-180: In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. 18 Some of the circumstances in which an inferior court will fall into jurisdictional error were described in Craig at 177-178 in the following way: … [J]urisdictional 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 precondition of the exercise 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. See also: WZAUA at [22]-[24], per Kenny J. 19 An example of jurisdictional error was provided by Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [68]: … If, for example, her Honour in the present case could be said to have taken the approach that it would only be in "the interests of the administration of justice" to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred. 20 After setting out this passage, Steward J in CKX16 at [24] stated: A further example of jurisdictional error would be a failure to provide procedural fairness. In that respect, the applicant relied on the well-known dictum from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]: To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. See also MZAIB at [53] and [78], per Mortimer J, and SZTES at [52], per Robertson J, with whom Logan and Kerr JJ agreed. 21 It follows from the foregoing that examples of possible jurisdictional error on the part of the Federal Circuit Court include: (1) failure to take into account (or taking into account) a matter which the statute conferring the court's jurisdiction expressly or impliedly required be taken into account (or ignored) as a precondition to the exercise of power; (2) 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 (3) failure by the court to provide procedural fairness. 22 It is not sufficient for the applicant to demonstrate non-jurisdictional legal error in the reasoning of the Federal Circuit Court or an erroneous finding of fact; the applicant has to demonstrate jurisdictional error, as opposed to error within jurisdiction: AUK15; SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 at [10] (Bromwich J); [16] (Flick J); [20]-[21] (Allsop CJ).

ASSERTED JURISDICTIONAL ERRORS 23 The asserted jurisdictional errors of the Federal Circuit Court relied upon by the applicant centred on the contended prospect of success of the judicial review grounds which he proposed to advance to that court, if an extension of time were granted. 24 The Federal Circuit Court concluded that the proposed judicial review grounds had no, or insufficient, prospects to warrant granting an extension of time: J[15], J[19]-[25]. 25 This was one factor the Federal Circuit Court took into account in refusing to extend time. The others were the extent of the delay, the explanation for the delay and any prejudice which the other party (the Minister) might suffer if an extension were granted: J[15]-[18]. 26 The approach taken by the Federal Circuit Court in considering the four matters identified in [24] and [25] above did not reveal jurisdictional error. There is nothing to suggest the primary judge did not understand that the source of the court's power to extend time was s 477(2) of the Act and that it was the terms of that section which governed whether to extend time, namely whether he was "satisfied that it is necessary in the interests of the administration of justice to make the order". The four matters taken into account were relevant - see: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Mentink v Minister for Home Affairs [2013] FCAFC 113; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [26]-[27]. It was not suggested that there were further matters he was asked to, but did not, take into account. There was no suggestion that the primary judge treated the factors he considered as exhaustive of the matters which might be relevant - cf: Mentink at [32]-[38]; BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [20]-[25]. 27 In SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150, Gageler J considered whether the Federal Circuit Court had committed a jurisdictional error in refusing to extend time under s 477(2), saying: 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. 28 In ALL16, Gleeson J referred to SZTUT, setting out extracts of the passages of Gageler J's decision set out above. Her Honour then stated at [24]: For the same reasons, it is not appropriate for this Court to enter into an examination of whether, in its view, the proposed grounds of appeal did or did not have reasonable prospects of success. That question is squarely within the jurisdiction of the FCCA. 29 As her Honour said, this Court's view of the prospects of success of the proposed grounds is not the issue. Nor would it be sufficient to point to non-jurisdictional legal error in its reasoning on the question of prospects of success - see paragraph [22] above. On the other hand, the Federal Circuit Court's treatment of the question of the prospects of success of the proposed application for judicial review to that court might reveal that it misunderstood the nature of its function or exceeded its jurisdiction - see: MZABP at [68] (set out at paragraph [19] above); WZAUA at [52]. That was not shown to be the case here. 30 In AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36, to which his Honour referred in SZTUT, Gageler J considered whether jurisdictional error had been established in relation to a decision of a Judge of this Court in refusing to extend time under s 477A(2) of the Act. His Honour noted that a writ of prohibition or mandamus would lie for jurisdictional error, "but that such a writ will not lie to set aside [an order] of that court either for non-jurisdictional error of law or for an error in finding a fact which it is within the jurisdiction of that court conclusively to determine". His Honour's reasons for refusing relief included: In Craig v South Australia (1995) 184 CLR 163 at 179 to 180, it was explained by five members of the Court that: the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. That explanation is apt to describe the ordinary jurisdiction of the Federal Court and it is apt to describe the jurisdiction which was exercised by [the primary judge] in the present case. There being no suggestion in the present case that [the primary judge] misconceived the nature of the function he was performing in deciding whether or not to award an extension of time under section 477A(2) of the Act, I am unable to characterise either of the errors particularised in the amended application as errors of jurisdiction. 31 The Federal Circuit Court's task was to consider exercising its discretion under s 477(2) of the Act to extend the time in which the applicant could apply for judicial review in that court under s 476. The Federal Circuit Court understood its task: J[1], J[15]. It did not misconstrue the statute or misconceive the nature of its function or exceed its jurisdiction. More specifically, it is not apparent from the reasons of the Federal Circuit Court in dealing with prospects of success (J[20] to J[24]) that it misunderstood the nature of its jurisdiction or the extent of the power conferred. There was no matter which the Federal Circuit Court failed to take into account which the statute conferring its jurisdiction required it to take into account, either expressly or impliedly, as a precondition to the exercise of its power. It did not take into account any matter which it was not permitted to take into account. The applicant did not submit that he had been denied procedural fairness and nor is any denial of procedural fairness apparent. 32 As I have said, it is not necessary for this Court to form a view about the prospects of the proposed grounds of judicial review put to the Federal Circuit Court beyond what is necessary to determine whether there was jurisdictional error on the part of that court. However, it is perhaps worth observing, if only to provide the applicant additional comfort, that the Federal Circuit Court did not err in concluding that the grounds of review he proposed to advance to that court did not have sufficient prospects to warrant leave being granted. 33 The proposed grounds 1 and 2 before the Federal Circuit Court were: Ground 1 The Authority fell into jurisdictional error in determining that exceptional circumstances existed to justify the consideration of new information. PARTICULARS a. At paragraph 3 of its decision, the Authority acknowledged that it had obtained the new Department of Foreign Affairs and Trade (DFAT) Country Information report dated 24 January 2017. b. The report was considered to be new information since it published after the delegate's decision had been finalised and therefore was not before the delegate. c. The Authority was satisfied that exceptional circumstances existed for the consideration of the new information on the basis that the DFAT report contained information which related to the situation in Sri Lanka and had been prepared specifically for the purpose of protection status determination. d. In making this finding, the Authority adopted an unduly broad interpretation of the term 'exceptional circumstances'. e. The amendment of a report, which includes information that is relevant to the applicant only in a broad sense, is hardly exceptional. Ground 2 The Authority committed jurisdictional error by failing to act in accordance with s 473DC(1)(b) of the Migration Act 1958 (Cth). PARTICULARS a. Section 473DC(1) of the Migration Act 1958 (Cth) provides that: (1) … the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. b. In paragraph 3 of its decision, the Authority notes that it obtained the new DFAT report "in accordance with 473DC(1)". c. The Authority satisfies the first limb of the test outlined in s 473DC(1) by stating that the report was published after the date of the delegate's decision and therefore wasn't before the delegate. d. However, the Authority does not turn its mind to considering whether the new information referred to it was relevant. 34 As to ground 1, the question is whether it was open to the Authority to conclude that there were "exceptional circumstances" within the meaning of s 473DD(a) of the Act justifying its consideration of an updated country information report prepared by the Department of Foreign Affairs and Trade (DFAT). 35 The delegate had relied on the 2015 DFAT report in addressing the claims made by the applicant which included that he feared harm on his return to Sri Lanka because of, amongst other things, his being a Tamil and having an imputed association with the LTTE. For example, the delegate stated (having regard to various items of country information including the 2015 DFAT report): The applicant claims that he will be targeted for being a Tamil. Country information indicates a marked improvement in the economic and security situation for Tamils in Sri Lanka, including in former LTTE-controlled areas. DFAT advised in December 2015 on the greatly improved security situation in the north, the removal of most check points and the decrease in monitoring and harassment of Tamils since the election of President Sirisena in January 2015. DFAT also notes that some Tamil landowners have had their land returned by the military and the appointment of civilian governors in the north and east. … There have been occasional reports of Sri Lankan civilians, including Tamils, but also non-Tamil, being abducted by security forces. There are also reports of continued human rights violations in Sri Lanka, including the use of torture against suspects, and the ability of the security forces to act with impunity. However, an analysis of reports over the last few years from a range of sources, including the UNHCR, the United Kingdom Border Agency, the United States Department of State, the Norwegian Country of Origin Information Centre (Land info), and Australian DFAT does not support a conclusion that Tamils, including young Tamil men from former LTTE-controlled areas, are being systematically targeted and subjected to serious harm amounting to persecution because of their race and/or area of origin. [Footnotes omitted] 36 The Authority, once the matter had been referred to it for fast track review, obtained the 2017 DFAT report under s 473DC, noting that it was "DFAT's most recent assessment of the situation in Sri Lanka and had been prepared specifically for the purpose of protection status determination": A[3]. The 2017 DFAT report was clearly considered directly relevant to the applicant's claims. 37 In circumstances where the delegate had relied upon a DFAT report prepared in 2015 and an updated report had become available in 2017, it was open to the Authority to reach the conclusion it did: ERN17 v Minister for Immigration and Border Protection [2018] FCA 1672 at [9(2)]; BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095 at [91]. The circumstances were sufficiently out of the ordinary to warrant the description "exceptional circumstances" - see: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [30]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13]-[14]. The Authority did not err in its interpretation of s 473DD(a). 38 As to ground 2, it is implicit in the Authority's reasons, including its reliance on the 2017 DFAT report, and it is to be inferred from its conduct in getting the 2017 DFAT report, that the Authority considered the report to be relevant - see: s 473DC(1)(b). It did not need to make an express statement to that effect in its written statement of decision under s 473EA of the Act.

PROPOSED AMENDED NOTICE OF APPEAL 39 The applicant sought leave to file in Court and rely upon a proposed amended notice of appeal, which the document indicated had been prepared by counsel. The proposed amended notice of appeal reveals a misunderstanding of this Court's jurisdiction. As noted at [6] above, there is no right of appeal to this Court. 40 If the proposed amended notice of appeal were treated as an amended application for judicial review, it would have less prospect of success than the application which was already before the Court. The document contains one "ground of appeal" as follows: The Honourable Federal Circuit Court Judge Street failed to hold that the Immigration Assessment Authority (Authority) made a jurisdictional error by failing to consider inviting or failing to invite comment from the Applicant as to the new Department of Foreign Affairs and Trade Report dated 24 January 2017 (2017 DFAT Report) before relying upon that document in determining the review. Particulars a. At paragraph 3 of its decision, the Authority considered the 2017 DFAT Report under s 473DC(1) of the Migration Act 1958 (Cth) (Act). b. The Authority at [paragraph 3] of its decision described the report as "DFAT's most recent assessment of the situation in Sri Lanka and has been prepared specifically for the purpose of protection status determination. The delegate relied upon earlier DFAT assessments". c. The Authority relied upon the 2017 DFAT Report in reaching its decision (see at paragraphs 35, 38, 39). d. It was legally unreasonable for the Authority to fail to consider exercising s 473DC(1) of the Act so as to invite comment form the Applicant (Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]); e. In any event, it was legally unreasonable for the Authority not so to exercise s 473DC(1) of the Act (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]); f. To the extent that CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 displaces the above reasoning in the present case, the Applicant submits that judgment was, with great respect, wrongly decided. 41 That argument was not put to the Federal Circuit Court as one of the grounds of judicial review the applicant proposed to argue if that court granted an extension of time. There was no identification of how the Federal Circuit Court could be said to have made a jurisdictional error in not considering a proposed ground of judicial review which was not put to it, in the context of assessing the prospects of success of a proposed application for judicial review for the purpose of deciding whether to grant an extension of time. The applicant was represented in the Federal Circuit Court by a solicitor experienced in the field. In AUK15, Gageler J said of a similar argument put in relation to s 477A(2) rather than 477(2): [I]t is sufficient to say that, in circumstances where the plaintiff was represented by senior and junior counsel, [the primary judge] cannot have erred in not considering an argument not put to him. 42 I refuse leave to file the amended notice of appeal.

CONCLUSION 43 The application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.