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

JURISDICTION 12 On 1 October 2020, by notice of appeal, Mr Kumar brought this proceeding from the decision of the primary judge. The grounds of appeal are: 1. The Federal Circuit Court (The FCC) made error by refusing to accept the explanation of delay which was unreasonable and not logical. 1.1 In the judgement, Para 16 & 17 states that poor legal advice regarding the prospect of success is not an adequate and satisfactory explanation to be acceptable by the court. Whereas no practical and logical explanation is given to support the non-acceptance of given explanation of delay. 2. The FCC failed to consider that no prejudice to the respondent weighed in favour of the grant of extension of time. 3. At para 11 of the FCC judgement, even after it was conceded by the respondent that the tribunal was wrong at law by not considering the compelling reasons at the time of decision. The FCC failed to further investigate the prospect of success of the review of the tribunal's decision to grant the extension of time. 13 Mr Kumar sought the following orders: 1. The order no. 1,2,3 made by the Federal Circuit Court on 9th September 2020 to be set aside. 2. Grant of extension of time. 3. The remittance of matter to the [Tribunal] who made the decision on 28th January 2015 to be determined according to law. 14 The proceeding is structured and brought as though the matter is an appeal. Section 476A of the Act states that an appeal may not be brought to this Court from a judgment of the FCCA that makes an order, or refuses to make an order, under s 477(2) of the Act. If the present proceeding is an appeal, it must fail by reason it is barred by s 476A of the Act. 15 This Court has original jurisdiction to hear applications for constitutional writs under s 39B(1) of the Judiciary Act 1903 (Cth) (the Judiciary Act) with respect to a decision of the FCCA made under 477(2) of the Act. The jurisdiction to hear applications for constitutional writs is not removed by s 476A(3)(a) of the Act, as Rares, Perram and Wigney JJ observed in Tang v Minster for Immigration and Citizenship (2013) FCR 55; [2013] FCAFC 139 at [11]. The Minister accepted that this application may be brought by Mr Kumar under s 39B of the Judiciary Act and treated the proceeding on the basis the constitutional writs were sought. 16 The remedies available are strictly limited to constitutional writs. Of the orders sought, Order 1 could be considered to be seeking to have the orders of the primary judge quashed. Orders 2 and 3 are in the form that would typically appear in an appeal. Order 3 seeks to have the matter remitted, not to the FCCA, but to the Tribunal. In effect, the applicant is requesting that this Court substitute the decision of the FCCA with a different decision. This Court does not have jurisdiction to remit the matter to the Tribunal, but would have jurisdiction to issue a writ of mandamus directing that the FCCA re-determine the matter according to law. 17 The question is whether the primary judge, in making the decision to refuse the grant of the extension of time, fell into jurisdictional error and exceeded the limits of the power conferred by statute. Jurisdictional error can also be established if the decision was illogical or irrational or legally unreasonable. Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 discussed the contexts where the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) had identified that legal unreasonableness may become apparent. These two contexts were summarised by Allsop CJ, Besanko and O'Callaghan JJ in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) (at [30]): [T]he Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an "outcome focused" conclusion without any specific jurisdictional error being identified. 18 With respect to the second context, where a decision is legally unreasonable where it "lacks an evident and intelligible justification", the plurality in Li held (at [76]): As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnote omitted) 19 As the Full Court in Djokovic held at [35], any finding or inference of legal unreasonableness must be based on logical grounds: Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds … such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

PRIMARY DECISION 20 In deciding whether to exercise the discretion to extend the time period, the primary judge set out a non-exhaustive list of principles originally canvased by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley) at 348-349: the extent of the delay, whether there was any explanation for the delay, whether there would be any prejudice to the Minister, and the merits of Mr Kumar's case (see Kumar at [9]). 21 The primary judge noted that the Minister had conceded that the Tribunal was wrong at law by reference to a decision which had been decided a year after the Tribunal's decision (Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32 (Waensila)). The Minister nevertheless maintained that the extension of time application should be refused due to the time which had lapsed since the decision of the Tribunal and since Waensila had been handed down. 22 The primary judge considered the explanation for the delay, which largely related to the legal advice Mr Kumar had received - which, at the time, had been to not pursue any appeal due to poor prospects of success. The primary judge did not accept this explanation as reasonable. There was no further explanation for the three year delay following the decision in Waensila. 23 The primary judge concluded by finding that Mr Kumar's "delay was so extensive that the filing of the Originating Application for Review out of time was an abuse of the Court's process". The primary judge dismissed the application for extension of time as it was "without merit" and accordingly dismissed the application for review.

GROUND 1 - EXPLANATION FOR THE DELAY 24 The gravamen of this ground is that the primary judge failed to give a "practical and logical explanation … to support the non-acceptance of [the] given explanation of [the] delay". The primary explanation for Mr Kumar's delay was Mr Kumar's reliance on the legal advice he had obtained at the time. In his submissions, Mr Kumar referred a number of times to being a victim of domestic violence, however did not clearly advance how this fact went to the explanation of the delay. 25 Mr Kumar submitted that when he had obtained legal advice following the decision of the Tribunal, he had been informed that he had poor prospects of success. Mr Kumar referred to Hunter Valley at 351 where Wilcox J held that "[i]t would be erroneous to treat the fault of the solicitors as if it were the direct default of the client". Mr Kumar referred to the fact that he relied upon the advice of his lawyers which, in light of Waensila, was wrong. Of course, the legal advice was at the time correct, based on the then current case law. 26 The Minister submitted that this ground failed to articulate how the primary judge fell into error and was instead asking this Court to consider the explanation for the delay and grant the extension. 27 The primary judge held (at [16]-[17]) that: 16 The cause [for the delay in Mr Kumar's filing the Originating Application for Review] was said to be largely based upon erroneous legal advice as to his prospects of success. 17 The Court is unprepared to accept [Mr Kumar's] submission that his receipt of poor legal advice ought to be considered exculpatory. Limitation periods ought to be extended only in exception circumstances in the interests of justice. The delay on the part of [Mr Kumar] was in all respects inexcusable. 28 Unfavourable legal advice has historically been held to be an inadequate explanation for delay. In Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran), Wigney J held (at [35]: This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal's decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; [Manna v Minister for Immigration and Citizenship [2013] FCA 400] at [17]. 29 At the time, the legal advice Mr Kumar received was accurate (based on the legal position as it then was) and given in circumstances where Waensila had not yet been decided. Mr Kumar's argument appears to be that the lawyers should have known, contrary to the law at the time, that he had good prospects of success and their failure to advise him of such should be accepted as an extraordinary circumstance for the grant of the extension of time. As Wigney J held in Tran, "[t]he lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal". 30 The decision of the primary judge to not accept Mr Kumar's explanation for the delay was open and according to law. Mr Kumar is, in effect, requesting this Court to substitute its decision for the primary judge's decision. Mr Kumar has not identified any jurisdictional error with respect to the primary judge's decision to not accept the explanation for the delay. The primary judge's decision to not accept that explanation is not so unreasonable that no reasonable person could have come to it, nor does it lack an evident and intelligible justification as per Li. Accordingly, this ground must fail.

GROUND 2 - PREJUDICE 31 Mr Kumar submitted that the primary judge failed to take into account the fact that the Minister would not suffer any prejudice and should have weighed this factor in favour of granting the extension of time. 32 The Minister submitted that Mr Kumar was, by this ground, challenging the ultimate finding of the primary judge. The Minister referred to SZUWX v Minister for Immigration and Border Protection (2016) 236 FCR 456; [2016] FCAFC 77 (SZUWX) where Bromwich JJ (with whom Allsop CJ and Flick J agreed at [14] and [19]) held at [8] and [9] that not taking into account the lack of prejudice which may be suffered by the Minister was not a jurisdictional error. What the primary judge "had done had been simply to focus on the considerations viewed as being significant". 33 The Minister submitted that the primary judge referred to the decision of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Taylor) which outlined the concept of "presumptive prejudice" (at 555): Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. 34 The Minister has "a legitimate interest in the timely disposal of applications for … visas" (SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J). There is a public interest in the timely disposal of applications and timely resolution of individuals rights (and conversely prejudice if that does not occur). The primary judge considered prejudice in a broader sense when finding that the "delay was so extensive that the filing of the Originating Application for Review out of time was an abuse of the Court's process". 35 The primary judge referred to the passage from Taylor at [33] above in the context of considering whether Mr Kumar had any reasonable explanation for the delay. From that reference, it is clear that the primary judge considered the issue of presumptive prejudice to the Minister by virtue of the delay and then considered whether any explanation for the delay may outweigh the prejudice. It is also clear that the primary judge focused on the "considerations viewed as being significant", as occurred in SZUWX. No jurisdictional error is apparent in either case. 36 In this ground, Mr Kumar appears to be challenging the finding of the primary judge and has not identified any jurisdictional error. This ground must fail.

GROUND 3 - MERITS 37 It had been conceded by the Minister at the hearing before the primary judge that Mr Kumar had very strong prospects of success were the matter remitted to the Tribunal to be re-determined. On 11 March 2016, the Full Court constituted by Dowsett, Robertson and Griffiths JJ handed down judgment in Waensila. It is because of this decision that the Minister conceded Mr Kumar's prospects of success. 38 Mr Kumar submitted that the primary judge failed to attach proper weight to his prospects of success and therefore engaged in jurisdictional error. Mr Kumar also submitted that the circumstances in the present case are entirely different from Tran, where, in addition to an extensive delay, the applicant had poor prospects of success. 39 The Minister submitted that the primary judge engaged with, and accordingly attributed weight to, the merits of the appeal. The Minister submitted that there was engagement with the merits, but that the other factors, specifically the delay in bringing the application and the lack of explanation for the delay, weighed against the grant of leave. 40 It is clear that the primary judge was mindful of the merits of the appeal. The primary judge considered the submissions of Mr Kumar and the Minister and concluded that the delay in filing the application for extension of time was extensive and outweighed any factor in favour of granting the extension of time (at [11]-[12] and [17]-[18]): 11. At the hearing before this Court, it was conceded by Mr Freeburn, on behalf of the [Minister], that the Tribunal was wrong at law to confine its consideration of what may or may not have constituted compelling reasons for waiving the Schedule 3 criteria to facts, matters and circumstances evident as at the time of the application for the visa, as opposed to those evident at the time of decision in respect of such application. On that issue, Griffiths J at [57] of Waensila said as follows: … 12. Notwithstanding Mr Freeburn's concession, it was submitted by him on behalf of the [Minister] that this Court should not grant an extension of time for the filing of the Originating Application for Review of the decision of the Tribunal because of the time lapse of: a) 4 years and 10 months between the time of the making of the decision by the Tribunal; and b) 3 years and 8 months between the time of the handing down of the judgment in Waensila; to the time of the filing of the Originating Application for Review on 25 November 2019. … 17. … The delay on the part of [Mr Kumar] was in all respects inexcusable. The Court adopts what was said by His Honour Justice Wigney on the question of the inability on the part of an applicant to obtain either favourable or early legal advice as to the prospects of success of any claim in Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [33] - [35] and at [38] where His Honour said: … [38] The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran's application for an extension of time." 18. The Court finds that [Mr Kumar's] delay was so extensive that the filing of the Originating Application for Review out of time was an abuse of the Court's process … (italics in original) 41 The discretion to extend the time for bringing an application under s 477 of the Act must only be exercised if the FCCA is satisfied that it is necessary in the interest of the administration of justice to do so. Mr Kumar is seeking a constitutional writ on the basis that the primary judge failed to attach proper weight to the merits. The weight to be attached to the merits of a case is discretionary. 42 It is clear that the primary judge weighed the merits of the application for review against the extent of the delay (both before and after the decision of Waensila) in bringing the proceeding and the explanation for the delay. The decision of the primary judge is not so unreasonable that no reasonable person could have made the decision, nor does it lack an evident and intelligible justification. This ground must fail.

CONCLUSION 43 Mr Kumar has not identified any jurisdictional error in the decision of the primary judge. Accordingly, I will order that the proceeding be dismissed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.