MZABP v Minister for Immigration and Border Protection

1. Leave is granted to amend the notice of appeal.
2. The appeal is dismissed.
3. Costs are reserved.
4. The first respondent is to file and serve a short submission in support of its application for costs within seven days of this judgment.
5. If the appellant wishes to oppose any costs order sought, the appellant is to file and serve a short submission identifying the costs order sought and the reasons in support within a further seven days.
6. Costs be determined thereafter on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. INTRODUCTION 1 This is an appeal from a decision of a single judge of this Court dismissing the appellant's application for judicial review of a decision of the Federal Circuit Court (the FCC). The FCC had dismissed the appellant's application for an extension of time within which to seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the Minister's decision not to grant him a protection visa. The substantive issue which the appellant seeks to agitate is whether the FCC fell into jurisdictional error in misconstruing the power to extend time under s 477(2) of the Migration Act 1958 (Cth) (the Act). Specifically, it is alleged that the FCC erred in taking the approach that it would be "in the interests of the administration of justice" to extend time only if the FCC were persuaded that the appellant "could succeed" in any of his grounds of review, instead of having regard only to whether the grounds of review were reasonably arguable or have reasonable prospects of success (the substantive issue). 2 It is common ground that the substantive issue was first raised by the appellant in oral submissions in reply at the hearing of the application for judicial review before the primary judge. In the circumstances, the primary judge found at [61] of her reasons that the appellant's submission on that issue could not be considered as a basis for granting any relief in the proceedings. Nonetheless, without determining the matter, her Honour expressed disquiet about the way in which the FCC had dealt with the merits of the appellant's proposed grounds of review in considering his application for an extension of time. 3 Before this Court can consider the substantive issue, it is necessary to determine whether to grant the appellant leave to amend the notice of appeal to raise the issue. In this regard, the appellant's primary submission is that leave should be granted notwithstanding that the substantive issue was effectively not raised in the Court at first instance. The Court must also determine whether, contrary to the appellant's primary submission, the primary judge made a ruling at [61] in the exercise of discretion not to permit the substantive issue to be raised and, if so, whether the appellant has established that the exercise of discretion miscarried. 4 For the reasons set out below, while we would allow the appellant leave to amend the notice of appeal, we consider that the primary judge ruled against the appellant raising the substantive issue in all of the circumstances and no error in the exercise of that discretion has been established. It follows that the appeal must be dismissed.

2.1 The decision of the Tribunal 5 The primary judge did not set out the appellant's claims in detail, given that he was a citizen of the small island nation of São Tomé and Príncipe and the likelihood that a recitation of his claims for asylum may enable him to be identified, thereby frustrating the apparent purpose of s 91X of the Act: reasons below at [5]. We adopt the same approach for the reason articulated by her Honour and emphasise the importance of ensuring that such potentially identifying features are not present in the published reasons of a court where s 91X applies to the proceeding. 6 The appellant arrived in Australia on a student visa in September 2011. He applied for a Protection (Class XA) visa in March 2012 which was refused by a delegate of the Minister in May 2012. 7 Before the Tribunal, the appellant claimed to have a well-founded fear of persecution by reason of his political opinion, his religion, and his membership of a particular social group (whistle-blowers) based upon events occurring in his country of nationality. On 30 November 2012, the Tribunal affirmed the decision of the Minister's delegate to refuse the visa, finding that he had fabricated his claims. That finding, which was made principally in relation to the appellant's claim based upon his political opinion, was then used by the Tribunal as a reason for it being unnecessary to consider in detail his claims to fear persecution by reason of being a member of a particular social group.

2.2 The application for judicial review in the FCC 8 It was only on 6 March 2014 that the appellant sought judicial review of the Tribunal's decision under s 476 of the Act. The 35 day period within which the appellant had a right to seek review of the Tribunal's decision had long since expired on 4 January 2013. As such it was necessary for the appellant to seek an extension of time under s 477(2) of the Act within which to seek judicial review of the Tribunal's decision. 9 While the appellant was unrepresented at the time of filing his application, he subsequently obtained legal representation and was represented at the hearing before the FCC (reasons below at [10]). The application for an extension of time was listed together with the application for judicial review. The appellant sought to explain his delay in instituting the judicial review proceedings on the ground that his case manager at the Asylum Seeker Resource Centre had advised that he should have the Tribunal's decision reviewed by the Minister but did not explain to him that he had the right to pursue an application to the FCC on the basis of jurisdictional error. As such, the appellant gave evidence that he had understood that ministerial intervention was his only option. 10 The FCC identified the factors relevant to a consideration of the extension of time application at [11] of its reasons as follows: The time limit for filing a review is set out in s.477(1) of the Migration Act. The application must be filed within 35 days. When considering whether or not to grant an extension of time the relevant considerations are: the extent of the delay, the explanation for the delay, the prejudice to the respondent and the merits of the application. 11 The FCC held that seeking ministerial intervention is not an adequate explanation for the delay as the appellant could have pursued his appeal rights at the same time (FCC reasons at [13]). The FCC then held at [14] that: The Minister acknowledged that there is no prejudice to him if the extension of time is granted but that the merits of the case do not justify the grant of an extension of time. It is necessary to consider the merits of the applicant's case before returning to this issue. 12 As the primary judge observed, most of the FCC's reasons deal with its assessment of the merits of the grounds of judicial review and do so in some detail. The FCC first considered grounds 1-3 of the judicial review application by which the appellant complained that the Tribunal did not consider his claim to fear persecution because of his political opinions and his claim as a member of a particular social group separately. The FCC concluded that: 37. It is clear that the applicant's claim to be a whistle-blower focused on the existence of [a particular government] report. The Tribunal rejected the fundamental premise of the applicant's claim when it found that the report did not exist. The applicant did not make any other claim to be a whistle-blower. I am satisfied that the Tribunal properly considered the claim the applicant put before it. 38. The conclusion was open to the Tribunal on the evidence before it. Grounds 1 to 3 have not been made out. 13 The appellant submits that the finding is not expressed in language such as "not reasonably arguable", being the low threshold applicable to an application for an extension of time under s 477(2) of the Act, but rather in terms suggesting that a finding had been made on the merits of the grounds. 14 Secondly, the FCC considered grounds 4 and 5 which complained of a failure to comply with the statutory procedural fairness requirements. The FCC concluded at [50] of its reasons that "[t]here is no substance to the complaints in grounds 5 and [sic] 6." 15 Finally, the FCC considered the merits of the sixth ground of judicial review alleging a failure by the Tribunal to inquire about critical facts, holding at [54] that "[t]here is no substance to the complaint in ground 6." 16 The FCC concluded at [55] that: Having considered the merits of the application argued before me, I am not satisfied that the applicant has reasonable prospects of success. In these circumstances, it would not save [sic] the administration of justice to grant the applicant an extension of time. (It appeared to be common ground that the word "save" in the second sentence was intended to read "serve".) 17 While the language used by the FCC in considering grounds 4 to 6 and in its conclusion might suggest that the FCC considered the merits of the proposed application in the context of an extension of time application at the low threshold required, nonetheless the appellant argues that, considered as a whole, the FCC approached its consideration of the application incorrectly on the premise that it required a full consideration of the merits. In the alternative, the appellant submits that the FCC erred in its approach to determining the extension of time application with respect to grounds 1-3.

2.3 The application for judicial review of the FCC decision in the Federal Court 18 The application for judicial review of the FCC decision before the primary judge was made under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). Her Honour's reasons at [26] record that the parties were agreed that, while no appeal lies from the FCC's decision to refuse the s 477(2) extension of time application by reason of s 476A(3)(a), the Federal Court has jurisdiction to consider an application for judicial review of the FCC decision under s 39B of the Judiciary Act: see also Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11]. 19 The grounds on which the FCC decision was challenged are summarised at [37] of the primary judge's reasons. In essence, the appellant argued that the FCC failed to apply the test in s 477(2) but rather relied upon the principles enunciated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. That case is the leading case on the discretion to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1976 (Cth). That error was said to be demonstrated by the FCC's failure to refer to s 477(2) in its reasons and its failure to make findings on the criteria for the grant of an extension of time in s 477(2)(a) and (b) of the Act. 20 Crucially for present purposes, the primary judge held that: 60. In reply submissions at the hearing, in answer to a question from the Court about what difference it was submitted it made that there was no reference to s 477(2) in the Court's reasons, counsel submitted the difference was that, had there been, the Court may have exercised greater caution in respect of what counsel described as the "low bar" for the consideration of the merits of grounds of review as part of the factors to be taken into account in deciding whether to extend time. Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Act. 61. This was not a matter identified in the amended application as a ground of review in relation to the Federal Circuit Court decision. It was not a matter on which the first respondent made any detailed submissions. It cannot be considered as a basis for granting any relief in this proceeding... (see also [69] of the primary judge's reasons quoted at [23] below) 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, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 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 [2013] FCA 1284; 139 ALD 252 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. 22 In this regard, her Honour expressed her agreement with the observations of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (appeal dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). In particular, her Honour agreed with Wigney J in SZTES at [102] that the practice in the FCC of listing both an application for an extension of time and the final hearing together may encourage an undue focus upon the merits of the proposed grounds of review and result in an artificial approach to the extension of time application. Nonetheless, her Honour considered that, provided that the proper tests are applied, there is no reason why that practice cannot be followed. 23 Secondly, while not deciding the point, her Honour held that: 67. In the present case, the Federal Circuit Court's reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review and which I have set out at [15]-[17] above, and because of the extent of the consideration given to each ground. 68. Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court's jurisdiction is another and difficult question. In Kirk [2010] HCA 1; 239 CLR 531 (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. 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. 69. In a proceeding where this matter was not a ground on which relief was sought and was not fully addressed in submissions, it is not appropriate to determine the issue. In any event, I am not persuaded her Honour's reasons, fairly read, so clearly take the kind of erroneous approach to which I have referred. 70. However, the line is a fine one, and in my respectful opinion both in respect of s 477(2), and in respect of the corresponding power reposed in this Court under s 477A(2), the need for a restrained approach to the assessment of the merits of grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion, as outlined by French J in Seiler [v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; 48 FCR 83], should always be recalled.

3. CONSIDERATION OF THE APPLICATION TO AMEND THE NOTICE OF APPEAL

3.1 Should leave be granted to amend the notice of appeal? 24 As earlier explained, it is necessary first to consider whether leave should be granted so as to permit the appellant to add two proposed grounds of appeal, namely: 1. The Federal Circuit Court committed jurisdictional error insofar as the Federal Circuit Court took the approach that it could only grant the extension of time under s 477(2) of the Migration Act 1958 (Cth) if persuaded that the appellant could succeed in any of the appellant's grounds of review. 2. In the alternative, the Court below erred in the exercise of the discretion to refuse to allow the argument raised by the appellant in their [sic] reply submissions identified at paragraph 60 of the Federal Court's reasons where: (a) there was a ground that the Honourable Judge Harland misapprehended or disregarded the nature or limits of her power to extend time in s 477(2) of the Migration Act 1958 (Cth); and (b) the argument was raised in oral argument at the hearing before the Federal Court. 25 We note that, while initially a further ground 2(c) was proposed, it was not pressed. 26 The proposed further amended notice of appeal also omits all of the previous grounds of appeal. At the commencement of the hearing, counsel for the appellant confirmed that the appellant abandoned all of those grounds irrespective of the fate of the application for leave to amend. 27 It should also be noted that leave was sought to add ground 2 during the course of oral argument. That application was made in response to the Minister's written submission that the Court below had ruled against permitting the appellant to raise the argument embodied in the first proposed ground of appeal in the exercise of discretion and that it was therefore necessary for the appellant to establish an error in the exercise of that discretion of a kind falling within the principles articulated in House v The King (1936) 55 CLR 499 (House v R) before this Court could consider the first (and substantive) ground. Nonetheless, the appellant's primary submission is that the argument embodied in the first proposed ground was not the subject of any adverse ruling by the primary judge and therefore the issue for this Court is whether or not leave ought to be granted to permit the appellant to raise what is effectively a new ground of review on the appeal. 28 The Minister opposed leave to amend on the ground that the proposed new grounds have no reasonable prospects of success. 29 We do not accept that the substantive issue sought to be raised by ground 1 has no reasonable prospects of success. In those circumstances, we consider that it is appropriate to grant leave to amend the notice of appeal to include both grounds 1 and 2. In this regard, we have taken into account that, while the appellant's primary submission is that it is unnecessary for him to succeed on ground 2, that ground was formulated in the alternative on the assumption that the Minister's submission is accepted and it is necessary for the appellant to pass through the "gateway" of ground 2 in order to reach ground 1. Nonetheless we consider that the appeal must be dismissed. In our view her Honour did make a ruling in the exercise of discretion not to permit the appellant to raise a new argument in reply and no relevant error has been demonstrated in the exercise of that discretion. It follows that ground 1 does not arise for determination on the appeal.

3.2 Did the primary judge rule against a consideration of the argument in the exercise of discretion? 30 Neither party sought to put before the Court a transcript of the proceedings before the primary judge. Nor did counsel for either party appearing at the hearing of the appeal appear in the Court below. 31 The reasons of the primary judge do not suggest that a formal application was made by the appellant, orally or in writing, for leave to amend the judicial review application to add a ground embodying the new argument. Nonetheless, the reasons at [60] and [61] (quoted at [20] above) make it clear that the argument was put in oral submissions in reply and the question for her Honour was then whether the appellant should be permitted to rely upon the argument in support of the judicial review application. So understood, we read her Honour at [61] (and [69]) as ruling in the exercise of discretion that the appellant could not in the circumstances be permitted to rely upon the argument, or as recording her reasons for so ruling at the hearing. 32 That being so, in our opinion it is necessary for the appellant first to demonstrate an error in the exercise of that discretion in accordance with the principles enunciated in House v R. As Dixon, Evatt and McTiernan JJ held in House v R at 504-505: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 33 In the event that the Court should characterise the primary judge's reasons at [61] as a ruling, the appellant contended that the discretion miscarried because there was a ground of review in the Court below that the FCC had misapprehended or disregarded the nature or limits of its power to extend time under s 477(2) (ground 2(a)) and that argument was raised in oral argument before the primary judge (ground 2(b)): see paragraph 2, amended notice of appeal. Notwithstanding the helpful and persuasive way in which counsel for the appellant put her submissions, those grounds do not show any relevant error in the primary judge's reasons for deciding that the appellant ought not to be permitted to rely upon the argument. 34 First, ground 2(a) effectively takes issue with the primary judge's finding at [61] that the argument was not identified in the amended application for judicial review of the FCC decision. Specifically the appellant relied in support of ground 2(a) upon paragraph (1)(a) of the amended application for judicial review in the Federal Court (amended application) which pleaded that the FCC judgment was infected by jurisdictional error because the FCC judge "misapprehended or disregarded the nature or limits of her power to extend time in s 477(2) of the Migration Act 1958 (Cth)". However, the nature of the error alleged in paragraph (1)(a) was explained or particularised by paragraphs (1)(b) to (e) of that application. Paragraph (1)(a) of the amended application was effectively a generalised or "umbrella" ground, as counsel for the appellant accepted. Consistently with this, no issue was taken by the appellant with the primary judge's description at [37] of her reasons of the "four indicators that the Federal Circuit Court [allegedly] misapprehended the nature of its power to extend time" which did not include the substantive issue raised in oral reply but were directed to the different argument summarised at [19] above. Indeed, the manner in which the appeal had been run until the date of the appeal hearing had been premised on the assumption that the substantive issue had not been raised below until the submissions in reply. 35 Secondly, as to ground 2(b), the primary judge accepted that the appellant had put the argument in reply, and her Honour's unease about the FCC's approach demonstrates that she regarded the argument as reasonable (as does this Court). However, the fact that an argument may reasonably be made and was the subject of a submission does not address the other factors properly taken into account by the primary judge. These include the late stage at which the argument was raised and the fact that it was not a matter on which the Minister made any detailed submissions. Such matters are plainly relevant, among other things, to ensuring that the trial proceeded in accordance with the rules of procedural fairness and with the overarching purpose of the civil practice and procedure provisions in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) including the efficient and just disposition of disputes. 36 It follows, applying the principles in House v R, that no justification has been established for this Court to revisit the exercise of discretion by the Court below.

4. COSTS 37 In the event that the appeal was dismissed, the Minister seeks his costs of the appeal. This Court is tentatively of the view that it may be appropriate for each party to bear their own costs of the appeal given the justified concerns expressed by the primary judge as to the FCC's reasons relevant to ground 1 of the notice of appeal. However, it is appropriate in those circumstances to allow the parties the opportunity to make written submissions as to costs, should they be so advised.

5. CONCLUSION 38 It follows that no error has been demonstrated in her Honour's exercise of discretion not to permit the appellant to rely upon the substantive argument sought to be raised again on the appeal. That being so, in circumstances where the remaining grounds of appeal have been abandoned, the appeal must be dismissed. Nonetheless we would also emphasise (without embarking upon a determination of the merits of ground 1 of the notice of appeal) that we endorse her Honour's disquiet about the approach adopted by the FCC and also endorse the approach which her Honour so clearly elucidated as to the proper disposition of applications for extensions of time: see above at [21]-[23]. The question of costs is reserved for the reasons earlier explained. 39 Finally, the Court acknowledges the assistance generously provided by pro-bono counsel for the appellant. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Perry and Charlesworth.