SZUHM v Minister for Immigration and Border Protection

Tribunal's decision 7 On 26 March 2014, the Tribunal affirmed the delegate's decision for the second time and set out its reasons in a Statement of Decision and Reasons (Decision Record or DR). 8 The Tribunal accepted that the passport which the applicant claimed to be genuine was genuine and that he was a Nepalese citizen. While the Tribunal had concerns about the applicant's credibility, it found it unnecessary to reach a final conclusion regarding Australia's obligations towards him as a refugee under s 36(2)(a) of the Migration Act 1958 (Cth) or under the complementary protection grounds set out in s 36(2)(aa) in relation to his return to Nepal. This was because the Tribunal found that, as a Nepalese citizen, the applicant had a right to enter into and reside in India and in those circumstances, s 36(3) of the Migration Act deems Australia not to owe the applicant protection obligations as he had not taken all possible steps to avail himself of a right to enter and reside in India. The applicant told the Tribunal that he would be at risk of harm in India because, due to the open border with Nepal, Maoists from Nepal would follow him to India and persecute him there. However, the Tribunal found that none of ss 36(4), (5) or (5A) of the Migration Act applied to the applicant because it found that he did not have a well-founded fear of Convention related persecution in India (there was no objective country information to indicate that a Nepalese citizen living in India would be at risk of harm because of their association with a Nepalese political party) or of being returned to Nepal from India and there were no substantial grounds for believing that, as a necessary or foreseeable consequence of entering and residing in India there would be a real risk that he would suffer significant harm.

Application to the FCCA 9 By an application to the FCCA dated 6 May 2014, the applicant sought an extension of time pursuant to s 477 of the Migration Act in which to apply for judicial review of the Tribunal's decision made on 26 March 2014. 10 The substantive grounds of the application were (as written): 1. The Second Respondent made Jurisdictional error by filing to consider an integer of the Applicant's claim namely He can go and stay in India with all the freedom. 2. The Second Respondent made Jurisdictional error by filing to consider an integer of the Applicant's claim namely, though Applicant have access to go and reside in India but Applicant can't have all the rights as citizen of India and not allow for Rasan Card which we consider as a photo id here in Australi. 3. The Second Respondent made Jurisdictional error by filling to consider an integer of the Applicant claim As Applicat can't take a risk of his little baby girl and his partner staying in India as far he know its a real risk over there. 4. The Second Respondent made Jurisdictional error by filling to consider an integer of the Applicant claims as India have their own Maoist problem in most of the part of India which will put Applicant in real risk of life. 5. The Second Respondent made Jurisdictional error by filling to consider as Applicant claims these are several incident regarding Nepalese people staying in India having lots of problems with discrimination on base of caste, religions, an colour etc. 11 On 4 July 2016, a Judge of the FCCA dismissed the application: see SZUHM v Minister for Immigration and Border Protection [2016] FCCA 1578. 12 Although the primary judge found that the applicant had a satisfactory excuse for the short delay (six days) in seeking judicial review, he was not persuaded that the applicant had reasonable prospects of demonstrating that the Tribunal's decision was affected by jurisdictional error. He therefore could not conclude that it was in the interests of the administration of justice that the application be granted: J[12], [13] and [32]. In reaching this conclusion: (1) The primary judge noted the two questions posed by s 477(2). First, whether a written application had been made to the Court specifying why the applicant considers that it is in the interests of justice that the application for an extension of time be granted; he found that this requirement had been satisfied. Second, whether it is in the interests of the administration of justice that the extension be granted, noting that this depended on whether there was a satisfactory explanation for the delay and whether the allegations made in the substantive application for judicial review have reasonable prospects of success: J[6]-[7]. (2) Under the heading "Reasonable prospects of success", the primary judge referred to s 474 of the Migration Act and the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 and noted that a finding of jurisdictional error by the Tribunal is the only basis on which the FCCA can set aside a decision of the Tribunal: J[12]. (3) The primary judge set out the applicant's claims to protection before the first and second Tribunal, as summarised by the Minister in his written submissions. He noted that the Tribunal had expressed doubts about the credibility of the applicant's account but that ultimately the Tribunal did not find it necessary to reach conclusions on whether the applicant satisfied ss 36(2)(a) or 36(2)(aa) because of its findings concerning the availability of safe third country protection in India: J[14]-[17]. (4) The primary judge then set out the five grounds in the applicant's application and ss 36(3), 36(4) and 36(5) of the Migration Act: J[18]-[19]. (5) Under the heading "Allegations generally", the primary judge stated that the grounds in the application invited the FCCA to review the merits of the visa application, something which "the Court is not empowered to do" and found that "[t]o that extent" they did not disclose a basis for setting aside the Tribunal's decision. Nevertheless, "some matters" arising out of the allegations in the application and the applicant's submissions at the hearing required specific consideration: at J[21]-[22]. (6) The primary judge then addressed the relevant matters under specific headings, including the "Situation in India" at J[23]-[26] where he commented on the applicant's complaints concerning country information and the Tribunal's conclusions based on the available country information; "Concerns for wife and daughter" at J[27]-[28]; "Fear of Indian Maoists" at J[29]; and "Other matters - practical reality" at J[30] where he dealt with an issue concerning the Tribunal's reference to the "practical reality" of the applicant's right to enter and reside in India in the context of the decision of the Full Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91.

Application to this Court 13 The applicant's originating application to this Court for relief under s 39B of the Judiciary Act 1903 (Cth) was recorded as filed on 21 July 2016. In an affidavit filed in support of the application, the applicant states the following (as written): … 4. I saw His Honour Judge Cameron made Judricial error because he mistook a claim that the second Respondent had failed to deal with an integor of claim with an attempt to seek merits review. 5. I ask for relief to be granted. 14 In written submissions, the applicant confirmed that his complaint to this Court is that the primary judge committed a jurisdictional error by failing to accept ground 3 of the application to the FCCA (Third Ground). 15 Relevantly to the Third Ground, the primary judge made the general findings concerning impermissible merits review at J[21]-[22] (summarised at [12(5)] above) and went on to say at J[26]-[28]: 26. Additionally, both in the application and in his address to the Court the applicant contended that it was not safe for him to go and live in India. He submitted in this connection that neither he nor his family would enjoy there the quality of life, including the access to medical care, which they enjoy in Australia; in particular they would not have the same rights as Indian citizens. Those submissions invited impermissible merits review and so did not disclose a basis to set the Tribunal's decision aside. Concern for wife and daughter 27. It is not apparent that the applicant made any claims concerning the significance for his wife of a move to India although he did tell the Tribunal that it would be more difficult for him with a wife and child, presumably in comparison to living there alone. As a result the allegation that the Tribunal did not consider a claim related to the applicant's wife cannot be made out. 28. The applicant did express to the Tribunal concerns for his daughter and her need for continuing medical treatment but did not do so in the context of an associated fear of Convention-related persecution. To the extent that these concerns might have reflected a claim by the applicant to fear significant harm, the Tribunal considered the issue at para.36 of its reasons. 16 The Tribunal said at [36] of its Decision Record: [36] The applicant raised no other concerns about being able to live in India, apart from saying it would be more difficult for him now that he has a wife and child. He said that, if it were not for his political background, he would be able to live there. He did raise concerns that his daughter, who has some medical problems, would not be able to obtain equivalent medical care in India to that which is available in Australia. He did not raise, however, any matters which would indicate that there is a real risk the applicant will suffer significant harm (within the meaning of s. 36(2)(aa)) in India arising out of his daughter's condition. 17 The primary judge noted that the applicant had written to the Court via email dated 25 June 2016 regarding his daughter's health. As the submission was made without leave, it was not considered, but the primary judge found that in any event it went to the merits of the Tribunal's decision, not jurisdictional error by the Tribunal: J[31].

Submissions 18 The applicant's written submissions to this Court explained (as written): 12. … in the Court below the applicant had attempted to raise the argument that his infant daughter, who was born in Australia in December 2012, had claims of her own that, if accepted, may have entitled her to a Protection visa. On the basis that the other factors relevant to the Court's discretion to extend time under s.477(2) were determined in favour of the applicant, it is submitted that that had the Court properly characterised and determined the third ground of the judicial review application before it, the Court might have ordered the extension of time. 13. The decision of the Tribunal itself was affected by jurisdictional error in that it failed to consider whether the applicant's daughter had a Convention-related fear of harm or if there were substantial grounds for believing that as a reasonably foreseeable consequence of the applicant's daughter being removed from Australia to India that she would suffer significant harm. 19 Counsel for the applicant acknowledged that it was beyond the jurisdiction of this Court in proceedings initiated under s 39B of the Judiciary Act to determine whether the Tribunal had made a jurisdictional error or to make orders quashing the Tribunal's decision but he nonetheless submitted that it had and went on to provide detailed submissions, on the basis that they were arguments which the FCCA should take into account if the matter was remitted. Counsel submitted that the daughter's claims ought to have been considered by the Tribunal because, under reg 2.08 of the Migration Regulations 1994 (Cth), the daughter was taken to have applied for a visa at the time of her birth in December 2012. This argument relies on reg 2.08(1)(b) which provides the temporal determinant for when a child born to a visa applicant is taken to have applied for a visa, the child having been born "after the [parent's visa] application is made, but before it is decided". Counsel for the applicant submitted that even though the daughter was born after the delegate's decision not to grant the applicant a protection visa, his application had not been "decided" because the second Tribunal made its decision after she was born. Counsel for the applicant submitted that s 349 of the Migration Act empowers the Tribunal to exercise all of the same powers and discretions as those conferred on the primary decision maker (as does s 415 in relation to protection visa applications), and there is no statutory impediment to the Tribunal considering the daughter's application even though no decision was made by a primary decision maker in relation to her. 20 Counsel submitted that by characterising the Third Ground as seeking merits review at J[21]-[22], the primary judge erred by failing to find that the Tribunal should have, but did not, consider whether on the evidence before it the daughter had protection claims. This error was enshrined in the primary judge's findings at J[27]-[28] because the primary judge did not turn his mind to the question of whether the argument that the daughter had protection claims of her own and that the Tribunal erred in failing to consider those claims had reasonable prospects of success. The applicant says that this mischaracterisation informed the purported exercise of the primary judge's discretion under s 477(2) and that this is a jurisdictional error as described by the High Court in Craig v South Australia (1995) 184 CLR 163 (Craig) at 177: If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. 21 Counsel for the applicant acknowledged that the applicant's claim in relation to the Third Ground did not rely on words said by the applicant at the hearing of his application in the FCCA or on the transcript of those proceedings; he relied "solely upon the articulation of that ground". Counsel did not suggest that any argument was made before the primary judge concerning the application of reg 2.08. Rather, he relied on an interpretation of the words of the Third Ground as written which he said the primary judge failed to apprehend. Counsel submitted that the primary judge should have understood this to be the basis of the Third Ground in light of the words "applicant can't take a risk of his little baby girl and his partner staying in India" and the evidence before the Tribunal. Counsel submitted that the primary judge should have explored any ambiguity in the Third Ground with the applicant to establish what it was he was trying to say. 22 In summary the Minister submitted that: (1) The Third Ground did not assert that the daughter had claims for protection of her own but instead asserted that the Tribunal made a jurisdictional error by failing to consider the applicant's claim that, given the risk of harm, he could not reside in India with his wife and child. The primary judge did not mischaracterise the applicant's claim and no claim of jurisdictional error by the Tribunal of the kind asserted by the applicant in this Court was made in the FCCA. (2) The Minister accepted the applicant's concession that where the application to this Court is made under s 39B of the Judiciary Act in relation to a decision made by the Tribunal reviewable by the FCCA under s 476 of the Migration Act, this Court does not have jurisdiction to quash the Tribunal's decision for jurisdictional error. In any event, the applicant's interpretation of reg 2.08(1)(b) is wrong: the relevant "decision" is that of the Minister's delegate and s 412(2), which provides that an application for review to the Tribunal "may only be made by the non-citizen who is the subject of the primary decision", is an impediment to the exercise of the Tribunal's jurisdiction under s 414(1) in relation to the daughter. (3) Even if the Court accepted that the primary judge mischaracterised the Third Ground, the error alleged by the applicant does not amount to jurisdictional error.

Consideration 23 This is an application under s 39B of the Judiciary Act in relation to a decision of an inferior court. In disposing of such an application, the Court must be alert to the considerations which apply to such an application compared to an application for judicial review of a decision of an administrative decision maker or an appeal from a decision of an inferior court. 24 In general terms, an inferior court will make a jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist: see Craig at 177. The applicant conceded that the primary judge did not err in his understanding of his task under s 477 as set out at J[6]-[7]. 25 While the line between jurisdictional error and appellable error by an inferior court can be difficult to discern and the principles enunciated in Craig at 179-180 do not purport to be exhaustive, they do provide guidance: In contrast [to a Tribunal], 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. Similarly, 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 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. 26 The passage from Craig relied on by the applicant to found his contention of jurisdictional error by the primary judge (see [20] above) is an example given by the High Court of jurisdictional error which occurs when an inferior court, acting wholly within the general area of its jurisdiction, does something that it lacks authority to do. That is not the case here. 27 Interpretation of the proposed Third Ground of review is something which the primary judge had authority to do under s 477 so that he could determine whether the grant of an extension of time to pursue that ground was necessary in the interests of the administration of justice having regard to its prospect of success. An error by the primary judge in interpreting a proposed ground of review may properly found an appeal, but these proceedings are not an appeal nor does an appeal lie from a decision made by the FCCA under s 477 by reason of s 476A(3) of the Migration Act. Even if I were to accept that the primary judge misinterpreted or failed to identify properly the issue raised by the Third Ground with the result that he was wrong in his conclusion regarding its prospects of success of that ground, I do not accept the applicant's contention that this would constitute a jurisdictional error. 28 It is therefore unnecessary and inappropriate for me to consider whether the Tribunal committed a jurisdictional error by failing to consider whether the daughter is taken to have applied for a visa having regard to reg 2.08. It is also unnecessary for me to decide whether the primary judge did in fact misinterpret Ground Three, although I do not think that he did in light of the plain words of the ground that "Second Respondent made Jurisdictional error by filling to consider an integer of the Applicant claim" (as written) and counsel for the applicant concedes that the arguments as articulated by him in this Court were not made before the primary judge.

Disposition 29 I will dismiss this application and order that the applicant pay the Minister's costs as agreed or taxed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.