SZVMA v Minister for Immigration and Border Protection

1. The appellants be granted leave to amend the notice of appeal in terms of the draft amended notice of appeal dated 26 May 2017.
2. The Federal Circuit Court of Australia be added as the third respondent.
3. The appeal be dismissed.
4. The first and second appellants pay the first respondent's costs, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BARKER J: 1 I invite Justice Robertson to deliver the first judgment.

ROBERTSON J: 2 On 4 April 2016, a judge of the Federal Circuit Court of Australia made orders which included refusing the applicants' application for an extension of time to bring judicial review proceedings of a decision of the then Refugee Review Tribunal made on 24 July 2014. That Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants protection visas. 3 No appeal lay from that decision of the Federal Circuit Court of Australia: s 476A(3)(a) of the Migration Act 1958 (Cth). 4 By application dated 2 May 2016, SZVMA and other members of his family applied for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the judge of the Federal Circuit Court of Australia. 5 On 31 August 2016, a judge of this Court, the Federal Court of Australia, made orders dismissing that application. 6 There is now an appeal to the Full Court. 7 The notice of appeal was in the following terms, omitting particulars: Ground 1 - Unreasonableness - Denial of the Extension of Time 1. The decision by the Justice below to deny the applicant an extension of time was unreasonable. Ground 2 - Jurisdictional Error of Law - Arguable Case 2. The Justice below erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question by finding that the appellants did not raise an arguable case. 8 It may be seen at once that these grounds are misconceived. The primary judge, referred to in the grounds of appeal as the "Justice below", did not deny "the applicant" an extension of time and did not find that the appellants did not raise an arguable case. Instead, her Honour found that there was no jurisdictional error on the part of the judge of the Federal Circuit Court in refusing an extension of time. 9 On the morning of the hearing of the appeal, counsel for the appellants provided amended grounds as follows, omitting particulars: Ground 1 - Unreasonableness - Denial of the Extension of Time 1. The Justice below erred at [33] of the judgment of the Federal Court of Australia by finding that the primary judge was correct to deny the appellants an extension of time at [17] of the judgment of the Federal Circuit Court of Australia, which went beyond a mere error within jurisdiction and amounted to constructive failure to exercise power and jurisdictional error. Ground 2 - Jurisdictional Error of Law - Arguable Case 2. The Justice below erred at [37] of the judgment of the Federal Court of Australia by finding that the primary judge was correct to find the appellants did not raise an arguable case at [20] of the judgment of the Federal Circuit Court of Australia, which went beyond a mere error within jurisdiction and amounted to constructive failure to exercise power and jurisdictional error. 10 The Court granted the appellants leave to amend. In my opinion however, these grounds are also misconceived. The judge of this Court did not find that the primary judge was correct but found that there was no jurisdictional error on the part of the primary judge. This is a fundamental distinction where what was sought before the judge of this Court was judicial review of the decision of the judge of the Federal Circuit Court for jurisdictional error. 11 The grounds of the application for judicial review before the judge of this Court were as follows, omitting particulars: Ground 1 - Unreasonableness - Denial of the Extension of Time 1. The decision by the primary judge to deny the applicant an extension of time was unreasonable. Ground 2 - Jurisdictional Error of Law - Arguable Case 2. The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question by finding that the applicant did not raise an arguable case. 12 The references in these grounds to "the primary judge" are to the judge of the Federal Circuit Court of Australia. 13 In my opinion, the appellant should not be permitted to go beyond these grounds in seeking to establish error on the part of the judge of this Court in finding no jurisdictional error on the part of the primary judge. 14 The judge of this Court noted, at [28]-[29], the Minister's submissions and, at [30], accepted those submissions. Her Honour found, at [40], that the applicants had not established jurisdictional error on the part of the judge of the Federal Circuit Court of Australia. 15 The submissions her Honour accepted were that the application ought be dismissed, having regard to the approach taken by the High Court in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-178 and more particularly in this context by judges of this Court in SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [43]-[53] per Foster J and SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [35]-[51] per Griffiths J (affirmed on appeal by the Full Court (Allsop CJ, Flick and Bromwich JJ) in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456). These cases highlight the need to distinguish between judicial review for jurisdictional error of a decision of an inferior court as opposed to an administrative tribunal or decision-maker. 16 In her Honour's summary, at [29], the submissions were: (1) The primary judge had jurisdiction to hear and dispose of the application for an extension of time. The resolution of that issue lay within the authority of the primary judge. (2) The primary judge correctly recognised that the discretion conferred under s 477(2) to extend time is a "broad one" and he correctly addressed the statutory task by considering relevant factors. The finding that the applicants' explanation for delay was unacceptable was open to him. Even if the primary judge found that the merit of the application for judicial review of the Tribunal's decision was "arguable" but "not compelling", it remained a matter for him to balance that consideration with the other matters which he viewed as significant. (3) In doing so, the primary judge did not misconstrue his task or the extent of his powers. (4) There is no need for this Court to undertake a detailed review of the Tribunal's decision. This is not review in the nature of an appeal: even if the primary judge was wrong in his assessment of the merits of the proposed application for judicial review of the Tribunal's decision, such an error would be within jurisdiction, it is not a jurisdictional error. (5) The passages of MIC v Li on which the applicants rely relate to the supervisory role of the Court in relation to administrative decisions, not judicial review of decisions of inferior courts. The primary judge's refusal to extend time did not lack any evident or intelligible justification; the decision was not "unreasonable" on any standard: see the reasons of Griffiths J in SZUWX at [73]-[75]. 17 The judge of this Court referred, at [31], to the terms of s 477(2) of the Migration Act. Section 477 provides, relevantly, as follows: 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) 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. 18 At [33], the judge of this Court said that the finding by the primary judge that the applicants' reason for delay in seeking judicial review of the Tribunal decision was unsatisfactory, was plainly open to the primary judge and accorded with authorities which recognise that observance of legislated time limits is an important aspect of the administration of justice. Her Honour applied Parker v R [2002] FCAFC 133 at [6]-[7] and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; 212 ALR 520 at [16]-[24], amongst other authorities. 19 At [37] and following, her Honour noted that counsel for the applicants expended considerable effort in seeking to persuade her Honour that the Tribunal committed jurisdictional error. However, her Honour said, this was not an appeal but an application for judicial review of a decision of a judge of an inferior court. Even if the primary judge was wrong in his assessment of the merits of the application as "arguable" but "not compelling", that would be an error within jurisdiction. Her Honour had regard to the principles enunciated by the High Court in Craig summarised and cited by Griffiths J in SZUWX at [46], [49] and [50]. Her Honour rejected the submission that if the merits of the application for judicial review of the decision of the Tribunal was "arguable", then the primary judge was compelled to grant an extension of time whatever the length of delay or the reason for it. 20 Her Honour adopted the conclusion of Griffiths J in SZUWX at [57] and [77], as follows: … The applicant's contention fails to give effect to the breadth of the discretion conferred upon the FCCA under s 477(2) and also fails to grapple with the important fact that it was a Judge and not an executive officer who had to determine whether or not time should be extended. It was essentially a matter for the primary judge to determine and assess what were the relevant considerations to be weighed in determining whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. In determining which matters were relevant or not it might be expected that the primary judge would have regard not only to the subject matter, scope and purpose of the legislation, but also to the parties' submissions. That is not to say, however, that a consideration becomes a mandatory relevant consideration merely because one of the parties has raised it. … even if the primary judge's finding of "arguability" is unqualified, it remained a matter for his Honour to balance that consideration with other matters which he viewed as significant, namely the lack of a sufficient explanation for the delay and the interest of the administration of justice. Whatever standard of "unreasonableness" is applied, it was not unreasonable for the primary judge to conclude that, having regard to other relevant circumstances, the fact that the proposed grounds of review were "arguable" was insufficient of itself to warrant time being extended under s 477(2) of the Act. The applicant's proposition that, having found that there was an arguable case, it was always in the interests of the administration of justice to make the order is untenable. As I have noted at [15] above, the Full Court dismissed an appeal from the judgment of Griffiths J. I also note that Griffiths J, at [51] expressly considered Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. I would add to that reference what was said in Kirk at [72]-[73], as follows, omitting footnotes: First, the Court [in Craig] stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into 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" (emphasis added). Second, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Third, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union. … it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. 21 I see no appellable error on the part of the judge of this Court in dismissing the application for judicial review of the primary judge's discretionary judgment. Plainly, the judge of the Federal Circuit Court, at [12], correctly understood the nature of the discretion under s 477(2) but was not satisfied that it was necessary in the interests of the administration of justice to make the order extending time. That judge concluded, at [17], that a satisfactory explanation for the delay in coming to that Court had not been advanced. His Honour went on to consider whether the case was one where the interests of the administration of justice nevertheless compelled the granting of an extension of time. He concluded, at [20], that the argument that the Tribunal overlooked relevant material or a relevant consideration was not strong. It appears that that judge reached a similar conclusion in relation to the argument based on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 that because the second applicant already wore the hijab, she could achieve a level of safety by continuing to do so. In that respect I note that the Tribunal, at [46], said that the mother applicant submitted a Part D for form 866 stating that she had no claims of her own and she did not attend the Tribunal hearing or the Departmental interview and had not advanced any claims of her own. At [53], the Tribunal said: The Tribunal discussed this country information with the applicant (as the mother applicant failed to attend the hearing). In response the applicant stated that she would not be permitted to drive a car and would have to wear the hijab. When the Tribunal put to him that her photograph shows her already wearing the hijab he stated that he had no comment in relation to this. 22 In written submissions dated 26 May 2017, the appellants contended that the primary judge, the judge of the Federal Circuit Court, "committed jurisdictional error as opposed to mere error within jurisdiction" by finding: (a) the appellants "did not advance a satisfactory delay in coming to Court" and that "while it is possible the Tribunal put a gloss on the country information" the arguments were not strong; (b) that it was "certainly possible the Tribunal was wrong in its interpretation… of the risk faced by the second applicant" but "they do not compel a conclusion by the Court that that an extension of time should be granted…"; (c) (sic) the appellants contend that it was "unreasonable exercise of the discretion" for the primary judge to refuse an extension of time; (d) (sic) the appellants contend that the Federal Circuit Court misconceived the nature of its function or the extent of its powers when considering whether it was necessary in the interests of justice to grant the extension of time sought by the appellants. 23 In my opinion, none of these matters establish jurisdictional error on the part of the primary judge, the judge of the Federal Circuit Court. The primary judge formed the opinion that the delay was a not insignificant delay and formed the further opinion that the explanation for it proffered was not, to his mind, a convincing one. He regarded the explanation proffered as not persuasive. It was in those circumstances that the primary judge concluded, at [17], that a satisfactory explanation for the delay in coming to that Court had not been advanced. His Honour then went on to consider whether the claims of jurisdictional error on the part of the Tribunal were such that the interests of the administration of justice compelled the granting of an extension of time. In that context the primary judge considered the arguments and, at [19], formed the opinion that the grounds advanced, while arguable, were by no means compelling. His Honour concluded at [20] that, in relation to country information, the argument that the Tribunal overlooked relevant material or a relevant consideration was not strong: the conclusions reached by the Tribunal were open to it. The primary judge reached a similar conclusion in relation to the claim of error, based on Appellant S395/2002, in relation to the second appellant's wearing of the hijab. 24 I reject the submission that the judge of this Court erred by finding that the decision of the primary judge was "plainly open to the primary judge and accords with authorities which recognise that observance of legislated time limits is an important aspect of the administration of justice". I also reject the submission that the judge of this Court erred by finding that even if the primary judge was wrong in his assessment of the merits of the application that would be an error within jurisdiction. 25 The appellants also submitted, in the written submissions dated 26 May 2017 at [13], that the Federal Court should not adopt a different standard in relation to the performance by the Federal Circuit Court in its function of judicial review than it has adopted in relation to its own scrutiny of administrative tribunal decisions. If this submission is to the effect that this Court should depart from Craig and Kirk, I reject it. The dicta of Kirby J in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [86], cited by the appellants at [13], were part of a dissenting judgment. 26 In my opinion, the appeal should be dismissed, with costs.