FEDERAL COURT OF AUSTRALIA SZSZW v Minister for Immigration and Border Protection [2017] FCA 1544 Appeal from: SZSZW v Minister for Immigration and Border Protection [2017] FCCA 1710 File number(s): NSD 1456 of 2017 Judge(s): PERRY J Date of judgment: 18 December 2017 Catchwords: MIGRATION – application for judicial review of decision by Federal Circuit Court refusing extension of time under s 477(2), Migration Act 1958 (Cth) – whether Federal Circuit Court wrongly undertook fulsome examination of proposed ground of review of Tribunal's decision and not assessment of likely merits at a reasonably impressionist level – application dismissed Legislation: Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36, 46A, 477 Federal Court of Australia Act 1976 (Cth) s 31A Cases cited: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 DMI16 v Federal Circuit Court of Australia [2017] FCA 1179 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Jackmarra v Krakoer (1998) 195 CLR 516 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 Spencer v Commonwealth (2010) 241 CLR 118 SZSZW v Minister for Immigration [2015] FCA 562 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 Date of hearing: 14 December 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr L Karp Counsel for the first Respondent: Mr C Lenehan and Mr B Hancock Solicitor for the first Respondent: Sparke Helmore ORDERS NSD 1456 of 2017 BETWEEN: SZSZW Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRY J DATE OF ORDER: 18 December 2017 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRY J: 1. INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision by the Federal Circuit Court (the Court below). By that decision, the Court below refused the applicant's application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act) within which to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the decision not to grant the applicant a protection visa. 2 The applicant contends that the primary judge fell into jurisdictional error in considering the application for an extension of time because he conducted "a fulsome examination of the Tribunal's reasons, and in effect reached a decision, not on whether the substantive application was arguable or reasonably arguable, nor on a [sic] 'an examination of the grounds at what should be a reasonably impressionistic level'". 3 For the reasons set out below, no error has been established and the application must be dismissed. 2. BACKGROUND 4 The applicant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia by boat on 7 March 2012 and pursuant to a direction made by the Minister under s 46A(2) of the Act, lodged a protection visa application on 22 June 2012. The applicant claimed to fear kidnap, torture and possibly murder if returned to Sri Lanka on suspicion of his association with the Liberation Tigers of Tamil Eelam (LTTE). This fear was said to be increased by the fact that he had visible scarring. He also claimed to fear danger as a returned asylum seeker. 5 The applicant's visa application was dismissed on 7 November 2012 and his application for review was lodged with the Tribunal on 16 November 2012. In the Tribunal, the applicant's migration agent referred to evidence that returned asylum seekers may be the victims of extortion in the context of a claim by the applicant that he would be at risk of serious harm because of his identity as a returned Tamil failed asylum seeker from Australia. The Tribunal affirmed the decision to refuse to grant the applicant a protection visa on 30 May 2013. However, the Federal Court on appeal from the Federal Circuit Court, remitted the matter for reconsideration by the Tribunal: SZSZW v Minister for Immigration [2015] FCA 562. 6 The second Tribunal sent a letter to the applicant to give evidence and present arguments at a hearing to take place on 13 January 2016, and advised him that if he did not attend the hearing, the Tribunal may decide his case without further notice. Despite SMS hearing reminders sent to the mobile telephone number provided by the applicant, he did not appear at the hearing. Nor did the applicant contact the Tribunal subsequently before it decided on 15 January 2016 to affirm the decision not to grant him a protection visa. In essence, the Tribunal found that, while the delegate and the first Tribunal accepted aspects of the applicant's evidence as credible, the second Tribunal found that it could not be satisfied that the applicant's claims were true in the absence of a hearing and where it therefore had no opportunity to assess his credibility. In particular, the Tribunal found that: 10. In addition, an important phase of the account of events on which the applicant's protection claims are based is the period lived in Jaffna after being released from camps for those displaced by the conflict. The Tribunal needed to question the applicant in detail about what difficulties he had with Sri Lankan authorities in this period and what interests they have shown in him since he left Sri Lanka. On the evidence before it, the Tribunal considers that there is insufficient detail about those particular issues. In the absence of a hearing, the Tribunal is also unable to discuss with the applicant relevant country information as to whether or not he is at risk of serious harm in Sri Lanka, including extortion, based on, more generally, his ethnicity, his former residence in areas controlled by the LTTE, his failed asylum application in Australia and on any other ground he seeks to raise. (emphasis added) 7 Accordingly, the Tribunal found that it was unable to be satisfied that the applicant held a well-founded fear of persecution on a Refugees Convention ground for the purposes of s 36(2)(a) of the Act, or that there were substantial grounds for believing that there was a real risk he would suffer serious harm so as to satisfy the criteria for complementary protection under s 36(2)(aa). 8 The applicant applied for an extension of time under s 477(2) of the Act within which to seek judicial review of the Tribunal's decision because his application was filed 16 days after the time-limit imposed by s 477(1) had expired. In this regard, the parties were agreed that the primary judge wrongly identified the delay as being 13 days at [2] of his reasons. Nothing, however, was said to turn upon that error. 9 Section 477 of the Act relevantly provides that: (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. 10 The applicant, who was legally represented in the Federal Circuit Court, identified one ground in his draft amended application which he wished to advance if an extension of time were granted, namely: The second respondent [i.e. the Tribunal] failed to consider substantial, clearly articulated submissions on the issue of whether the applicant faces a well founded fear of persecution, or a real risk of serious harm on return to Sri Lanka because he would be a returned asylum seeker. 11 As summarised by the primary judge, the applicant's counsel submitted that there was no express reference in the Tribunal's reasons to the applicant's submission that he feared harm by reason of being an asylum seeker, as well as a reference to the potential for extortion in relation to the payment of a fine in consequence of being an unlawful departee. As such, the applicant's counsel submitted below that there had been no active intellectual engagement with those submissions (FCC reasons at [10]). 12 The primary judge dismissed the application for an extension of time. The primary judge found that the applicant had not given a satisfactory explanation for the delay. However, his Honour did not regard that as determinative. Rather, his Honour considered at [8] that "the more important issue in the present case are [sic] the merits", presumably (as the applicant submitted) because the delay was short. As to the merits, his Honour found that no sufficiently arguable jurisdictional error was disclosed by the amended application to warrant an extension of time (FCC reasons at [18]). 3. CONSIDERATION 3.1 The issues 13 As earlier mentioned, the sole ground of jurisdictional error alleged against the primary judge was that his Honour approached the issue of the extension of time on the basis that the asserted ground of review had to be made out, despite his function being to decide only the application for an extension of time. As such, the applicant submitted that the primary judge misapprehended the limits of his functions and powers in the exercise of his discretion pursuant to s 477(2) of the Act. 14 For the reasons set out below, the Minister correctly submits that no error can be discerned in the manner in which the primary judge determined the extension of time application. In those circumstances, it is unnecessary for me to consider the question upon which different views have been expressed as to whether such an error would, in any event, constitute a jurisdictional error: contrast MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [68] (Mortimer J); and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [90] (Wigney J). 15 First, there was no issue between the parties as to the relevant principles. As the primary judge held at [2], in determining the extension of time application, it was necessary to take into account the principles identified by Mortimer J in MZABP (FCA) at [58]-[63]. In particular, Mortimer J considered 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 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.… If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see … Jackmarra v Krakoer (1998) 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"… (Emphasis added) 16 The Full Court approved her Honour's approach on the appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. 17 In reaching this view, Mortimer J relied among other things upon the judgment of Brennan CJ and McHugh J in Jackmarra v Krakoer (1998) 195 CLR 516 at [9] where their Honours held, relevantly: 9. One reason that an appellate court does not go into "much detail on the merits" in considering whether the time for an appeal should be extended is because ordinarily it only has "limited material and argument". Unless motions to extend time for appeals are to turn into full dress rehearsals for those appeals, appellate courts can only assess "the merits" in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. 18 Secondly, it was rightly not in issue that, in considering whether the application was "sufficiently arguable", the primary judge was not confined to a consideration of the grounds in the draft application for review but must also engage with the Tribunal's reasons. The primary judge was entitled, in other words, to explore whether the grounds have any substance: see e.g. DMI16 v Federal Circuit Court of Australia [2017] FCA 1179 at [33]-[36] (Robertson J). 19 Thirdly, contrary to the applicant's submissions, the primary judge correctly applied the approach identified by Mortimer J in MZABP: (1) The primary judge assessed the merits from the statement of the applicant's case which the primary judge described at [10]-[11], and not by reference to the opposing arguments. (2) The substantive ground which the applicant wished to raise was a failure by the Tribunal to consider an essential integer of the applicant's claim to fear persecution or serious harm as a failed asylum seeker. (3) The primary judge summarised the Tribunal's reasons. At [16] of his reasons, the primary judge found that the Tribunal referred to extortion and the applicant's failed asylum application in Australia, which his Honour considered was "clearly a reference to the submission to which Mr Karp [counsel for the applicant] referred, and reflects a genuine active intellectual engagement by the Tribunal in the determination of the application for review of the claim of being a failed asylum seeker." (4) As such, the primary judge found that "[o]n the face of the Tribunal's decision" there was no failure by it to take into account the applicant's submissions and to consider a clearly articulated submission. That approach is consistent with determining whether an application would have any merit at a "reasonably impressionistic level" in the context of an extension of time application under s 477(2) of the Act. (5) In concluding at [18] that "[n]o sufficiently arguable jurisdictional error is disclosed by the amended application to warrant an extension of time in the interests of the administration of justice", the primary judge employed the language ("sufficiently arguable") approved by Mortimer J in MZABP (FCA) to describe the correct approach. His Honour also employed the language of s 477(2)(b) ("necessary in the interests of the administration of justice") at [18] and in concluding at [19] that "[i]n the circumstances of the present case, the Court is not satisfied that it is necessary in the interests of the administration of justice to order an extension of time under s.477 of the Act." 20 Finally, in reaching the view that the primary judge's approach did not depart from that identified in MZABP (FCA), I have not overlooked that, in addition to referring to the principles in that decision, the primary judge said at [2] that he took into account the principles in Spencer v Commonwealth (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. In that decision, the High Court was concerned with the construction of s 31A of the Federal Court of Australia Act 1976 (Cth). That section provides that the Federal Court may give summary judgment for a party where it is satisfied that the opposing party has no reasonable prospect of successfully prosecuting or defending the proceeding, as the case may be. Section 31A(3) in turn provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. As such, Hayne, Crennan, Kiefel and Bell JJ held at [52]-[53] in Spencer that s 31A "departs radically" from the basis on which earlier forms of the provision had been understood, namely, as requiring that the proceeding be "hopeless" or "bound to fail" (citing Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130). It follows that Spencer is not concerned with determining the different question of whether at a reasonably impressionistic level an application would have little or no prospects of success, as an aspect of determining whether to extend time under s 477(2). Nonetheless, while the primary judge was plainly in error in referring to the principles in Spencer, it is apparent for the reasons earlier explained that his Honour did not in fact apply the principles articulated in Spencer. As such, I do not accept the applicant's submission that the reference by the primary judge to Spencer demonstrates or indicates that his Honour misunderstood the nature of his function under s 477(2) of the Act. 4. CONCLUSION 21 For the reasons set out above, the application must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 18 December 2017