FEDERAL COURT OF AUSTRALIA

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Federal Court in DHX17 v Minister for Home Affairs [2019] FCA 2150 be set aside.

2.    A writ of certiorari issue to quash the decision of the Federal Circuit Court in DHX17 & Anor v Minister for Immigration and Anor [2018] FCCA 819.

3.    A writ of mandamus issue, directed to the Federal Circuit Court, requiring it to hear and determine according to law the application for an extension of time under section 477(2) of the Migration Act 1958 (Cth).

4.    The first respondent pay the appellants’ costs of and incidental to the proceedings in the Federal Court and the Federal Circuit Court, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellants, DHX17 and DHY17, appeal from the decision of the primary judge, which dismissed an application for judicial review of a decision of a judge of the Federal Circuit Court (the FCC). Before the FCC, the appellants had sought judicial review of a decision of the Immigration Assessment Authority (the Authority) which had affirmed a decision of a delegate of the Minister not to grant them protection visas. However, they required an extension of time under s 477(2) of the Migration Act 1958 (Cth) (the Act) in which to commence those judicial review proceedings, as they had not initiated their action within 35 days of the Authority’s decision. The extension was refused by the FCC judge following a fulsome consideration of the merits of the grounds which the appellants would have advanced had it been granted. The FCC judge also dismissed the application for review which had been filed out of time.

2    The issue before the primary judge in this Court was whether the FCC judge had correctly applied s 477(2) when he refused to extend time to file the application for review. The primary judge found that the FCC judge had, in fact, misapplied s 477(2) by requiring the appellants to demonstrate the merits of their proposed grounds of review to a higher standard than the section required. However, his Honour then determined that the FCC judge’s mistake did not result in a “jurisdictional error”. His Honour further concluded that even if a jurisdictional error existed, it was not “material”. However, in this latter respect he did so, not because the error could not have resulted in the FCC judge reaching a different conclusion on the application for an extension of time, but because, so his Honour hypothesised, the outcome in the proceedings overall would not have been different.

3    The issue on this appeal is whether the learned primary judge erred in failing to determine that the FCC judge’s error in misapplying s 477(2) had the consequence that the decision to refuse the appellants an extension of time was invalidated. A subsidiary issue is whether the concept of materiality applies to the exercise of a power rather than the disposition of a matter before a decision maker.

4    Although the result in this case is that the appeal is allowed, it is important to acknowledge that the resolution of the issues were rendered substantially less difficult as a result of the perspicacious analysis of the law by the learned primary judge, much of whose reasoning in relation to the nature of the error committed by the FCC judge has been accepted.

Background facts

5    The appellants are brothers and Vietnamese nationals. Upon entry to Australia in 2013 they were “unauthorised maritime arrivals” under the Act.

6    On 7 April 2016, they lodged a combined application for Safe Haven Enterprise Visas.

7    The first appellant’s claim for protection was based upon a number of grounds including his religion, his erstwhile disputes with certain authorities and other people in Vietnam, his illegal departure from Vietnam, and status as a failed asylum seeker. The second appellant’s claim for protection is dependent upon the success of the first appellant’s claim.

8    On 15 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant protection visas to the appellants. As the delegate’s decision was a “fast-track reviewable decision”, it was automatically referred to the Authority pursuant to s 473C of the Act.

9    By a decision made on 6 February 2017, the Authority affirmed the delegate’s decision not to grant protection visas to the appellants. There is no need to consider the Authority’s reasons in detail for the purposes of the appeal. It suffices to observe that it did not accept as being true a number of the grounds advanced by the appellants in support of the contention that they would be harmed if they returned to Vietnam and, in relation to other grounds, it was found that they did not qualify the appellants for protection under either the Convention grounds or the complementary protection grounds.

10    On 24 July 2017, the appellants filed an application for judicial review of the Authority’s decision purportedly pursuant to s 476 of the Act, seeking the issuing of writs of certiorari and mandamus and also seeking declarations. The substance of the grounds advanced in support of that relief concerned alleged breaches of natural justice.

11    An amended application based on different grounds was filed on 25 January 2018. The supporting grounds related to alleged irrationality, the alleged failure to consider a ground advanced in support of the application and alleged bias.

The decision of the FCC judge

12    The application for review came on for hearing before the FCC on 28 February 2018. Counsel for the appellants applied for an adjournment of the hearing but it was refused. No complaint was made as to the correctness of that decision.

13    The FCC judge proceeded to hear the matter on that day. As the appellants had not filed their application for review within the time specified in s 477(1) of the Act, an extension of time in which to bring the application was made pursuant to s 477(2). The FCC judge dismissed that application as well as the application for review. His Honour gave ex tempore reasons for doing so. It may be that no separate interlocutory application was filed by the appellants seeking an extension of time under s 477(2), however, the learned FCC judge proceeded upon the assumption that it had.

14    The FCC judge’s reasons are discussed more fully below. For present purposes, only a brief explication of the reasons needs to be undertaken. First, his Honour noted that the application for review had been filed more than four months after the time limit prescribed by s 477(1), such that he was required to consider whether an extension of time should be granted under s 477(2). His Honour then identified what he considered were the matters which he was required to consider under subsection (2); being, what was the excuse for the failure to make the application within time; what prejudice might be suffered by the respondents; and “is there a case on the merits that ought to be argued before the court?” It appears that his Honour was prepared to assume the first two in favour of the appellants or did not regard them especially relevant in the circumstances and he focused his attention on the third. As the reasons of the learned primary judge in this Court demonstrate, in doing so, the FCC judge applied a higher standard than the authorities require in assessing whether there were any merits in the proposed grounds of review. The FCC judge concluded (at [48]) that “there was no jurisdictional error shown in this matter”, and further said, “The application would have been dismissed if it were a matter that I was dealing with on the merits”. As a result he refused the application for an extension of time in which to file the judicial review application and made orders dismissing the substantive application.

15    It is clear from the FCC judge’s reasons that his Honour fully considered the merits of the proposed grounds of review by an analysis of the substance of the grounds and the evidence which related to them.

The decision of the primary judge in this Court

16    After analysing the FCC judge’s decision, the primary judge identified what he considered were those jurisdictional errors which might vitiate a decision of the FCC as an adjudicative decision maker purportedly exercising power under s 477(2). His Honour referred to the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) and, in particular, the reasons of the plurality which articulated, in general terms, those jurisdictional errors which might be committed by an inferior court.

17    His Honour thereafter considered the nature of the considerations which are regularly taken into account in determining whether the time in which a party might commence an action under s 477(1) could be extended. In relation to the question of the merits of the grounds which a party wishes to agitate on appeal, his Honour concluded (at [35]):

In MZABP at [63], Mortimer J recognises, correctly in my respectful view, that the “correct approach” may be expressed as examining whether the ground sought to be agitated, should an extension of time be granted, is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”: SZTES v Minister for Immigration and Border Protection [2015] FCA 719, Wigney J at [48] (affirmed on appeal SZTES v MIBP [2015] FCAFC 158); SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442, Foster J at [46]-[48].

18    His Honour then considered and rejected the proposition that the FCC judge had failed to correctly identify the test for determining whether to grant an extension of time. The FCC judge had not directly mentioned the section nor its wording, however, it did not follow that he was not intending to apply the provision. As the primary judge concluded (at [66] – [73]) the FCC judge correctly identified s 477(2) as being the power which could be engaged for the purposes of extending time. However, he also concluded that the FCC judge had misapplied s 477(2) when he sought to reach a conclusion about the merits of the intended application as if he were dealing with the substantive application. His Honour recognised that the applicant was entitled to have a hearing on the merits if the primary judge was satisfied that it was necessary in the interests of the administration of justice. After considering the failure of the FCC judge to apply the correct test for considering the merits, his Honour said at [73]:

The election by the primary judge to determine the application for an extension of time on the footing that the discretion would be exercised against the applicant because the primary judge was “satisfied that there has been no jurisdictional error shown in this matter”, caused the discretion to miscarry.

19    His Honour then considered the nature of the error committed by the FCC judge and, after concluding that he had misconceived the true scope of the question, said (at [83] – [84]):

It is accurate to describe this misconception as one going to the function to be performed and the power to be exercised under s 477(2) of the Migration Act.

The apparent misconception of the function went to the root of the statutory discretionary power to be exercised because an analysis of the merits of the grounds of review in sense reflected at [48] and [49] of the primary judge’s reasons was not required by s 477(2) of the Act.

20    A little later his Honour (at [87]) said of the FCC judge’s approach:

The primary judge misconceived the limitation in the scope of the examination of the merits in exercising the discretion under s 477(2) of the Migration Act to grant or refuse to grant an extension of the 35 day period and has thus fallen into error as to the true nature of the function to be performed.

21    And at [90] further said:

The primary judge misconceived the scope of the function to be discharged in answering the question raised by s 477(2) at least so far as the merits factor is concerned and went beyond the “threshold assessment of merit” (to use the term adopted by Gageler J in EBT16 at [7]) contemplated by the authorities. In that sense, the primary judge fell into error. …

22    However, after appearing to have concluded that the FCC judge had committed one of the jurisdictional errors referred to in Kirk and the earlier decision in Craig v State of South Australia (1995) 184 CLR 163 (Craig) the primary judge then posed the question of whether the FCC exceeded its jurisdiction by concluding that it was not in the interests of justice to make an order after undertaking a full assessment of the merits (at [88]). His Honour held that it had not and said (at [98]):

Notwithstanding the expression of disquiet and the observation about the matter of principle set out at [68] in MZABP, I regard the error on the part of the primary judge in the circumstances of this case as an error within jurisdiction. I would not regard the error on the part of the primary judge of incorrectly travelling beyond the threshold assessment of merit as taking the Federal Circuit Court outside the scope of the jurisdiction it was called upon to exercise under s 477(2) as an aspect of the matters to be resolved in quelling the controversy as an exercise of original jurisdiction comprehended by s 75(v) of the Constitution as conferred on the Federal Circuit Court by s 476(1) of the Migration Act. In this case the primary judge made a mistake, put at its highest. However, even that matter needs further examination.

23    Further, the primary judge held that, even if it were assumed that the error committed by the FCC judge was a jurisdictional error, it was not material. The basis of this conclusion was that the same result would have occurred had the extension of time been granted, because the FCC judge would have dismissed the application for review in any event.

Appeal to this Court

24    The appellants’ grounds of appeal are:

1.     Having found that the Federal Circuit Court misconceived the scope of the function to be discharged when the Federal Circuit Court dismissed the Appellant’s application for an extension of time, the Federal Court erred in finding the error to be within jurisdiction.

2.    His Honour erred in finding that if the refusal to extend time was beyond jurisdiction, it was not material.

25    The Minister did not file any Notice of Contention within the meaning of r 36.24 of the Federal Court Rules 2011 (Cth) seeking to uphold the decision of the primary judge on different grounds.

Legislation

26    For the purposes of the substantive issues on this application the relevant statutory provisions are s 476 and s 477 of the Act which relevantly provide:

476     Jurisdiction of the Federal Circuit Court

(1)     Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

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 the 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.

Consideration

Ground 1

27    In support of this ground the appellants submitted that the learned primary judge erred by not finding that the FCC judge committed a jurisdictional error in circumstances where it had been concluded that the FCC judge had misconstrued what was required by s 477(2) in exercising the discretion conferred upon him. It was said that the FCC judge’s error was a misconception which went to the function he was required to perform and, as the primary judge found, that the error went to the root of the statutory discretion because the analysis of the merits of the grounds of review undertaken by the FCC judge was not required. It was submitted that, having concluded that the FCC judge acted under a misunderstanding of his function, a jurisdictional error existed and the primary judge erred in thereafter seeking to ascertain whether the error caused the FCC judge to act beyond the scope of his jurisdiction.

The grounds of judicial review available in respect of the FCC’s decision

28    It was accepted by all parties that the appellants were unable to appeal the FCC judge’s decision to refuse to grant an extension of time in which to apply for review of the Authority’s decision. The only avenue available to the appellants was by way of s 39B of the Judiciary Act 1903 (Cth) and to apply under s 476 for judicial review of the FCC judge’s decision on the basis that it was invalid by reason of jurisdictional error. In this respect it is appropriate to keep in mind that the FCC is an inferior court and its decisional freedom and corresponding immunity from jurisdictional error is broader than that of an administrative decision maker: SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 (SZUWX), 459 [20]. This was made clear in Craig at 179 – 180 where the High Court said in relation to the difference between administrative decision makers and inferior courts:

In contrast, 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.

29    On the other hand it was accepted that the decision of an inferior court might be vitiated by reason of a jurisdictional error and, earlier in it reasons (at 177 – 178), the High Court had described the occasions in which that might arise:

Jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

(Footnotes omitted)

30    Subsequently in Kirk the nature of jurisdictional error in the context of inferior courts was summarised as follows at [72] and [73]:

First, the Court stated (at 177), 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). Secondly, the Court pointed out [(at 177)] 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.) Thirdly, the Court amplified [(at 177-178)] 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 [(at 178)] 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.

As this case demonstrates, 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.

(Footnotes omitted)

31    The emphasis by the Court that the articulation of the various grounds in Craig is not an exhaustive statement of the jurisdictional errors which may invalidate the decision of an inferior court, is important (see also Kirk at 558 – 561 [29] – [34]). However, whilst there may be no rigid taxonomy of jurisdictional error, the observations in both cases tend to define or delineate some of the boundaries beyond which an inferior court will act in excess of its jurisdiction. For instance, it can be concluded that the inferior court misconstrued the relevant statutory power it was intending to exercise and thereby misconceived the nature of the function it was performing or the extent of its powers, it must necessarily have acted beyond its authority.

The nature of the power in s 477(2)

32    In order to ascertain whether the FCC judge’s reasons involved jurisdictional error it is necessary to consider the nature of the power in s 477(2) and any express or implicit constraints on its use.

Is the discretion conditioned upon the satisfaction of a jurisdictional fact?

33    The structure of s 477(2) is, perhaps, not as simple as it may first appear. On one view, the clause may be construed so that the discretion in the chapeau is enlivened only upon the satisfaction of the matters in paragraphs (a) and (b). Here the parties appeared to proceed upon the basis that there was no issue that paragraph (a) had been satisfied although what constituted the application in writing was not particularly clear. That said, it does not appear that the application need be a formal application and the written submissions may have sufficed in that respect. It might also be the case that satisfaction of the matter in that paragraph ought not to be construed as essential to the enlivening of the discretion and, as such, is not a jurisdictional fact. That construction might arise because the matter is largely procedural and one which occurs in a curial setting where it is accepted that Courts are usually capable of waiving compliance with such requirements. It is not necessary to reach a conclusion about this question as it was not raised by either of the parties.

34    The matter referred to in paragraph (b) is of a different nature. At first blush, the use of the conditional conjunctive, “if” in the chapeau of the subsection suggests the discretion is conditional upon the FCC being satisfied that it is necessary in the interests of the administration of justice to extend time. However, the construction of provisions of this nature and structure is a matter of substance and not form: a useful discussion as to the approach to construing this type of provision is to be found in Professor M Aronson’s article, “The Resurgence of Jurisdictional Facts” (2001) 12 PLR 17, 17 – 18. As that discussion demonstrates, much will be derived from “having regard to the context of that statutory formulation and the purpose or objective underlying the legislation”: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, 64 [39]. In the present context it is apt to recognise that courts are rather less willing to recognise the existence of jurisdictional facts in relation to the conferral of power on inferior courts: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391: or adjudicative bodies than in relation to the conferral of similar power on the executive.

35    Perhaps the overwhelming characteristic of s 477(2) is that, if the requirement in paragraph (b) is met so that the FCC is satisfied that it is in the interests of the administration of justice to make an order extending time, it is difficult to identify any occasion on which it could then refuse to extend time as a matter of its discretion. It might follow that the preferable construction of s 477(2) is that the Court may, in the exercise of its discretion, extend the 35 day period for bringing proceedings to the extent that it is considers necessary in the interests of the administration of justice. In that sense, the subject matter of paragraph (b) is, in fact, part of or a necessary consideration in the discretion’s exercise.

36    There is some tacit support for that construction in the various authorities and, in particular, in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (MZABP) and on appeal in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 (MZABP(FC)). Whilst these decisions are discussed in greater detail below, for present purposes it is appropriate to note that Mortimer J and the members of the Full Court assumed that the issue of the merits of the proposed review grounds were relevant to the exercise of the discretion and not to any antecedent step concerning whether or not the court was satisfied that it was in the interests of justice to make an order extending time. A similar approach was taken by the primary judge in this case in that he identified that the adoption of the more stringent test as to the merits of the proposed grounds of review, caused the discretion to miscarry.

37    On the other hand in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 (SZTES) the Full Court suggested at [58] that the formation of satisfaction under s 477(2) is a “pre-condition” to the power to make an order extending time. The observations in SZTES were applied by Charlesworth J in AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 at 420 [75], where her Honour said that the text, structure and context of s 477 support that construction on the basis that the FCC may grant an extension only if satisfied that it is necessary in the administration of justice. However, that same view was not embraced by Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 (BVW17) at [65].

38    Despite the section’s wording and the existence of possible arguments to the contrary, it would appear that the preferable construction is that s 477(2) confers a discretion on the FCC to extend time for the making of an application for review to the extent the court considers it necessary in the interests of the administration of justice to do so. As the parties before the Court essentially advanced their submissions on the basis that the question of the merits of the proposed grounds of review went to the exercise of the FCC judge’s discretion and not any state of satisfaction, it is appropriate to decide the case on that basis.

39    Consequent on that construction, the alleged jurisdictional error in this case was characterised in, at least, two ways. First, that the consideration of the merits of the proposed grounds of review on a more extensive basis than was required, was to take into account an irrelevant consideration in the exercise of the discretion. Second, it was said that consideration of the merits in that manner demonstrated that the FCC judge misconstrued s 477(2) and thereby misconceived the nature of the function which he was performing or the extent of his powers in the circumstances of the particular case. It is appropriate to consider those submissions in turn.

Obligation to take into account relevant considerations

40    In relation to the initial characterisation of the error, Ms Graycar for the Minister submitted that the discretion in s 477(2) is not confined by the obligation to take into account any expressly stipulated considerations. She further submitted that no implied mandatory considerations existed either. In support of that, reliance was placed on the decision of the Full Court in SZUWX. There, Bromwich J held that there was nothing in the subject matter, scope and purpose of s 477(2) to suggest that a FCC judge was required to take any particular matter into account when determining whether to extend time other than whether it is in the interests of the administration of justice to do so. The Chief Justice and Flick J agreed with the reasons of Bromwich J. However, Allsop CJ went on to add at 459 [21]:

The question of whether an error is jurisdictional is, and always will be, context-specific as cases such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 make clear.

41    The observations of Bromwich J were adopted by Mortimer J in BVW17 where her Honour held that a failure of the FCC to take into account any explanation for delay was an error by the FCC judge, albeit not a jurisdictional one. At [62] her Honour said:

However there is nothing in the scope, subject matter and purpose of s 477(2) which gives rise to an implication that Parliament intended that adequate and genuine consideration of any explanation for the delay was to be a matter conditioning the exercise of power to extend time, independently of the stated precondition in s 477(2)(b).

42    Conversely, Charlesworth J in AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401 (AZAFX) had held that in the exercise of the power under s 477(2) the FCC judge had taken into account an irrelevant consideration being the substantive merits of the proposed judicial review grounds.

43    The decision in SZUWX has been followed on a number of occasions and the appellants did not submit that it was wrong. In those circumstances, the appropriate course is to avoid characterisation of the FCC judge’s error in terms of whether the expansive consideration of the merits of the appellants’ grounds involved the taking into account of an irrelevant consideration.

Misunderstanding of function leading to an excess of jurisdiction

44    However, it does not follow from the foregoing that the failure by the FCC judge to correctly exercise his discretion under s 477(2) will not result in jurisdictional error. As previously alluded to, it is possible that the magnitude of an erroneous approach to the exercise of the power indicates that the FCC judge misapprehended or disregarded the nature or limits of his functions or powers. Here it was submitted that such an error was revealed by the FCC judge undertaking a substantive analysis of the merits of the appellants’ proposed grounds of review. It was submitted that whilst an impressionistic consideration of the grounds was appropriate, the extensive analysis of their veracity as if they were being determined at a hearing of an application for review, indicated that the Court had misunderstood its function.

45    This submission was founded upon the approach adopted by Mortimer J in MZABP. The issues in that case were substantially similar to those in the present. The FCC had refused the applicant an extension of time within which to apply for judicial review of a decision of the Refugee Review Tribunal (RRT) affirming the decision of a Minister’s delegate to refuse the grant of a protection visa. Before the Federal Court the applicant sought to argue that the FCC had made a jurisdictional error by misconstruing the power under s 477(2). In a manner similar to the present case, it was alleged that the FCC proceeded upon the basis that it would be in the interests of the administration of justice to extend time only if it were persuaded that the appellant “could succeed” on any of the proposed grounds of review. It was submitted that the FCC should only have determined whether any of the grounds of review were “reasonably arguable or had reasonable prospects of success”. Mortimer J held that as this issue had not been raised by the applicant until the submissions in reply it could not be considered by her as a ground of review. However, her Honour expressed disquiet about the manner in which the FCC had approached the question of the merits of the proposed grounds of review. In that respect she said (at [62] – [63]):

[I]t 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) 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).

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 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.

46    Mortimer J identified that the erroneous approach to the application of s 477(2) may have resulted from the practice of combining the hearing of an application for an extension of time with the hearing of the application (citing SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES), [102]). Her Honour then proceeded to consider whether the FCC’s approach could be characterised as it exceeding its jurisdiction within the meaning of the principles referred to in Kirk at [72] – [73]. It was observed that in Kirk the plurality held that the misconstruction of a statute which leads a court to misapprehend the limits of its powers should be properly characterised as an error which was jurisdictional in nature. Mortimer J then postulated that, if in the case before her, the primary judge had taken the approach that it would only be “in the interests of the administration of justice” to extend time if persuaded that a ground of review would succeed, that would be a misunderstanding of the discretion in s 477(2) and amount to a misapprehension of the nature of the power conferred.

47    On appeal the Full Court, perhaps, gave tacit approval to Mortimer J’s observations although it was accurately recognised that those matters were not relevant to the issues before her.

48    Mortimer J’s observations were, to some extent, also cited with approval in DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64 at 75 [57] and 81 [95] per Rangiah J (Reeves and Bromwich JJ agreeing). That said, nothing in that case suggested that the failure to correctly approach the assessment of the merits amounted to a jurisdictional error.

49    Further support for Mortimer J’s view in MZABP can be found in the Full Court’s decision in DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454 (DMI16). There, where a similar argument to the present was advanced, the Full Court (Collier, Logan and Perry JJ) observed (at 471 [62]) that the Minister had accepted that, in the context of an application for an extension of time, the FCC would fall into jurisdictional error if it approached the question of the merits of the proposed grounds as if it were making a final determination. However, as it had not been established that the FCC had applied an erroneously higher standard than simply attempting to ascertain at a reasonably impressionistic level whether the grounds had merits, the issue did not arise for determination

50    Similarly in FEZ17 v Minister for Home Affairs [2019] FCAFC 76, the Full Court appeared to acknowledge, as did the primary judge (FEZ17 v Minister for Home Affairs [2018] FCA 1689), that the FCC’s treatment of the merits of an application in determining whether an order should be made under s 477 may reveal a misunderstanding of its function, or an excess of jurisdiction (at [13]), however, no jurisdictional error was demonstrated in that case.

51    To similar effect are the observations of Steward J in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400. After considering the reasoning of Mortimer J in BVW17 his Honour went on to say (at [23]):

It does not follow from this observation that the exercise of power under s 477(2) by the FCC is not amenable to judicial review. If the FCC were to mistake its function under s 477(2), or if it were to apply an incorrect construction of the words of the provision, it would commit jurisdictional error. Another example of possible jurisdictional error was identified by Mortimer J in MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 at [68] when her Honour said:

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.

52    In the matter before Steward J, the primary judge had failed to consider one of the pleaded grounds in considering the merits of the application under s 477. His Honour opined at [29] that where the ground raised is substantive, or appears to have substance, an inferior court should address it. He further observed that a failure to address it would constitute a fundamental misunderstanding of the discretion in s 477(2) in the sense described by Mortimer J in MZABP, and therefore constituted a jurisdictional error. His Honour concluded at [32] that the FCC’s failure to consider one of the pleaded grounds constituted a breach of procedural fairness and a constructive failure to exercise jurisdiction.

53    In SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, the Full Court (Collier, Wigney and Gleeson JJ) emphasised that “there will be cases where an application is so devoid of merit that it would be futile to extend time” (at [25]). There, it had been contended that the FCC judge had erroneously conducted a “fulsome examination” of the merits of the application. The Full Court rejected this submission, concluding that the FCC judge’s reasons did not reveal anything more than an impressionistic evaluation of the appellant’s proposed ground of review (at [26]), in accordance with the approach identified by Mortimer J in MZABP.

54    In EBT16 v Minister for Home Affairs (2019) 374 ALR 443, Gageler J also considered whether an order made by the FCC dismissing an application for judicial review as a consequence of having refused the application for an extension of time under s 477 exceeded the jurisdiction of that court. His Honour concluded that it had not been established that in refusing the extension of time the FCC judge had “gone beyond a threshold assessment of merit” in relation to the proposed grounds of review (at [7]). However, his Honour clarified at [8]:

By rejecting the arguability of the second ground of the application on the basis on which it is put, I should not be understood to be expressing any view as to the correctness of the proposition, adopted by the Full Court of the Federal Court in MZABP v Minister for Immigration & Border Protection and accepted with circumspection by a differently constituted Full Court in DMI16 v Federal Circuit Court of Australia, that the Federal Circuit Court would exceed its jurisdiction were the Federal Circuit Court to conclude that it was not necessary in the interests of the administration of justice to make an order under s 477(2) after undertaking a full assessment of the merits. Although the High Court cannot be bound by a decision of any other court in the exercise of its jurisdiction under s 75(v) of the Constitution, it would not be appropriate for me as a single Justice exercising that jurisdiction to depart from or cast doubt on a decision of the Full Court of the Federal Court. Were I to have considered the proposition adopted in MZABP to have been dispositive of the present application, and were I to have entertained doubt about its correctness, the appropriate course would have been for me to refer the application or the relevant part of it to the Full Court of the High Court under r 25.09.3(d) of the High Court Rules.

(Footnotes omitted)

55    In that case the FCC had disallowed the application for an extension of time but had nevertheless purported to dismiss the application which had been filed out of time. Gageler J held that no error arose from it so doing regardless of whether the temporal limitation on making an application for review was seen as a limitation on the scope of the jurisdiction conferred on the FCC or merely as a limit on its exercise. This latter matter is relevant to the present circumstances where the FCC judge had similarly dismissed the application.

56    It was submitted that the observations of Gageler J supported the proposition that no jurisdictional error was involved where an FCC judge undertook a more substantial assessment of the merits of a proposed application than was required. With respect, no such proposition can be detected in that case and, indeed, his Honour’s comments that the FCC judge had not “gone beyond a threshold assessment of merit” strongly suggests to the contrary.

57    A slightly different approach was taken by Wheelahan J in DBA16 v Minister for Home Affairs [2018] FCA 1777. There, the applicant’s application for an extension of time was heard together with the substantive application for judicial review directed to a decision of the IAA. It was submitted that the primary judge’s decision was affected by jurisdictional error because her Honour had failed to apply the correct test in considering the application under s 477. More specifically, that her Honour incorrectly made a determination that the applicant’s case would be precluded by reason of Anshun estoppel, rather than whether the applicant’s case enjoyed sufficient prospects of success in overcoming any Anshun estoppel.

58    In considering the principles relating to jurisdictional error and inferior courts, Wheelahan J referred to Norbis v Norbis (1986) 161 CLR 513, and more specifically the observations made by Brennan J at 536 – 537, to the effect that guidance provided by appellate courts in relation to the exercise of a discretion does not “harden into legal rules”, and that a failure to apply a guideline cannot be treated as an error of law. Similar sentiments were expressed by Mason and Deane JJ at 519, where their Honours opined that “a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised”.

59    Wheelahan J went on to find that the “guidance” of Mortimer J in MZABP was not followed on a consideration of the FCC’s stated path of reasoning, because the claimed Anshun defence was not considered merely at an “impressionistic level”. His Honour considered that “whether this amounts to a jurisdictional error is an entirely different matter”, concluding at [60]:

In this case, I am not persuaded that there was jurisdictional error. The FCCA judge had regard to the conditions specified in s 477(2) of the Migration Act that had to be engaged before an order extending time could be made. In relation to whether the judge was satisfied that it was necessary in the interests of the administration of justice to extend time, the judge had regard to the merits of the proposed claim, and formed the view that the merits were hopeless. The reasons supporting that conclusion included the judge’s finding that the Anshun estoppel defence would inevitably succeed. The judge’s path of reasoning leading to that finding suggests an approach that was not in accordance with the judicial guidance given in MZABP v Minister for Immigration (2015) 242 FCR 585 at [62] and [63] as to the “correct approach”. However, relying on the statements of Brennan J and of Mason and Deane JJ in Norbis v Norbis in the passages set out under paragraphs [47] to [50] above, I consider that the elements of the judicial guidance in MZABP, which were endorsed by the Full Court, do not constitute rules of law. The language used by Mortimer J in MZABP at [62]–[66] is the language of guidance. The failure to follow the guidance in MZABP in this case in evaluating the Anshun defence may be characterised as not appropriate (MZABP at [62]), or not to be encouraged (SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [102]), but in my view the FCCA did not fall into jurisdictional error by misapprehending the nature of the power in s 477(2) of the Migration Act, or in any other way. The FCCA judge correctly identified and then addressed the statutory conditions for the exercise of the power to extend time, including whether it was in the interests of the administration of justice to do so. On that issue, the judge was not persuaded that it was in the interests of the administration of justice to extend time, because the judge had formed the view that the applicant’s claim was bound to fail. For these reasons, it is my view that no jurisdiction error arises.

60    His Honour’s observations that guidance given by superior courts cannot crystallise into hard and fast rules ought to be accepted. That is particularly so where the question is as to the matters which might be taken into account in the exercise of an unconfined discretion. However, it does not follow that conclusions as to the scope of the power in s 477(2), if made by a court with relevant authority, will not be binding.

61    In APP17 v Minister for Immigration and Border Protection [2019] FCA 794, Bromwich J considered the nature of errors which might be made in the exercise of power under s 477(2) and made the following observations at [10] to [13]:

[10] The sole legitimate issue in this application is whether the primary judge’s refusal of the extension of time in which to bring a judicial review application was infected by jurisdictional error, or at most was only an error in the exercise of that jurisdiction. That is, even if all of the arguments as to error advanced by the applicants were made out, did that amount to anything more than deciding issues within jurisdiction incorrectly? The Minister’s case is that not only are the matters raised in support of this application doing no more than taking issue with how the jurisdiction was exercised, asserting no more than errors within jurisdiction, but that there was no error in the exercise of jurisdiction by the primary judge either. There was no suggestion that his Honour either exceeded jurisdiction, or failed to exercise jurisdiction, such as by overlooking altogether a basis for seeking an extension of time, or by overlooking a proposed ground of review (as happened in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400).

[11] Ordinarily, and certainly in this case given the terms of s 477(2) of the Migration Act being addressed by the primary judge, the assessment of whether or not there is jurisdictional error in the exercise of judicial power does not depend upon any analysis or review of the facts, or the correctness or otherwise of the factual findings made, as opposed to the context provided by those facts, but rather upon an analysis of the terms in which a statutory discretion or power has been conferred: see SZUWX v Minister for Immigration & Border Protection [2016] FCAFC 77; 238 FCR 456 at [15], [21].

[12] It is essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining the presence or absence of satisfaction that it was necessary, in the interests of the administration of justice, to extend time in accordance with s 477(2): SZUWX at [10]. In SZUWX, the Full Court found that there had not been any failure to take into account the absence of prejudice to the Minister in granting an extension of time under s 477(2), but held that even if there had been such a failure, it would have been an error within jurisdiction, and therefore not reviewable. This highlights the steep hurdle the applicants face and the limited scope of the grounds and arguments that they can rely upon.

[13] Given that the applicants applied in writing for an extension of time as required, and given that the primary judge was not satisfied that it was “necessary in the interests of the administration of justice” to make such an order, the applicants must establish this conclusion was infected not merely by some error of fact or law, but rather an error going to the very jurisdiction being exercised. Given the broad and unconfined scope of the test to be applied, it was, within the scope of legal reasonableness in the application of that test so as to be within jurisdiction, a matter for the primary judge as to what considerations to take into account in ultimately deciding whether or not his Honour was satisfied that the statutory test had been met.

(Emphasis in original)

62    These passages were relied upon by the second respondent in support of the submission that the manner in which the primary judge approached the merits did not exceed the FCC’s jurisdiction. Given the result in SZUWX, the conclusions of Bromwich J are relatively uncontroversial. Although the point is not wholly free from doubt and there are some decisions to the contrary, the weight of authority appears to be that there is nothing in the nature, scope and purpose of s 477(2) which implies an obligation on the FCC to take any particular consideration into account or to eschew consideration of a particular matter. That, however, does not exclude a conclusion that a jurisdictional error has occurred where, in the circumstances of the particular case, a failure to take into account a matter will evidence that the FCC has misconceived its function or the nature of the power being exercised.

63    It must also be kept in mind that, in APP17, Bromwich J was considering a very different case to the present. In APP17 the primary judge had expressly assessed the merits of the proposed grounds of review on a “fairly broad brush approach” as to whether they had reasonable prospects of success. As Bromwich J found, “[t]hat was a course that was plainly not just open to his Honour, but wholly appropriate as the extension of time application is not a hearing on the merits of the proposed grounds of review” (at [17]). His Honour cited MZABP as authority for that conclusion. He concluded that there was nothing that the primary judge did that was remotely at odds with the ordinary assessment of whether or not the test in s 477(2) had been met to his Honour’s satisfaction (at [33]).

Conclusions from the authorities

64    The above, somewhat prolonged, journey through some of the more relevant decisions in this burgeoning area suggests that the following observations might provide guidance when attempting to ascertain whether a jurisdictional error has occurred in the exercise of power under s 477(2).

65    First, it seems to be fairly well established that the discretion is not confined by any obligation on the FCC to take into account or to ignore any particular matter. The nature, scope and purpose of the section does not identify any mandatory relevant consideration nor any consideration which must be excluded. That is subject to the requirement that the court must ascertain whether it is in the interests of justice to extend time for the making of a review application. Rather than regarding that as a relevant consideration of any kind it is more properly seen as the object of the exercise of power.

66    Second, it follows that a failure to take into account certain factors which are often relevant to the exercise of power, such as any explanation for delay or any prejudice or absence of prejudice to the Minister, will not, per se, result in a jurisdictional error of failing to take into consideration a relevant circumstance. The same might be said of a failure to take into account the merits of the appellants’ proposed grounds of review.

67    Third, however, depending upon the circumstances, evidence that the FCC omitted to take into account the merits of the appellants’ proposed grounds of review could evidence that it has acted upon a misconception of its function or a misunderstanding of its power and thereby committed a jurisdictional error. Whilst there may be cases where any relevant delay has been contumelious or contumacious and the prejudice to the Minister so great that an omission to consider the merits of the proposed grounds of review may not suggest a misunderstanding of function or power such cases would necessarily be rare. However, there is no need to reach any conclusion on that issue.

68    Fourth, the fact that, on an application under s 477(2), the FCC has engaged in more than an impressionistic evaluation of the appellant’s proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction. That seems to follow from the observations in a number of the cases considered above. Although Ms Graycar’s submission that there is no binding authority to that effect should be accepted, there is no doubt that the overwhelming weight of opinion supports the proposition. As the discussion in the authorities reveals, the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review. Where the proposed grounds are examined for the purposes of ascertaining whether they would succeed were an extension granted, it is apparent that the power and the function to be performed are misunderstood.

69    This fourth conclusion is coherent with the historical and prevailing attitude of the common law not to deny access to the courts to litigants who have some arguable claim. In this respect, an important consideration is that s 477(2) enables the FCC to extend the time in which a person may seek review in circumstances where no other avenue of redress exists. For the intending applicant it is clear that the consequences of a refusal to extend time are legally and practically significant. In relation to the former, their access to the courts for the purposes of ventilating their claimed rights will be terminated. In respect of the latter, it is regularly said that the gravity of the consequences to a bona fide asylum seeker of being denied access to the Courts may, of itself, be a real reason for granting an extension: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.

70    Historically, the courts of this country have been sensitive to the premature curtailment of a person’s ability to agitate a claimed right. Such a view permeates a range of procedural powers which regularly arise in litigation. For instance in order to strike out a claim, a party is required to surpass a very high bar and establish that the claim is wholly untenable. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Barwick CJ said of the authorities concerning that power at 129:

[T]hat the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action — if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal — is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

71    It follows that even a litigant who appears to have a weak case, will not be prematurely denied an opportunity to argue it.

72    In Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544 – 545, Kirby J identified, in relation to the summary dismissal of proceedings, that it was a serious matter to deprive a person of access to the courts where the rule of law is upheld, that litigants are entitled to ventilate even what might be seen at first instance to be a weak case, and that if a serious legal question exists to be determined it should ordinarily be determined after a full consideration of the facts and law.

73    More recently in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, McColl JA observed of the obligation to keep in mind the denial of a party’s right to access the courts when considering whether proceedings ought to be summarily dismissed (at [183]):

As is manifest from the plurality judgment in Aon, the operation of s 56 – s 60 of the CP Act involves the weighing or balancing of considerations which may, but do not necessarily, go beyond the circumstances of a particular case. In all cases, however, it is necessary to keep in clear focus the purpose of there being a just resolution of the dispute. The plurality in Aon (at [112]) referred to a party’s right to bring proceedings, in language redolent of the authorities emphasising the fundamental right of access to courts by citizens which should not be denied other than in exceptional circumstances: see Clark (at [63]). However both s 58(2)(b)(vi) of the CP Act and general principle require attention to the burden the appellant's conduct has cast upon the respondent: Batistatos (at [63]).

74    For the same reasons an applicant for summary judgment in a proceeding must overcome a significant hurdle before relief will be granted. That is so regardless of the formulation of the words used in the various sections and rules governing the procedure across the several jurisdictions in Australia: cf Spencer v The Commonwealth (2010) 241 CLR 118. In all cases the warning of the courts is that the power to grant relief is to be exercised with caution and with great care. Underlying this is the necessary concern that even parties with cases which, prima facie, may appear weak ought not to be denied the opportunity of ventilating them in a proper hearing.

75    It is true that a power to extend time, such as that in s 477(2), is not the same as summary dismissal and the occasion for its exercise follows consequentially upon the failure of the applicant to comply with the statutory limits. Moreover, an application for an extension of time to commence proceedings implies that the opposing party has something in the nature of a vested right in relation to the issues which have already been concluded by statutory processes: cf Jackamarra v Krakouer (1998) 195 CLR 516. Nevertheless, a refusal to exercise the power to extend time has the same practical consequences as summary dismissal with the result that the same tenderness concerning the exclusion of persons from the courts is inherent in the power’s exercise.

76    It is, therefore, consistent with the courts’ exercise of cognate powers, that in the exercise of the discretion in s 477(2) an applicant would not normally be required to demonstrate more than their proposed grounds of review had some prospects success following “a threshold assessment of merit”. Whether that standard of veracity is described as being “arguable”, “reasonably arguable”, “sufficiently arguable” or having “reasonable prospects of success” or some other description, the hurdle is low. If, then, a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power.

77    The above focus on the veracity of any proposed grounds of review does not result in any conclusion that the mere existence of some merit will warrant the granting of an extension of time. As the authorities have established, the discretion is to be exercised after the weighing of all the relevant circumstances of the particular case, with the apparent strength of any proposed grounds being but one consideration.

Was the FCC judge’s error a jurisdictional error?

78    There is no need to assay the reasons of the FCC judge in any great detail. His Honour identified two factors as being possibly relevant to his decision. First, the unexplained delay of four and a half months and, second, that, after a fulsome analysis of the proposed grounds of review, no jurisdictional error was shown to exist. However, as the primary judge held, in substance the real determinant of the exercise of power was that the FCC judge considered that he would dismiss the application “as if it were a matter I was dealing with on the merits”. (at [68]) The import or otherwise of the unexplained delay was not articulated in the FCC judge’s reasons.

79    In the context of the above discussion of the authorities, the present case is an example of where the FCC judge actually did engage in substantially more than an impressionistic evaluation of the merits of the proposed grounds of review. Although the FCC judge did not specifically assert that he would extend time only if he were satisfied that the appellants “could succeed” on any of the proposed grounds of review, that is the effect of his conclusions. There is no other reason for the FCC judge’s deep analysis of the proposed grounds and there is nothing in his Honour’s reasons to suggest that he considered any other test was appropriate for the purposes of exercising the power under s 477(2). As the authorities which have been discussed disclose, it is not uncommon for an applicant to assert that an FCC judge approached the discretion by applying a higher test to the assessment of merits than was required but, in most cases, the factual basis for the argument is not sustained. Here, it is undoubted that the FCC judge applied the incorrect test. That was a clear finding of the primary judge and it was not challenged by the Minister.

The primary judge’s assessment of the misapplication of the s 477(2) power

80    As previously mentioned, the primary judge concluded that the FCC judge had erred in the approach which he had taken to the application of the test in s 477(2). Variously, his Honour held:

(a)    The FCC judge determined what was in the interests of justice by “reaching a conclusion about the merits as if he were dealing with the substantive application on the merits” (at [66]);

(b)    The approach by the FCC judge “caused the discretion to miscarry” (at [73]);

(c)    The FCC judge’s approach suggests that he “misconceived the true scope of the question the inferior court was called upon to answer in exercising the discretion conferred by s 477(2)” (at [82]);

(d)    “It is accurate to describe this misconception as one going to the function to be performed and the power to be exercised under s 477(2)” (at [83]);

(e)    “The apparent misconception of the function went to the root of the statutory discretionary power to be exercised” (at [84]);

(f)    “The primary judge misconceived the limitation in the scope of the examination of the merits in exercising the discretion under s 477(2) of the Migration Act to grant or refuse to grant an extension of the 35 day period and has thus fallen into error as to the true nature of the function to be performed.” (at [87]);

(g)    “The primary judge misconceived the scope of the function to be discharged in answering the question raised by s 477(2) at least so far as the merits factor is concerned and went beyond the “threshold assessment of merit” (to use the term adopted by Gageler J in EBT16 at [7]) contemplated by the authorities.” (at [90]).

81    It is to be recalled that these observations were preceded by his Honour’s reference to the submission that the FCC judge’s error was within the third example of jurisdictional error arising from an inferior tribunal acting beyond jurisdiction as identified in Kirk at 574 [72], being a “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”.

82    There was no challenge by the Minister to the above findings of his Honour as to the nature and quality of the FCC judge’s error and no Notice of Contention was filed by the Minister in relation to them. It was submitted by Ms Graycar, on behalf of the Minister, that these findings were “discussions along the way” to making a finding that there was no jurisdictional error. That submission should be rejected. The observations of the primary judge were an identification of the manner in which the FCC judge’s error fitted within the taxonomy identified by the High Court in Kirk. They constituted findings or conclusions that the FCC judge misconstrued the power in s 477(2) and that misconstruction had the consequence that he misconceived the nature of the function he was supposed to be performing. Those conclusions are an impediment to an outcome favourable to the Minister on the appeal and, if the Minister intended to cavil with their accuracy, a Notice of Contention ought to have been filed such that the issue might properly have been agitated.

83    The primary judge’s conclusion that, in the circumstances of this case, the error by the FCC judge fell within that class of jurisdictional error demonstrated by the third exemplar in Kirk is supported by many of the authorities referred to previously. That was entirely consistent with the conclusion drawn above that it is not appropriate on an application under s 477(2) to ascertain whether the proposed grounds of review will ultimately succeed and that such an approach is indicative of an excess of jurisdiction. However, it is not irrelevant that the primary judge’s conclusion was in the context that the only determinative matter relevant to the discretion under s 477(2) in the matter before the FCC judge was the issue of the merits of the proposed grounds of review. This was not a case where a multitude of factors were weighed in the decisional process. In such circumstances where the sole discrimen affecting the discretion is a matter which is not logically relevant to the exercise of power in the particular circumstances, the primary judge’s conclusion that the FCC judge misconceived the scope of the function to be discharged, was undoubtedly correct.

84    However, that conclusion of the primary judge is not consistent with his subsequent determination (at [98]) that the error was “within jurisdiction”. The reasons for that second conclusion are not entirely clear, however, the primary judge’s reference (at [100]) to the difficulties which the appellants had caused by their non-compliance with directions and prior adjournments seemed to be advanced as a justification for the FCC judge’s approach. Whilst it might be the case that the particular procedural circumstances of the case impelled the FCC judge to combine the application for an extension of time with a hearing of the merits as if the application were on foot, that ultimately had the consequence that the FCC judge’s conclusion under s 477(2) was reached upon a misconception of his function and power. The inadequacy of the appellants’ procedural steps which, in this case, did not contribute to the issues to be considered for the exercise of the discretion, were not a circumstance that validated the FCC judge’s excess of jurisdiction.

85    Once the learned primary judge had determined that the error made by the FCC had the consequence that it had misconceived its function and power, there was no scope for attempting to ascertain whether it had exceeded its jurisdiction. By definition, it had. The consequence was that the FCC had made a jurisdictional error in the purported exercise of power in s 477(2). As was said in Craig at 177:

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. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

86    Whilst there is a natural tendency to attempt to cohere the primary judge’s characterisation of the FCC judge’s error as resulting from a misconception of the power, with his Honour’s subsequent conclusion that the error was within power, it is not possible to do so. His Honour correctly characterised the error in accordance with the weight of authority and principle and, having done so, the error was a jurisdictional one which rendered the FCC judge’s exercise of discretion invalid. The learned primary judge erred when he, thereafter, sought to ascertain whether the error was within jurisdiction.

Conclusion as to excess of jurisdiction

87    In the result, the learned primary judge erred in concluding that the FCC judge had not committed a jurisdictional error. His Honour’s earlier conclusions that the decision had been made consequent upon a misconception of the FCC judge’s function and powers was correct such that, subject to the question of materiality, the decision ought to have been quashed and the matter remitted to the FCC for determination according to law.

Ground 2

88    The second ground of the appeal is that the learned primary judge erred in concluding that, if the FCC judge had committed a jurisdictional error, it was not material.

Materiality

89    There is a lack of unanimity on the High Court as to whether materiality goes to the question of whether a jurisdictional error exists: per Bell, Gageler and Keane JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), 433 [2]: or to the discretion to grant relief after the jurisdictional error is made out: per Nettle and Gordon JJ in SZMTA at 458 – 460 [90] – [95]. For present purposes, this Court is bound by the majority view and the different approaches have no impact upon the outcome of this case.

90    On the question of materiality, the learned primary judge framed the issue in the following terms (at [105]):

If the [FCC judge] had confined his assessment of the merits of the grounds of review to the “assessment threshold” dictated by the authorities in resolving the s 477(2) application, would that, in the circumstances, have resulted in the decision that was made to refuse an extension of the 35 day period for instituting the principal application under s 477(1), being a different decision?

91    With respect, the framing of the question in those terms was entirely correct. However, his Honour did not confine his consideration of materiality to the error which had occurred in the exercise of power under s 477(2).

92    At [106] his Honour said:

Had the primary judge addressed the two applications separately, his Honour ought to have concluded that the grounds set out in the amended application were reasonably arguable and his Honour ought to have made an order extending the time under s 477(2) for the purposes of s 477(1). His Honour ought to have then conducted an examination of the merits to decide the principal application, having refused the adjournment. The first order of the primary judge of 28 February 2018 refusing the s 477(2) application would have been different but the dismissal of the amended application would not have been different. Had the primary judge applied a correct understanding of the law relating to the “assessment threshold” for the purpose of the s 477(2) application, that decision would certainly have been different but the decision to dismiss the amended application in the circumstances would not with the result that the appellants would have been in precisely the same position regardless of the jurisdictional error on the s 477(2) application of having their substantive application for review dismissed.

(Emphasis added)

93    The appellants submitted that this approach was erroneous, and contended that the FCC judge’s error was material because it deprived them of an opportunity of a successful outcome on the application for an extension of time, which they argue was a discrete exercise of power attended by different consequences for them. This submission ought to be accepted.

94    In considering the materiality of an error made by an inferior court, the correct approach is to determine whether that error could possibly have changed the result of the exercise of the concomitant power, not whether the error could possibly have changed the outcome of the case. In particular, it does not require a court to prognosticate as to whether any other power will be exercised adversely or in favour of the person affected by the initial erroneous decision. As the plurality in SZMTA made clear at [45], an error “is material to a decision only if compliance could realistically have resulted in a different decision” (emphasis added). As much was held by Edelman J (Nettle J agreeing) in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [72]:

[A]n error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome.

(Emphasis added)

95    Similar observations were made by Kiefel CJ, Gageler and Keane JJ at 134 – 135 [30] to [31]:

[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection, “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(Footnotes omitted) (emphasis added)

96    Often, the exercise of the relevant power will be determinative of the outcome of a particular matter; in such a case it will be appropriate to consider whether the outcome of the matter could have realistically been altered had the error not been made. However, this is not always so, especially where the relevant power is exercised independently of the power to finally dispose of the matter, such as in the present case.

97    Here, the relevant power exercised by the primary judge was that provided for by s 477(2) of the Act, namely the power to order an extension of the 35 day period in which to apply for a remedy to be granted in exercise of the FCC’s original jurisdiction under s 476. The power which is exercised in disposing of the application is that contained in s 476(1) of the Act, which is both conceptually and functionally different from that under s 477. As the appellant submitted, a refusal to extend time under s 477 forecloses the statutory right of appeal to the Federal Court which would otherwise be available under s 24 of the Federal Court of Australia Act 1976 (Cth) (by reason of s 476A(3)(a) of the Act).

98    Clearly, the primary judge initially asked the correct question – would the decision to refuse the extension of time have been different if the primary judge had confined his assessment of the merits of the grounds of review? His Honour answered this question at [80] in the affirmative, concluding that the decision under s 477 “would certainly have been different”. That ought to have concluded the analysis. However, his Honour went on to decide that the error was not material because the decision to dismiss the amended application would not have been different. With respect, the taking of that extra step was not consistent with Hossain and SZMTA. The issue was the legality of the FCC judge’s decision under s 477(2) and the correct conclusion was that it was beyond power, having been affected by jurisdictional error in the sense that there was a material failure to exercise the power. The question of the proper disposal of the application to extend time ought to have been remitted to the FCC judge for determination according to law.

Residual discretion to refuse to grant relief

99    Given the majority view in SZMTA that only material errors amount to jurisdictional errors, it remains the case that once a court concludes that such an error exists, a question arises as to whether it should refuse to grant relief by issuing a prerogative writ in the exercise of its discretion. In circumstances such as the present, where the FCC judge fully assessed the merits of the proposed grounds of review and concluded that none would succeed, there may have been grounds for exercising that discretion in favour of the Minister. However, the Minister filed no Notice of Contention such that neither this point nor the issue of the correctness of the FCC judge’s conclusions as to the proposed grounds of review were ventilated on the appeal. It follows that the discretion cannot arise for consideration.

A postscript on the manner of hearing applications under s 477(2)

100    In the course of argument, some attention was focused upon the practice in the Federal Circuit Court of listing the hearing of an extension application together with the hearing of the proposed substantive application and full argument upon the merits of the substantive application taking place. In SZTES, Wigney J at [99] and [102] criticised that practice on the basis that where an extension of time is refused solely on the ground that the application lacked any merits, a perception may arise that the application was disposed of in that way in order to avoid appellate review.

101    For our part, we would not criticise the practice of hearing an application for an extension of time and full argument on the proposed substantive application together. Such a practice avoids what may otherwise be a substantially duplicated second hearing on a later date. However, it will be necessary for the Federal Circuit Court to keep firmly in mind that it is, or may be, engaging in two separate exercises of power. The first is to decide the application for an extension of time under s 477(2) of the Act. The second, if the extension is granted, is to decide the application for review under s 476(1) of the Act. Where a hearing is conducted in this manner, and the Court subsequently decides that an extension of time is not warranted, the merits of the substantive case should only have been considered only at “a reasonably impressionistic level”. Where an arguable case is demonstrated, it may often be preferable to grant the extension of time and then fully decide the substantive application for review on its merits. This approach is consistent with the views expressed by Wigney J in SZTES at [99] and [102] and Mortimer J in MZABP at [66].

Conclusion on the appeal

102    In the result, the appeal ought to be allowed. The decision of the learned primary judge should be set aside and in lieu thereof it should be ordered that a writ of certiorari issue to quash the decision of the FCC judge and a further writ of mandamus should issue requiring the FCC judge to determine the application for an extension of time according to law.

103    There is no reason why the costs of the appeal and the costs before the learned primary judge should not follow the event.

Associate:

Dated:    24 July 2020