Federal Court of Australia

WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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 principal question raised by this appeal is whether, in determining whether it is necessary in the interests of the administration of justice to grant an extension of time, a judge is required to take into account the judge’s own delay in producing a judgment. Another question is whether, where judgment is delayed for an inordinate period of time, a judge commits jurisdictional error or “acts outside jurisdiction” by reason only of the delay.

2    The appellant is a Sri Lankan Tamil who claims to fear persecution in his country of nationality. He applied unsuccessfully to the Minister for a protection visa and the Refugee Review Tribunal (the functions of which are now performed by the Administrative Appeals Tribunal) affirmed the original decision.

3    Subsection 477(1) of the Migration Act 1958 (Cth) required that any application for judicial review of a decision of the Tribunal be filed within 35 days of the provision of a written decision but the Act (by s 477(2)) gives the Federal Circuit Court a discretion to extend that period as it considers “appropriate” if two considerations are made out: first, an application for an order has been made in writing to the court specifying why the applicant considers it necessary in the administration of justice to make the order second, and the court is satisfied that the order is necessary in the interests of the administration of justice to do so.

4    The appellant failed to file an application for judicial review of the Tribunal’s decision within the 35-day period and applied to the Circuit Court for an extension of time to do so. Almost five years after his application was heard, the court refused the application: WZASS v Minister for Immigration and Border Protection [2018] FCCA 3363. The appellant applied to this Court for judicial review of that decision. The primary judge, though trenchant in his criticism of the delay, dismissed the application. This is an appeal from that judgment.

The factual background

5    Some of the relevant facts are set out above. It is sufficient at this point to note the following additional matters.

6    The Tribunal’s decision was made in January 2013. The only remedy available to the appellant was by application to the Circuit Court for judicial review. Relief was only available if he could establish that the Tribunal had committed jurisdictional error.

7    The appellant filed his application for an extension of time in June 2013, well beyond the 35-day period prescribed by s 477(1). The application was heard on 27 November and 18 December 2013. Supplementary submissions were filed in August 2014. Judgment was not delivered until 22 November 2018. The appellant was not in immigration detention during this period.

8    At no time before the judgment did the appellant complain to the Chief Judge about the delay, although there was a procedure in place for him to do so. Nor did he apply for a writ of mandamus or an order of that kind to require the Circuit Court to make a decision.

The judgment of the Circuit Court

9    The Circuit Court judge considered that the factors relevant to the determination of whether time should be extended were the extent of the delay; the explanation for the delay; the prejudice (if any) to the Minister; and the merits of the proposed application for judicial review. His Honour found the appellant's delay, which he observed was more than three times the limitation period, to be significant and the explanation for it inadequate. Acknowledging that the Minister did not contend that he was prejudiced by that delay, his Honour observed that the mere absence of prejudice could not be enough to justify the grant of an extension (citing Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349 per Wilcox J) and, in any event, held that there was “some prejudice because the Minister had a vested right to retain the benefit of the Tribunal Decision on the expiry of the time limitation” (citing Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; 75 ALJR 470; 177 ALR 491 at [17] per McHugh J). Finally, his Honour considered that the grounds of review were “weak”. Taking all these matters into account he held that it was not in the interests of the administration of justice to exercise the discretion in the appellant’s favour. Nevertheless, out of abundant caution, his Honour proceeded to consider whether he would have dismissed the proposed application for review, holding that the appellant would have been unable to establish jurisdictional error so that, even if he had granted an extension of time, the application would have to be dismissed.

10    His Honour acknowledged the “very significant” delay in the publication of judgment, attributing it to the case load in the Western Australian registry of the Circuit Court over a number of years. His Honour recorded that he had had access to and read all of the relevant papers including, in particular, the affidavit evidence (which was not the subject of cross-examination), all of the relevant submissions from the parties and the transcript of the hearings. His Honour concluded that the delay in delivering judgment, for which he expressed regret, had had no effect on his reasons for judgment. That conclusion was not contested in this Court.

The application to this Court

11    On 4 December 2018, the appellant filed a notice of appeal from the judgment of the Circuit Court. But there is no right to appeal against a judgment of the Circuit Court to refuse to make an order under s 477(2) and, on 14 May 2019, the Court dismissed the appeal as incompetent.

12    That meant that the only recourse open to the appellant was to file an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of the decision of the Circuit Court. The appellant filed such an application on 3 June 2019. In a Further Amended Originating Application he sought an order in the nature of certiorari quashing the orders of the Circuit Court and an order remitting his application for an extension of time to that court for determination according to law.

13    The appellant argued that there was an error of law on the face of the record because the extent of the delay took the decision beyond the period of time within which a valid decision could be made. He also argued that there was a jurisdictional error because the power conferred by s 477(2) had to be exercised within a reasonable period of time. At a number of points during argument before the primary judge the case was advanced on the basis that there had been an “abandonment of jurisdiction” because of the extent of the delay.

14    No submission was made to the primary judge that relief should be refused for discretionary reasons, such as the failure to seek mandamus or futility (having regard to the unchallenged findings of the Circuit Court that, had the time been extended, each of the grounds of review would have been dismissed).

The reasons of the primary judge

15    The primary judge rejected both of the appellant’s arguments.

16    Noting (at [7]) that the delay was not said to have had an actual or operative effect on the correctness of the decision, the primary judge observed (at [24]) that each of the appellant’s arguments depended on the proposition that there is a limit to the time in which a judge may reserve a decision under s 477(2) and a decision made after that time exceeds the judge’s authority. While his Honour described the delay as “extreme and deplorable” and considered that it brought the administration of justice into disrepute, he held that there was no jurisdictional error and no error of law on the face of the record.

17    His Honour held that the language of s 477(2) did not contain an implication that the discretion in that provision be exercised within a reasonable period of time (at [28]). It followed that any requirement for the decision to be made within a reasonable period of time must be found in the nature of the repository of that power, namely the Federal Circuit Court (at [29]). In that regard, his Honour observed (at [32]) that s 42 of the Federal Circuit Court of Australia Act 1999 (Cth) required the court to proceed without undue formality and to “endeavour to ensure that the proceedings are not protracted”. In the case of delay in the Circuit Court delivering judgment, however, his Honour pointed out that relief would be confined to requiring the court to conform to its obligation to exercise its jurisdiction without its deliberations being unduly protracted. His Honour concluded (at [38]) that relief requiring a new hearing could not be ordered unless it was determined that the Circuit Court “could not or had not made a decision with the requisite judicial character”.

18    His Honour then considered whether a decision that is unduly delayed lacks the essential characteristics of a judicial decision (at [40]). He observed that, in the decided cases, the essential characteristics of a judicial decision have not been expressed in a manner that identifies the timely delivery of decisions as a separate indicium of the exercise of judicial power. He said that delay in the delivery of reasons may support a conclusion of reviewable error if the circumstances are such that it is possible to conclude that the delay has compromised the judicial task, being “to bring an active, independent and properly deliberative mind to the factual and legal issues raised by the parties at the hearing” (at [41]). His Honour acknowledged (at [42] and [43]) the possibility that, in rare cases, a failure in the exercise of judicial power may be considered to be the inevitable consequence of undue delay (referring to an observation of Gleeson CJ in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [5]). But his Honour held that, if the delay has no possible consequence for the decision-making process, there is neither jurisdictional error nor error of law on the face of the record (at [12], [48]–[54]). As it was not argued that the delay had an operative effect on the decision, his Honour dismissed the application for review.

The scope of the appeal

19    No appeal is brought from the finding that that there was no error of law on the face of the record. In the notice of appeal the appellant pleads that the primary judge erred for the following two reasons:

1.    he failed to find that the [Circuit Court] judge had fallen into jurisdictional error when:

1.1    in exercising the discretion reposed in him by section 477(2) of the Migration Act 1958 (Cth) to grant the Appellant an extension of time; and

1.2.    in reaching satisfaction that it was not ‘necessary in the interests of the administration of justice to make the order” [sic]

1.3.    he failed to take into account his own delay in reaching that determination and in making the orders dismissing the Appellant’s application.

2.    he failed to find that the [Circuit Court] judge acted outside his jurisdiction when:

2.1    he refused the Appellant’s application for an extension of time on the basis that he was not satisfied that it was ‘necessary in the interests of the administration of justice to make the order’; and

2.2    after a delay that his Honour qualified as ‘extreme and deplorable’, inexcusable, and such as to bring the administration of justice into disrepute.

20    In substance, then, the appellant’s case on appeal is that the Circuit Court fell into jurisdictional error in two respects: first, by failing to take into account its own delay in determining whether it was necessary in the interests of justice to extend the time to excuse the appellant’s delay; and second, because delay alone is sufficient to infect a judgment with jurisdictional error, at least where the delay is so extreme that it brings the administration of justice into disrepute.

Did the Circuit Court commit jurisdictional error by failing to take into account its own delay in determining the application for an extension of time (ground 1)?

21    In his written submissions, the appellant described the first ground of appeal as raising the issue whether “the primary judge erred in failing to find error by the Circuit Court when it failed to consider whether, having regard do the delay for which it was responsible, it was satisfied that it was in ‘the interests of the administration of justice’ to refuse the appellant’s application for an order extending time”.

22    This point was not agitated below where the appellant was represented by counsel, in fact the same counsel who represented him in the appeal. As Gageler J observed in an ex tempore judgment in AUK15 v Minister for Immigration and Border Protection & Anor [2016] HCATrans 36, an appeal from this Court, the primary judge cannot have erred in not considering an argument that was not put to him. Leave is required to raise the point in the appeal and should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]–[48].

23    Nevertheless, since the Minister did not oppose the grant of leave, we propose to deal with this question on its merits.

24    In oral argument, the appellant advanced the following contentions in the form of a syllogism. The first premise was that a condition of the exercise of the statutory power to extend time in s 477(2) is whether the extension is “necessary in the interests of the administration of justice”. The second premise was that the primary judge had found that the Circuit Court’s delay in delivering judgment had brought the administration of justice into disrepute (at [58]). The conclusion that the appellant sought to draw from the two premises was that the Circuit Court’s delay in delivering judgment is relevant to the exercise of the statutory power to extend time in s 477(2). It followed, in the appellant’s submission, that the Circuit Court had erred in not taking its own delay into account in deciding whether to extend time, and the error was jurisdictional.

25    The appellant’s argument is invalid for three principal reasons.

26    First and foremost, the argument proceeds from a misconstruction of s 477(2). Section 477 relevantly provides as follows:

(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.

27    The precondition to the exercise of the power in s 477(2)(b) is that the Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The subject of that precondition is the order extending time. The inquiry required by the precondition is whether the order extending time (effectively excusing an applicant’s delay in filing an application for review and allowing the application to proceed) is necessary in the interests of the administration of justice. As the Circuit Court judge concluded, the factors relevant to that precondition in the present case were the extent of the appellant’s delay in filing the application, the explanation for the delay, the prejudice (if any) to the Minister, and the merits of the proposed application for judicial review. While the primary judge found that the Circuit Court’s delay in delivering judgment brought the administration of justice into disrepute, that consequence has no relevance to the statutory precondition in s 477(2)(b), which is concerned with the effect on the administration of justice of an order granting the applicant an extension of time in which to bring an application in the Circuit Court. The appellant’s argument conflates two unrelated aspects of the administration of justice.

28    Second, and as a corollary to the first reason, delay by the Circuit Court in delivering judgment is not an express condition on the exercise of the power conferred by s 477(2) of the Migration Act. In these circumstances, delay on the part of the Circuit Court could only be a factor which had to be considered if that were a necessary implication from the subject-matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–40 (Mason J).

29    The power that the Circuit Court was exercising was a power to extend the time in which to bring a proceeding. The purpose of a power like this is “to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 (McHugh J). The scope of that power is limited only by “the interests of the administration of justice”.

30    Nothing in the subject-matter, scope and purpose of the power conferred by s 477(2) of the Migration Act or the context in which it appears supports the notion that the Circuit Court judge was bound to take into account his delay in the delivery of judgment in determining whether it was necessary in the interests of the administration of justice to excuse the appellant’s delay in filing the application for review. Two wrongs do not make a right.

31    In Huynh v Federal Circuit Court of Australia [2019] FCA 891 at [39] Colvin J noted that the nature of the power conferred by s 477(2) was considered by Mortimer J in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] and Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [43]-[46]. Colvin J summarised the effect of what was said in those cases as follows:

It is only if the precondition that the Federal Circuit Court is satisfied that an extension of time is 'necessary' in the interests of the administration of justice that an order extending time may be made. Further, although the decisions of this Court concerning the discretion conferred by s 477(2) provide guidance or signposts, the nature of the discretion is such that it entrusts to the good sense of the judge hearing the matter in all the circumstances the task of evaluating whether the interests of justice make it necessary for an extension of time to be granted. So, it is apt to refer to the discretion as one where it is a matter for the judge exercising it to determine what is relevant in each case.

32    His Honour observed at [41] that it has been held in a number of cases that no considerations are mandatory for the purpose of the exercise of the discretion conferred by s 477(2). Besides SZTSU and SZTES, those cases include SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 and also DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 382 ALR 246.

33    In SUWX, Bromwich J, with whom Allsop CJ and Flick J agreed, said at [11]–[12] that he was unable to see how it could possibly be said that s 477(2) makes any consideration mandatory other than the question whether an extension of time is necessary in the interests of the administration of justice and there was no justification for putting an additional gloss or qualification on the words of the statute. In DHX17 at [65] Collier, Rangiah and Derrington JJ said that:

[I]t 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.

34    Third, the argument was little more than a cri de coeur. It was not supported by authority and it failed to come to terms with the limited circumstances in which a judgment of an inferior court, such as the Circuit Court, can be set aside for jurisdictional error.

35    While a failure by an administrative decision-maker to take into account a mandatory consideration may amount to a jurisdictional error, as the primary judge rightly observed at [19] error committed by an administrative decision-maker might not be jurisdictional when committed by an inferior court.

36    The circumstances in which an inferior court can fall into jurisdictional error were described in Craig v The State of South Australia (1995) 184 CLR 163 at 177 in the following way:

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.

37    In Craig the High Court went on to note (at 177–178) 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. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, 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…

38    The alleged error does not meet any of these descriptions. While Craig does not provide “a rigid taxonomy of jurisdictional error” and “the metes and bounds” of jurisdictional error are not closed and may be impossible to delineate (Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [71], [73]), there are limits. The omission by the Circuit Court to take into account the delay in the publication of judgment in refusing to exercise its discretion under s 477(2) in an applicant’s favour is beyond those limits.

39    In Craig the High Court remarked at 180 that a failure by an inferior court to take into account a matter of law it was required to take into account in determining a question within jurisdiction will not ordinarily involve jurisdictional error. And at 179–180 the Court explained that:

[T]he 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.

40    In AUK15 Gageler J said that this explanation “is apt to describe the ordinary jurisdiction of the Federal Court” and the jurisdiction being exercised by the primary judge in that case. In SZTUT v Minister for Immigration and Border Protection & Anor [2016] HCATrans 150, his Honour plainly considered it was apt to describe the jurisdiction of the Circuit Court conferred by s 477(2) of the Migration Act.

41    Nothing in Kirk calls into question any of these matters. The proposition advanced by the appellant in the present case is quite extraordinary and unsupported by authority.

42    In Huynh, Colvin J explained at [43] that:

[W]hen it comes to review for jurisdictional error of the exercise of the judicial power to extend time, what must be shown is that the Federal Circuit Court misconceived the nature and extent of the power or denied the existence of the power (including by failing to exercise the power) or disregarded its limits. Provided the nature of the task was properly comprehended and the task was entered upon and the limits were not exceeded then there is no jurisdictional error.

43    The appellant did not submit that his Honour was incorrect in Huynh or that the cases to which his Honour referred were wrongly decided.

44    For these reasons ground 1 is without substance. But for the Minister’s position on the question, we would have refused leave to raise it.

Was the delay in the delivery of judgment, without more, sufficient to infect the judgment with jurisdictional error (ground 2)?

45    The primary judge referred to his remarks in Huynh and observed (at [27]–[28]) that s 477(2) does not confine the time within which the power to extend time may be invoked or exercised and the text of the provision does not lend itself to the implication that the relevant state of satisfaction must be reached within a reasonable period. The appellant did not challenge the correctness of those observations.

46    Rather, the appellant’s argument on ground 2 was based primarily on the contention that, in rare cases, delay in the delivery of judgment, without more, will be sufficient to infect the judgment with jurisdictional error. The only support that the appellant could offer for that contention was the following sentence from the judgment of Gleeson CJ, forming part of the majority, in NAIS at [5]:

The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.

47    The appellant argued that, in that sentence, Gleeson CJ acknowledged the possibility that delay alone in delivering judgment could vitiate a judgment on the basis of jurisdictional error, and no other justice of the High Court excluded that possibility.

48    The primary judge considered that argument and rejected it. His Honour summarised the ratio of NAIS as follows (at [47]):

A majority of the Court recognised that delay of itself was not a sufficient basis for demonstrating an excess of jurisdiction but accepted that where the delay was shown to have a consequence (or likely consequence) then that operative effect could found a conclusion that the decision was made in circumstances that were procedurally unfair and therefore in excess of jurisdiction

49    The appellant did not address the primary judge’s reasoning on this issue, and it follows that the appellant did not persuade us that his Honour’s conclusion was wrong. In any event, we respectfully agree with that conclusion.

50    In relation to the sentence of the judgment of Gleeson CJ upon which the appellant relied, the primary judge observed (at [43]):

In context, the statement by the former Chief Justice was not concerned with the circumstances where delay may provide a basis for review of a judicial decision for jurisdictional error even though there is no possibility of consequence for the making of a proper decision. Rather, the observation by the Chief Justice recognises that in some cases, even where it is not possible to point to a particular error in the reasons, the delay alone may cause there to be doubt as to whether the judicial task has been properly undertaken. Possibly such instances may extend to include cases where the appearance created by the delay is such as to cause there to be doubt as to whether a decision of the kind required for the proper exercise of judicial power had occurred. This is evident from later statements by the Chief Justice in NAIS to the effect that the question is one of fairness of the procedure: at [7]. Ultimately, the reasoning by the Chief Justice (dealing with the administrative decision) was to the effect that the delay was so extreme that in the absence of countervailing reasons advanced by the Tribunal there was a real and substantial risk that the capacity to assess the evidence of the applicants in the Tribunal was impaired: at [10].

51    In relation to the other judgments of the High Court (recognising that Gummow and Hayne JJ were in the minority), the primary judge observed (at [44] – [46]):

In NAIS, Gummow J was of the view that excessive delay, of itself, does not prove a breach of the rules of natural justice: at [55]. Kirby J also required there to be a consequence of the delay and summarised the applicable principles in the following way at [60]:

Whilst different considerations apply to delay in a court subject to appeal and in a tribunal subject only to judicial review, there are, unsurprisingly, common principles. Ultimately, in either case, if the court, on appeal or review, concludes that the delayed decision is unsafe or involves material unfairness or injustice to the losing party, an affront to the common hypothesis of decision-making is established. That affront cannot be allowed to stand. Appropriate relief will then be granted, as it must be in this case.

Hayne J approached the matter on the basis that the relevant question was whether the evidence had been received in a way that the evidence could be fairly assessed and then used by the Tribunal in reaching its decision: at [134]. Callinan and Heydon JJ expressed the principles to be applied in cases where review is sought on the basis of delay in the following way at [161]:

Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realisation that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinise the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.

Therefore, in the view of Callinan and Heydon JJ, delay alone was not a basis for setting aside the decision. The question was whether the decision had been made fairly. In that regard, their honours held that '[a] failure to make a quick decision would not, in the context of the [Migration] Act overall, of itself constitute jurisdictional error': at [163]. However, later their Honours, reasoning by analogy from English cases concerned with the effect of delays in the making of court decisions, held at [167]:

We agree that delay of itself may undermine the basis for a judgment that requires the weighing of claims and facts. The first respondent here did not suggest, nor could she convincingly have suggested, that delay of itself may not be a highly relevant consideration in determining whether the process before the Tribunal was fairly conducted, even though the Tribunal was not a court.

52    As noted earlier, the appellant did not contend before the primary judge or on the appeal that the Circuit Court’s delay in delivering judgment had any operative effect on the judgment. In our view it follows that the delay did not result in jurisdictional error.

53    In his written submissions the appellant repeated a submission made below to the effect that “at some point well short of five years” the inordinate delay amounted to “an abandonment of jurisdiction” so that any decision reached thereafter “exceeded judicial authority”. The appellant contended that delay alone may signify that the primary judge misconceived his role, misunderstood the nature of the court’s jurisdiction, or failed to apply itself to the questions the statute prescribed, relying on a passage in the judgment of Gummow J in NAIS at [41] and, based on his Honour’s remarks, submitted that the Circuit Court judge “misunderstood the power to reserve judgment”. He argued that his Honour “appeared to believe that the interests of the administration of justice in the case before the [c]ourt were unfettered as to time, and that the [c]ourt was free to make orders dismissing the application to extend time some five years after the hearing of the application”. He contended that this was an error of law on the face of the record.

54    There are several problems with these arguments.

55    First, the appeal does not contest the primary judge’s finding that there was no error of law on the face of the record. As his Honour noted at [20], the record does not include the reasons for judgment: SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129 at [14]–[16] (North, Collier and Tracey JJ); DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454 at [42]–[47] (Collier, Logan and Perry JJ). See also CXK17 v Judge of the Federal Circuit Court of Australia [2019] FCA 2089 at [8] (Besanko J).

56    Second, the power in question is the power to extend the time to file an application for judicial review, not the power to reserve judgment.

57    Third, the appellant took the remarks of Gummow J in NAIS out of context. The question in NAIS was whether a lengthy delay between a hearing in the Refugee Review Tribunal and the publication of the decision denied the appellants in that case procedural fairness. That was not the question in the present case, notwithstanding the reference in the appellant’s submissions to “a breach of natural justice” (see AWS [32]). Further, in NAIS what was said to be unfair was that the Tribunal made demeanour-based findings against the appellants four and a half years after the observations of their demeanour had been made. Gleeson CJ observed at [9]–[10] that a procedure which depends significantly on the Tribunal’s assessment of individuals may become unfair if, by reason of some default on the Tribunal’s part, “there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired”.

58    In a case of excessive delay, the reviewing judge should scrutinise the reasons with care, especially where the decision depends in any way on the assessment of competing claims of fact and credit and impressions based on demeanour: NAIS at [161] (Callinan and Heydon JJ). Unlike NAIS, however, this appeal is not concerned with a case which depended on the assessment of competing claims of fact and credit and impressions based on demeanour. In the present case no oral evidence was adduced. Unlike NAIS, this was not a case where the delay between the hearing and the judgment could have affected the decision-making process. In contrast to NAIS, in the present case the Circuit Court judge was in as good a position in 2018 to determine the application as he was in 2014. It was not suggested, nor is there reason to think, that his Honour did not conscientiously apply himself to the resolution of the issues. This is not to sanction the delay. It is merely to recognise that it did not have the effect the appellant contended.

59    In oral submissions, counsel for the appellant sought to refine the argument by framing it in terms of “abandonment of the power of decision”. He acknowledged that jurisdiction could not be lost, because the jurisdiction is that of the Circuit Court. But, he said, the individual judge “became incompetent by his delay”. However this submission failed to take account of s 11(1) of the Federal Circuit Court of Australia Act 1999 (Cth), which provides that for the purposes of the exercise of the jurisdiction of that court it is to be constituted by a single judge, and s 12(3)(a)(i) of that Act, which empowers the Chief Judge to make arrangements as to the judge who is to constitute the court in particular matters or classes of matters. There can be no question that the Circuit Court judge who heard the application for an extension of time constituted that court in that application. It is difficult to see how the effluxion of time alone could result in the unilateral abandonment either of the court’s jurisdiction or the power of a judge to exercise that jurisdiction. Barring the circumstances described in s 72 of the Constitution it is not apparent how his Honour would lose jurisdiction or power and, in the absence of an arrangement made by or on behalf of the Chief Judge, it is not apparent how his power to decide the case could otherwise have been removed. Certainly the appellant could give no coherent account of how that might occur.

60    For all these reasons, ground 2 must be dismissed.

Conclusion

61    The delay in pronouncing orders and publishing reasons was extraordinary. It was also lamentable. The Minister accepted that it was both extreme and deplorable, as the primary judge observed. Whether it is inexcusable, however, as the appellant alleged, is a different question. There were at least extenuating circumstances. For more than four of the five years during which judgment was reserved, the Circuit Court judge was the only Circuit Court judge in Perth. It is a notorious fact that his workload was oppressive. In the year before judgment in this matter was given, McKerracher J described the case load in the Western Australian Registry of the Circuit Court as “extreme”: WZASX v Minister for Immigration and Border Protection [2017] FCA 1415 at [32]. At the swearing-in of an additional judge on 29 January 2018 the Chair of the Victorian Bar said that there was no doubt that the Circuit Court judge “felt very much like Sisyphus rolling an immense boulder up a hill one day only for it to roll back down, and for it to be rolled back up with no end in sight to the labours”. The observations of Callinan and Heydon JJ in NAIS at [161] are pertinent. Although they are included in [51] above, it is convenient to recall them:

Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them … Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay.

62    Regardless of how the delay is properly characterised, however, it did not deprive the Circuit Court of jurisdiction or amount to an abandonment of jurisdiction or “the power of decision”.

63    It follows that the appeal should be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    25 February 2021