Federal Court of Australia

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs of and incidental to the appeal, to be fixed by a registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The origins of this appeal lie in an application which the appellant, who has been assigned the pseudonym BTI15, made on 11 April 2013 for the grant to him under the Migration Act 1958 (Cth) (the Act) of a protection visa. On 29 July 2013, a delegate of the predecessor in office of the first respondent (Minister) in the administration of the Act refused that application.

2    The appellant sought the review on the merits of that refusal decision by the then Refugee Review Tribunal (Tribunal). On 28 August 2014, the Tribunal affirmed that refusal decision.

3    Subject to the exercise of a power conferred by s 477(2) of the Act, the effect of s 477(1) of was that an application to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal’s decision had to be made within 35 days of the date of that decision. No such application was made within that 35-day period. Instead, on 1 September 2015, the appellant applied to the Federal Circuit Court for the grant of an extension of time within which to apply for judicial review of the Tribunal’s decision. On 26 July 2016, the Federal Circuit Court dismissed the appellant’s extension of time application: BTI15 v Minister for Immigration & Anor [2016] FCCA 2326 (BTI15 v Minister for Immigration).

4    Neither by the Act nor otherwise is any right of appeal conferred in respect of an order of the Federal Circuit Court dismissing such an application for an extension of time. The only remedies open to the appellant to challenge the dismissal of his extension of time application were either to apply to the High Court of Australia for the issuing of a constitutional writ and related relief under the constitutionally entrenched jurisdiction conferred on that Court by s 75(v) of the Constitution or to seek similar relief in this Court pursuant to the jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth), as to which: see Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, at [2] – [11]. The appellant applied to this Court for the exercise of that judicial review jurisdiction in respect of the dismissal of his extension of time application.

5    On 20 May 2020, the Court dismissed the appellant’s judicial review application: BTI15 v Minister for Immigration and Border Protection [2020] FCA 681. The appellant subsequently sought and obtained an extension of time within which to appeal against that order of dismissal: BTI15 v Minister for Immigration and Border Protection (No 2) [2021] FCA 355.

6    The notice of appeal is, with respect, unduly prolix, It also conflates grounds which might be apt for an exercise of original jurisdiction in respect of the judicial review of the Tribunal’s decision or for deciding on the merits whether to grant an extension of time within which to apply for such review with a relevant allegation of error by the learned primary judge in failing to find jurisdictional error on the part of the Federal Circuit Court in dismissing the extension of time application.

7    At the heart of the appellant’s appeal is this question: was the learned primary judge in error in failing to conclude that the Federal Circuit Court had misconceived the jurisdiction conferred on that court by s 477(2) of the Act to grant an extension of time within which to apply for judicial review of the Tribunal’s decision? It was this question which, in conjunction with the explanation offered for the delay in filing a notice of appeal within time, attracted the grant of an extension of time. Given the nature of the original jurisdiction exercised by the Court, success for the appellant on the appeal is wholly dependent upon his securing a favourable answer to this question. On the hearing of the appeal, I understood the appellant's counsel to accept this proposition.

8    Answering this question requires that an account first be given of the context in which it arises. That entails summarising the basis upon which the appellant claimed a protection visa and why it was that the Tribunal affirmed the decision to refuse him that visa. It then entails summarising the basis upon which the appellant sought an extension of time from the Federal Circuit Court and why it was that that court dismissed his application for such an extension.

9    The learned primary judge offered such summaries in his reasons for judgment at [6] – [12] and [13] – [30] respectively. These I gratefully incorporate by reference without repetition. Given the question posed on the appeal, some elaboration of the evidence before the Federal Circuit Court and of the reasons given by that court for the refusal is necessary.

10    The power to grant an extension of time is conferred in these terms by s 477(2) of the Act:

477    Time limits on applications to the Federal Circuit Court

…

(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.

11    The learned Federal Circuit Court judge approached the exercise of the power conferred by s 477(2) of the Act in the circumstances of the case before him on the basis stated at [9] of his reasons for judgment:

In my view, it falls into the category discussed in authorities such as Vella v Minister for Immigration & Border Protection [2015] HCA 42, where his Honour Gageler J said, that given the delay he would only reach a state of satisfaction required by the Act were he to be persuaded that the applicant’s case was exceptional. His Honour there referred to the decisions in Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474, [13]; [2000] HCA 67 citing Gallo v Dawson (1990) 64 ALJR 458 at 459.

12    Before the Federal Circuit Court and in order to explain his delay, the appellant relied on affidavit made by him in which, materially, he stated:

3.    The application was filed on 31 August 2015 and is out of time by 10 months and 29 days.

4.    I have been suffering from a history of mental illness. I was diagnosed with mental illness and hospitalised on 18 January 2012 and spent 10 days in a Psychiatric and Addiction hospital.

5.    Annexed and marked with the letter 'B' is a true copy of the report by El Nozha Hospital.

6.    I was hospitalised on 4 separate occasions prior to this due to my mental instability.

7.    During my RRT proceedings I did not have a representative. I attended the Tribunal on my own and did not seek any advice.

8.    I was not aware that I could lodge an application for judicial review when my RRT appeal was unsuccessful.

9.    I suffer from mental illness which has contributed to my inability to obtain proper legal advice in order to pursue judicial review.

13    Before the Federal Circuit Court, no objection was taken to the appellant’s reliance on this affidavit. Nor was he cross-examined on its contents.

14    As to this affidavit, the learned Federal Circuit Court judge observed, at [11] – [14]:

11.    In my view, the applicant has not given any reasonable excuse for the significant delay in these proceedings. For instance, while he relies predominantly on his history of mental illness, the medical certificate indicating that he received treatment at a psychiatric and addiction hospital related to a period in January 2012 in Egypt. The applicant says that he was hospitalised on four separate occasions prior to that due to his mental instability, but there is no evidence of any instability at all in Australia, where the applicant has been since January 2013 when he arrived here on a tourist visa.

12.    Further, the applicant has not given any evidence of how that mental illness might have impacted on his ability to appreciate and take action upon the consequences of the Tribunal’s decision and, in particular, what steps he might do in order to address his dissatisfaction with it. Counsel for the applicant said in submissions, although this was not supported by evidence, and counsel for the Minister asked the Court to accept, that the applicant had, instead of seeking judicial review, made an application to the Minister for intervention under s.417 of the Act.

13.    I do not consider, even if that were to be accepted, that that is a reasonable excuse. It does reveal however, that the applicant was able to obtain some advice about steps that can be taken under the Act in connection with the adverse decision of the Refugee Review Tribunal. It may be that such assistance was obtained from the applicant's brother and sister, who appear from the material before the Court to be resident in Australia.

14.    Some importance is also that the applicant’s evidence contains no explanation of what steps were taken in order to obtain advice. There is nothing to say, for example, that the applicant actually tried to obtain legal advice, whether free or paid, and that those attempts were unsuccessful. I infer that possibly upon the rejection of the application under s.417 and until the very late stage, the applicant took no steps to seek advice concerning judicial review or any other step apart from the s.417 application in connection with the decision of the Tribunal.

15    His Honour then stated, at [15]:

15.    That fact, together with the extreme delay, weighs very heavily against the applicant. In my view, it would require significantly strong grounds of review in order to overcome both of those matters.

16    The learned Federal Circuit Court judge then proceeded to analyse in detail the prospective merits of the proposed judicial review application in light of the proposed grounds of review. His Honour concluded that they had little, if any, merit. In light of this and his conclusion concerning the failings of the explanation offered for the delay, his Honour concluded that it was not in the interests of justice to grant the extension dismissed the application.

17    With reference to Craig v The State of South Australia (1995) 184 CLR 163 (Craig), the learned primary judge approached the judicial review application before him on the basis that it was necessary for the appellant to demonstrate jurisdictional error on the part of the Federal Circuit Court in dismissing the extension of time application. Having quoted the statement in Craig, at 178, that the “line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” his Honour observed, with respect correctly, “that does not, however, alleviate the requirement to establish jurisdictional error in the case at hand”.

18    Craig is also important for two further reasons.

19    One is the reminder offered in Craig, at 175, of the need not to assimilate the supervisory jurisdiction exercised by a superior court, via the granting of remedies of certiorari and related constitutional writs, with appeals enabling a general review of a decision of a lower court or administrator and the substitution of the court's own view as to the order or decision which should have been made. In such an appeal, it is both necessary and sufficient for an appellant to demonstrate error in order to enliven the appellate court’s power to substitute its own decision. But the error concerned need not be jurisdictional.

20    The other reason is supplied by another reminder offered in Craig, at 176, which is of a need, so far as amenability to certiorari is concerned, to distinguish between inferior courts exercising judicial power and officers or other emanations of the Executive exercising administrative power. The Federal Circuit Court, as it was in 2016 when the order dismissing the extension of time application was made, was an inferior court charged with the exercise, within the limits of its jurisdiction, of the judicial power of the Commonwealth. As to inferior courts, it was stated 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.

21    It was later stated in Kirk v Industrial Court (NSW) (2010) 239 CLR 531, at [73], with reference to the passage I have reproduced from Craig, that it is “not to be seen as providing a rigid taxonomy of jurisdictional error”. Nonetheless, it remains the case that the two reminders offered by Craig in relation to certiorari remain consistent with the following observation earlier made by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin), at 36, “the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise”. That observation was later cited with approval by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, at [33], with reference, inter alia, to Craig.

22    The reasons for judgment of the learned Federal Circuit Court judge were delivered ex tempore. That they were so delivered is not a panacea for jurisdictional error but it does dictate that, in an exercise of an original, judicial review jurisdiction in respect of resultant orders and, as now, in an exercise of appellate jurisdiction, reasons so delivered not be scrutinised narrowly and with an eye for error. The volume of judicial business encountered in the Federal Circuit Court is very great indeed, including in the exercise of jurisdiction conferred on that court by the Act. It is understandable in these circumstances that judges of that court will, to the extent they consider practical and just, chose to deliver reasons for judgment ex tempore. To do otherwise would, inevitably, lead to inordinate delay in the determination of cases after their hearing.

23    Approaching the present case with this in mind discloses that the learned Federal Circuit Court judge correctly apprehended, at [2], that the jurisdiction he was called upon to exercise was that conferred by s 477 of the Act and that a relevant consideration in the exercise of that jurisdiction, flowing from s 477(2) of the Act, was whether he was satisfied that it was necessary in the interests of the administration of justice to make the order granting an extension of time. It also discloses that the learned Federal Circuit Court judge finished his consideration of whether to grant an extension of the period within which to make an application for judicial review by concluding that it was not in the interests of the administration of justice to grant that extension. His Honour thus commenced and concluded his consideration of whether to grant the extension by reference to the correct source of jurisdiction and the applicable, relevant consideration. That is not a promising foundation for a contention that the learned primary judge was in error in concluding that the order of dismissal was not attended with jurisdictional error.

24    The jurisdictional error concerned was alleged by the appellant to be found in an overly restrictive understanding by the learned Federal Circuit Court judge of what might yield a conclusion that it was in the interests of the administration of justice to grant an extension.

25    As to this consideration, the learned Federal Circuit Court judge did no more than first to observe, at [3], that, “the matters to which regard may be had are not expressly confined by the Act”. Pausing there, that observation is, unquestionably, correct. Having made that overarching observation, his Honour continued:

[The] matters which are usually relevant, and which are relevant to the current proceedings and were relied on by the parties, include the following:

(a)    the extent of the delay and the reasons for it;

(b)    any prejudice to the respondent;

(c)    the impact on the applicant if the time is not extended;

(d)    the interests of the public at large; and

(e)    the merits of the substantive application.

26    As to this statement, it will be noted that his Honour stated that these matters were “usually relevant” and were not exhaustive (“include the following”). All of this is correct.

27    It was not put to us or to the primary judge that the identified matters had not been relied upon by the parties. It is only natural, in circumstances where the parties chose to present their respective cases in a particular way, that the resultant reasons for judgment will be reactive to that presentation. Once again, that presentation and that judicial reaction will also not be a panacea for any jurisdictional error evident in that presentation and resultant judicial reaction. But where the resultant judicial reaction commences with a correct recitation of the jurisdiction which falls to be exercised and what is relevant to that exercise, does not descend into an incorrectly restrictive recitation of what is relevant and concludes by reference to the relevant consideration, it is difficult indeed to distil jurisdictional error from reasons for judgment so formulated.

28    Of course it is the case that a mechanical, “check list” approach to what is or is not “in the interests of the administration of justice” is to be eschewed. It may readily be accepted that the statutory touchstone bespeaks a broad, multifactorial, case specific evaluation in relation to which matters which may permissibly be considered may interplay and indeed may pull in different directions. Yet further, it is essential not to elevate matters which, in the overall and different context of other cases proved determinative, into invariably determinative considerations in all cases. That is why I have, deliberately, not engaged in an analysis of the myriad of cases, cited in submissions and for that matter by the learned Federal Circuit Court judge, which were decided in the original jurisdiction either of the High Court of Australia or this court in which it has fallen to judges on particular facts to decide whether or not to grant an extension of time.

29    Equally however, it is a necessary discipline in the exercise of a judicial review jurisdiction in respect of an inferior court not to let sympathy for the predicament of a particular applicant become a surrogate for finding jurisdictional error. Hence the importance and present relevance of the observation made by Brennan J in Quin to which I have referred. The Tribunal found that the appellant had been subjected to torture and to cruel, inhuman or degrading treatment during his military service or during his imprisonment in Egypt, all as a result of his particular objection to the undertaking of military service. There was evidence before the Federal Circuit Court that the appellant had, more than once, undergone hospitalisation and related treatment in Egypt for mental illness. Well it might have been or was that this was related to his treatment while in the military and his related imprisonment. Equally, there was evidence before that court that the appellant had not undertaken further such treatment after arriving in Australia on a tourist visa in 2013 and that he had the support of a brother and sister apparently resident in Australia. All of these matters, as well as the sheer length of the delay and his Honour's assessment of the strength of the proposed grounds of review were evaluated by the learned Federal Circuit Court judge to the end of deciding whether it was in the interests of the administration of justice to grant an extension. It is nothing to the point that the primary judge, or I, might, if embarked on that same exercise of jurisdiction under s 477 of the Act and on the same facts, have reached a different conclusion or even the same conclusion. That is because, jurisdictional error is not to be found in any such disagreement or agreement.

30    All of this was correctly understood by the primary judge. His Honour characterised the passages in the reasons of the learned Federal Circuit Court judge in which jurisdictional error was said to be found as revealing nothing more than an appreciation of the balancing exercise entailed in the circumstances of the present case, which materially included a delay of 11 months relative to the prima facie period of 35 days within which to apply for judicial review. More particularly, the primary judge stated, at [41] – [42]:

41    Exactly the same could be said in relation to the Circuit Court judge’s observations that, in the particular circumstances of the applicant’s case, it would require “significantly strong grounds of review” in order to overcome the extreme delay and the applicant's failure to adequately explain it. A court, in considering whether it is satisfied that it is necessary in the interests of the administration of justice to make an order extending time, is generally required to weigh a number of different, and often competing, considerations. Some will weigh in favour of an extension and some will weight against. Extreme delay and an inadequate explanation will weigh heavily against granting an extension. If the applicant has strong grounds, that may nevertheless outweigh those other considerations. If, on the other hand, an applicant was only able to demonstrate faintly arguable grounds, that may not outweigh those other considerations. Likewise, if the delay was very short and had been reasonably explained, the balance may tip in favour of an extension even if the applicant is only able to establish faintly arguable grounds of review.

42    That is all that the Circuit Court judge was saying when he said that it would require “strong grounds of review” in order to overcome the “extreme delay” and the absence of any reasonable excuse for it. His Honour was not laying down a concrete rule in relation to the construction or operation of subs 477(2) of the Act. He was simply referring to the particular balancing exercise in the case before him. There is accordingly no basis for the contention that, in referring to the need for the applicant to show “strong grounds”, his Honour misconstrued subs 477(2) of the Act or misconceived the function or power he was exercising.

I respectfully agree with this analysis.

31    The present appeal has provided a useful opportunity to reiterate some features both of the jurisdiction conferred on what is now the Federal Circuit and Family Court of Australia (Division 2) by s 477 of the Act and of the judicial review of evaluative judgments made by that court in the exercise of that jurisdiction. However, the appellant has not established any error by the primary judge in concluding that the order made by the Federal Circuit Court to dismiss his extension of tine application was not attended with jurisdictional error. Accordingly, the appeal should be dismissed, with costs to follow that event.

Associate:    

Dated:    30 March 2022

REASONS FOR JUDGMENT

JAGOT AND HALLEY JJ:

32    We have had the advantage of reading in draft the reasons for judgment of Logan J. We agree with his Honour that the primary judge did not err in dismissing the appellant’s application for judicial review in BTI15 v Minister for Immigration and Border Protection [2020] FCA 681.

33    The relevant essence of the appellant’s case is that, in refusing the application for an extension of time, the Federal Circuit Court judge impermissibly imposed an inflexible conceptual framework on the inherently broad evaluative task of deciding whether the Court was satisfied “that it is necessary in the interests of the administration of justice to make the order” as provided for in s 477(2)(b) of the Migration Act 1958 (Cth). The primary judge is said to have erred in not accepting this contention.

34    The error of the Federal Circuit Court judge was said to be exposed in the reasons for judgment in BTI15 v Minister for Immigration [2016] FCCA 2326 at [8], [9] and [15] where the judge said: (a) the delay in seeking the extension of time was significant, (b) as a result, the case fell into the class described by Gageler J in Vella v Minister for Immigration & Border Protection [2015] HCA 42; (2015) 326 ALR 391 where his Honour said that given the delay he would only reach the state of satisfaction required by the Act were he to be persuaded that the applicant’s case was exceptional (at [3]), and (c) the length of the delay together with the lack of evidence of any steps taken by the appellant to obtain legal advice meant that “it would require significantly strong grounds of review in order to overcome both of those matters”.

35    Consideration of the decisions which identify the need for an “exceptional” case to justify lengthy delay in the making of an application and the grant of an extension of time demonstrates that the concept has not been applied in any rigid manner divorced from the complexity and nuance of the full circumstances relating to the need for the application to extend time to be made.

36    In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 481 McHugh J said that a “case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved” (emphasis added).

37    In Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [13] McHugh J referred to Gallo saying that:

In Gallo v Dawson, I said that the grant of an extension of time under O 60 r 6 is not automatic. This is as true of an application for constitutional relief under s 75(v) as it is in respect of an appeal. I also said that, when the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. A similar inquiry must be made when the application is for an extension of time in which to commence s 75(v) proceedings to quash an act, decision or judgment. A “case would need to be exceptional” before the time for commencing proceedings was enlarged by many months. The explanation for such a delay is also a relevant consideration.

(Citations excluded).

38    In Vella at [3] Gageler J recorded that senior counsel for the applicant had “properly conceded that, given the length of the extension sought, I would only reach that satisfaction were I to be persuaded that Mr Vella’s case is ‘exceptional’”. The extension of time sought in that case was 16 months. Gageler J refused the extension saying at [20] that “given the length of the period for which the extension is sought and the forensic choices which have been made in the litigation which was pursued in the Federal Court during that period, I am not satisfied that it is necessary in the interests of the administration of justice to make the order extending the period for the making of the application…”.

39    Had the judge of the Federal Circuit Court simply asked whether the circumstances of the case were “exceptional” and done no more than equate a conclusion of non-exceptionality with a negative answer to the question concerning the state of satisfaction required under s 477(2)(b) (that is, the Court was satisfied “that it is necessary in the interests of the administration of justice to make the order” for an extension of time), we would have concluded that the judge failed to exercise jurisdiction as required by the terms of s 477(1). We also would have reached the same conclusion had the judge done no more than placed, on one side of the notional scales, the two factors of lack of evidence explaining what steps were taken to obtain advice and the length of the delay (about 10 months) and, on the other side of the scales, the prospective merits of the case and, if the first side outweighed the second side, equated that outcome with a negative answer to the question concerning the required state of satisfaction under s 477(2)(b).

40    Exercises as described above do not discharge the obligation of the Court to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice.

41    In undertaking the task of judicial review it is necessary to discern from the reasons for judgment as expressed whether the decision-making process has miscarried in the requisite sense (as explained in Craig v The State of South Australia (1995) 184 CLR 163 at 175-177, referred to in the reasons for judgment of Logan J). The question whether a particular state of satisfaction has been reached involves an exercise in the mind of the decision-maker. The giving of reasons explaining why the state of satisfaction has or has not been reached is an exercise in the mind and an exercise in communication. Common human experience routinely exposes the imperfections of language as a means of communication of our states of mind. In the process of judicial review, allowances are made for these imperfections. Reasons are not scrutinised assuming error has occurred. Reviewing courts understand that while reasons are written in sequence, the decision-maker is aware (at least ultimately) of all parts of the reasons simultaneously. Whether expressly stated or not, parts of reasons interact with other parts of reasons and must be understood in the context of the reasons as a whole. Reasons reflect, to greater and lesser extents, the conceptual framework and language of the competing arguments. Statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context.

42    In the present case the judge did place the case into a purported “category” at [9]. The purported category was “lengthy delay [about 10 months] requires exceptional circumstances”. As we have said, had the judge’s analysis thereafter done no more than equate the required state of satisfaction with a conclusion about whether the case involved exceptional circumstances, we would have been persuaded that the exercise of jurisdiction miscarried in the sense identified in Craig at 177. This did not occur, however.

43    Rather, the Federal Circuit Court judge considered and evaluated the whole of the relevant circumstances including at [3] – [36] and concluded in these terms at [37]:

For those reasons, I consider that there is little, if any, merit in the grounds raised by the applicant in respect of the Tribunal’s decision. For that reason, taken together with all of the other considerations, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the period within which to make an application for judicial review. The application will be dismissed.

44    Nothing in the reasons indicates that the judge equated exceptional circumstances with the required state of satisfaction or simply weighed two factors (delay and lack of evidence of steps taken to obtain advice) against one factor (the prospective merits of the case) and equated that outcome with the required state of satisfaction. It is apparent that the judge weighed all of the relevant factors in the correct conceptual framework established by s 477(2)(b). No legal error, jurisdictional or otherwise, is apparent in the judge’s process of reasoning from the reasons expressed as a whole.

45    The other contentions for the applicant are not capable of characterisation as legal, or jurisdictional, error by the Federal Circuit Court, or involve a multiplicity of ways in which to say the same thing. Those contentions find no traction in the law. The appeal must be dismissed with costs.

Associate:

Dated:    30 March 2022