Federal Court of Australia

FKV17 v Minister for Home Affairs [2022] FCAFC 93

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 2 of the orders made by the Federal Court of Australia on 25 November 2019 be set aside except insofar as it ordered the appellant to pay the first respondent’s costs.

3.    The orders made by Federal Circuit Court of Australia on 20 August 2018 be quashed.

4.    The Federal Circuit Court and Family Court of Australia (Division 2) hear and determine the appellant’s application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time according to law.

5.    The first respondent pay the appellant’s costs of the appeal and the appellant’s costs in the Federal Circuit Court of Australia thrown away as a result of Orders 3 and 4.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    These proceedings are concerned with an appeal from orders of a Judge of this Court (Collier J) dismissing an application under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act”) for the grant of the constitutional writs of prohibition, mandamus and certiorari in relation to a judgment and orders of the Federal Circuit Court of Australia by which that Court refused to grant the appellant an extension of time within which to bring judicial review proceedings in the exercise of that Court’s original jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”).

2    The appellant had sought an extension of time to bring judicial review proceedings under s 476 of a decision of the Administrative Appeals Tribunal (the “Tribunal”) affirming a decision of the Minister’s delegate (then described as the Minister for Immigration and Border Protection) to refuse the appellant the grant of a Protection (Class XA) visa.

3    On 13 November 2020, the Court granted the appellant leave to rely on an amended notice of appeal notwithstanding that the ground sought to be relied upon had not been raised in argument before Collier J. Having regard to the ground of appeal now relied upon, it will not be necessary to analyse in any detail the reasoning of Collier J. In these reasons, references to the “primary court” and the “primary judge” are references to the Federal Circuit Court and to his Honour, Vasta J, respectively.

4    Before turning to the single ground of appeal and the five particulars given in support of it, the following provisions of the Act should be noted.

5    Section 476(1) confers on the primary court the same original jurisdiction in relation to a “migration decision” as the High Court has under s 75(v) of the Constitution. It is common ground that the decision of the Tribunal is a “migration decision” in respect of which the primary court had original jurisdiction under s 476 of the Act (taking into account s 476A of the Act). An application to the primary court for a remedy to be granted in the exercise of that court’s original jurisdiction under s 476 in relation to a migration decision must be made to that court within 35 days of the date of the decision: s 477(1).

6    In the present case, the appellant failed to file an application for judicial review in the exercise of the primary court’s s 476 jurisdiction within 35 days and filed the application 90 days out of time (125 days after the date of the Tribunal’s decision). Accordingly, the appellant sought an extension of time under s 477(2) of the Act in order to make the primary or substantive application.

7    Section 477(2) of the Act provides that the primary court may extend the 35 day period as it considers appropriate if an application has been made seeking such an order specifying why the applicant considers it is “necessary in the interests of the administration of justice” to make the order; and, the primary court “is satisfied” that it “is necessary in the interests of the administration of justice” to make the order.

8    For completeness, the text of s 477(1) and (2) is set out below:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

9    As can be seen from the text, the discretion to extend the 35 day period is conferred in very broad terms (as the primary court considers “appropriate”) if it can reach the statutory state of satisfaction that it is “necessary” in the “interests of the administration of justice” to make the order: s 477(2)(b).

10    Like all statutory provisions, the meaning to be attributed to the text in determining the scope or limits of the power conferred on the particular repository of the power in question is to be found in the text, having regard to the subject matter and purpose of the provisions. Where a question arises as to whether the repository of the power has exceeded the limits of the power, the character of the repository of the power selected by the Parliament to exercise the power (for example, an exercise of administrative power on the one hand or an exercise of the judicial power of the Commonwealth on the other hand) is a material consideration. I will return to that matter later in these reasons.

11    Importantly, s 476A(3) provides that despite s 24 of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that makes an order, or refuses to make an order, under s 477(2) of the Act.

12    The statutory question for the primary judge was whether he could be satisfied that it was necessary in the interests of the administration of justice to exercise the power to make an order extending the 35 day period for the purpose of enabling the appellant to invoke the primary court’s original jurisdiction under s 476 to seek a remedy (contemplated by s 75(v) of the Constitution) in relation to the Tribunal’s decision.

13    In answering that question, the primary judge is said to have fallen into error which constitutes jurisdictional error. In other words, in exercising the power conferred on the primary court, the primary judge has not only engaged in error but has exceeded the limits of the power conferred on the repository.

14    The ground of appeal is put this way. In determining the application under s 477(2), the primary court “misapprehended a relevant issue” because it “conflated” a consideration of the merits of the grounds for substantive relief and a view as to the “final disposition” of the substantive application when determining whether the discretion conferred under s 477(2) ought to be exercised to extend the 35 day period to enable the substantive application to be brought.

15    In particular, the appellant contends for these propositions.

16    First, the primary court was required to consider the merits of the grounds of the substantive application for relief so as to determine whether failure to grant an extension of time would deprive the appellant of an opportunity of presenting an “apparently viable case” to a court of competent jurisdiction capable of granting an appropriate remedy: Particular A.

17    Second, in determining the extension of time application, the primary court was not required to be satisfied that the appellant’s application for substantive relief “would”, or “should”, succeed: Particular B.

18    Third, in deciding the extension of time application, the primary court relied on its finding that the appellant’s substantive application “failed” but did not consider the merits of the substantive application “more generally” nor whether the application raised an apparently viable case: Particular C.

19    Fourth, where an application for an extension of time and the application for substantive relief are heard together and the application for substantive relief is refused, the particular disposition of the extension of time application can have significant consequences. If the extension of time is granted, but the substantive application is refused, an applicant has a right of appeal from that refusal under s 24(1) of the FCA Act but if the extension of time is refused on the footing that a right to a remedy under s 476 is not made good in relation to the substantive proceeding, there is no appeal from the refusal of the extension of time to bring the refused application: Particular D.

20    Fifth, the primary court misapplied the relevant merits test in determining the extension of time application: Particular E.

21    For the appellant, the relatively short point in the appeal comes down to this. In considering the application to extend the 35 day period (and thus the exercise of the discretionary power conferred under s 477(2)), the primary court was required to examine the proposed grounds of judicial review (the so-called “merits factor”) at “a reasonably impressionistic level” and determine whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” and not to transform the application into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. In particular, the appellant relies on the following observations of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (“MZABP”) at [62], [63] and [66]. Before setting out those paragraphs of her Honour’s reasons, it should be noted that the matters addressed by her Honour in these paragraphs were not raised as any ground or basis of review before her Honour; they had not been addressed by the Minister; and thus, as her Honour observes at [61] and [69], the observations her Honour makes in the quoted paragraphs could not be relied upon as a basis for granting any relief in the proceeding before her. Nevertheless, her Honour considered that “lest” her reasons be taken as an “endorsement” of the approach adopted by the Federal Circuit Court in the case before her, it was appropriate to express her Honour’s “disquiet” about the way in which the Federal Circuit Court had dealt with the “factor of the merits” of the applicant’s grounds of review. Recognising that the matter was not in controversy before her, could not ground any relief and the Court was without the Minister’s view, her Honour said this:

62    … [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 … into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

63    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” … 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.

…

66    … In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.

[emphasis added]

22    The proceeding before her Honour in MZABP, like the proceeding before Collier J, was an exercise of original jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act in which it was contended that the Federal Circuit Court had engaged in jurisdictional error on a number of grounds (although not a ground reflecting the observations at [62], [63] and [66]).

23    At [68], her Honour said this in MZABP on the question of whether adopting an approach reflected in the observations at [62], [63] and [66] could be characterised as an excess of jurisdiction (or alternatively error within jurisdiction) which she described as “another and difficult question”:

68    In [Kirk v Industrial Court (NSW) (2010) 239 CLR 531] (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. 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.

24    In the result in MZABP, her Honour was not satisfied that the primary judge in that case had taken the kind of erroneous approach to the exercise of the s 477(2) discretion referred to by her Honour in the quoted paragraphs.

25    These observations of her Honour were affirmed on appeal in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, Tracey, Perry and Charlesworth JJ at [23] and [38], although it was not necessary for the Full Court to address the question having regard to the grounds of appeal before the Court for determination. The appellant contends that a number of Full Court decisions of this Court have accepted the proposition that the Federal Circuit Court will fall into error if, in deciding whether to grant an extension of time under s 477(2) of the Act, it approaches the question of the applicant’s prospects of success as though it were making a final decision on the putative judicial review application: CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 (“CNC15”) at [40], White, Perry and Steward JJ; DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64 (“DKX17”) at [95], Rangiah J (Reeves J and Bromwich J agreeing); DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 (“DHX17”) at [64]-[87], Collier, Rangiah and Derrington JJ.

26    The appellant contends that such error reflects a misconception of the power going to jurisdiction, characterised as an excess of jurisdiction on the part of the primary court. In particular, the appellant relies on the observations in DHX17 at [68] that “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” and, also at [68], “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”. The appellant also emphasises these observations at [76] in DHX17, the Full Court having described the threshold assessment of merit as a “low hurdle”: “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”.

27    The Minister contends that the authorities relied upon by the appellant mentioned at [25] of these reasons do not hold that a court will fall into jurisdictional error whenever it approaches s 477(2) as though it were making a final decision on the judicial review application, and as to DHX17, properly examined, it is not authority for the proposition that by engaging in more than an impressionistic evaluation of the merits of the substantive application in an application under s 477(2), a court will fall into jurisdictional error. However, the Minister also contends that to the extent that DHX17 is thought to be authority for the proposition that more than an impressionistic evaluation of the merits of the substantive review grounds engages an excess of jurisdiction, DHX17 is wrongly decided. Thus, the correctness of that decision to the extent that it contends for jurisdictional error should a primary court engage with the merits factor beyond the threshold level of the “low hurdle”, is put in issue.

28    I would respectfully suggest that there is nothing in the express terms of s 477(2) which suggests that when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless” or that the primary judge is confined to determining whether, “simply on an impressionistic reading and consideration without full argument a judge can be confident that they must fail”. It may well be that in order to answer the statutory question arising under s 477(2), the primary judge will be required to look more closely at each of the grounds, but always keeping in mind the statutory purpose of the conferred power in s 477(2) to extend time, as enabling of a substantive application going to a remedy relating to whether a decision-maker has fallen into jurisdictional error affecting matter including the question of whether Australia owes protection obligations to an applicant, and in that context, the question is whether the primary court can be satisfied that it is necessary in the interests of the administration of justice to make the extension of time order sought in the particular circumstances of the case.

29    It would mistakenly diminish the breadth of the Parliament’s statutory conferral of the power, to subject the discretion to rigid rules that anything beyond simply an impressionistic consideration of the merits of the grounds of review amounts to error in the exercise of the s 477(2) power and that such error takes the exercise of judicial power outside the “authority to decide” of the Federal Circuit Court resulting in jurisdictional error.

30    Indeed, it may well be appropriate and at least serve the interests of the administration of justice to consider an application to extend the 35 day period in conjunction with, in a properly programmed way, the substantive grounds for s 476 relief. In many respects, the question of the extent to which the primary court might seek to engage with the merits of the grounds of substantive relief in an application for an extension of time is governed by the way in which the application to extend time has come forward for hearing and the basis upon which the parties have acted. It is therefore important to consider the programming orders in this case that led to the hearing before the primary judge.

31    In the present case, the appellant filed an application on 12 December 2017 for a remedy under s 476 of the Act in respect of the Tribunal’s decision. As already mentioned, the application was 90 days out of time. In that application, the appellant also recited that he was seeking an extension of the 35 day period. The application for an extension was supported by an affidavit of the appellant affirmed on 12 December 2007. An amended review application was filed on 14 March 2018 and a further amended review application was filed on 16 August 2018.

32    A series of programming orders were made by Registrar Buckingham in the primary proceeding on 22 January 2018.

33    Order 1 required the Minister to file and serve a bundle of documents (the “green book”) in a particular electronic format, searchable by text with all documents indexed and paginated with each entry in the index bookmarked. The green book of documents concerns all of the documents relevant to the Tribunal’s decision and the application for review by which a remedy is sought under s 476.

34    Order 2 required the appellant to file and serve any amended application for review by 14 March 2018.

35    Order 3 required the appellant to file by 14 March 2018 any further affidavit material containing any additional evidence upon which the appellant proposed to rely “relevant only to the grounds of review”.

36    Order 4 required the Minister to file by 11 April 2018 any affidavit on which he proposed to rely.

37    Order 5 provided for the filing and serving by 28 days before the date of the hearing (on 13 August 2018) of written submission by the appellant in support of the application for review.

38    Order 6 provided for the filing and serving of the Minister’s submissions in response to the application for review by 14 days prior to the hearing (13 August 2018).

39    Order 7 provided for the adjournment of the application (for review) to 13 August 2018 at 12.00pm for the hearing of the application for an “extension of time, and if time is extended, hearing of the application before a judge in the Federal Circuit Court of Australia sitting at Brisbane”. Clearly enough, at that point in the chronology of the proceeding, the matter had not been allocated to any particular docket judge in the primary court.

40    Order 8 provided for liberty to apply on three days’ notice.

41    At this point in the proceedings before the Federal Circuit Court, the application for an extension of time was to be listed for hearing on 13 August 2018 on the footing that all of the programming orders were in place for the hearing of the application for review should the primary court extend the 35 day period. The parties would be attending the hearing on 13 August 2018 at 12.00pm fully expecting and ready to engage on the extension application and, should it be necessary, the substantive application for review.

42    Although the hearing was set down for Monday, 13 August 2018, the hearing occurred on Thursday, 16 August 2018. Both the appellant and the Minister were represented by counsel.

The decision of the primary judge

43    At [4], after a brief introduction, the primary judge observes that the application before him is “for leave to file out of time” and observes that “I did hear full argument on the merits of the substantive application”. The Minister describes the primary judge’s analysis of each ground of review as “shortly and firmly expressed” and as going no further than a “fairly broad brush approach” to the merits and one not disclosing “substantially more than an impressionistic evaluation of the merits”. However, as the primary judge regarded himself as having heard full argument on the merits of the review application, this Court ought to accept that assessment as at least the approach the primary judge adopted.

44    At [5] to [24], the primary judge sets out a description of the claims of the appellant which provided the foundation facts said to support the appellant’s Protection visa claims. At [25] to [34], the primary judge identified aspects of the primary findings of the Tribunal. The Tribunal’s reasons comprise 19 pages and clearly enough, the 10 brief paragraphs in the primary judge’s reasons do not seek to closely examine the detail of the findings or the analytical foundations for the findings.

45    At [35], the primary judge identifies Ground 1 of the review application. At para 56 of the Tribunal’s reasons, reference is made to a Certificate issued by the Department under s 438 of the Act certifying that the disclosure of information at particular nominated folios of the departmental file (Folios 46 to 50 and Folio 78) would be contrary to the public interest. Ground 1 of the review application challenged the validity of that Certificate and contended that as a consequence of reliance on an invalid certificate, the non-disclosure of information under s 438(1)(a) of the Act constituted a denial of procedural fairness by reason of ss 424A, 424AA or 425 of the Act. At [37] to [52], the primary judge examined the ground and concluded that para 56 of the Tribunal’s decision had been included in error. The primary judge described para 56 of the Tribunal’s reasons as “quite anomalous” as Folio 46 was the Protection visa application itself; Folio 50 was the affidavit of the appellant in support; and Folio 78 was the Protection visa decision record. The primary judge notes that at para 56 the Tribunal had said that it had not taken information in these folios into account, when clearly the Tribunal reasons (described by the primary judge as “very thorough”) demonstrate that information in these fundamental folios had been taken into account, as was mandatory. Having examined the ground, the primary judge concluded at [49] that the inclusion of para 56 in the Tribunal’s reasons was in error and concluded that that was “the only rational conclusion that I could come to, given the state of all the evidence before me”.

46    The further amended review application of 16 August 2018 addresses an affidavit of the departmental officer (the delegate who refused the appellant a Protection visa) who completed the “Disclosure Decision Checklist” placed on the departmental file. That checklist said “No” to any s 438(1)(a) documents; ringed Document No. 6 as a s 438(1)(b) document; and circled “Yes” as to an attached certificate of non-disclosure. In the affidavit, the delegate contended that circling “Yes” was “in error” and no non-disclosure certificate was ever issued under s 438(1)(a) or (b) of the Act. The appellant contended for three errors on the part of the Tribunal constituting jurisdictional errors concerning the question of s 438 and para 56 of the Tribunal’s reasons.

47    At [54], the primary judge identifies Ground 2 of the review application. The contention was that the Tribunal misapplied the relevant law with regard to the real risk of harm to the appellant from the “Asha” family. The ground contended that there was an insufficient logical or evidentiary basis for the Tribunal’s findings that the appellant did not face a real risk of serious harm. The primary judge examined that ground at [55] to [60] and concluded at [60] that the finding was “open on the evidence” and that it could not be said “that there was an insufficient logical basis for the finding”.

48    At [62], the primary judge identifies Ground 3 by which the appellant contended that there was an insufficient logical or evidentiary basis for the Tribunal’s finding at para 33 that he did not face a real risk of serious harm for the purposes of his claims to hold a well-founded fear of persecution or a real risk of significant harm for the purposes of his complementary protection claims, from the Lord’s Resistance Army (“LRA”). The primary judge examined that ground at [63] to [67] observing at [64] that counsel for the appellant was “arguing a totally new ground” and observed at [65], that the ground was one not “actually ever made” by the appellant and one “not considered by the Tribunal”. Because the contention had not been made or put to the Tribunal, the primary judge concluded at [66] that it could not now be considered as the basis of a claim of jurisdictional error in the decision-making of the Tribunal.

49    At [68], the primary judge identifies Ground 4. By that ground, the appellant contended that there was an insufficient logical or evidentiary basis for the Tribunal’s findings that the appellant did not face a real risk of serious harm or a real risk of significant harm due to psychological, social, economic or political factors, or other identified factors recited in the ground of challenge, after the Tribunal having accepted that he was a former child soldier for the LRA and he has no family in Uganda.

50    As to these matters, the primary judge concluded that there was “simply no evidence” that the appellant would be persecuted for any of the identified reasons and as to para 38, the primary judge concluded at [70] that the Tribunal’s reasons illustrate a “logical conclusion” and were “open to the Tribunal”. Similarly, the Tribunal’s findings at paras 50 to 54 on this topic concerning complementary protection were put this way by the primary judge at [71]: “There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal”.

51    At [73], the primary judge identifies Ground 5 of the review application by which the appellant contended for an insufficient logical or evidentiary basis in the Tribunal’s finding at para 58 that although his particular circumstances provided a “sound basis for believing that there is a significant threat to his human rights or human dignity”, should he return to Uganda, the “mistreatment” he might suffer in that regard did not “meet the criteria for the grant of any type of protection visa”, but nevertheless did provide a basis for referring the appellant’s case to the Minister under the Ministerial guidelines for the possible grant of a visa under s 417 of the Act. The primary judge concluded at [77] that the Tribunal’s observation at para 58 was consistent with its earlier reasoning that it was not satisfied that the appellant’s claims met the statutory criteria for the grant of any type of protection visa. At [78], the primary judge observed that the Tribunal’s remarks in issue by Ground 5 were “not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error” in the Tribunal’s decision-making.

52    At [80] to [83], the primary judge considered the question of the application for an extension of time.

53    At [82], the primary judge observed that the “merits of the [review] application are the major consideration and in this case, I have proceeded as if the substantial application was before me”. The primary judge at [82] observed that the “reasons for the delay are but one aspect of the considerations” in deciding whether to grant an extension. Another factor informing the exercise of the discretion was the “prejudice to the respondent [Minister]”: at [82]. Having identified the factor of the merits as the “major consideration”, the primary judge observed at [83] that “[g]iven that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, … the application for extension of time in which to file the application should be refused”.

54    As to the sufficiency of the explanation for the delay, the primary judge thought it “very unlikely” that the appellant was unaware of the 35 day period because “notes are sent with a copy of the decision” which “state very clearly what the deadline is”: primary judge at [80]. At [81], the primary judge notes the appellant’s explanation that he was being assisted by the Red Cross in making a case for Ministerial intervention and he had not been advised by the Red Cross to apply for judicial review. The primary judge at [81] did not consider that matter to be “a valid excuse”.

55    The primary judge tells us at [4] that he heard “full argument” on the merits of the review application and at [82] that he proceeded “as if” the substantive application was before him. Having done so, he concluded that the substantive application “fails”. Although it is not put this way, the primary judge must have thus concluded that he was not “satisfied” that it was “necessary in the interests of the administration of justice” (s 477(2)(b)) to make an order extending the 35 day period. That seems to be because he regarded the factor of the merits as the “major consideration” in the determination of that matter and, as he had concluded that the substantive application failed, he must be taken to have concluded that it would not be necessary in the interests of the administration of justice to extend the 35 day period for an application he regarded as an unmeritorious application for a remedy under s 476.

56    The primary judge may, or may not, have been correct in his conclusions about any one or more of the five grounds on which a remedy was sought by the appellant in the exercise of the primary court’s original jurisdiction under s 476 of the Act. A challenge to a finding of the Tribunal on the ground that the finding is not supported by evidence or that the finding lacks a logical foundation or fails to reflect the application of the rules of reason or is in some legal sense unreasonable or that the finding is not supported by inferences drawn from facts found, is a very context-specific and detailed analysis. The question of whether references in the Tribunal’s decision to an apparently anomalous s 438 Certificate refers to matter entirely unrelated to the appellant’s case and was incorporated into the Tribunal’s decision in error might also require close analysis.

57    The primary judge no doubt addressed the five grounds of review, in the light of full argument and the written submissions filed in accordance with the programming orders, to the extent that he thought necessary in order to reach a conclusion about each ground. Clearly, the primary judge did not subject the Tribunal’s reasoning to the detailed and context specific analysis that would have been necessary to fully test whether the challenged findings reflected errors capable of being characterised as jurisdictional so as to support the grant of the constitutional writs in the exercise of the s 476 jurisdiction.

58    The primary judge’s view about the merits was largely but not entirely determinative of the outcome of the extension of time application. Another factor was the conclusion that no sufficient explanation had been given for the delay.

59    Thus, it can be seen that the primary judge did significantly more (and said so) than examine the grounds at “a reasonably impressionistic level” to determine whether each ground was “arguable”, and did embark on a consideration of each ground to determine whether it would or would not succeed as the major consideration in deciding whether he could be satisfied that it was necessary (or not) in the interests of the administration of justice to extend the 35 day period. The primary judge regarded himself as in a position as if the substantive application was before him for determination.

60    Having regard to the particular circumstance of the programming orders, the filing of all material relevant to the review application, the filing of written submissions by the appellant and the Minister concerning the merits of the review application and the circumstance that the appellant and the Minister were both represented by counsel ready to argue the merits of the review application and the extension application at the hearing before the primary judge programmed for 16 August 2018, there can be little objection, in the circumstances of this case, to the primary judge embarking upon an examination, and perhaps a close examination (or at least an examination at the level of engagement undertaken by the primary judge), of each of the grounds of review and hearing argument about them as an aspect of the determination of the question his Honour had to decide under s 477(2)(b) of the Act, unless as a matter of law, the primary judge was bound to look no further than deciding whether, on the face of the application for s 476 relief, each claim was hopeless or bound to fail. There is no binding authority that supports the proposition that the primary judge was so bound, in the circumstances of the way the case came before him.

61    The immediate difficulty at one level with the primary judge’s decision is this. Because his Honour predominantly decided the application for an extension of the 35 day period on the basis of the view he had formed that the application for relief under s 476 “fails” (the primary judge having considered the grounds “as if” that application was before him and as if he were thus determining it), any error in the analysis of any one of the grounds (that may not have been apparent in relation to any one of them because the content-specific analysis of the Tribunal’s reasoning was not undertaken by the primary judge), would render the foundation on which the primary judge was unable to be satisfied that it was necessary in the interests of the administration of justice to extend the time, unsound. However, the correctness or otherwise of the primary judge’s view about any one of the grounds could not be tested because in the absence of an extension of the 35 day period, s 477(1) would operate such that the primary court’s original jurisdiction had not been regularly invoked and the refusal to extend the time under s 477(2) could not be the subject of an appeal to the Federal Court: s 476A(3)(a).

62    In the result, there may be an order made refusing an extension of the 35 day period based on an untestable and unsound foundation as to the merits concerning any one or more of the contended grounds for relief in the form of the grant of the constitutional writs in respect of the Tribunal’s migration decision.

63    Having undertaken an analysis of each ground at the level of engagement undertaken by the primary judge in circumstances where the outcome of the analysis would very largely determine the question arising under s 477(2), the possibility that the primary judge might be wrong about one (or more) of the grounds failing, thus imperilling the primary judge’s ultimate state of satisfaction under s 477(2), suggests that the application for an extension of time ought to have been granted having regard to the statutory purpose described at [28] of these reasons, and the application for judicial review ought to have been dismissed.

64    For my part, it seems to me that having engaged with the factor of the merits of the claims for relief under s 476 in the way demonstrated in the reasons of the primary judge, the primary judge fell into error by refusing leave to extend the 35 day period. Having chosen to, in effect, hear both applications together, the primary judge erred by not exercising the discretion to extend time so as to ensure as “necessary” in the “interests of the administration of justice” that should the foundation for his decision concerning any one of the s 476 grounds be unsound, the appellant would have the benefit of appellate review by the Federal Court and ultimately by the High Court with leave.

65    It seems to me that it was necessary in the interests of the administration of justice to exercise the discretion to extend time in order to enable that which was necessary in the interests of the administration of justice, namely, the possibility of appellate review of the primary judge’s conclusions about one or more or all of the grounds, a possibility foreclosed by the refusal of the extension of time application. The question is whether that decision (if it be error as I believe it is), is jurisdictional error on the footing that the primary judge has misconstrued or misconceived the statutory purpose of the power to extend (or not) the 35 day period.

66    That question is addressed later in these reasons.

67    However, the question agitated by the appellant, is whether the primary judge fell into error for the purposes of s 39B(1) (invoked before Collier J), in embarking upon the analysis of grounds of review at the level of engagement reflected in the primary judge’s reasons, reaching beyond the so-called “low hurdle” of impressionistic engagement, and whether the exercise of the discretion therefore miscarried in such a way that the primary judge engaged in an excess of jurisdiction, rather than error within jurisdiction (if it be error).

68    In this case, the programming orders made it plain that the parties came to the primary court ready to argue the merits of the review application. Full argument, both written and oral on the merits of the s 476 grounds, occurred. I accept that there is no authority for the proposition that the primary judge, in the circumstances in which the primary judge found himself, was bound to go no further in considering the merits of the review application for the purposes of the extension of time application, than assessing on simply an impressionistic reading and consideration of the grounds whether he could be “confident” the grounds “must fail” or, put another way, were “plainly hopeless”.

69    The position as to the limits of engagement with the s 476 grounds undertaken by the primary court will likely be different where a discrete application for an extension of the 35 day period is made separately and independently of the programming of both the extension application and the substantive application for hearing, in effect, together. That is not this case.

70    I also accept that the primary court does not fall into jurisdictional error whenever it approaches the question to be decided under s 477(2) by examining the grounds relied upon for relief under the s 476 application as if it were deciding that application. The Full Court decision in DKX17 (see [25] of these reasons for the relevant case citations) accepts at [95] that the primary court is not “required” to consider the merits at a level greater than an impressionistic level in deciding the question arising under s 477(2) and CNC15 at [40] accepts that the question for the primary court was to be addressed “at a reasonably impressionistic level”. However, in CNC15, the Full Court also observed at [45] that if the error contended for, of going beyond a reasonably impressionistic assessment is made good, it could only be error “within jurisdiction”, not jurisdictional error.

71    As to Full Court decision in DHX17, the primary finding in the particular circumstances of the s 39B(1) hearing was that the primary court had misconceived the function it was to perform and the scope of the power to be exercised under s 477(2). As to that finding, the Minister, on appeal, did not challenge the primary finding. The finding that the primary court had misconceived the nature of the statutory function by going beyond, in the circumstances of that case, a threshold assessment of merit, was, in effect, conceded. I do not wish to say any more about that aspect of DHX17 as I was the judge exercising the Court’s s 39B(1) jurisdiction in that case.

72    The Minister contends that due to the concession made in DHX17, it ought to be understood as saying no more than when it is clear (by concession or otherwise) that the judge constituting the Federal Circuit Court has misconceived the nature of the statutory function to be performed or the scope of the power to be exercised, the primary court will fall into jurisdictional error. However, the Minister contends that DHX17 is not authority for the general proposition that whenever the primary court goes beyond an “impressionistic assessment” of the proposed grounds of review in addressing the question arising under s 477(2), the primary court “will fall into jurisdictional error”. The Minister emphasises that, in this context, the Full Court in DHX17 at [68] observed that the primary court undertaking more than an impressionistic evaluation of the proposed grounds of review “strongly suggests” (not “would result in”) misconception of the function and power leading to excess of jurisdiction and at [76], the conclusion will “usually be drawn” (not “always will be drawn” or “be drawn”) that the function and power has been misconstrued thus giving rise to excess of jurisdiction.

73    Notwithstanding these contentions of the Minister, it would read down the principle the Full Court was at least contending for in DHX17 and which it regarded as the applicable principle. The Full Court in DHX17 was satisfied at [68] and [76] that once the Federal Circuit Court, in deciding the question arising under s 477(2), embarked upon a consideration of the factor of the merits of the relevant applicant’s grounds for s 476 relief beyond the threshold of the so-called “low hurdle” (being the term adopted by the Full Court in DHX17) of merely an “impressionistic” assessment of whether the grounds were “arguable”, the primary court would usually, that is in most cases, engage not only in error (by misconception of the power under which the primary court was acting, the conceded factor by non-contention by the Minister in DHX17), but also engage in an excess of jurisdiction giving rise to remedial intervention by this Court under s 39B(1).

74    To the extent the DHX17 contends for a proposition (guiding, as it does, subsequent applications for an order under s 477(2) in the many cases before the very busy primary court) that whenever the primary court, in considering an application under s 477(2) of the Act goes beyond a low hurdle of merely impressionistic assessment of the grounds of relief under s 476 it engages in jurisdictional error, it should be regarded as wrongly decided.

75    There will be cases where it may be appropriate for the primary court to go beyond such a low hurdle, always, of course, remaining conscious of the statutory purpose of s 477(2) emphasised at [28] of these reasons and the statutory question the primary court has to answer, and there will be other cases, like the present one, where the programming orders contemplate what amounts to, in effect, both applications being heard together where the primary court’s view about the merits of any one or all of the s 476 grounds will play a major role in the assessment of the primary court’s approach to the s 477(2) question.

76    Indeed, in DHX17, the Full Court recognised that the phrase “necessary in the interests of the administration of justice” is sufficiently broad as capable of encompassing a range of considerations. One of them is the merits of the s 476 grounds. The issue, as an expression of the limits of the power, is said to be the level of engagement with the s 476 grounds. In DHX17 at [62], the Full Court recognised that there is nothing in the nature, scope and purpose of s 477(2) which implies an obligation on the part of the primary court to take any particular consideration into account or to eschew consideration of a particular matter. Thus, as the Minister in this case observes, that proposition is consistent with the observation of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [58]-[62] that a failure to give adequate and genuine consideration to an applicant’s explanation for the delay does not amount to jurisdictional error, and there is no jurisdictional error in failing to consider prejudice to the respondent in such an application: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77 (“SZUWX”), Allsop CJ at [20], Bromwich J at [10] and Flick J at [16]. Ultimately, it is essentially a matter for the judge constituting the primary court to determine and assess whether he or she is satisfied that it is necessary in the interests of the administration of justice to extend the 35 day period always remaining conscious of the statutory purpose of the conferred power being exercised.

77    Did the primary judge engage in jurisdictional error by considering the merits of the s 476 grounds for relief in a way that went beyond the low hurdle of impressionistic assessment when deciding the question arising under s 477(2) of the Act?

78    The primary court is an inferior court in the hierarchy of courts but nevertheless it exercises the judicial power of the Commonwealth to quell controversies between citizens and in doing so it has the authority to decide questions of law and fact brought before it for determination in matters in which it has jurisdiction to determine those matters of controversy.

79    In assessing what constitutes jurisdictional error for the purposes of the grant of certiorari and amenability to the writ, the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Craig v South Australia (1995) 184 CLR 163 (“Craig”) was careful to distinguish between the position of inferior courts, on the one hand, and administrative tribunals, on the other. As to an inferior court, it 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: Craig at p 177. An inferior court will fall into jurisdictional error where it makes an order or decision based upon a mistaken assumption or denial of jurisdiction or a “misconception or disregard of the nature or limits of jurisdiction”: Craig at p 177. At pp 177-178, the Court in Craig observed that an inferior court will exceed its authority and fall into jurisdictional error if it “misconstrues the 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” and the Court added that, in this last category of case, “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”. Having emphasised the importance of the constitutional limitations derived from the separation of judicial and executive powers, and the position of administrative tribunals, the Court returned to the position of inferior courts and said this at pp 179-180:

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. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

80    It follows that error which may amount to jurisdictional error by an administrative tribunal, if committed by an inferior court, may be an error within jurisdiction due to the scope of the inferior court’s authority to decide: see also DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454, Full Court at [39] and [41], adopting the observations of Allsop CJ at [20] (see also [21]) in SZUWK. The question of whether a decision exceeds the limits of the conferred power “is and always will be content specific”: Allsop CJ in SZUWK at [21]. In Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (“Kirk”), the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that “behind the conclusions expressed in Craig” lie “unexpressed premises” about what is meant by jurisdictional error which “give content” to the notion of an inferior court’s “authoritative” standing to determine questions of law and fact. The plurality observe that the “authoritative decisions” of inferior courts, however, are only “those decisions which are not attended by jurisdictional error” (Kirk at [70]) and thus a general “observation” that inferior courts have “authority to decide questions of law ‘authoritatively’ is at least unhelpful”: Kirk at [70].

81    But what then renders an error of an inferior court (in this case the Federal Circuit Court exercising the judicial power of the Commonwealth under Ch III), a jurisdictional error?

82    In Kirk, the plurality at [72] returned to Craig at p 177 adopting the “general description” that an inferior court will fall 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” [original emphasis]. One aspect of jurisdictional error on the part of an inferior court reflecting the observations in Craig at p 177-178 emphasised by the plurality in Kirk at [72] is: “(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 plurality in Kirk noted (again emphasising the observations in Craig at p 178) that this last example is the class of case where “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”.

83    The plurality in Kirk emphasised that the reasoning in Craig summarised with approval by the plurality in Kirk at [72] was not to be seen, however, as anything other than “examples” of the “ambit of jurisdictional error” and not a “rigid taxonomy” (Kirk at [73]) looking for, put metaphorically, the right sized foot to fit into Cinderella’s glass slipper.

84    Although the statements of principle concerning the circumstances of jurisdictional error by an inferior court in Craig at p 177 and p 178 are no more than examples and should not be treated as a rigid taxonomy, the primary court may have difficulty in comprehending where the difficult line lies in addressing a s 477(2) question when dealing with the many migration cases before it. Can a judge of that court consider the grounds on which s 476 relief is sought when deciding the extension question and, if so, at what level of engagement?: impressionistic only so as to determine whether a case is arguable; something more than that; or “as if” the primary judge has the s 476 grounds before the judge constituting the court. The particular difficulty is that every case, of course, will be case-specific and often context-specific and, importantly, the programming orders of the case, as mentioned earlier, will need to be taken into account as orders governing the way in which the case has come forward for hearing. So far as the decisions of “administrative” decision-makers are concerned (MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (“MZAPC”)), the plurality, Kiefel CJ, Gageler, Keane and Gleeson JJ at [28] said this at [29] in MZAPC:

[29]    The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without the need for any court to have determined that the decision is invalid.

85    Section 477(2) confers a power to extend the 35 day period in broad terms requiring the primary judge to decide whether an extension is necessary in the interests of the administration of justice. There are no considerations prescribed by s 477(2) required to be taken into account by the primary court in deciding that question. The engagement by the primary court with the factors in the relevant case the primary court considers informs its decision concerning the s 477(2) question must, however, occur within the bounds of rationality and reasonableness. The statutory purpose of s 477(2) is beneficial and enabling. Parliament has conferred a power on the primary court such that if the primary court’s jurisdiction has not been regularly invoked because of the 35 day limitation, it may be extended thus regularising the invoking of the jurisdiction if considered by the primary court as “necessary in the interests of the administration of justice”. That phrase is capable of comprehending many things but reference to the word “necessary” in the “interests of the administration of justice” suggests at least the interests of the administration of justice in the proceeding sought to be brought by seeking a remedy under s 476, and its possible relationship with other proceedings before the primary court. The appellant contends that the primary judge was required to engage generally with the grounds on which s 476 relief was sought but only for the purpose of determining whether the appellant was asserting an “apparently viable case” (no more and no less) and once the primary judge engaged with the grounds as if they were before him for the purpose of deciding whether each one of them failed or not, as the predominant consideration in deciding the s 477(2) question, the primary judge fell into jurisdictional error by misconceiving the limits of the power and then exceeding the limits of the power. Thus, the primary judge is said to have been no longer acting within the primary court’s authority to decide the question before it.

86    So far as the facts of this particular case are concerned, having regard to the way the matter came before the primary judge by the programming orders, the primary judge was not constrained by the text or statutory purpose of s 477(2) in engaging with the merits of the s 476 grounds in deciding the s 477(2) question by going beyond a low hurdle impressionistic assessment of the s 476 grounds and did not by doing so, exceed the limits of the conferred power. It was a matter for the primary judge to examine the s 476 grounds as he determined appropriate so long as he kept in mind the statutory purpose of the provision, its beneficial and enabling character and acted within the bounds of rationality and reasonableness at all times. In that sense, the primary judge did not engage in jurisdictional error by engaging with the s 476 grounds in the way he did.

87    There is, however, a further question.

88    I am satisfied that the primary judge erred, not by reason of considering the s 476 grounds in the way he did, or by, in effect, electing to hear the two applications together, but rather by failing to grant an extension of the 35 day period as “necessary” in the “interests of the administration of justice” on the footing that he had elected to embark upon an assessment of the s 476 grounds as if they were before him and by refusing to extend the time because he could not be “satisfied” that an extension was “necessary in the interests of the administration of justice” (because, in turn, he concluded that all of the grounds failed), he deprived the appellant of something necessary in the interests of the administration of justice, namely, a right to test whether the primary judge’s views about the grounds were right or wrong, and this is especially so in circumstances where the primary judge had not subjected the grounds to the content-specific analysis necessary to decisively form a view about whether any one or more of them would or would not fail.

89    The question is whether that error was jurisdictional, rather than the anterior decision to engage with the grounds beyond the level of the so-called “low hurdle impressionistic” assessment leading to the refusal to order an extension of the 35 day period. The primary judge ought to have extended the time and then dismissed the s 476 application, having embarked upon the matter in the way he did. That error is not appellable to this Court by reason of s 476A(3)(a) of the Act.

90    The error in refusing to extend the 35 day period by concluding, on the basis that each of the s 476 grounds failed, that the primary judge could not be satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period, misconceived the statutory purpose of the power as beneficial and enabling such that even though the primary judge had considered the s 476 grounds at the level of engagement beyond the impressionistic low hurdle level and treated them as if they were before him, the engagement was well less than the necessary context-specific analysis of the Tribunal’s reasons and the primary judge’s view of those matters may have been wrong. The appellant ought not to have been deprived of the opportunity to test those views as a necessary incident of the exercise of the power to decide whether it was necessary in the interests of the administration of justice to extend the time so as to provide the appellant with an opportunity to test the views of the primary judge on each of the s 476 grounds. That misconstruction or misconception of the power gives rise to excess of jurisdiction and jurisdictional error in the Craig proposition “(c)” sense: see Kirk at [72] and the observations in MZAPC at [28] and [29].

91    However, if the error of refusing to make an order under s 477(2) is an error within the exercise of the inferior court’s jurisdiction, another entirely separate question arises. I now address that question.

92    Section 39B(1) of the Judiciary Act is not the only source of the Federal Court’s original jurisdiction under s 39B. Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Federal Court “also includes jurisdiction in any matter arising under any laws made by the Parliament”. The word “also” makes clear that the original jurisdiction of the Federal Court under s 39B(1A)(c) is in addition to the jurisdiction conferred under s 39B(1) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. As Gummow, Hayne, Heydon and Crennan JJ observed at [4] in Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 (“Futuris”), s 39B(1) “relevantly replicates” the terms in which jurisdiction is conferred on the High Court by s 75(v) of the Constitution. That jurisdiction includes the conferral of jurisdiction to grant certiorari as incidental to the jurisdiction to grant prohibition and mandamus: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [14]. So too, s 39B(1) confers jurisdiction to grant certiorari as ancillary to those writs. Section 39B(1A)(c) is, however, a broad supplementary jurisdiction relevantly identical with s 76(ii) of the Constitution. It is a general conferral of jurisdiction. Section 39B(1A)(c) is the source of original jurisdiction, that is, the authority to decide, any “matter arising under any laws made by the Parliament”. It is not the source of a particular remedy, unlike s 39B(1) which confers original jurisdiction with respect to any “matter” by reference to the nominated remedies (including, as ancillary, certiorari) which carries with it all of the jurisprudence concerning the grant of those remedies.

93    In this case, the law of the Commonwealth Parliament is s 477(2) of the Act and the matter is the whole of the controversy between the appellant and the Minister as to whether the primary judge fell into jurisdictional error by engaging with the s 476 grounds in the way he did; whether there was error on the part of the primary judge and whether that error was jurisdictional; and also, whether the primary judge fell into error by failing to be satisfied in the circumstances of the case that an extension of time was necessary in the interests of the administration of justice. Importantly, the s 39B(1A)(c) jurisdiction is a conferral of original jurisdiction in the entire controversy (the matter) arising under s 477(2), not a source of original jurisdiction in the Tribunal’s migration decision (and, as to that matter, see s 476A(1) of the Act). Assuming for the moment that the error in not being satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period is non-jurisdictional, it is sufficient to note these matters:

(1)    Original jurisdiction is conferred on the Federal Court in the controversy as a supplementary source of jurisdiction under s 39B(1A)(c).

(2)    Section 477(2) is the source of a right, duty or liability to be established by the Federal Court in the exercise of the s 39B(1A)(c) jurisdiction. The Court is called upon to determine whether the appellant’s application for an extension of time was determined according to law without error. The Court on hearing the appeal gave leave to the appellant to rely on s 39B(1A)(c) by an amended originating application and a draft amended notice of appeal challenging the dismissal of the s 39B(1) proceeding on the hypothesis or assumption of also a dismissal of the s 39B(1A)(c) ground as contended for by leave. The parties were given leave to put on supplementary submissions as to the s 39B(1A)(c) point.

(3)    A remedy granted in the exercise of the jurisdiction conferred by s 39B(1A)(c) is not governed by the principles of jurisdictional error which control (see the plurality in Futuris at [47]) the grant of the constitutional writs (although not so for the remedy of injunction) provided for in s 75(v) of the Constitution and s 39B(1) of the Judiciary Act. The real question is the nature of the remedy that might be capable of being granted in the exercise of the Court’s original jurisdiction arising under s 39B(1A)(c).

(4)    One source of a remedy is a declaration under s 21(1) of the FCA Act, that is, a binding declaration of right that the primary court erred in law in failing to be satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period. Such a declaration may be made regardless of whether any consequential relief is granted. It may be ordered as primary relief but will not be granted where it is inutile to do so or produces “no foreseeable consequences for the parties”: Clarence City Council v Commonwealth (2020) 280 FCR 265 at [63], Jagot, Kerr and Anderson JJ; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 (“NAAV”), French J at [537]; Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, Mason J at 188, Aickin J at 189; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ at 582.

(5)    A declaration, by itself, will not have the effect of setting aside the order of the primary judge or quashing that order. The proceeding before the primary judge does not regularly engage the primary court’s jurisdiction under s 476 as the order dismissing the extension application would remain on foot in the face of the declaration.

(6)    Section 23 of the FCA Act, however, confers power on the Federal Court to make orders in matters in which it has jurisdiction of such kinds and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate. Section 23 empowers the Court to make a broad range of orders including orders “in the nature of” certiorari and mandamus: Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302 at [29], Katzmann J, (Dowsett J and Tracey J agreeing). In proceedings in the exercise of the Federal Court’s original jurisdiction under s 39B(1A), the Court is not limited to the constitutional writs “or confined by the criteria for their issue”: NAAV, French J at [509]. The Court can shape the relief to do justice between the parties in the exercise of s 39B(1A)(c) jurisdiction. The function of an order in the nature of certiorari is to remove the consequences of a purported exercise of power which has an apparent legal effect upon the rights of the parties at the date of the order: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [28]. In exercising judicial review of the orders and judgments of inferior courts, an order in the nature of certiorari is not limited to jurisdictional error or for error of law on the face of the record and extends to the correction of error within jurisdiction, although the correction of jurisdictional error is one of the most important established grounds, but not the sole ground: Craig at pp 175-176.

(7)    In Plaintiff 157/2002 v Commonwealth (2003) 211 CLR 476 (“Plaintiff 157/2002”), Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [80] accepted that subject to the existence of a “matter”, certiorari may also issue in the exercise of jurisdiction conferred by s 75(iii) of the Constitution, and s 76(i) of the Constitution “in any matter … arising under the Constitution or involving its interpretation”. The conferral of jurisdiction in any matter arising under a law made by the Parliament similarly is capable of supporting certiorari and the remedy in the exercise of that source of original jurisdiction is not confined to jurisdictional error. These statements of principle in Plaintiff 157/2002 (and also McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, Gaudron and Gummow JJ at [58]) suggest that certiorari may be granted for non-jurisdictional errors of law on the part of inferior courts in the exercise of jurisdiction conferred by s 39B(1A)(c) and s 76(ii) of the Constitution. The source of the remedial power to shape an appropriate remedy is s 23 of the FCA Act. Section 23 is not limited to the grounds of jurisdictional error governing s 75(v) of the Constitution and s 39B(1) of the Judiciary Act.

(8)    Were it not the case that the original supplementary jurisdiction conferred by s 39B(1A)(c) is as broad as it is, and the flexibility to shape an order under s 23 of the FCA Act, is as flexible as it is, so as to do justice between the parties (comprehending orders in the nature of certiorari and mandamus for non-jurisdictional errors of inferior courts) an unfortunate circumstance might arise where the Federal Circuit Court falls into error in the exercise of the power conferred by s 477(2) of the Act, and because a decision under s 477(2) is non-appellable, the applicant for an extension of time has no remedy, which otherwise enables the primary court to act as an “[island] of power immune from supervision and restraint” and permit of “the development of ‘distorted positions’”: Kirk at [99].

(9)    Finally, there is an important question of statutory construction concerning s 476A(3)(a) of the Act. As already mentioned, s 476A(3)(a) provides as follows:

Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

(b)    a judgment of the Federal Court that makes an order or refuses to make order under subsection 477A(2).

(10)    Section 24(1)(d) of the FCA Act provides that this Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, and relevantly here, s 477(2) of the Act. If the judgment the subject of s 24(1)(d) is characterised as an interlocutory judgment, an appeal may not be brought from a judgment of that kind unless this Court or a Judge gives leave to appeal: s 24(1A). The judgment in question in these proceedings is a judgment of the Federal Circuit Court and for present purposes it may be assumed that the judgment is an interlocutory judgment. It should be noted that by operation of Item 210 of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), the reference in s 24(1)(d) and (e) of the FCA Act to the “Federal Circuit Court” is a reference to the “Federal Circuit and Family Court of Australia (Division 2)”. The question of statutory construction is this: Is s 476A(3)(a), by providing that despite s 24 of the FCA Act an appeal may not be brought to this Court from a judgment of the primary court that makes an order or refuses to make an order under s 477(2), to be construed so as to prohibit an exercise of this Court’s original jurisdiction under s 39B(1A)(c) of the Judiciary Act? The answer to that question is to be found in the following four circumstances. First, an exercise of original jurisdiction under s 39B(1A)(c) is not an appeal. Second, the section does not say that it operates despite s 39B(1A)(c) of the Judiciary Act and since s 476A(3)(a) of the Act selects the particular statutory instrument which is to be put to one side, an inference arises that had the section sought to displace the operation of s 39B(1A)(c), it would have said so in terms. Third, if s 477(2) is to be construed as prohibiting an exercise of original jurisdiction under s 39B(1A)(c), it ought rationally be construed so as to also exclude an exercise of original jurisdiction by this Court under s 39B(1) of the Judiciary Act. Such a construction is unlikely having regard to the subject matter in question. Fourth, had the circumstances of the statutory regime been than an appeal lies (having regard to the provisions of the FCA Act) from a decision of the primary court under s 477(2) of the Act, discretionary considerations would strongly and powerfully suggest that no remedy ought to be granted in the exercise of this Court’s original jurisdiction under s 39B(1A)(c) of the Judiciary Act or, for that matter, the Court’s jurisdiction under s 39B(1) of the Judiciary Act.

94    For all these reasons, if the dismissal of the application to extend the 35 day period on the footing that the primary judge could not be satisfied that it was necessary in the interests of the administration of justice to extend the time, is a non-jurisdictional error on the part of the inferior court, a remedy is capable of being granted in the exercise of the Court’s original jurisdiction under s 39B(1A)(c) of the Judiciary Act and the remedy is a declaration coupled with orders “in the nature of” certiorari and mandamus.

95    However, as mentioned, I take the view, for the reasons described earlier at [28], [61]-[65] and [88]-[90] that the primary judge engaged in jurisdictional error in refusing to grant an extension of the 35 day period, not because the primary judge considered the s 476 grounds beyond an “impressionistic” level of engagement but rather, having considered the grounds at the level of engagement he did, it was necessary in the interests of the administration of justice to exercise the discretion to extend the 35 day period. It was material because it foreclosed the appellant from testing whether the primary judge was in error as to the views he had formed about any one of the grounds. The final question concerns the forms of order to be made in disposition of the appeal. By majority, Rangiah J and I conclude (for entirely separate reasons) that the primary judge engaged in jurisdictional error in the exercise of the power conferred under s 477(2) of the Act. Because Rangiah J concludes that the primary judge exceeded the limits of the power by considering the contended s 476 grounds in the way he did, Rangiah J concludes that the relevant orders of the primary judge should be set aside and the matter remitted to the primary judge to be determined according to law. Because I take the view that the primary judge exceeded the limits of the power by not granting the extension of time as “necessary in the interests of the administration of justice” on the ground that the appellant was deprived of the opportunity to challenge and test the primary judge’s conclusions about any one or all of the grounds for s 476 relief, I would set aside the relevant orders of the primary judge and in their place order that the extension of time be granted, as there is no other matter to determine by the primary judge. That follows because I do not accept that the primary judge fell into jurisdictional error by considering the contended s 476 grounds beyond the limit of the so-called “low hurdle” or because the primary judge exceeded a mere “impressionistic” assessment of the contended grounds. However, because there is no consensus in the majority view as to the form of the orders to be made on appeal, the orders ought to go no further than the minimum position. Accordingly, the orders of the primary judge are to be set aside and the matter remitted to the primary court and the primary judge for determination according to law. In that remitter, I remain of the view that the only question for determination by the primary judge is whether the extension of time is to be granted having regard to the primary judge’s conclusions about the contended s 476 grounds and in determining that question, the primary judge, in my view, would be acting according to law by extending the time as “necessary in the interests of the administration of justice” having regard to the conclusions reached by the primary judge in his Honour’s assessment of the contended s 476 grounds.

Associate:

Dated:    25 May 2022

REASONS FOR JUDGMENT

RANGIAH J:

96    In FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950, a single judge of this Court (the primary judge) dismissed an application for judicial review of a decision of the Federal Circuit Court of Australia. The appellant appeals from the judgment of the primary judge.

97    The appellant had applied to the Administrative Appeals Tribunal (the Tribunal) for review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the appellant the grant of a Protection (Class XA) Visa. The Tribunal dismissed that application.

98    The appellant then applied to the Federal Circuit Court under s 477(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time within which to seek judicial review of the Tribunal’s decision. In FKV17 v Minister for Immigration [2018] FCCA 2260, a judge of the Federal Circuit Court (the FCC judge) dismissed that application.

99    The appellant then applied to this Court for judicial review of the judgment of the Federal Circuit Court, but that application was dismissed by the primary judge in the judgment under appeal.

100    The appellant relies upon a single ground of appeal, to the effect that the primary judge ought to have found that the Federal Circuit Court misapprehended the test to be applied under s 477(2) of the Act in assessing the merits of the proposed application for judicial review and that its judgment was thereby affected by jurisdictional error.

101    In order to give context to the parties’ submissions, it is necessary to describe the factual background and judgment of the Federal Circuit Court.

Factual background

102    The appellant is a citizen of Uganda. On 2 October 2014, he made his application for a protection visa. He claimed to fear forcible kidnapping and recruitment by a rebel army known as the “Lord Resistance Army” (LRA). He also claimed fear of harm from the family of his former girlfriend who believed he had broken Sharia Law.

103    On 24 July 2015, the Minister’s delegate refused to grant the protection visa. On 9 August 2017, the Tribunal decided to affirm the delegate’s decision.

104    Under s 477(1) of the Act, the appellant had 35 days to apply to the Federal Circuit Court for a remedy under s 476 in respect of the Tribunal’s decision. The appellant failed to apply within that time. On 12 December 2017, he filed an application for an extension of time pursuant to s 477(2). The application was filed approximately 90 days outside the time limit.

105    The application for an extension of time under s 477(2) of the Act was set down for hearing on 16 August 2018. There was full argument upon the grounds for relief under s 476 at the same time so that a further hearing would not be required in the event that the extension of time were granted.

106    On 20 August 2018, the FCC judge delivered judgment. His Honour described the claims for protection made by the appellant, and then summarised the Tribunal’s findings in the following way:

26.    The Tribunal was satisfied about the Applicant having a relationship with A. The Tribunal was satisfied that the family of A blamed him for her death and abducted him for a short time with the possible intention of killing him. The Tribunal accepted that the Applicant escaped and lived in a mission for some time after that. The Tribunal accepted the Applicant’s explanation for the differences in his account to the department and his account to the Tribunal.

27.    The Tribunal looked at whether there was a well-founded fear of persecution for a convention reason. Whilst the Tribunal accepted that the family of A may seek to harm the Applicant upon return to Uganda, the Tribunal found that the essential and significant motivation for the persecution feared by the Applicant, is revenge. This is not a convention reason.

28.    The Tribunal referred to a number of sources of country information when looking at the question of whether there was a real chance of persecution from the LRA if the Applicant returned to Uganda. The Tribunal found that there is little LRA presence in the region where the Applicant would be relocated and so was not satisfied that there was a real chance of persecution from the LRA.

29.    The Tribunal looked at whether there was a real chance of persecution for emotional, economic or political instability reasons and concluded that they were not satisfied that the Applicant has a well-founded fear of persecution for those reasons.

30.    Based on all those conclusions, the Tribunal was not satisfied that the Applicant met the criteria for refugee protection.

31.    The Tribunal then turned its attention to whether the Applicant met the complementary protection criteria.

32.    For much the same reasons as given when looking at the refugee criteria, the Tribunal found that there was no real risk of significant harm to the Applicant for any of those reasons.

33.    Ultimately, the Tribunal found that they were not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant been removed from Australia to Uganda, there is a real risk of significant harm.

107    The FCC judge then turned to consider the grounds of the proposed application for judicial review of the Tribunal’s decision.

108    The first ground asserted that a certificate issued under s 438 of the Act with respect to certain documents was invalid and that, consequently, the non-disclosure of those documents under s 438(3)(b) of the Act constituted a denial of procedural fairness.

109    In its reasons, the Tribunal noted that the certificate had been issued under s 438 of the Act certifying that disclosure of information in Folios 46 to 50 and 78 of the Departmental file would be contrary to the public interest. The Tribunal found that the certificate was invalid as it did not specify a reason for the claim that disclosure would be contrary to the public interest. The Tribunal noted that it had disclosed those Folios to the appellant and that, in any event, the information they contained was irrelevant to the application for review. The Tribunal said that it had not taken account of the information in those Folios.

110    However, the FCC judge considered that the relevant paragraph (paragraph 56) of the Tribunal’s reasons was, “quite anomalous”, and, “does not actually make any sense”. His Honour noted that Folio 46 was the application for a protection visa, Folio 50 was the appellant’s statutory declaration and Folio 78 was the protection visa decision record. His Honour observed that although the Tribunal stated that it had, “not taken account of information in those folios”, it had clearly discussed such information in its reasons.

111    In the proceeding before the Federal Circuit Court, the delegate who made the decision to refuse the protection visa deposed that in a “disclosure decision checklist”, he had erroneously circled “yes” in response to the question, “Is a relevant certificate of non-disclosure attached?” He deposed that, in fact, no non-disclosure certificate had been issued pursuant to s 438 of the Act.

112    The appellant argued that the Tribunal’s reasons demonstrated that a certificate must have been issued under s 438 of the Act. He argued that the Tribunal had failed to comply with s 438(3)(b) of the Act by failing to disclose to him the documents or information covered by that certificate (contrary to the Tribunal’s assertion that it had disclosed that material). The appellant also argued that the Tribunal had admitted it had not taken account of the information in Folios 46 to 50 and 78, and had accordingly failed, contrary to its obligation, to take into account the application, statutory declaration and protection visa decision record.

113    The FCC judge concluded in respect of the first ground:

49.    It seems to me that the only rational conclusion that I could come to, given the state of all of the evidence before me, is that paragraph 56 has been included in the reasons of the Tribunal by error. It should properly be ignored.

…

52.     The principles espoused in SZMTA (v Minister for Immigration and Border Protection [2017] FCA 1055) are appropriate when one is dealing with a matter involving a s.438 certificate. I have found that there was no such certificate in this case, and that paragraph 56 has been inserted in the reasons by error, there is no need for me to consider those principles.

53.     Therefore ground one fails.

114    The FCC judge then turned to the second ground of the proposed application. This ground asserted, relevantly, that the Tribunal had misapplied, misunderstood or misconceived the relevant law in finding that the essential and significant motivation for the persecution feared by the appellant was revenge for his former girlfriend’s death, not his religion.

115    His Honour held:

56.    The Tribunal came to a conclusion that it was not satisfied that the Applicant had a well-founded fear of persecution from that family because of a convention reason. That was a finding that was well and truly open to the Tribunal. There has been no misapplication of the law as has been submitted.

57.    The Tribunal correctly stated, at paragraph 26, that “…persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared…”. The Tribunal made a finding that the essential and significant motivation for the persecution feared is revenge and not religion.

58.    Having made that factual finding, it was proper to conclude that it was not satisfied of the convention criterion for that issue.

59.    When looking at the complementary protection criteria, the Tribunal was not fettered by needing to consider the reasons for the risk being confined to convention reasons. The findings that were made in paragraphs 46 to 49 were also open to the Tribunal. It is of note that the Tribunal found that in the years while the Applicant lived at the mission, the family of A did not find him, or it seems even look for him.

60.    As this was a finding that was open on the evidence it cannot be said that there was “an insufficient logical basis” for the finding. As it is a finding of “non-satisfaction”, there does not need to be an evidentiary basis for that finding.

61.    Therefore ground two fails.

116    The FCC judge considered the appellant’s third ground, which asserted that the Tribunal misapplied, misunderstood or misconceived the, “real chance test”, under the refugee and complementary protection criteria. The FCC judge held, relevantly:

63.    The reasoning of the Tribunal centred on the country information that indicated that there is little LRA presence in Uganda although they are present in neighbouring countries. As the claim of the Applicant was that he would be targeted by the LRA, the finding that was made by the Tribunal, regarding both the convention and complementary protection criteria, was one that was open to it.

…

67.    As the finding made by the Tribunal was one that was open to it, there is no jurisdictional error and thus, ground three fails.

117    The appellant’s fourth ground asserted that the Tribunal misapplied, misunderstood or misconceived the “real chance test” under the refugee criterion and the complementary protection criterion by finding that the serious harm test excludes serious mental harm. The FCC judge concluded:

70.    From a convention standpoint, there was simply no evidence that the Applicant would be persecuted for any of those reasons. Paragraphs 34 to 38 of the reasons of the Tribunal illustrate a logical conclusion that was open to the Tribunal.

71.    At paragraphs 50 to 54, a similar exercise was undertaken with respect to the complementary protection standpoint. There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal. This ground also fails.

72.    When regard is had to grounds two, three and four, they really are no more than attempts at impermissible merits review.

118    The appellant’s fifth ground asserted that there was illogicality in the Tribunal’s findings that the, “[appellant’s] particular circumstances…provide a sound basis for believing that there is a significant threat to his human rights or human dignity if he returns to Uganda”, but that, “the mistreatment does not meet the criteria for the grant of any type of protection visa”.

119    The FCC judge observed that the first of these statements was made by the Tribunal in the context of its recommendation that the case be brought to the Minister’s attention as there were, “unique or exceptional circumstances”. His Honour considered that the Tribunal was simply stating the basis for which there could be Ministerial intervention. His Honour held:

77.    The statement made by the Tribunal accords with everything that the Tribunal had earlier said; that is, that the claims of the Applicant do not meet the criteria under the Act for a protection Visa to be issued.

78.    However, this statement is totally superfluous to the reasoning of the Tribunal in coming to the conclusion that the decision of the delegate be affirmed. It is not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error.

79.    This ground must also fail.

120    The FCC judge then noted that the appellant had claimed he was unaware that there was a deadline for the filing of a judicial review application. His Honour considered this to be “very unlikely” because the material sent with a copy of the Tribunal’s decision stated very clearly what the deadline was. His Honour noted that the appellant claimed that he was being assisted by the Red Cross to make a case for Ministerial intervention, but that the Red Cross did not advise him that he should also be applying for judicial review. His Honour did not consider this to be a valid excuse.

121    The FCC judge continued:

82.    The reasons for the delay are but one aspect of the considerations the court must make when deciding whether to grant an extension of time. The prejudice to the respondent must also be considered. The merits of the application are the major consideration and in this case, I have proceeded as if the substantial application was before me.

83.    Given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, I have come to the conclusion that the application for extension of time in which to file the application should be refused.

122    The FCC judge dismissed the application with costs fixed in the amount of $7,328.

The judgment of the primary judge

123    The appellant then applied to the Federal Court for judicial review of the judgment of the Federal Circuit Court. The application was made under s 39B(1) of the Judiciary Act 1903 (Cth) and sought relief in the form of certiorari, mandamus and prohibition.

124    Before the primary judge, the appellant relied upon six grounds. The grounds were prolix and difficult to decipher. It is enough to say that none of those grounds reflect the ground that the appellant (now represented by different lawyers) takes in the appeal.

125    The primary judge rejected each of the appellant’s grounds and dismissed the application with costs. Because the appellant now relies solely upon a ground never raised before the primary judge, it is unnecessary to consider her Honour’s reasons.

The appeal

126    The time for the appellant to file a Notice of Appeal from the judgment of the primary judge ended, pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), 28 days after the date of judgment. The appellant filed an application for an extension of time to appeal on 2 January 2020, ten days out of time.

127    On 13 November 2020, Greenwood J allowed the appellant, pursuant to r 36.05 of the Federal Court Rules, an extension of the time for the filing of a Notice of Appeal. His Honour also granted the appellant leave to rely on a ground not raised before the primary judge.

Consideration

128    The appellant’s sole ground of appeal is as follows:

1.    The Federal Court of Australia erred in finding that the decision of the Federal Circuit Court of Australia delivered on 20 August 2018 was not affected by jurisdictional error in circumstances where the Federal Circuit Court of Australia misapprehended a relevant issue when determining the Appellant’s application for an extension of time under s 477(2) of the Migration Act 1958. Specifically, the Federal Circuit Court of Australia conflated the final disposition of the Appellant’s application for substantive relief with consideration of the merits of the Appellant’s substantive application for the purpose of determining whether to exercise the discretion conferred by s 477(2) to extend the time for filing.

(Particulars omitted.)

129    The application made by the appellant to the Federal Circuit Court was for an extension of time to apply for a remedy under s 476 of the Act in respect of the Tribunal’s decision affirming the delegate’s decision to refuse the grant of a protection visa. The application was brought under s 477 of the Act, which provided, relevantly:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

    …

130    At the time of the Federal Circuit Court’s judgment, s 476(1) of the Act provided:

(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.

131    Section 75(v) of the Constitution confers original jurisdiction upon the High Court, “in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”.

132    Sections 476 and 477 of the Act have since been amended to refer to the “Federal Circuit and Family Court of Australia (Division 2)” instead of the “Federal Circuit Court”. It is convenient to continue to refer to the Federal Circuit Court in these reasons.

133    Section 476A(3)(a) of the Act prohibits any appeal under s 24 of the Federal Court of Australia Act 1976 (Cth) from an order of the Federal Circuit Court made under s 477(2). Nevertheless, an application to quash such an order on the basis of jurisdictional error may be made in the original jurisdiction of the Federal Court under s 39B(1) of the Judiciary Act 1903 (Cth): Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11]; SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [62].

134    The appellant’s argument in the appeal is based on a line of authority stemming from MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (Mortimer J) and culminating in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 (Collier, Rangiah and Derrington JJ). In DHX17, the Full Court held that if, in considering an application under s 477(2) of the Act, the Federal Circuit Court has assessed the merits of the proposed grounds against a standard of whether they would ultimately succeed on the hearing of the application, a conclusion may be drawn that it has misconceived its function or power. The appellant submits that the FCC judge in this case took such an approach, and that approach demonstrates jurisdictional error.

135    In response, the Minister submits that, properly understood, the reasons indicate that the FCC judge did not evaluate the merits in more than a threshold way. The Minister submits that even if the merits were assessed at more than an impressionistic level, any error attending that approach was not jurisdictional error.

136    In MZABP, Mortimer J considered an argument that it was an incorrect approach for the Federal Circuit Court to have decided the application for an extension of time under s 477(2) of the Act as if the case was fully argued. Her Honour, although acknowledging it was unnecessary to consider the issue, expressed disquiet about the way in which the Federal Circuit Court had dealt with the merits of the applicant’s proposed grounds of review. Her Honour observed:

62    …[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 into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

63    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. 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…

…

68.    Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court’s jurisdiction is another and difficult question. In Kirk (v Industrial Court (NSW)) [2010] HCA 1; 239 CLR 531 (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. 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.

69.    In a proceeding where this matter was not a ground on which relief was sought and was not fully addressed in submissions, it is not appropriate to determine the issue. In any event, I am not persuaded her Honour’s reasons, fairly read, so clearly take the kind of erroneous approach to which I have referred.

(Most citations omitted.)

137    On appeal, in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; FCAFC 110, the Full Court at [38], while recognising that it was unnecessary to determine the point, endorsed Mortimer J’s approach.

138    In DHX17, the Full Court considered an argument that the Federal Circuit Court’s substantive analysis of the merits of the proposed grounds of review indicated that that Court had misunderstood its function. At first instance, the primary judge had held that the FCC judge had misapplied s 477(2) of the Act by requiring the appellants to demonstrate the merits of their proposed application to a higher standard than was required, but held that the error was not jurisdictional error and, in any event, was not material.

139    After reviewing the authorities, the Full Court observed:

68    …[T]he 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…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.

…

76    …[I]n 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.

140    The Full Court then elaborated upon the nature of the error:

82    ….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…

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…

141    The Full Court considered whether the Federal Circuit Court had acted in excess of its jurisdiction, concluding:

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. …

142    The Full Court then considered the materiality of the Federal Circuit’s Court’s error, holding at [96]-[98] that the decision to refuse the extension of time could realistically have been different if the primary judge had confined his assessment of the merits of the proposed grounds of review.

143    In the appeal, the appellant’s argument commences from a premise that the FCC judge assessed the merits of the appellant’s proposed grounds against a standard of whether they would ultimately succeed if the extension of time were granted. In response, the Minister submits that, read as a whole, the reasons of the FCC judge disclose no more than an impressionistic evaluation of, and a broad brush approach to, the merits of the case.

144    The reasons for judgment demonstrate that the FCC judge engaged in a detailed assessment of the appellant’s five proposed grounds in language indicating that what was being determined was whether their supporting arguments were right or wrong, not merely their prospects of success. For example, in respect of the second ground, his Honour held at [56], “There has been no misapplication of the law”, and, in respect of the third ground, at [67], “there is no jurisdictional error”. His Honour concluded at [53], [61], [67], [71] and [79] that each respective ground “fails”. His Honour noted at [82] that, “The merits of the application are the major consideration and in this case, I have proceeded as if the substantive application was before me”. His Honour then concluded at [83], “…I have found that the substantial application fails…”. It may be observed that his Honour did not suggest that the proposed grounds were unarguable, but found that they did not establish jurisdictional error.

145    The FCC judge’s language and approach indicate an assessment of the appellant’s proposed grounds of review against a standard of whether they would ultimately succeed upon the hearing of the application. His Honour then determined that none of the appellant’s grounds would ultimately succeed if an extension of time were granted. That was expressed to be the “major consideration” affecting his Honour’s dismissal of the application.

146    In DHX17, the Full Court held at [76] that if, in considering an application under s 477(2) of the Act, the Federal Circuit Court assesses the merits of the proposed grounds against a standard of whether they would ultimately succeed, a conclusion will usually be drawn that the Court has misconceived its function or power.

147    The Minister observes that DHX17 relied on a factual finding made by the primary judge, uncontested in the appeal, that the Federal Circuit Court had, by engaging in more than a “threshold assessment of merit”, misconceived the nature of its statutory function. The Minister submits that it was therefore unnecessary for the Full Court to determine whether the Federal Circuit Court had in fact misconceived its statutory function. The Minister argues that, accordingly, DHX17 is not authority for the proposition that by engaging in more than an impressionistic evaluation of the merits in an application under s 477(1), a Court will fall into jurisdictional error. Rather, the judgment of the Full Court stands only for the more confined proposition that the Federal Circuit Court falls into jurisdictional error if the judge, “misconceived the nature of the function he was supposed to be performing”. The Minister also submits that as a matter of construction, s 477(2) does not invalidate the exercise of the power where a judge engages in more than a threshold assessment of the merits.

148    The Minister is correct to submit that DHX17 is not authority for any principle that the Federal Circuit Court will fall into jurisdictional error by engaging in more than an impressionistic evaluation of the merits when considering an application under s 477(1) of the Act. The Full Court made no suggestion that any such principle exists. Rather, the Full Court reasoned at [68], [76] and [82]–[83] that if the Federal Circuit Court has engaged in more than an impressionistic evaluation of the proposed grounds, that may indicate an assessment of their merits against a standard of whether they would ultimately succeed, which, in turn, is likely to indicate that the Federal Circuit Court misconstrued s 477(2), and thereby misconceived its function or power. The Full Court was unable to speak in more absolute terms because an evaluation by Federal Circuit Court, permissibly made under s 477(2), that the proposed application has no merit necessarily involves a determination that an application under s 476 would fail.

149    In MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; HCA 17 at [30], the High Court observed that ascertainment of the statutory limits of the decision-making authority conferred by a statute is, “an exercise in statutory interpretation”. The powers and functions conferred on the Federal Circuit Court by s 476 of the Act are self-evidently different from those conferred by s 477(2). In order to succeed in an application under s 476, it is necessary for the applicant to demonstrate that the relevant migration decision involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76]. The function of the Federal Circuit Court under s 476 is to determine whether jurisdictional error has been demonstrated and whether the relief sought should be granted. The function conferred on the Federal Circuit Court under s 477(2) is to determine whether to extend the time for the making of an application under s 476. That they are separate and distinct functions is emphasised by the existence of an express statutory prohibition upon any appeal from a judgment under s 477(2), in contrast to the absence of such a prohibition in respect of a judgment under s 476. The conflation of these separate and distinct functions may indicate that the Federal Circuit Court has misconstrued s 477(2) and misconceived its function under that provision.

150    The power to grant an extension under s 477(2) of the Act is conditioned upon the existence of the Federal Circuit’s Court’s satisfaction that such an order is necessary in the interests of the administration of justice. In considering the interests of the administration of justice, it is relevant for the Federal Circuit Court to consider the merits of the proposed application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. In the context of an application for an extension of time, the expression “merits” refers to the prospects of success of the proposed application: see Jackamarra v Krakouer (1998) 195 CLR 516 at 519-522, 528-530, 540.

151    The prospects of success of the application proposed to be made under s 476 of the Act are relevant to the interests of the administration of justice for at least three reasons. First, it is ordinarily in the interests of justice that a person be permitted to place an arguable case before the Court (while bearing mind that this principle is affected by an applicant under s 477(2) being unable to do so as of right): cf Agar v Hyde (2000) 201 CLR 552 at [57]; DHX17 at [72]-[76]. Second, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98. Third, it is unlikely to be in the interests of the administration of justice to grant an extension of time to make an application that has little or no prospects of success: Jackamarra v Krakouer at 521, 540, 543; MZABP (at first instance) at [62].

152    Section 477(2) of the Act is concerned with the prospects of success of the proposed grounds of review, not whether the grounds would ultimately succeed or fail if an extension of time were granted (except where the grounds are unarguable). The Federal Circuit Court would not grant an extension of time where the proposed grounds, considered against other relevant factors (such as length of the delay, explanation for the delay and prejudice to each party), lack sufficient or adequate prospects of success. However, it is not the function of the Federal Circuit Court under s 477(2) to determine that proposed grounds of an application under s 476 which are at least arguable do not demonstrate jurisdictional error and then refuse an extension of time for that reason, or partly for that reason. Such an approach impermissibly conflates the Federal Circuit Court’s function under s 477(2) with its separate and distinct function under s 476 of determining an application for relief of the kind described in s 75(v) of the Constitution.

153    In this case, the approach taken by the FCC judge to the application under s 477(2) of the Act was to determine whether the proposed grounds would ultimately succeed or fail, rather than to assess their prospects of success. His Honour did not suggest that the grounds were unarguable. His Honour determined that each ground “fails”, and refused an extension of time primarily for that reason. That approach conflated the Federal Circuit Court’s function under s 477(2) of determining an application for an extension of time with its function under s 476 of determining a substantive application. It must be concluded that the FCC judge misconstrued s 477(2) and thereby fundamentally misconceived the nature of the Federal Circuit Court’s function. Subject to the question of materiality, the error was a jurisdictional error.

154    The Minister’s written submissions contended that DHX17 was wrongly decided but was not plainly wrong. The Minister’s oral submissions may have gone further and suggested that DHX17 was plainly wrong. Whatever the Minister’s position, I am satisfied that DHX17 was correctly decided.

155    The Minister has not advanced any submission that even if the FCC judge misconceived his function, the error was immaterial. As was held in DHX17 at [97], the issue is whether the outcome of the application under s 477(2) of the Act could realistically have been different, not whether the outcome of a hypothetical exercise of power under s 476 could realistically have been different. It must be concluded that the error was material and jurisdictional.

156    The parties were invited to provide supplementary submissions addressing the question of whether s 39B(1A)(c) of the Judiciary Act 1903 (Cth) confers on the Court jurisdiction to grant the relief sought by the appellant absent the existence of a jurisdictional error or error of law on the face of the record. As there was jurisdictional error, that question does not arise and need not be addressed.

157    The appeal should be allowed and the order of the primary judge dismissing the appellant’s application for judicial review of the Federal Circuit Court’s judgment should be set aside.

158    A writ of certiorari should issue to quash the order of the Federal Circuit Court dismissing the appellant’s application of an extension of time. A writ of mandamus should issue requiring the Federal Circuit Court and Family Court of Australia (Division 2) to hear and determine the application according to law.

159    The Minister should pay the appellant’s costs of the appeal. The Minister should also pay the costs thrown away in the Federal Circuit Court as a result of these orders. However, the costs order made by the primary judge in favour of the Minister should not be disturbed since the appellant has succeeded on a ground not raised before the primary judge.

Associate:    

Dated:    25 May 2022

REASONS FOR JUDGMENT

BEACH J:

160    I have had the considerable advantage of reading in draft form the reasons of Greenwood J and also the reasons of Rangiah J. I gratefully adopt their summaries of the background and how the present issue arises. But with respect, I disagree with their analysis. I would dismiss the appeal for the following brief reasons.

161    Let me commence by making several observations concerning the process before the Federal Circuit Court judge and his decision.

162    First, both the extension of time application and the substantive application were listed before the FCC judge and heard together. Both parties were represented before him and put submissions on that basis. Accordingly, there was no procedural unfairness argument available to the appellant in the course adopted by the FCC judge. The appellant put submissions on the substantive application which were to be taken into account and considered on the extension application, which is precisely what the FCC judge did, correctly in my view.

163    Second, clearly the FCC judge went beyond deciding some of the substantive issues on an impressionistic basis only, whatever that means. It is not in doubt that he made strong findings on various of the grounds, as his reasons indicate; see, for example, at [49], [53], [56], [60], [67] and [83]. But in doing so, did this constitute error or indeed jurisdictional error? I do not think so.

164    Section 477(2) then relevantly provided:

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.

165    There is no reference in the statutory language of s 477(2)(b) to being confined to using only an impressionistic test when considering the merits. Indeed, s 477(2)(b) is silent on the merits question let alone requiring the invocation of impressionism. Moreover, if merits are to be considered, the strength of the merits can shift along a spectrum depending upon the particular extension application. For example, the longer the delay by the applicant for the extension without adequate explanation, the higher the threshold or the greater the depth of analysis that may be applied for any merits assessment.

166    And what does impressionistic mean? Different judges may have different views as to the parameters of such a perspective even if they were looking at the same case and materials. But not only is there such a variation in relation to the approach of individual judges. Different cases and circumstances may also justify a different degree of impressionism. And what about a judge who is invited to hear the extension application and the substantive application together? Is it sensible to require some subjective bifurcation in the judge’s mind so that even though he has read and considered everything, he nevertheless must notionally construct and be confined to some nebulous or impressionistic assessment, even though his thinking is likely to have become more advanced?

167    It seems to me that the condition in s 477(2)(b) is very broad and neither requires nor implies that in considering the merits, only an impressionistic approach can be taken. There is no basis for reading into the condition any jurisdictional limit concerning the threshold for any merits assessment. Neither the text nor context of the provision so requires. Moreover, there is nothing about the evident purpose of the condition that would support such a restrictive operation or indeed a re-writing to justify such a restriction. Clearly one purpose of the provision is to ensure that the review jurisdiction of the inferior court is not plagued with cases that are bound to fail. Now if the court can decide this on what is in essence analogous to a summary basis in a particular case, well and good. But if the court chooses to delve further into the merits as if it was a final hearing, and the parties have been put on notice of this and put all that they would wish to, it is difficult to see how any error is involved in applying a higher threshold or greater depth of analysis of the merits, let alone a jurisdictional error.

168    Now reference was made by the appellant to various authorities that it was said stood in the way of such a conclusion. Let me deal with them briefly.

169    In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475, it is clear from [82] that the Full Court proceeded on the basis of an acceptance by the Minister of the primary judge’s characterisation of the error made by the FCC judge in that case. So, the Full Court did not fully decide that question for itself. And it accepted that the error had been so correctly characterised. Now the primary judge in that case, Greenwood J, found that this was not a jurisdictional error, but the Full Court reached a contrary view based on the primary judge’s characterisation of the error (see at [85]). Its finding on that latter aspect was tethered to the primary judge’s characterisation of the relevant error, although in fairness to the primary judge I am not convinced that the Full Court at [82] and [83] then correctly linked his Honour’s characterisation to the inexhaustive taxonomy in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 as it does not seem to me that his Honour so intended. So given how the matter was put in DHX17, it does not stand in the way of what I have said concerning error. But if it stands in the way concerning the error or its characterisation of jurisdictional error, then with respect it is incorrect.

170    As for MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, with respect I do not consider [62] and [63] to be correct concerning travelling beyond an impressionistic level. Further, I also do not consider what was said at [68] to be correct to the extent that it is said that any such travelling beyond an impressionistic level would amount to a jurisdictional error. In any event, her Honour’s observations were obiter and the Full Court’s endorsement of her decision was more focused on the dispositive questions (MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478).

171    I need not address MZABP further. But am I justified in putting DHX17 to one side? In Transurban CityLink Ltd v Allan (1999) 95 FCR 553, Black CJ, Hill, Sundberg, Marshall and Kenny JJ said (at [27] to [31]):

It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.

In Nguyen v Nguyen (1990) 169 CLR 245 at 268-269, Dawson, Toohey and McHugh JJ, observed that the extent to which the appellate court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself, citing the judgment of Bowen CJ and Forster J in Chamberlain v The Queen (1983) 72 FLR 1 at 8-9, and noted also that the Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong. Their Honours then said:

“Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law ...”

See also Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.

A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 at 20 per Hill J.

What their Honours said in Nguyen must be read in the context of their previous remarks. The statement of principle in Chamberlain v The Queen, cited with evident approval by their Honours, was qualified by the word “normally”. The use of expressions of this nature leaves the way open for an approach that is appropriate to the circumstances of a particular case: see La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204. Towards the conclusion of their joint judgment in Nguyen, Dawson, Toohey and McHugh JJ, noting that appeals to the High Court were now by special leave only, and that the appeal courts of the Supreme Courts of the States and of the Federal Court were, in many instances, courts of last resort for all practical purposes, observed (at 269-270):

“In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasion to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.”

Beyond this principle, we do not think it possible, or even desirable, to formulate exhaustive criteria upon which this Court should act when asked to reconsider an earlier decision, for so much will depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case…

172    Now it was submitted by the appellant that I am required, sitting as a member of a Full Court, to find that a prior Full Court decision is plainly wrong before departing from it. But I prefer the formulation in Transurban.

173    First, the High Court has not expressly imposed such a test on this Court with respect to following or not its own Full Court decisions. Such a test concerns the decisions of intermediate appellate courts in different jurisdictions, rather than with respect to the same jurisdiction where the test is desirably more flexible at the Full Court level as Transurban indicates. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 it was said at [135]:

…Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel’s submission that he was obliged not to do so.

(emphasis added, footnotes omitted)

174    Second, I have not observed the phrase “plainly wrong” to have been in widespread use in terms of one Full Court of this Court not following an earlier decision of another Full Court of this Court. And in any event, one Full Court cannot impose a plainly wrong threshold on any subsequent Full Court. Further, if it is being said that “plainly wrong” is no more than a short-hand formulation of Transurban, such a formulation has a connotation that in one sense puts the matter too strongly and lacks the flexibility of the Transurban formulation.

175    In my view, applying Transurban, I am entitled not to follow DHX17 and, albeit reluctantly, I propose not to do so.

176    So to this point, in my view the FCC judge made no error, let alone a jurisdictional error. There was no misconstruction by the FCC judge of s 477(2)(b) such as to misconstrue the nature of his function. And even if the FCC judge made an error in his evaluation, that is, by delving too deeply, this was not a jurisdictional error. It is of the essence of and reflects an acting within jurisdiction for the inferior court to identify and evaluate the questions necessary to address the statutory condition in s 477(2)(b). And the FCC judge was free to delve as deeply into the merits as he considered necessary in order to address s 477(2)(b). And of course the inferior court had jurisdiction to decide the question or evaluation wrongly. Clearly, the question of merits can be a relevant factor. And the degree of strength of the merits is surely for the inferior court to consider, acting within jurisdiction, depending upon the context and circumstances of the particular matter before it including the other circumstances to be considered.

177    Let me address another matter. The appellant contended that he had lost an appeal right by the approach of the FCC judge. As the argument went, it was said that if the merits had only been assessed on an impressionistic basis, then the extension should have been granted, such that if the substantive application was then later dismissed, he would have had an appeal right to pursue. But this assumes the question in issue. If the FCC judge could, acting within jurisdiction, delve much more deeply into the merits for the purposes of determining the extension application, then in dismissing that application there was never any right of appeal at any stage; the appellant had no such right whether before or after the dismissal.

178    Let me address a related way to put this raised by Greenwood J, which is that if the FCC judge made an error in dealing with one of the grounds relevant to the substantive s 476 application, then this might render the foundation of him not being satisfied under s 477(2)(b) unsound; so, if you like, a House v The King type error. But then it is said that such an error could not be fully tested if an extension was refused. That is true only to a limited extent as some House v The King errors can be jurisdictional errors and so the refusal could be tested. But in any event, if there was an error in any impressionistic assessment, which for some judges or some cases might involve descending into more detail, this consequence would also follow. So it is all a question of degree. But this is all another way of addressing the absence of an appeal right which I have dealt with.

179    Finally on this aspect of the case, even if there was a jurisdictional error of the type contended for by the appellant, it might now be said not to be material, in that extending time now could only encourage an exercise in futility. But I accept that the Minister before us did not press this point.

180    Let me move to a different analysis and for this purpose let it be assumed that the FCC judge made an error but it was not a jurisdictional error. As was pointed out by this Court during the hearing, original jurisdiction could also have been conferred on the primary judge in this Court in the present case under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) as an additional source of jurisdiction to s 39B(1), and where there was no necessity to find jurisdictional error.

181    But what remedies could have been granted by the primary judge in this Court if such jurisdiction had been invoked? It would seem to me that to grant a declaration would have been futile. But could an order under s 23 of the Federal Court of Australia Act 1976 (Cth) in the nature of certiorari have been granted for a non-jurisdictional error of law on the part of the inferior court? Possibly, but only if the error of law was on the face of the record. But the difficulty for the appellant here is that ordinarily at least, the reasons of an inferior court are not part of the record. So, there are real doubts as to whether certiorari could have gone against the decision of the FCC judge for non-jurisdictional error. Moreover, an order for mandamus would have risen or fallen with certiorari.

182    In my view, even if this additional jurisdiction under s 39B(1A)(c) had been invoked, no substantive relief could or should have been granted in the appellant’s favour. And independently, no relief should have been given in any event. To do so would have indirectly subverted the operation of s 476A(3)(a) which states that no appeal lies from a decision under s 477(2). So even if, contrary to my view, certiorari had been available for such a non-jurisdictional error invoking this additional source of jurisdiction, this would have been a compelling disqualifying discretionary factor.

183    In summary then, even if the FCC judge had made an error which was not a jurisdictional error and even if the alternative source of jurisdiction under s 39B(1A)(c) had been enlivened before the primary judge in this Court, the appellant would not have been entitled to any substantive relief.

184    For all these reasons the appeal must be dismissed.

Associate:

Dated:    25 May 2022