FEDERAL COURT OF AUSTRALIA

SZTES v Minister for Immigration and Border Protection [2015] FCA 719

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant to pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    This is an application for judicial review of a decision of the Federal Circuit Court of Australia that has been remitted to this Court from the High Court of Australia pursuant to s 44 of the Judiciary Act 1903 (Cth) (Judiciary Act). The decision under review is a decision under s 477(2) of the Migration Act 1958 (Cth) (the Act) not to extend the period within which the applicant was able to bring an application for a remedy in the exercise of the Federal Circuit Court’s jurisdiction under s 476 of the Act.

2    This Court has jurisdiction to entertain this application despite the fact that, by reason of s 476A(3)(a) of the Act, no appeal lies to the Court from a judgment of the Federal Circuit Court refusing an application for an extension of time under s 477(2) of the Act: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [2]-[11].

3    This application raises an important issue in relation to the nature of the jurisdiction under s 477(2) of the Act and the manner in which the Federal Circuit Court approaches that jurisdiction, especially where, as here, the extension application is listed for hearing at the same time as the substantive judicial review application. The issue is of particular importance given the absence of any right to appeal an adverse decision on an extension application.

background

4    The applicant is a citizen of Afghanistan. On 15 January 2013, he applied for a protection visa under s 36 of the Act. On 11 March 2013, that application was refused by a delegate of the Minister for Immigration and Border Protection (Minister). Shortly thereafter the applicant applied to the Refugee Review Tribunal (Tribunal) for a review of the decision to refuse his visa application. That review application was unsuccessful. In a decision dated 27 June 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant’s visa application.

5    Undeterred, the applicant then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision pursuant to the Federal Circuit Court’s original jurisdiction under s 476 of the Act. In his application to the Federal Circuit Court, the applicant claimed that in affirming the delegate’s decision to refuse his visa application, the Tribunal made two jurisdictional errors. First, he claimed that the Tribunal took into account irrelevant considerations; and second, he claimed that the Tribunal applied the incorrect statutory test for the visa in question.

6    The problem for the applicant, however, was that his application was filed 18 days after the expiry of the 35 day time limit for the making of such applications imposed by s 477(1) of the Act. The applicant was accordingly required to obtain an extension of time within which to bring his application pursuant to s 477(2) of the Act.

7    Under s 477(2) of the Act, the Federal Circuit Court has a discretion to extend the 35 day period in which review applications can be filed if two conditions are satisfied.

8    First, it is necessary for an application for an extension of time to be 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 an order extending time. This condition was not a problem for the applicant. His review application satisfied this condition because it both sought an extension of time and set out why the applicant considered it was necessary in the interests of the administration of justice to make the extension order.

9    The second condition, however, turned out to be a problem for the applicant. To enliven the Federal Circuit Court’s discretion to extend time, s 477(2)(b) of the Act requires the Federal Circuit Court to be satisfied that it is necessary in the interests of the administration of justice to make an order extending time.

The hearing in the Federal Circuit Court

10    The applicant’s application for an extension of time was listed for hearing in the Federal Circuit Court together with his substantive judicial review application. Prior to the appointed hearing date, the Minister’s solicitor advised the applicant’s solicitor that the Minister consented to the application for an extension of time and that the Minister’s submissions would confirm that fact.

11    The Minister’s written submissions filed in the Federal Circuit Court did not indicate that the Minister consented to the extension of time under s 477(2) of the Act. The written submissions did, however, indicate that “given the short period involved of 18 days [the application for an extension of time] is not opposed.” The written submissions did not otherwise deal with the requirement that the Federal Circuit Court be satisfied that it was necessary in the interests of the administration of justice to make an order extending time. Rather, the submissions simply went on to deal with the substantive issue of whether the Tribunal had erred jurisdictionally as contended by the applicant in his review application.

12    The applicant also filed written submissions. The applicant’s written submissions addressed the application for an extension order under s 477(2) of the Act. Specifically, the submissions addressed the circumstances relevant to whether an extension was in the interests of the administration of justice. It was submitted, amongst other things, that the delay was short, that the delay had been explained, and that there was no prejudice to the Minister. It was also submitted that the “ground sought to be advanced in the amended application is meritorious.”

13    At the hearing, the application for an extension of time under s 477(2) of the Act received scant attention. That was no doubt due, at least in part, to the fact that the Minister did not oppose the extension application. At the outset, counsel for the applicant specifically raised the extension application and referred the judge to the applicant’s written submissions and to an affidavit that had been filed by the applicant which explained the delay in filing the application. The judge asked counsel for the Minister if there was any objection to the affidavit. The following exchange then occurred:

MR REILLY: No, your Honour. Your Honour will have seen from our written submissions that we don’t oppose the extension of time.

HIS HONOUR: Yes, I understand that. Thank you. Yes.

MR BODISCO: And I do thank my friend for that.

HIS HONOUR: Well, I will take the affidavit of Mr Feraz as read.

MR BODISCO: Yes. And I formally then make the application.

HIS HONOUR: So what would you like to say to me in that regard?

MR BODISCO: I rely on my written submissions on that point, that it wasn’t a gross or marked delay, that there is an explanation that is unchallenged that is on the court file.

HIS HONOUR: That’s all right. I don’t need to hear you on the extension of time issue as far as a satisfactory explanation is concerned.

MR BODISCO: Sure.

HIS HONOUR: So just – let’s move to the merits.

14    That was the last mention of the extension application. Counsel for the applicant made submissions in relation to the substantive issue of whether the Tribunal had erred jurisdictionally as contended by the applicant. Counsel for the Minister also addressed that issue. The Federal Circuit Court judge reserved his decision.

The judgment of the Federal Circuit Court

15    On 12 August 2014, the Federal Circuit Court judge handed down a judgment in which he dismissed the application for an extension of time.

16    The Federal Circuit Court judge found that the applicant had satisfied the first condition for an extension of time under s 477(2) of the Act. The applicant had made an application in writing for an order extending time which specified why the applicant considered that it was necessary in the interests of the administration of justice to make such an order.

17    In relation to the second condition in s 477(2) of the Act, the interests of the administration of justice, the judge noted that the considerations or issues potentially relevant to this condition were not confined, but emphasised the need for an explanation of the delay and reasonable prospects of success. The judge said (at [10]-[11]):

The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. The Court is not confined in the issues which it may consider relevant to its determination of that question. In this case, relevant considerations are whether the applicant has provided a satisfactory explanation for his delay in commencing the proceedings and whether the proceedings as a whole have a reasonable prospect of success, noting that a matter which does not have such prospects is liable to be dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001.

The applicant filed an affidavit which set out certain practical difficulties he encountered in the filing of his initiating process. I am satisfied that the applicant’s explanation for the delay in commencing these proceedings is a satisfactory one. I also note that the Minister did not oppose an extension of time.

18    In relation to the prospects of success, the Federal Circuit Court judge gave fairly detailed consideration to each of the grounds in the applicant’s substantive judicial review application, together with the applicant’s submissions in support of those grounds. The Federal Circuit Court judge found that the Tribunal had not erred as alleged by the applicant, or at least that he was not persuaded that there was any jurisdictional error on the part of the Tribunal.

19    The judge’s conclusion in relation to the interests of the administration of justice is in the following terms (at [26]-[28]):

I am not persuaded that there is any basis to find that the Tribunal’s decision is affected by jurisdictional error. Consequently, the substantive proceedings have no reasonable prospects of success.

In such circumstances, and notwithstanding that I have found that the applicant has supplied a satisfactory explanation for his delay in filing his initiating application, I conclude that it is not in the interests of the administration of justice to extend time to bring these proceedings.

Consequently, the applicant’s application for an extension of time will be dismissed.

20    It is unnecessary at this stage to give any detailed consideration to the Federal Circuit Court judge’s reasons for concluding that there was no basis for finding that the Tribunal had erred jurisdictionally as contended. Neither the applicant, nor the Minister, advanced any submissions on this application in relation to the correctness or otherwise of the judge’s consideration of the merits of the applicant’s case that the Tribunal had erred jurisdictionally. It is also difficult to give any detailed consideration to this aspect of the Federal Circuit Court’s disposition of the matter given that neither the Tribunal’s decision and reasons, nor the material that was before the Federal Circuit Court, is in evidence in this Court.

21    It is sufficient to make five points.

22    First, the applicant contended in his judicial review application in the Federal Circuit Court that the Tribunal erred jurisdictionally in two ways. The first ground was that the Tribunal had taken into account an irrelevant consideration. The substance of the applicant’s case was that the Tribunal had erroneously imported an irrelevant consideration into its determination of whether the applicant met the criterion under s 36(2)(aa) of the Act (the complementary protection criterion). He contended that the Tribunal had regard to whether the applicant’s religion and ethnicity gave rise to a risk of him being harmed if returned to Afghanistan. He submitted that these matters were relevant only to whether the applicant had met the criterion in s 36(2)(a) of the Act (the Refugee’s Convention criterion).

23    The second ground was that the Tribunal had applied an incorrect test and misconstrued s 36(2B)(c) of the Act. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. The Tribunal found that any risk faced by the applicant was one faced by the population of Afghanistan generally. The applicant contended that s 36(2B)(c) did not apply if an individual applicant faced a particular risk (as he claimed he did), even if the relevant population also faced that same risk.

24    Importantly, both of the applicant’s grounds turned largely on arguments based on the Tribunal’s reasons and the proper construction of s 36 of the Act. It was not suggested that the applicant could or would lead any further evidence in support of his application, or put any further material before the court, if his extension application was granted.

25    Second, it can be readily inferred that the applicant had every opportunity to fully argue these grounds of his application when the matter was heard in the Federal Circuit Court. The applicant was represented by solicitor and counsel at the hearing. He filed detailed written submissions and counsel made oral submissions in support of his case. It is not contended by the applicant that the Federal Circuit Court judge dealt with his grounds in a summary or shorthand fashion given that his Honour was considering the grounds in the context of an application for an extension of time. Indeed, one of the points made by the applicant on this application is that the Federal Circuit Court judge addressed and determined his grounds of challenge to the Tribunal’s decision effectively on a final basis. The applicant contends that the judge did not correctly address the question of whether, for the purposes of the extension application, the applicant’s grounds were reasonably arguable, or whether the applicant had reasonable prospects of success.

26    Third, as already indicated, the applicant does not contend on this application that the Federal Circuit Court judge erred in his consideration and rejection of the two grounds of review of the Tribunal’s decision and reasons. The applicant explains this on the basis that, by reason of s 476A(3)(a) of the Act, he cannot bring an appeal in this Court from the judgment of the Federal Circuit Court refusing to make an order under s 477(2) of the Act. The applicant submits, on this basis, that he cannot attack the Federal Circuit Court judge’s reasons for finding that the grounds of his substantive application had no merit. Rather, the applicant’s challenge to the Federal Circuit Court judge’s judgment focuses exclusively on the manner in which the Federal Circuit Court judge dealt with the extension application, particularly in light of the fact that the Minister did not oppose the extension application.

27    Fourth, nor does the Minister submit on this application that the grounds relied on before the Federal Circuit Court judge were hopeless or not reasonably arguable. That is consistent with the approach taken by the Minister in the Federal Circuit Court. The Minister maintains, however, that despite his non-opposition to the extension application, the Federal Circuit Court did not err in the exercise of its jurisdiction under s 477(2) of the Act when it dismissed the application.

28    Fifth, given that the extension application and the substantive application were heard together, and having regard to the findings concerning the merits of the application, it would perhaps have been open to the Federal Circuit Court judge to grant an extension of time and then dismiss the application. This is conceded by the applicant. The applicant contends, however, that had the Federal Circuit Court judge dealt with the matter in that way, he would have had a right of appeal. In contrast, the applicant has no right of appeal against the dismissal of the extension application. This lies at the heart of the applicant’s challenge to the decision of the Federal Circuit Court judge. The applicant submits that by disposing of his extension application in the way he did, the Federal Circuit Court judge effectively deprived him of his appeal rights.

GROUNDS and Submissions

29    These proceedings were first commenced in the High Court by way of an application for an order to show cause. That application sought, inter alia, an order in the nature of certiorari quashing the decision of the Federal Circuit Court, an order remitting the matter to the Federal Circuit Court to be reheard and determined in accordance with the law, and a declaration that s 20 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) is invalid to the extent that it prohibits appeals from the Federal Circuit Court to the High Court where the decision relates to an application for an extension of time under s 477 of the Act.

30    On 1 December 2014, the High Court (Bell J) ordered that the proceeding be remitted to this Court pursuant to s 44 of the Judiciary Act and that the remitted matter proceed in this Court as if steps taken in the High Court had been taken in this Court.

31    Following the remittal of the matter, the applicant filed an amended application for judicial review in this Court. The amended application seeks essentially the same relief as that originally sought in the High Court. It sets out five grounds upon which the judgment of the Federal Circuit Court is challenged. Those grounds are, in summary:

(1)    The applicant was denied procedural fairness because, in circumstances where the Minister consented to the application for extension of time, the Federal Circuit Court judge failed to put the applicant on notice that the matter would be decided on the basis of the extension of time issue alone.

(2)    The Federal Circuit Court judge failed to take into account a relevant consideration, being the fact that the Minister had consented to the extension of time application.

(3)    The Federal Circuit Court judge misunderstood the test for the “interests of the administration of justice” by equating that test with the question of whether the applicant was successful in obtaining relief at a final hearing.

(4)    The judgment of the Federal Circuit Court judge was unreasonable because the judge failed to take into account the fact that the Minister had consented to the extension of time application and that, by refusing that application, the Federal Circuit Court judge effectively precluded the applicant from exercising his right of appeal.

(5)    Section 20 of the FCCA Act is constrained by and/or inconsistent with s 73 of the Constitution. In relation to this ground, the applicant served notices in accordance with s 78B of the Judiciary Act. No application was made by any Attorney-General to intervene in these proceedings.

32    There is a degree of overlap between the first four grounds. Indeed, the applicant submits that these grounds should essentially be considered together because the considerations relevant to one ground feed into the others. In oral submissions at the hearing, the applicant placed particular emphasis on the contention in ground three that the Federal Circuit Court judge had equated or conflated the test for “the interests of the administration of justice” with the question of whether the applicant was entitled to final relief in respect of his substantive application. The applicant’s case can effectively be summarised in five propositions.

33    First, he submits that the Minister consented to the extension application. In his submissions to the Federal Circuit Court judge, the Minister stated only that he did not oppose the application, however having regard to the context and circumstances that was tantamount to consent.

34    Second, the applicant submits that, having regard to the Minister’s consent to the application for an extension of time, together with the way the extension application was dealt with at the hearing, the applicant was led to assume or expect that he did not need to address or make further submissions in support of the extension application. His submissions were therefore directed solely to the grounds of the substantive application.

35    Third, the applicant contends that as a result he was effectively deprived of the opportunity to submit, in relation to the extension application, that his grounds of challenge were, at the very least, reasonably arguable and not so weak that the extension application should be refused. In the applicant’s submission, if the grounds of challenge were at least arguable, the appropriate course would have been to grant an extension of time, even if the Federal Circuit Court judge ultimately concluded that the grounds of challenge were not made out. That is all the more so given that there is no appeal from a refusal of an extension application. The applicant submits that he was effectively deprived of the opportunity to advance a submission along those lines.

36    Fourth, whilst the applicant accepts that the prospects of success of the substantive application is a relevant consideration in relation to an application for an extension of time under s 477(2) of the Act, he submits that the Federal Circuit Court judge misunderstood, or asked himself the wrong question, in relation to that consideration. The reasons of the Federal Circuit Court judge reveal, so it is submitted, that the approach of the Federal Circuit Court judge was to first determine whether he would grant final relief. Having found that he would not, he reasoned backwards that the applicant had no reasonable prospects of success. That was a form of post hoc, ergo propter hoc reasoning. It also conflated the test for reasonable prospects of success with the question whether the applicant had established jurisdictional error and was therefore entitled to the relief sought in the substantive application.

37    Fifth, in dismissing the extension application on the basis that the applicant was not entitled to final relief, the Federal Circuit Court judge effectively deprived the applicant of his appeal rights.

Consideration

38    It is important to emphasise again that this is not an appeal from the judgment of the Federal Circuit Court. The Court has no jurisdiction to entertain such an appeal: section 476A(3)(a) of the Act. This is an application in which the applicant seeks an order in the nature of certiorari quashing a decision of an inferior court on the basis that it made a jurisdictional error or errors. In the present circumstances, it can be concluded that the Federal Circuit Court made a jurisdictional error if it is found that the court either denied the applicant procedural fairness or misconceived the nature of its function or the extent of its powers in considering whether it was necessary in the interests of the administration of justice to grant the extension of time sought by the applicant: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (SZTSU) at [11]. It is not sufficient, however, for the applicant to simply demonstrate that the court made an error, even a legal error, in determining a matter within its jurisdiction.

39    In Craig v The State of South Australia (1995) 184 CLR 163, the High Court gave detailed consideration to the circumstances in which an inferior court may be said to have fallen into jurisdictional error. The court said (at 177-178):

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

(Footnote omitted.)

40    The court (at 179-180) distinguished errors which may result in a successful appeal from jurisdictional errors by an inferior court:

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.

41    The Minister did not submit that any of the errors asserted by the applicant, if made out, would not constitute jurisdictional error. His submissions were directed at establishing that none of the errors were made. Nevertheless, it is necessary to bear in mind the distinction between appealable error and jurisdictional error when addressing some of the applicant’s grounds.

The nature of the power under s 477(2) of the Act

42    No detailed submissions were made by either party in relation to the nature of the power or jurisdiction of the Federal Circuit Court to extend time under s 477(2) of the Act. It is readily apparent, however, that to properly consider the applicant’s challenge to the Federal Circuit Court judge’s exercise of jurisdiction, it is necessary to understand the nature of the power under s 477(2) of the Act.

43    Section 477(2)(b) of the Act imposes an express precondition to the exercise of discretion in favour of an applicant, namely that the extension of time is “necessary” in the interests of the administration of justice: SZTSU at [2]. It is only if that precondition is satisfied that the discretion is enlivened. It should also be emphasised that the statutory precondition is to be formed to the satisfaction of the Federal Circuit Court. That is particularly important here. The Federal Circuit Court might not be satisfied that this precondition has been made out even if the Minister did not oppose, or consented to, the extension application.

44    Section 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. In Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 297, Lockhart J said the following in relation to power to extend the time in which an application may be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act):

… the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court’s discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.

45    Likewise, in Pozniak v Minister for Health (unreported, Federal Court of Australia, Burchett J, 14 March 1986) Burchett J, in a passage quoted with approval by French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 (Seiler) at 97, said:

The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court’s discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court.

46    Section 11 of the ADJR Act does not contain an express precondition invoking the interests of the administration of justice. Nevertheless, these observations made in the context of s 11 of the ADJR Act are apposite to the exercise of jurisdiction under s 477(2) of the Act.

47    In SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 (SZRIQ), Foster J said the following concerning s 477(2) of the Act (at [46]-[48]):

There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a)    Whether there has been a reasonable and adequate explanation for the applicant’s delay;

(b)    Whether there is any prejudice to the Minister;

(c)    Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

48    The third factor referred to by Foster J, whether the substantive case for judicial review is “sufficiently arguable”, is particularly relevant in the circumstances of this case. Indeed, as has been said, the decision of the Federal Circuit Court judge turned largely on this factor. The expression “reasonably arguable” is no different in substance from other expressions that have been used to describe this factor, including “reasonable prospects of success”.

49    In the context of an application for the extension of time, it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time: ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 at [111]. In Seiler, again in the context of an application to extend time under s 7 or 11 under the ADJR Act, French J said the following about the assessment of the merits (at 98):

In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time.

50    These observations would also appear to be apposite insofar as the prospects of success of the substantive application is a relevant factor in considering the interests of the administration of justice in s 477(2) of the Act.

Ground 1 - Was the applicant denied procedural fairness?

51    The manner in which the extension application was dealt with by the Federal Circuit Court judge was, in all the circumstances, less than satisfactory. It does not, however, necessarily follow that the applicant was denied procedural fairness. The critical question, in short, is whether as a result of the procedural deficiencies there was any “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38].

52    The problem with the hearing in the Federal Circuit Court was the product of a combination of factors. The extension application was set down for hearing at the same time as the substantive application. That is in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this is done, however, it is important for the court and the parties to proceed in a way that makes it clear whether the leave or the extension application remains a live issue. In particular, care should usually be taken to ensure that issues that arise in relation to the leave or extension application are dealt with separately and distinctly from the issues that arise on the substantive application.

53    That did not occur here. Indeed, having regard to the way the matter proceeded at the hearing, and in light of the Minister’s consent or non-opposition to the extension application, the impression appears to have been given, and the assumption might reasonably have been drawn by the applicant, that there was effectively no issue about the extension of time being granted.

54    The situation was exacerbated by the fact that when the Minister’s counsel confirmed that the Minister did not oppose the application for an extension of time, the Federal Circuit Court judge gave the impression, no doubt unintentionally, that he did not need to hear any further from the applicant’s counsel on the extension application. Whilst his Honour said only that he did not need to hear anything further “as far as a satisfactory explanation is concerned”, he did not suggest that any other aspect of the extension application remained outstanding or needed to be addressed by the applicant. Rather, the Federal Circuit Court judge said “let’s move to the merits.” That statement is somewhat ambiguous. It could easily have been interpreted as meaning “let’s move to the substantive application”. It is certainly not clear that it meant “let’s move to the question whether your application has reasonable prospects of success”. Whatever his Honour meant by the words “let’s move to the merits”, what followed thereafter was full argument concerning the merits of the substantive application. No further mention was made of the extension of time application.

55    But does it follow that the applicant was denied procedural fairness? What did procedural fairness require in the circumstances?

56    The applicant’s submission that procedural fairness required that the Federal Circuit Court judge give him “notice that the matter would be decided on the basis of the extension of time issue alone” has no merit and is rejected. There is no indication that, at any time during the hearing, the Federal Circuit Court judge had decided that the matter “would” be decided on that basis, such that notice of that fact was required. Nor is a judge required by the rules of procedural fairness to expose, or give notice of, mental processes or provisional views: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592.

57    The applicant’s reliance on the fact that the Minister did not oppose the extension application also does not assist. The mere fact that the Minister had consented, or did not oppose, the extension application did not oblige the Federal Circuit Court judge to put the applicant on notice that he might still decide the extension application adversely to him.

58    The terms of s 477(2)(b) of the Act make it plain that the Federal Circuit Court cannot grant an extension of time unless satisfied that it is in the interests of the administration of justice to do so. The fact that the Minister did not oppose an extension application may be a relevant factor to consider in addressing the interests of the administration of justice. It is not, however, necessarily determinative. There may be cases where, despite the Minister’s non-opposition, it would be open to the Federal Circuit Court not to be satisfied that the interests of the administration of justice necessitated an extension of time. An applicant is not entitled to assume that an extension will be granted simply because the Minister does not oppose it. In these circumstances, it is difficult to see why procedural fairness required the Federal Circuit Court judge to inform the applicant that, despite the Minister’s consent or non-opposition, he still needed to persuade the court that the interests of the administration of justice necessitated the grant of an extension. That is all the more so here where the applicant was represented by solicitor and counsel.

59    The apparent confusion that appeared to result from the way the hearing was conducted, and in particular the judge’s statement “let’s move to the merits”, whilst unfortunate, does not establish a denial of procedural fairness. The problem for the applicant is that he has not demonstrated that he was in any way materially prejudiced or disadvantaged by the somewhat unsatisfactory way in which the hearing proceeded. What was the practical injustice? What would or could he have done differently if notice had been given that the Federal Circuit Court judge might, despite the Minister’s non-opposition and the course the hearing had taken, refuse the application for an extension?

60    There is or could be no suggestion that, if put on notice that extension of time was still a live issue, the applicant would or could have put his arguments in support of his substantive grounds of review of the Tribunal’s decision differently or more forcefully. More importantly, this is not a case where the applicant intended to file any further evidence, or put any further material before the court, in support of his substantive application: cf. Shrestha v Migration Review Tribunal [2015] FCAFC 87; SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88.

61    It is, in these circumstances, difficult to conclude that there was any practical injustice arising from the way in which the hearing was conducted.

62    The highest the applicant is able to put his case is that he was deprived of the opportunity of submitting that his grounds of review of the Tribunal’s decision were at least reasonably arguable, and that accordingly the extension should be granted, even if the Federal Circuit Court judge was ultimately of the opinion that final relief should not be granted. The applicant submits that had he been able to make this submission, the result would, or at least might, have been that the applicant would have appeal rights.

63    There is a considerable degree of artificiality in that argument.

64    The applicant argued before the Federal Circuit Court that his grounds of challenge to the Tribunal’s decision were correct. It is implicit in this that he also contended that they were reasonably arguable.

65    A fair reading of the judgment of the Federal Circuit Court judge reveals that, having heard full argument on the merits of the grounds of review, the Federal Circuit Court judge was of the opinion that there was no basis to find that the Tribunal’s decision was affected by jurisdictional error. This amounted to a finding that the applicant’s case was not just weak, but was hopeless and destined to fail. It is difficult to see how, in these circumstances, the judge could possibly have been persuaded that the grounds were reasonably arguable, or that there were reasonable prospects of success.

66    It is equally difficult to see how the Federal Circuit Court judge, having found that there was no basis for finding jurisdictional error on the part of the Tribunal, could decide that it was nonetheless in the interests of the administration of justice to grant an extension of time on the basis that the applicant’s case was at least reasonably arguable. How could it be said to be necessary in the interests of the administration of justice to grant an extension of time in respect of an application which had been found to be without merit and therefore destined to fail? The applicant’s apparent answer to this rhetorical question is that it was in the interests of the administration of justice to extend time, despite the finding that his substantive application was destined to fail, because otherwise he would be deprived of his appeal rights. But that is the case in relation to all extension applications. The creation or preservation of appeal rights alone could not provide a basis for an extension of time where the court has concluded that there are no reasonable prospects of success.

67    In all the circumstances it cannot be concluded that there was any practical injustice or unfairness to the applicant. The applicant was given every opportunity to present his case that he had good arguable grounds upon which to challenge the Tribunal’s decision. Procedural fairness did not require the Federal Circuit Court judge to put the applicant on notice that, despite the Minister’s consent, his extension application might nonetheless be dismissed on the basis that he did not have reasonable prospects of success. Whilst there may have been some confusion arising from the way in which the hearing was conducted, that confusion did not result in any prejudice or unfairness to the applicant.

68    It should be emphasised that the conclusion that there was no practical injustice and therefore no denial of procedural fairness, despite the somewhat unsatisfactory manner in which the application was dealt with, has nothing to do with the discretionary nature of the relief. It is well accepted that, if there has been a denial of procedural fairness, an applicant is entitled to relief unless the court is persuaded that the breach could not have had any bearing on the outcome: Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541. Here, however, the absence of any practical injustice means that there was no breach.

69    There is an additional difficulty in relation to the applicant’s contention that he was denied procedural fairness because he was effectively deprived of his appeal rights. That difficulty arises from the fact that he has made no attempt to demonstrate that, if he had a right of appeal from the finding in respect of the merits of his substantive application, that right would be of any utility. The applicant has not sought to establish that the Federal Circuit Court judge’s assessment of the merits of his substantive challenge to the Tribunal’s decision was erroneous. Indeed, he has not even attempted to demonstrate that he had or has even a reasonably arguable case of jurisdictional error on the part of the Tribunal.

70    The applicant submits that he did not attempt to demonstrate these matters because he is precluded from bringing an appeal from the refusal of his extension application. That submission is rejected. The fact that s 476A(3)(a) precludes an appeal from the dismissal of an extension of time application by the Federal Circuit Court does not mean that an applicant who commences judicial review proceedings alleging that the dismissal involved a jurisdictional error is precluded from advancing any argument based on the court’s treatment of the merits of the substantive application. For example, an applicant would be entitled to contend that the Federal Circuit Court’s treatment of whether the substantive application was reasonably arguable was arbitrary, capricious or devoid of any intelligible justification and therefore legally unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [28], [110]; Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 (Singh) at [44]. That would necessarily involve some consideration of the court’s treatment of the merits of the substantive application.

71    Because no arguments were advanced concerning the merits of the applicant’s substantive application and the Federal Circuit Court judge’s consideration of the applicant’s substantive challenge to the Tribunal’s decision, it is not proposed to give any detailed consideration to these matters. It is sufficient to note that there is no obvious or apparent error in the Federal Circuit Court judge’s findings and reasons for rejecting the applicant’s two grounds of challenge to the Tribunal’s decision. The judge concluded, in effect, that a fair reading of the Tribunal’s reasons supported the conclusion that the Tribunal did not erroneously take into account the applicant’s religion and ethnicity in considering the complementary protection criterion. It was relevant for the Tribunal to have regard to the applicant’s claims based on his religion and ethnicity in considering whether there was a real risk that the applicant would suffer significant harm in Afghanistan that was not faced by the population generally. In relation to the applicant’s arguments concerning s 36(2B)(c) of the Act, the Federal Circuit Court judge rejected the applicant’s suggested construction. The judge found that the reference to a risk being faced “personally” in s 36(2B)(c) refers to an individual facing a risk which is particular to him or her, and not one that is merely attributable to his or her membership of the population of the country generally. The judge’s findings in relation to both of the applicant’s grounds of challenge to the Tribunal’s decision do not appear to involve any appealable error.

72    To the extent that the applicant’s case that he was denied procedural fairness rests on the contention that he was denied the opportunity to appeal from the judge’s findings in relation to the merits of his substantive application, the absence of any apparent appealable error provides an additional reason for finding that there was no practical injustice or unfairness in the manner in which the court dealt with his application. There was no denial of procedural fairness.

Ground 2 – Did the Federal Circuit Court judge fail to have regard to a relevant consideration?

73    This ground can be dealt with relatively briefly.

74    The relevant consideration that the Federal Circuit Court judge failed to have regard to here is said to be that the Minister had consented to the extension application.

75    The first difficulty for the applicant is that a fair reading of the judgment of the Federal Circuit Court judge, in particular at [11], reveals that the judge was aware of, and had regard to, the fact that the Minister did not oppose the extension application. It is fairly clear that the judge proceeded on the basis that the fact that the Minister did not oppose the application was not determinative. He still needed to be satisfied that the interests of the administration of justice made it necessary to order the extension. The Federal Circuit Court judge was correct to proceed on that basis. It does not mean that he failed to have regard to the position taken by the Minister.

76    The applicant submits, in effect, that the Federal Circuit Court judge’s reference to the fact that the Minister did not oppose the extension application was no more than a “throwaway line”. He contends that the Federal Circuit Court judge did not properly or genuinely have regard to the Minister’s non-opposition. This submission, however, does not rise above bare assertion. It also effectively amounts to a challenge to the weight given to this consideration by the Federal Circuit Court judge. The weight given to this consideration by the Federal Circuit Court judge was entirely a matter for him. It is not open to challenge in judicial review proceedings which are limited to correcting jurisdictional errors.

77    It should also be noted here that the applicant does not appear to rely on any distinction or difference between the Minister’s consent, as communicated by the Minister to the applicant prior to the hearing, and the Minister’s non-opposition, which was communicated to the court. To the extent that the applicant does rely on any difference between consent and non-opposition, he faces two difficulties. First, in the particular circumstances of this case, it is difficult to see any material difference between consent and non-opposition. Second, in any event, there is no evidence that the Federal Circuit Court judge was told that the Minister consented to the application. The Federal Circuit Court judge could not relevantly fall into jurisdictional error by failing to have regard to a matter that was not communicated to him.

78    A further and perhaps more fundamental problem for the applicant in relation to this ground is that, even if the Federal Circuit Court judge did not have regard to the Minister’s consent or non-opposition, it does not follow that he made a jurisdictional error. It would only be a jurisdictional error if the Federal Circuit Court judge was bound to have regard to that matter when exercising the power or jurisdiction under s 477(2) of the Act. As has already been pointed out, s 477(2) of the Act does not expressly state what factors need to be considered, either in considering the interests of the administration of justice, or in the exercise of the discretion. The question, then, is whether, as a matter of statutory construction, a requirement to consider this factor can be implied having regard to the subject matter, scope or purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40.

79    A failure to have any regard to the Minister’s consent or non-opposition to an extension application may well amount to an error that, but for s 476A(3)(a) of the Act, would be an appealable error. In the circumstances of this case, however, any such error would be an error within jurisdiction. There is nothing in the subject matter, scope or purpose of the Act, or s 477(2) of the Act in particular, which would support an implication that this factor must necessarily be taken into account as a condition of the exercise of the jurisdiction to extend time. It is for the court to determine what is necessary in the interests of the administration of justice in the particular circumstances of the case.

80    It follows that even if the Federal Circuit Court judge did fail to have regard to the Minister’s consent or non-opposition, there was nevertheless no jurisdictional error.

Ground 3 - Did the Federal Circuit Court judge misunderstand or misconstrue his jurisdiction under s 477(2)?

81    The applicant accepts that in considering whether an extension of time is necessary in the interests of the administration of justice, the court is ordinarily required to consider the prospects of success of the substantive application. The question whether the substantive application has reasonable prospects of success is therefore a relevant consideration in the exercise of the jurisdiction under s 477(2) of the Act. The applicant submits, however, that the Federal Circuit Court judge erred in his consideration of this relevant factor. That is because, in the applicant’s submission, his Honour confused or conflated the question of reasonable prospects of success with the question whether he would grant final relief in the substantive proceedings. His Honour found that the applicant had not made out either of the two alleged errors made by the Tribunal and, in the applicant’s submission, reasoned backwards from that position and concluded that there was therefore no reasonable prospects of success. In the applicant’s submission, however, to make out reasonable prospects of success it is necessary only to establish that the substantive application is reasonably arguable and not hopeless.

82    There is some merit in the applicant’s submissions in this regard. As the passage from the judgment of French J in Seiler, extracted earlier, shows, the question of the merits of a substantive application has to be approached with caution when considering an application for an extension of time. It is plainly not necessary for an applicant to establish that the substantive application will succeed. Nor would the fact that the substantive application might be weak necessarily justify the refusal of an extension. And where the merits of the substantive application are fully argued on the extension application, it is somewhat artificial to import into the consideration of the extension of time some assessment of the likelihood of success of the application.

83    There are some indications in the Federal Circuit Court judge’s reasons that he did not approach the question of reasonable prospects of success with appropriate caution. In particular, at [13], his Honour appeared to approach reasonable prospects of success as if this factor was a necessarily determinative consideration. The Federal Circuit Court judge states, in effect, that if an applicant cannot establish reasonable prospects of success, the court will not conclude that it is in the interests of the administration of justice to extend time.

84    The correctness of this proposition depends on what the Federal Circuit Court judge meant by reasonable prospects of success in the circumstances. If he meant no more than that an applicant is required to demonstrate that the substantive application is not hopeless or doomed to fail, the proposition is not problematic. It is difficult to see how it could be in the interests of the administration of justice to extend time in respect of a substantive application that is hopeless and doomed to fail. As French J said in Seiler, however, it is difficult to imagine any case which merely appeared weak, but not hopeless, in which it would be proper to refuse an extension on that account.

85    There are also some indications that his Honour equated reasonable prospects of success with the question whether the applicant had made out his case and was entitled to the relief he sought. That is perhaps most apparent from the conclusion expressed in [26] of the judgment. In that paragraph, his Honour does appear to reason backwards from his finding that he had not been persuaded that the Tribunal’s decision was affected by jurisdictional error. This backwards reasoning is largely the product of the way his Honour approached the extension application given that it was listed for hearing together with the substantive application. Having heard full argument on the merits of the substantive application, and determined that the applicant had not made out either of the alleged jurisdictional errors, it was artificial to express the findings in terms of reasonable prospects of success. This was the very sort of artificiality referred to by French J in Seiler.

86    Nevertheless, it does not follow that it should be concluded that the Federal Circuit Court judge fell into jurisdictional error. The Federal Circuit Court judge correctly identified the nature of the jurisdiction to extend time under s 477(2) of the Act. He correctly identified that he was required to be satisfied that it was necessary in the interests of the administration of justice to make an order extending time. He correctly identified, at [10], that he was not confined in the issues which may be relevant to that question. He correctly considered that a relevant consideration was whether the substantive application had reasonable prospects of success.

87    As previously indicated, whilst his Honour considered that the absence of reasonable prospects of success was, or was likely to be, determinative of whether it is in the interests of the administration of justice to extend time, that is not the same as equating or conflating the two tests. The applicant’s submissions to the contrary are rejected.

88    A fair reading of the judgment of the Federal Circuit Court judge also does not support a finding that his Honour conflated or equated reasonable prospects of success with the question of whether the applicant had made out his case for final relief. Whilst the conclusion at [26] is expressed in somewhat infelicitous terms, the effect of his Honour’s findings concerning the merits of the substantive application was that there was no basis for concluding that the Tribunal’s decision was infected by jurisdictional error. That is equivalent to, or tantamount to, concluding that the substantive application was not just weak, but was hopeless or doomed to fail.

89    It is important to emphasise again in this context, that this is not a case where the prospects of success were being assessed at a stage where the evidence was incomplete, or where the consideration of the applicant’s case was otherwise preliminary or provisional. The merits were fully argued. Whilst it may be somewhat artificial to speak of reasonable prospects of success in these circumstances, it does not follow that an incorrect test was imposed or applied by the Federal Circuit Court judge.

90    Finally, it should perhaps be noted that even if the judge did err by equating the test for the interests of the administration of justice with the question whether the applicant was entitled to final relief, it is nonetheless at least doubtful that this would amount to a jurisdictional error in the circumstances. Whilst it would most likely amount to an error of law, as the reasoning in Craig v The State of South Australia shows, not all errors of law by an inferior court amount to jurisdictional errors. The ordinary jurisdiction of a court encompasses the authority to decide questions of law, including the identification of relevant issues and the formulation of relevant questions. The Federal Circuit Court’s identification of the issues and questions concerning the interests of the administration of justice would ordinarily therefore fall within its jurisdiction. An error in the formulation of such issues and questions would therefore be an error within jurisdiction. Given that there was not, in any event, any such error in this case, it is unnecessary to finally decide this issue.

Ground 4 - Is the judgment “legally unreasonable”?

91    The short answer to this question is “no”.

92    A finding can be considered to be “legally unreasonable” in judicial review proceedings if it appears to be arbitrary, capricious, without common sense or plainly unjust: Li at [28], [110]; Singh at [44]. It might also be legally unreasonable if there is no evident, transparent or intelligible justification for it in the decision-making process: Li at [105].

93    The judgment of the Federal Circuit Court judge does not fall foul of either of these tests.

94    The applicant relies on the contention that the judge failed to have regard to the Minister’s consent. That contention has already been considered. The judge had regard to that matter. His Honour proceeded on the basis that the Minister’s consent was not determinative. That finding was not unreasonable in any sense. It was correct.

95    The applicant’s other contention in support of this ground is that the Federal Circuit Court judge effectively precluded the applicant from exercising his right of appeal.

96    There is no doubt that there is no right of appeal to the Court from a decision of the Federal Circuit Court to refuse to extend time under s 477(2) of the Act. It does not follow, however, that a refusal is therefore unreasonable, otherwise all refusals would be able to be struck down in judicial review proceedings such as these. It is clear that the legislature intended that there would be no appellate review of a determination by a Federal Circuit Court judge to refuse an extension of time under s 477(2) of the Act.

97    It is also at least doubtful that the absence of appellate review is a matter that a Federal Circuit Court judge is bound to take into account in arriving at a determination under s 477(2) of the Act. In SZRIQ, Foster J said the following in respect of this issue (at [69]):

I should say that I have some difficulty in accepting that a federal magistrate called upon to make a decision under s 477(2)(b) of the Act must always consider the impact of s 476A(3)(a) on the applicant. Apart from anything else, an applicant who does not obtain an extension of time can seek relief in this court pursuant to s 39B or in the High Court in the original jurisdiction of the High Court. Redress for such an applicant is not completely unavailable. Furthermore, in a case where the federal magistrate concludes that the extension of time applicant’s prospects of succeeding in his or her substantive application are so weak as to be without merit, it seems highly unlikely that the absence of a right of appeal would persuade the federal magistrate to grant the claimed extension of time. On the other hand, in circumstances where there is a reasonable explanation for the applicant’s delay, no prejudice to the minister and a reasonably arguable case on the merits, the fact that there was no right of appeal to this court would add very little to the outcome. In the latter circumstances, the federal magistrate would be likely to grant the extension of time because it was appropriate to do so. It is difficult to see how the absence of a right of appeal would have any influence on that positive outcome.

98    There is much to be said for that view expressed by Foster J.

99    It must be said, however, that in cases such as this, where the extension application is listed together with the substantive application and the merits of the substantive application are fully argued, refusal of an extension of time solely on the basis of the merits of the application may give rise to an unfortunate perception. That perception would be that the application was disposed of on that basis so as to avoid appellate review. That perception is even more likely to arise where, as here, the Minister does not oppose the extension and where, as here, the extension application is not clearly dealt with at the hearing as a discrete or preliminary question. The perception arises, in part, because of the artificiality involved in importing into the consideration of the extension application some assessment of the likelihood of success of the substantive application where the merits have been fully argued. In cases such as this, where the extension application is heard on the same day as the substantive application and where there are properly articulated grounds that are at least worthy of debate, the better course would ordinarily be for the Federal Circuit Court to grant an extension and then deal with the merits of the substantive application.

Ground 5 - The constitutional issue

100    It is unnecessary to consider this ground in any detail. The applicant accepts that the Court is bound to follow the decision of Hayne J in Re Bryant; Ex parte Guarino (2001) 178 ALR 57 that s 20 of the FCCA Act is constitutionally valid. It is, in any event, difficult to see how this issue properly arises in this application. This ground is accordingly rejected.

Conclusion and disposition

101    The applicant has failed to demonstrate that the Federal Circuit Court erred jurisdictionally in any of the ways contended. It follows that the application must accordingly be dismissed with costs.

102    It should again be emphasised that the outcome of this application should not be taken as condoning, let alone encouraging, the Federal Circuit Court to hear and determine extension applications in the manner it did in this matter. Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discretely from the issues that arise in relation to the substantive application. That will avoid the sort of confusion that arose in this matter. Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis. That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application.

Associate:

Dated:    17 July 2015