FEDERAL COURT OF AUSTRALIA

SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely upon the amended application for relief dated 19 November 2015.

2.    The amended application for review dated 19 November 2015 be dismissed.

3.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The applicant moves under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) and seeks judicial review of a decision of a judge of the Federal Circuit Court of Australia (FCCA) (see SZUWX v Minister for Immigration and Border Protection [2015] FCCA 2151). The primary judge refused to extend the time under s 477(2) of the Migration Act 1958 (Cth) (the Act) to enable the applicant to have judicially reviewed a decision dated 7 March 2014 of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), which affirmed a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (protection visa).

Summary of background facts

2    The applicant is a 34 year old man from Libya. He arrived in Australia on 21 June 2010 on a student visa. He applied for a protection visa on 24 January 2013, claiming to fear persecution in Libya based upon his actual or imputed support of the former Gaddafi regime. He claimed to be entitled to a protection visa under relevant legislative provisions relating to both refugees and complementary protection.

3    It is unnecessary to summarise the reasons why the delegate refused to grant the applicant a protection visa.

The Tribunal’s reasons summarised

4    The Tribunal described the issue in the case as the applicant’s credibility. It noted that the applicant sought protection on the basis that he claimed to be an actual or imputed Gaddafi supporter because:

    he accepted a scholarship from the Gaddafi regime to study overseas;

    he had political objections to tribal rule, militias and “rampant religious fundamentalism” which, he said, would inevitably bring him to the adverse attention of those groups in Libya and there was no protection from central authorities;

    he objected to aligning himself to a militia for protection;

    he is a member of the Alashrafa tribe which supported Gaddafi and which is targeted by anti-Gaddafi militias;

    he is from Al Jifra in Southern Libya, an area renowned for supporting the Gaddafi regime;

    his two brothers left Libya after Gaddafi fell due to the threats from militias; and

    his parents and siblings have been subjected to recurrent short term periods of displacement due to ongoing politically motivated violence and remained internally displaced because of threats of ruling militias and a lack of protection by central authorities.

5    The Tribunal noted the applicant’s claims regarding the lack of central control and dysfunctional administration in Libya and that the country was “unstable, the society fragmented, divided along tribal, political, cultural and religious lines with political retribution”.

6    The Tribunal gave the following reasons (broadly summarised) why it rejected the applicant’s claims:

    there was no country information which supported his claim that his tribe supported Gaddafi and had been targeted by anti-Gaddafi militias;

    after noting reports of NATO airstrikes on Waddan (the applicant’s hometown), as referred to by the delegate in the decision-record the Tribunal concluded that such reports did not support the applicant’s specific claims in relation to his tribe and the Misrata militia, also noting that there were reports of reprisals from anti-Gaddafi militias on residents of other towns;

    there was no country information before the Tribunal which supported his claim that Al Jifra is renowned for supporting the Gaddafi regime notwithstanding that there was a great deal of information about militias and tribes in Libya generally;

    there were inconsistencies in the applicant’s claims, which were identified by the Tribunal. They included his claim that he was an actual or imputed supporter of Gaddafi because he accepted a scholarship from that regime, however, at [31] the Tribunal pointed to the fact that the existing regime in Libya had approved the applicant changing his course in July 2012 and renewed his passport in Canberra in 2012. Moreover, the country reports did not indicate systematic targeting and intimidation of scholarship holders by former rebel fighters, extremists or other militias;

    while not accepting that the applicant was a credible witness, the Tribunal noted at [32] of its reasons for decision that it accepted that the central government in Libya “has had difficulty in ruling Libya, that there are hundreds of militias in Libya, and that Libya is a fragmented society divided along tribal, political, cultural and religious lines”;

    the Tribunal did not accept that any member of the applicant’s immediate family had suffered any harm for the reasons alleged by the applicant and, while accepting at [33] that two of the applicant’s cousins had been killed, it did not accept that their deaths were for the reasons advanced by the applicant;

    nor did the Tribunal accept at [36] that the applicant had political objections to tribal rule, militias and “rampant religious fundamentalism” which would bring him to adverse attention, noting that the applicant had continued to study in Australia under both Libyan regimes which did not indicate that he had any strong political views;

    while accepting that there were some Islamist militias among the many militias in Libya, at [37] the Tribunal did not accept that “religious fundamentalism” is rampant in Libya or that the applicant would be harmed; and

    while reiterating at [38] that it accepted that there was a lack of central control, dysfunctional administration, endemic corruption and tribal factionalism influences which made Libya unstable and fragmented, the Tribunal did not accept that the applicant would suffer harm in Libya for any of those reasons.

7    For similar reasons, at [42]-[47] the Tribunal rejected the applicant’s claim for complementary protection. The Tribunal also found that the applicant’s family had been able to remain in Libya unharmed throughout the turmoil of 2011 to date.

The FCCA proceeding

8    On 7 August 2014, the applicant commenced a judicial review proceeding in the FCCA. The application was filed approximately three months outside the 35 day time period prescribed in s 477(1) of the Act.

9    On 28 August 2014, the FCCA made orders by consent concerning preparation for the hearing of the application, which was listed for final hearing on 10 August 2015. Orders were made for the filing of affidavit evidence and an amended application, as well as for the provision of outlines of written submissions. Initially, the applicant did not file an affidavit which explained his delay. Accordingly, the Minister served a notice to produce which sought communications relating to that matter. Two days later, the applicant’s solicitor served an affidavit sworn by the applicant on 5 August 2015. The applicant was cross-examined on his affidavit. The Minister contended that, in the course of that cross-examination, the applicant conceded that he had deliberately chosen not to pursue judicial review because Ministerial intervention was the “easier and cheaper option”. The Minister further contended that the applicant also acknowledged that his explanation in his affidavit that he could not afford to pursue judicial review was not credible in light of the fact that he had paid his lawyer to assist him in seeking Ministerial intervention and that he had also borrowed money to pay his legal fees in the FCCA proceeding.

10    In considering whether or not to extend time, the primary judge took into account a proposed amended application for judicial review which was served on 27 July 2015. The proposed grounds of review in the amended application related to procedural fairness, jurisdictional error and a failure to take into account relevant considerations. As noted above, the applicant belatedly filed an affidavit in which he sought to explain the reasons for the delay in commencing proceedings in the FCCA. The applicant was represented by counsel in the FCCA.

11    The primary judge refused to extend time. His reasons for doing so may be summarised as follows. The primary judge found at [11] that the applicant’s explanation for the delay, which delay was described as “significant”, was not satisfactory. The primary judge found that it was evident from the applicant’s affidavit that he was aware at the time of making that affidavit that he had 35 days to file a judicial review application from the date of the Tribunal’s decision. The applicant explained that his original solicitor advised him to seek counsel’s advice regarding his prospects in a judicial review case, but he said that he could not afford to pay for a barrister at that time. He said that his then solicitor advised that he could seek Ministerial intervention, which he pursued but was unsuccessful. The applicant then explained that he engaged his current solicitors on 23 July 2014 and apparently received advice that he had reasonable prospects of success, but that he did not know at that time that the limitation period was 35 days. The primary judge made reference to an email from the applicant’s original solicitors which erroneously referred to a limitation period of 28 days. The primary judge described the effect of that error as “simply to indicate to the applicant that he needed to make a decision within a shorter time than that prescribed under the Migration Act”.

12    The primary judge stated at [14] that, as matters then stood, the applicant had two options: seek either Ministerial intervention or judicial review in the FCCA. The applicant instructed his then solicitor to seek Ministerial intervention.

13    The primary judge concluded at [15]:

In my view, and notwithstanding the submissions from the applicant's counsel to the contrary, the applicant made a considered choice in March 2014 on the basis of consultations with his then solicitor to seek Ministerial intervention in preference to seeking judicial review. There is authority that, in those circumstances, an approach to the Court following the unsuccessful outcome of a request for Ministerial intervention is not a satisfactory explanation for the delay in coming to Court. I adhere to that view and find that the applicant has not advanced a satisfactory explanation for the delay.

14    Despite finding that there was no satisfactory explanation for the delay, the primary judge proceeded to consider whether the interests of the administration of justice required time to be extended. For the following reasons, he concluded that they did not. As to the proposed three grounds of judicial review in the amended application, the primary judge commented that the Tribunal’s conclusions at [38] and [45] of its reasons for decision appeared “surprising”. This was because Libya is “a country with obvious problems” and there are real doubts as to whether it had a functioning government which exercised any real control over the serious internal strife between rival militias and factions in various parts of the country. The primary judge commented that, in these circumstances,” it would seem that the applicant must face some degree of risk of harm if he returns to Libya”.

15    His Honour concluded at [20], however, that these were not matters that needed to trouble the Tribunal because the Tribunal was obliged to consider the grounds advanced by the applicant in his visa application, which he found it had. Thus, while the primary judge stated that it was arguable that there was a disconnection between the Tribunal’s findings, the available information and its reasoning process, he accepted the Minister’s submission that the Tribunal properly reasoned that the applicant’s particular claims were not accepted and that the risk he faced was the same as that faced by the rest of the population in Libya.

16    The primary judge then proceeded to consider the proposed third ground of judicial review, which related to the Tribunal’s obligation to follow Ministerial Direction No. 56 and PAM3 Refugee and Humanitarian Complementary Protection Guidelines (the Guidelines). His Honour noted that the Tribunal was clearly aware of the Guidelines because they were referred to in the introductory part of the Tribunal’s reasons, however, they were not then further discussed. The primary judge commented that the Tribunal was “grappling in the dark” because it did not have before it a country report from the Department of Foreign Affairs and Trade and was reliant on the country information made available to it by the applicant and that which the Tribunal obtained itself. That information “painted a picture of considerable uncertainty as to circumstances in Libya”, but the primary judge concluded that it was not necessarily apparent that the Tribunal had erred by failing specifically to discuss the details of the Guidelines.

17    Accordingly, while concluding that the proposed grounds of judicial review were “arguable”, the primary judge held that he was not persuaded that it was in the interests of the administration of justice to extend time. The application for an extension of time was refused, with costs.

Judicial review application in this Court

18    As noted above, the applicant sought judicial review of the primary judge’s decision to refuse him an extension of time. No grounds of review were identified in his originating application. He filed an affidavit in support which relevantly stated:

2.    If my application for relief is refused, I will suffer hardship, in that I will be deported to Libya, where my life will be in grave danger.

3.    I have been advised and verily believe that the decision of Justice Driver of Federal Circuit Court of Australia dated 10 August 2015 was erroneous in principle in that the learned Federal Circuit Court Judge’s discretion (Justice Driver) to refuse an extension of time to appeal was vitiated by an error of principle, in that His Honour erroneously failed to have regard to the absence of prejudice to the respondent if time to appeal had been extended, which was material to the exercise of such discretion.

19    Thus, the applicant’s affidavit identified a sole ground of judicial review, namely that in exercising his discretion whether or not to extend time, the primary judge failed to take into account the absence of any prejudice to the Minister if time was extended.

20    Subsequently, by an interlocutory application filed on 25 November 2015, the applicant sought leave to rely upon additional grounds as set out in a proposed amended application for relief. The applicant’s new case was based on a claim that the primary judge had fallen into jurisdictional error on the following three grounds:

(a)    failure to take into account relevant considerations or give “proper, genuine or realistic consideration to the applicant’s claims or integers of those claims”, which were particularised by reference to the primary judge’s failure to deal with two of five arguments which were advanced below on behalf of the applicant in favour of time being extended;

(b)    misapplication of the applicable law or failure to ask the correct question, which was particularised by reference to the primary judge’s finding that the applicant had an arguable case yet found that it was not in the interests of justice to extend time; and

(c)    the decision not to extend time was unreasonable or “lacked evidence (sic) and intelligent justification”, which was particularised substantially by reference to the particulars to the first two grounds above.

21    The Minister submitted that none of the proposed grounds of review had prospects of success, but he pointed to no prejudice were leave granted to the applicant to rely on the amended application. In these circumstances, leave is granted but, for the reasons which follow, each of the grounds should be dismissed.

The applicant’s submissions summarised

22    The applicant was represented by counsel. In written submissions prepared on behalf of the applicant, it was stated that the primary judge’s decision was challenged on the following three grounds:

(a)    failure to take into account considerations to which regard was required in order to enliven jurisdiction, citing Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 (Khan);

(b)    misapplication of the applicable law and failure to ask the correct question, citing Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig); and

(c)    legal unreasonableness, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li).

23    It is convenient to further summarise how the applicant’s counsel elaborated upon these three grounds of judicial review.

24    As to his claim that the primary judge failed to take into account relevant considerations (ground 1), the applicant contended that, in his oral and written submissions to the primary judge, he relied upon the following five arguments as to why time should be extended:

(a)    while the extent of the delay was significant, it should not override the merits of his applicant;

(b)    the delay was satisfactorily explained by reference to his financial hardship and inability to afford legal advice at the relevant time, together with his lack of appreciation that he had 35 days to file a judicial review application which time continued to run even though he sought Ministerial intervention;

(c)    there was little or no prejudice to the respondents, apart from the time and costs of further proceedings;

(d)    it was in the interests of the Australian community that his refugee claims be reviewed according to law; and

(e)    on balance it was in the interests of justice to extend time given that he had an arguable case.

25    The applicant submitted that the primary judge failed to address the impact on him of time not being extended; the absence of any prejudice to the Minister; and the interests of the Australian community. These omissions represented “a misunderstanding or misconstruing of the Court’s jurisdiction” under s 477 of the Act and constituted jurisdictional error, so submitted the applicant. At the hearing, particular emphasis was placed upon the contention that the primary judge had not taken into account the absence of any prejudice to the respondent if leave were to be granted in support of the applicant’s argument that the primary had fallen into jurisdictional error.

26    As to the applicant’s claim that the primary judge misapplied the applicable law and/or failed to ask the correct question (ground 2), the applicant contended that once the primary judge found that his proposed grounds of judicial review were arguable, it was necessarily in the interests of the administration of justice to extend time, citing AAV15 v Minister for Immigration and Border Protection [2015] FCA 700 (AAV15) at [20] per Flick J, as well as observations by Flick J in AEG15 v Minister for Immigration and Border Protection [2015] FCA 702 (AEG15) at [12].

27    Counsel for the applicant then set out in the outline of written submissions the following extract from [20] of Flick J’s reasons for judgment in AAV15:

In considering the manner in which the Federal Circuit Court Judge approached the proceeding in that Court, it must necessarily be recognised that a decision to grant or refuse an extension of time may well look to the proceeding's prospects of success…  The more favourable an initial assessment may be that a proceeding has at least some prospects of success or arguable prospects of success, the greater the prospect may be that an extension of time will be granted.

28    I will return to deal with this extract further below but it should be noted at this point that the extract omits relevant additional observations by Flick J. During the course of the hearing, Mr Coleman SC, who appeared for the applicant, informed the Court that, while his instructions were to press ground 2, he did not propose to elaborate upon the written submissions in support of this ground.

29    As to the ground concerning unreasonableness (ground 3), the applicant submitted that the primary judge’s decision was unreasonable having regard to the primary judge’s failure to take into account the relevant considerations referred to in respect of ground 1. He emphasised that the delay was “minimal” and was satisfactorily explained, his proposed judicial review application was meritorious, there was little prejudice to the respondents, the impact on him was serious and it was in the interests of the Australian community to have his claims heard and determined according to law. He also added that the primary judge’s finding that the explanation for the delay was not satisfactory should not have displaced his proposed application, which was found to be arguable. He reiterated that the primary judge having so found, it was always in the interests of justice to extend time.

30    Counsel referred to [12] of Flick J’s reasons for judgment in AAV15 in support of this ground of unreasonableness. It is difficult to understand the relevance of that passage from his Honour’s judgment given that it was directed specifically to the Court’s discretion to enter summary judgment and was not directed to the discretion to extend time. As his Honour observed in AAV15 at [21], while the fact that a proceedings’ prospects of success may be relevant to the exercise of both those discretions, “the two discretions nevertheless serve different purposes and are informed by different considerations”. I respectfully agree with those observations.

The Minister’s submissions summarised

31    The Minister emphasised that the proceeding was in the nature of a judicial review of the exercise of a discretion by a Judge of the FCCA. The proceeding was not in the nature of an appellate review or a judicial review of a decision of an administrative officer. The Minister submitted that this had important implications for the scope of the review, citing cases such as Craig and various decisions of the Court, including SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 (SZRIQ); SZTSU v Federal Circuit Court of Australia [2015] FCA 224 and SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES). Having regard to those authorities, the Minister submitted that the applicant’s proposed grounds of review based on a failure to consider relevant considerations and errors of law were legally misconceived (as well as factually misconceived). The Minister further submitted that the applicant’s claims of unreasonableness were factually misconceived.

32    In summary form, the Minister submitted that, for the following reasons, each of the three grounds of judicial review in the amended application should be dismissed.

33    As to ground 1, the Minister submitted that matters raised in the applicant’s written submissions below did not give rise to mandatory considerations which the FCCA was bound to consider and that, in any event, it could not be inferred that the matters were not taken into account. As to ground 2, which was based on the primary judge’s finding that the proposed grounds of review were arguable, the Minister submitted that the applicant had failed to establish how any such “error” went to jurisdiction. Moreover, the Minister submitted that, as a factual matter, the primary judge’s reasons indicate that he considered any arguable error to be weak. In oral address, Ms Francoise who appeared for the Minister, submitted that this inference could be drawn from the primary judge’s summary of the Tribunal’s reasons for rejecting the applicant’s claims and, where relevant, the Tribunal’s reliance upon the reasons given by the delegate also rejecting those claims.

34    As to ground 3, the Minister emphasised the primary judge’s finding that the applicant had not offered a satisfactory explanation for his delay. Moreover, the decision not to extend time in circumstances where there was no satisfactory explanation for the delay and the applicant advanced only weakly arguable grounds of judicial review fell far short of lacking an evident and intelligible justification, so submitted the Minister.

Consideration

35    Given its significance in the proceeding, it is desirable to set out s 477 of the Act, which specifies the time within which a proceeding under s 476 of the Act must be instituted in the FCCA and confers a discretion on the FCCA to extend that period:

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.

36    Self-evidently, the discretion to extend time is expressed in broad terms by reference to the Court extending the 35 day period as it “considers appropriate”. Although the legislation does not provide a list of considerations which may be relevant to that question, the discretion is not entirely at large. That is because:

(a)    it is a precondition to the exercise of the discretion that the applicant apply in writing for time to be extended and to indicate in writing why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    another precondition is that the Court itself must be satisfied that “it is necessary in the interests of the administration of justice to make the order”.

37    It is important to recall that the jurisdiction being exercised by the Court in reviewing the primary judge’s exercise of discretion is a jurisdiction which concerns judicial review, as opposed to appellate review, of the exercise of a discretionary power by another Court. The principles which govern appellate review of the exercise of a judicial discretion were authoritatively described by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House) at 504-505. It is convenient to set out that well-known passage:

But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.

38    There is some similarity between that statement of principles and the principles which govern judicial review for jurisdictional error (see, for example, the observations of the plurality in Li at [75]-[76]), but there are also some important differences. Those differences include the following. First, there is a need to distinguish between judicial review for jurisdictional error in relation to decision-makers who are exercising judicial as opposed to executive power (see the further decision of Craig below).

39    Secondly, where a Court in the exercise of appellate jurisdiction reviews the exercise of a discretion by a judge and finds an error of the type identified in House, the appellate court may exercise its own discretion in substitution for the primary judge if the appellate court has available to it the necessary materials to do so. That is to be contrasted with review for jurisdictional error because, where such an error is found to exist, it will be a rare case where the review court then substitutes its own decision for that under review, as opposed to remitting the matter for reconsideration according to law, at least in the case of review of a decision by an administrative decision-maker.

40    Thirdly, despite some similarity in the description in House of the type of errors which justify appellate intervention and the types of matters which may give rise to jurisdictional error, it may be wrong to assume that the content of those grounds of review is the same. For example, although a mistake in fact-finding in the course of exercising a judicial discretion might attract appellate intervention in accordance with the House principles, generally speaking such an error is only likely to give rise to a jurisdictional error in the context of judicial review of administrative action if the fact in question is a jurisdictional fact.

The High Court’s decision in Craig

41    Craig is an important decision in the circumstances of this case. In particular, Craig serves to underline the critical need to distinguish between judicial review for jurisdictional error of a decision of an inferior court as opposed to an administrative tribunal or decision-maker, a distinction which was reaffirmed by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2009) 239 CLR 531 (Kirk) at [67]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Because of its importance, it is convenient to analyse Craig in some detail.

42    Craig involved judicial review of the exercise of a discretion by the District Court of South Australia. The primary judge stayed criminal proceedings on the basis that the accused was without legal representation through no fault of his own and could not receive a fair trial unless he was represented by counsel, having regard to Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 (Dietrich). The Crown applied to the Supreme Court of South Australia for an order in the nature of certiorari to quash the primary judge’s stay order (there was no statutory right of appeal). The Full Court of the Supreme Court held that the primary judge had committed a jurisdictional error because he had misunderstood the majority’s reasons in Dietrich.

43    That decision was reversed on appeal by a unanimous decision of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ). The Court described the critical issue at [7] as whether “if, as the Full Court has held, the trial judge’s decision to grant the stay was affected by error, that error was of a kind which would have warranted the issue of the prerogative writ of certiorari…”.

44    Putting to one side the issue of the availability for certiorari for error of law on the face of the record, the significance of the High Court’s analysis of the availability of that remedy for jurisdictional error may be summarised as follows.

45    First, emphasis was given to the fact that a necessary distinction had to be drawn between inferior courts and other tribunals exercising governmental powers which are also amenable to the writ. The Court emphasised that inferior courts are constituted by persons with either formal legal qualifications or practical legal training and are part of the administration of justice, whereas administrative tribunals are commonly constituted by persons without formal legal qualifications or training and do not form part of the “ordinary hierarchical judicial structure” (at [10]).

46    Secondly, at [11]-[12] the High Court identified the following circumstances as illustrating when an inferior court falls into jurisdictional error:

(a)    where the inferior court 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;

(b)    where the inferior court purports to act wholly or partly outside the general area of its jurisdiction;

(c)    where, while acting wholly within the general area of its jurisdiction, the inferior court does something which it lacks authority to do, such as where there is a jurisdictional requirement which is a precondition to the court’s exercise of power and the court acts notwithstanding that that condition is not objectively satisfied;

(d)    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”. It is important to emphasise in respect of this particular error that the “relevant consideration” must be one which is to be taken into account as a pre-condition to the exercise of jurisdiction (see further below); and

(e)    where the inferior court misconstrues a 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.

47    The High Court then addressed the particular issue as to whether an inferior court commits jurisdictional error whenever it addresses the wrong issue or asks the wrong question. In rejecting that proposition, the High Court emphasised that principles in England governing judicial review of a tribunal’s decision (as reflected in the leading case in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171), should not be accepted in Australia as “an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari” (see at [13]). The High Court emphasised the importance in Australia of maintaining what it described as the “critical distinction which exists between administrative tribunals and courts of law”. This was partly explained by reference to an administrative tribunal’s general lack of authority authoritatively to determine questions of law or make an order or decision otherwise than in accordance with the law, as well as by reference to constitutional requirements in Australia arising from the doctrine of the separation of powers.

48    The High Court described at [14] the types of error of law which constitute jurisdictional error when committed by an administrative tribunal (as opposed to an inferior court):

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

49    In contrast, the High Court made the following observations at [15] in respect of inferior courts of law:

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.

(Emphasis added).

50    Applying those principles to the particular circumstances in Craig, the High Court held that the primary judge had jurisdiction to hear and dispose of the accused’s application for a stay or proceeding. Thus, the resolution of that issue lay within the authority of the trial judge. Furthermore, if the primary judge misunderstood the effect of the majority judgment in Dietrich or in concluding that the accused’s inability to obtain legal representation was not his own fault, such an error would be one which was made within jurisdiction and would not constitute a jurisdictional error. Their Honours said at [26]:

As Dietrich establishes, Judge Russell possessed jurisdiction to hear and dispose of the appellant's application for a stay of proceedings. That jurisdiction encompassed the identification and determination of relevant questions of law and fact involved in deciding whether a trial in which the appellant was left without legal representation would be unfair and whether a stay should or should not be granted. Those questions included the question whether the appellant's inability to obtain legal representation should be seen as being “through no fault on his ... part”. Like almost any question which arises for determination by a judge, that question of "fault" can, once the facts are ascertained, be dressed in the garb of a question of law. Essentially, however, it is a question of fact involving an element of discretionary judgment. Regardless of whether it be viewed as a question of law or a mixed question of law and fact, however, its resolution lay within the primary authority of the trial judge. If Judge Russell fell into error in assessing the effect of the majority judgment in Dietrich or in concluding that the appellant's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari.

(Emphasis added).

51    In addition to reaffirming the importance of the distinction between review for jurisdictional error of a decision of an inferior court as opposed to an executive body exercising governmental powers, at least insofar as the writ of certiorari is concerned, the High Court in Kirk also drew attention to the difficulty of identifying with any precision what constitutes a jurisdictional error. The plurality observed at [71] that it “is neither necessary, nor possible, to attempt to mark the metes and bound of jurisdictional error”.

52    For completeness, it should be noted that Mr Coleman SC confirmed that the applicant’s case was presented exclusively on the basis of the primary judge having fallen into jurisdictional error in refusing to extend time. The applicant placed no reliance upon the alternative limb for which certiorari is available, namely error of law on the face of the record. Accordingly, nothing more needs to be said about that limb.

53    The applicant relied on Wigney J’s decision in SZTES as well as Foster J’s decision in SZRIQ. For the following reasons, I do not regard either of those decisions as assisting the applicant’s case. SZTES involved judicial review of a FCCA decision refusing to extend time. His Honour drew attention to the fact that s 477(2) of the Act does not define or confine the matters that the FCCA can or should have regard to in considering the interests of the administration of justice. At [44], Wigney J referred to the comments of Lockhart J in Hickey v Australian Telecommunications Commission [1983] FCA 96; (1983) 72 FLR 291 at 297 in relation to the power to extend time under the Administrative Decisions (Judicial Review) Act 1977 (Cth):

… 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.

54    Wigney J also referred to the comments of Burchett J in Pozniak v Minister for Health [1986] FCA 66, which were cited approvingly by French J (as his Honour then was) in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 12; (1994) 48 FCR 83 (Seiler) at 97:

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.

55    This passage highlights the breadth of the discretion to extend time. Wigney J did not hold that there were any particular considerations which the Court was bound to take into account in deciding whether or not to extend time. His Honour did refer at [49] to the decision of French J in Seiler on the issue of assessing the strengths or weaknesses of a case. French J observed that it was “difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account” (emphasis added). French J was not suggesting that leave had to be granted if a case was viewed as arguable – other relevant considerations might tip the balance.

56    Justice Foster’s decision in SZRIQ does not cast any doubt as to the breadth of the Court’s discretion of a Court to extend time under s 477(2) of the Act. That is plain from the following passage from his Honour’s judgment:

52    In my judgment, it was within the power which the Federal Magistrate was exercising in the present case for him to choose which factors he regarded as relevant to the exercise of his discretion and thus to select those factors which he intended to take into account when determining whether it was necessary in the interests of the administration of justice to grant an extension of time to the applicant. The Federal Magistrate did so in conventional terms. In particular, he expressed the third factor which he intended to take into account as “ … whether, if time were to be extended, the substantive application would have reasonable prospects of success” (at [23] of his Honour's Reasons). This is not different, in substance, from other expressions used to state the test such as “reasonably arguable” or “arguable”. In addressing that factor, his Honour gave close attention to the merits of the applicant's foreshadowed grounds of review. He did so, in my view, because he was mindful of the fact that the critical question in the present case was whether the grounds of review had sufficient substance to justify an extension of time. It was for this reason that his Honour paid close attention to those grounds of review. Having done so, the substance of his Honour's conclusion was that none of the three grounds of review relied upon had any merit whatsoever. All that his Honour did was to express, in rather firm language, his ultimate conclusion that the merits of the applicant's grounds of review were so weak as not to justify any extension of time.

57    Having regard to all these authorities, I accept the Minister’s submission that the Court should reject the applicant’s contention that the primary judge fell into jurisdictional by not taking into account relevant considerations. The applicant’s contention fails to give effect to the breadth of the discretion conferred upon the FCCA under s 477(2) and also fails to grapple with the important fact that it was a Judge and not an executive officer who had to determine whether or not time should be extended. It was essentially a matter for the primary judge to determine and assess what were the relevant considerations to be weighed in determining whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. In determining which matters were relevant or not it might be expected that the primary judge would have regard not only to the subject matter, scope and purpose of the legislation, but also to the parties’ submissions. That is not to say, however, that a consideration becomes a mandatory relevant consideration merely because one of the parties has raised it. Furthermore, as the passage from [15] of Craig indicates (as set out in [49] above), a failure by an inferior court to take into account a mandatory relevant consideration in determining a question within jurisdiction does not ordinarily involve jurisdictional error. The applicant has not pointed to any particular feature of his circumstances which would mean that, if in fact the primary judge failed to take into account the lack of prejudice to the Minister, this would amount to jurisdictional error.

58    For completeness, I should indicate that I consider that there is considerable force in the Minister’s additional submission that, in any event, no inference should be drawn that the matters identified by the applicant were not in fact taken into account by the primary judge. It was essentially a matter for his Honour to determine which matters he considered to be of sufficient significance and relevance to warrant some analysis and discussion in his reasons for judgment. It is evident from [10] of those reasons that the applicant’s counsel drew his Honour’s attention to various relevant considerations in determining whether or not to extend time. Those considerations, which were set out in the written outline of submissions provided by the applicant below, are the same as the matters which are set out in [24] above. They included reference to whether there was little or no prejudice to the respondents. The primary judge acknowledged that his attention was drawn to these matters. No inference should be drawn that he then ignored them. Rather, as is evident from the balance of [10] of the reasons for judgment, the final sentence of which commences with the phrase “In general terms…”, the primary judge focused only on the considerations which he viewed as significant in determining how the discretion should be exercised. In my view, it was within his jurisdiction to do so. No inference should be drawn that his Honour disregarded as not relevant the absence of any prejudice to the Minister. Rather, the primary judge viewed that consideration in the particular circumstances as not having appreciable significance one way or the other. That was a matter for his Honour’s judgment.

59    For these reasons, the applicant’s first ground of judicial review is rejected.

60    Turning now to consider the applicant’s second ground of judicial review, which relates to the alleged “error of law” in the primary judge’s finding that the proposed grounds of judicial review below were “arguable”, yet time was not extended. As noted above in [27], in the written submissions counsel for the applicant relied on an extract from [20] of Flick J’s reasons for judgment in AAV15 in support of this ground. That extract omitted the following important additional observations which were made by his Honour:

Much will depend upon the circumstances of each particular case. In some cases it may be sufficient simply to dismiss an application to extend time. Such may be the case where there has been considerable delay in commencing a proceeding, no satisfactory explanation for the delay, and prejudice to a respondent. In other cases, it may be an appropriate exercise of discretion to grant an extension of time even if the proceeding is ultimately dismissed.

61    These additional observations by Flick J serve to underline the importance of the relevant circumstances in any particular case. His Honour was not purporting to lay down a rule or principle to the effect that, if proposed grounds of review are assessed as “arguable”, time must necessarily be extended. It was open to the primary judge here to bring into the weighing exercise his assessment that the proposed grounds were “arguable” but nevertheless dismiss the application in circumstances where the applicant had not provided a satisfactory explanation for the delay. I also accept the Minister’s submission that, fairly read, the primary judge viewed the proposed grounds as arguable, but as not being particularly compelling. For these reasons, ground 2 is rejected.

62    It is convenient now to turn to the applicant’s third ground of judicial review, which relates to legal unreasonableness. Although this ground was also described in the applicant’s written outline of submissions as encompassing a claim of procedural unfairness, Mr Coleman stated that this particular claim was not pressed and that ground 3 was confined to unreasonableness in the legal sense. In view of the applicant’s strong reliance on Li, it is appropriate to look closely at that decision, as well as the subsequent analysis of it by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh).

The High Court’s decision in Li

63    The first point to note about Li is that it involved judicial review for jurisdictional error in respect of a decision of the then Migration Review Tribunal to refuse to adjourn a hearing of the applicant’s review application of the Minister’s delegate refusing the applicant a skilled residents visa. The delegate found that the skills assessment was affected by fraud. Li did not involve judicial review for jurisdictional error of a decision of an inferior court. That is not to say that Li is entirely irrelevant, but this point of distinction remains significant, particularly against the background of the continuing authority of Craig.

64    Secondly, Li involved judicial review of a statutory discretionary power which was vested in the Migration Review Tribunal under s 363(1)(b), namely the power to adjourn a review from time to time.

65    Thirdly, the plurality held that there was a legal presumption that the legislature intended that this statutory discretionary power be exercised reasonably.

66    Fourthly, in determining the standard of reasonableness in such a case, the plurality held that it was not confined to the concept of “Wednesbury unreasonableness” as defined by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The plurality emphasised that the “legal standard of unreasonableness” in Australia is not limited to “what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it…” (at [68]).

67    Fifthly, the legal standard of reasonableness is the standard which is indicated by the true construction of the relevant statute, which serves to underline the importance of construing the statute in determining whether or not an exercise of a statutory power is unreasonable in the legal sense (at [63] and [67]).

68    Sixthly, within the bounds of legal unreasonableness, there “is an area within which a decision-maker has a genuinely free discretion”. It is critical that, in exercising a judicial review function, the courts not exceed “their supervisory role by undertaking a review of the merits of an exercise of a discretionary power” ([66]). Application of a standard of legal unreasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker” ([66]).

69    Seventhly, the concept of “unreasonableness” accommodates individual heads of judicial review, which includes a “proportionality analysis by reference to the scope of the power” ([73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave “excessive weight” to the question whether the visa applicant had had an opportunity to present her case, “an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached ([74]).

70    Eighthly, by analogy with the approach in House that an appellate court should not interfere with the exercise of a discretionary power by an inferior court merely because the appellate court would have taken a different course, it must be evident in a judicial review of the exercise of a statutory power by a tribunal that there has been some error in exercising the discretion ([75]). Their Honours stated at [76] (footnotes omitted):

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

71    Ninthly, the application of these principles relating to legal unreasonableness in the particular legislative framework and circumstances in Li resulted in the plurality finding that the Migration Review Tribunal had fallen into jurisdictional error in exercising its discretion under s 363 of the Act to refuse the visa applicant an adjournment. The plurality’s core reasoning and conclusion is reflected in [85]:

The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

72    For the purposes of the proceeding here, it is unnecessary to discuss the separate judgments in Li of French CJ and Gageler J, both of whom reached the same conclusion albeit for different reasons on some matters from those of the plurality.

73    The applicant’s reliance on Li glossed over many of the significant features of that decision, not the least being that it involved judicial review for jurisdictional error of a decision made in the exercise of a statutory discretionary power by an administrative tribunal and not an inferior court, as is the case here. In the light of Craig and Kirk, the principles which were stated and applied in Li cannot be uplifted and transposed in whole into the very different context of an inferior court exercising a statutory discretionary power and the review of that exercise for jurisdictional error. That is not to deny, however, that the issue should be determined on the basis that Parliament intended that the discretion in s 477(2) be exercised reasonably, consistently with the approach taken into Li.

74    Reference should also be made to the Full Court’s decision in Singh, which contains a helpful analysis of Li at [43]-[52]. In particular, the following passage at [48] of Singh is apposite:

The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

75    It is again essential to appreciate that Singh involved judicial review for jurisdictional error in respect of the exercise of a statutory discretionary power by an administrative tribunal and not an inferior court of law.

76    I reject the applicant’s submission that there is no evident and intelligible justification for the primary judge’s conclusion. On the contrary, his Honour’s reasons for judgment disclose that he weighed the competing considerations but ultimately concluded that time should not be extended. This was primarily because the applicant had not provided a satisfactory explanation for his delay and also because he had taken a considered decision to seek Ministerial intervention as opposed to bringing judicial review proceedings in the FCCA. The two courses were fundamentally different. Requesting Ministerial intervention implicitly carried with it a recognition that the underlying administrative decision which prevented the applicant from being granted a visa was valid but ought to be varied by reference to extenuating circumstances. In contrast, the commencement of judicial review proceedings necessarily implies that the applicant challenges the validity of the underlying administrative decision (see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [32] per Jessup J).

77    The Minister contended that it is apparent that, while the primary judge described the applicant’s proposed judicial review grounds as “arguable”, his Honour did not consider that they were particularly compelling. The applicant contested that this inference could be drawn from the primary judge’s analysis of the Tribunal’s reasons and the relevant parts of the delegate’s reasons which were incorporated therein. It is probably unnecessary to resolve this issue because, even if the primary judge’s finding of “arguability” is unqualified, it remained a matter for his Honour to balance that consideration with other matters which he viewed as significant, namely the lack of a sufficient explanation for the delay and the interest of the administration of justice. Whatever standard of “unreasonableness” is applied, it was not unreasonable for the primary judge to conclude that, having regard to other relevant circumstances, the fact that the proposed grounds of review were “arguable” was insufficient of itself to warrant time being extended under s 477(2) of the Act. The applicant’s proposition that, having found that there was an arguable case, it was always in the interests of the administration of justice to make the order is untenable.

Conclusion

78    For these reasons, the amended application for review dated 19 November 2015 should be dismissed and the applicant ordered to pay the Minister’s costs as agreed or assessed. Orders will be made accordingly.

Associate:

Dated:    4 December 2015