FEDERAL COURT OF AUSTRALIA

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

1    The application before the Court is made under s 39B of the Judiciary Act 1903 (Cth) seeking orders in the nature of certiorari and mandamus against the Federal Circuit Court, in respect of orders made by that Court dismissing the applicant’s application for an extension of time in which to seek judicial review of a decision of the Refugee Review Tribunal.

2    For the reasons which appear below, I have concluded the application must be dismissed.

Background

3    The applicant is a citizen of São Tomé and Príncipe who arrived in Australia on a student visa on 17 September 2011. São Tomé and Príncipe is an island nation located near the equator to the west of Central Africa. In March 2012, the applicant applied for a Protection (Class XA) visa which was refused by a delegate of the first respondent in May 2012. On 30 November 2012, the Refugee Review Tribunal affirmed that refusal.

4    It was not until 6 March 2014, some 15 months later, that the applicant sought judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth). He also therefore needed to, and did, seek an extension of time under s 477(2) in which to review the Tribunal’s decision.

The tribunal decision

5    Given the small population of São Tomé and Príncipe, and the likelihood that a recitation of the applicant’s claims before the Tribunal may enable him to be identified, thus frustrating the apparent purpose of s 91X of the Migration Act, I do not propose to set out his claims in detail. Although it might be said the terms of the Federal Circuit Court’s decision pay insufficient regard to the likelihood of identifying the applicant, I do not propose to compound any risks which may arise for the applicant because the details of his claims are publicly available.

6    The applicant gave details of his employment and activities in São Tomé and Príncipe. He explained that since he had been studying in Australia, there had been a change of circumstances in São Tomé and Príncipe and he had been warned by friends not to return there.

7    The applicant’s migration agent submitted to the Tribunal that there had been no claims for protection in respect of São Tomé and Príncipe which had come before the Tribunal, and there is nothing in the Tribunal’s reasons which appear to doubt that proposition.

8    Before the Tribunal the applicant claimed to have a well-founded fear of persecution for reasons of his political opinion, his religion and his membership of a particular social group of whistle-blowers. His claim was based on events occurring in São Tomé and Príncipe in 2011, and early 2012. He claimed his immediate family had also fled the country in early 2012 and were seeking asylum elsewhere.

9    It suffices to say that the Tribunal did not accept his claims, finding he had fabricated them. The finding of fabrication, which was made principally in relation to the applicant’s claim based on political opinion, was then used by the Tribunal as a reason for it not needing to consider in detail the applicant’s claims to fear persecution by reason of being a member of a social group, namely whistle-blowers. The way the Tribunal dealt with the whistle-blower claim would come to form a substantial part of the applicant’s grounds for judicial review.

The Federal Circuit Court proceeding

10    The applicant filed an application in the Federal Circuit Court on 6 March 2014, seeking judicial review of the Tribunal’s decision under s 476 of the Migration Act as well as an extension of time in which to seek review under s 477(2). The 35 days in which he had a right to seek review of the Tribunal’s decision (see s 477(1) of the Act) expired on 4 January 2013. The application was made approximately fourteen months out of time. At the time of filing his application, the applicant was self-represented. He subsequently obtained legal representation and filed an amended application. At the Federal Circuit Court hearing, the applicant’s lawyer sought to rely on further amended grounds as well as a ground not previously identified. With the leave of the Court, the applicant filed after the hearing a further amended application dealing with all the grounds he sought to raise, and the Minister was given an opportunity to file supplementary written submissions. The Minister did not oppose these amendments. As amended the grounds covered a failure to consider his case as put (ie, as two separate claims to fear persecution by reason of political opinion and membership of a social group), a failure properly to consider the whistle-blower claim at all, a failure to afford procedural fairness both in terms of a failure to provide, pursuant to s 424A of the Act, information on which the Tribunal ultimately relied, and a failure to review the whole of the delegate’s decision because of the way the Tribunal dealt with the social group claim. The grounds also alleged breach of an asserted “duty to inquire”.

11    In his affidavit affirmed in support of his application for extension of time, the applicant stated at the time the Tribunal made its decision, he was being assisted by the Asylum Seeker Resource Centre. He stated his case manager at the centre advised he should have the decision reviewed by the Minister, but did not explain to him that he had the right to pursue an appeal to the Federal Circuit Court on the basis of jurisdictional error. He deposed he had understood that Ministerial intervention was his only choice.

12    At [11], the Federal Circuit Court stated:

The time limit for filing a review is set out in s.477(1) of the Migration Act. The application must be filed within 35 days. When considering whether or not to grant an extension of time the relevant considerations are: the extent of the delay, the explanation for the delay, the prejudice to the respondent and the merits of the application.

13    The Federal Circuit Court held that seeking Ministerial intervention was not an adequate explanation for the considerable delay, as the applicant could have pursued an appeal at the same time. However, given the Minister acknowledged there was no prejudice to him if the extension of time were granted, the Court went on to consider the merits of the applicant’s case. It stated (at [14]):

The Minister acknowledged that there is no prejudice to him if the extension of time is granted but that the merits of the case do not justify the grant of an extension of time. It is necessary to consider the merits of the applicant’s case before returning to this issue.

14    Contrary to what is stated in [14], the Federal Circuit Court does not return to the question of prejudice, nor to the question of delay.

15    Most of the Court’s reasons dealt with its assessment of the merits of the grounds of review raised by the applicant. At points it appeared as if the Court was finally determining the success or failure of those grounds. For example, at [37] and [38] of its reasons the Federal Circuit Court stated:

It is clear that the applicant’s claim to be a whistle-blower focused on the existence of the report. The Tribunal rejected the fundamental premise of the applicant’s claim when it found that the report did not exist. The applicant did not make any other claim to be a whistle-blower. I am satisfied that the Tribunal properly considered the claim the applicant put before it.

The conclusion was open to the Tribunal on the evidence before it. Grounds 1 to 3 have not been made out.

16    Then at [50], in relation to grounds 4 and 5 it stated its conclusion in the following way:

There is no substance to the complaints in grounds 5 and 6 [sic].

17    Then at [54], in relation to the final ground, the Court found:

There is no substance to the complaint in ground 6.

18    The only references to the statutory or legal basis on which the Court considered the extension of time application is found at [11] of its reasons, which I have set out above at [12] of these reasons.

19    Then, in the final paragraph of its reasons (at [55]), after it had set out its reasons for finding that there was no substance or merit in any of the grounds of review, the Federal Circuit Court stated:

Having considered the merits of the application argued before me, I am not satisfied that the applicant has reasonable prospects of success. In these circumstances, it would not save the administration of justice to grant the applicant an extension of time. I will hear from the parties on the question of costs.

20    Accordingly the Federal Circuit Court dismissed the application for an extension of time. Orders were made that the applicant pay the Minister’s costs fixed in the sum of $8,000.

21    I note that the extension of time application was heard on 12 May 2015 and judgment was delivered on 7 August 2015. This was not an ex tempore decision, nor one delivered within a day or two of hearing.

The application before this Court

22    After a referral for pro bono legal assistance made pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), counsel for the applicant sought leave to rely on an amended application in this proceeding. Leave was granted. In that amended application were the following grounds:

The orders and judgment of the Third Respondent published in MZABP v Minister for Immigration & Anor [2015] FCCA 2116 are infected by jurisdictional error because:

a.    the Honourable Judge Harland misapprehended or disregarded the nature or limits of her power to extend time in s 477(2) of the Migration Act 1958 (Cth);

b.    the reasoning by which her Honour reached her decision to dismiss the application for an extension of time was legally unreasonable in the sense that it was illogical and without ‘intelligible justification’.

c.    the Honourable Judge Harland failed to exercise the essential precondition of the exercise of power to extend time in s 477(2)(b); or

d.    the Honourable Judge Harland failed to find the requisite jurisdictional facts which conditioned the exercise of the power to extend time; or

e.    the Honourable Judge Harland’s purported satisfaction of matters in s 477(2)(b) was stigmatised by illogicality and irrationality.

23    An affidavit in support of the s 39B application was filed, but its contents are not material to the determination of this application.

Relevant provisions and the jurisdiction of this Court

24    Section 477(2) of the Migration Act is in the following terms:

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.

25    A similarly expressed discretion exists in respect of the limited jurisdiction of this Court under the Migration Act. Section 477A(2) provides:

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

(a)     an application for that order has been made in writing to the Federal 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

26    The parties are agreed that while no appeal lies from the Federal Circuit Court’s refusal of the s 477(2) extension of time application by reason of s 476A(3)(a), this Court does have jurisdiction to consider an application under s 39B of the Judiciary Act for review of that decision.

27    This Court’s jurisdiction under s 39B was recognised in the decision of the Full Court of this Court in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55, which dealt with a similar application and held, at [11]:

Mr Tang’s proceeding to quash the orders made by the Federal Circuit Court is not “in relation to a migration decision” and s 476A(1) does not remove any original jurisdiction this Court otherwise had to hear his claim. As it happens, the Court has original jurisdiction to entertain applications for constitutional writs: Judiciary Act, s 39B(1). This is appropriate in the hierarchical structure of the federal judiciary where this Court is a superior court of record with appellate jurisdiction over the Federal Circuit Court. Consequently, Mr Tang’s suit in this Court was within its original jurisdiction. We would note for completeness that this conclusion means that there is no need for applications such as Mr Tang’s to be commenced in the High Court; they can be commenced directly in this Court under s 39B(1) of the Judiciary Act.

28    Tang has been followed in a number of decisions by single judges of this Court: see for example SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252; SZTSU v Federal Circuit Court of Australia [2015] FCA 224 and SZTES v Minister for Immigration and Border Protection [2015] FCA 719.

29    As I noted in my reasons for decision in SZTSU at [11], there is a distinction maintained in Australian law between judicial supervision for legal error by tribunals or other administrative decision-makers, and judicial supervision of decisions made in exercise of judicial power.

30    In Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177, the High Court described the circumstances in which an inferior court will fall into jurisdictional error as including those where the Court mistakenly asserts or denies the existence of jurisdiction, or having correctly recognised jurisdiction does exist, misapprehends or disregards the nature or limits of its functions or powers. The Court gave the example of a misconstruction of a statute conferring jurisdiction and thus a misconstruction of the nature of the function the Court is performing or the extent of its powers in the circumstances of the particular case. As the High Court observed in these passages, the line between jurisdictional error and non-reviewable error in the exercise of its jurisdiction may be particularly difficult to discern: Craig at 177-178.

31    At 179-180, the Court distinguished the kinds of errors which may otherwise result in a successful appeal where an appeal does lie from the kinds of errors which may be characterised as going to jurisdiction:

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.

32    In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, the Court expressed some doubt about the usefulness of relying on the “authority” of inferior courts as the basis for distinguishing reviewable errors as between the decisions of an inferior court and those of a tribunal or other executive or administrative decision-maker. At [70], the Court stated:

When certiorari is sought, there is often an issue about whether the decision is open to review. If “authoritative” is used in the sense of “final”, a decision could be described as “authoritative” only if certiorari will not lie to correct error in the decision. To observe that inferior courts generally have authority to decide questions of law “authoritatively” is not to conclude that the determination of any particular question is not open to review by a superior court. Whether a particular decision reached is open to review is a question that remains unanswered. The “authoritative” decisions of inferior courts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by “jurisdiction” and “jurisdictional”. It suggests that the observation that inferior courts have authority to decide questions of law “authoritatively” is at least unhelpful.

33    At [71] and [73], the Court further cautioned that “[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error”, and that the reasoning in Craig “is not to be seen as providing a rigid taxonomy of jurisdictional error”. Rather, Craig provides examples only of the ambit of jurisdictional error by an inferior court.

34    Unlike the circumstances to which some members of the Court in Kirk referred, where correction of legal error may be available through both an appellate process and supervisory review, so that the confinement of the latter to errors which are jurisdictional in nature can highlight the distinction between judicial review and appeal, litigants in the circumstances of the applicant have no avenue of appeal, and access to a broader corrective jurisdiction is absent.

Consideration

35    As developed in submissions, the applicant’s judicial review application relied on two alternative submissions: first, that the Federal Circuit Court misconstrued the nature of its power to extend time under s 477(2); and second, that the Court’s reasoning was illogical, irrational or legally unreasonable, or (it appeared) a combination of all three.

36    In relation to both alternatives, the applicant submitted the errors were jurisdictional in nature. On the first contention, the applicant relied on the example given in Craig and to which I have referred at [30] above, submitting that the Federal Circuit Court misconstrued or did not understand the source of its jurisdiction to extend time and the approach required by s 477(2)(b) of the Migration Act. As to the second contention, the applicant relied on the dicta of several judges in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332.

Did the Federal Circuit Court misconstrue the nature of its s 477(2) power?

37    The applicant relied on four indicators that the Federal Circuit Court misapprehended the nature of its power to extend time. These were:

(1)    the manner in which the Court expressed and applied the test for extension of time. The applicant submitted that paragraph [11] of the Federal Circuit Court reasons is taken from paragraph [29] of Minister’s submissions before the Federal Circuit Court, where reference is made to Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344, the leading case on the discretion to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

(2)    the absence of any reference to s 477(2) in the Federal Circuit Court’s reasons. The fact that there is a reference to the time limit and to s 477(1) does not, the applicant submits, provide sufficient basis to infer the Federal Circuit Court understood what it needed to apply was the statutory test in s 477(2).

(3)    the absence of any express findings of the two jurisdictional facts for which s 477(2) provides in paras (a) and (b). Had the Federal Circuit Court been adhering to the statute which conferred its power, the applicant submits it would have made the findings the statute required.

(4)    in the only paragraph of the Federal Circuit Court reasons which could be said in any way to set out the test the Court had applied (at [55] of the Court’s reasons), the use of a confused and inaccurate rendition of the test in s 477(2)(b).

38    There is some force in the applicant’s submissions. The reasons of the Federal Circuit Court fail to set out the terms of s 477(2), being the power the Court was called on to exercise, and fail to set out with any accuracy or particularity the key statutory consideration in dispute and of which it had to be satisfied: namely, whether it was in the interests of the administration of justice to extend time. Even if, as the Minister submits, it is appropriate to substitute the word “serve” for the word “save” in [55] of the Federal Circuit Court’s reasons, so that the sentence is not nonsensical, the phrase upon which the Federal Circuit Court fastens is not the statutory phrase. Nor does it have a source in authorities such as Hunter Valley Developments. Where the Federal Circuit Court has drawn the phrase from is unknown.

39    These are not matters in which an approach similar to that articulated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 can or should be taken. These are the reasons of a judicial officer of a court constituted under Ch III of the Constitution, considering whether to extend time in relation to a jurisdiction which has parallels with s 75(v) of the Constitution. The reasons were given some three months after the hearing. Even making allowances for the busy and pressured nature of the jurisdiction of the Federal Circuit Court, it is reasonable to expect that the Court will set out with some accuracy the statutory basis for the powers it is called on to exercise. If that was done, arguments of the kind now raised would have had no prospects of success.

40    It is, as the Minister submitted, less critical in this case that there is no express finding whether the terms of s 477(2)(a) have been made out. On the evidence, the satisfaction of that provision was not in dispute. Further, if this was a matter which needed to be expressly set out, that would in my opinion only be the case where the Court had decided positively to exercise the discretion in favour of an applicant. Having decided to exercise the discretion to extend time, for it to be clear that the Court had appreciated the matters in s 477(2)(a) and (b) were conditions precedent to the exercise of that power, it would be arguable, at least, that the Court would need to make express findings on both paragraphs.

41    The decision of Wilcox J in Hunter Valley Developments, which has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time, was a proceeding which concerned the extension of time discretion in the AD(JR) Act. As his Honour noted, the terms of s 11 of that Act do not set out any criteria for the exercise of the discretion. In Hunter Valley Developments at 348-350 what his Honour undertook was a distillation of matters which had been seen as relevant to the discretion in the authorities of the Federal Court to the point at which his Honour came to consider the issue. That list of factors has been endorsed repeatedly in this Court, and in the Federal Circuit Court, as providing guidance on how the exercise of discretion might be approached. Reliance on guidance such as that given by Wilcox J promotes consistency in approach to the manner in which the discretion to extend time is exercised. Consistency in approach is important where the discretion involved is one which is exercised frequently in this Court, and in the Federal Circuit Court.

42    The Hunter Valley Developments principles have also been regularly endorsed and applied to similar discretions to extend time, such as those located in the appeal provisions of the Federal Court Rules: see for example SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; Marsden v The Queen [2002] FCAFC 229 at [19]. The principles are also regularly applied in the Administrative Appeals Tribunal and some of its state and territory counterparts.

43    It has been said on many occasions that the Hunter Valley Developments principles are not to be taken as exhaustive, given the s 11 discretion is not expressly fettered. See for example Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] per Griffiths J, Edmonds J agreeing, citing with approval French J in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; 48 FCR 83 at 97. Similarly, it would be an incorrect approach to a discretion constrained by a consideration as broad as the “interests of the administration of justice” for the list of factors in Hunter Valley Developments to be seen as exhaustive of the content of that phrase.

44    I accept the applicant is correct to identify the question whether the failures in the Federal Circuit Court’s reasons to set out the terms of the statutory power it was exercising and to make it clear that it sought to apply the terms of s 477(2) to the evidence before it mean that it did not understand the nature of the power it was exercising, and did not appreciate the mandatory considerations for which s 477(2) provides.

45    Resolving that question requires a determination whether the statutory phrase in s 477(2)(b) – “in the interests of the administration of justice” – requires any different approach in substance to that taken by the Federal Circuit Court, which undoubtedly was based on the guidance provided by Wilcox J in Hunter Valley Developments, as were the Minister’s submissions to the Federal Circuit Court.

46    The parties were given leave to make short submissions after the hearing of the application on what might be drawn from the extrinsic material surrounding the introduction of this phrase into the Migration Act.

47    The first respondent’s submissions, which I accept, noted that in its original form s 477 contained no power to extend the time for filing an application for judicial review when it was first introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). There was also an express prohibition on the Federal Court making any order which had the effect of extending time. When the (then) Federal Magistrates Court was given its judicial review jurisdiction, s 477 in these terms applied to its jurisdiction.

48    In November 2005 by the Migration Litigation Reform Act 2005 (Cth), s 477 was amended to include for the first time the criterion which appears in s 477(2). The Federal Magistrates Court could extend the (then) 28 day time limit by a further 56 days if a request was made within 84 days of actual notification of a decision and the Court was “satisfied that it is in the interests of the administration of justice to do so”.

49    The final step was the amendments introduced by the Migration Legislation Amendment Act (No 1) 2009 (Cth) which extended the time for filing an application for judicial review of a migration decision to 35 days from the date the decision was made and replaced the existing s 477(2) with a provision substantially in the current form, requiring an applicant to specify why he or she considered it was “necessary in the interests of the administration of justice to make the order” extending time. The provision also required the Court to be “satisfied that it is necessary in the interests of the administration of justice” to extend time. This round of amendments followed, the second reading speech noted, the High Court’s decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; 228 CLR 651, where the High Court had held the non-extendable time limit on applications for judicial review to the High Court as then contained in the Migration Act was unconstitutional.

50    The Minister submitted, and I accept that there is nothing in the extrinsic material which throws any particular light on the content of the phrase “in the interests of the administration of justice”.

51    The applicant’s submissions in response agreed with the Minister’s outline of the legislative history. A large portion of the submissions consisted of a restatement and rearguing of the central aspects of the applicant’s grounds of review. No leave was granted to the applicant to make submissions of that nature, and the Court has consistently emphasised submissions should not be made or filed in such circumstances: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 257-258 per Mason J; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [27]-[31] per McHugh J; NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; 219 CLR 90 at [191]-[192] per McHugh A-CJ, Gummow, Callinan and Heydon JJ; Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at [2]-[5] and Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [66]-[72]. Accordingly, I have disregarded paragraphs [4]-[10] of the applicant’s submissions in response filed after the hearing.

52    The phrase “in the interests of the administration of justice” is deliberately broad, and as the relevant parts of Wilcox J’s judgment in Hunter Valley Developments reveal, factors which can be described as forming part of the content of the interests of the administration of justice have always been factors courts have turned to in determining how to exercise such a discretion.

53    One of the early decisions to which Wilcox J refers is the decision of Fitzgerald J in Lucic v Nolan [1982] FCA 217; 45 ALR 411. Lucic concerned an application under the AD(JR) Act to review the decision of the Chief Officer of the Department of Social Security to charge the applicant with two instances of improper conduct, to sustain the charges and to recommend his dismissal from the public service. The judicial review application was well outside the time limit in s 11(3) of the AD(JR) Act. In the course of considering an application under s 11(1)(c) for an extension of time, Fitzgerald J said at 415-416:

In Riordan v Parole Board of the Australian Capital Territory (1981) 34 ALR 322; 3 ALD 144, Lockhart J at 327 (ALR); 148 (ALD) referred to the triad of Commonwealth legislation, of which the Administrative Decisions (Judicial Review) Act is one part, which provides machinery for review of administrative decisions and actions of Commonwealth Ministers, officials, and statutory bodies. It seems broadly accurate to say that there is a legislative intention that certain standards are to be observed in respect of such decisions and actions. However, that is not the only public interest to be served. Other matters of proper public concern which are readily identifiable as relevant to the review of administrative acts and decisions include the need for finality in disputes, the efficient use of public resources, the appropriate allocation and expenditure of public funds, and also where what is in question involves promotion and discipline in the Australian Public Service, the orderly administration of that vast body. Further, the impact of an act or decision is often not confined to a particular individual who is adversely affected and wishes to challenge it; a contest for promotion is an obvious example.

The legislation contains various mechanisms to allow these different policy considerations to be balanced. Thus, for example, one of the features of the Administrative Decisions (Judicial Review) Act is that it contains limitations with respect to the time for the commencement of proceedings. Where specific periods are fixed, they are quite short. That carries obvious implications. However, the time limitations are not absolute. In this, as in other matters arising under the Act, eg in respect of the relief which may be granted under s 16, the court is given a discretion. None the less, it must, in my opinion, be accepted that it has deliberately been made the prima facie rule that proceedings not commenced in time should not be entertained. In this respect, there is an obvious contrast between the terms of s 11(3) which provides a pre-emptive fixed period subject to a discretionary power of extension, and provisions like that of s 11(4) which do not fix any particular period but refer merely to what is in the court’s opinion “reasonable”.

54    I note also that much of Fitzgerald J’s decision is occupied with a detailed examination of the evidence said by the applicant to explain the delay in seeking review. His Honour also considers the merits of the proposed application, but in shorter compass. His Honour founded his refusal to exercise the s 11 discretion on this aspect, finding (at 417) that:

There is ample evidence of the applicant’s total failure to take any step, even go to his solicitors, within 28 days after any of the decisions which he now seeks to call in question.

55    Another early authority on which Wilcox J based his identification of relevant factors in Hunter Valley Developments was the decision of Neaves J in Chapman v Reilly (unreported, 9 December 1983). The applicant sought to review a decision of the Australian Federal Police to revoke an offer of employment made to him. He had commenced proceedings in respect of that decision in the ACT Supreme Court, which were dismissed. After those proceedings, he sought judicial review of the decision. Neaves J granted an extension of time, finding the conduct of the Supreme Court proceedings constituted an acceptable explanation for the delay. His Honour adverted to the merits of the application and expressed some doubts about the applicant’s prospects of success, but nevertheless concluded it was “fair and equitable” to extend time. That is a phrase which has some resonance with the statutory term in s 477(2), the “interests of the administration of justice”.

56    Of course, these authorities are simply examples of the large number of cases dealing with the exercise of the s 11 discretion. I refer to them to illustrate two points. First, considerations wider than the interests of the parties to judicial review litigation have always been important in the exercise of this kind of discretion. Second, the merits of the underlying judicial review application were not necessarily explored in the kind of detail seen in decisions such as the Federal Circuit Court decision in the present case. If anything, more emphasis was placed on the explanation for the delay. In my opinion that is a preferable approach. The grant of an extension of time places a litigant in the same position she or he would have been in had the application been brought within time: that is, in a position to develop and advance her or his case in the usual way to a final hearing, and thereafter, to access any available appellate processes. The judgment made by a court exercising the discretion is that it is appropriate, or fair and equitable, that a litigant should have the opportunity for which the legislative scheme provides: namely, a review of the lawfulness of the decision said to affect the litigant, conducted in accordance with judicial process and subject to considered judicial determination.

57    In BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400, in the context of a cross-vesting application where the Court’s discretion depended upon satisfaction that a cross-vesting order was “in the interests of justice”, Gleeson CJ, McHugh and Heydon JJ said at [15]:

The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered.  Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration.  The justice referred to in s 5 is not disembodied, or divorced from practical reality.

58    In my opinion, the statutory precondition in s 477(2) of the “interests of the administration of justice” does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s 11 of the AD(JR) Act. The presence of that phrase in the context of the Migration Act may afford a basis for other factors to be taken into account – such as the nature of the visa decision sought to be reviewed. It is a phrase broad enough to encompass factors such as the fact that without a favourable exercise of discretion, a litigant is deprived of an appeal as of right to this Court from any substantive decision made by the Federal Circuit Court. Other factors, such as case management considerations in busy jurisdictions such as the Federal Circuit Court where the interests of other litigants in the efficient and orderly progress of their own proceedings may be affected by the extension of time, may also be comprehended. What factors are taken into account, and how they are weighed, must be the subject of individual consideration in each case.

59    While there may be other factors it is permissible to take into account (and which are not irrelevant in the Peko-Wallsend sense (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24)), the applicant has not pointed to any factors which must be taken into account and were not. Although as I have observed, the reasons of the Federal Circuit Court are somewhat unsatisfactory because they do not clearly set out and apply, in terms, the statutory basis for the discretion, I am not persuaded the Federal Circuit Court misunderstood or misconstrued the power it was called on to exercise in a way which results in it exceeding its jurisdiction, or failing to exercise its jurisdiction. None of the four bases articulated on behalf of the applicant in submissions as impugning the approach of the Federal Circuit Court is made out.

60    In reply submissions at the hearing, in answer to a question from the Court about what difference it was submitted it made that there was no reference to s 477(2) in the Court’s reasons, counsel submitted the difference was that, had there been, the Court may have exercised greater caution in respect of what counsel described as the “low bar” for the consideration of the merits of grounds of review as part of the factors to be taken into account in deciding whether to extend time. Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Act.

61    This was not a matter identified in the amended application as a ground of review in relation to the Federal Circuit Court decision. It was not a matter on which the first respondent made any detailed submissions. It cannot be considered as a basis for granting any relief in this proceeding. However, lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court, it is appropriate that I express my disquiet about the way in which the Federal Circuit Court dealt with the factor of the merits of the applicant’s proposed grounds of review.

62    As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

63    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

64    I agree, respectfully, with the observations of Wigney J in SZTES in two particular respects. I note an appeal from his Honour’s orders was dismissed: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158.

65    First at [82] to [85], Wigney J sets out the need for careful distinction in an assessment of the prospects of grounds of review between grounds that are hopeless and destined to fail, and those which are properly described as weak. As his Honour says at [84], in the latter case it will seldom be appropriate to refuse to extend time. Certainly, in my opinion it is inappropriate to require an applicant, in effect, to establish that her or his grounds of review will succeed. The point was made more than 20 years ago by French J in Seiler [1994] FCA 878; 48 FCR 83 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.

(Emphasis added.)

66    Second at [102] Wigney J refers to the Federal Circuit Court practice of listing both an application for extension of time and the final hearing at the same time, noting that practice may encourage an undue focus on determination of the merits of the proposed grounds of review raised by an application for an extension of time and resulting in an artificial approach to the extension of time application. I agree with those observations. In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.

67    In the present case, the Federal Circuit Court’s reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review and which I have set out at [15]-[17] above, and because of the extent of the consideration given to each ground.

68    Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court’s jurisdiction is another and difficult question. In Kirk [2010] HCA 1; 239 CLR 531 (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. If, for example, her Honour in the present case could be said to have taken the approach that it would only be in “the interests of the administration of justice” to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred.

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

70    However, the line is a fine one, and in my respectful opinion both in respect of s 477(2), and in respect of the corresponding power reposed in this Court under s 477A(2), the need for a restrained approach to the assessment of the merits of grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion, as outlined by French J in Seiler, should always be recalled.

Was the decision below legally unreasonable, illogical or irrational?

71    The applicant puts this ground in two ways: first, that the reasoning of the Federal Circuit Court is not logical or rational, and secondly, that the outcome (that is, the unfavourable exercise of discretion) is legally unreasonable.

72    The first issue, as I raised in argument, is whether grounds of this nature – irrationality, illogicality and legal unreasonableness – are properly characterised as errors of a jurisdictional nature when they appear in the reasoning of a court exercising judicial power.

73    In relation to legal unreasonableness, the applicant correctly submits that in Li [2013] HCA 18; 249 CLR 332 at [23] French CJ included judicial officers in his Honour’s statement of principle:

Every statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v The Commonwealth:

“[C]omplete freedom from legal control, is a quality which cannot … be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.”

Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then “the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case”. That view, however, must be reached by a process of reasoning.

(Citations omitted.)

74    The passages from other judgments in Li on which the applicant relied – [63], [72] and [76] (Hayne, Kiefel and Bell JJ), and [88] (Gageler J) – are not expressed as referring to exercises of judicial power.

75    In relation to illogical or irrational reasoning, again the applicant pointed to parts of French CJ’s reasons for judgment in Li (such as [25] and [26]) where his Honour describes rationality as an integral feature of the lawfulness of a decision-maker’s reasoning process.

76    Whether any of these passages should be understood as supporting the proposition that an exercise of judicial power which meets the high threshold of legal unreasonableness is properly characterised as an exercise of power beyond jurisdiction is a question which can be left for a case other than this one. It is a large question, and should await a circumstance where the matter needs to be decided.

77    In the present application, I am comfortably satisfied the Federal Circuit Court’s reasons do not reveal the kind of illogicality or irrationality of which the High Court spoke (in different ways) in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. Nor am I persuaded that the outcome of the exercise of discretion in this case was legally unreasonable.

78    The Minister emphasises that the standard for impugning reasoning as illogical or irrational is a high one. It is not sufficient that individual conclusions are inadequate or that “logical or rational or reasonable minds might adopt different reasoning” on the same evidence: SZMDS at [131]. Rather, the decision as a whole must be one at which “no rational or logical decision maker could arrive on the same evidence” (at [130]). The Minister also relied on descriptions given in Li: namely a decision which is arbitrary, capricious or devoid of common sense (at [28]); or lacking “an evident and intelligible justification” (at [76]). The Minister submits the applicant’s catalogue of errors said to be apparent in the way the Federal Circuit Court dealt with review grounds 1 to 3, and review grounds 4 to 5, adopts a paragraph by paragraph approach falling into the kind of overzealous scrutiny not permissible on judicial review: Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272.

79    It is true that there are aspects of the Federal Circuit Court’s reasons which are somewhat difficult to follow. As the applicant points out, why suddenly in [18] of the reasons there is a paragraph about the delegate’s findings, rather than those of the Tribunal, is unclear. Similarly, the applicant’s contention that some passages of the Court’s reasons appear unrelated to the grounds of review her Honour is then purporting to deal with has some force.

80    Together with the observations I have made under the applicant’s first contention, it might be said that the reasons of the Federal Circuit Court are somewhat confusing. However I am satisfied that they disclose a working through, in a not irrational way, of the applicant’s complaints in order to determine whether it was arguable the Tribunal did not deal lawfully with the applicant’s claims.

81    The Minister’s submissions should be accepted and this ground of review of the Federal Circuit Court’s decision must be rejected. In accepting the Minister’s submissions, I leave for another occasion closer consideration of the relationship, if any, between the rationality and logicality review grounds, and the review ground of legal unreasonableness.

82    Finally, neither the Federal Circuit Court’s reasoning nor its ultimate exercise of discretion can properly be challenged on judicial review on logicality or legal unreasonableness grounds by reference to arguments that were never put to the Federal Circuit Court. The applicant’s contentions concerning the Tribunal’s failure to have regard to either the existence or contents of the submissions filed by his then migration agent which were relevant to the applicant’s whistle-blower claims, and the contention that the Tribunal’s s 424A letter was arguably deficient, are of this nature.

CONCLUSION

83    The application must be dismissed. As is apparent from these reasons, that is a conclusion I have reached with some hesitation.

84    The Federal Circuit Court made a subsequent order for costs against the applicant, in the sum of $8,000. In the exercise of my discretion, I do not propose to make any further order against the applicant. The applicant was justified in having concerns, after receiving advice, about the lawfulness of the Federal Circuit Court’s decision, especially given its reasons were somewhat confusing. Particularly on the first ground, the Minister’s submissions to the Federal Circuit Court did not in their own terms refer with precision to s 477(2) as the statutory foundation for the discretion, tending to rely instead on aspects of the guidance given in Hunter Valley Developments [1984] FCA 176; 3 FCR 344.

85    It was not unreasonable for the applicant to bring this application for judicial review and there was force in the submissions made on his behalf.

86    In those circumstances, it is appropriate that each party bear its own costs.

87    The Court records its gratitude to solicitors and counsel who accepted a referral under r 4.12 of the Federal Court Rules to appear on behalf of the applicant.

Associate:     

Dated:    9 December 2015