FEDERAL COURT OF AUSTRALIA

MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent, by himself or by his Department, officers, delegates or agents be restrained from removing the Applicant from Australia until the hearing and determination by the Court of the application for relief under s 39B of the Judiciary Act 1903 (Cth).

2.    The First Respondent pay the Applicant’s costs of and incidental to his applications for injunctive relief including the hearings on 12 September 2016 and 27 September 2016.

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

REASONS FOR JUDGMENT

MURPHY J:

introduction

1    The applicant in this matter is a 57 year old man of Sunni Islam religion and Bidoon race or ethnicity, who was born in Kuwait but who lived in Iraq before he arrived in Australia by boat on 10 May 2012, without a visa. He was subsequently unsuccessful in an application for a Protection visa.

2    Before the Court is an application by the applicant for an interlocutory injunction to restrain the first respondent, the Minister for Immigration and Border Protection (the Minister), from removing the applicant from Australia pending determination of an application under s 39B of the Judiciary Act 1903 (Cth) (the s 39B application).

The procedural history

3    On 19 December 2012, a delegate of the Minister refused the applicant’s Protection visa application. On 22 November 2013 the Refugee Review Tribunal (the Tribunal) affirmed the decision that the applicant was not owed protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act).

4    Pursuant to s 477(1) of the Act the applicant had 35 days within which to seek judicial review of that decision by the Federal Circuit Court. The applicant did not seek judicial review until more than 2½ years later when, on 19 August 2016, he filed an application for judicial review by the Federal Circuit Court together with an application for extension of time under s 477(2) of the Act.

5    On 9 September 2016 the Federal Circuit Court refused the application for an extension of time (MZZLD v Minister for Immigration and Border Protection & Anor [2016] FCCA 2368). No appeal lies from a decision on an application for extension of time under s 477(2) of the Act: see s 476A(3)(a).

6    On 12 September 2016 the applicant filed the s 39B application which alleges that the Federal Circuit Court made a jurisdictional error in refusing the application for an extension of time. The application seeks the issue of prerogative writs to quash the decision of the Federal Circuit Court and to direct the court to determine the application for extension of time according to law: see Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11] (Rares, Perram and Wigney JJ).

7    For the reasons I explain, I have found that there is a serious question to be tried, albeit a doubtful one, on one of the grounds on which the applicant relies and he therefore succeeds in the application for injunctive relief.

The relevant principles

8    The test to be applied in relation to the grant of an interlocutory injunction is that approved by the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 (O’Neill) at [65] (Gummow and Hayne JJ, with Gleeson CJ and Crennan J agreeing); see also Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618. To succeed in the application the applicant must satisfy the Court that:

(a)    he has a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action he will be held entitled to relief. This does not mean that the applicant must show that it is more probable than not that at trial he will succeed. It is sufficient that he show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the likelihood needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the grant of the injunction. This aspect of the test is commonly reduced to a requirement that there be a “serious question to be tried”; and

(b)    the inconvenience or injury which he would be likely to suffer if an injunction were refused outweighs the injury which the respondent would suffer if an injunction were granted.

The applicant must also show that damages would not be an adequate remedy.

9    The two limbs of the test are not considered in isolation. The balance of convenience is to be assessed in the context of the strength of the prima facie case. For example, as Woodward J said in Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472:

…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

Balance of convenience

10    The Minister concedes that the balance of convenience favours the applicant. That is obviously so when, if the injunction does not issue, the applicant will be at risk of removal to war-torn Iraq where he claims to fear being killed or persecuted because of his religion, because he is a Bidoon and is stateless and because he is not an Iraqi citizen and was told to leave Iraq. The balance of convenience in favour of the applicant is marked.

11    The Minister did not contend that damages would be an adequate remedy. That is obviously so when the applicant faces removal to Iraq where he claims to fear he will be killed or persecuted.

Serious question to be tried

12    The substantive proceeding is not an appeal. The applicant must satisfy the Court that there is a serious question to be tried as to whether the Federal Circuit Court made a jurisdictional error in refusing to allow the application for an extension of time within which to bring an application for judicial review.

Jurisdictional error by an inferior court

13    In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig) at 177-178 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) the High Court gave a general description of the circumstances in which an inferior court will fall into jurisdictional error. The court said:

(a)    that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”; and

(b)    that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”. In amplification of this the court gave three examples:

(i)    the absence of a jurisdictional fact;

(ii)    disregard of a matter that the relevant statute requires be taken into account as a condition of jurisdiction (or conversely taking account of a matter required to be ignored); and

(iii)    misconstruction of the relevant statute thereby misconceiving the nature of the functions which the inferior court is performing or the extent of its powers in the circumstances of the case. In this category of case the court said that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” and gave several examples of such difficulties.

14    At 179-180 the court broadly explained the distinction between the kinds of errors which might ground an appeal from the decision of an inferior court and those which go to the jurisdiction of the court:

…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.

15    In Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (Kirk) the High Court noted the difficulties in distinguishing between jurisdictional error by an inferior court and non-jurisdictional error, but maintained the distinction. At [66] the court cited the decision in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 141, [163] (Aala) where the High Court said:

The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

After restating (at [71]-[73]) the general description in Craig of the circumstances in which an inferior court will fall into jurisdictional error, the court noted that “[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error” and that Craig should not be seen as providing “a rigid taxonomy of jurisdictional error.”

The alleged jurisdictional errors

16    The applicant submits that the Federal Circuit Court made the following jurisdictional errors:

(a)    Ground 1: that in exercising the discretion under s 477(2) of the Act the primary judge applied an incorrect test in the consideration of the merits of the application for judicial review. The primary judge required the applicant to satisfy the court that his application for judicial review had a “serious prospect of success”.

(b)    Ground 2: that the primary judge took into account an irrelevant consideration, being the additional cost and delay of permitting the application for judicial review to proceed in circumstances where the court could have heard and determined the application for review and for an extension of time in the same hearing.

(c)    Ground 3: that the primary judge failed to take into account three substantial and clearly articulated arguments made by the applicant based on established facts.

(d)    Ground 4: that the primary judge failed to accord the applicant procedural fairness by not affording the applicant an opportunity to reply to submissions that the Minister raised for the first time in oral submissions.

Consideration

Ground 1 - Incorrect test

17    Under Ground 1 the applicant contends that in exercising the discretion to extend time pursuant to s 477(2) the primary judge applied an incorrect test in assessing the merits of the judicial review application. The applicant relies on paragraph 37 of the reasons for judgment where the primary judge said:

When to that is added a case which has no serious prospect of success, the Court must conclude that it is not in the interests of the administration of justice to extend time as sought.

(Emphasis added.)

The applicant argues that this shows that the primary judge set the bar too high by requiring the applicant to establish that his application for judicial review had a “serious prospect of success.”

18    Under s 477(2) of the Act the Federal Circuit Court has power to extend the time for bringing an application for review if the court is satisfied “that it is necessary in the interests of the administration of justice to make the order.” The decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (Hunter Valley) at [18]-[23] is the leading case on the discretion to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It has been endorsed and applied to similar discretions to extend time on many occasions.

19    In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP) at [45]-[58] Mortimer J reviewed the authorities to which Wilcox J referred in Hunter Valley and the extrinsic materials surrounding the introduction of the phrase “in the interests of the administration of justice” into the Act. Her Honour concluded, and I respectfully agree, that the requirement for the Federal Circuit Court to be satisfied that an extension of time is “in the interests of the administration of justice” does not import a necessarily different set of factors for consideration than those identified under regimes such as s 11 of the ADJR Act and in Hunter Valley.

20    Having regard to the factors set out in Hunter Valley, it is common ground between the parties that it was appropriate for the primary judge to consider the merits of the judicial review application when considering whether to grant an extension of time. It will seldom be in the interests of the administration of justice to grant an extension of time to seek review of an administrative decision if the review application has little or no prospect of success.

21    In MZABP (at [62]-[63]) Mortimer J said that a judge hearing an application for extension of time should decide whether the substantive application is “plainly hopeless” and that the correct approach included deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. This is long established. In Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83 at 97, [29] French J described the test as whether the substantive application has a reasonable prospect of success, which was “to say no more than that there is a finite non-trivial probability that it will succeed” based upon a necessarily incomplete consideration of the case. His Honour then noted that “[i]t 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”.

22    To similar effect, in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES) at [82]-[85] Wigney J referred to the need for assessment of the prospects of judicial review grounds to distinguish between grounds that are hopeless and destined to fail and those which are properly described as weak. Similarly, in SZVBN v Minister for Immigration and Border Protection [2016] FCA 898 (SZVBN) at [46] Griffiths J held that it was enough that the applicant’s grounds were reasonably arguable and could not be summarily dismissed. I take the same view.

23    Having regard to these cases, if it is the case that the primary judge held that the applicant was only entitled to succeed in the extension of time application if he could show that the substantive application for judicial review had a “serious prospect of success”, then her Honour would have erred. However, whether that error was within jurisdiction such that it (ordinarily) would allow an appeal, or whether it constitutes jurisdictional error is a more difficult question.

24    It could be said that such an error involves such a fundamental misapprehension of the discretion in s 477(2) that it represents a misapprehension of the nature of the power: see MZABP at [68]. It is, though, unnecessary to decide because I am not persuaded that there is a serious question to be tried that the primary judge made such an error.

25    In her Honour’s reasons for judgment, the primary judge set out s 477(2) of the Act (at [3]), correctly summarised the kinds of matters that might go to the court’s consideration of an application for extension of time (at [4]), and said that the test for an extension of time was whether it was “necessary in the interests of justice” (at [20]). Her Honour cited Mortimer J’s remarks in MZABP that an applicant for an extension of time need only show that the substantive application was not “plainly hopeless” (at [27]). At [28] her Honour cited Mortimer J’s explanation in MZABP that the correct approach to the merits includes deciding whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. At [29] her Honour noted that the first respondent submitted that the grounds set out in the application did not rise to the level described by Mortimer J in MZABP. Finally, her Honour said that the grounds relied on by the applicant had “little or no prospect of success” (at [31]).

26    In argument, counsel for the applicant conceded that the expression “little or no prospect of success” aligns with the test required by the authorities, but said that the vice in the primary judge’s approach could be seen in the passage extracted at [15] above. In effect counsel argued that the primary judge merely recited Mortimer J’s views in MZABP rather than following the correct approach.

27    I do not accept the applicant’s submission. Having regard to the submissions before the Federal Circuit Court and on a fair reading of the reasons for judgment in my view it was common ground before the primary judge that the correct test for an extension of time in relation to the merits of the substantive application was as set out in MZABP. In referring to MZABP the primary judge was setting out her view of the appropriate test in s 477(2). It is clear that the primary judge understood the test in relation to the merits of the substantive application and considered that it had little or no prospect of success. I see her Honour’s use of the phrase “no serious prospect of success” (at [37]) as a shorthand expression of her Honour’s previously expressed view that the application had little or no prospect of success.

28    I am not persuaded that there is a serious question to be tried that the primary judge made a jurisdictional error by applying the wrong test in relation to the merits of the substantive application for review.

Ground 2 - Irrelevant considerations

29    Under this ground the applicant contends that the primary judge took into account a consideration that was irrelevant in the circumstances, namely the delay caused to other litigants and the additional cost of granting the application for extension of time, in circumstances where the court could have heard and determined the underlying application for judicial review and the extension of time in the same hearing. The applicant relies upon paragraph 37 of the reasons for judgment where the primary judge said:

There is a need for finality in legal processes. This assists the efficient use of public resources and produces a lessening of legal costs to all parties. The impact of progressing a case with significant delay and no satisfactory explanation for that delay upon other litigants in the Court awaiting a hearing is considerable and adverse. When to that is added a case which has no serious prospect of success, the Court must conclude that it is not in the interests of the administration of justice to extend time as sought.

30    The applicant argues that this passage shows that the primary judge refused an extension of time at least in part because allowing the extension would increase the costs for all parties and cause significant delay to other litigants as the application for judicial review would then have to be heard. The applicant accepts that considerations of efficiency and delay might be proper considerations in many circumstances. However, he argues that they were not in the circumstances of the present case because it was open to the primary judge to hear and determine the substantive application at the same hearing as the application for an extension of time. The applicant argues that, her Honour having decided not take that course, the court could not take into account the costs to the parties and the effects on other litigants of granting an extension of time.

31    The applicant argues that any additional cost or delay that would be incurred by having an additional hearing is purely a consequence of the court’s decision not to entertain the possibility of hearing both applications on the same day. He therefore contends that the court failed to properly exercise the discretion conveyed in s 477(2) and made a jurisdictional error.

32    What her Honour meant in the relevant passage is not entirely clear, but on a fair reading her Honour did not say that her concern was with the time that would be taken in, or the delay for other litigants that would flow from, hearing the substantive application at a later date.

33    In the first two sentences of the passage the primary judge made the self-evident statement that there is a public interest in finality in litigation, the efficient use of court resources, and in reduced legal costs, all of which are factors against allowing an extension of time application. A failure to prosecute a review in a timely way may lead to increased legal costs. For example, in the present case the applicant received the adverse Tribunal decision in November 2013 and did not seek review until August 2016. That may have been inefficient and increased legal costs through a requirement for new lawyers in the Minister’s employ to familiarise themselves with the case.

34    In the next sentence in the passage her Honour said (albeit unclearly) that the hearing of an extension of time application can cause delay for other litigants in the hearing of their cases, and that too may be a factor against allowing an extension of time. If there is a valid explanation for the delay then the delay caused to other litigants may be justified but her Honour did not consider the applicant provided a valid explanation.

35    Further, there can be no question that the broad discretion granted to the court – to allow an extension of time if it is in the interests of the administration of justice – may include considerations such as the efficient use of public resources, delay and the effect of delay on other litigants. In Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416 Fitzgerald J said:

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.

36    The decision to hear the application for an extension of time separately from the application for review was a case management decision open to the court. The thrust of the applicant’s contention is that, as the court made the decision to hear the application for an extension of time first, it was not open to the primary judge to consider the effects on other litigants of granting an extension of time. I do not accept that contention.

37    I am not persuaded that there is a serious question to be tried that the primary judge made the error asserted or that the asserted error is jurisdictional in nature.

Ground 3 - Failing to take into account relevant considerations

38    Under this ground the applicant contends that the primary judge failed to deal with three substantial, clearly articulated submissions relying upon established facts regarding the merits of the application for review, and in doing so the primary judge fell into jurisdictional error. The applicant contends that the primary judge failed to deal with the submissions that:

(a)    there is a public interest in ensuring that decisions are made lawfully;

(b)    the Tribunal failed to consider the applicant's claim that he feared persecution because of his Bidoon race or ethnicity; and

(c)    in the alternative, if the Tribunal considered the applicant’s claim that he faced persecution as a person of Bidoon race or ethnicity, that the Tribunal’s reasons are irrational or illogical.

The public interest in lawfully made decisions

39    The applicant made written and oral submissions to the Federal Circuit Court in relation to the public interest in ensuring that decisions of the executive are made lawfully. There is no mention of these submissions in the reasons for judgment and the applicant contends that the failure to consider these submissions constitutes a jurisdictional error.

40    The Minister contends (although there is no evidence) that the applicant’s written submissions on this point were under the heading “Prejudice to the Respondents” and were put in support of the contention that there was no prejudice to the Minister in granting the extension of time. The transcript of the Federal Circuit Court hearing is in evidence and it shows that counsel for the applicant submitted that:

…the prejudice arising from allowing a decision that’s potentially affected by jurisdictional error to stand, both in terms of prejudice to the applicant and in terms of the public interest in lawful decision-making, very greatly outweighs the interests of expediency and finality that are relied on by the Minister.

In my view this submission was directed, first, at prejudice to the applicant as the Minister contends, and second, at prejudice to the public interest in lawful decision-making.

41    The transcript shows that, in response, counsel for the Minister referred to the need to balance various considerations, including delay, the expenditure of public monies, finality of litigation and the merits of the substantive application. Counsel said that the delay was substantial but, because the Minister did not assert any particular prejudice, counsel would not deal with that matter further. The response by counsel for the Minister did not directly address the submission that the public interest in lawful decision-making greatly outweighed the interests of expediency and finality.

42    I accept, as the applicant contends, that the primary judge did not refer to this submission at all. However, the submission was not based on an established fact, but was based on the conclusion that the Tribunal decision was potentially affected by jurisdictional error. The primary judge did not accept that conclusion. In her Honour’s view the application for judicial review had little or no prospect of success. In those circumstances it was unnecessary for her Honour to deal with the submission. The submission was just one of a series of submissions going to the broad discretion as to whether or not to grant an extension of time and one of the non-mandatory considerations that the primary judge could take into account. It was a matter for her Honour whether she did so.

43    I am not persuaded that there is a serious question to be tried as to whether the primary judge fell into jurisdictional error by failing to deal with this submission.

The Tribunal’s failure to consider the applicant's claim that he feared persecution because of his Bidoon race or ethnicity

44    The applicant contends that he made clear submissions to the Federal Circuit Court that the applicant had made a claim to the Tribunal based on his Bidoon race or ethnicity, which was distinct from his claims about statelessness or nationality, and that the Tribunal simply omitted to deal with it. He submits that when the primary judge was considering the merits of the application for judicial review her Honour failed to take into account his submissions in that regard.

45    Although the submissions are not in evidence, the applicant submits that he filed written submissions before the Federal Circuit Court regarding the failure of the Tribunal to deal with this claim. The Minister did not argue otherwise. The transcript of the Federal Circuit Court hearing reveals that counsel for the applicant took the primary judge to parts of the transcript of the Tribunal hearing which contained the following exchanges:

The applicant said:

They start pressuring us. We were under pressure because of race and nationality.

At a later point in the hearing the Tribunal member asked:

So what serious harm do you fear, stateless from Kuwait, having served in the military?

The applicant corrected the Tribunal member and said:

It’s broader than that. It’s not just being stateless and being in the military.

The applicant said:

Well, actually, I will be harmed because of two reasons, my religion and my race as well.

46    Counsel for the applicant also notes that in an earlier Tribunal decision regarding the applicant’s claim for a protection visa, which decision was set aside on judicial review for other reasons, the Tribunal dealt with the matter on the basis that the applicant claimed to fear persecution because of his Bidoon race. Counsel for the Minister did not contradict that submission.

47    In the present Tribunal decision the closest the Tribunal came to dealing with a claim by the applicant based on his Bidoon race or ethnicity was in a finding at paragraph 30 of its decision, under the heading “Nationality”. The Tribunal said:

I do not accept that the applicant is a stateless Bidoon, but rather find that he was born in Kuwait and was expelled to Iraq and has subsequently been granted Iraqi citizenship.

Essentially, the Tribunal addressed the applicant’s claim by reference to his alleged statelessness. It concluded that the applicant is an Iraqi citizen and therefore not stateless, and it did not deal with his claim of a fear of persecution based on his Bidoon race or ethnicity.

48    In my view the Minister implicitly accepted before the primary judge that the Tribunal dealt with the applicant’s claim by finding that the applicant was not stateless because he was, in fact, a citizen of Iraq. The Minister argued that the applicant’s claim to protection was based on his status as a “stateless Bidoon” who had been forced to leave Kuwait, rather than on his Bidoon race or ethnicity.

49    The primary judge only mentioned this issue in one paragraph of the reasons for judgment. Her Honour said (at [36]):

The Applicant’s claims that he was a ‘stateless Bidoon’ and ‘returnee from the west’ were clearly dealt with by the Tribunal. Any findings on race or ethnicity were subsumed into the Tribunal’s broader more general findings.

50    The Minister argues that the primary judge sufficiently dealt with the relevant submission, although doing so in concise terms and not in favour of the applicant. He contends that the primary judge accepted the Minister’s argument that the applicant’s claims about race or ethnicity had been dealt with by the Tribunal and submits that the extension of time application only required the primary judge to undertake a limited assessment of the merits.

51    I have no difficulty in accepting that the primary judge was only required to undertake a general assessment of the merits. I respectfully agree with the approach taken by Mortimer J in MZABP (at [62]) where her Honour said that a judge hearing an application for extension of time should not approach the grounds of the substantive application “as if they had been fully considered, developed and argued” and should consider the grounds at “a reasonably impressionistic level”. In my view the primary judge’s consideration of the merits of the substantive application was appropriately broad and general.

52    It is unnecessary for me to reach a concluded view as to whether the primary judge fell into jurisdictional error in the conclusion her Honour reached at [36]. For the applicant to be entitled to the injunctive relief he seeks he need only satisfy the Court that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending hearing of the substantive proceeding. The nature of the rights the applicant asserts and the marked balance of convenience in his favour mean that the bar for success in the application is reduced. He must make out a serious question to be tried, but in my view even if that be somewhat doubtful, I should allow injunctive relief.

53    In my view there is a prima facie case that her Honour did not properly address the applicant’s submission that there was, in fact, no finding by the Tribunal on the applicant’s claim of persecution because of his race or ethnicity. Her Honour made no express reference to the applicant’s claim based solely on his Bidoon race or ethnicity. Her Honour only referred to the applicant’s claim before the Tribunal that he was a “stateless Bidoon” and concluded that “any findings on race or ethnicity” were subsumed into the Tribunal’s broader or more general findings. In my respectful view the latter finding was incorrect and it points to a failure by her Honour to properly deal with the applicant’s submission. The Tribunal made no findings on the applicant’s claim of persecution because of his race or ethnicity and instead addressed the claim by reference to his alleged statelessness.

54    The more difficult question is whether there is a serious question to be tried that her Honour’s failure to properly address the applicant’s submissions in this regard constitutes a jurisdictional error. The primary judge plainly had authority to determine the application for an extension of time, which included a requirement to broadly assess the merits of the application for review. It is arguable that the asserted error was within jurisdiction and did not involve any departure from the limits on her Honour’s exercise of power. It can be said that her Honour had authority to be wrong: Aala at [163].

55    It is established that failure by a tribunal to make a finding on a substantial, clearly articulated, argument relying upon established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing); referred to with approval in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [55] (Black CJ, French and Selway JJ). The constructive failure to exercise jurisdiction may be seen as a failure by the tribunal to carry out the required review: NABE at [55]. It is, however, unclear to what extent this applies in relation to the decision of an inferior court exercising a discretion to extend time in an interlocutory hearing which has heard submissions about the merits of a substantive case and is only required to take a broad impressionistic view of the merits. It may be doubted that a court falls into jurisdictional error if, when setting out its broad view, the court does not make a finding in relation to each aspect of the submissions.

56    In my view it is arguable that the judgment does not properly address the relevant submission and the primary judge may have failed to accord the applicant procedural fairness. I see the s 39B application as doubtful, but given the nature of the rights asserted and the marked balance of convenience in favour of the applicant, I consider that the application has sufficient likelihood of success to justify the preservation of the status quo pending trial. Accordingly, I have granted an injunction to run until the substantive application can be heard and determined by the Court.

57    It could also be argued that the primary judge’s conclusion at [36] is so plainly wrong that it was not open to her Honour to reach that view, which could be said to reveal a misapprehension or misunderstanding of jurisdiction on the part of the primary judge.

The Tribunal’s reasons are irrational or illogical

58    The applicant only makes this contention in the alternative. He argues that if it is found that the Tribunal considered his claim that he faced persecution as a person of Bidoon race or ethnicity then the Tribunal’s reasons are irrational or illogical. As I have said, in my view the Tribunal did not consider the applicant’s “race” claim and the primary judge erred in finding that it did. There is no need to deal with this ground.

Ground 4: - Failing to accord the applicant procedural fairness

59    Under this ground the applicant alleges that the primary judge failed to accord the applicant procedural fairness by not affording the applicant an opportunity to reply to submissions that the Minister raised for the first time in oral submissions. In oral submissions the Minister said that in exercising the discretion to extend time the court should take into account the impact of granting an extension of time on judicial resources and the delay to other litigants awaiting a hearing. The applicant contends that the issue of the impact on other litigants was influential in the decision of the primary judge, and the failure to afford the applicant a right of reply amounted to a denial of procedural fairness which constitutes jurisdictional error: Aala at [59].

60    In my view this submission has little merit. First, and most fundamentally, the applicant put on written submissions and counsel took up the opportunity to address the court orally. The applicant had a full opportunity to advance his application before the court and, other than in relation to a right of reply, he does not assert any other lack of procedural fairness. Second, there is no evidence that counsel for the applicant sought to make a reply. There is nothing in the transcript to indicate that counsel did so and nothing to suggest that counsel was refused a right of reply. Third, the proposition that factors such as the interests of other litigants might be relevant when considering what is “in the interests of the administration of justice” should have been obvious.

Conclusion

61    I have made orders restraining the Minister from removing the applicant from Australia until the applicant’s s 39B application can be heard and determined.

62    The applicant seeks the costs of the application before me, and also the reserved costs of an urgent application for injunctive relief before North J on 12 September 2016 (the first interlocutory hearing). The applicant contends that both hearings were only necessary because, notwithstanding that the applicant sought an undertaking from the Minister not to remove the applicant until the s 39B application had been determined, the Minister was unwilling to do so. He contends that both hearings could have been avoided if the Minister had taken a more reasonable position and provided an undertaking. In response the Minister argues that the undertaking the applicant sought was broader than the confined undertaking the Minister provided at the first interlocutory hearing which only restrained Minister from removing the applicant pending the hearing of his application for an injunction.

63    There is limited material before the Court as to what took place between the parties in relation to the first interlocutory hearing, but it appears that the Minister refused to offer any undertaking until the matter came before the Court. In my view it is appropriate to order that the Minister pay the applicant’s costs of both hearings. The Minister should have offered a confined undertaking before the first interlocutory hearing because it was always likely that the Court would grant a short term injunction until the interlocutory application could be heard.

64    Before me the Minister even refused to extend the undertaking given at the first interlocutory hearing so that it ran until judgment was given in the present application. The Minister’s position was that unless the Court delivered judgment immediately it was entitled to remove the applicant from Australia. In my view that position is inconsistent with the Minister’s obligations as a litigant pursuant to s 37N of the Federal Court of Australia Act 1976 (Cth). It is not consistent with the just resolution of the dispute as quickly, inexpensively and efficiently as possible if the Court is required to deal with multiple applications for urgent injunctions to restrain the applicant’s removal for the short period of time until the Court can deliver judgment.

Associate:

Dated:    7 October 2016