FEDERAL COURT OF AUSTRALIA

EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 19 September 2018 be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 2 May 2018 be set aside.

3.    The matter be remitted to the Federal Circuit Court of Australia for determination according to law.

4.    The first respondent pay the applicant’s costs of this proceeding and the proceeding below, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an amended originating application dated 19 September 2018 the applicant seeks judicial review of a judgment and orders of the Federal Circuit Court of Australia (FCCA). The FCCA declined to extend time under s 477(2) of the Migration Act 1958 (Cth) (the Act). The primary judge’s reasons for judgment are reported in EXU17 v Minister for Immigration and Border Protection [2018] FCCA 1093.

2    For the reasons that follow, the amended originating application will be allowed and consequential orders will be made.

Summary of relevant statutory provisions

3    The FCCA has jurisdiction under s 476 of the Act to review, in its original jurisdiction, certain migration decisions.

4    Time limits are imposed on any application which seeks to invoke the FCCA’s original jurisdiction. They are to be found in s 477 of the Act, which provides:

Time limits on applications to the Federal Circuit Court

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

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

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

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

(3)    In this section:

date of the migration decision means:

(a)    in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

(b)    in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

(c)    in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

(ca)    in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or

(d)    in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

5    It is important to note the two conditions to the exercise of the FCCA’s discretionary power to extend time under s 477(2). The first is the requirement that there be a written application seeking an extension of time which specifies why the applicant considers that it is necessary in the interests of the administration of justice to make the order. The second condition is that the FCCA must be satisfied that it is necessary in the interests of the administration of justice to make the order. The concept of whether it is necessary in the interests of the administration of justice to extend time is at the heart of both those conditions.

Summary of background facts

6    The applicant is a citizen of Afghanistan and is of Shia faith and Hazara ethnicity. He was raised in the Jaghori district of Ghazni province in Afghanistan and began working on the family farm when he was 13 years old. Between 2007 and 2010 he lived in Iran where he worked until he was deported by the Iranian authorities back to Afghanistan. On returning to Afghanistan, he worked as a taxi driver and carried passengers between Jaghori, Ghazni city and Kabul. While plying his trade, the applicant was stopped and threatened by the Taliban on two occasions. He claimed that on one of those occasions, the Taliban took his name and told him that they would harm him if he travelled on the same road again. Shortly thereafter, he left Afghanistan and arrived in Australia as an unauthorised maritime arrival in March 2013.

7    On 4 May 2016, the applicant applied for a safe haven enterprise visa, which is a form of protection visa. It was refused by the Minister’s delegate on 14 November 2016.

8    The matter was automatically referred to the Independent Assessment Authority (IAA) for review under Pt 7AA of the Act. On 9 June 2017, the IAA rejected the applicant’s claims for protection under both the refugee criteria in s 36(2)(a) and the complementary protection criteria in s 36(2)(aa) of the Act and affirmed the delegate’s decision not to grant the applicant a protection visa.

9    The basis upon which the IAA rejected the applicant’s claims for protection as a refugee may be summarised as follows:

(a)    The IAA found that the applicant’s claim to have been stopped by the Taliban while he was plying his trade was plausible.

(b)    The IAA also accepted that the applicant would not resume his occupation as a taxi driver operating on roads around Jaghori because of a fear of persecution and that such fear is well founded.

(c)    The IAA found that, by reference to country information, the applicant could relocate to either Mazar-e-Sharif or Kabul, which he could safely access by air, and where he did not face a real chance of harm.

10    The reasons why the IAA rejected the applicant’s claims for complementary protection may be summarised as follows:

(a)    As noted above, the IAA found in the applicant’s favour that he had a well-founded fear of persecution as a Shia Hazara taxi driver on roads around Jaghori, but after referring to s 36(2B) of the Act, it found that it must be taken that the applicant did not face a real risk that he will suffer significant harm in Afghanistan if it was reasonable for him to relocate to an area of the country where there would not be a real risk that he will suffer significant harm.

(b)    The IAA was not satisfied that the applicant faced a real risk of significant harm in either Mazar-e-Sharif or Kabul, which he could safely access by air.

The FCCA proceeding

11    The IAA’s decision is dated 9 June 2017 but the applicant’s judicial review application was not accepted for filing in the FCCA until 7 November 2017. Accordingly, he required an extension of time under s 477(2) of the Act. He was required by s 477(2) to specify in his application why he considered that it was necessary in the interests of the administration of justice to make the order. The applicant sought to comply with this requirement by annexing to the originating application an affidavit affirmed by him on 6 November 2017. He stated that the affidavit was prepared for the purpose of explaining why the proceeding had not been commenced within the 35 day time period.

12    It is well to set out [4] to [13] of the affidavit which explains why the applicant considered that it was necessary in the interests of the administration of justice to extend time (without alteration, and noting that there was no [5]):

4.    Sometime between 9 June 2017 and 4 July 2017, a man called Raza Nahoori called me, by phone, and said words to the effect that the IAA had affirmed the decision. Raza worked with my migration agent, Edith Kaufoou Tapueluelu, and speaks Hazaragi. I am not sure whether he is a migration agent though. He might be an interpreter. My current Solicitor has done a search of the name “Nahoori” on the Office of the Migration Agents Registration Authority, but has been unable to find a migration agent with that name. Attached and marked as annexure “A” are print outs from that search.

6.    Raza Nahoori told me words to the effect that my case had to go to the Federal Circuit Court. I do not remember Raza telling me about 35 days to apply to the Federal Circuit Court, although he might have told me. I was really upset and a bit angry when I found out that my application had been refused and, because of my emotional state, I was unable to process what he was saying.

7.    From the phone call with Raza, I interpreted what he said as meaning that my case would automatically go to the Federal Circuit Court. That understanding was also based on my previous experience of my application being automatically referred to the IAA after the Department of Immigration and Border Protection refused my application.

8.    My migration agent, Edith Kaufoou Tapueluelu, did not talk with me after the IAA affirmed my decision.

9.    On 4 July 2017, Raza Nahoori emailed me the decision and notification by the IAA. Attached and marked as annexure “B” is a photograph of that email. I did not read the attachments in the email because I am not able to read very much English.

10.    I was under a lot of pressure and I did not tell any of my friends in my community about my refusal.

11.    I remained under the belief that my application had been automatically referred to the Federal Circuit Court.

12.    In about mid-October 2017, I received a phone call from the Department of Immigration and Border Protection. The caller said words to the effect that my application had been refused and my Bridging visa had expired. The Department said words to the effect that I could be removed from Australia. The Department said words to the effect that they would call me back to enquire about my migration status.

13.    I was worried and I called a friend and community leader, Salim Jafari, who referred me to my current Solicitor. My Solicitor advised me to get an opinion from a Barrister and after the opinion was received, we prepared this application.

The FCCA’s reasons for judgment summarised

13    The primary judge refused to extend time. Essentially, this was because his Honour found that the applicant had not provided a satisfactory explanation for the delay and the proposed three grounds of judicial review did not sufficiently disclose an arguable case on the merits to warrant an extension of time. Those matters will now be elaborated upon.

14    In [40] of the primary judge’s reasons for judgment, his Honour described Markovic J’s decision in SZNJG v Minister for Immigration and Border Protection [2018] FCA 334 (SZNJG) at [24]-[25] as providing a “useful summary…in relation to the principles to be applied concerning an extension of time”. It is desirable to set out the entirety of those paragraphs of Markovic J’s decision:

24.    The principles relevant to the exercise of the power of the Court to extend time can be summarised as follows:

(1)    whether the applicant has provided an acceptable explanation for the delay in lodging the application;

(2)    whether the respondent would suffer prejudice in light of the delay, should an extension of time to lodge the application be granted; and

  (3)    the merits of the substantial application,

see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349.

25.    Relevantly, in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 Mortimer J said at [5]-[6]:

5.    The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.

6.    Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.

15    Justice Markovic’s judgment in SZNJG related to an application for an extension of time to appeal to the Federal Court from orders made by the FCCA and not an application for an extension of time under s 477 of the Act.

16    The primary judge appears to have approached the question whether or not to extend time so as to permit the applicant to bring his FCCA proceeding by reference to, and only to, the three matters which were identified by Markovic J in SZNJG at [24]. Thus, his Honour addressed the question of whether there was an acceptable explanation for the delay, considered whether the respondent would suffer prejudice if time were extended and also assessed the merits of the substantive application.

17    On the issue of delay, the primary judge rejected the applicant’s submission that he had provided a satisfactory explanation for the delay, which was the first matter addressed by the primary judge. With reference to what the primary judge described in [41] as an allegation made by the applicant he made “an assumption” that the adverse decision of the IAA would automatically be referred to the FCCA, the primary judge said at [42]:

42.    No proper basis for that assumption is identified. The decision arising from the fast-track process in relation to the Authority is not a reasonable basis for any such assumption by the applicant. The applicant was provided with a decision and information identifying the time limit and said that he did not read English. The applicant at the relevant time was represented. The applicant’s delay was substantial. I do not regard the explanation by the applicant in relation to the circumstances of the present case as being a satisfactory explanation for the delay.

18    As to the question of prejudice, the primary judge noted at [43] that the Minister did not suggest that he was prejudiced, and consequently his Honour said that the “real issue” was the merits of the substantive application.

19    The issue of merits was addressed by the primary judge in [44] to [49] of his Honour’s reasons for judgment.

20    As to the first proposed ground of review, the applicant claimed that the IAA fell into jurisdictional error by construing and applying the term “real risk” in s 36(2B)(a) of the Act as if it concerned relative risk, rather than objective risk. The primary judge stated at [46] that the IAA’s reasons did not support the applicant’s contention that a relative test was applied by the IAA, as opposed to an objective test, in determining whether there was a real risk. His Honour concluded at the end of [46] that there was no arguable case of jurisdictional error sufficient to warrant an extension of time in relation to proposed ground 1.

21    Proposed grounds 2 and 3 claimed respectively that the IAA fell into jurisdictional error by conflating the two limbs in the relocation test in s 36(2B)(a) in its consideration and assessment of the risk of harm to the applicant and had erred by construing and applying that provision as if the only type of harm relevant to the reasonableness of relocation was “significant harm”. These proposed grounds were also found by the primary judge not to have sufficient merit to warrant an extension of time.

22    As to proposed ground 2, the primary judge’s brief reasons for rejecting it are to be found at [48] of the reasons for judgment:

48.    The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons as a whole do not reflect any conflation or erroneous application of the correct tests. Further it was open to the Authority to take into account findings under the Refugees Convention in determining the application of the criteria for complementary protection. I am not satisfied that the alleged error in proposed ground 2 has sufficient merit to warrant an extension of time.

23    As to the proposed ground 3, the primary judge gave equally brief reasons at [49] as to why he found that this proposed ground lacked merit (without alteration):

49.    The alleged error argued in relation to proposed ground 3 was that the Authority had erred in considering the reasonableness of relocation as dependent upon there being significant harm. The Authority’s reasons reflect considering the personal circumstances of the applicant in relation to considering the reasonableness of relocation and taking into account the submissions that were advanced in that regard. I do not read the Authority’s reasons as supporting that the Authority erroneously treated significant harm as the only type of harm relevant to the reasonableness of relocation. I am not satisfied that there is a sufficiently arguable case on the merits in relation to proposed ground 3 to warrant an extension of time.

24    Finally, in summarising his ultimate conclusions at [50], the primary judge stated that the applicant had not provided a satisfactory explanation for the delay in initiating the FCCA proceeding and that the proposed grounds in the application did not sufficiently disclose an arguable case. Thus time was not extended.

25    It is significant that at no point in his Honour’s reasons for judgment did his Honour set out the terms of s 477 or acknowledge the significance of the fact that the exercise of the discretion depends upon two conditions, both of which have at their core the concept of whether it is necessary in the interests of the administration of justice to extend time.

The amended judicial review application in this Court

26    The applicant raised the following six grounds in support of his amended judicial review application:

1.    The primary judge fell into jurisdictional error in exercising his discretion under s 477(2) of the Migration Act 1958 (Cth) by failing to consider:

  (a)    The interests of the administration of justice; and

(b)    Whether he was satisfied that it was in those interests to provide the extension.

2.    The primary judge fell into jurisdictional error in exercising his discretion under s 477(2) of the Act by applying s 477(2) as if the only matters to be considered in determining whether to provide the extension were the extent and explanation for delay and the merits of the substantive application.

3.    The primary judge fell into jurisdictional error in exercising his discretion under s 477(2) of the Act by omitting to consider the applicant’s claim that, were an extension not provided, he would lose his statutory entitlement to appeal the Immigration Assessment Authority’s decision dated 9 June 2016 (IAA Decision).

4.    The primary judge fell into jurisdictional error in exercising his discretion pursuant to s 477(2) of the Act by omitting to consider the applicant’s claim that the IAA Decision was a decision to refuse the applicant’s application for a protection visa.

5.    The primary judge fell into error by constructively failing to exercise jurisdiction by failing to provide adequate reasons for his decision.

6.    The primary judge fell into jurisdictional error in exercising his discretion pursuant to s 477(2) of the Act by omitting to consider the Applicant’s claim that reasons for the Applicant’s delay in making his application under s 477(1) included:

(a)    his migration agent having failed to inform the Applicant of the requirement that an application under s 477(1) be brought within 35 day of the IAA Decision; and

(b)    an interpreter associated with the migration agent having indicated to the Applicant that review of the IAA Decision by the Federal Circuit Court would be automatic (without the need for any application to be made by the Applicant).

27    At the commencement of the hearing, counsel for the applicant stated that grounds 3, 4 and 6 were not pressed.

Consideration and determination

28    As the Minister emphasised, it is important not to lose sight of the fact that the proceeding involves judicial review of a decision of an inferior court. It is well established that the jurisdiction of an inferior court to decide matters is broader than that of an administrative decision-maker (see, for example, Craig v South Australia [1995] HCA 58; 184 CLR 163 (Craig) at 177-180; SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 (SZUWX) at [9] per Bromwich J, at [16] per Flick J and at [20] per Allsop CJ; and DMI16 v Federal Circuit of Australia [2018] FCAFC 95 (DMI16) at [39]-[41] per Collier, Logan and Perry JJ). As the plurality stated in Craig at [177]-[179], an inferior court commits jurisdictional error if it misconstrues the relevant statute and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.

29    For the following reasons, I consider that the primary judge committed a jurisdictional error by applying an unduly narrow approach in applying s 477(2) of the Act. In particular, his Honour erred by adopting an approach which simply involved him applying principles which have been developed to guide the exercise of the power to extend time in other legislative contexts which differ from the statutory context here. Unlike those other legislative contexts, s 477(2) expressly requires the Court to be satisfied that “it is necessary in the interests of the administration of justice” to extend time. I will now expand upon those core matters.

30    As noted above, the primary judge determined the issue of whether or not time should be extended by reference to the three matters identified by Markovic J in SZNJG. In doing so, the primary judge proceeded on the basis that matters which guide the exercise of discretion under s 477(2) are the same as those which apply to the power of the Federal Court to extend time to enable an appeal to be brought in that Court from the FCCA under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which was the context in which SZNJG was decided. Under r 36.03 of the Federal Court Rules 2011 (Cth) (2011 FCRs), a notice of appeal to this Court from a judgment or order of the FCCA has to be filed within 21 days from the date on which the judgment appealed from was pronounced or the order was made. The procedural requirements relating to an application to extend the 21 day time period in r 36.03 are set out in r 36.05 of the 2011 FCRs.

31    In SZNJG, Markovic J found that the principles guiding the exercise of the discretion to extend time under these parts of the 2011 FCRs are the same as those identified by Wilcox J in Hunter Valley Developments Pty Limited v Cohen (1994) 3 FCR 344 (Hunter Valley) at 348-349. In Hunter Valley, the Court addressed the question whether time should be extended under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

32    It is significant to note that while the Court undoubtedly has a discretion to extend the time for appealing from the FCCA to the Federal Court under s 36.05 of the 2011 FCRs and under s 11(1)(c) of the ADJR Act, no express criteria is specified in either of those legislative contexts by reference to which the Court’s discretionary power to extend time is to be exercised. This is to be contrasted with s 477 of the Act. As emphasised above, there are two express conditions or requirements in s 477(2) which respectively require that it be specified in the application for an extension of time why the applicant considers that it is necessary in the interests of the administration of justice to extend time and the FCCA must also be satisfied that it is necessary in the interests of the administration of justice to extend time.

33    There is no further explicit specification in s 477 as to the criteria which may be relevant to the meaning and application of the broad phrase “necessary in the interests of the administration of justice”. Accordingly, those criteria fall to be determined by reference to the subject matter, scope and purpose of the power, but within the framework established in s 477(2) by the overarching concept of an extension being “necessary in the interests of the administration of justice”. As to whether or not a particular matter is a mandatory relevant consideration, see SZUWX and BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 (BVW17).

34    In Hunter Valley, Wilcox J distilled from the caselaw several principles which his Honour stated provided guidance, albeit not in any exhaustive manner, to the exercise of the Court’s discretion under s 11(1)(c) of the ADJR Act. They included such matters as the need for the Court to have a positive satisfaction that it is proper to extend time; any action taken by the applicant other than making an application for the relevant decision to be reviewed, which may bear upon the issue whether there is an acceptable explanation for the delay; any prejudice to the respondent; the merits of the substantial application and considerations of fairness as between the applicant and other persons otherwise in a like position.

35    Significantly, Wilcox J expressly stated that these matters were not exhaustive. This important point has also been emphasised in other cases, such as Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[36] per Griffiths J (Edmonds J agreeing) and approving what French J said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; 48 FCR 83 (Seiler) at 97. See also the helpful discussion by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [39]-[58]. I respectfully agree with Mortimer J’s observations at [58] that, while the statutory precondition in s 477(2) does not import any necessarily different set of factors to those which have been identified as being potentially relevant (in a permissive, rather than a mandatory, sense) in cases such as Hunter Valley, the breadth of the statutory phrase in s 477(2) “may afford a basis for other factors to be taken into account – such as the nature of the visa decision sought to be reviewed”. The primary judge erred in not appreciating the broader ambit of s 477(2).

36    If [24] of Markovic J’s reasons for judgment in SZNJG is read in isolation, it might suggest that the three matters set out therein are the only matters which her Honour considered were relevant to the exercise of the discretion under r 36.05 of the 2011 FCRs. But that would involve reading her Honour’s reasons for judgment too narrowly. Her Honour made abundantly clear in [25] that additional relevant considerations could arise. In doing so, her Honour made express reference to Mortimer J’s observations in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] and [6], where her Honour had said:

5.    The discretion to extend time is reposed in the Court to ensure that the interests of the administration of justice are served, and parties whose substantive appeals should be heard and determined in accordance with law are able to secure that outcome. Identifying which parties fall into that category requires analysis of the factual circumstances in each case. Sometimes, matters such as lack of legal representation, little or no proficiency in English, and little or no understanding of the Australian legal system may combine to suggest a delay is explicable. Other factors such as the length of the delay, the steps taken by an applicant during the running of the time period, and the time at which the applicant received a copy of the Court’s orders and reasons may be significant. The party’s personal circumstances may need to be considered. The importance of the subject matter of the proceeding to the party requesting an extension of time may also be relevant. The more there is at stake, the more confident the Court may need to be before it refuses an extension of time, especially if the delay is not significant. The manner in which a discretion such as this should be exercised cannot be answered by general statements about certain attributes or the circumstances of a party being insufficient.

6.    Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.

37    As mentioned above, the primary judge in the proceeding here expressly referred to what Markovic J said in SZNJG at both [24] and [25] of her Honour’s reasons for judgment. The three matters identified by Markovic J in SZNJG are relevant matters for the purposes of s 477, but that is not to say that they are the only matters which are relevant.

38    In the Court below, in his outline of written submissions, the applicant also drew the FCCA’s attention to Perry J’s judgment in BOA15 v Minister for Immigration and Border Protection [2016] FCA 214 (BOA15) and to her Honour’s statement at [19] that the considerations relevant to determining whether to grant an extension of time to seek leave to appeal from a decision of the FCCA included the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal. The applicant submitted below that Perry J’s reasoning applied equally to guide the FCCA’s determination of an application for an extension of time to challenge the IAA’s decision (see the applicant’s written outline dated 19 April 2018 at [12]).

39    In his oral address below, the applicant’s counsel handed up a copy of SZNJG and drew the Court’s attention specifically to [5] of Mortimer J’s decision in MZZIV and what her Honour said there regarding the relevance of the applicant’s personal circumstances, as well as the importance of the subject matter of the proceeding to the party requesting an extension of time being potentially relevant.

40    In his oral address below, the applicant’s counsel expressly relied upon the applicant’s unchallenged affidavit evidence that he had misunderstood the implications of the IAA’s decision and thought that it would automatically be referred to the FCCA, that there was a delay in receiving the IAA’s reasons for decision and that, when it was received, it was not reviewed by the applicant (because of his poor English). Nothing was said in oral address to suggest that the applicant did not continue to rely upon his evidence which was to the effect that he was told about the IAA’s decision not by his migration agent, but by a person who worked for the migration agent and whom the applicant thought might be an interpreter. This evidence was relevant to the weight which otherwise might attach to the fact that the applicant was represented at the time by a migration agent.

41    The applicant’s counsel then emphasised below that when the applicant received notice in mid-October of his imminent deportation, he took immediate steps to obtain legal advice and then promptly sought an extension of time. Although that application was made outside the time period specified in s 477 of the Act, it was within what the applicant’s counsel described as “the notional 35 day period” after which the applicant became aware of the need to make “a formal positive application” to the FCCA.

42    These were matters which could reasonably be described as relating to the applicant’s “personal circumstances” and fell within the range of potentially relevant circumstances as referred to by Mortimer J in MZZIV at [5]. They were also matters which had been specified by the applicant as to why he considered that it was necessary in the interests of the administration of justice to make the order (see s 477(2)(a)). Necessarily, therefore, they informed the issue presented by s 477(2)(b) as to whether the FCCA was satisfied that it was necessary in the interests of the administration of justice to extend time.

43    These matters, although relevant and relied upon by the applicant, were not addressed by the primary judge, as is evident from the limited analysis of the applicant’s contention at [42] of his Honour’s reasons for judgment which are set out in [17] above. It is open to infer that the primary judge did not regard these matters as having to be addressed by him. Although no explanation was given by his Honour for that view, it seems that this was because of the primary judge’s incomplete understanding of the breadth of the discretion under s 477(2). The applicant did not contend that these were mandatory relevant considerations and I make no such finding. Rather, the applicant contended that the primary judge’s failure squarely to address these matters, notwithstanding that they were put to him on the basis that they were relevant to the exercise of the discretion under s 477(2), confirmed that the primary judge adopted an unduly narrow construction of s 477(2). That submission should be accepted.

44    Not only did the primary judge fail to engage with the entirety of the applicant’s explanation for the delay, it is telling that the primary judge made no express reference to the actual terms of s 477(2); in particular, to the significance of the statutory benchmark there which focuses the Court’s attention on the questions of whether the applicant has stated why he considers that it was necessary in the interests of the administration of justice to extend time and whether the Court itself has the requisite satisfaction in relation to that matter. Instead, the primary judge applied the principles from cases such as SZNJG and MZZIV without any evident appreciation of the significance of the terms of that statutory phrase in s 477(2) of the Act.

45    The primary judge’s passing references at [1] and [50]-[51] of his Honour’s reasons for judgment to the application being an extension of time under s 477 evinces no appreciation of the statutory test to be applied under s 477(2) in determining such an application.

46    Although it is reasonable to expect that the FCCA “will set out with some accuracy the statutory basis for the powers that it is called on to exercise”, the failure to set out or adequately advert to the express terms of that statutory phrase is not necessarily fatal (see, for example, MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [39] and [59] per Mortimer J). In some cases the reasons for judgment may otherwise reveal that the primary judge sufficiently appreciated the terms and effect of a relevant statutory provision, but that is not the case here.

47    Nor do I consider that it may safely be inferred that a Judge of the FCCA would know these matters because of that Court’s heavy migration workload. The task of dealing with multiple migration cases serves to highlight the need for a primary judge to pause and reflect upon the significance of the immediate and relevant statutory framework within which judicial power is being exercised.

48    There is one other matter which might be noted concerning MZABP, aspects of which were relied upon by both the applicant and the Minister. The full terms of s 477(2) of the Act were set out by the primary judge in that case at [24]. In the primary judge’s detailed analysis of that provision in [38], [45], [52], [55] and [58] her Honour describes the statutory phrase simply by reference to the words “in the interests of the administration of justice”. In my respectful view, it is important to focus upon the terms of relevant statutory phrase in their entirety, including the fact that the phrase includes the term “necessary”. Neither party suggested that this omission casts any doubt on the correctness of the primary judge’s analysis in MZABP.

49    The Court raised with the parties the issue whether or not any error as raised by grounds 1 and 2 of the amended originating application, if established, would be a material error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34). That is because none of the judicial review grounds raised by the applicant is directed squarely at the primary judge’s findings that all three of his proposed grounds of appeal lacked sufficient merit to warrant time being extended. In other words, the question is whether those findings alone would sustain the primary judge’s decision to refuse an extension of time, independently of any error committed by the primary judge as raised by grounds 1 and 2 of the amended originating application in this Court.

50    In my respectful view, it cannot confidently be stated that the primary judge would have come to the same result if he had correctly understood and applied the statutory test under s 477(2). In particular, as Mortimer J noted in MZZIV at [5]-[6] (by reference to the notion of whether or not “the interests of the administration of justice are served”, as opposed to the substantially similar text in s 477(2)), the various matters which may arise for consideration in the exercise of the discretion may intersect. It is true, as her Honour acknowledged at [6] of her Honour’s reasons for judgment that, even where a Court is persuaded by reference to factors other than the merits of the proposed appeal that time should be extended, “the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised” (emphasis added). This is equally true where an extension of time is sought to bring a judicial review application (as opposed to an appeal).

51    The matter is more nuanced, however, than those passages might suggest, as Mortimer J explained in her subsequent observations in MZABP at [62]-[66]. In considering and determining an application for an extension of time, the Court is not required to conduct an exhaustive or detailed analysis of prospects. As the Minister acknowledged here, the task is carried out “at an impressionistic level” (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]). As Wigney J stated in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [82]-[85], a distinction can be drawn between an assessment that the prospects of grounds of review which are hopeless and destined to fail, as opposed to those which may be characterised as being weak. At [84], his Honour said that even where grounds are weak it will seldom be appropriate to refuse to extend time (to similar effect see Seiler at 98 per French J). An appeal from Wigney J’s decision was dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158. If the Court assesses the prospects as being hopeless or very low, it is unlikely that this will be outweighed by other matters which are in favour of time being expended. But those other considerations may tilt the balance in favour of time being extended even in a case where the Court assesses the prospects as being no better than weak.

52    As noted above, the primary judge described each of the proposed three grounds of judicial review as not “sufficiently” disclosing an arguable case on the merits to warrant an extension of time (see [21]-[24] above). His Honour did not say that the grounds were hopeless or entirely lacking in merit. Even if the primary judge assessed the prospects of the proposed grounds rose no higher or lower than being “weak”, it is possible that his Honour may have weighed matters differently if he had avoided the errors raised by grounds 1 and 2 of the amended originating application. In those circumstances, I do not consider that the errors can be described as immaterial.

53    Furthermore, and significantly, the primary judge himself stated at [43] of his reasons for judgment that “the real issue are (sic) the merits of the substantive application”. Necessarily, therefore, any error in respect of that matter has to be material.

54    For these reasons, grounds 1 and 2 of the amended originating application should be upheld.

55    As to ground 5, which relates to the adequacy of the reasons provided by the primary judge, the Minister’s counsel did not seek in his oral address to defend the reasons as being adequate. Rather, he was content to proceed on the basis of an assumption that the reasons were inadequate. His primary submission was that, on that assumption, any error of law would not be a jurisdictional error, citing BVW17 at [47] and [57] per Mortimer J.

56    In view of the applicant’s success under grounds 1 and 2, it is unnecessary to determine ground 5 and, in particular, whether or not the provision of inadequate reasons by an inferior court gives rise to jurisdictional error. That difficult issue is best left to be determined in a case where it is essential to do so.

57    As noted above, the applicant asked that any remitter go to another FCCA Judge. In some circumstances, such an order is appropriate (see, for example, COZ16 at [60] per Griffiths J). I am not satisfied, however, that there is a proper basis for such an order in this case. Nor do I consider that it is desirable, in the particular circumstances here, to require another Judge of the FCCA to discharge that Court’s duty of hearing and determining the applicant’s application for an extension of time according to law.

Conclusion

58    For these reasons, the originating application should be allowed and appropriate consequential orders should be made accordingly.

Associate:

Dated:    7 November 2018