FEDERAL COURT OF AUSTRALIA

EKU17 v Minister for Immigration and Border Protection [2019] FCA 782

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant has sought judicial review under s 39B of the Judiciary Act 1903 (Cth) of the decision of the Federal Circuit Court of Australia (“FCC”):

(a)    that s 477(1) of the Migration Act 1958 (Cth) (“the Act”) applied to an application for judicial review of a Protection Obligations Evaluation (“POE”) by an officer of the Department of Immigration (“the Department”); and

(b)    refusing the applicant’s application for an order under s 477(2) of the Act extending the time in which to make application to the FCC for judicial review of the POE of the applicant’s claims for a protection visa on the basis that the proposed judicial review application lacked merit.

2    By way of background, the applicant is a citizen of Iran. He arrived in Australia at Christmas Island by a boat without a visa in 2010 and made claims to engage Australia’s international protection obligations. By operation of s 46A of the Act, the applicant was prevented from making a valid application for a visa in Australia. Instead, in accordance with the policy at the time, the applicant’s claims for protection were dealt with through administrative processes known as the “Refugee Status Assessment” (“RSA”) in the first instance, and then the “Independent Merits Review” (“IMR”), with a view to informing the Minister’s potential exercise of his power under s 46A(2) of the Act to allow the applicant to make an application for a visa. In both instances, it was concluded that the applicant was not a person in respect of whom Australia had protection obligations. In 2013, the Federal Court made declarations that the decision of the IMR was not made according to law: MZYUL v Minister for Immigration and Citizenship [2013] FCA 584 (Bromberg J).

3    From the time of that judgment, more than two years passed before an assessment was made in respect of the applicant’s claims. On 26 August 2013 the applicant’s claims were allocated to be reassessed by an officer of the Department in lieu of an IMR (which position by that time no longer existed). In about March 2014, the applicant’s case was reallocated to another officer of the Department. On 14 May 2014, the applicant attended an interview before that officer. In May 2015, the applicant was advised that his case had been reallocated to a third officer of the Department and was provided with an opportunity to “make any further submissions to the Department”. In July 2015, the third officer concluded, by way of a POE, that the applicant was not a person in respect of whom Australia owed international protection obligations.

4    By an amended application dated 15 December 2017, more than two years after the POE, the applicant applied to the FCC for judicial review of the POE. In support the applicant filed an affidavit in which he provided the reasons for the delay in filing, including that he was unable to find pro bono assistance and he had been having difficulties with anxiety affecting his cognition and capacity to deal with the migration process.

5    Before the primary judge, the question was raised as to whether an extension of time was required under s 477 of the Act or whether no time limitation applied. In the course of the hearing of the application for an extension of time, the primary judge was asked to rule on whether s 477 of the Act applied, which the primary judge did unfavourably to the applicant, holding, on the authority of Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 (“SZSSJ”), that the POE was a “migration decision”. In published reasons (EKU17 v Minister for Immigration and Border Protection [2018] FCCA 2846), the primary judge concluded that the applicant did not have any reasonable excuse for the significant delay and, even if there was some reasonable excuse, the proposed application lacked merit. Accordingly, the primary judge dismissed the application for an extension of time.

6    The applicant seeks judicial review of the FCC decision. It is claimed that the FCC decision is affected by jurisdictional error:

(a)    first, on the basis that the FCC failed to follow binding Full Federal Court authority to the effect that s 477(1) did not apply to the applicant’s application for judicial review of the POE and thereby failed to exercise its jurisdiction under s 476 of the Act; and

(b)    secondly, on the basis that the primary judge applied the incorrect test to the exercise of his discretion under s 477(2).

Legislative scheme

7    Relevantly, pursuant to s 46A(1) of the Act, the applicant, as an “unauthorised maritime arrival” cannot make an application for a protection visa unless the Minister determines that s 46A(1) does not apply to an application by that person. The Minister can exercise that power if “the Minister thinks that it is in the public interest to do so”: s 46A(2). Section 46A relevantly provides:

(1)      An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)      is in Australia; and

(b)      either:

    (i)      is an unlawful non-citizen; or

(ii)      holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

…

(2)      If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

8    Part 8 Div 1 of the Act contains provisions which regulate the jurisdiction of the FCC and the Federal Court to review certain decisions under the Act. By force of s 474(1) a “privative clause decision” is final and cannot be challenged in any court.

9    Section 474(2) provides that a “privative clause decision” means:

(2)      In this section:

"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

10    Section 474(3) relevantly provides that in s 474, a reference to a decision includes a reference to:

…

   (d)      imposing, or refusing to remove, a condition or restriction;

…

(h)      conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

…

11    By force of s 476(1) of the Act, the FCC has the same original jurisdiction in relation to “migration decisions” as the High Court has under s 75(V) of the Constitution.

12    By s 5(1) of the Act, “migration decision” means, relevantly:

(a)    a privative clause decision; or

(b)    a purported privative clause decision;

…

13    Section 477 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.

…

Case law

14    In SZQDZ v Minister for Immigration (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”), the Full Federal Court (Keane CJ, Rares and Perram JJ) held that a decision of the IMR was not a “migration decision” for the purposes of s 477 of the Act and accordingly the section did not apply to the time by which an application may be made to seek judicial review of an IMR recommendation. SZQDZ concerned five applicants from Afghanistan who had each received adverse recommendations about their refugee status from an IMR. Each applicant commenced judicial review proceedings seeking an injunction restraining the Minister from relying upon relevant adverse recommendations and declarations that those recommendations had not been made according to law. Each of the proceedings commenced more than 35 days after the date of the relevant recommendations. In the Federal Magistrates Court (as the FCC then was), the applicants sought an extension of time under s 477(2) of the Act but were unsuccessful. The applicants then sought leave to appeal to the Federal Court. Two substantive questions were raised for consideration by the Full Court:

(a)    first, whether the 35 day time limit within which proceedings in the Federal Magistrates Court must be commenced in relation to a migration decision applied to an application to restrain the making of a decision yet to be made by the Minister under s 46A(2) of the Act; and

(b)    secondly, whether the Federal Court had jurisdiction to hear an appeal from a decision of the Federal Magistrates Court by which it determined that the 35 day time limit did apply and dismissed the proceedings as a result.

The Full Court held “no” to the first question and determined that it was not necessary to answer the second question.

15    As to the first question, the Court reasoned that the migration decisions to which s 477(1) and (3) are directed are those which have already occurred. The Court reasoned at [27] that:

This is necessarily implicit in the concept of the 35 day period in s 477(1) and the assumption in s 477(3) that there exists, at the time to which s 477(1) and (3) are speaking, something which can be meaningfully described as a decision. Consequently, the ordinary language of s 477(1) leads to the conclusion that the time limit imposed by that provision does not apply to an application in which quia timet injunctive relief is sought against administrative action lying, as yet, in the future.

The Full Court then considered whether the IMR’s assessment and recommendation was a “migration decision” to which the 35 day time bar applied and held that it was not because it was not a “decision” for the purposes of the Act at all. The Court reasoned at [34] that the Minister, as the only person with power to make a decision under ss 46A and 195A, is not bound by anything in the reviewer’s assessment or recommendation and had no obligation to exercise the powers under those sections, nor to take the reviewer’s assessment or recommendation into account in deciding whether, and if so how, to exercise those powers – “[i]n other words, the Minister is entitled to make, or not make, a decision regardless of the reviewer’s assessment or recommendation”. The Court continued at [39] and [43]:

… A reviewer’s assessment and recommendation have no statutory or other legal force.  They came into existence because the Minister sought that information to inform his consideration of the exercise of his powers.  The Minister was not bound to act on the assessment or recommendation; he did not even have to take them into account at any stage of his consideration, and he did not have to make a decision even if the recommendations had been favourable to the applicants.  A reviewer’s assessment and recommendation cannot be characterised as “a decision of an administrative character made or proposed to be made…under [the] Act” within the meaning of s 474(2) of the Act.

…

The important point for present purposes is that it would be an odd result if serial challenges were available in respect of every step in the processes leading to a decision under s 46A, where those processes had no legal force. To conclude that each such step is deemed to be a privative clause decision by an expansive construction of s 474(3)(h) would be to ignore its absence of legal effect and would not serve any useful purpose. The Minister’s reliance on s 474(3)(h) as supporting his argument that the reviewer’s assessment and recommendation amounted to a privative clause decision must be rejected.

The Full Court concluded at [46]:

… because the Minister has not yet made any decision and, as Plaintiff M61 decided at [77], need not take account of the assessments and recommendations, the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to be made by the Minister and will be in the future. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2).

16    The correctness of the Full Court’s decision has not been doubted by any subsequent Full Court of the Federal Court: MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541; [2012] FCAFC 99 at [10] (Flick and Jagot JJ); Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [201]-[208], [330] (Lander and Gordon JJ); SZQDZ v Minister for Immigration and Border Protection [2014] FCAFC 12 (Tracey, Flick and Robertson JJ); SZQGT v Minister for Immigration and Border Protection [2014] FCAFC 13 (Tracey, Flick and Robertson JJ); SZQER v Minister for Immigration and Border Protection [2014] FCAFC 14 (Tracey, Flick and Robertson JJ).

17    All those cases pre-dated the High Court decision in SZSSJ. One of the issues in SZSSJ was whether s 476(2)(d) of the Act excluded the jurisdiction of the FCC in a matter in which the relief sought was founded in a claim that an officer of the Department had failed to observe an implied limitation on his or her statutory power in holding an inquiry or conducting an investigation to inform the Minister as to the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, after the Minister had made a personal procedural decision to consider the exercise of those powers. Under the statutory scheme considered by the High Court, a statutory process known as the International Treaties Obligations Assessments (“ITOA”), an administrative process undertaken by the Department of Immigration, assessed the implications of a “data breach”, the result of which was the online leak of personal details of visa applicants. Specifically, the ITOA assessed Australia’s international obligations under international human rights treaties in respect of individual visa applicants affected by the data breach with a view to informing the Minister’s possible future exercise of power under ss 48B, 195A and 417 of the Act. The applicants claimed that procedural fairness applied to the ITOA process and that procedural fairness had not been afforded to them because the process had not been adequately explained and because they had not been given an unabridged version of the external consultants’ report on the data breach. At [66], the High Court in a joint judgment (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) held that subject to s 476(2)(d), the claims to declaratory and injunctive relief made by the applicants engaged the jurisdiction of the FCC under s 476(1). The High Court reasoned:

That was because, the Minister having made a procedural decision to consider whether to grant a visa or to lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, the conduct of an ITOA by an officer of the Department met the definition of a “privative clause decision” in s 474(2). The conduct of the officer met that definition by reason of the extended definition of “decision” in s 474(3)(h). The conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister – specifically, it is the holding of an inquiry or investigation.

The first ground

18    In issue is whether SZSSJ has overruled SZQDZ.

19    The applicant acknowledged that the High Court’s reasoning in SZSSJ to reach the conclusion that an ITOA was a migration decision is inconsistent with the reasoning of the Full Court in SZQDZ which led it to conclude that an IMR is not a migration decision but argued that SZSSJ did not overrule SZQDZ, noting that the High Court did not refer to SZQDZ or consider the specific provisions of the Act with which SZQDZ was concerned. The issue though, is whether the ratio decidendi of the decision in SZSSJ can be taken to have impliedly overruled SZQDZ and, for the following reasons, I am of the view that the FCC was correct to conclude that SZSSJ has impliedly overruled SZQDZ.

20    The issue addressed by the High Court in SZSSJ was the FCC’s jurisdiction conferred by s 476(1) in relation to a “migration decision”: see [63]-[64]. In that case, whether the FCC had jurisdiction to hear and determine the applications for the relief claimed by the applicants depended on the characterisation of the IOTA process and whether such process was a “privative clause decision or purported privative clause decision mentioned in s 474(7)”. The High Court, by parity of reasoning with its earlier decisions in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (“M61/2010E”) and Plaintiff S10/2011 v The Commonwealth (2012) 246 CLR 636; [2012] HCA 31, concluded that the IOTA process was properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and s 417 of the Act: see [41]-[57]. Relevantly, in M61/2010E the High Court had addressed the characterisation of the RSA and IMR processes for the purposes of ss 46A and 195A and concluded that because those processes were conducted for the purpose of the Minister deciding in a particular case whether to permit an unauthorised maritime arrival to make application for a protection visa (s 46A), or to grant a visa (s 195A), those processes were steps taken under and for the purposes of the Act and conditioned by a requirement by those conducting the processes to afford procedural fairness.

21    Having concluded that the IOTA process was properly characterised as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act, the High Court in SZSSJ stated at [57] that “the same characterisation also inform[ed] the resolution of the issue whether the [FCC] had jurisdiction”. First, the High Court reasoned at [60]-[61] that the conferral of the statutory jurisdiction of the FCC by s 476 “in relation to a migration decision” was in a statutory context in which a “migration decision” was defined by s 5(1) of the Act to include a “privative clause decision” or a “purported privative clause decision”. Secondly, the Court at [63]-[65] had regard to s 474(2) which defines “privative clause decision” for the purposes of s 476 to mean “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act". Thirdly, the Court at [66] held that the conduct of an ITOA by an officer of the Department was conduct under the Act preparatory to the making of a substantive decision by the Minister in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, and, by reason s 474(3)(h), the conduct of an ITOA by an officer of the Department met the definition of a "privative clause decision" in s 474(2). Having so concluded, the High Court then went on to consider whether the FCC’s jurisdiction in that case was excluded by s 476(2)(d) (which is not applicable in the present case).

22    The reasoning is directly applicable in the present case in relation to the question of whether the POE process (which has since replaced the IMR process) for the purposes of ss 46A and 195A is a “privative clause decision” and, thus, is binding authority on the FCC both that the FCC has jurisdiction under s 476 to hear and determine an application for a constitutional writ remedy in respect of a POE and that the time limit prescribed by s 477(1) in which to bring such application applies. In this regard I note that the applicant eschewed any relevant distinction between the IMR process and the POE process, submitting that a POE is “substantially identical to the IMR”.

23    The applicant also relied on Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200; [1966] HCA 67 (“Jacob”) in support of his submission that SZQDZ remains good law. However, this case does not assist the applicant. In that case the Court considered the validity of r 73(2) of the Scaffolding and Lifts Regulations made pursuant to the Scaffolding and Lifts Act 1912 (NSW). A previous decision of the High Court had upheld its validity but the New South Wales Court of Appeal nonetheless held that the regulation was invalid based on a later decision of the Privy Council involving regulations in another jurisdiction in similar terms. The High Court held that the Court of Appeal should have followed the earlier High Court decision. Barwick CJ (with whom McTiernan, Taylor and Owen JJ relevantly agreed at 217) said at 207:

It is not, in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. If the decision of this Court is to be overruled, it must be by the Judicial Committee, or by this Court itself. It cannot be treated by a Supreme Court as if it were overruled. The matter is, of course, different where this Court's decision is not precisely in point and comparison has to be made merely between two lines of reasoning…

Jacob is distinguishable. The difference in this case is that the ratio decidendi of SZSSJ is binding authority on all lower courts and, if I am correct that the ratio decidendi of SZSSJ has impliedly overruled SZQDZ, the FCC must apply SZSSJ. For this reason, Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 and Attorney General for the State of South Australia v Bell (2013) 117 SASR 482; [2013] SASFC 88 (Kelly, Blue and Nicholson JJ), upon which the applicant further relied, are also distinguishable.

The second ground

24    The applicant alternatively argued that the decision of the FCC was affected by jurisdictional error in that the Court applied the incorrect test to the exercise of its discretion under s 477(2) of the Act. The FCC refused the application for an extension of time under s 477(2), holding that:

(a)    there was not a reasonable excuse for the significant delay in the applicant bringing his application (which was two years and three months); and

(b)    the FCC was not satisfied that the proposed grounds had merit.

25    The applicant only challenges the FCC’s consideration of the second proposed ground. The proposed ground was in the following terms:

2.     The assessor fell into jurisdictional error in failing to provide procedural fairness and/or unreasonable in the legal sense.

a.     The applicant attended a protection obligations evaluation interview on 14 May 2014;

b.     On 1 May 2015 the applicant was notified that there was a change of case officer;

c.     The new case officer made a decision not to interview the applicant and instead gave the applicant an opportunity to comment on relevant information relating to:

i.     Claimed ‘abandonment of Islamic religious practice’; and

ii.     Website disclosure and return as a failed asylum seeker.

d.     The failure of the first case officer to exercise jurisdiction and make a timely decision after the 14 May 2014 interview has caused the decision making process to be procedurally unfair. This has been further compounded by the second case officer failing to interview the applicant and put all her findings in writing to the applicant to comment thereby causing a constructive failure to exercise jurisdiction. The applicant has been denied the proper opportunity to present his case.

26    The primary judge dealt with the prospects of success of that proposed ground at [6]-[11] as follows:

[6]     The second ground relies upon the fact that on 1 May 2015 there was a change of officers within the Department of Immigration who was to determine the assessment of protection obligations which was different from the officer who had interviewed the applicant on 14 May 2014.

[7]     In similar circumstances, the High Court in the Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 held that there had been a denial of procedural fairness. However, there are significant differences in the circumstances of this case. In WZARH there was no notice given to the applicant that the person who was to make the decision was not the person who had conducted the interview, and therefore the applicant, or respondent in the High Court, never had the opportunity to make any submissions as to whether or not the advantage that the interviewer had in seeing the applicant ought also to have been held by the decision-maker by, for example, holding a further interview.

[8]     The Court accepted that the respondent in that case was, and most people are generally not, entitled to insist upon the observance of a particular form of decision making process. However, the Court found that it was the denial of the opportunity to at least say whether the advantage that I have referred to ought to be taken into account that was said to constitute the denial of procedural fairness.

[9]     In this case in the letter dated 1 May 2015 (from the second respondent who ended up making the decision but who had not been the interviewer), the applicant was told that “…an officer other than the person who conducted that interview will now be deciding your application for a Protection visa”. Leaving aside the inaccuracy perhaps of the reference to “application for protection visa”, the letter continued “[t]he Officer making the assessment may make that assessment without further contact with you” and suggested that if the applicant wished to make any further submissions to the Department, he was invited to do so in accordance within the 28 day timeframe. In my view, that is important because it put the applicant clearly enough on notice that there was to be a different decision-maker, and thereby providing the applicant with the reasonable opportunity to make the submissions that he ought to be given a further interview with that decision-maker.

[10]     Although this is not decisive, I note that the applicant was at that time, and continued to be, represented by migration agents and could reasonably be expected to have obtained advice about what course to take from those agents. The agents in fact made submissions on 2 June 2015 but did not suggest that the applicant ought to be given a further opportunity for an interview given the change of personnel involved in the decision making process.

[11]     Those circumstances distinguished this case from that in WZARH and, in my view, establish that there was no denial of procedural fairness. Considering the matter at a preliminary level sufficient for the purposes of determination of whether there be an adjournment of the proceedings to allow the applicant to obtain further evidence, and further taking into account the difficult situation which Counsel for the applicant faces today in not having an instructing solicitor, and indeed not having, which I accept, met or conferred with the applicant personally, I do not see that it is in the interests of the administration of justice to allow the adjournment.

27    It was submitted that the FCC’s exercise of discretion under s 477(2) miscarried by reason that the FCC went beyond an examination of the ground at “a reasonably impressionistic level”. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (“MZABP”), Mortimer J stated at [62]–[63]:

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) 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).

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 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.

Mortimer J’s approach was approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ).

28    It was submitted that the FCC’s consideration of the merits of proposed ground 2 in the present case travelled beyond what was appropriate because it involved a detailed factual analysis not appropriately conducted through the summary processes under s 477(2) of the Act. First, it was submitted that in concluding that the applicant’s case was distinguishable from the circumstances of Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 (“WZARH”), which had been relied on by the applicant in aid of that ground, the FCC engaged in “fine factual analysis” including by:

(a)    noting at [7] that the applicant in WZARH was not extended an opportunity to make a submission on the change of decision-maker;

(b)    noting at [8] that it was this denial of opportunity which the High Court considered to be a denial of procedural fairness in WZARH;

(c)    finding at [9] that, by the letter of 1 May 2015, the applicant was on notice that there would be a change of decision-maker and that the applicant was afforded an opportunity to make submissions in relation to the change of decision-maker; and

(d)    finding at [10] that the applicant was represented by a migration agent through the POE process.

29    Secondly, it was submitted that having distinguished WZARH, the primary judge concluded at [11] that there was “no denial of procedural fairness”. It was submitted that to reach that conclusion necessarily involved an inappropriately detailed consideration by the FCC of the circumstances of this case. It was submitted that the factual analysis that the FCC was required to undertake to reach its conclusions at [11] support the inference that the primary judge determined the applicant’s proposed ground 2 on a final and not summary basis and so did more than consider whether the proposed ground was on its face “arguable”, “reasonably arguable”, “sufficiently arguable” or “has reasonable prospects of success”.

30    I do not accept that the FCC applied an incorrect test in relation to the extension of time question. In considering an application for an extension of time, the merits of the proposed application are plainly relevant: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). As Mortimer J observed in MZABP, it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects. In the present case, consideration of the proposed ground to determine whether it had some merit required the FCC to engage with the facts sufficiently to consider whether the facts of WZARH may be distinguishable and the reasons themselves disclose that was the task which the FCC undertook to ascertain whether the ground had any substance. Once the points of distinction were identified by the FCC, it was open to the FCC to hold that the prospects of success on the proposed ground were not such as to warrant an extension of time. Although the primary judge at [11] expressed his conclusion in terms that the distinguishing facts “establish[ed] that there was no denial of procedural fairness”, reading the judgment as a whole it is sufficiently clear in my view that the FCC correctly confined itself to the more limited question as to whether the ground disclosed an arguable or sufficiently arguable case to justify the extension of time and formed the conclusion that it did not at “a reasonably impressionistic level”, rather than applying an impermissibly high threshold.

31    First, it is apparent from the primary judge’s consideration of the first proposed ground that his Honour did not misapprehend the test to apply. In relation to the first proposed ground 1, his Honour was of the view that the proposed ground had “little merit”, without deciding conclusively whether it did, or did not. Secondly, on a fair reading of [11], the primary judge reached his conclusion on proposed ground 2 by “considering the matter at a preliminary level”. Paragraph [11] must also be read in conjunction with [15] in which his Honour concluded that even if there were a reasonable excuse for the delay, “the lack of merit…would have outweighed that” so that his Honour was not satisfied that it was necessarily in the interests of the administration of justice to make an order extending the time. Thirdly, the approach of the primary judge is also apparent from [3] where his Honour noted that even if there was a reasonable explanation for the delay in bringing the application, he did not think there would be “sufficient merits” to warrant granting an extension of time under s 477(2).

32    Further, it is also apparent that the “lack of merit” was not the only ground upon which the FCC concluded that an extension of time was not warranted. At [14] the primary judge said that the applicant did not have a reasonable excuse for the delay (which was two years and three months) in bringing the application. At [15], the primary judge also said that:

… even if I did consider that there were a reasonable excuse for the delay, the lack of merit, in my view, would have outweighed that, so that I am not satisfied that it is necessarily in the interests of the administration of justice to make an order under s 477(2) extending the period for making an application for orders in respect of a decision dated 7 July 2015.

33    As appears from those reasons, the view taken by the primary judge that the applicant did not have a reasonable excuse for the length of delay was a significant factor in the primary judge’s conclusion that it was not in the interests of the administration of justice that there be an extension of time.

34    The application should accordingly be dismissed.

Associate:    

Dated:    30 May 2019