FEDERAL COURT OF AUSTRALIA

Huynh v Federal Circuit Court of Australia [2019] FCA 891

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision of the Federal Circuit Court made on 6 December 2018 in PEG157/2018 be set aside.

3.    The matter be remitted to the Federal Circuit Court, differently constituted, for determination according to law.

4.    The second respondent do pay the applicants' costs to be fixed by way of lump sum if not agreed.

5.    If it is necessary to fix costs then:

(a)    the applicants may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the second respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Hong Diep Huynh applied for a spousal visa in 2016. Her three children were secondary applicants. The applications were refused. A review was sought in the Administrative Appeals Tribunal. On 13 December 2017, the Tribunal affirmed the decision to refuse the applications.

2    There is a statutory right to seek judicial review of the Tribunal's decision in the Federal Circuit Court. The time limit specified in the Migration Act 1958 (Cth) for bringing the review application is 35 days: s 477(1). About 70 days out of time, Ms Huynh and her children brought an application for an extension of time in which to seek judicial review. The Federal Circuit Court may extend the period as it 'considers appropriate' if an application is brought specifying why the applicant considers it to be in the interests of justice for there to be an extension and the Court is satisfied that 'it is necessary in the interests of the administration of justice' for the order to be made: s 477(2).

3    Ms Huynh's application for an extension was supported by an affidavit. It said that she did not have a migration representative at the hearing in the Tribunal and she 'felt quite overwhelmed and did not understand some of the questions'. She said that she asked for an extension and the Tribunal gave an extension and after that she expected a letter but there was no letter so she just kept waiting.

4    It is common ground that the Tribunal sent a letter the day after the hearing inviting Ms Huynh to comment on certain matters relevant to the review, specifying 12 October 2017 for a response. The letter was sent to an address in Darch, a suburb of Perth in Western Australia. The Darch address was the address formally notified to the Tribunal for communications with the applicants. However, in the course of the Tribunal hearing, Ms Huynh had informed the Tribunal that she had moved to a new address. On 9 October 2017, Ms Huynh responded to the letter asking for an extension of four weeks to respond. The affidavit of Ms Huynh did not refer to these events.

5    The request for an extension was declined. A letter to that effect was sent by the Tribunal to the Darch address. The Tribunal proceeded to make its decision. Notification of the decision dated 13 December 2017 and the Tribunal's reasons were also sent to the Darch address.

6    In her affidavit, Ms Huynh said that she first received a copy of the decision on 23 March 2018 when lawyers acting on her behalf requested it urgently.

7    On 29 November 2018, Ms Huynh provided a further affidavit in which she said she could not remember how she received the September 2017 letter from the Tribunal. Ms Huynh deposed that she definitely had not received the Tribunal decision until late March 2018. She said she had moved address before the time of the Tribunal hearing, as she had told the Tribunal. She said that she cannot read or write and she thought it was enough to tell the Tribunal of her new address.

8    Therefore, it was plain from the short affidavit material filed in support of the application for an extension of time that Ms Huynh claimed that she had not received notification of the decision of the Tribunal until March 2018 because it had been sent to her former address even though she had told the Tribunal at the hearing of her new address. Her evidence was to the effect that she had delayed in bringing the application for review as a result of not in fact receiving notification.

9    A transcript of the hearing before the Tribunal shows that Ms Huynh was asked at that time about where she was living and she said she was renting in Girrawheen. The transcript then indicates that by reference to a drivers licence a specific address was given in Southern River (a suburb that is a considerable distance from Girrawheen) and a series of questions were asked about how long Ms Huynh had been living at that address. So, it appears that a different address to the Darch address was notified to the Tribunal at the time of the hearing as the place where Ms Huynh was then living.

10    It was not suggested for the applicants that there was any change to the formal address for service of documents notified to the Tribunal which remained as the Darch address. No claim was raised for the applicants about the effectiveness of the notification of the decision and reasons by delivery to the Darch address. However, the affidavit from Ms Huynh in support of the application for an extension of time is expressed in terms that indicate that the overwhelming nature of the process and a lack of understanding by reason of her inability to read and write were advanced as contextual matters in which to consider her failure to receive notice of the decision and the reasons of the Tribunal by reason of her change of address.

11    In the Federal Circuit Court, the primary judge described the explanation advanced by Ms Huynh in support of her application for an extension of time as 'suggesting that she was overwhelmed and this delayed the first applicant's seeking of assistance in respect of pursuing the application': Huynh v Minister for Immigration and Border Protection [2018] FCCA 3612 at [2]. This explanation was described by the primary judge as being 'on its face … unsatisfactory'. The evidence concerning the change in address and the failure to receive notification of the Tribunal's determination was not considered. The primary judge also noted that no particular prejudice or specific prejudice was alleged by the Minister.

12    The primary judge stated correctly that in determining whether time should be extended 'the Court is engaging in a preliminary assessment and must take into account that if time is not extended, the applicants have no right of appeal'. The primary judge considered the single proposed ground of review which was to the effect that the Tribunal failed to refer to the issue of joint responsibility for the care and support of children or the material before the Tribunal that related to that issue. Its failure to do so was said by the applicants to be a failure to consider a matter that the Tribunal was required to consider because reg 1.15A of the Migration Regulations 1994 (Cth) provided that the Minister must consider 'all of the circumstances of the relationship, including the matters set out in subregulation (3)'. The matters set out in that subregulation included 'any joint responsibility for the care and support of children'.

13    As to the merits, the primary judge found 'on a preliminary assessment' that there was 'no reasonably arguable ground that the Tribunal failed to take into account the evidence concerning the children' and, on that basis held that: 'The Court is not satisfied that the merits of the application warrant an extension of time in the administration of justice'. Then at [11]-[12], the primary judge concluded his reasons in the following terms:

The proposed ground identified in the amended application lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice. Taken together with the inadequate explanation for the delay and the lack of sufficient merit, the Court is not satisfied it is necessary in the interests of the administration of justice to extend time under s 477 of the Act as being.

Accordingly, the application for an extension of time under s 477 of the Act is dismissed.

14    Expressed in those terms, the reasons indicate that the primary judge decided to refuse the application for an extension after weighing what was found to be an inadequate explanation for the delay and the lack of sufficient merit. The primary judge did not find that the proposed ground of review was hopeless. Rather, the lack of sufficient merit together with what was seen to be an inadequate explanation for delay was the reason why the application for an extension was refused.

15    No appeal lies to this Court from a decision of the Federal Circuit Court to make or refuse an order under s 477(2): s 476A(3)(a).

16    In the above circumstances, Ms Huynh sought judicial review in this Court of the decision by the primary judge under s 39B of the Judiciary Act 1903 (Cth). The jurisdiction conferred by s 39B applies to a decision by a Federal Circuit Court judge to refuse to extend time under s 477(2): SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 and MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158.

17    Four grounds were advanced in support of the application. They were to the following effect:

(1)    there was a failure by the primary judge to consider the most important aspect of the evidence explaining the reasons for seeking an extension of time, namely the change in address and the failure to receive notice of the Tribunal's determination, which meant that the decision was legally unreasonable;

(2)    the primary judge misapprehended the nature or limits of the discretion by undertaking a consideration of the substantive merits of the application rather than simply considering whether the proposed grounds were reasonably arguable;

(3)    it should be inferred from the result, in context, that the primary judge misapprehended the nature and limits of the discretion to grant an extension; and

(4)    even if it is only demonstrated that there was error within jurisdiction by the primary judge then the decision operated as an unlawful pre-condition to the exercise of the review jurisdiction conferred by s 476.

18    In the course of oral argument, ground 1 was developed to include a claim of jurisdictional error by reason that the primary judge failed to perform the required statutory task because the main explanation for delay (namely, not receiving notification of the determination and the reasons of the Tribunal for its determination because of a change in address that had been informally communicated to the Tribunal) was not dealt with by the primary judge.

19    Grounds 2, 3 and 4 were dealt with together and were explained as making a claim that there was an error of the kind found by Charlesworth J in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139; (2016) 244 FCR 401. Put in general terms, as to grounds 2, 3 and 4 it was alleged that there was reviewable error because the primary judge had dealt with the merits of the proposed ground of review when the guidance from the Federal Court as to the proper approach was to evaluate the merits at a reasonably impressionistic level when considering whether to make an order extending time under s 477. The character of that guidance was summarised by Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6] as follows:

However, as I have noted elsewhere (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62]), it is critical to the proper exercise of the discretion in these circumstances that the Court not proceed as if the application is a final hearing of the judicial review proceeding. The Court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for the discretion to be exercised in favour of the applicant.

The threshold is whether a ground of review is 'arguable'. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is 'arguable', the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English.

20    For the following reasons, ground 1 of the application should be upheld and relief should be granted setting aside the decision of the Federal Circuit Court. The other grounds have not been established.

Principles applicable to Ground 1

21    Ground 1 complains about a failure to consider what is characterised as the most important part of the explanation given by Ms Huynh for her delay in seeking relief in the Federal Circuit Court. It is said that the failure to consider that matter meant that the exercise of the discretionary power to extend time under s 477(2) was unreasonable (and therefore beyond the authority conferred) or otherwise indicated a failure by the primary judge to perform the statutory task of undertaking a judicial evaluation of the material presented in support of an application seeking the exercise of the power to extend time.

22    The submissions for the Minister emphasised the distinction between the circumstances that give rise to jurisdictional error in the decision of an administrative tribunal and the decision of an inferior court, relying on the decisions in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 and Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531. The submissions questioned whether there could be review for unreasonableness of the exercise of a judicial power (whilst maintaining that there was no unreasonableness in the decision of the primary judge in any event).

23    In Kirk, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [73] cautioned that the reasoning in Craig was not to be seen as a rigid taxonomy of jurisdictional error. It was emphasised that the errors described in Craig were examples only of what is jurisdictional error by an inferior court and were 'not to be taken as marking the boundaries of the relevant field'. Nevertheless, in so doing, their Honours confirmed that instances where an inferior court mistakenly asserts or denies the existence of jurisdiction or misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist were examples of jurisdictional error. It was not suggested that the distinction between cases where a jurisdiction was entrusted to an administrative decision-maker compared to a court as described in Craig was no longer of relevance. However, in all cases whether and when the decision of an inferior court or other decision-maker should be treated as immune from review for error of law 'cannot be determined without regard to a wider statutory and constitutional context': at [86].

24    It is not the case that a particular type of error can be said to be a jurisdictional error in all cases. 'The question of whether an error is jurisdictional is, and always will be, context-specific': SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20]-[21] (Allsop CJ). Where the power is statutory, there must be close regard to the terms of the statute and the character of the repository in determining the nature and extent of the decision-making authority conferred by the statute and consequently whether there has been conduct of the repository by which that authority has been exceeded.

25    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 the emphasis was upon a close examination of the particular statutory provision conferring the power being exercised by the repository when considering whether there had been jurisdictional error. Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': at [24]. Their Honours then described the principle by reference to the analysis by Professor Jaffe in 'Judicial Review: Constitutional and Jurisdictional Fact' (1957) 70 Harvard Law Review 953 and by Selway J in 'The Principle Behind Common Law Judicial Review of Administrative Action - The Search Continues' (2002) 30 Federal Law Review 217 in the following terms:

To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately 'a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised.'

See also: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23].

26    Part of the process of considering the nature of the acts that are authorised by a particular statutory provision is to consider the nature of the repository of the power. Courts are generally recognised as exercising a power to decide controversies between subjects or between the State and its subjects by giving binding and authoritative decisions, subject to any constitutional or statutory rights of appeal. To confer a power to decide a matter upon a court is to confer a power that is judicial in character. Indeed, there may be constitutional consequences if the power that Parliament seeks to confer upon a federal court is not of that character. Even so, there is no Australian court with unlimited jurisdiction and prerogative relief may be granted if a judgment or order is made that is outside jurisdiction: State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 at [30]-[37] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

27    It follows that it is important to focus upon both the statutory provision conferring the power and the nature of the repository of the power in considering the extent of the authority conferred by the statute upon the particular repository.

28    In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [73]-[78], Gageler J explained the existence of a common law presumption of statutory interpretation 'that a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made' (emphasis added). The presumption was to be applied in construing the nature and extent of the power to decide or determine that is conferred by statute upon a repository of power other than a court. Implicitly, the qualifying words 'other than a court' indicate that the same presumption does not arise where the statute confers decision-making authority upon a court. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ noted that 'inferior courts or tribunals exercise their powers under the supervision of the superior courts in accordance with the law as expounded by and applied by those courts': at [33]. Plainly, the decisions of inferior courts may be reviewed for jurisdictional error. However, the issues in Probuild did not require consideration of the extent to which an inferior court's decision may be reviewed for jurisdictional error on the basis of unreasonableness given its authority to determine the law to be applied to a matter that was otherwise within its jurisdiction (and, as a result, make a non-jurisdictional error of law).

29    Recent High Court decisions have dealt with unreasonableness as a basis for review of an administrative decision. As I noted in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 at [72], the following propositions may be taken from the recent decision of the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30:

(1)    statutory discretionary powers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law (at [4], [53], [59], [80], [88], [131]);

(2)    the standard applies 'usually' and is subject to the possibility that a higher standard may be expressly required (at [53], [131]);

(3)    a decision which lacks an evident and intelligible justification is unreasonable (at [10], [82]);

(4)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances (at [10], [59], [82], [89], [133]);

(5)    where review is sought on unreasonableness grounds the Court must not stray into evaluating for itself how it might exercise the discretion entrusted by statute to the decision maker. For that reason, the test for unreasonableness may be described as 'necessarily stringent' at [11] (Kiefel CJ), 'extremely confined' at [52] (Gageler J, adopting the language of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1), in 'the realm of the extraordinary' at [70] (Gageler J) or as being expressed in 'strong terms' at [135] (Edelman J);

(6)    on appeal in a case where review of a decision is sought on the basis that it is unreasonable in result, the Court must form its own view as to whether the decision is reasonable rather than defer to the evaluation of the primary judge (such as might be the case where a discretionary judgment is involved). The question is a legal one which admits of only one correct answer (recognising that the character of the evaluation to be undertaken may mean that reasonable minds might differ as to whether a particular decision is reviewable for unreasonableness) (at [17]-[18], [54]-[56], [85]-[87], [154]-[155]).

30    Recently, in Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 424 at [18], Allsop CJ summarised the nature of the task to be undertaken where a claim is made that a decision is reviewable for legal unreasonableness in the following terms:

… the task begins with understanding the statutory requirements and examining the error that has been made to see whether in its context it is sufficiently grave as to warrant the conclusion that the authority and the source of the power, the jurisdiction, has not in law been exercised.

31    Where, as here, there is conferral by statute of jurisdiction on a court, issues arise as to whether, in undertaking the task of statutory construction and understanding the statutory requirements: (a) the same presumption arises as has been recognised in the case of statutes that confer power on administrative decision-makers to the effect that the power is to be exercised reasonably; and (b) if so, to what extent can jurisdictional error in the exercise of such a power be demonstrated by reference to conduct that might be characterised an unreasonable exercise of the power by a court. In one sense, an exercise of judicial power may be expected to conform with a degree of keenness and closeness to a characteristic of reasonableness. In another sense, the nature and extent of the authority associated with a judicial exercise of power limits the scope for review on the basis of jurisdictional error as recognised by the decisions in Craig and Kirk. While an error may be jurisdictional when committed by an administrative decision-maker, the same error in a judicial context may not be jurisdictional: SZUWX at [20] (Allsop CJ).

32    The question whether a decision which is legally unreasonable can be characterised as a jurisdictional error when it appears in the reasoning of a court exercising judicial power was left open by Mortimer J at first instance in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [76]. It was again found to be an issue that did not need to be decided in her Honour's later decision in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [83]-[86].

33    An application under s 39B of the Judiciary Act to review a decision of the Federal Circuit Court under s 477(2) of the Migration Act is an exercise of original jurisdiction: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55. It has been held that the original jurisdiction conferred by s 39B extends to include review for non-jurisdictional error of law on the face of the record. The record does not include the reasons for decision of the Federal Circuit Court or the transcript of proceedings before the Court. As to these matters see DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [42]-[47], applying Baker v Patrick Projects Pty Ltd [2014] FCAFC 165; (2014) 226 FCR 302 at [29]. However, in this case, the argument advanced for the applicants was confined to alleged jurisdictional error and did not include a claim of error of law by the primary judge on the face of the record.

34    In DMI16 the Full Court, in the context of an application to review a decision refusing to grant an extension under s 477(2), stated that 'the circumstances in which an inferior Court will fall into jurisdictional error are narrower than in the case of a decision-maker exercising executive power': at [40]. See also SZUWX.

35    In SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150, Gageler J considered an application to review a decision by a Federal Circuit Court judge to refuse to extend time pursuant to s 477(2). His Honour said that answering the question whether there was jurisdictional error 'is a tightly confined exercise … [that] turns on the limited question whether [the judge] misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time'. In an earlier decision concerning a similar application (AUK15 v Minister for Immigration and Border Protection [2016] HCATrans 36), his Honour referred to the following passage from Craig as being apt to describe the jurisdiction being exercised by the Federal Circuit Court in such cases:

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.

36    Importantly, the passage places within the ambit of the jurisdiction of the Federal Circuit Court the task of identifying what is to be adjudicated. Unreasonableness as to the discharge of that function would not be sufficient to establish jurisdictional error. Rather, the error must be of a more fundamental kind. It must manifest a misunderstanding of the task to be undertaken. If there be an implied standard of reasonableness, it is confined to unreasonableness of a kind that demonstrates that the function to be performed was misunderstood.

37    In FEZ17 v Minister for Home Affairs [2019] FCAFC 76, the Full Court referred to the above authorities and quoted with approval the view of Gleeson J in ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [24] that it was not appropriate in such cases for the Court 'to enter into an examination of whether, in its view, the proposed grounds of appeal did or did not have reasonable prospects of success' because that was a question 'squarely within the jurisdiction' of the Federal Circuit Court. If the application for review under s 39B is based upon a complaint about the approach to the merits of the case then it must be shown that the question of merit or prospects of success or whether there was a serious question to be tried was approached 'in a manner which suggested that [the Federal Circuit Court] misunderstood the nature of its function or exceeded its jurisdiction': see Thawley J in BTU17 v Minister for Immigration and Border Protection [2019] FCA 538 at [24]-[25].

38    The question whether the primary judge has been shown to have misunderstood the nature of the jurisdiction conferred by s 477(2) is to be considered in the context of the decided cases concerning the nature and extent of that power.

39    The nature of the power conferred by s 477(2) was considered by Mortimer J in SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] and by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [43]-[46]. It is only if the precondition that the Federal Circuit Court is satisfied that an extension of time is 'necessary' in the interests of the administration of justice that an order extending time may be made. Further, although the decisions of this Court concerning the discretion conferred by s 477(2) provide guidance or signposts, the nature of the discretion is such that it entrusts to the good sense of the judge hearing the matter in all the circumstances the task of evaluating whether the interests of justice make it necessary for an extension of time to be granted. So, it is apt to refer to the discretion as one where it is a matter for the judge exercising it to determine what is relevant in each case.

40    However, there are limits to the discretion entrusted in the Federal Circuit Court. A provision such as s 477(2) does not confer a discretion upon the Federal Circuit Court whether to consider an application for an extension of time. Further, if the Federal Circuit Court forms the requisite state of satisfaction then the court does not retain a discretion to refuse and thereby act contrary to the interests of justice. The provision is an example of those instances where upon satisfaction of the precondition to the exercise of the power, the power to make the order is to be exercised: see Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38] and Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135, 138-139.

41    In a number of decisions it has been held that there is no mandatory consideration to which the court must have regard in exercising the discretion conferred by s 477(2). Further, 'there is nothing in the scope, subject matter and purpose of s 477(2) which gives rise to an implication that Parliament intended that adequate and genuine consideration of any explanation for the delay was to be a matter conditioning the exercise of the power to extend time, independently of the stated precondition in s 477(2)(b)' (namely, whether it is necessary in the interests of the administration of justice to grant the extension): BVW17 at [62] (Mortimer J). However, importantly, her Honour went on to state at [64]:

That said, there may well be circumstances where, if the Federal Circuit Court completely omits to consider an explanation for delay in considering an extension of time application under s 477(2), the Court will be found to have misunderstood the content of s 477(2)(b).

42    In such a case it might also be said that there has been a failure to perform the statutory judicial task which requires the application to be determined by reference to the basis upon which the application for an extension is sought.

43    The discretionary power to extend time under s 477(2) is the kind of power to which the analysis in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and SZVFW would apply assuming that the same approach is to be adopted for construing powers conferred on courts. However, even if that be the case, as the above analysis shows, when it comes to review for jurisdictional error of the exercise of the judicial power to extend time, what must be shown is that the Federal Circuit Court misconceived the nature and extent of the power or denied the existence of the power (including by failing to exercise the power) or disregarded its limits. Provided the nature of the task was properly comprehended and the task was entered upon and the limits were not exceeded then there is no jurisdictional error. It is not open to review on the basis that the manner of discharge of the task was unreasonable because the nature of judicial power is that it confers authority to formulate and adjudicate the issues to be decided, both of law and fact, including what is sufficient to meet any requirement for reasonableness in the exercise of the power.

The approach of the primary judge

44    The reasons of the primary judge make plain that his Honour proceeded on the basis that the only explanation advanced by Ms Huynh for the failure by the applicants to bring their application on time was that she was overwhelmed and this delayed her seeking assistance. In a broad sense this was part of her explanation. However, Ms Huynh did not rely upon a general sense of being overwhelmed. A cursory consideration of the modest materials presented in support of the application reveals that the heart of the explanation concerned her change of address, the fact that she did not know about the decision of the Tribunal until 23 March 2018 and the fact that she had communicated her new address to the Tribunal informally at the hearing.

45    The reasons of the primary judge make no reference to the change of address and the statement in the affidavit that the decision was not received until 23 March 2018. Therefore, there is no hint that these matters were not accepted by the primary judge. They are simply not addressed.

46    It was submitted for the Minister that the reference to Ms Huynh being overwhelmed was a description of the overall character of her explanation and it should be inferred that the primary judge should be found to have considered the whole of the explanation and to have rejected it as unsatisfactory. I do not accept this submission. The affidavit evidence as to why Ms Huynh delayed seeking assistance could not be described as 'suggesting that she was overwhelmed'. At its highest that was a matter advanced to explain why she did not formally change her address. However, the key part of her application was that, in fact, she was not notified of the decision until March 2018 and that was because she had changed address; a matter that she had communicated to the Tribunal at the time of the hearing.

47    The result was that the actual explanation advanced by Ms Huynh to support her application for an extension was never addressed. The reasons do not engage with the nature of the case presented. They make no reference to the explanation in fact advanced for the applicants. Instead they fundamentally misstate the basis for the application and find that misstated basis to be 'unsatisfactory'.

Ground 1: Unreasonableness or failure to undertake the statutory task

48    For reasons I have given, the primary judge understood the statutory task to be discharged and properly described the nature of the task. The primary judge embarked upon a consideration as to whether it was necessary in the interests of justice to extend time. Therefore, to the extent that ground 1 claimed that there had been jurisdictional error by reason of unreasonableness in the manner in which that task had been performed the ground of review has not been made out.

49    However, the manner in which ground 1 was developed in oral argument included a contention that there was a failure to undertake the statutory task entrusted to the Federal Circuit Court.

50    For the Minister it was submitted that the application had been approached on the basis that it was an application under s 477 and there was no suggestion (at least in respect of ground 1) that the primary judge misunderstood what was required by that provision. In those circumstances, it was said that the primary judge undertook the requisite statutory task.

51    Those submissions put the matter too broadly. Consider a case where a judge opened the wrong file and dealt with the application by reference to the evidence on a different application or opened the correct file but completely ignored the affidavit material. In those instances, the fact that the judge properly understood what was required by s 477 and approached the matter as an application under that provision could hardly mean that the statutory task had been performed.

52    An evaluation as to whether the statutory task has been performed at all in the particular circumstances of this case requires a contextual understanding of what was done. A description of what was done at the level of generality relied upon by the Minister fails to undertake the required task.

53    As I have noted, the terms of s 477(2) require the judge of the Federal Circuit Court hearing an application for an order extending time to reach a view as to the required state of satisfaction. The view is to be formed by the judge acting judicially. Therefore, amongst other things, it must be formed by reference to the materials presented to the court. However, it is a matter for the judge to determine whether a particular matter is relevant, persuasive or of significance. It is also a matter within the authority of the judge as a judicial decision maker to identify the issues to be addressed on the application and to decide the law to be applied. Decisions as to such matters are within the scope of the jurisdiction conferred by s 477(2) on the Federal Circuit Court. This is the foundation for the decision in Craig and is an aspect that was not doubted in Kirk.

54    Significantly, there is no right of appeal from a decision by the Federal Circuit Court making or refusing to make an order under s 477(2): s 476A(3)(a). Errors that may provide a basis for review on an appeal by way of rehearing are not necessarily a sufficient basis upon which this Court may intervene. They must have an additional quality that means they are jurisdictional in the sense I have explained earlier in these reasons.

55    In the present case, for reasons I have given, the factual basis for the application for an extension of time was misunderstood in a fundamental way by the primary judge. As was stated by Jessup J in Gabriel v Minister for Immigration and Border Protection [2015] FCA 474, the state of satisfaction required by a provision such as s 477 must be reached in light of the applicant's reasons for proposing that the making of an order is necessary in the interests of justice: at [4]. A failure to do so is not demonstrated by the fact that the reasons do not refer to each matter raised. It is within the authority of the Federal Circuit Court judge to determine whether a particular matter is relevant or significant by reference to the judge's own view of applicable principles that emerge from decisions of this Court providing guidance as to matters to be considered. Therefore, as stated by Jessup J, this Court is not permitted to embark upon its own consideration of whether an extension of time is necessary in the interests of justice: at [4]. However, where (as here) the reasons fail to engage with what is obviously the main matter advanced to support the application, the statutory task has not been undertaken.

56    For the above reasons, I find that there was jurisdictional error by reason of a failure by the primary judge to undertake the statutory task.

Grounds 2, 3 and 4: Determination of substantive merits of grounds of review

57    As noted above, grounds 2, 3 and 4 rely upon views expressed in AZAFX. The correctness of those views was doubted in BVW17 at [65].

58    It is well recognised in this Court that where an extension of time is sought to advance an appeal the court must determine where the best interests of justice lie and in doing so proposed grounds should be evaluated at a reasonably impressionistic level: MZABP at [62] (upheld on appeal MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110) and as applied in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21] and Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].

59    As was said by Brennan CJ and McHugh J in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]:

Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases - this was obviously one - where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself 'that one story is good until another is told' and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself.

(footnotes omitted)

60    There is unfairness if a party comes prepared to demonstrate that a particular point is reasonably arguable (assessed at an impressionistic level) only to find that the Court is proposing to deal with the matter as if fully argued. Also, the interests of justice may not be served by refusing an extension of time on the basis of a detailed assessment as to whether the claim has merit (when other considerations support the grant of an extension) with the result that a right of appeal that might otherwise be available (if an extension of time was granted and the matter dismissed on the merits) is not able to be invoked.

61    The same applies in the case of an application under s 477. As Mortimer J observed at first instance in MZABP at [63], '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'.

62    However, the question raised by grounds 2, 3 and 4 is whether there are circumstances in which a decision by the Federal Circuit Court in the exercise of the discretion conferred by s 477(2) may be reviewed for jurisdictional error based on the nature of the approach taken by the judge to the merits of the grounds to be advanced.

63    In MZABP at first instance, Mortimer J expressed the view that a conclusion formed on the basis of a fuller consideration of the merits than a view formed at a reasonably impressionistic level based on a consideration of the grounds without detailed argument and development 'is not a function appropriate to a discretion such as that contained in s 477(2)': at [62] (expressly approved of on appeal at [38]).

64    However, as noted by Wheelahan J in DBA16 v Minister for Home Affairs [2018] FCA 1777, in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Mason and Deane JJ (at 519) and Brennan J (at 537) described the views expressed by appellate courts in supervising the exercise of discretionary powers as 'guidance' which falls short of enunciating a principle of law which must be applied. As stated by Brennan J at 537:

The distinction between such a guideline and a binding rule of law, though essential, may be thin in practice. But the distinction must be maintained and a failure to apply the guideline cannot be treated as an error of law: a failure to apply the guideline is no more than a factor which warrants close scrutiny of the particular exercise of the discretion.

65    On that basis, Wheelahan J characterized the statement by Mortimer J as 'judicial guidance … not … rules of law'. Therefore, the failure to follow such guidance, of itself, could not constitute jurisdictional error: at [60].

66    In SZTES at first instance, Wigney J found that it had not been shown that the primary judge applied the wrong approach when assessing the merits in deciding whether to grant an extension of time. However, his Honour went on to observe at [90]:

Finally, it should perhaps be noted that even if the judge did err by equating the test for the interests of the administration of justice with the question whether the applicant was entitled to final relief, it is nonetheless at least doubtful that this would amount to a jurisdictional error in the circumstances. Whilst it would most likely amount to an error of law, as the reasoning in Craig v The State of South Australia shows, not all errors of law by an inferior court amount to jurisdictional errors. The ordinary jurisdiction of a court encompasses the authority to decide questions of law, including the identification of relevant issues and the formulation of relevant questions. The Federal Circuit Court’s identification of the issues and questions concerning the interests of the administration of justice would ordinarily therefore fall within its jurisdiction. An error in the formulation of such issues and questions would therefore be an error within jurisdiction. Given that there was not, in any event, any such error in this case, it is unnecessary to finally decide this issue.

67    In DMI16, it was argued that there was error of law on the face of the record by reason of the approach taken by the primary judge when considering the merits on an application for an extension of time under s 477(2). On the basis of the decision of Mortimer J at first instance in MZABP, the Minister 'accepted that, in the context of an application for extension of time, the Federal Circuit Court would fall into jurisdictional error if it approached the prospects of success as if it were making a final decision': at [62]. The Court dealt with an argument that there had been an error of law by reason of the approach to the merits. It did so, 'assuming that the Minister's concession was rightly made' which it said was a matter which it was 'unnecessary to decide)': at [62].

68    In BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514, an argument was advanced to the effect that the primary judge had wrongly applied the approach in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 when considering the merits on an application for an extension of time under s 477(2). Perry J found that it was unclear whether the primary judge in fact applied the test in Spencer but tended to the view that if the primary judge did err in that way 'such an error could constitute only a non-jurisdictional error within jurisdiction': at [39].

69    As I have explained, the authority of a judge (including a judge of an inferior court) extends to deciding authoritatively the facts and the law to be applied to those facts (subject to any right of an appeal). The law to be applied by the Federal Circuit Court on an application under s 477 includes a view as to the guidance provided by the Federal Court concerning the proper approach to be adopted when considering the merits. It is a matter within jurisdiction.

70    In this case the primary judge considered the matters advanced in support of the proposed ground of review. In doing so, in the course of a few paragraphs, the primary judge traversed the matters that were addressed by the Tribunal in relation to the three children. On that basis, the primary judge concluded that there was no failure by the Tribunal 'on a preliminary assessment' to take into account the mandatory consideration required under reg 1.15A(3)(b)(i) of the Migration Regulations (being the complaint raised by the proposed ground) and therefore, there was no reasonably arguable ground. These views are within jurisdiction statements by the primary judge. It is not for this Court to form a view as to the correctness of those views where the application for review alleges jurisdictional error.

71    In those circumstances it has not been shown that the primary judge applied an approach that was contrary to the guidance provided by decisions of this Court. Therefore, the foundation for the grounds has not been made out and it is not necessary to determine the extent to which there may be review for jurisdictional error if that guidance had not been followed.

Materiality and futility

72    At the hearing of the matter I gave leave to the parties to file further submissions as to whether success only on ground 1 would mean that there should be an order setting aside the decision of the primary judge having regard to issues of materiality and futility. The issue was raised in the course of oral argument because of the possibility that the decision of the primary judge to the effect that the ground of review that the applicants sought to raise was not arguable was a matter that was not impugned as part of the claim of jurisdictional error.

73    If the finding by the primary judge concerning the merits of the proposed ground of review was an independent basis for the decision by the primary judge then it may be necessary to consider such issues. However, as I have stated, upon proper examination of the reasons of the primary judge it cannot be said with any confidence that the primary judge decided that the application should be refused irrespective of any explanation because the ground of review was hopeless. Importantly, the primary judge expressed his conclusion on the application as being based upon what was described as the lack of sufficient merit taken together with the inadequate explanation for delay. In those circumstances, it cannot be said that there is a basis upon which the jurisdictional error I have found was immaterial or that the relief sought would be futile.

Conclusion

74    For the above reasons, the application for judicial review should be upheld and orders made for the decision of the primary judge to be set aside. The applicants sought orders for the matter to be remitted to the Federal Circuit Court differently constituted. The Minister accepted that such an order should be made if the application was successful and that there should be an order for costs in favour of the applicants. There should be orders accordingly.

Associate:

Dated:    14 June 2019

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