FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
1 This is an application for Constitutional writs to issue against the Federal Circuit Court, under s 39B of the Judiciary Act 1903 (Cth), in respect of its decision made on 12 April 2019 not to grant an extension of time of 41 days under s 477(2) of the Migration Act 1958 (Cth) for the applicant to seek judicial review of the decision of the Immigration Assessment Authority given on 15 June 2018 to affirm the decision of the Minister’s delegate not to grant the applicant a protection visa: EMT18 v Minister for Home Affairs  FCCA 660.
2 The Minister filed an interlocutory application, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the Federal Court Rules 2011, seeking that the originating application be summarily dismissed in conformity with the suggestion of the Full Court in FEZ17 v Minister for Home Affairs  FCAFC 76 at .
3 Relevantly, s 477(1) and (2) provides:
(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.
(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. (emphasis added)
4 The applicant is an Iranian citizen who arrived in Australia in September 2012 and lodged his application for a protection visa in December 2016. The delegate refused to grant the application on 22 September 2017, and the matter was referred to the Authority for review.
5 There is no issue about the correctness of the Authority’s identification of the applicant’s claims. Before the trial judge the applicant, who was represented by counsel, as he was by different counsel on this application, advanced two grounds but only one of those is the subject of the applicant’s argument for relief in this Court.
6 Essentially, that ground concerns the applicant’s claim that he had a contract to supply meat to a firm that was a subcontractor to the Iranian Ministry of Defence. He claimed that the firm had ceased to pay for the goods and provided him with a cheque that was not met when he presented it, following which he persisted in demanding payment. He claimed that, because of his persistence, the subcontractor sent “agents” who beat and intimidated him with a view to making him desist from his claims. He claimed that those men beat him at his place of business and that he required hospital treatment as a result.
7 He claimed that when he attempted to file documents in court he discovered that the subcontractor had lodged a prior complaint against him accusing him of being the person who had furnished cheques that, when presented, were not met or “bounced”. He claimed that he was detained for a month, tortured and released only after his father provided security to secure his release. He claimed that after that occurred he fled Iran on his own passport.
The Authority’s decision
8 The Authority considered that claim and the material before it which had also been before the delegate. It noted that the applicant had claimed that, after he followed up with the subcontractor seeking payment of its bounced cheques, the “agents” of the subcontractor had come to his place of business, argued with him, beat him, tried to intimidate him using meat hooks and that he had to attend hospital for treatment of his injuries. He claimed that, after his release, he enquired of the Iranian authorities and found that he was not on any black list and therefore was able to leave the country.
9 He provided copies of two Iranian documents, with certified translations, to the delegate which were also before the Authority. Each of those documents was dated 12 March 2017. One was in the form of a subpoena, and the other in the form of a document confirming that the applicant’s father had lodged collateral, being his residential property, on 25 May 2012, but noting that the applicant had not attended the court in response to his subpoena and that if he continued not to do so the property would be forfeited to the Iranian State.
10 The subpoena was addressed to the Greater Tehran Police Forces under an article of the criminal procedure law and referred to the failure of the applicant to present himself as required by an earlier subpoena without any proper excuse. It stated:
[w]ith regards to [the name of a man] complaint (Ministry of defence and logistics), with attorney of [the name of another man]; as accused (defendant), it is necessary that you present yourself to this branch accompanied by the subpoena officer as soon as this subpoena is sighted by you.
11 The Authority summarised those documents, without the detail that I have indicated, and found that they tended to confirm that the applicant was involved in legal proceedings in Iran which had resulted from unspecified events that had occurred in 2012.
12 Importantly, the Authority concluded that the applicant was, to say the least, an untruthful witness. It found that he had given a number of substantively inconsistent accounts about significant matters in relation to his claims and that he also had given a number of reasons to account for those discrepancies, including the date that his father had posted his surety, namely, 25 May 2012, that had been stated incorrectly on the two legal documents that the applicant had submitted in support of his claims for protection.
13 The Authority stated that it had carefully reviewed all of the information that the applicant had provided in relation to the events and his various explanations seeking to account for inconsistencies in expressions of his claims. It found that he was not telling the truth and that “his account about the other firm [scil: the subcontractor] bouncing cheques to be fanciful”.
14 The Authority found unpersuasive as explaining the inconsistencies in his evidence what it referred to as “the Departmental legal submission”. I take that description to mean the applicant’s migration agent lawyers’ submissions to the delegate. The Authority accepted the correctness of the delegate’s conclusion that “the Iranian authorities records which he has provided were themselves inaccurate”.
15 It concluded that the best explanation of the circumstances that accounted for the variations in the evidence that the applicant had provided in support of his claims was that he had issued cheques that had bounced some time in around late 2011 or early 2012 and that he had been brought before the Iranian courts and charged with financial offences that had resulted in a brief period of detention for about two days until his father posted bail.
16 The Authority accepted that the applicant had been involved in a fight in which he had been beaten, as he claimed, but it did not accept that the beating was at the behest or on behalf of the Iranian regime or the Ministry of Defence. It concluded that the applicant most probably had been beaten because he owed money to his creditors due to his submitting cheques which had not cleared on presentation.
17 It found that the applicant had mischaracterised much of his evidence in order to suggest he was being persecuted by the Iranian state, including his assertion that he was suffering harassment from a government department. It did not accept that claim, finding that, “On his own later evidence, he was in a financial dispute with a ‘subcontractor’ and faced charges in Iran”. For the same reason it did not accept the applicant would be imputed with anti-regime political opinion if returned to Iran.
18 It also found that he departed Iran whilst he was the subject of ongoing legal proceedings relating to his irregular financial dealings and that if returned he would be likely to be arrested in connection with those legal proceedings and processed under Iranian law for financial crimes allegedly committed in 2011 and 2012. For those, among other reasons, the Authority rejected the application.
The circumstances of the delay in filing in the Federal Circuit Court
19 When the Authority notified the applicant’s migration agent lawyers by email sent on 18 June 2018 of its decision, its email attached the Authority’s reasons and a letter to each of the migration agent- solicitor and the applicant himself with its reasons together with an information sheet headed “The IAA’s decision”. That stated, under the heading “Review of IAA Decisions”:
If you think that our decision is wrong in law, you may consider seeking judicial review in the Federal Circuit Court of Australia.
20 The explanation went on to say that the applicant had 35 days in which to seek judicial review.
21 The applicant filed an affidavit made on 28 February 2019 setting out his explanation for the need for an extension of time. The affidavit said that he spoke moderate level English but that Farsi was his first language and that he had only completed his education to year 8 in Iran. He said, as is almost invariably the case with persons who are in the situation of making claims for protection visas, that he did not have experience with the Australian legal system, apart from the relevant proceedings in which he was engaged. He recited the history of applying for the protection visa, the delegate’s refusal, and the Authority’s notification of the refusal of his application, of which he said his lawyer only informed him by telephone on 2 July 2018. He said that his lawyer subsequently sent an email on the same day attaching a copy of the Authority’s decision. The email which he annexed to his affidavit did not include any of the material sent by the Authority, including its decision. The lawyer told him in the email:
We advise that you may be able to apply for Judicial Review of this outcome. Please note that you have 35 days from the date of the Authority’s decision, namely 15 June 2018 to lodge court review. Accordingly, should you wish to pursue Judicial Review, you must make an application within this timeframe. (emphasis added)
22 The email also informed the applicant that he needed to apply for an extension of his bridging visa.
23 The applicant did not say in his affidavit anything about whether he had seen the Authority’s information sheet. In particular, he did not say that he never received it. And the affidavit did not attach any documents which his lawyers sent him.
24 The lawyers advised the applicant that he might contact the Refugee Advice & Casework Service for assistance. He said that, when he did so, the Service told him that they did not have the capacity to assist him and that he should come back to them after he lodged his application. He then said that he sought assistance from a friend of his who was an Australian citizen who he said tried to help him by liaising with different lawyers. He annexed to the affidavit “some of [the friend’s] correspondence with two different law firms enquiring [sic] whether they would be able to assist me.” The attachments informed him that he had to seek judicial review by 20 July 2018 and, in one case, the lawyers provided an estimate of their costs.
25 As no one offered to provide him with pro bono assistance and because he was unemployed, the applicant said that he could not apply for legal representation. His friend then advised him to apply to Legal Aid to see if they could assist. He then engaged in correspondence with Legal Aid who, in the event, told him that they were also unable to assist because they did not have capacity to deal with his case.
26 He said that, next, his friend called the Administrative Appeals Tribunal and said to its staff member words to the effect that she had a friend “who needs to lodge a judicial review application, could you please inform me of the procedure to lodge an application.” The affidavit asserted that the person at the Tribunal who spoke with his friend told her that the application could be made by “dropping of [sic] an application at the AAT office.” He said that on 19 July 2018 his friend and he went to the Tribunal’s office and lodged an application that it accepted.
27 In the event, on 15 August 2018 the Tribunal informed him that, of course, it had no jurisdiction. He claimed that he did not realise he was not able to lodge an appeal from the Authority’s decision to the Tribunal and that “this was the first time that I had been made aware that I had lodged my application with the wrong appeal authority.” He then claimed that he spoke with the Service again and sought further assistance and that the Service then informed him that he had filed in the wrong place and that he had to lodge an application with the Federal Circuit Court and where he should do that.
28 That led to him seeking assistance. Ultimately, he filed his application on 30 August 2018. He said that he had never intended to lodge the application with the court out of time and that he had tried to do everything possible to seek legal assistance with his application but had been unsuccessful and had subsequently found pro bono assistance.
The trial judge’s decision
29 The trial judge delivered ex tempore reasons, as counsel for the Minister, who also appeared in the Court below confirmed, despite the erroneous cover sheet of the reasons suggesting that his Honour had delivered them on 12 April 2019 as opposed to 15 March 2019 when, in fact, his Honour expressed his reasons orally. The trial judge said, in relation to the applicant’s explanation:
The proceedings in this Court were commenced on 30 August 2018, 41 days outside the 35 day period provided. The application for an extension of time complies with the formal requirement under s 477(2) of the Act and an explanation has been given for the delay in relation to the steps taken by the applicant to obtain legal advice and representation. The explanation for the delay which is not insignificant is not satisfactory. However, no particular prejudice in the present case is said to have been suffered by the first respondent by reason of the delay in the commencement of the proceedings.
The merits of the application must also be taken into account at an impressionistic assessment. The Court must determine whether it is necessary in the interests of the administration of justice to extend time. The Court must take into account that the applicant has no right of appeal if the extension of time is refused. (emphasis added)
30 His Honour referred to the facts concerning the two Iranian Court documents, in a manner about which no complaint is made, and dealt with the proposed ground of review in his reasons. He summarised the argument of counsel, then appearing for the applicant, that the reference to the Ministry of Defence in the subpoena should have been the subject of an express finding by the Authority and that its failure to do so meant that the Authority had not had a real and meaningful engagement with the information in the subpoena that the applicant had advanced in support of his claims.
31 The trial judge said that it was apparent from the Authority’s reasons that it had found that the applicant had failed to pay a subcontractor of the Ministry and had made adverse credibility findings in relation to the applicant. He said that the Authority was not required to refer to the whole of the evidence before it. His Honour did not accept that the reference to the name of the individual in the subpoena before the bracketed words, “Ministry of Defence and Logistics” was material information in respect of which it was necessary for the Authority to make an express reference or finding in its decision. His Honour found that it was evident from the Authority’s reasons that it had had regard to the subpoena and that there was no sufficiently arguable basis to support a finding that it had failed to have a real and meaningful engagement with the information that the applicant had provided.
32 The trial judge described the proposed ground of review that alleged that the Authority had failed to have regard to the corroborative material (being the subpoena) in finding that the applicant was not beaten at the behest or on behalf of the Iranian regime or the Ministry of Defence and in doing so it had acted illogically, unreasonably and irrationally. The trial judge found that, at an impressionistic level, this proposed ground had failed to identify a sufficiently arguable case on the merits to warrant that an extension of time was necessary in the interests of the administration of justice under s 477.
33 He found that the Authority had given logical and rational reasons in support of its finding, in relation to this proposed ground, that the applicant owed money to the subcontractor. He noted that it had referred to the applicant’s own evidence that the fight and beating had occurred in connection with persons from the subcontractor. His Honour found that the Authority’s adverse findings could not be said to lack an evident and intelligible justification and that, in the event, the applicant had not established a sufficiently arguable case that the Authority had acted illogically, unreasonably or irrationally so as to warrant the grant of an extension of time.
34 He concluded that, taking into account the extent of the delay and the unsatisfactory explanation for it, together with the lack of merit in the proposed grounds, he was not satisfied that it was necessary in the interests of the administration of justice to extend time under s 477 and did not do so.
The applicant’s submissions
35 The applicant argued that his Honour’s reasons for finding his explanation for his delay to be “not satisfactory” were insufficient in law to amount to proper reasons. He contended that in accordance with the criteria discussed by a number of single judges of the Court following what Mortimer J had said in MZZIV v Minister for Immigration and Border Protection  FCA 1203 at - that his Honour’s reasons could not be described as adequate in dealing with the considerations which her Honour advanced, namely:
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.
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.
36 The applicant submitted that the failure to give adequate reasons amounted to a jurisdictional error engaging this Court’s jurisdiction to grant Constitutional writ relief against the trial judge’s decision. The applicant contended that, in accordance with authorities dealing with the adequacy of reasons, his Honour should have set out his findings about the explanation and stated in more detail why he did not find it to be satisfactory. The applicant argued that his Honour should have pointed to the applicant’s language difficulties and unfamiliarity with the legal system and weighed whether or not those were factors that should also be taken into account.
37 The applicant also argued that the Authority’s reasons were illogical and irrational because they ignored the corroborating evidence in the subpoena that the complainant against him might have been the Ministry of Defence and that the persons who attacked the applicant may have been agents of the Iranian State as opposed to the subcontractor. He argued that the Authority had failed to deal with the corroboration said to be present in the subpoena and the other court documents for this claim. He argued that this demonstrated that the ground of review, which the applicant sought to raise if time were extended in the Federal Circuit Court, could not be said to be hopeless or without sufficient merit to warrant the grant of an extension of time. He argued that the Authority had not engaged in an active, intellectual process in dealing with that matter and that, likewise, the trial judge had not found, or given an adequate explanation as to why, the ground was not sufficiently arguable. He contended that, coupled with the alleged error of the trial judge in failing to give proper reasons as to why the applicant’s explanation for his delay was unsatisfactory, his Honour’s discretion had not been exercised properly under s 477(2) and that the decision should be set aside.
38 There are no naturally bright lines that identify what may amount, in a particular case, to jurisdictional error, as French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ observed in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 573-574 -. However, the basic principles are set out in Craig v South Australia (1995) 184 CLR 163 where Brennan, Deane, Toohey, Gaudron and McHugh JJ distinguished between what constituted jurisdictional error by an inferior court and what did so in the case of an administrative body. They said (184 CLR at 177):
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.
39 And, they noted that a writ of certiorari could issue to correct a jurisdictional error “…based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction”. The error complained of here appears to be in the latter category. However, their Honours said (184 CLR at 179-180):
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. (emphasis added)
40 Their Honours concluded (184 CLR at 186):
we do not consider that either Judge Russell’s conclusion or his failure to refer, in what was essentially an ex tempore judgment, to the particular matters mentioned by Matheson J signifies a failure on his part to appreciate the true effect of what was said by the majority of this Court in Dietrich [v the Queen (1992) 177 CLR 292] about the absence of “fault” on the part of an accused. Be that as it may, any such error on the part of Judge Russell would not have been jurisdictional error. (emphasis added)
41 Moreover, as Gleeson CJ, Gummow, Kirby and Hayne JJ said in City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 , there is no error of law simply in making a wrong finding of fact.
42 The Federal Circuit Court had jurisdiction to decide the facts and the law, and to make errors within its jurisdiction in doing so. Ordinarily, appeal rights will lie where the legislature considers that such claims should be reviewable by an appellate court. However, s 476A(3)(a) of the Migration Act expressly negates the existence of any appeal from a decision granting or refusing an extension of time: cf: DUS17 v Minister for Home Affairs  FCA 2120 at  per Rares J.
43 The purpose of a court’s obligation to give reasons for a decision must accommodate itself to the nature of the task at hand. In Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 at 83-84 , Gaudron, Gummow, Hayne and Callinan JJ held that the Supreme Court of Victoria’s prior practice of not giving reasons for refusing leave to appeal against certain decisions of the Victorian Civil and Administrative Tribunal, was erroneous. That was because there was no basis for departing from the ordinary rule that reasons should be given. They said:
Those reasons need not be extensive. In appropriate cases, little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached. The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave. (emphasis added)
44 In FEZ17  FCAFC 76 at , Rares, Flick and Burley JJ set out, with approval, what the primary judge in that case had said (at ) in relation to a claim for constitutional writ relief against another decision of the Federal Circuit Court that had refused an extension of time under s 477(2) including the following summary of what Gageler J said in SZTUT v Minister for Immigration and Border Protection  HCA Trans 150:
The only question before me … is whether the Federal Circuit Court made a jurisdictional error in exercising its discretion to refuse to extend time pursuant to section 477(2) of the Migration Act. As my recent reasons for decision in AUK15 v Minister for Immigration and Border Protection  HCA Trans 36 illustrate, answering that question is a tightly confined exercise. That exercise turns on the limited question of whether Judge Nicholls misconceived the nature of the function he was performing in deciding whether or not to make the order for an extension of time.
That limited question cannot be answered in the affirmative in the present case. Whether or not the Federal Circuit Court should have found that the Tribunal had not assessed a claim or an integer of a claim by failing to properly assess the risk that was posed to the Tribunal is not a question that is appropriate for me to answer. Those are matters which fall squarely within the jurisdiction of the Federal Circuit Court conferred by section 477(2). The Federal Circuit Court addressed itself to a consideration of those matters and, by any standard, the reasons of the Federal Circuit Court are unobjectionable. (emphasis added)
45 The mere fact that it could be suggested that his Honour had not taken into account all of the applicant’s explanation does not, of itself, demonstrate an error going to the exercise of the power to extend time, as Mortimer J explained in BVW17 v Minister for Immigration and Border Protection  FCA 1508 at -. All that his Honour had to do was express a statement of his chief conclusions about the applicant’s explanation for his delay: Roy Morgan 207 CLR at 83-84 . The omission of other matters from his Honour’s reasons was not a jurisdictional error: Craig 184 CLR at 186.
46 The statutory task for the trial judge here under s 477(2) was to consider whether the application had specified why the applicant considered that it was necessary in the interests of the administration of justice to make an order extending time and determining whether he was satisfied that it was so necessary in the interests of the administration of justice to make the order.
47 The applicant’s explanation in his affidavit in support of an extension of time included an inadequate and unsatisfactory explanation. I see no reason why his Honour had to do more than to summarise it as he did by noting that the applicant had taken steps to obtain legal advice and representation and that was why he delayed.
48 The judges of the Federal Circuit Court (as are those in this Court) are familiar with the difficulties that persons in the position of the present applicant face, when seeking, without legal assistance, to challenge administrative decisions involving the refusal of a grant of a protection visa. Such persons are almost always confronted by the complexities of the Australian legal system with the added challenge of his or her not having any familiarity with English as a first, and usually not as an additional, language. They all encounter those difficulties, which many, very understandably, find bewildering while, bona fide, wishing to pursue whatever avenue of redress is open to them.
49 However, in considering an application such as this under s 477(2), a judge, ordinarily, does not need to recite in detail the facts or background relating to those matters before expressing a conclusion as to the quality of any explanation for delay. In DUS17  FCA 2120 at , I explained the settled rule of the Full Court that an applicant’s inability to obtain favourable legal advice is not a ground to extend the time fixed by the Parliament to apply for mandamus and the ancillary writ of certiorari. I said:
In CKW15 v Federal Circuit Court of Australia  FCA 2010 at -, I discussed, in a slightly different context, the principles relevant to the grant of Constitutional writ relief against the Federal Circuit Court in cases involving its exercise of its discretion, under s 477(2), to refuse or grant an extension of the 35 day period. In particular, I adopted what McHugh J (whose decision has been followed by Full Courts of this Court) had said in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-496 - in refusing an extension of time in which to seek a writ of certiorari under the then High Court Rules (see also Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 -, per Brennan CJ and McHugh J; 539-542 , per Kirby J). McHugh J referred with approval to the statement of the Judicial Committee of the Privy Council in Ratnam v Cumarasamy  1 WLR 8 at 12, and continued:
“[t]he rules of court must prima facie be obeyed”… In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court.
An applicant’s inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependent on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice. In all but exceptional cases, the inability of an applicant to obtain favourable advice within the two-month period for mandamus and the six-month period for certiorari is a strong indicator that he or she has no case for relief. That is the case here. The applicant has no arguable case for relief. If it should turn out that, by reason of negligent advice, an applicant was deprived of the right to quash a decision or to have it made or to have some duty carried out, the applicant will have his or her remedy against the lawyer or lawyers concerned. (emphasis added in DUS17  FCA 2120)
50 Here, the applicant was represented and his affidavit had been prepared by lawyers to explain why an extension of time was sought. However, it did not explain why, having regard to the legal advice he received, he did not understand that he should have gone to the Federal Circuit Court. Moreover, although there may have been an understanding by him or his friend who assisted him that he could go to the Tribunal, it is glaringly improbable that that Tribunal told him or his friend that it was the appropriate place to seek review, let alone judicial review, of a decision of the Authority. Those factors provided a sound foundation for his Honour to express the conclusion in his brief reasons that the explanation was unsatisfactory. It was.
51 His Honour’s reasons must be read in the context that the applicant had explained that, in seeking to obtain legal advice and representation, he had filed, erroneously, with the Tribunal an application for review within the time limit of 35 days. His Honour considered the explanation as part of his task in addressing the statutory question under s 477(2), being why it was necessary, in the interests of the administration of justice to grant an extension of time which included assessing the strength of the grounds of review, as he did in the balance of his reasons.
52 There was no complaint made about his Honour’s dismissal of the second ground of review advanced and I need not discuss it.
53 The applicant’s criticisms of his Honour’s reasoning with respect to the significance which the applicant attributed to the reference to the Ministry of Defence and Logistics in the subpoena is, as the Authority’s reasons demonstrate, not a claim he advanced before the Authority. Far from being “corroborative material”, it was another piece of inconsistent material in the applicant’s account which the Authority did not have to resolve. The applicant had claimed throughout the administrative considerations of his claims for protection that agents of the subcontractor with whom he dealt had been the source of his beating and the injuries that he received in that connection. Whatever connection the Ministry may have had with the applicant’s claims beyond the subcontractor providing services to it, he did not make a claim that the Ministry had been responsible for his beating. His Honour’s reasons for this assessing this ground of review as lacking a sufficiently arguable foundation were open to him, and, do not reveal any jurisdictional error.
54 The issue under s 477(2) is different from that involving an extension of time in which to file a notice of appeal or an application for leave to appeal, but in each situation the claim for an extension of time in which to file an appeal or leave to appeal challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 - (and see also at 539-543  per Kirby J). The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in R v Secretary of State for the Home Department; Ex parte Mehta  1 WLR 1087 at 1091E-F, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.
55 As I explained in DUS17  FCA 2120 at -, the Parliament prescribed in s 476A(3)(a) that there should not be any appeal to this Court from a decision of the Federal Circuit Court granting or refusing an extension of time under s 477(2).
56 No doubt the refusal of an extension of time has significant consequences for an applicant seeking to challenge an adverse outcome on an application for a protection visa. And, as the cases show, the seriousness of that outcome must be reflected in the way in which the Federal Circuit Court exercises its function of considering under s 477(2) whether it is satisfied that it is necessary in the interests of the administration of justice to make an order extending time allowing an application to be brought out of time.
57 The merits of such an application are relevant to the exercise of the discretion because the weaker or more insubstantial the case proposed to be brought the more the question is whether such a claim ought be allowed to proceed “in the interests of the administration of justice”. Those interests include the time which the Federal Circuit Court must devote to the adjudication of such a claim and its consequent inability to deal with other litigants’ claims that may have far more call for judicial resources to be directed to their resolution: cf: the references to the administration of justice extending beyond the particular case of the parties to a proceeding in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217  per Gummow, Hayne, Crennan, Kiefel and Bell JJ (see too at 215 ); Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at 321  per French CJ, Kiefel, Bell, Gageler and Keane JJ; and MZZIV  FCA 1203 at  per Mortimer J.
58 In this case I am unable to see any jurisdictional error by his Honour. He took into account the question which s 477(2) required him to answer. He addressed the claim in accordance with the principles but found that he was not satisfied that it was a sufficiently strong case and that the explanation for the delay in filing an application was not satisfactory. Those were matters within, and evinced an exercise of, the jurisdiction of the Federal Circuit Court: Craig 184 CLR at 186. And, as Kiefel CJ, Gageler and Keane JJ explained in Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 9 -, unless the asserted failure of a decision maker to comply with a condition could have made a difference to the result, any such error is not jurisdictional error. That is the case here.
59 I am unable to see how there is any reasonable prospect of success of the claim for Constitutional writ relief. In my opinion, this is an appropriate case in which to refuse the application summarily, under s 31A(2) of the Federal Court of Australia Act, in accordance with the Minister’s interlocutory application.
60 For the reasons I have given, the applicant has no reasonable prospect of successfully prosecuting the proceeding and it must be summarily dismissed. I will order that the applicant pay the Minister’s costs.
Dated: 11 September 2019