FEDERAL COURT OF AUSTRALIA

AMB19 v Minister for Home Affairs [2020] FCA 439

ORDERS

THE COURT ORDERS THAT:

1.    The requirements of the Federal Court Rules 2011 (Cth) be dispensed with to the extent necessary to allow the applicant's application for an extension of time in which to appeal dated 11 March 2020 to be brought within these proceedings.

2.    The application for an extension of time in which to appeal is refused.

3.    The application for judicial review under s 39B of the Judiciary Act 1903 (Cth) is allowed.

4.    The decision of the Federal Circuit Court in AMB19 v Minister for Home Affairs [2019] FCCA 2693 is set aside.

5.    The matter be remitted to the Federal Circuit Court for determination according to law.

6.    The first respondent pay the applicant's costs to be fixed by way of lump sum if not agreed.

7.    If it is necessary to fix costs then:

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

(b)    the 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.

8.    There be leave to the first respondent to apply within 14 days to vary the costs orders.

9.    Any application for leave to vary the cost orders shall be supported by an outline of submissions stating the costs orders sought and contentions in support.

10.    Any outline of submissions in response to any application for leave to vary the costs orders shall be filed and served within 14 days of the application.

11.    There be liberty to parties filing submitting appearances to apply for any order as to costs within 14 days.

12.    Subject to any further order, any application for leave to vary the cost orders and any application for costs by submitting parties shall be determined on the papers.

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

ORDERS

THE COURT ORDERS THAT:

1.    Application dismissed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant, acting on his own behalf, filed an application in the Federal Circuit Court for judicial review of a migration decision. It was brought within time. However, it was adjudged by a Registrar not to conform to the requirements of the Federal Circuit Court Rules 2001 (Cth) and was not accepted for filing. By the time an application in acceptable form had been prepared, the time limit on bringing the application had expired.

2    The applicant was then required to bring an application for an extension of time. In dismissing his extension application neither his explanation for delay nor his fundamental complaint about the migration decision was addressed by the Court. In those circumstances, the judicial power to grant or refuse an extension has not been exercised by reference to the nature of the application. In effect, there has not been any consideration of his application for an extension. Therefore, for the reasons which follow, the application to this Court for judicial review should be upheld and the matter remitted for determination according to law.

Factual context

3    The applicant was held in immigration detention and, as a result, faced difficulties in lodging an application in the Federal Circuit Court to challenge a migration decision made by the Immigration Assessment Authority. He made unsuccessful attempts to prepare and lodge the application with the Federal Circuit Court Registry within time. His first attempts resulted in the application being sent to the wrong facsimile number or as incomplete transmissions. Eventually, still within time, he obtained a guide from a legal aid service and sent documents to the Registry by facsimile.

4    On or about 17 January 2019, the applicant received the following letter from the Registry by way of response (Refusal Letter):

I refer to your Application Migration and supporting documents faxed to the court on 16 January 2019. Unfortunately your documents cannot be processed in their present form.

Application

1.    Four parties are listed as the 2nd respondent. Please delete the parties that are not applicable.

2.    Your details must be entered at the foot of page 1 of the application.

3.    'Application for extension of time'. Please answer this by ticking the relevant box.

Affidavit

1.    Parties need to be listed on the front page on the lines provided.

2.    Your details must be entered at the foot of page 1 of the affidavit.

3.    The affidavit must be sworn/affirmed.

The court requires a copy of the decision that you are appealing. The decision can be attached to the affidavit. Also, the 'application for exemption from paying court fees' needs to be dated.

5    Soon thereafter, the applicant lodged what would have been a conforming application but it was subsequently rejected for being out of time. He was then told he needed to apply for an extension of time in order to bring his case. He did so. By the time that further application was prepared and lodged, the applicant was some 19 days out of time to exercise his statutory right to seek review of the migration decision in the Federal Circuit Court.

6    The application set out the following matters as the grounds of the application for an extension of time:

I have limited if not at all knowledge of speaking and reading English and this has the main reason why I got mixed with the dates for the application originating for review of my protection visa and during the Xmas new year period.

Two times my application was sent back by the court due to mistakes in filling the form and this confirms my [in]ability to write English as I was helped by different people.

7    If the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order, there is power to extend time for an application of the kind sought to be brought by the applicant: s 477(2) of the Migration Act 1958 (Cth).

8    The matter came on for hearing in the Federal Circuit Court. The application for an extension of time was dismissed: AMB19 v Minister for Home Affairs [2019] FCCA 2693. The reasons of the primary judge were to the effect that there was no merit in the proposed substantive application and the delay in filing had not been adequately explained.

9    The transcript of the hearing before the primary judge shows that his Honour proceeded on the basis that there was nothing before the Court to show that the Court had received his application and then sent it back again. It was also plain that the interpreter was having considerable difficulty understanding what the applicant was saying when explaining why the application had been filed out of time.

10    When asked by the primary judge to explain his delay, the first response by the applicant was translated as a reference to what was said on the application for an extension and then 'Was Christmas time, my English, didn't have enough time to find people to help me in English and was also returned to me, the application form was returned to me'. After a further question from the primary judge, the transcript records an interpreted answer (given after the interpreter is recorded as saying that it was not very clear what the applicant had said) as being 'Actually, I sent to wrong address. It was my mistake. I didn't send it to court'. And after a further question: 'It was my mistake. I was - at that time I was residing in the camp, campsite, and I faxed it to the wrong number'.

11    On the evidence in this Court, before the application was received by the Registry there was an earlier attempt to file the application by facsimile, but those who were asked to send the application sent it to the wrong number. However, that aspect did not emerge during the course of the short exchange with the primary judge during which the interpreter twice said that she was having difficulty understanding what the applicant was saying. There was very limited inquiry by the primary judge despite those difficulties and no attempt to verify or check what the applicant was saying by any further questions.

12    In oral reasons given at the end of the hearing of the application for an extension of time, the primary judge reasoned as follows (at [38]):

… if the Applicant had attempted to file matters and they were sent back by the Court, there would be some record of that, and the Applicant could have easily provided that to show that he had tried to file the matter in time.

13    The primary judge also reasoned that the applicant had made a concession that what he said was untrue and incorrect and that he did not have an application that was sent back by the Court due to mistakes (at [40]). On the present application, it is submitted that there was no such concession.

14    The primary judge then concluded (at [41]):

It could be asked rhetorically where is that application that has either been faxed to the wrong address or sent to the Court? That is a real deficiency in the excuse that the Applicant has given, and a reason why I totally reject that excuse.

15    It appears that a simple inquiry of the Registry would have revealed that the applicant's explanation was in fact correct. The correspondence I have set out above confirms the essence of the applicant's account. Given the evident confusion as to the interpretation of what the applicant was saying, the evidence concerning the sending of the facsimile was not an adequate explanation as to why that simple inquiry was not made of the Registry. It is most unfortunate that the inquiry was not made of the Federal Circuit Court's own Registry before the decision was made.

16    The primary judge also dealt with the merits of the review grounds that the applicant proposed to raise. Those grounds were stated in generic terms in an affidavit in support of the application for an extension of time. Before dealing with those grounds, the primary judge said (at [24]):

The grounds of the application are extremely general, and it is obvious that someone other than the Applicant has written these grounds. There is no particularity to them, and they really are meaningless as they do not disclose any jurisdictional error without that particularity. However, I did take the Applicant through each and every one of them and ask[ed] him for his comment.

17    The process of taking the applicant through his grounds was perfunctory. It consisted of the primary judge putting to the applicant each of the written grounds and asking the applicant to explain the basis for the ground. Again it is evident that there were difficulties with the interpretation of his answers. No clarification or further inquiry was sought as to any of the answers given by the applicant. At the end of those steps the applicant was asked what else he wanted to say as to why the decision was wrong.

18    In the course of the limited exchange as to the grounds advanced by the applicant, for the most part his answers were to the effect that: (a) he had told the Tribunal that he did not want to call back to his family in Iran 'to make them … in trouble' (being a reference to a basis on which the applicant's account had not been accepted by the Authority); (b) he told the Authority the truth and he did not understand why the Authority did not believe him; and (c) he has been quite depressed and that meant he may say things that 'just maybe not relevant or hard to understand'.

19    In substance, his complaint as stated orally was that the Tribunal was in error as to the way it dealt with the credibility of his account. In order to address a ground of that character, the primary judge was at least required to consider whether the reasoning by the Authority as to its findings on credibility were supported by logical and rational reasoning. That was the nature of the case being advanced orally. In that regard, it is now well established that findings as to credibility by administrative decision makers are not immune from review on the basis of jurisdictional error: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [82]-[99]; and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [36]-[44].

20    However, in his reasons the primary judge did not deal with that aspect. Instead, despite finding that the written review grounds had been written by someone else and were meaningless, the reasons traversed each ground and found that there was no substance in any of them. Otherwise, the reasons did not deal with the process of reasoning by which the applicant's account was not accepted. On that basis the primary judge concluded that there was no merit in the substantive application: at [35]. To reason in that way was to fail to engage with the manner in which the Authority made its findings as to credibility and to fail to address the complaints about the Tribunal decision raised by the applicant.

21    In the above circumstances, the applicant seeks review for jurisdictional error of the decision by the primary judge. In the alternative, the applicant seeks an extension of time in which to appeal against the decision of the primary judge on the basis that the original application filed within time was valid and the primary judge, acting on that application, should have dealt with the merits rather than approach the matter as requiring an extension of time. In the further alternative, the applicant seeks to challenge the decision of the Registrar who refused to receive the application for filing.

Procedural matters

22    When the application to review the decision of the primary judge first came on for hearing, I raised an issue as to whether, on the facts, the applicant had in fact filed an application within time. The matter was adjourned to enable that aspect to be considered by the applicant. The applicant then sought to file an application for an extension of time in which to appeal from the decision of the primary judge. Submissions filed with the application claimed that the Court mistook its jurisdiction because the applicant was not out of time and the applicant's substantive application was on foot. On that basis, it was alleged that an appeal could be brought because the Court had failed to consider the substantive application.

23    At my direction, the application for leave to appeal was accepted for filing together with draft grounds of appeal. This was done to allow the necessary documents on the applicant's alternative argument to be before the Court on what was otherwise only an application for judicial review under s 39B of the Judiciary Act 1903 (Cth). Those documents have been received by the Registry by establishing a separate file for the application for an extension of time in which to appeal. Quite properly, counsel for the Minister did not oppose formal orders being made for the applicant to commence a new proceeding in respect of the extension of time application, for that application to be heard together with the application for an extension of time and for evidence and submissions filed in the proceeding to be used in both applications. However (again properly), the Minister opposed the extension of time and also claimed that leave to appeal would be required to raise the relevant grounds because they had not been advanced formally before the primary judge. In both instances the basis for the opposition was lack of merit.

24    The merits of the application for an extension of time in which to appeal were argued on the basis that, if leave was granted, there would need to be a further hearing of any appeal.

25    In the circumstances, rather than allow the continuation of separate proceedings, I propose to make orders dispensing with the requirements of the Rules so as to allow the application for an extension of time to be brought within the existing judicial review proceedings as a single set of proceedings. This will regularise what occurred at the hearing where arguments on all matters were presented by reference to the affidavit material filed in the existing proceedings.

26    As to the addition of the Registrar to the judicial review proceedings, I have already ordered that the Registrar be added as a further respondent to that application and the Registrar has since filed a submitting appearance.

27    On that basis, I proceed to consider the merits of all three alternatives advanced by the applicant.

First alternative, jurisdictional error by the primary judge

28    In Huynh v Federal Circuit Court of Australia [2019] FCA 891, I dealt with the limited character of the review available under s 39B of the Judiciary Act in respect of the exercise of judicial power by a judge of the Federal Circuit Court. For reasons that I gave in Huynh, in an application of the present kind, what must be shown by an applicant is that the Federal Circuit Court misconceived the nature and extent of the discretion to extend time or denied the exercise of the power (including by failing to exercise the power) or disregarded its limits. Further, as I noted at [43]:

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.

29    An evaluation as to whether the statutory task has been performed requires a contextual understanding of what was done. In Huynh I gave two examples of instances where the application of the proper legal approach would mean there had been no exercise of the judicial power: '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': at [51].

30    In the particular circumstances of this case, there is an important distinction between the legal and factual findings made by the Federal Circuit Court for the purposes of deciding whether to exercise the statutory power to extend time (being within jurisdiction) and the nature of the application being fundamentally misconceived and never addressed (being a failure to exercise jurisdiction).

31    The first ground of review raised by the applicant is that the Court proceeded from a misunderstanding of the applicant's explanation for delay or alternatively failed to give proper consideration to the context of the applicant's explanation. The particulars provided in support of the ground describe the actual circumstances that the applicant relied upon and the difficulties the interpreter was having in understanding the applicant in the key part of the hearing in circumstances where it was apparent that the applicant relied upon assistance because he was unable to communicate effectively in English.

32    The evidence before this Court on review concerning the circumstances in which the applicant sought an extension of time was not disputed. It showed plainly that the applicant had sought to bring his application within time and the application had not been accepted for filing for reasons concerning the form of the application and supporting affidavit. The relevant circumstances were known to the Registry at the time (being recorded in the Refusal Letter) and could have been obtained upon a simple inquiry. The difficulties with translation of what the applicant was saying to the primary judge were obvious and those difficulties concerned the explanation for the delay. The procedure followed by the primary judge made no allowance for those difficulties and no steps were taken to revisit the explanation being provided by the applicant to ensure that the translated answers were accurate.

33    The consequence was that the Court did not consider the circumstances being advanced on the application. It was not a case where the Court received the available information and then formulated its decision as to the facts and law by reference to that information. Instead, the procedures that were followed by not making the inquiry of the Registry and not taking steps to clarify the interpretation of the answers given meant that the Court did not hear the explanation actually being advanced by the applicant.

34    In those circumstances, the Court has not exercised its judicial power by reference to an application of the kind that was being advanced. Rather, it misconceived the nature and circumstances of the application in a fundamental manner. In consequence, the jurisdiction that was invoked by the applicant has never been exercised. The Court, by its procedure, has considered a fundamentally different application. Therefore, ground 1 should be upheld.

35    It is convenient next to consider ground 3. It claims that the primary judge failed to consider whether grounds that arose on the material before the primary judge were reasonably arguable. The matter that was said to arise on the material concerned the fact that the Authority found that inconsistencies in the applicant's account before the Authority were dispositive of the review. It was submitted for the applicant that it was at least arguable that the alleged inconsistencies did not have that character and that ground (even though it was not one of the grounds in the written application) was a matter that the primary judge was required to consider. The matter was put on the basis that the primary judge was required to have regard to the material before it in determining the merits of the application for review because, in the course of deciding whether it was in the interests of the administration of justice for there to be an extension, those interests required the consideration of any ground squarely raised from the material.

36    However, there is no need to resort to a principle of that kind (about which I prefer to express no view as to whether it operates in the manner contended for on behalf of the applicant). Rather, in this case, for the reasons which follow, the applicant did raise an issue about the way the Authority had dealt with the credibility of his testimony.

37    In circumstances where the primary judge had (correctly) concluded that the grounds were in a form that were really meaningless and had been prepared by someone else, there was an obligation to address the lack of particulars with a person, such as the applicant, who appeared on his own behalf, with a limited understanding of English and with reliance upon an interpreter for assistance.

38    The lack of particulars was only a procedural deficiency. Before the Court proceeded by reference to the unparticularised written grounds, the applicant was entitled to an explanation of the need to provide particulars and to be assisted in elucidating the nature of his complaint. Courts have a duty to ensure that litigants who appear in person have sufficient information about the practice and procedure of the court to ensure a fair hearing: Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[311], quoted with approval in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 at [37]; and Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [103]. See also SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [36]-[38]. The extent of the obligation to extract the point that a litigant seeks to raise has been dealt with in a number of authorities that were summarised by Jagot J in Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 at [21]-[25].

39    As I said in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], where particulars are lacking, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in such cases by the Minister's discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant materials as being underlying concerns that the appellant seeks to raise.

40    Further, the Court in evaluating whether there is sufficient merit in a point may look to the substance beyond the precise questions of law as articulated in order to determine, for example, the prospects of an appeal: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [23] (French CJ and Gummow J). The same applies where grounds are required to be articulated for the purpose of an application for an extension of time.

41    In this case, the primary judge was told orally of the applicant's concerns about the credibility findings made by the Authority. Having been directed to those findings, the Court was required to consider whether there was merit in those concerns. Instead, the primary judge dealt with unparticularised claims that had been prepared by someone else. To do so, was to fail to engage with the nature of the application in any meaningful way. The actual complaint made by the applicant was not addressed by the primary judge.

42    Before this Court, counsel for the applicant articulated three respects in which there was said to be arguable merit in grounds directed to the credibility findings by the Authority. It is clear that the appropriate approach to be adopted by the primary judge on the extension application was to evaluate the merits at a reasonably impressionistic level. The question was whether the ground of review was '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': CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [6]. The application of that test required a judgment to be formed by the judge considering the application for an extension. It was not undertaken in this case because the primary judge failed to consider the nature of the actual complaint raised.

43    In those circumstances, it is not for this Court to undertake that task for itself. The relevant judicial power to grant an extension is conferred on the Federal Circuit Court. It is for that Court to evaluate whether the grounds advanced are arguable in the requisite sense. That task has not been undertaken. For those reasons, ground 3 should be upheld.

44    It follows that both as to the explanation for delay and the merits, the nature of the application advanced was not considered by the primary judge. Therefore, success on grounds 1 and 3 establishes that the application under s 39B of the Judiciary Act should be granted. Although it was suggested that this Court might itself determine the application for an extension, as I have said, the power to do so resides in the Federal Circuit Court and the appropriate order if the application was to be granted would be to set aside the decision and remit the matter for determination according to law. That is a consequence of the fact that there is no right of appeal to this Court from a refusal to extend time to bring a substantive application of the kind that the applicant had sought to bring in the Federal Circuit Court: s 476A(3) of the Migration Act.

45    The appropriate relief is that the decision of the primary judge be quashed and for the matter to be remitted to be dealt with according to law: AAV15 v Minister for Immigration and Border Protection [2015] FCA 700; (2015) 230 FCR 454 at [40]-[41]. A form of injunction was sought on the application but no submissions were advanced to support the grant of injunctive relief. No other orders were sought.

46    As a result, it is not strictly necessary to consider the remaining grounds so I will address them only briefly. Grounds 2 and 5 claim that the decision should be reviewed for unreasonableness. For reasons that I gave in Huynh I have difficulty with applying in a general way the concept of unreasonableness to the exercise of a judicial discretion on an application to review the exercise of judicial power (as distinct from an appeal). The width of the jurisdiction entrusted to a judge makes it difficult to contemplate an exercise of power that is outside that jurisdiction because of unreasonableness. However, given the view that I have reached as to ground 1 it is not necessary to decide whether grounds 2 or 5 provide a different formulation of the jurisdictional error by the primary judge.

47    Ground 4 claims that the primary judge failed to have regard to relevant considerations in determining whether to grant the extension. In particular, it alleges that the primary judge failed to balance the severe prejudice to the applicant (who claimed that his life was in danger) with the lack of any prejudice caused by a 19 day delay. There is no mandatory relevant consideration to which there must be regard for a valid exercise of the judicial discretion entrusted to the Federal Circuit Court by s 477(2) other than the expressly stated test of whether the extension is in the interests of the administration of justice: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [10]-[11] (Bromwich J, Allsop CJ and Flick J agreeing). The primary judge did not approach the interests of justice in a manner that might be said to be a failure to apply that test and therefore a failure to discharge the judicial task. Therefore, ground 4 also raised a complaint about a matter within the jurisdiction of the primary judge and must be dismissed.

Second alternative, the application for an extension of time in which to appeal

48    The applicant claims in the alternative that it should be granted an extension of time in which to appeal the decision of the primary judge. The application is brought on the basis that the application lodged by the applicant in the Registry was within time and the subject of the Registrar's Refusal Letter was in fact a valid application. It is submitted that, as it was valid, the application that came before the primary judge was an application brought as of right and should have been treated as such.

49    The difficulty with that submission is that the primary judge only had before him the application for an extension. It may be that the extension application was brought only because the Registry informed the applicant that it was required, but nevertheless it was only the extension application that was to be determined. In those circumstances, there can be no error by the primary judge in not dealing with the substantive application (which was not before him) and no appeal can be brought as of right because there has been no decision on any substantive application.

50    It would have been open to the applicant to contend before the primary judge that the application filed before the Refusal Letter was a valid application and therefore an extension of time was not necessary and seek the extension only if the Court did not accept that contention. However, that did not occur. Instead the extension was sought.

51    At its highest, this Court might be invited to determine on judicial review that the substantive application should not have been refused for acceptance (being the matter addressed by the third alternative). However, even if a claim of that kind was accepted, it would not mean that an appeal could be brought from the decision of the primary judge. It could perhaps have been argued that the decision by the primary judge was outside jurisdiction because no extension was required, but if a claim of that kind was upheld that would only provide a further basis for the decision of the primary judge to be set aside. Given the conclusion I have already reached on the first alternative, no purpose would be served in considering that further alternative.

52    Therefore, on the second alternative, for the reasons I have given, the application for an extension of time in which to appeal must be refused because the appeal sought to be advanced is without merit.

Third alternative, review of Registrar's decision to refuse to accept the application

53    In the course of oral argument, it was contended for the applicant that the relief sought against the third respondent (the Federal Circuit Court) encompassed relief in respect of the conduct by the Registrar in refusing to accept the application that was filed within time. However, counsel for the Minister submitted that the third respondent as named would not encompass conduct by the Registrar in the making of an administrative decision. An oral application was made to join the Registrar and an order was made joining the Registrar as a party to the application for relief under s 39B of the Judiciary Act. As I have already noted, the Registrar has since filed a submitting appearance.

54    As to refusing to accept documents, the Registrar has the power conferred by r 2.06 of the Federal Circuit Court Rules 2001 (Cth) (Rules). It states that a Registrar may refuse to accept a document for filing if:

(a)    the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or

(b)    the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or

(c)    the rules relating to the electronic filing of documents have not been complied with.

55    In this instance, we are not concerned with a document that was sought to be filed electronically. On the evidence, the application was sent by facsimile transmission on 16 January 2020. Nor are we concerned with a document that was filed in an inappropriate registry. Finally, the Refusal Letter does not identify any of the matters in r 2.06(a) as a reason for not accepting the document. Therefore, refusal of the application for the reasons stated in the Refusal Letter does not appear to have involved the exercise of the power conferred by r 2.06.

56    As to other provisions in the Rules, unless otherwise provided, an application must be started by filing an application in accordance with the approved form: r 4.01(1). It must be filed with an affidavit (unless a stated exception applies): r 4.05(1). In the case of an application under the Migration Act of the kind sought to be raised by the applicant, the rules provide for the application to be made in accordance with the approved form: r 44.05(1). By r 44.05(2), it must also be supported by an affidavit including:

(a)    a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and

(b)    any document or other evidence the applicant seeks to rely on; and

(c)    if an extension of time is sought - the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension

57    There are a number of other requirements expressed in the Rules as to the form of documents.

58    However, there appears to be no equivalent to r 2.27 of the Federal Court Rules 2011 (Cth) which provides, amongst other things, that a document will not be accepted for filing if 'it is not substantially complete' or 'it does not substantially comply with these Rules'. The absence of any such rule conforms to the nature of the procedure in the Federal Circuit Court because its Rules are made with the express object of helping the Court, amongst other things, to operate as informally as possible: r 1.03(2). A person who is in doubt about the procedure for starting a proceeding may apply to the Court for an order about the procedure: r 1.07. Strict compliance with forms is not required and substantial compliance is sufficient: r 2.04. At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document: r 7.01. A Court ordered amendment may be made by a Registrar, an associate or another appropriate person: r 7.02.

59    The Rules also provide for the listing of a first court date at which the Court or a Registrar is to give orders or directions for the conduct of the proceedings: r 10.01. The Court is given ample procedural powers under the Rules to enable the efficient conduct of the proceedings in an informal manner, including by the making of orders or directions as to the amendment of documents.

60    These aspects of the Rules reflect the terms of the Federal Circuit Court of Australia Act 1999 (Cth) which identify an express statutory object of the legislation as being, 'to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power': s 3(2)(a). Further, the Court 'must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted': s 42. It is in that context that the legislation states that the Rules may provide for the practice and procedure to be followed in registries of the Court: s 81(1)(a). Therefore, it is not to be expected that the Rules would provide for undue technicalities or formalities as to the filing of documents or that the Registry of the Court would be administered in a manner that would have that effect.

61    The registry of any Court acts under the administrative direction of the judges of the Court. The purpose of a rule such as r 2.06 is to identify the circumstances in which a Registrar may refuse to accept or issue a document without the Registrar being required to obtain authority from a judge to do so: Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. Outside the terms of a rule such as r 2.06, it would appear that the Registrar should obtain a direction from a judge before rejecting a document unless the matter is confidently within an implied power to protect the Court's procedures by abuse: at [15]. I would add that the administrative practice of the Court as supervised by its judges may result in the recognition of well established procedures to be implemented by Registrars. They take effect by custom or usage as part of the day to day operations of any court registry. To implement such matters would be to give effect to the administrative direction of the judges of the Court.

62    To refuse the acceptance of a document for filing is an unusual step, properly reserved for clear cases. Though administrative, it has the potential to affect substantive rights, as the circumstances of this case show. Where there is no applicable rule and there is doubt as to power, the appropriate course is for a direction to be sought from a judge. Otherwise, the preferable approach is for documents to be accepted so that they form part of the record and any decision as to the consequence of any failure to conform to the requirements of the Rules or other procedures of the Court can then be determined by a judge.

63    Any direction given by a judge that a document should not be accepted for filing may itself be administrative in character: Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [25] (Nettle J); and Bizuneh at [11] (compare, McDonald v Federal Court of Australia [2017] FCA 1216 at [60]-[68] (Kerr J)). A direction by a judge to a Registrar not to issue a particular form of document without the leave of a judge would be an interlocutory order: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70. A direction in that form speaks judicially because it is conditioned upon a requirement for leave and therefore is in a form that requires a party to apply to a judge for an interlocutory order granting leave. To impose such a requirement is to exercise judicial power. Otherwise, it is not necessary for present purposes to determine whether a direction by a judge to a Registrar not to accept a document for filing is an exercise of administrative rather than judicial power. Having previously expressed agreement with the view of Kerr J in McDonald v Federal Court of Australia as to the nature and extent of the power to direct the Registrar not to accept a document for filing (Frigger v Banning (No 10) [2019] FCA 1664 at [14]), regard to the statement of Nettle J in Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate indicates that it may be correct to view that power as being administrative rather than judicial.

64    In any event, the implementation by a Registrar of any such direction would not be open to review as an exercise of judicial power by the Registrar: Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426 at [20].

65    Therefore, absent (a) an express power under the Rules; (b) an implied power; or (c) a well-established procedure as to the circumstances in which documents will not be accepted for filing, all documents presented for filing should be accepted and held as part of the Court record, unless there is a direction from a judge not to accept the document. If a Registrar has a concern about the appropriateness of accepting a document but the circumstances fall outside of the Registrar’s power not to accept, the issue should be raised with a judge for direction. It will then be a matter for a judge to make the direction or, in the later conduct of the matter, to consider making any appropriate direction to the Registrar for the removal of the document from the record where it fails to meet the requirements of the Rules or to require a document to be amended if it fails to conform to any of those requirements.

66    In the Federal Circuit Court where there is a first hearing where consideration is to be given to the overall conduct of each application, such a process ensures that orders or directions are made that are consistent with the statutory requirement of proceeding without undue formality and also to shape the process to suit the fair administration of justice in the particular circumstances of each case.

67    For completeness, I note that in addition to the administrative powers of a Registrar, the exercise of judicial power may be delegated to a Registrar as permitted by s 103 of the Federal Circuit Court of Australia Act. This has been done: r 20.00A(1). Consistently with its character, the exercise of such delegated judicial power by a Registrar is subject to a right of review (and therefore oversight) by a judge. The procedure for the review is set out in the Rules: r 20.01 to r 20.03. However, the power to refuse to accept a document is not a delegated judicial power. It is an administrative power. It is exercised by the Registrar at the direction of the judges of the Court by means of the Rules or some other form of direction.

68    Turning then to the particular application for review of the refusal by the Registrar in this case to accept the application and affidavit for filing. The Registrar is a Commonwealth officer and the decision was made under the Rules or the Federal Circuit Court of Australia Act. Therefore, the decision to exercise the power is amenable to review for jurisdictional error as part of the present application. (As there was no claim that the Registrar made a decision that could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) it is not necessary to consider that possibility: as to which, see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [50]).

69    It was contended for the applicant that the application and supporting affidavit (filed before the Refusal Letter) substantially complied with the Rules and therefore were documents that should have been accepted for filing. Therefore, the argument for the applicant assumed that the Registrar had power to refuse the application if, in the view of the Registrar properly formed, it did not substantially comply. Put another way, the argument assumed that the Registrar had power to refuse to accept the document if it did not substantially comply with the Rules, even without any direction from a judge of the Court to refuse to accept the document. It also assumed that no issue arose as to the exercise of the power to amend the document so that it did comply. For reasons I have given, it may be that the power of the Registrar was not as broad as the argument may suggest. Nevertheless, given the manner in which the issue was joined, I will assume that the Registrar had a power of that kind.

70    Approaching the applicant's argument in the manner in which it was presented, I am not satisfied that the application substantially complied with the Rules. I accept that the following aspects should have been treated as insubstantial (in the sense that they did not mean that the application failed to comply substantially with the relevant requirements of the Rules):

(1)    The failure to delete the inapplicable parties in the form used. The form itself stated that the decision in respect of which the application was made was the Authority. It was obvious from the form that the other options were not applicable.

(2)    The failure to select the relevant application for extension of time box. It was apparent from the application that it was made within the period of 35 days. The application stated the date of the decision of the Authority as being 17 December 2018 and it was apparent to any reader that the application was within time. Further, the usual consequence of not checking an option of that kind would be to assume that no extension was sought.

(3)    The failure to include a copy of the decision the subject of the application. As the form identified both the applicant and the Authority as the decision-maker and the date of the decision, the failure to include a copy of the decision in the case of an application to review a migration decision was not substantive because it was obvious that the respondents would have ready access to the decision. The requirement to include a copy of the decision aids the Court in understanding the nature of the application, but that is a matter that could be remedied by appropriate direction.

(4)    The fact that the affidavit was not sworn or affirmed. In the case of an application to review a migration decision, the affidavit is a formal requirement by which the decision under review is produced. For reasons already given, that is a matter that may be redressed by appropriate direction.

71    However, the fact that the details of the address for service were not completed on the application or the affidavit meant that the application did not substantially comply. Such details are necessary in order for the proceedings to be properly conducted. Without an identified contact address, hearings cannot be convened with any confidence and respondents do not know where to serve documents. It was not argued that there was some power of amendment by which the Registrar might have completed those parts of the document by reference to the available information (but without some authority from the applicant). Rather, it was submitted that the applicant was in immigration detention and those details could have been ascertained from the information provided when the application was sent by facsimile to the Registry. However, it is one thing for information of that kind to be known, it is a quite different thing for a Registrar to assume that those are the correct details and to complete the application without any direction from a judge to do so (perhaps after inquiries have been made of the applicant).

72    For those reasons, I do not accept that the application filed before the Refusal Letter substantially complied with the Rules and on that basis and for that reason I would refuse the application to review the decision of the Registrar not to accept the application.

An important issue not yet determined

73    As the matter is to be remitted for further consideration, it is important to be precise about what has been determined on the present application. As the power exercised by the Registrar was administrative, for reasons given in Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [30]-[39] (dealing with analogous provisions in the Federal Court Rules) the administrative decision to refuse to accept the document did not adjudicate substantively whether proceedings had been commenced within time. Therefore, despite the refusal of the acceptance of the document for filing by the Registry and the rejection of the application to review the decision of the Registrar, it remains open for the applicant to maintain before the primary judge that an extension is not required because the relevant statutory time limit under s 477 of the Migration Act was satisfied by the act of making the application within time. That is particularly so in circumstances where the application for an extension was brought, in effect, at the direction of the Registry because it would not accept the application unless an application for an extension of time was sought.

74    In that regard, the statutory requirement as to the time limit for seeking review in the Federal Circuit Court was that an application must be made to the Court within 35 days of the date of the migration decision: s 477(1). It may be that the statutory requirement has been met on the facts of this case and no extension is required. These are matters that turn upon the proper construction of s 477 and, in particular, what is required for the application to be 'made to the court' within 35 days. It is possible that the facts in this case meet that requirement even if the application that was brought within time was properly rejected, but was then followed up within a reasonable period by an application that was accepted. The subsequent application may be sufficiently connected to the application that was made within time that the statutory requirement is met. Those aspects were not argued on the present application. Nor did they fall within the ambit of the dispute as to whether the decision of the Registrar should be set aside. The substantive questions remain even though there has been found to be no basis to review the decision of the Registrar not to accept the application and affidavit for filing.

75    Upon remitter, the substantive question whether an application has been made to the court within 35 days will remain open and may bear upon whether the Federal Circuit Court is required to grant an extension of time in order for the applicant to proceed with the application that is before that Court.

Some further observations on directions not to accept documents

76    In the course of argument, counsel for the applicant indicated circumstances in which it was common for applications for review to be accepted despite a failure to comply with aspects of the Rules. It appears that the issues raised by the present application may be matters of fairly common concern for Registrars. In those circumstances, I add some additional observations.

77    Even though a direction not to accept a document for filing does not determine substantive rights, it may have that effect because the party may be prevented by the direction from being able to commence proceedings or from being able to commence proceedings within time. In those cases, there may not be the opportunity to simply file a conforming document at a later time. Instead, the party seeking to file the document may be confronted with an exercise of administrative power that may be difficult to challenge (see, for example, the decision of Perram J in Rahman v Hedge [2012] FCA 68 at [6]) and with lasting consequences for substantive rights.

78    Nevertheless, in order to maintain efficiency in the administration of justice, courts must be able to direct that certain types of documents not be accepted for filing. Otherwise, there would be the likelihood that the courts would become clogged with applications that are plainly an abuse or without any semblance of meaning or structure or that have been prepared in complete disregard of the procedures of the Court. To invoke the Court's jurisdiction there must be an application of a kind with which the Court can meaningfully engage. It is not possible to conduct a judicial proceeding if originating documents (and other court documents) do not conform to reasonable requirements as to their form, rationality, comprehensibility, length, structure and timeliness. Unfortunately, the experience of the Court is that it can quickly become burdened with applications that are fundamentally misconceived and documents that do little if anything to identify, confine and explain the issues or present materials in a way that enables a genuine dispute to be judicially adjudicated. The consequence of not exercising an administrative power to refuse to accept certain types of documents for filing would mean that the limited resources of the Court would quickly be consumed by dealing with applications that seek to misuse the Court process or otherwise are meaningless, purposeless or without the faintest hope of success.

79    Of perhaps greater concern is the reality that there are some legal practitioners (mercifully few) who completely or repeatedly disregard the directions of the court concerning the nature, timing, length or form of documents to be filed or the procedural requirements of the Court or both. In those instances too, the proper functioning of the Court requires that there be instances where it is appropriate for a direction to be given that a particular document not be accepted for filing.

80    However, in all those instances where consideration is being given to the possibility of refusing to accept a document for filing, a keen eye must be kept upon considering whether the administrative decision to refuse to accept the document may affect substantive rights. It must also be recognised that there is a level of inefficiency that can be generated by insisting upon a degree of compliance that requires documents to be revised and resubmitted for little practical purpose.

81    In summary, it is for good reason that provision may be made by the judges of a court in the interests of due administration for circumstances in which a Registrar may not accept a document for filing without a direction by a judge in a particular case to that effect. However, it is also important, absent any such provision or in cases of uncertainty, that documents be accepted for filing unless there is a direction from a judge not to do so. Finally, in all instances, refusal of acceptance of a document for filing should be reserved for clear cases, especially in the case of an originating process where there is the prospect that the refusal may affect substantive rights.

82    Importantly, acceptance of a document for filing does not mean that the document remains part of the record. A judge of the Court has power to direct that a document be removed from the Court file. In my view, that includes, in an appropriate case, directing the removal of an originating process.

Conclusion and costs

83    For reasons I have given, the application for judicial review of the decision of the primary judge under s 39B of the Judiciary Act should be allowed. The application for leave to appeal should be dismissed. Even though I have determined that the decision of the Registrar to refuse to accept the application and affidavit should not be set aside, there remains an issue as to whether an extension of time is required. On the basis of the manner in which the case proceeded, I am inclined to the view that the applicant has been substantially successful on the application and there should be an order for costs in favour of the applicant. I will make an order accordingly but, as there has not been an opportunity for submissions to be made on costs, reserve general liberty to the Minister to apply to vary the costs order. As the submitting appearances sought an opportunity to be heard on costs I will reserve leave to seek costs if considered appropriate. Given the orders I propose to make, it is appropriate for a dismissal order to be made in the separate proceedings for an extension of time in which to appeal.

Associate:

Dated:    6 April 2020