Federal Court of Australia

EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue quashing the judgment and order of the Federal Circuit Court made on 13 February 2020 refusing the applicant’s application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) and as to costs.

3.    A writ of mandamus issue compelling the Federal Circuit Court, differently constituted, to hear and determine the applicant’s application for an order under s 477(2) of the Migration Act 1958 (Cth) according to law.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    This is an application for judicial review of a decision of the Federal Circuit Court of Australia. The primary judge refused to extend the time by which the applicant may commence an application for judicial review of a decision of the Immigration Assessment Authority made under the Migration Act 1958 (Cth):  EOC20 v Minister for Immigration & Anor [2020] FCCA 2928. The Authority’s decision was a “migration decision” for the purposes of the Act.

2    By its decision, the Authority affirmed a decision of a delegate of the then-named Minister for Home Affairs to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa. Jurisdiction to review the Authority’s decision is conferred on the Federal Circuit Court under s 476 of the Act. Such an application must be made within 35 days of the Authority’s decision:  Act, s 477(1). Section 477(2) provides that the Federal Circuit Court may make an order extending that 35 day period as it considers appropriate, if satisfied (relevantly) that it is necessary in the interests of the administration of justice to make the order. As the application for judicial review was made outside the 35 day period, an extension of time was required. The primary judge concluded that the proposed grounds for judicial review disclosed no arguable case, and so refused to grant an extension of time.

3    For the reasons that follow, I am satisfied that in the exercise, or purported exercise, of the power the primary judge committed an error that is properly characterised as jurisdictional or otherwise committed an error warranting the remedies sought in this Court. It follows that this application should be allowed.

THE VISA APPLICATION

4    To be eligible for the grant of the visa it was necessary that the Minister be satisfied that the criteria for the visa were fulfilled:  Act, s 65(1)(a). The material criterion in the present case is that prescribed in s 36(2)(a) of the Act, namely that the Minster be satisfied that the applicant is a person to whom Australia owes protection obligations because he is a refugee (the Refugee Criterion). In the case of a person who has a nationality, the word “refugee” is defined in s 5H(1)(a) of the Act to mean a person who:

… is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; …

5    Section 5J(1)(a) of the Act provides that a person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

6    The reasons mentioned in s 5J(1)(a) and (b) broadly reflect the words in Article 1A of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Refugees Protocol relating to the Status of Refugees done at New York on 31 January 1967, to which Australia is a signatory. It is convenient to refer to them as Convention reasons, although they are strictly statutory in their expression.

7    The test in s 5J has a subjective component (subs (1)(a)) and an objective component (subs (1)(b)). The phrase “real chance” reflects the reasoning of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, decided before the enactment of the statutory definition. His Honour there said that a fear of persecution would be objectively well-founded if there is a real chance that the refugee will be persecuted if returned to his own country. His Honour said (at 389):

… I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen, per Mason, Wilson and Deane JJ. If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

(footnote omitted)

8    To similar effect McHugh J said in Chan (at 429):

… a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as ‘well-founded’ for the purpose of the Convention and Protocol.

9    The applicant is a citizen of Iran and is of Azeri ethnicity. His visa application was supported by a written statement. In that part of the statement referred to by the primary judge, the applicant said:

10.    My main problems in Iran started when I began my military service in approximately May 2009. Before this I had some family issues because my father was a drug addict and was violent, however I did not have issues with the Iranian authorities. After two months of training in the military, I was posted to Tehran very close to [redacted]. Soon after I started this posting, demonstrations against Ahmadinejad’s re-election began. The military police that I was part of often worked at these demonstrations, trying to prevent things from getting out of hand. Some of the other police beat people with batons but I always tried to stay towards the back and didn’t hurt people.

11.    A few months after I began working there a particularly big demonstration took place. It took place in [redacted] and thousands of people were there. They were very angry about Ahmadinejad’s re-election and thought he had cheated. I was on duty and was at [redacted] with other military police. The crowd was throwing things at us and yelling things like ‘down with the Supreme leader!’ and ‘we want Mousavi!’. Many were wearing green masks or bands around their heads or arms because it was called the Green Movement. Police were beating people with batons and using their shields to protect themselves. Then we got an order via our two-way radios to shoot people.

12.    I saw many people killed that day. I saw a girl shot and killed right in front of me and someone else thrown from a building. i also saw [redacted] killed, she was a young woman who was killed and this was filmed. She became famous because the footage of her being shot and dying was seen around the world. This happened to many people this day. Police were pulling people by the hair, beating them and lots of people were screaming. I found this horrifying. I did not want to be involved in this and refused to kill people.  …

10    Later in his statement the applicant said that he withdrew to a police building, took off his riot gear and left his gun there before fleeing to his parent’s home. The statement continues:

13.    When I got home I was extremely upset. My father asked me why I had left and I told him why but he was angry and said that I shouldn’t run away. We had a big fight about it. He is a strict Muslim and very supportive of the government. The next morning he called the military police and told them that I had escaped and was at home. I left home that day and moved around a lot in Tehran, attempting to hide from the military. At this time many people were running away from military service because they were being asked to do awful things. I hoped that if I could hide for long enough they would forget about me and I could return to normal life. After about one month I started sleeping at home again because I thought I was safe. Often the military will catch you one or two weeks after you escape. However one night when I was at home asleep they came and took me.

14.    They took me first to the police station I had worked at. They punched and kicked me and asked me why I had left. I told them that it was because I was scared. They kept me at the police station for about three nights and then took me to court. At the court I told the judge that I only left because I was young and scared and did not want to kill people. I think the judge believed me because I wasn’t sent to gaol at all, instead they sent me to a remote post in Khuzestan province. This meant that I could no longer see my friends or family except on leave.

15.    In Khuzestan I was mentally unwell because I kept reliving all that I had seen in [redacted] at the demonstration. I kept reliving the deaths and saw all the screaming. I could not mentally cope with still being in the service.

11    The applicant claimed that he had run away a second time, and that he was later issued with a summons in relation to the abandonment of his gun in connection with his original desertion from military service.

THE AUTHORITY’S REASONS

12    The delegate’s decision to refuse to grant the visa was automatically referred to the Authority for review under Pt 7AA of the Act. In its written reasons affirming that decision, the Authority summarised the applicant’s fears in connection with his desertion from military service in the following terms (at [5]):

•    He fears that he will be arrested, tortured, assaulted and possibly killed by the Iranian authorities if he returns to Iran because:

i.     he deserted the military and has a pending court case about this against him;

…

•    He fears that due to the political unrest now in Iran punishment for military service may now be more severe

•    He fears he may be sent to Syria or to fight Daesh as punishment for deserting.

…

13    The Authority accepted that the applicant had deserted his duties with the military during the 2009 demonstration and that he had left his gun at a police station “as he did not want to shoot people”. The Authority said the applicant had given a credible account of his experiences “when confronted with orders to shoot innocent people” in the demonstration which, the Authority noted, was part of a “well documented green movement at that time following the presidential elections in that year” (at [13]). The Authority accepted the applicant’s claim that “although his fellow conscripts proceeded to shoot at the people he refused to shoot his gun”.

14    The Authority also accepted as plausible that as a consequence of his actions in deserting his duties and leaving his gun, the applicant was arrested by the military police and assaulted in the course of questioning about why he had deserted, including that he had been punched, kicked and detained for three days before being brought before a court (at [13]). The Authority continued:

…  The applicant gave a credible account of his experience in being brought before the military court and of the outcome of that case. He did not seek to elevate the sentence he received or the implications arising from the military court hearing against him, and I consider it plausible that his young age and fear at that time were considered by the court and that he was accordingly punished by being sent to a remote posting in Khuzestan to complete his military service.

15    The Authority went on to consider the content of Iranian law in relation to military service, by reference to the country information before it. It said that the requirement to undergo military service was a requirement of the general law applicable to all Iranian males aged 18 years. It identified that military draft evasion and desertion in Iran was punishable under the 1992 Law on Punishment of Crimes Concerning the Armed Forces (the Military Service Laws), which provided for terms of imprisonment and extension of military service for draft evaders. On the basis of the country information before it (which included information that evaders were being arrested in increasing numbers), the Authority accepted that there was a real chance that the applicant may be arrested, prosecuted and punished with a term of imprisonment by reason of his desertion from the military. In a passage assuming some significance in these proceedings, the Authority went on to say:

29    The applicant did not express any political reasons for not completing his military service nor has he claimed that he was a conscientious objector. His reasons for evading military service are related to his personal experiences of having witnessed the shooting of innocent people during the green movement demonstrations whilst he was on duty as part of his military service and his refusal to engage in such activities. There is nothing to indicate that the applicant had any political motivations in doing so, or that he was a political activist or was engaged in any anti-regime activities. I do not consider that the applicant’s military evasion had any wider political significance to him or would have been so perceived. I do not accept that any punishment he may face if he is arrested in Iran for military evasion, including any possible term of imprisonment, amounts to persecution in the relevant sense. I do not accept that it would be for reasons of race religion, nationality, membership of a particular social group or political opinion, but rather it would be the non-discriminatory application of a generally applicable law that applies to all Iranian men under 40 years of age.

30    The post interview submission contends that lawful punishment can be disproportionately harsh or severe because it can involve a prison sentence. However, there is no evidence or information before me to suggest that the penalties under the law are applied disproportionately. Further, I am not satisfied on the evidence before me that the applicant has any political views or that he would be perceived by Iranian authorities as having such views such that he is likely to face a disproportionate punishment for his military evasion.  …

16    Accordingly, the Authority concluded that although the applicant had a well-founded fear of harm, the feared harm did not amount to persecution by reason of political opinion or any other Convention reason, such that the applicant was not a “refugee” as defined in the Act.

REASONS OF THE PRIMARY JUDGE

17    After considering the applicant’s explanation for the delay in commencing the proceeding, the primary judge said that the circumstances were such that he “would not regard the delay alone as a basis upon which the application for the extension of time should be refused” (at [55]). His Honour regarded the “merits of the proposed application, at the impressionistic level, as being of the greatest significance of this case” (at [55]).

18    To succeed on the proposed application for judicial review, it was necessary for the applicant to show that the Authority’s decision was affected by jurisdictional error:  Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. His second proposed ground of review alleged jurisdictional error in the following terms:

The Authority failed to consider an integer of the applicant’s claims, or unreasonably found that he had not claimed it, or that it did not arise on the materials, that he was a conscientious objector or otherwise objected to military service on political, religious or moral grounds, did not consider the nature of the military service required of the Applicant, or otherwise applied the wrong legal test.

19    The primary judge said (at [59]) that it was clear that the Authority had identified (at [29] of its reasons) that the applicant had made no claim to be a conscientious objector. His Honour said that was “a finding clearly open to the Authority in the context of what the applicant claimed”. The primary judge referred to a submission of the applicant’s Counsel to the effect that the content of his statement (extracted at [9] and [10] of these reasons) identified him as a conscientious objector. Rejecting that submission, the primary judge said:

60    That is clearly an invitation to the Court to engage in a merits review. The Authority’s finding that the applicant did not express any political reason for not completing his military service and that the applicant was not a conscientious objector were findings open to the Authority that were logical, rational and reasonable. The Authority’s reference to the applicant’s reasons for evading that service clearly identify the taking into account of the applicant’s evidence.

61    There is no apparent integer of the applicant’s claims in relation to ground 2 that was not taken into account. The Authority’s reasons in respect to the reference to conscientious objector cannot be said to lack an evident and intelligible justification. As identified in the Authority’s reasons, the Authority, correctly identified the relevant law and on the face of the Authority’s reasons applied the relevant law.

20    His Honour concluded (at [62]) that, at an impressionistic level, no “arguable case or relevant jurisdictional error” was identified by the second ground of review.

THIS APPLICATION

21    This Court’s jurisdiction to review the decision of the primary judge is that conferred by s 39B of the Judiciary Act 1903 (Cth). On this application, it is for the applicant to show that the decision of the primary judge is affected by an error that is properly characterised as jurisdictional.

22    The five grounds for review in this Court are as follows:

The learned Judge of the Federal Circuit Court made a jurisdictional error by:

a.    Failing to provide adequate reasons,

b.    Failing to consider the totality of the Applicant’s claims,

c.    Failing to consider fundamental aspects of the Applicant’s claims,

d.    Failing to consider submissions of substance,

e.    Failing to afford the Applicant procedural fairness,

In regard to the Applicant’s claim that he had deserted the military, was a conscientious objector, and was at risk of serious harm, in finding that ground 2 of his Federal Circuit Court Application was not reasonably arguable.

23    The grounds in (b), (c) and (d) (as elaborated upon in submissions) went further than an allegation that the primary judge failed to consider claims or submissions of substance. The effect of the submissions is articulated in a further amended statement of claim as follows:

1.    The learned Judge of the Federal Circuit Court made a jurisdictional error in refusing the extension of time, by applying the an incorrect test for ‘conscientious objector’ in place of the test of whether the Authority had made a jurisdictional error in rejecting the applicant’s claims to have been subjected to serious harm for a convention reason in relation to being punished for deserting the military rather than carrying out or being complicit in the carrying out of illegal orders to shoot protesters, and to have a well founded fear of persecution in relation to any future punishment for his subsequent desertion, including any requirement to complete his military service.

2.    The primary judge misapplied the test for consideration of an application for an extension of time.

24    There is a substantive difference of expression between the errors alleged in the originating application and the errors articulated in the amended pleading. As the Minister’s submissions have addressed all aspects of the case, I will proceed to consider the above arguments in addition to the arguments subsumed in the five grounds for review.

25    To that end, it is necessary to ask whether the primary judge erred in rejecting or failing to properly consider the substance of the applicant’s arguments relating to his desertion of the military and its implications for his claim to be a refugee. If there be errors identified of the kind alleged in this proceeding, it will then be necessary to consider whether the errors are properly to be categorised as jurisdictional, or whether they otherwise provide a basis for granting the relief sought.

DID THE JUDGE ERR?

26    There were three related arguments encapsulated in the second ground of review in the proceedings in the Federal Circuit Court, as enlarged upon in the pleadings and submissions before the primary judge.

27    The first and principal argument was that Authority failed to consider an integer of the applicant’s claims, or unreasonably found that he had not claimed, or that it did not arise on the materials. The relevant allegation was that the applicant was a conscientious objector or otherwise objected to military service on political, religious or moral grounds, so as to fall within the refugee definition.

28    That argument required consideration to be given to the reasons advanced by the applicant for deserting the military as he had expressed them. It then required careful consideration to be given as to whether (and if so how) those reasons bore on the question as to whether the applicant was a refugee. The argument was not, on its terms, restricted to a consideration of the phrase “conscientious objector”. It is common ground that the unrepresented applicant did not himself use that expression in articulating his claims. Whilst the phrase is used by the Authority in its reasons, the Authority did not give the expression content so as to disclose its significance in connection with the application of the Refugee Criterion to the facts. The reasons of the Authority are opaque in that respect. So, too are the reasons of the primary judge.

29    The second argument encompassed in the proposed ground of review was that the Authority did not consider the nature of the military service required of the applicant. That aspect of the argument went to the particular activities the applicant had refused to perform, namely that he had been ordered to shoot people who were protesting about the re-election of the Iranian government. That issue was relevant to ascertaining the reason for applicant’s evasion of military service and may be regarded as an element of the first argument.

30    The third argument is the Authority applied the wrong test. In the context of the applicant’s written and oral submissions before the primary judge (discussed below), this argument is to be understood as alleging that the Authority wrongly identified the harm as arising from a law of general application without asking itself whether that law should be so recognised, by reference to the facts that it had found.

31    At this juncture it is necessary to summarise the legal principles against which these arguments fell to be decided.

Legal principles

32    In the exercise of its powers of review under Pt 7AA of the Act, the Authority was required to address and determine the applicant’s factual claims and to apply the law to the facts as found. In Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, Allsop J (as his Honour then was) said, of the power of review under s 414 of the Act (at [42]):

…  The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.  …

33    See also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321. The same principles apply to the Authority in the exercise of its powers under Pt 7AA of the Act.

34    The Authority’s task was to respond to a “substantial, clearly articulated argument relying on established facts” including any claim that clearly emerged from the materials before it:  Drachnikov at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [63], [68]. As Merkel J said in Htun (at [13]):

The Tribunal’s approach to this issue might be explained by the manner in which the appellant put his case. However, unlike in an adversarial proceeding, the Tribunal cannot limit its determination just to the case articulated by an appellant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the appellant:  see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]; Sellamuthu v Minister for Immigration and Multicultural Affairs at 293-294; Chen v Minister for Immigration and Multicultural Affairs at 180 and Giraldo v Minister for Immigration and Multicultural Affairs [2001] FCA 113 at [58]-[59].  …

35    In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Gleeson CJ, Gummow and Kirby JJ confirmed that there was no general rule that the implementation of a law of general application can never amount to persecution. Their Honours said that such a law may be implemented or enforced in a discriminatory manner (at [42]). The Court went on at [43]:

The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled.  …

(footnotes omitted)

36    As Gray J said in Erduran v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 150 at [28] when an issue arises concerning the refusal of a person to undergo compulsory military service, “it is necessary to look further than the question whether the law relating to that military service is a law of general application”. His Honour continued:

…  It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group.  …

37    In addition, it is necessary to ask whether the law of general application is enacted or enforced for a legitimate purpose:  Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157. More particularly, it is necessary to ask whether the requirement for compulsory military service (and the punishment inflicted for breach of the requirement) constitutes persecution by reason of the nature of the military service, particularly if the compulsory military service involves breaches of humanitarian law and human rights abuse:  SZAOG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 86 ALD 15 at [18] (North J).

38    The point was reinforced in Applicant S at [46]. The Court there observed that an authority recognised as the government of a nation state may “pursue objects that offend the standards of civil societies which seek to meet the calls of common humanity”. Such regimes, the Court said, would have been all too well known in Europe when the Convention was adopted. For the purpose of the assessment of a person as a refugee, the notion of a law of general application involves more than simply identifying that the feared harm may be inflicted under such a law. The Court continued:

…  The point may be seen in the discussion of by Lord Wilberforce in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2], with reference to Locke, of a government without laws as inconsistent with at least ‘a civilised and organised society’ and by Lord Salmon in Oppenheimer v Cattermole and Lord Steyn in Kuwait Airways Corporation v Iraqi Airways Co [Nos 4 and 5] of arbitrary activities not deserving of recognition as a law at all.

(footnotes omitted)

39    The Court held that it was necessary to consider whether young men were being forcibly recruited (in that case by the Taliban) to the achievement of a legitimate end, and if so, to then ask whether the law of general application providing for their recruitment could be considered to be “appropriate and adapted, in the sense of proportionate in the means used to achieve that objective”. If it were not, the law could not be one that was to be condoned internationally.

40    There is no reason to suppose that the principles stated in Applicant S, Erduran and Chen should cease to apply upon the enactment of the statutory refugee definition now found in s 5J of the Act.

Arguable errors of the Authority

41    The Authority had before it a referred applicant who did not have the assistance of a lawyer or migration agent in articulating his claims before the delegate or in his dealings with the Authority itself. It is hardly surprising that the applicant did not articulate his claimed fear of persecution in formal terms. He did not adopt the language of the Act, nor did he refer to principles in the case law in setting out his claims. The applicant nonetheless made his reasons for deserting military service very plain indeed. The applicant did not claim to object to the concept of compulsory military service entirely. Rather, he gave a detailed description of events occurring some two or three months after his military service began. On any reasonable view of his claims, it was those events that provided the impetus for his desertion. The factual events having been accepted, on any reasonable view, the applicant was a person who held an opinion that it was wrong to shoot innocent persons to suppress a political protest.

42    The Authority identified (correctly) that the applicant had claimed to have deserted military service because he had been “confronted with an order to kill innocent people” at a political protest and that he had refused to do so. It also appears to have accepted that the applicant’s father had reported him to the police because the father was a supporter of the police and the government. It identified (again correctly) that the applicant feared harm at the hands of Iranian authorities relevantly because of the fact that he had refused to complete military service. The feared harm included an extension of the period in which he must undergo military service as well as physical lashing. To properly discharge its function it was necessary for the Authority to assess whether those found facts brought the applicant within the statutory definition of a refugee. To that end, the Authority accepted that there was a real chance that the applicant would suffer harm at the hands of the Iranian authorities should he be returned to Iran. The issue was whether there existed the relevant nexus between the anticipated harm and a Convention reason.

43    In my view, it is plainly arguable that the Authority committed jurisdictional error in concluding that the feared persecution was not for a Convention reason. More specifically, I consider the following propositions to be reasonably arguable:

(1)    The Authority said that the punishment to be visited upon the applicant for deserting the military would not constitute persecution for a Convention reason, because the applicant had not made a claim to be a “conscientious objector”. That finding amounted to a misstatement of the applicant’s factual claims. The applicant had objected to continuing in military service by reason of his conscientious refusal to kill protestors at an anti-government protest. His factual claims could not be reasonably interpreted in any other way. Whilst the Authority did not define what it meant by the phrase “conscientious objector”, the applicant plainly fell within the ordinary meaning of the phrase, whether or not he personally employed the phrase in articulating his claims.

(2)    It may be that in using the phrase “conscientious objector” the Authority was attempting to embark upon the more nuanced enquiry referred to by Gray J in Erduran, that is, to ask whether the applicant had claimed to have objected to continuing military service on the basis of a political opinion or some other Convention reason. However, in doing so, the Authority conceived of the concept of a political opinion in the bluntest of terms. The Authority observed that the applicant had not made a claim to be either for or against the government of the day and had not made a claim to have deserted the military because he was not a supporter of the government. It is true that the applicant had not claimed to be an opponent of the government per se. But that did not relieve the Authority of its essential task. The Authority did not grapple with the consequence of its finding that the applicant refused to obey orders to kill those who demonstrated against the government and to apply the statutory definition of a refugee to those critical facts.

(3)    The Authority did not ask itself whether there was a well-founded fear of persecution for a Convention reason having regard to the nature of the military service, including (as the Authority accepted it did) a requirement to obey an order to repress a political protest by shooting innocent people. It conceived of the word “political” in overly narrow party-political terms, and so searched for an expression of opinion favouring one political leader or regime over another. That search yielded nothing of assistance to the applicant because the wrong question had been asked.

(4)    The Authority did not ask whether the law of general application was appropriate and adapted to a legitimate end, as required by Applicant S. It did not ask whether the requirement to obey the order to shoot protestors (as a compulsory incident of military service) was a requirement that should be recognised as a law at all. Accordingly, it did not ask whether the punishment of a conscript who refused to obey such an order is capable of meeting the description of persecution by reason of political opinion for the purposes of the definition in s 5J of the Act.

(5)    It is clear that the Authority did not embark on that enquiry because of its finding, at a higher level of generality, that the applicant had not fixed the label “conscientious objector” to himself. But as observed above, that finding was itself affected by an erroneous failure to assess the facts it had found concerning the reason for military desertion against the refugee definition. The Authority did not apply the principles to the factual claims that had been made and accepted.

44    These arguable errors, if established, were plainly jurisdictional in nature. As explained in Htun, the applicant’s claims and its component integers were jurisdictional considerations in the sense that they defined the Authority’s task. They formed the very subject matter that fell to be assessed against the requirements of the Act. They are not mere instances of errant fact finding

Errors of the primary judge

45    The proposed second ground of judicial review was supported by oral and written submissions. I am satisfied that the submissions (and the language of the proposed ground) alleged arguable errors by the Authority of the kind that called for an analysis of the above issues. The applicant (then legally represented) expressly submitted that the Authority had misapplied the principles in Erduran and Applicant S, both of which were referred to in the written submission and included in the applicant’s list of authorities. The applicant argued that the Authority had erred in its conclusion that he had not claimed to be a conscientious objector. The ground of review employed the phrase “conscientious objector” but was not dependant for its success on the fixing of that label on the applicant. Alternative phrases were also employed. The ground of review and accompanying submissions required the primary judge to ask whether the Authority had committed a jurisdictional error of the kind discussed in Htun, having regard to the body of principles concerning laws of general application to which he was directed, and having particular regard to the Authority’s factual findings.

46    Against that legal context, the reasons of the primary judge disclose error in several related respects.

47    The primary judge was wrong to state that the Authority’s “conclusion” that the applicant had made no claim to be a conscientious objector was “a finding clearly open to the Authority in the context of what the applicant claimed”. The applicant’s objection to continuing military service for reasons based on his conscience plainly emerged from the materials, as alleged in the second ground of review. More fundamentally, the primary judge was wrong to dismiss the applicant’s arguments as “clearly an invitation to the Court to engage in a merits review”. That conclusion wrongly categorised the applicant’s arguments as concerned with errant fact finding on the part of the Authority, rather than as an error affecting the Authority’s power to review the delegate’s decision. The primary judge failed to recognise that the arguments on the proposed second ground of review alleged an error that was jurisdictional in nature.

48    The primary judge was wrong to conclude that the Authority had applied the relevant law to the facts as found.

49    The primary judge did not address the argument that the Authority had failed to consider the nature of the military service the applicant had been compelled to perform. There is no consideration by the primary judge of the argument that the Authority failed to categorise the law of general application as one that pursued an object that offended the standards of civil societies, such that it should not be recognised:  Applicant S at [46]; and see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258.

50    Like the Authority, the primary judge did not grapple with the legal consequence of the acceptance of the factual claim that the applicant had deserted the military because he had been confronted with an order to kill protestors and had refused to do so. Like the Authority, the primary judge considered it to be conclusive that the applicant had not expressly claimed to be a conscientious objector or a political activist and so did not consider the argument that there was a nexus between the feared persecution and political opinion.

51    As discussed above, to the extent that the laws of general application provided for the punishment of persons who had deserted the military for the reasons advanced by the applicant (and accepted by the Authority), issues clearly arose as to whether the Military Service Laws were discriminatory in their practical application or constituted persecution by reason of political opinion, or otherwise should not be recognised because of its illegitimate objects. Those issues were not considered. The issues could not be avoided by pointing to the failure of the applicant to describe himself as a “conscientious objector” or a failure to articulate how the facts asserted by him met the definition of a refugee in statutory language:  Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50; Bouianov v Minister for Immigration and Multicultural Affairs [1998] FCA 1348 at 2.

52    The errors are material in that the identification of an arguable case may have resulted in a favourable exercise of the discretion to extend the time to apply for judicial review on the second proposed ground, there being no other discrete reason expressed by the primary judge for refusing to exercise the discretion in the applicant’s favour. His Honour did not regard the evidence concerning the reasons for delay as providing a discrete and sufficient basis for refusing the application.

53    As discussed below, I am satisfied that the above errors of the primary judge align with one or more of the errors alleged on the originating application before me.

ARE THE ERRORS JURISDIcTIONAL?

54    The applicant seeks an order in the nature of certiorari quashing the decision of the primary judge and an order in the nature of mandamus compelling the Federal Circuit Court to hear and determine his application under s 477 of the Act according to law.

55    As Hayne J said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (at [163]), in determining whether a writ of certiorari should be granted, a distinction is to be drawn between jurisdictional errors and errors within jurisdiction.

56    In Craig v South Australia (1995) 184 CLR 163, the High Court accepted that the distinction is one that may be difficult to draw (at 177). The High Court did not discard the distinction, notwithstanding its abolishment in England (at 178 – 179). The High Court confirmed that in considering what constitutes jurisdictional error, it is necessary to distinguish between inferior courts and other tribunals, each of which are amenable to the writ (at 176, 179). The distinction arises because of the place of courts in the “ordinary hierarchical judicial structure” (at 176 – 177). The High Court said (at 177) that 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. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

57    The Court went on to discuss what it termed “obvious” and “less obvious” cases in which jurisdictional error might be committed. Among the obvious cases were those in which an inferior court entertains a matter or makes “a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”. For example, jurisdictional error may be committed if a court having jurisdiction limited to determining civil matters hears and determines a criminal charge, or where it granted a remedy it did not have the power to grant. Less obvious examples included cases in which an inferior court lacked authority to decide because the authority was preconditioned on the objective existence of a fact or circumstance that did not exist (at 178). Similarly, the High Court said, jurisdictional error will occur where an inferior court disregards some matter where consideration of the matter is a precondition to the exercise of the power to make an order or a decision in the circumstances of the particular case. An inferior court will fall into jurisdictional error if it misconstrues the statute in such a way as to misconceive the nature of the function which it is to perform, or the extent of its powers in the circumstances of the particular case (at 178 – 179). Otherwise, the High Court said (at 179 – 180):

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.

58    In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, the High Court determined that the Industrial Court of New South Wales had committed jurisdictional error by misconstruing a statutory provision creating a statutory offence. As a consequence of the misconstruction, the Industrial Court convicted a company and its director of offences when what had been alleged (and what had been established) did not constitute offending conduct (at [74]). In addition, the Industrial Court committed jurisdictional error by failing to apply an evidentiary law. That error was jurisdictional because the power to convict the company and its director of criminal charges was preconditioned by there first being a trial conducted in accordance with the laws of evidence. After summarising the various examples of jurisdictional error discussed in Craig, the High Court said (at [73]):

As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the references in Craig to the difficulties that are encountered in cases of the kind described in the third example.

Authorities concerning s 477 of the Act

59    Subject to exceptions having no present application, s 476 of the Act provides that the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Sections 477(1) and (2) provide:

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

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

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

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

60    Three observations may be made of the text and structure of the provision.

61    The first observation relates to its similarity in language and form to s 486A of the Act, which provides:

(1)    An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

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

(a)    an application for that order has been made in writing to the High 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 High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

62    In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, Gageler and Keane JJ discussed the interrelation between s 486A and the High Court’s original jurisdiction under s 75(v) of the Constitution. Their Honour said (at [42]):

Section 486A does not prevent the making of an application under s 75(v) of the Constitution. The application is made by filing an application for an order to show cause in accordance with the High Court Rules. Section 486A operates rather to regulate the procedure applicable to the exercise of the jurisdiction that has been invoked by the making of such an application where the application has not been made within thirty-five days of the date of the decision which the plaintiff seeks to challenge. It does so by making the grant of the relief sought in the application conditional on an order extending the period for the making of the application. The period of the extension need only be to the date on which the application for an order to show cause has in fact already been filed. In parlance which derives from the historical practice of the Court of Chancery [See Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 131-132.], the order is one which can and should be made nunc pro tunc.

63    There is no reason to conceive of s 477 of the Act differently in its application to the Federal Circuit Court. As such, it is to be approached and interpreted as a provision that regulates the procedure applicable to the exercise of the jurisdiction conferred on the Federal Circuit Court by s 476 of the Act. It makes the grant of relief under s 476 conditional upon a procedural order extending the period in which the application for judicial review may be made.

64    The second observation is that the power to make an order under s 477(2) is preconditioned by the fulfilment of each of the conditions in subs (2)(a) and (b) in the sense that the power to make the order may only be exercised if each condition is fulfilled.

65    The third observation is that the fulfilment of the condition in subs (2)(b) depends upon the formation of a state of satisfaction on the part of the Federal Circuit Court. The precondition of a statutory power by that subjective criterion does not protect its exercise from judicial review. For example, as Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (at 430):

Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

66    Latham CJ continued (at 432):

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event, the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

67    The judgment R v Connell concerned the legality of a decision of an administrative decision-maker, rather than an inferior court.

68    The fourth observation is that the rules of procedural fairness condition the exercise of the discretion, not least of all because procedural fairness is an essential characteristic of judicial power:  Condon v Pompano Pty Ltd (2013) 252 CLR 38; Shrestha v Migration Review Tribunal (2015) 229 FCR 301 at [37] – [38].

69    The circumstances in which a judge of the Federal Circuit Court may commit jurisdictional error in the exercise of the power conferred by s 477 of the Act has been the subject of consideration by this Court in the exercise of its appellate jurisdiction on a number of occasions.

70    In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, Mortimer J dismissed an application for judicial review of a decision of the Federal Circuit Court dismissing an application for an extension of time to apply for judicial review of a decision of the then-named Refugee Review Tribunal. Her Honour made a procedural ruling (at [61]) that the appellant not be permitted to raise an argument as to whether the Federal Circuit Court had misapplied the test under s 477(2) of the Act. The argument sought to be raised was that the Federal Circuit Court had applied the wrong test by asking whether the appellant “could succeed” in any of his grounds, rather than asking whether the grounds of review were reasonably arguable.

71    On appeal, the Full Court concluded that the procedural ruling was not affected by appealable error. Accordingly, it was unnecessary to decide whether an error of the kind alleged to have been committed by the Federal Circuit Court judge ought properly to be characterised as jurisdictional:  MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 (Tracey, Perry and Charlesworth JJ). In obiter, the Full Court approved of the approach of Mortimer J on an application under s 477(2). That approach had been elucidated as follows:

62    … it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

63    The correct approach may be expressed by the use of language such as whether a ground is ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’ (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.

72    As to whether such an error may properly be characterised as jurisdictional, whilst not deciding the point, Mortimer J made the following observations:

67    In the present case, the Federal Circuit Court’s reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review and which I have set out at [15]-[17] above, and because of the extent of the consideration given to each ground.

68    Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court’s jurisdiction is another and difficult question. In Kirk (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. If, for example, her Honour in the present case could be said to have taken the approach that it would only be in ‘the interests of the administration of justice’ to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred.

69    In a proceeding where this matter was not a ground on which relief was sought and was not fully addressed in submissions, it is not appropriate to determine the issue. In any event, I am not persuaded her Honour’s reasons, fairly read, so clearly take the kind of erroneous approach to which I have referred.

70    However, the line is a fine one, and in my respectful opinion both in respect of s 477(2), and in respect of the corresponding power reposed in this Court under s 477A(2), the need for a restrained approach to the assessment of the merits of grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion, as outlined by French J in Seiler, should always be recalled.

73    The issue that was unnecessary to decide in MZABP directly arose for determination AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401. In that case, I concluded that a Federal Circuit Court judge had made an error of the same kind that had sought to be alleged by the appellant in MZABP. I determined that the error, as demonstrated in that case, was jurisdictional. Among other things, I had regard to the legal context of s 477(2) in light of what was said in Wei. Crudely summarised, I concluded that the error had the effect of erecting a higher threshold to the invocation of the substantive jurisdiction in s 476 that was not contemplated by the Act. The Minister did not appeal from the judgment in AZAFX and the correctness of the judgment has not otherwise been the subject of direct consideration in this Court or elsewhere.

74    In SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 it was argued that the Federal Circuit Court had failed to have regard to a mandatory relevant consideration, namely the lack of any prejudice that might be suffered by the Minister should an order under s 477(2) be made. The primary judge concluded that there had been no failure to take the lack of prejudice into account. The Full Court identified no appealable error in that finding. Bromwich J (with whom Allsop CJ and Flick J agreed) concluded that the absence of prejudice was in any event not to be regarded as a mandatory relevant consideration in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Although the question was unnecessary to decide, each member of the Court was of the view that such an error, if demonstrated, would not be jurisdictional (Bromwich J at [10], Allsop CJ at [21] and Flick J and [16]).

75    In CNC15 v Federal Circuit Court of Australia [2017] FCA 1540 I rejected an argument that the Federal Circuit Court had erred by embarking on a substantive determination of the merits of an application for judicial review. Accordingly, it was unnecessary to determine whether the error was jurisdictional and unnecessary to determine a submission (advanced by the respondent Minister) that AZAFX was plainly wrong and so should not be followed.

76    An appeal from the judgment in CNC15 was unsuccessful: CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 (White, Perry and Steward JJ). Having upheld the conclusion that the Federal Circuit Court had not committed the asserted error, the Full Court noted (at [45]) that it was unnecessary to consider whether such an error was or was not jurisdictional. The Full Court nonetheless ventured an opinion on the question. After summarising the principles, the Full Court said (at [48]):

Applying these principles, it was not suggested, for example, that the FCC had misconstrued s 477(2) of the Act, thereby misconceiving the nature of its function or extent of its powers. Nor was there any suggestion that the FCC had misunderstood the manner in which it should approach an assessment of whether or not the proposed application for judicial review had any reasonable prospects of success as an aspect of determining whether it was in the interests of justice to extend time under s 477(2)(b):  semble BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 at [39] (Perry J). The disagreement was simply with the FCC’s assessment of the merits of the proposed application for judicial review. That is plainly an error within the FCC’s jurisdiction.

77    In CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400, Steward J held that a judge of the Federal Circuit Court committed jurisdictional error in the exercise of the power under s 477 of the Act by failing to address one of the proposed grounds of judicial review upon which the applicant had sought to rely. The ignored ground was not on its face meritless, absurd or irrelevant. In describing the error as jurisdictional, Steward J said:

29    …  One commences with the proposition from SZUWX that a matter does not become a mandatorily relevant consideration because one of the parties raises it. It would thus not be a breach of the rules of procedural fairness to fail to address a ground of review that raised an irrelevant matter or was manifestly absurd. But where the ground raised is substantive, or appears to have substance, in my view an inferior court should address it concordantly with Dranichnikov. Failure to do so would, in my opinion, constitute ‘such a fundamental misunderstanding of the discretion in s 477(2)’ in the sense described by Mortimer J in MZABP, as to constitute jurisdictional error.

…

31    The dictum set out above from Dranichnikov is not an exhaustive statement of principle. For example it is not confined to arguments which rely upon ‘established facts’. As Griffiths J observed in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [78]:

…I do not accept that procedural unfairness occurs only if the Tribunal has failed to deal with a substantial and clearly articulated submission which relies upon an established fact. That would preclude a finding of procedural unfairness (or, I would add, a constructive failure to exercise jurisdiction) if the Tribunal failed to deal with a submission of substance relating to a legal issue, such as a question of statutory construction.

78    Steward J said that the error constituted both breach of the rules of procedural fairness in the broad sense discussed in Dranichnikov and as a constructive failure to exercise jurisdiction:  cf Cecil v Director of Public Prosecutions (Nauru) [2017] HCA 46; 349 ALR 570 at [17].

79    His Honour went on to say that if the error was not properly to be characterised as jurisdictional, the writs of certiorari and mandamus could nonetheless issue, those writs being available where an inferior court fails to provide procedural fairness in accordance with principles stated by the High Court in Ex parte Aala and Annetts v McCann (1990) 170 CLR 596.

80    In DHX17 v Minister for Home Affairs [2019] FCA 2150 (at [66]), Greenwood J upheld an argument that the Federal Circuit Court had wrongly elected to determine an application under s 477(2) by reaching a conclusion about the merits of the grounds of judicial review as if he were dealing with the substantive judicial review application on the merits. His Honour concluded (at [61]) that the grounds of review in that case could not be described as so devoid of merit that an order extending the time under s 477(2) would be futile.

81    Greenwood J went on to say:

72    The interests of the administration of justice in any particular case are generally served by enabling the judicial power of the Commonwealth to be exercised at a final hearing at which the arguments for and against the relief sought based on the grounds agitated are heard and determined. If it is clear that the challenge sought to be advanced at a hearing is not even arguable, an application for an extension of time to advance such a case is properly refused as making an order for an extension of time could hardly be regarded as necessary in the interests of the administration of justice. If, on the other hand, the grounds are arguable and a party is deprived of an opportunity of fully developing those grounds by reason of a refusal to exercise a discretion to extend time on the footing that the applicant has not been able to show that the grounds of review, upon examination of the arguments for and against them, reveal jurisdictional error, the interests of the administration of justice are not served.

73    The election by the primary judge to determine the application for an extension of time on the footing that the discretion would be exercised against the applicant because the primary judge was ‘satisfied that there has been no jurisdictional error shown in this matter’, caused the discretion to miscarry.

74    The next question is whether a miscarriage in the exercise of the discretion on such a basis is an error within jurisdiction or an error going to jurisdiction (as an excess of jurisdiction).

(emphasis in original)

82    His Honour concluded (at [82] – [84]) that the error suggested that the Federal Circuit Court judge had misconceived the true scope of the question he was called upon to answer in exercising the discretion under s 477(2) of the Act, that it was “accurate to describe this misconception as one going to the function to be performed and the power to be exercised” and that the apparent misconception (at [84]):

.. went to the root of the statutory discretionary power to be exercised because an analysis of the merits of the grounds of review in [the] sense reflected at [48] and [49] [in] the primary judge’s reasons was not required by s 477(2) of the Act.  …

83    His Honour nonetheless concluded that there was no jurisdictional error, including because the miscarriage of the discretion under s 477(2) could have had no material bearing on the outcome. His Honour conceived of the relevant “outcome” as being the outcome of the exercise of the jurisdiction under s 476 of the Act, which the applicant in that case had sought to invoke.

84    An appeal to the Full Court was allowed:  DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [65] – [68]. The Full Court (Collier, Rangiah and Derrington JJ) said (at [87]) that the decision of the Federal Circuit Court had been made consequent upon a misconception of the power and that Greenwood J had been correct to so find. The test for materiality, the Full Court said, was to be applied by reference to the outcome of the jurisdiction exercised or purportedly exercised under s 477, and not the substantive jurisdiction conferred by s 476, the two tasks being functionally different (at [98]). The Full Court concluded (at [98]):

…  The issue was the legality of the FCC judge’s decision under s 477(2) and the correct conclusion was that it was beyond power, having been affected by jurisdictional error in the sense that there was a material failure to exercise the power. The question of the proper disposal of the application to extend time ought to have been remitted to the FCC judge for determination according to law.

85    It is apparent that the numerous occasions for consideration of the question have for the most part involved allegations of error of the same or a similar kind. On most occasions, it was argued that the Federal Circuit Court erred by embarking on a substantive determination of the merits of the application for which an extension of time is sought, rather than approaching the merits at an impressionistic level in determining what the interests of justice required. Unsurprisingly, the focus in those cases is on whether an error of that kind might signify a misconception on the part of the Federal Circuit Court as to the nature of the power in s 477. Consistent with what was said in Craig and Kirk, misconception of the nature of a power is not the only route by which jurisdictional error may be established.

86    The survey of the authorities reinforces the importance of identifying those arguments that arose for adjudication in each case and those that did not. As Allsop CJ said in SZUWX at [21], the question of whether an error is jurisdictional is, and always will be, context specific. As his Honour emphasised, the identification (or not) of jurisdictional error in a specific case ought not to be used as a logical premise for argument in any further case.

87    If there be an apparent divergence of view in the opinions of differently constituted Full Courts (for example, as between the obiter opinion expressed by the Full Court in CNC15 and the later judgment of the Full Court in DHX17), that may be explained by the different manner in which the cases were argued and other variables defining the Court’s task. Nonetheless, as the judgment and outcome in DHX17 shows, it is not correct to say in absolute terms that an error in assessing the merits of the proposed grounds of judicial review is in every case to be regarded as an error within jurisdiction. If an error affecting that aspect of the Federal Circuit Court’s reasoning is identified, it is necessary to ask what the error might signify. The error may (as in DHX17) signify a misapprehension on the part of the primary judge as to the nature of the power.

88    As discussed below, it may also signify an actual or constructive failure on the part of the Federal Circuit Court to adjudicate the controversy before it.

Application of principle

89    The question is whether the five asserted errors articulated on the originating application in this Court (as extracted at [22] above) are jurisdictional. Collectively, the grounds amount to a complaint that the primary judge did not grapple with (and so did not decide) fundamental aspects of the applicant’s submissions on the application under s 477(2). As is commonly the case, I consider each ground to be a different way of articulating the same thing:  Yusuf at [82].

90    In my view, the structure of s 477 is such that the primary judge was obliged to consider and adjudicate upon the material that had been put in writing by the applicant in fulfilment of the condition in s 477(2)(a). The criterion in subpara (2)(a) is not to be regarded as a mere procedural checkbox having no legal consequence for the exercise of the power. Rather, it is to be understood as the procedural means by which the applicant defines the matters upon which he or she relies and in respect of which he or she is entitled to be heard. To the extent that another party joins issue with those matters, there exists a controversy to be adjudicated upon. That is not to say that the Federal Circuit Court judge cannot have regard to matters not articulated by the parties themselves. But in my view, it is not open to the Federal Circuit Court judge to avoid adjudication of the controversy as defined by the parties before it.

91    In that regard, the structure of s 477 bears similarity to that of s 501CA of the Act. Whilst the power in s 501CA is directed to an administrative decision-maker and not an inferior court, the established limits on the power in s 501CA as identified by this Court are a helpful indicator as to how s 477 should be construed as a whole. Section 501CA confers a power on the Minister to revoke an original decision to cancel a visa on character grounds. Upon receiving notice of the original decision, the visa applicant is to be afforded an invitation to make submissions as to why the original decision should be revoked. The power of the Minister to revoke the decision is preconditioned by the two criteria in s 501CA(4)(a) and (b), namely that (first) the person subject to the original decision takes up the opportunity to make submissions as to why the decision should be revoked and (second) the Minster is satisfied either that the person passes the character test or that the visa cancellation decision should be revoked. On its terms, s 501CA does not specify any particular factual consideration that must be taken into account in the exercise of the power in the sense explained by Mason J in Peko-Wallsend. However, it is now well established that the Minister must consider the express submissions advanced in the particular case by the affected person and such matters that clearly arise on the materials provided. The material provided by the revocation applicant must be intellectually grappled with and resolved. To ignore them is to commit jurisdictional error:  Minister for Home Affairs v Omar (2019) 272 FCR 589; Ali v Minister for Home Affairs (2020) 278 FCR 627.

92    I consider the conditions in s 477(2)(a) and (b) to interrelate in a similar fashion, such that it is a precondition to the exercise of the power that the matters asserted by the applicant in accordance with subpara (a) must be considered and determined. Expressed in terms more applicable to the judiciary, upon subpara (a) being satisfied, the Federal Circuit Court had before it a matter, that is, a controversy between the parties. Its function was to hear, consider and adjudicate the matter.

93    Consistent with the reasoning of Steward J in CKX16, the failure to assess (at an impressionistic level) a proposed ground of judicial review may constitute a breach of the rules of procedural fairness and a constructive failure to exercise jurisdiction, and is therefore jurisdictional in nature. Even if not characterised as jurisdictional, the writs of certiorari and mandamus may issue where an inferior court fails to provide procedural fairness.

94    In the present case, the primary judge did not ignore the proposed second ground of review altogether. Rather, the primary judge failed to address and resolve the questions of fact and law upon which the applicant had relied in support of the ground. The legal and factual context is not identical to that arising in CKX16.

95    Counsel for the Minister submitted that there was no occasion for the primary judge to consider the application of the principles in Applicant S and Erduran because of the primary finding of the judge that it was open to the Authority to find that the applicant had not claimed to be conscientious objector. Accordingly, it was submitted, the arguments of the applicant should be understood to have been subsumed within that finding of higher generality which rendered them unnecessary consider and decide.

96    It may be accepted that the necessity to deal with and decide an argument may depend on whether an antecedent argument is decided in a particular way. However, the Minister’s submission in this case faces the difficulty that the primary finding of the judge was itself made in circumstances in which the primary judge had not grappled with the arguments that had been advanced against it. The reasons contain a conclusion that it was “open” to the Authority to find that the applicant had not claimed to be a conscientious objector. However, the reasons do not disclose why the applicant’s clearly stated arguments on that question had been rejected. The reasons contain no explanation as to why the stated reasons for deserting the military (as accepted by the Authority) did not have the necessary result that the applicant had deserted the military for reasons related to his conscience. Further, the rejection of the second ground as involving an impermissible attack on the merits of the Authority’s decision proceeded from a misconception of the nature and limits of the jurisdiction to be exercised under s 476. The effect of that statement is that the applicant was attempting to ask the Federal Circuit Court to review the merits of the Authority’s decision, something the Federal Circuit Court of course has no jurisdiction to do.

97    The reasons of the primary judge otherwise repeat the Authority’s findings and reasoning process without engaging with the arguments that had been put as to why the Authority’s findings and reasoning processes were erroneous. The finding of higher generality is itself affected by jurisdictional error. It had the consequence that the primary judge did not decide the case that the applicant had in fact advanced under s 477(2)(a) of the Act.

98    In making these observations, it is to be observed that the reasons of the primary judge were delivered ex tempore. It has been said that reasons given in that fashion should not be “picked over” and held to a standard of perfection:  BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at [16]; COZ16 v Minister for Immigration and Border Protection (2018) 259 FCR 1 at [34]. The standards to be applied by this Court in the exercise of its supervisory jurisdiction cannot differ according to whether the reasons of the inferior court are delivered orally or in writing. In either case, as Flick J said in SZKLO v Minister for Immigration and Citizenship (2008) 102 ALD 115 at [26]:

… the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that court proceeded and the reasons why the application to review the decision of the tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant — or this court — is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision.

99    The question is whether the reasons fairly disclose that the arguments of the parties have been considered and that they contain an explanation why those arguments have been accepted or rejected as the case may be. The explanation may be as brief as the case permits, having regard to the nature of the order sought, the arguments for and against it and other relevant circumstances, including any urgency attending the disposition of the issues. If the minimal requirements for adequate reasons in the particular case cannot be met by delivering reasons orally, then judgment should be reserved to ensure that adequate reasons can be prepared.

100    Counsel for the Minister invited this Court to have regard to the transcript of the proceedings in the Federal Circuit Court and to find, by reference to the transcript, that the arguments of the applicant were considered by the primary judge. However, as the Full Court said in FBS18 v Minister for Home Affairs [2019] FCAFC 196 (at [65]):

We make the following concluding observation. In our view it is not permissible in a case such as this to treat what the primary judge said in the transcript of the hearing as if it formed part of his reasons for judgment. The applicant did this on more than one occasion, particularly at [35] of his written submissions. We deprecate this practice. There may be instances where the transcript of hearing is relevant, for example where there is a claim of denial of procedural fairness or a dispute about what was or was not put before the primary judge, but this is not such a case.

101    The transcript may be referred to in order to demonstrate that the applicant had a fair opportunity to put his arguments. But the obligation to afford procedural fairness is not fully discharged by conducting a hearing in which the arguments are put. For there to be a fair hearing, the arguments must be heard, fairly comprehended, adjudicated upon and their disposition explained.

102    As alleged on the originating application in this action, I am satisfied that the primary judge failed to provide adequate reasons, consider the totality of the applicant’s claims, consider fundamental aspects of the applicant’s claim, consider submissions of substance, and afford the applicant procedural fairness. In the specific legal context, those errors are to be regarded as jurisdictional in nature. If the breach of procedural fairness is not jurisdictional, that error is nonetheless sufficient to warrant the issue of the constitutional writs:  Ex parte Aala at [170].

103    It follows that the application should be allowed. The judgment of the Federal Circuit Court should be quashed and the applicant’s application for an order under s 477(2) of the Act should be remitted to the Federal Circuit Court, differently constituted, to be determined in accordance with the law.

Associate:

Dated:    5 July 2021