Federal Court of Australia

BKD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 21

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 21 February 2020 in proceeding DNG 21 of 2019 are set aside.

3.    The matter (including all costs of proceeding DNG 21 of 2019) is remitted to the Federal Circuit and Family Court of Australia, differently constituted, for determination according to law.

4.    The first respondent must pay the applicant's costs of this proceeding, to be assessed on a lump sum basis.

5.    On or before 4.00 pm AWST on 4 February 2022, the parties must file any agreed proposed minute of order fixing a lump sum in relation to the applicant's costs.

6.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the applicant's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for judicial review of a decision of the Federal Circuit Court of Australia (as it then was). That court dismissed an application for an extension of time to seek judicial review of a decision of the Immigration Assessment Authority made on 22 February 2018. Any judicial review application to the Federal Circuit Court would have been in that court's original jurisdiction to review a migration decision under s 476 of the Migration Act 1958 (Cth). Under s 477(1), the application needed to be made to the court within 35 days of the Authority's decision. The application was in fact lodged more than 16 months after the decision. So to proceed with the application, the applicant needed a favourable exercise of the power of the Federal Circuit Court to extend time under s 477(2).

2    In the Federal Circuit Court, the primary judge concluded that there was no merit to the applicant's application for judicial review of the Authority's decision. After reaching that conclusion his Honour said that in assessing whether or not there ought to be an extension of time he gave the lack of merit substantial weight, and dismissed the application for an extension. In this court the applicant contends that his Honour fell into jurisdictional error because he failed to give any consideration to the explanations that the applicant advanced for his delay in making the application to the Federal Circuit Court.

3    For the following reasons, the application will be allowed and the decision of the Federal Circuit Court will be set aside.

Background and procedural history

4    The applicant is an Arab Muslim who lived in Iraq. He arrived in Australia in 2013. He claimed to engage Australia's protection obligations. His principal claims related to the risk of harm to him due to his Kuwaiti origin and due to his relationship with his wife. He and his wife conceived their first child out of wedlock, and married subsequently. Also, his wife was Sunni, while he was Shia. The proposed application for judicial review was on the basis that the Authority failed to take into account psychological or other harm the applicant may face due to the risk that his wife, daughter and whole family might be harmed due to the above matters.

5    It appears that the applicant filed the application to the Federal Circuit Court himself, on 9 July 2019. There was a cross in the 'yes' box provided on the form to indicate whether he was applying for an extension for the time for making the application under s 477 of the Migration Act. Under the heading provided in the form 'Grounds of application for extension of time (specify why the applicant considers that it is necessary in the interests of the administration of justice to extend time)' the applicant wrote:

1.    I have been unable to secure legal assistance.

2.    I have language difficulties and a history of trauma that has impacted on my mental health and therefore my ability to understand and act in relation to my migration process.

3.    I withdrew my previous application for judicial review on the advice of my lawyer.

4.    My lawyer then prepared and lodged on my behalf a submission to the Minister for Immigration seeking his intervention on my behalf. This was unsuccessful.

These are explanations advanced for the delay in filing the application for judicial review with which the applicant wanted to proceed. The explanations were unsupported by any affidavit evidence filed by the applicant.

6    The applicant also filled out grounds for the proposed substantive application for judicial review, putting the basis for that application as described above. Under another heading on the form 'Other Court Proceedings' the applicant referred to a previous application to the Federal Circuit Court that had been commenced on 21 March 2018. The outcome of that application was described as 'Discontinued by applicant 12 February 2019'.

7    The applicant also indicated on the form that he required an Arabic interpreter. He appeared with the assistance of an interpreter at the hearing before the primary judge on 21 February 2020.

8    The transcript of that hearing is in evidence. The applicant made oral submissions which largely went to the reasons why he sought asylum and his personal circumstances and those of his family, rather than any jurisdictional error on the part of the Authority. The primary judge did not invite the applicant to give evidence on oath about the reasons for delay in filing the application, but no complaint is made about that in this application.

9    When the primary judge turned to counsel for the Minister, Mr Liveris, counsel said, '[a]t the outset it's noted that this is, first, an application for extension of time'. His Honour said, 'I will just deal with it - the merits first, Mr Liveris'. Counsel made oral submissions about the merits of the proposed application for judicial review and did not make any oral submissions about the reasons given by the applicant. The Minister was given the opportunity to produce to this court his written submissions in the Federal Circuit Court, but has chosen not to do so.

The primary judge's reasons for decision

10    The primary judge gave ex tempore reasons for decision that were subsequently published as BKD18 v Minister for Immigration [2020] FCCA 530 (PJ). His Honour commenced by referring to the proceeding as an application for judicial review of the Authority's decision: PJ [2]. He quoted the grounds set out in the application for judicial review and noted that the applicant contended that though the claims he said the Authority failed to consider were not explicitly advanced, they sufficiently arose from the material: PJ [2].

11    The primary judge then said (PJ [3]):

There is also an application for an extension of time. An earlier application filed on 21 March 2018 was discontinued on 12 February 2019. A new application was filed on 10 July 2019, so the application is a little short of 18 months out of time.

12    The primary judge then described the applicant's background and claims for protection: PJ [4]-[9]. His Honour then set out the findings of the Authority. The Authority did not accept that the apparently forced marriage, which took place 20 years ago after the conception of the applicant's eldest daughter, put him at risk: PJ [11]. It also did not accept claims that the mixed Sunni-Shia marriage had forced the applicant to relocate or was seen as heretical: PJ [11]. It rejected other claims that did not engage the proposed grounds of judicial review: PJ [12]-[15].

13    The primary judge then said (PJ [16]-[17]):

The applicant has been unrepresented before me and it is clear to me that he does not understand the grounds that were included in his application for review. He was not able to make any oral submissions in any constructive way in relation to the alleged grounds of jurisdictional error.

However, I have read some of the materials in the court book, and I refer in particular to the submission prepared by the applicant's migration agent, Dr Al Jabiri, dated 10 January 2016, which was a submission to the delegate. In addition the statement made by the applicant and translated from Arabic, which was attached to the application for the protection visa.

14    The primary judge found that neither of those documents explicitly raised a claim that the applicant faced harm, psychological or otherwise, as a result of the risk of harm to his wife, his family or his oldest daughter: PJ [18]. Nor did his Honour consider that they arose squarely on the materials: PJ [18]-[19]. He found that the Authority concluded that there was not likely to be any continuing harassment, persecution or ill-treatment of the applicant and so, in substance, 'the Authority did not accept those claims, whether expressed generally or specifically': PJ [20] and see also PJ [21]-[22]. His Honour held (PJ [23]):

In my view, the claims raised in the application for judicial review did not arise squarely on the material. Further the claims were so closely related to claims that were considered and not accepted by the Authority that there would be no prospect of a different result had those matters been directly raised.

15    After mentioning some authorities on consideration of claims by administrative decision makers (PJ [24]), the primary judge concluded (PJ [25]):

I have concluded that there is no merit to the application for review, and accordingly in assessing whether or not there ought to be extension of time I give the lack of merit of the application substantial weight. In my view, it is not necessary in the interests of the administration of justice for there to be an extension of time. I refuse the application for extension of time and dismiss the application.

16    The Federal Circuit Court's orders were that '[t]he application be dismissed' and for the applicant to pay the Minister's costs.

The application for judicial review of the Federal Circuit Court's decision

17    There is no appeal to this court from a decision of the Federal Circuit Court dismissing an application for an extension of time: Federal Court of Australia Act 1976 (Cth) s 24(1AA)(a). Hence the applicant's only recourse is to seek judicial review of that decision. This court has jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) to determine an application for judicial review of a decision by the Federal Circuit Court of that kind: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11].

18    The applicant seeks a writ of certiorari quashing the primary judge's decision and a writ of mandamus requiring the matter to be determined by a differently constituted court. The sole ground of review he pursues is that:

the Federal Circuit Court misconceived the nature of its function under s 477(2) of the Migration Act in that the Federal Circuit Court failed to consider the explanation advanced by the Applicant for his delay in seeking judicial review of the Immigration Assessment Authority's decision.

The parties' cases

19    The applicant submits that none of his explanations to the Federal Circuit Court for the delay in lodging the application were identified or considered in the primary judge's reasons. The reasons, the applicant says, were to the effect that it was not necessary in the interests of the administration of justice to extend time because of what the primary judge considered to be the lack of merit in the judicial review application. The transcript shows that there was no discussion of the explanations for the delay at the hearing either. The applicant submits that in those circumstances, it can be inferred that the primary judge did not engage with any aspect of the explanations he advanced. This, the applicant submits, means that the primary judge failed to undertake the statutory task by reference to the application made or, put another way, did not deal with the matter as placed before him. Because of that, the applicant submits, he misconceived the nature of his function under s 477(2) of the Migration Act. The applicant submits that the error was material, because the primary judge may have weighed matters differently had he considered the applicant's explanation for the delay.

20    The Minister submits that the primary judge's reasons show that his Honour acknowledged the application for extension of time and that the previous application had been discontinued. His Honour observed that the applicant appeared unrepresented, did not understand the grounds of review in the application, and was unable to make any constructive oral submissions. His Honour also referred to the applicant's statement having been translated into English from Arabic. The applicant appeared before his Honour with an interpreter. All these things were obvious facts which went to the grounds for the application for extension of time. That is, it was evident to his Honour that the applicant did not have legal assistance, had language difficulties and could not understand the legal processes relating to his migration status, and that there had been a previous application for judicial review that had been discontinued.

21    It follows, the Minister says, that it is implicit in the primary judge's reasons that the primary judge identified, understood and referred to the grounds that the applicant put forward in support of the application for an extension of time and proceeded on a basis that accepted them as factual matters. Having reached the view, however, that the relevant claims had not been expressly raised with the Authority and did not squarely arise on the materials, his Honour gave the lack of merit in the proposed application 'substantial weight', which the Minister submits implies that he weighed other factors in the process of consideration. The lack of merit was given predominant weight, but not to the exclusion of other matters, which should be inferred to include the reasons for delay advanced by the applicant. So, the Minister submits, the primary judge did not misunderstand or misconceive those reasons, but recognised them and took them into account.

22    The Minister also submits that if the primary judge did make the error alleged, it was not a jurisdictional error because it was not material.

The nature of the task before the primary judge

23    It is common ground that in order to obtain the relief the applicant seeks, he needs to establish that the primary judge fell into jurisdictional error. The applicant advanced no case that certiorari should follow from error of law on the face of the record. It is also common ground that it is necessary for the applicant to show that the Federal Circuit Court misconceived the nature of the function it was performing in considering whether it was necessary in the interests of justice to grant the extension of time sought by the applicant: see SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [11] (Mortimer J).

24    However the parties were not at one when it came to describing what could, relevantly, amount to a misconception of that kind. Specifically, the applicant submitted that a complete failure by the Federal Circuit Court to consider the applicant's explanations for the delay was enough by itself to indicate that the Court had misconceived the nature of its function. But the Minister submitted (and the applicant accepted) that the explanations were not mandatory relevant considerations, such that failing to consider them was jurisdictional error. In order to resolve the apparent tension between these two propositions, it is necessary to consider several authorities that have dealt with these or similar points.

25    It is well established that this court must proceed on the basis of the principles concerning jurisdictional error in inferior courts that were set out in Craig v State of South Australia (1995) 184 CLR 163: see WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 19; (2021) 282 FCR 516 at [35]-[40]. The subsequent discussion in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 does not detract from the authority of Craig in that regard: see WZASS at [41]. In Craig at 177, Brennan, Deane, Toohey, Gaudron and McHugh JJ held:

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.

26    After referring to some obvious examples of jurisdictional error, the Court said (at 177, footnote removed):

Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

27    Later, drawing a contrast with administrative tribunals, the High Court said (at 179-180):

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

28    Against the background of those principles, the nature of the task confronting the Federal Circuit Court here is to be determined as a matter of statutory construction: see CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57 at [16]. The limits of that task are primarily to be discerned from s 477 of the Migration Act, which relevantly provided at the date of the primary decision:

(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.

29    In Gabriel v Minister for Immigration and Border Protection [2015] FCA 474, Jessup J considered the construction of the similarly worded s 477A of the Migration Act. His Honour observed (at [4]):

As a matter of construction, I take the view that the state of satisfaction referred to in para (b) of s 477A(2) must be reached in the light of the applicant's reasons for proposing that the making of an order extending time is necessary in the interests of the administration of justice as referred to in para (a) of the subsection. That is to say, para (b) is concerned only with the court's assessment of whether the applicant's reasons advanced under para (a) demonstrate the necessity referred to. The court is neither required nor, in my view, permitted to embark upon its own consideration of whether an extension of time is necessary in the interests of the administration of justice by reference to facts, circumstances or propositions outside those specified by the applicant in his application (as to which, without deciding the point, I will accept, for present purposes, that matters specified in an affidavit filed with the application may also be taken into account).

30    It is important to appreciate that Jessup J made these observations in the course of dismissing an application to the Federal Court for an extension of time. His Honour was not determining an application for judicial review of the decision of another court and was not dealing with any question of jurisdictional error. The point his Honour was making was that the Federal Court did not need to look further than the grounds put by the applicant. The application was dismissed not because of the reasons the applicant advanced, but because there was no basis to doubt the jurisdictional regularity of the decision under review.

31    Other decisions of this court have not taken a prescriptive approach to the question of what a judge exercising a power such as that under s 477(2) of the Migration Act must (or must not) consider. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 Foster J said (at [47]-[48]):

The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

(a)    Whether there has been a reasonable and adequate explanation for the applicant's delay;

(b)    Whether there is any prejudice to the Minister;

(c)    Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.

The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

32    Later in SZRIQ, after setting out passages from Craig, Foster J said (at [52]-[53]):

In my judgment, it was within the power which the federal magistrate was exercising in the present case for him to choose which factors he regarded as relevant to the exercise of his discretion and thus to select those factors which he intended to take into account when determining whether it was necessary in the interests of the administration of justice to grant an extension of time to the applicant. …

For these reasons, I do not think that his Honour fell into the error attributed to him by the applicant. Furthermore, even if it could be said that his Honour did fall into the error attributed to him, I do not think that that error was a jurisdictional error. His Honour did not misconceive his task nor the extent of his powers. His Honour addressed the relevant statutory task by considering a number of relevant factors. They were of his choosing and were relevant considerations. His Honour committed no error in taking the approach which he did.

33    Similarly, in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [44], Wigney J held that s 477(2) 'does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice'. His Honour quoted with evident agreement an observation that Lockhart J made, in Hickey v Australian Telecommunications Commission (1983) 72 FLR 291 at 297, about the power to extend time under the Administrative Decisions (Judicial Review) Act 1977 (Cth), that:

It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review.

34    Wigney J also quoted at [45] with evident agreement the following observation in Pozniak v Minister for Health (Unreported, Federal Court of Australia, 14 March 1986) (Burchett J):

The authorities necessarily deal with an endless variety of situations. As a consequence, they show a constant change of emphasis on particular features. The cases set up signposts to guide the court's discretion, but they do not erect fences to limit the breadth of the field within which the legislature has chosen to confer discretion upon the Court.

35    Later in SZTES, Wigney J considered whether the fact that the Minister did not oppose an application for extension of time must necessarily be taken into account as a condition of the exercise of the jurisdiction to extend time. At [79] his Honour concluded that nothing in the subject matter, scope or purpose of the Migration Act, or of s 477(2) in particular, supported an implication to that effect. His Honour held, '[i]t is for the court to determine what is necessary in the interests of the administration of justice in the particular circumstances of the case'. See also SZUWX v Minister for Immigration and Border Protection [2015] FCA 1389 at [55], [57] (Griffiths J) (SZUWX FCA), affirmed on appeal in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [11]-[12] (Bromwich J, Allsop CJ and Flick J agreeing) (SZUWX FCAFC); DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 278 FCR 475 at [65]; WZASS at [31]-[33].

36    In BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508, Mortimer J considered a submission from the Minister that while the explanation for delay given by an applicant is a factor to be taken into account in an application for an extension of time, a failure by an inferior court to take it into account does not in itself amount to jurisdictional error or lead inexorably to a conclusion that there was jurisdictional error in the decision: at [53]. Her Honour found that the Federal Circuit Court judge did not take into account the whole of the applicant's explanations for delay, and completely failed to take into account a material fact that might have contributed to the delay, namely that the applicant had spent time in isolation in a detention centre: at [56]-[57].

37    Nevertheless, in BVW17 Mortimer J concluded that the primary judge had not fallen into jurisdictional error. Mortimer J accepted that the explanation for a person's delay in filing an application is not a mandatory relevant consideration in the sense explained in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. That is, that explanation is not something which, under the statute, must be given proper or adequate consideration as an inviolable condition on the exercise of the power conferred, so that failure to comply with that condition makes the purported exercise legally ineffective: BVW17 at [60]. Or, to put it into the terms used in Craig (at 177), the explanation is not a matter to which the Migration Act requires that regard be had 'as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case'.

38    The matter that conditions the exercise of the court's power under s 477(2) is, instead, whether it is necessary in the interests of the administration of justice to grant the extension. The applicant's explanation for being out of time is a permissible, usual and important factor that will contribute to the determination of what is necessary in the interests of the administration of justice: BVW17 at [61]. But there is nothing in the scope, subject matter and purpose of s 477(2) which meant that 'adequate and genuine consideration' of any explanation for the delay is 'a matter conditioning the exercise of power to extend time, independently of the stated precondition in s 477(2)(b)': BVW17 at [62]. Her Honour agreed in that regard with the aspects of SZTES described above, as well as with SZUWX FCA and SZUWX FCAFC.

39    In BVW17, however, Mortimer J then went on to observe (at [64]):

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

This does not concern whether the explanation for delay is a mandatory relevant consideration (it is not). It refers to a different way in which an inferior court can fall into jurisdictional error, by misunderstanding the content of the precondition to the exercise of the power to extend time. Her Honour did not say that a complete omission to consider the explanation for delay will always bespeak that misunderstanding. Rather, there 'may well be' circumstances when it will. For the purposes of the case before her Honour, she did not need to say what those circumstances might be.

40    Colvin J discussed the relevant principles in Huynh v Federal Circuit Court of Australia [2019] FCA 891. In that case, the main explanation for the applicant's delay in making an application for judicial review from a decision of the Administrative Appeals Tribunal was that she did not receive notice of the Tribunal's decision in time, because she had changed her address and had only told the Tribunal about that informally. But the primary judge had misunderstood her explanation as being that she was 'overwhelmed' and that this delayed her seeking help to pursue the application. The applicant submitted that this was jurisdictional error because the primary judge had failed to perform the required statutory task in failing to deal with the main explanation for the delay. Colvin J characterised the primary judge's decision as follows (at [47]):

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

41    In the discussion of principle in Huynh Colvin J observed at [24] (relying on SZUWX FCAFC at [20]-[21]) that the question of whether an error is jurisdictional is context specific. Later, in the context of a discussion of legal unreasonableness, his Honour said (at [35]-[36]):

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

the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction.

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

42    Colvin J went on to refer to the passages from SZTSU and SZTES which I have discussed above. His Honour considered that it was 'apt to refer to the discretion as one where it is a matter for the judge exercising it to determine what is relevant in each case' (at [39]). He agreed (at [41]) with Mortimer J in BVW17 at [64] that there was no mandatory relevant consideration in s 477(2)(b) independently of the interests of the administration of justice, noting her Honour's comment about the possible consequences of a complete omission to consider an explanation for delay.

43    When Colvin J came to consider in Huynh whether the primary judge had performed the statutory task (at [50]-[51]), his Honour rejected as too broad and general a submission by the Minister that the primary judge had approached the application on the basis that it was an application under s 477 and that there was no suggestion that the primary judge had misunderstood what was required by that provision. Colvin J then held (at [53]):

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

44    Then at [55]:

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

In the case before Colvin J, the misunderstanding of the application by the Federal Circuit Court was so fundamental that the primary judge failed to determine the application before her.

45    Similarly, in AMB19 v Minister for Home Affairs [2020] FCA 439 Colvin J determined that the Federal Circuit Court had failed to act on the actual explanation for delay being advanced by the applicant. That failure arose from difficulties in translation where the applicant appeared with the assistance of a translator, along with a failure by the court to check whether the application had in fact been received by the court's registry as the applicant said it had. Colvin J held (at [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.

46    In CZA19 the Full Court took the opportunity to bring some of these principles together. It too was an application for judicial review of a decision of the Federal Circuit Court refusing to extend time under s 477. At [15] the Full Court (Allsop CJ, Markovic and Colvin JJ) said of the scope of the authority of inferior courts:

As the reasoning in Craig demonstrates, judicial authority is ample and considerable. This is necessary in order for judges to be able to quell controversies. Appeal rights, though now common, are creatures of statute and allow for a further judicial determination. However where, as here, there is no right of appeal, the nature of judicial power must be respected by all, including other judicial officers. The question to be considered when it is said that there has been jurisdictional error by a judge of an inferior court is properly described as a 'limited question' that turns on whether the judge misconceived the nature of the function which the court was performing.

47    At [19] the Court held (citing WZASS at [29]-[33]) that it was well established that no considerations are mandatory for the purposes of the exercise of the discretion at to extension of time. And at [21] their Honours said:

To the extent that the grounds raised were to the effect that 'proper' consideration was not given to whether a particular ground had merit or the applicant's explanation for delay, they do not articulate jurisdictional error. The task entrusted to the Federal Circuit Court judge was to both identify and evaluate, in the particular circumstances of the application, what matters were of significance when it came to determining whether an extension of time was necessary in the interests of justice.

48    At [34]-[36] the Full Court acknowledged the difficulty in drawing the line between jurisdictional error and error within jurisdiction, as had the High Court in Craig:

In cases like the present, there is an important distinction between a claim that the Federal Circuit Court judge did not deal with the nature of the application that was made (on the one hand) and a claim that the Court on review should conclude that the Federal Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit (on the other hand). A claim of the latter kind is unlikely to be a claim of jurisdictional error because to seek to identify the nature of the grounds and to assess whether they have merit for the purpose of determining whether it was necessary in the interests of justice to extend time is at the heart of performance of the (within jurisdiction) judicial task. Therefore, the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered. Even then, it is to be noted that when reasons are used to determine whether there has been a failure to deal with the nature of the application that has been made, it is only the crucial arguments that are to be addressed by judges in their reasons and it is for the judge to formulate the issues by considering the application: DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at 12-13 [33].

It is because of the difficulty in applying these distinctions in some instances that the High Court has emphasised that the line may be difficult to draw. It is for these reasons that the decisions in CKX16 [v Judge of the Federal Circuit Court of Australia [2018] FCA 400] and AMB19 should be seen to be at the borderline. They do not establish a general principle that a failure to consider a ground that might be discerned after the event by a court on review as not having been addressed demonstrates jurisdictional error in cases where an applicant seeks to invoke the jurisdiction conferred by s 477(2) to extend time.

The case must be one where it can be concluded, in effect, that the jurisdiction was not exercised because the nature of the application that was made (being an application to extend time to seek review on particular grounds) was not the nature of the application that was considered.

49    In the case before the Full Court in CZA19, one ground was upheld because the Federal Circuit Court had misconceived the nature of the application before it so fundamentally that it was not dealing with the matter as placed before the Court: see [57]-[58].

50    In EOC20 v Judges of the Federal Circuit Court of Australia [2021] FCA 758 the question before Charlesworth J was whether a Federal Circuit Court judge erred in rejecting or failing to properly consider the substance of the applicant's arguments relating to his reasons for claiming to be a refugee. After a survey of authorities including DHX17, her Honour observed (at [87]-[88]):

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.

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.

51    In relation to the question of what s 477 required of the Federal Circuit Court, Charlesworth J said (at [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.

52    After drawing and considering an analogy between the power conferred by s 477 and the power to revoke the cancellation of a visa on character grounds conferred on the Minister under s 501CA(4) of the Migration Act, Charlesworth J said (at [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.

53    Despite the fact that Charlesworth J drew an analogy with s 501CA, I do not consider that her Honour should be understood as saying that it is an inviolable condition of the exercise of the Federal Circuit Court's jurisdiction under s 477 that it consider each substantive argument put by an applicant for an extension of time. As the last sentence of the passage just quoted shows, the point, in a judicial context, is that the judicial function of adjudicating the controversy before the court must be discharged. Her Honour upheld the application for judicial review because (at [97]), 'the primary judge did not decide the case that the applicant had in fact advanced under s 477(2)(a) of the Act'.

54    The above survey of the authorities confirms that the status of the Federal Circuit Court as a court must be respected. Courts of law are not administrative tribunals. If a court makes an error of fact or of law, the usual remedy is to appeal. A court will not necessarily exceed or misunderstand its jurisdiction when it makes such an error. The freedom of the courts to act within jurisdiction is not to be hemmed in by rules about what they must and must not consider. Generally, a court will act within jurisdiction when it decides whether a particular matter is relevant or significant, and so worthy of mention. That must be so when the precondition to the exercise of power depends on a criterion as broad as necessity in the interests of the administration of justice. It is all the more so when the precondition is the court having reached a state of satisfaction as to that criterion. So a court performing judicial review of the Federal Circuit Court's decision must engage in a tightly confined exercise, turning on whether that court misconceived the nature of the function it was performing.

55    It would thus be too broad to say that every time the Federal Circuit Court omits to consider an applicant's explanations for delay, it commits a jurisdictional error (if the error is material). In the context of the exercise of power by an inferior court, that explanation is not a mandatory relevant consideration of the Peko-Wallsend kind. Rather, at least in a case like the present, the inquiry must be directed to whether the primary judge misconceived or failed to perform the judicial task before the court, including by failing to exercise the judicial function of quelling controversy by reference to the application before it.

Whether the primary judge fell into error here

56    Considering the Federal Circuit Court's orders and reasons for decision in light of the principles discussed above satisfies me that, with respect, the court did fall into an error which was a jurisdictional error if it was material to the outcome. The omission to consider the applicant's explanation for his delay in filing the application did reflect a misconception of the nature of the court's function in determining an application under s 477(2) of the Migration Act.

57    I have reached that conclusion because of the following matters.

(1)    At the hearing, when counsel for the Minister appeared to wish to address the nature of the application as an application for extension of time, the primary judge said 'I will just deal with it - the merits first, Mr Liveris'. The reference to 'the merits' must have been to the merits of the proposed application for judicial review. Although his Honour said he wanted to deal with those 'first', the submissions and the discussion from the bench at the hearing did not canvass any other matter, such as the reasons for the applicant's delay.

(2)    At the beginning of the reasons for decision, the primary judge described the application as an application for judicial review of the Authority's decision and commenced by quoting the grounds raised in that application. While his Honour then said that '[t]here is also an application for extension of time' he did not refer expressly to any of the grounds given by the applicant as to why it was necessary in the interests of the administration of justice for an extension of time to be granted (Extension Grounds): see PJ [3].

(3)    It is also my view that there was no implicit reference to the Extension Grounds. It is true that, immediately after referring to the fact of the application for an extension of time, the primary judge referred to the prior procedural history of the earlier application for judicial review and its discontinuance. The Extension Grounds do make a brief reference to those matters. But the Extension Grounds do not contain the details of them, including the dates. Those details appear elsewhere in the application, under the 'Other court proceedings' heading. I infer from that, and from the primary judge's lack of any reference to the other matters raised in the Extension Grounds, that his Honour did not at this point have regard to the Extension Grounds. He was merely identifying why an extension of time was needed.

(4)    The Minister relied on PJ [16]-[17], quoted at [13] above, as showing that the primary judge was aware of the difficulties that the applicant had in understanding the legal process and in dealing with the language barrier between English and his native Arabic. But while his Honour may have been aware of those matters, it is plain given what he said about them and the context in which he raised them that he had regard to them for the purposes of the substantive application for judicial review and not for the purpose of considering whether it was necessary in the interests of the administration of justice to grant an extension of time. They were raised in order to make the point that the applicant had not made any useful submissions to the primary judge, but his Honour had considered the merits on the basis of the materials before him.

(5)    I do not accept the broader submission made by the Minister that the primary judge acknowledged, understood and accepted the Extension Grounds. This was based on the matters referred to at PJ [16]-[17] and also at PJ [3]. But the fact that the primary judge referred to certain matters that could have been deployed in his consideration of the Extension Grounds does not mean that he did deploy them for that purpose. The content and context of his Honour's references to those matters show that in fact he did not. The Minister submitted that these matters were obvious facts that were apparent to the primary judge at the hearing. It is not clear that this was so in relation to the claimed mental health conditions. But even if it was, it does not follow from their obviousness that the primary judge considered whether they were reasons why it was necessary in the interests of the administration of justice to grant an extension of time.

(6)    The Extension Grounds were unsupported by evidence. The primary judge did not comment on that. The Minister submitted in this court that it should be inferred from this that his Honour accepted the factual correctness of the Extension Grounds. But if his Honour did accept them, he did not say so.

(7)    In light of all of the above context, there are at least two inferences which arise more straightforwardly from the primary judge's silence about the Extension Grounds, and about the lack of evidence, in particular regarding the claimed mental health conditions: that his Honour did not consider the Extension Grounds to be important, or that he did not consider them at all.

(8)    After making the comments at PJ [16]-[17], the primary judge proceeded to consider the merits of the proposed application for judicial review in some detail. His Honour addressed the applicant's contention that the Authority had failed to deal with certain claims. His Honour assessed the materials and determined that the claims were not made explicitly and nor did they arise squarely on the materials: PJ [18]. He acknowledged that there were passing references to relevant matters in some of the material but said that these did not squarely raise the applicant's key claim: PJ [19]. He determined that in substance the Authority had not accepted those claims: PJ [20]-[21]. His Honour's conclusion on these matters (at [23]) is quoted above at [14].

(9)    The primary judge's ultimate conclusion (PJ [25]) was that 'there is no merit to the application for review': see [15] above. His Honour then referred to the extension of time, said that he gave the lack of merit of the application substantial weight and correctly recited the criterion of whether the extension of time is necessary in the interests of the administration of justice. But the conclusion displayed no engagement with any other factors that might be weighed along with the lack of merit in the application.

(10)    The final order made was that '[t]he application be dismissed'. That is ambiguous as to the nature of the application that was dismissed.

58    In my respectful view the above displays a misconception of the nature of the jurisdiction that the primary judge was exercising. The reasons do not reveal the misconception explicitly; his Honour's ultimate conclusion correctly described the criterion to be applied. But when the reasons for decision are read as a whole it emerges that his Honour had no regard to the reasons advanced by the applicant as to why an extension of time would be necessary in the interests of justice because, in substance, he determined the judicial review application that was proposed to be made.

59    Above all, the primary judge's assessment of the grounds of judicial review approached the materials in precisely the same way that one would expect on a substantive application for judicial review. His Honour made evaluative judgments about the content of the claims put by the applicant to the Authority and about the Authority's reasons. His Honour's views were not expressed emphatically; he used terms like 'I think', '[i]t seems to me' and '[i]n my view'. None of that is to say that these views, and the level of emphasis given to them, were not well founded. But they indicate that his Honour proceeded as if he were determining a substantive application for judicial review where the question was whether the Authority committed jurisdictional error; not the different application for an extension of time where the question was whether it was necessary in the interests of the administration of justice to grant an extension of time.

60    There was no ground of review in the present application to the effect that the primary judge erred in failing to evaluate the merits at an impressionistic level: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (Mortimer J). But in my respectful view, the character of the primary judge's approach does bespeak the error that the applicant complains of here, of failing to consider the explanation the applicant advanced for his delay in a manner which reflects a misconception of the nature of the function the court was exercising. In short, his Honour approached the matter as an application for judicial review when it was, in fact, an application for an extension of time.

61    That is not to say that a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay. In SZQGO v Minister for Immigration and Citizenship [2012] FCA 177 at [29] Murphy J said (in the context of an extension of time for the making of an appeal) that 'the Court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success'. So there may be situations where the court's view about the merits is so emphatic that it can safely conclude that no explanation for delay could make it necessary in the interests of justice to permit the application to proceed, so there is no need to consider those reasons specifically. But the primary judge's reasons in this case did not display a conclusion of that kind. They only gave the lack of merit 'substantial weight', without any engagement with any other factors that might be weighed with it.

62    I do not accept the submission of the Minister that it should be inferred from the reference to 'substantial weight' that the primary judge also had in mind less substantial factors, such as the Extension Grounds. The Minister submitted that this could be inferred from the primary judge's reference to and, it was submitted, acceptance of, the facts of the applicant's previous application for review, language difficulties and lack of understanding of the legal process. But I have concluded that the mention of those things by his Honour was in the different context of whether the applicant was able to advance useful submissions in the application for judicial review. Understood in that light, his Honour's final reference to 'substantial weight' is just his way of stating the importance of the lack of merit in the application; it does not imply consideration of any other matters to which he assigned lesser weight, let alone indicate what those matters were. The Minister's submissions attempt to piece together some kind of engagement with the Extension Grounds from disparate references to relevant matters which, in truth, were made in different contexts and in relation to different concerns.

63    The Minister relied on the fact that the primary judge's reasons were delivered ex tempore and so should not be 'picked over': see BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450 at [16] (Flick J). But the exercise to be conducted here is to determine whether the reasons for decision show a misconception of the function of the court. It is conceivable that in some circumstances the ex tempore nature of the judgment could be relevant to that exercise, but the Minister did not articulate any reason why it was relevant here. The task of this court remains one of assessing the terms in which the primary judge's reasons were expressed and the context in which they were delivered in order to make inferences about what, in substance, the primary judge did. To do that is not to pick over them.

64    In the end, the outcome of this application turns on whether the Federal Circuit Court omitted to mention the Extension Grounds because it determined that in all the circumstances they were not relevant or significant, or whether in substance the court proceeded to determine an application for judicial review rather than an application for an extension of time. For the reasons I have given, I have concluded with respect that the latter is what occurred. This means that in failing to engage with the Extension Grounds, the primary judge determined a different application to the one before him. I do not consider that the reference in PJ [25] to extension of time, and the correct description of the precondition to any extension, alters the nature of the question that the primary judge determined, in substance, in the rest of the reasons for judgment.

Materiality

65    The requirement that an error be material in order to be a jurisdictional error, as identified in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, applies to a decision of the Federal Circuit Court under s 477 of the Migration Act as much as it does to an administrative decision maker: DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [74]. It is thus necessary to consider whether there could realistically have been a different decision had the primary judge not misconceived the nature of the jurisdiction he was exercising and had engaged with the Extension Grounds: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].

66    In assessing the materiality of the error here, it is important to bear in mind that the decision that may or may not have been different is the decision whether to extend time, not the decision that might be reached on any application for judicial review. An extension application potentially engages different considerations to those engaged by a judicial review application, as well as a process of weighing those considerations that would be alien to the latter. So the primary judge's expressed views as to the merits of the application for judicial review do not determine the question of whether his Honour would have granted an extension of time had he approached the matter in a different way. It is necessary to postulate, as a matter of reasonable conjecture (see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]) what might have occurred had the primary judge approached the application from the outset on the footing of an application for extension of time.

67    Had the primary judge done so, his Honour would have assessed the merits on an impressionistic level, which might have led him to conclude that they were arguable. He may have stopped at that point before reaching the firmer views on the merits he actually did reach. His Honour would then have had regard to the Extension Grounds in that context.

68    It is true that, on their face, most of those grounds do not present strong reasons to extend time. The inability of the applicant to secure legal assistance is not uncommon in applications of this kind. Nor are language difficulties. The fact that the previous application was withdrawn on legal advice suggests that this was a conscious, well informed decision which, if anything, speaks against giving the applicant a second chance. The extension sought was a long one.

69    However, the applicant also refers to a history of trauma that has impacted on his mental health and so his ability to understand the migration process. To that extent, at least, the Minister is not correct to submit that the Extension Grounds were inherent in the circumstances of the filing of the application and the applicant's appearance at the hearing. While the claim of trauma and mental health problems was unsupported by affidavit evidence, it is a reasonable conjecture to suggest that the primary judge, had he engaged with the grounds, may have elicited more detail from the applicant, on oath if necessary, supporting the contention that a mental health condition interfered with his ability to lodge an application, and so explained at least part of the 16 month delay. That, combined with an impressionistic view of the merits, might have led the primary judge to decide that it was necessary in the interests of justice to grant the extension.

70    In my view, there is a realistic possibility that the outcome of the application for an extension of time could have been different had the primary judge not misconceived the nature of the jurisdiction he was exercising. The error was material, and so a jurisdictional error.

Disposition

71    The application for judicial review of the decision of the Federal Circuit Court will be allowed and the orders of that court set aside. The costs of the proceeding in this court will follow the event.

72    The applicant seeks an order that the matter be remitted to a different judge. The Minister did not make any submission about that. Without any disrespect to the primary judge, the nature of the conclusions his Honour reached as to the merits of the application might create at least the appearance that it would be difficult for his Honour to approach the renewed application for an extension of time with a fresh mind. There will be an order that the matter be remitted to the Federal Circuit Court to be constituted by a different judge.

Associate:

Dated:    21 January 2022