FEDERAL COURT OF AUSTRALIA

DOJ20 v Federal Circuit and Family Court of Australia [2023] FCA 417

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

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 formerly named Federal Circuit Court of Australia (FCCA). The primary judge refused to extend time under s 477(2) of the Migration Act 1958 (Cth) for the commencement of an application for review of two migration decisions:  a decision to cancel the applicant’s visa, and a decision not to revoke that cancellation:  DOJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1882 (J). Each of the decisions subject to the proceeding at first instance was made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2    The applicant seeks orders under s 39B of the Judiciary Act 1903 (Cth) quashing the decision of the primary judge and remitting the matter to Division 2 of the (now named) Federal Circuit and Family Court of Australia, for the application for an extension of time to be determined according to law.

3    For the reasons that follow, the application should be dismissed.

BACKGROUND

4    In December 2010, the applicant was granted a protection visa on the basis of identity evidence showing that he was a national of Afghanistan, and that he feared harm if returned to that country.

5    On 28 June 2016, the applicant was granted a Resident Return visa.

6    On 29 March 2019, a delegate (first delegate) made a decision to cancel the visa under s 128 of the Act, on the grounds specified in s 116(1AA) (cancellation decision). That power was available to be exercised because the applicant had been outside Australia since he departed for Pakistan on 16 January 2019.

7    On 19 August 2019, a different delegate of the Minister (second delegate) made a decision under s 131 of the Act not to revoke the cancellation decision (non-revocation decision).

8    The cancellation and non-revocation decisions were based largely on findings that the identity documents and information the applicant had previously provided to Australian authorities were untrue, such that the applicant’s identity could not be positively determined.

9    Almost a year after the non-revocation decision, the applicant filed his application for an extension of time to commence judicial review proceedings in the FCCA. The primary judge dismissed that application.

REASONS OF THE PRIMARY JUDGE

10    The FCCA has jurisdiction under s 476 of the Act to hear and determine an application for judicial review of a “migration decision”. Both the cancellation and the non-revocation decisions meet that description. The jurisdiction conferred by s 476 is limited to a determination of whether the decision under review is affected by jurisdictional error:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

11    Section 477(1) of the Act required an application to the FCCA for judicial review of a migration decision to be made within 35 days of the date of the decision. Section 477(2) of the Act permitted the FCCA to extend time within which to file an application for judicial review. At the relevant time, it provided:

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.

12    The primary judge concluded that the applicant’s application satisfied s 477(2)(a) (J[3]). His Honour then identified the correct approach to the criteria in s 477(2)(b) in accordance with the principles stated in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 as follows:

4.    The discretion conferred by s.477(2) of the Act is unfettered once enlivened but must be exercised judicially. That requires an identification of the relevant factors that might bear upon the exercise of the discretion and weighing of those factors. This is a different exercise to determining whether it is necessary in the interests of the administration of justice to make an order extending the time within which the application must be commenced, although the two are inextricably connected. The discretion is not to be exercised in favour of an application lightly. The need for time limits to be observed is important:  Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470. The longer the delay, the more persuasive the explanation needs to be:  Jess v Scott (1986) 12 FCR 187.

5.    Ordinarily, the factors relevant to the exercise of the discretion to extend time within which proceedings for review of a decision such as these in issue here might be commenced include:

(a)    the extent of the delay;

(b)    whether there is a reasonable and adequate explanation for the delay;

(c)    whether the substantive application is sufficiently arguable to support the application for an extension of time; and

(d)    whether there is any prejudice to the respondents.

6.    The proposed substantive application for judicial review should have such prospects of success so as to not render the extension of time an exercise in futility. Those prospects should be assessed at a relatively impressionistic level.

13    The primary judge concluded that the delay of ten months for filing a review application in respect of the non-revocation decision was “considerable” in the context of a legislative regime that ordinarily requires proceedings to be commenced within 35 days (J[7]).

14    As to the reason for the delay, the primary judge had regard to an affidavit of the applicant’s solicitor (J[9]). In relation to the cancellation decision (referred to as the First Decision) the solicitor deposed:

20.    I am instructed that the Applicant … only ever had dealings with Hayatullah Rahimi.

21.    I am instructed that the Applicant was of the belief that Hayatullah Rahimi was a migration agent registered with the Migration Agents Registration Authority (MARA) but that he would find an expert lawyer to represent and prepare the response to the First Decision.

22.    I am instructed that the Applicant had asked Hayatullah Rahimi whether he could speak with the ‘lawyer’ preparing his response to the First Decision as he wanted to give that person instructions.

23.    I am instructed Hayatullah Rahimi informed the Applicant those instructions could be given to him and that there was no need to speak with the person preparing his response to the First Decision.

24.    I am instructed that the Applicant provided all information for the written response of 7 May 2019 to Hayatullah Rahimi under the belief this information would be passed onto the person preparing the response.

25.    I am instructed that at that time, the Applicant did not know the name of the person preparing his response to the First Decision.

…

32.    I am instructed that once the Applicant received a copy of the [non-revocation decision], he learned his response to the First Decision was prepared by someone named Gurpreet Kaur …

33.    I am instructed the Applicant never had dealings with Gurpreet Kaur and that all information to be included in the written response of 7 May 2019 was provided to Hayatullah Rahimi.

34.    I am instructed the Applicant later learned that Gurpreet Kaur was not a lawyer.

15    In relation to the delay in filing an application for judicial review of the non-revocation decision (referred to as the Second Decision) the solicitor deposed:

27.    I am instructed that after the Second Decision was made, the Applicant received a call from Hayatullah Rahimi informing him the Department had made the decision not to revoke the cancellation of his visa.

28.    I am instructed that the Applicant asked Hayatullah Rahimi if there was anything he could do to challenge the Second Decision.

29.    I am instructed that Hayatullah Rahimi told the Applicant there was nothing more he could do as he was outside of Australia.

30.    I am instructed that sometime after this call, the Applicant received a copy of the Second Decision via email. I am instructed the Applicant does not remember exactly when he received this email and cannot find this email in his inbox.

31.    I am instructed that the Applicant believed there were no options for him to appeal the Second Decision because the Second Decision and accompanying Notification of Decision Not to Revoke Visa Cancellation Under Section 131 of the Migration Act 1958 dated 19 August 2019 (Notification of Second Decision) did not state the Second Decision could be appealed.

…

36.    I am instructed that all migration advice the Applicant received in relation to the First Decision and Second Decision was provided by Hayatullah Rahimi.

16    The primary judge said that those depositions did not explain the delay:  J[10]. His Honour continued:

10    ...  What it demonstrates is that in respect of the first decision, the applicant knew that he had rights of response and he took those rights up. He exercised them. Moreover, he made a decision to leave the exercise of those rights in the hands of another person. He knew that his response to the first decision was being prepared by somebody whose name he did not know. That he subsequently found out the identity of the person who prepared his response is not to the point.

11.    The applicant then says that he did not know he had rights of review in respect of the second decision and that he only learned of those rights from his cousin in July, 2020. This evidence does not address the email communications between the applicant and the respondent’s Department in October, 2019 which culminated with an email from the respondent’s Department to the applicant suggesting that he may wish to consider consulting a migration agent or lawyer. There is no suggestion that he did that. In any event, a lack of legal advice is not, of itself, a sufficient excuse for a failure to lodge an application for review within time:  Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35]. Nor will ignorance of the relevant time limits ordinarily justify an extension of time:  SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].

17    After noting that there was no particular prejudice to the Minister beyond the public interest in finality in administrative decision-making (J[12]), the primary judge turned to the delegates’ decisions and the merits of the proposed grounds of review.

18    The primary judge made the following findings about the delegates’ decisions (in summary):

(1)    Prior to the cancellation decision, the Department had conducted two identity assessment reports which had cast doubt on the applicant’s identity (J[26]).

(2)    The first delegate had found grounds for visa cancellation under s 116(1AA) of the Act because the applicant’s “claimed identity is not supported”, including whether the applicant was a citizen of Afghanistan (J[27]-30]).

(3)    The first delegate considered that it was appropriate to cancel the visa under s 128 of the Act, without notice and while the applicant was outside Australia, because he (J[28]):

    had been offshore since January 2019;

    had been granted a protection visa based on an identity that was no longer “supported”;

    had not provided sufficient evidence of identity despite a number of opportunities to do so; and

    may be refused immigration clearance if he were to return to Australia.

(4)    The first delegate decided that it was appropriate to exercise the discretion to cancel the visa, based on the inconsistent information and false documents the applicant had provided to Australian authorities (J[29]).

(5)    The applicant’s submissions in support of his revocation request contended that he had consistently presented the same identity, and asserted that while he had strong personal and business ties to Australia, he faced a risk in Pakistan of being returned to Afghanistan where he continued to fear harm (J[31]).

(6)    The second delegate was not satisfied by the applicant’s submissions, and made the non-revocation decision on the basis of broadly the same identity concerns as the first delegate (J[32] – [36]).

Assessment of Merits

19    Of the five proposed grounds of review pressed in the proceedings at first instance, only two are relevant to this application:

Ground 1:    The Minister fell into jurisdictional error by asking the wrong question or applying the wrong test in reaching a state of satisfaction as to whether it was ‘appropriate to cancel’ the Applicant’s visa in accordance with s.128(a)(ii) of the Migration Act.

Ground 2:    The Minister further erred in placing ‘little weight’ in respect of Australia’s protection obligations towards the Applicant, and ‘no weight’ in respect of Australia’s international obligations towards the Applicant.

20    In relation to the first ground, the primary judge noted the applicant’s submissions that the first delegate’s reasons for exercising the discretion to cancel the visa under s 128 were insufficient (J[42]). The applicant had sought to rely on Singh & Anor v Minister for Immigration [2006] FMCA 1163 as authority for the proposition that, given the “broad and draconian” nature of the power in s 128, the first delegate erred by relying on the fact that the applicant was offshore and might seek to re-enter Australia. The primary judge said that the factors considered by the first delegate in relation to whether to exercise the discretion to cancel were relevant, and supported the reasons given for the decision in a way that was neither illogical nor irrational (J[43]).

21    The applicant further sought to rely on Singh to contend that the first delegate was required to consider whether it would be more appropriate to cancel the visa using powers in alternative sections of the Act that would have required that he be afforded procedural fairness before his visa was cancelled. In that respect, the primary judge (at J[45]) preferred the decision in Ametllari v Minister for Immigration and Border Protection [2015] FCCA 603 over Singh. The primary judge set out with approval a passage from the judgment in Ametllari to the effect that a decision-maker is not required to consider the use of other cancellation powers before cancelling a visa under s 128; before finding that (at [43]):

… the respondent’s delegate identified four reasons why it was appropriate to cancel the applicant’s visa under s.128 of the Act. The applicant argues that each of the four reasons could ‘equally be pertinent (assuming they are relevant) to a decision to cancel a visa under subdivision C and in particular s.116(1AA) of the Act. The power to proceed under s.116(1AA) can be exercised whether or not the applicant is in Australia:  s.117(2)’. However, whilst I accept this as a general proposition, it is not to the point. That the factors considered by a particular decision-maker as making it appropriate to act under s.128 of the Act might also be relevant to the exercise of a discretion to cancel a visa under another section of the Act does not mean that moving under s.128 of the Act is not appropriate.  …

22    The primary judge concluded that the requirement that the first delegate to be satisfied that visa cancellation was appropriate was not qualified in the way the applicant had suggested, and that there was nothing in s 128 to support that construction (at J[46]). His Honour continued (at [47]):

The applicant’s arguments do not demonstrate any jurisdictional error in the respondent’s first decision at an impressionistic level. Whilst this ground cannot be said to be devoid of merit, any merit in the argument is likely to turn out to be illusory upon a proper examination of the ground.

23    In relation to the second ground, the applicant submitted that the first delegate had erred in assessing the weight that ought to be given to Australia’s international non-refoulement obligations, by taking into account the uncertainty regarding the applicant’s identity. The applicant contended that Australia’s non-refoulement obligations previously recognised in relation to the applicant should have been determinative of a decision to exercise the discretion to not cancel the applicant’s visa (J[49]). The primary judge concluded that as s 128 prescribed no mandatory considerations, the first delegate was not required to consider Australia’s non-refoulement obligations or any other international obligations when making the decision to cancel the visa (J[50]). His Honour said that in any event the first delegate did consider the fact that the applicant had been granted a protection visa, but determined to give that circumstance little or no weight because the identity that had formed the basis of a previous finding that Australia owed protection obligations in respect of the applicant was “not supported” (J[51]):

52.    I accept the respondent’s submission that implicit in the first delegate’s decision that he could not be satisfied of the applicant’s identity is the finding that the first delegate could not be satisfied that the applicant was a refugee or at real risk of harm if prevented from re-entering Australia. In my view, it necessarily followed from that finding that, logically, no or little weight could be given to Australia’s protection obligations towards the applicant.

53.    As to Australia’s international obligations in relation to non-refoulement, the [first] delegate said:

Australia’s international obligations apply to persons within Australia’s territory and jurisdiction. As the visa holder is no longer within Australia’s territory or jurisdiction, Australia’s obligations in relation to the visa holder no longer apply.

54.    This statement is clearly correct:  Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [136]; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [42]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [492].

24    After rejecting the remaining proposed grounds (at J[55] – [70]) as unmeritorious, the primary judge concluded:

71.    There is a significant delay of many months between the making of the decisions that the applicant now wishes to challenge and the commencement of these proceedings. In my view, the applicant’s evidence concerning the reasons for the delay is unsatisfactory and unconvincing. I find that there is no satisfactory explanation or indeed any explanation at all for that delay.

72.    Further, I am not satisfied that even at an impressionistic level, the grounds of review that the applicant wishes to agitate in respect of either the cancellation decision or the revocation decision have sufficient merit to warrant the grant of an extension of time. I am not satisfied that it is necessary in the interests of the administration of justice to make the order sought by the applicant extending the time within which to commence these proceedings. In reaching that conclusion, I have taken into account prejudice that will flow to the applicant from that refusal.

PRINCIPLES

25    There is no right to appeal from a judgment or order of the FCCA refusing to grant an extension of time under s 477(2) of the Act:  Act, s 476A(3)(a). This Court’s jurisdiction to review the decision is that conferred under s 39B of the Judiciary Act and is relevantly the same as that conferred on the High Court under s 75(v) of the Constitution. To succeed on the application, the applicant must show that the decision of the FCCA is affected by jurisdictional error.

26    The three grounds for judicial review (extracted later in these reasons) are to the effect that the primary judge committed jurisdictional error by:

(1)    misapprehending the explanation the applicant had advanced for the delay;

(2)    proceeding to determine a prospective ground for review on its substantive merits rather than determining whether it was reasonably arguable; and

(3)    misunderstanding the legal argument advanced in support of the prospective grounds.

27    As the High Court explained in Craig v South Australia (1995) 184 CLR 163 (at 179 – 180) in respect of jurisdictional error committed by an inferior court:

… 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    The plurality in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 later cautioned that Craig “was not to be seen as providing a rigid taxonomy of jurisdictional error” and that statements of principle such as those extracted above are “not to be taken as marking the boundaries of the relevant field:  French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (at [73]). Their Honours observed (at [72]) that the line between jurisdictional error and mere error in the exercise of jurisdiction may, in some cases be, “particularly difficult to discern” (see also Craig at 177).

29    In CZA19 v Federal Circuit Court of Australia (2021) 285 FCR 447 the Full Court (exercising this Court’s original jurisdiction) discussed the application of the principles in the context of an application for judicial review of a decision of the FCCA not to extend time to seek review of a migration decision under s 477(2) of the Act. The applicant’s two grounds of review were to the effect that the primary judge misunderstood or overlooked the prospective review grounds upon which the applicant sought to rely, and that the primary judge misunderstood the period of the extension of time that was sought (and required). The Full Court made the following observations as to the nature of its task:

15    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.

16    Significantly, the extent of the authority of a Federal Circuit Court judge is not established by a description of the kind of matters that may be brought before the Court by reference to their subject matter. Rather, its original jurisdiction is confined to that which is vested in the Court by laws made by Parliament by express provision:  s 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and by any necessary implication provided for by s 10(1)(b). As a result, the extent of the authority of a judge of the Federal Circuit Court is a question of statutory construction. In the present case, the authority of the Federal Circuit Court judge was to extend the time within which to undertake a review where ‘it is necessary in the interests of the administration of justice’ for such an order to be made.

30    As such, the Full Court said, the jurisdiction of the FCCA was confined by the terms of s 477(2) of the Act. Any error as to the scope of such a provision was, the Full Court said, “different to an error as to the law to be applied in the course of the exercise of judicial authority” (at [17]). Their Honours continued:

17.    …  If the decision that was made was guided by a misunderstanding as to the nature and extent of the jurisdiction conferred by s 477(2) then that error could be jurisdictional. It would be jurisdictional if it caused the Federal Circuit Court judge to extend time in circumstances that were not authorised by the provision. It would be jurisdictional if it caused the Federal Circuit Court judge to deny the existence of any authority to extend time in circumstances where there was such authority. It would be jurisdictional if it caused the Federal Circuit Court judge to undertake a consideration of a kind that departed from the nature of the consideration that was required. It would be jurisdictional if the Federal Circuit Court judge concluded that it would be in the interests of justice to extend time, but nevertheless did not do so.

18.    However, the jurisdiction of the Federal Circuit Court judge was also circumscribed by the nature of the application that was brought in the particular case. The fact that the Federal Circuit Court judge adopts the correct understanding of the nature and extent of the jurisdiction to extend time that is conferred by s 477(2) is not the end of the matter. That understanding must still be applied in determining the application that was brought by the party invoking the jurisdiction.

19.    The relevant jurisdiction that was invoked required the Federal Circuit Court judge to adjudicate whether an extension of time was necessary in the interests of justice on the basis of the matters raised by the particular application. In that regard, two matters are well established. First, no considerations are mandatory for the purposes of the exercise of the discretion:  WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 282 FCR 516 at [29]–[33] (Katzmann, O’Bryan and Jackson JJ). Secondly, in determining where the interests of justice lie, the proposed grounds of review should be evaluated at a reasonably impressionistic level (although the repeated statements to that effect may be no more than judicial guidance):  Huynh v Federal Circuit Court of Australia (2019) 166 ALD 228 at [58]–[67] (Colvin J).

31    The applicant in CZA19 had sought to characterise the alleged error of the primary judge as involving a misconception of the nature and circumstance of the application in such a fundamental manner that the jurisdiction that was sought to be involved had not in fact been exercised by the primary judge. The Full Court concluded that to the extent that the grounds alleged a failure to give “proper consideration” for the delay, they did not articulate jurisdictional error (at [21]). Further, it had not been said that the primary judge had acted on an “incorrect understanding of that nature and extent of the jurisdiction to be exercised such that an unduly narrow or wide view of the relevant judicial authority guided the decision” (at [22]).

32    In rejecting ground one, the Full Court said:

34.    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) 266 CLR 1 at [33].

35.    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 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.

36.    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.

33    In respect of the second ground, the Full Court found (at [59]) that the primary judge had acted on the incorrect basis that the applicant had made an oral application 34 days out of time, whereas in fact he had lodged a written application four days out of time. As such:

…  The Federal Circuit Court misapprehended fundamentally and materially the extent of the extension required. As the extent of the extension sought was the subject matter of the application, in substantive effect a different application was addressed. The relevant judicial task was not completed, indeed not entered upon:  another application had been considered.

34    That error was properly characterised as jurisdictional (at [60]).

35    In Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604, the applicant alleged that a judge of this Court had committed jurisdictional error in the exercise of the power conferred by s 477A(2) of the Act (expressed in relevantly the same terms as s 477(2)) by embarking on a consideration of the substantial merits of the proposed grounds for judicial review rather than assessing the merits at no more than an impressionistic level. The phrase “impressionistic level” derived from a line of authority of this Court, including the decision of the Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 and the decision of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (at [38]) (upheld by a different Full Court in MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478).

36    In Katoa Kiefel CJ, Gageler, Keane and Gleeson JJ summarised and (to an extent) disapproved the authorities as follows:

14.    Guidelines for the proper exercise of the power in s 477(2) of the Act (which is in relevantly similar terms to s 477A(2)) were stated by the Full Court of the Federal Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. In particular, the Full Court stated that an evaluation of the merits of the proposed substantive application that goes further than an ‘impressionistic evaluation of the [applicant’s] proposed ground of review, strongly suggests that it misconceived its function or power and acted in excess of its jurisdiction’. The Court added that ‘the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review’ and, if ‘a court seeks to assess the merits of the proposed grounds of review against a standard of whether they would ultimately succeed on the hearing of the application, the conclusion will usually be drawn that it has misconceived its function and or power’.

15.    The reasoning of the Full Court in DHX17 was informed by the earlier decision of Mortimer J in MZABP v Minister for Immigration and Border Protection (MZABP) concerning s 477(2), endorsed on appeal by a different Full Court.  …

…

17    … it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed [in MZABP], that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

18    However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even ‘exceptional’. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is ‘reasonably arguable’ or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

19.    It follows that the Full Court in DHX17 was wrong to say that ‘the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review’. As the merits of a proposed application are a permissible consideration, it is within the Federal Court’s jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant’s case is likely to commit jurisdictional error, was mistaken.

(footnotes omitted)

37    To similar effect, Gordon, Edelman and Steward JJ said:

47    … even assuming that the time limit imposed by s 477A(1) operates as a limitation on the scope of the Federal Court’s jurisdiction, that would not mean that it is a jurisdictional error for the Court to go beyond a threshold assessment of the merits of a substantive application in circumstances where there is nothing in s 477A that imposes such a limitation. Describing s 477A(2) as a ‘gateway provision’ does not assist in identifying the limits of the power. It does not tell you whether a Federal Court judge who identifies a wrong issue or asks a wrong question falls into jurisdictional error.

…

49    …  If a judge determining whether to grant an extension of time under s 477A(2) asks themselves, independently of other factors, ‘should the applicant lose on the merits of their proposed substantive application?’, and resolved the application for an extension of time by reference only to the substantive merits of the application, it may be that they would have misconceived the nature of the function which they were performing in the sense explained in Craig.  …

…

61    The plaintiff drew particular support for his contention that, where the Federal Court goes beyond an assessment of the merits on an impressionistic basis when considering an application for an extension of time under s 477A(2), the more detailed consideration of the merits strongly suggests that the Court has misconceived its function or power and acted in excess of jurisdiction, from the decision of Mortimer J in MZABP (which was relevantly endorsed by the Full Court of the Federal Court on appeal) and the Full Court of the Federal Court’s decision in DHX17. Although there are statements in those authorities to the effect that the assessment of the merits of a proposed application should be conducted at a reasonably impressionistic level, there is not a consistent line of authorities in the Federal Court to the effect that a failure to do so (by conducting a fuller assessment of the merits) necessarily will constitute jurisdictional error. As these reasons have shown, the latter proposition is not correct. It is inconsistent with the text, context and purpose of s 477A(2) of the Migration Act.

(footnotes omitted)

GROUND 1

38    This ground is expressed as follows:

1.    The Federal Circuit Court judge misapprehended and thereby failed to consider the applicant’s explanation for delay.

Particulars

(a)    The applicant’s evidence before the Federal Circuit Court was that he had engaged a person who had represented to him that he was a lawyer, who had advised that he had no avenue to challenge the decision of the Minister’s delegate not to revoke the cancellation of the applicant’s visa because he was outside Australia at the time, and had relied on that advice until he was informed later that the advice was wrong and that the person who had provided it was not in fact a lawyer.

(b)    The Federal Circuit Court characterised the applicant’s explanation as having had ‘a lack of legal advice’ and rejected the explanation on the basis that a lack of legal advice is not, of itself, a sufficient excuse for a failure to lodge an application for review within time.

(c)    The Federal Circuit Court’s finding at [71] that ‘there is no satisfactory explanation or indeed any explanation at all’ for the delay was based on the Court’s misapprehension of the applicant’s explanation.

(d)    The Federal Circuit Court failed to consider properly the explanation for delay actually given by the applicant, in the proper context of a person who was outside Australia, lacked English language skills and an ability to navigate the Australian legal system and was reliant on the advice and assistance of purported legal professionals.

39    The asserted error is said to be evident at J[10] – [11] extracted at [16] of these reasons.

40    In written submissions, the evidence concerning the explanation for the delay was summarised in the following terms:

22.    Contrary to his Honour’s criticism, the core point of the applicant’s explanation was that he had sought the advice of a person he believed at the time to be a lawyer experienced in Australian immigration law, and that it was in reliance on that person’s advice that he believed that the opportunity to make representations requesting the revocation of the cancellation (the first decision) exhausted his rights of review, and that he had no rights of review of the non-revocation decision.

23.    Contrary to the primary judge’s characterisation, the applicant’s explanation was not ‘a lack of legal advice, of itself’; nor was it merely ‘ignorance of the relevant time limits’.

24.    That mischaracterisation of the applicant’s explanation was exacerbated by the failure to have regard to the context in which the delay occurred, and the fact that the applicant’s difficulty in accessing assistance was in part the product of being stranded in Pakistan, due to the delegate’s decision to cancel the applicant’s visa while he was outside the country.

(original emphasis)

41    I do not consider that to be a correct summary of the evidence upon which the applicant relied. The evidence of the applicant’s solicitor differed with respect to the cancellation decision and the non-revocation decision. The reasons of the primary judge at J[10] concern the cancellation decision. His Honour was correct to identify that the applicant had in fact exercised his right to seek revocation of the cancellation decision. The identity of the author of the “response” to the cancellation decision (whether or not a lawyer) was not to the point. The affidavit did not provide any explanation for the delay in commencing an application for review of the non-revocation decision. The primary judge was otherwise plainly aware that the applicant was in Pakistan at the time of the relevant events:  J[8].

42    The explanation given in relation to the non-revocation decision was considered by the primary judge at J[11]. The evidence of the applicant’s solicitor with respect to that decision did not contain any assertion that the applicant had sought to engage the services of a lawyer in connection with a review of the non-revocation decision, nor that he had received advice from any person he assumed to be a lawyer in relation to the time to exercise rights of review, or at all. Moreover, as the primary judge recorded, the time to commence an application for review of the non-revocation decision expired on 23 September 2019. The primary judge correctly identified that in October 2019 the applicant had been urged by the Minister’s Department to seek legal advice, but he did not do so until July 2020. The solicitor’s evidence did not contain any evidence to the effect that during that period the applicant acted on the advice of a person he wrongly believed to be a lawyer in relation to his rights of review of the non-revocation decision.

43    There being no error of the kind alleged, it is unnecessary to express any view as to whether the misapprehension of an explanation for delay should be characterised as a jurisdictional error. The first ground of appeal fails on the facts.

GROUND 2

44    The second ground is as follows:

2.    The Federal Circuit Court judge misapprehended the nature of the task under s 477(2) of the Migration Act by applying the wrong threshold to a review of the merits of the proposed grounds, or alternatively, by travelling beyond an impressionistic consideration of the merits of the grounds of judicial review and speculating about what might happen at the next stage of review.

Particulars

(a)    The Federal Circuit Court is required to undertake an impressionistic consideration of the grounds of judicial review, for the purpose of ensuring that an extension of time, if granted, would not be futile.

(b)    The Federal Circuit Court at [47] found that ground 1 of the applicant’s proposed grounds ‘cannot be said to be devoid of merit’.

(c)    Despite that finding, the Federal Circuit Court speculated that ‘any merit in the argument is likely to turn out to be illusory on a proper examination of the ground.’

(d)    Further and alternatively, the Federal Circuit Court erred in assuming that it was necessary to ‘demonstrate jurisdictional error’ at the impressionistic level, thereby applying an incorrect threshold to the task.

45    At the time of argument in relation to this ground, the High Court’s judgment in Katoa had not been delivered. Neither party sought to make supplementary submissions with respect to its consequences for the second ground for review.

46    To the extent that the ground proceeds from an assumption that an inferior court will necessarily have misapprehended the nature of its jurisdiction or to have otherwise asked itself the wrong question by considering the merits of prospective grounds for judicial review at anything other than an impressionistic level, the argument cannot survive the reasons of the High Court in Katoa. The decisions in MZABP and DHX17 must be understood to have been disapproved to the extent that they went so far, as must my earlier decision in AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401.

47    The reasoning in Katoa does not foreclose an argument that an inferior court committed jurisdictional error in a case where the reasons for refusing to grant an extension of time evidence that the inferior court has misapprehended its task or asked itself the wrong question. As Gordon, Edelman and Steward JJ acknowledged in Katoa (at [49]), when a court exercising the power under s 477(2) or s 477A(2) embarks on a substantive consideration and actual resolution of the proposed grounds of review, that may indicate that the inferior court has failed to ask what the interests of the administration of justice require on the application for an extension of time to commence the substantive proceeding.

48    In FKV17 v Minister for Home Affairs [2022] FCAFC 93; 402 ALR 492 the primary judge had refused to grant an extension of time under s 477(2). The primary judge stated that he had “proceeded as if the substantive application was before me” for determination (at [53]), and found that each proposed ground of review “fails” (at [113], [115] – [117] or “must also fail” (at [119]). The primary judge refused the application for an extension of time “given that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing the application” ([53]). A majority of the Full Court found that the primary judge had committed jurisdictional error. Concerned by the foreclosure of an appeal to this Court by s 476A(3)(a) of the Act, Greenwood J found that, having embarked on an assessment of the s 476 grounds as if they were before him, and refusing the extension of time on the basis that all grounds failed, the primary judge had (at [88]):

… deprived the appellant of something necessary in the interests of the administration of justice, namely, a right to test whether the primary judge’s views about the grounds were right or wrong, and this is especially so in circumstances where the primary judge had not subjected the grounds to the content-specific analysis necessary to decisively form a view about whether any one of more of them would or would not fail.

(emphasis in original)

49    In a separate judgement, Rangiah J found that (at [152]):

…  It is not the function of the Federal Circuit Court under s 477(2) to determine that proposed grounds of an application under s 476 which are at least arguable do not demonstrate jurisdictional error and then refuse an extension of time for that reason, or partly for that reason. Such an approach impermissibly conflates the Federal Circuit Court’s function under s 477(2) with its separate and distinct function under s 476 of determining an application for relief …

(emphasis in original)

50    At the time of delivery of this judgment, an application for special leave to appeal from the judgment in FKV17 to the High Court remains pending and has done so for some time. As explained below, I consider that the circumstances of this case are different from those considered by the Full Court. In addition, whilst both Greenwood J and Rangiah J in FKV17 each identified jurisdictional error, their reasoning differed as to how and why that was so.

51    Here, the applicant submitted that jurisdictional error affecting the primary judge’s engagement with the merits manifested in three ways. First, the primary judge found that the argument that exercise of the power contained in s 128 of the Act is conditional on first considering other visa cancellation powers “cannot be said to be devoid of merit” (J[47]). It was contended that that amounted to a finding that the proposed application for judicial review was reasonably arguable and that the judge should have concluded his assessment of the merits at that stage of his deliberation. Second, it was submitted that by finding that “any merit in the argument is likely to turn out to be illusory”, the primary judge engaged in speculation as to how the grounds would be resolved, without proper examination. Third, it was submitted that the primary judge was confronted with conflicting authority within the FCCA (in Singh and Ametllari) that should have been resolved through full argument. As such, the applicant submitted, that ground was accordingly not “bound to fail”. The applicant referred to Full Court authority said to support the argument that a decision-maker must consider utilising other cancellation powers before exercising the power in s 128:  Hu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 63.

52    These arguments turn largely on the proper interpretation of the reasons of the primary judge. In my view, the conclusion that the argument founded on s 128 of the Act was not “devoid of merit” must be understood in the context of the sentences coming before and after it. The observation that any merit in the proposed ground was likely to be illusory necessarily involved a prediction that the ground would ultimately fail. The primary judge expressly stated that his views as to the merits were formed at an impressionistic level. In my view, the passages at J[10] and [11] did not involve impermissible speculation of a kind that warrants a conclusion that the primary judge asked himself the wrong question or misunderstood the nature of the task under s 477(2). Read as a whole, the reasons of the primary judge disclose an awareness of the line of authority requiring that the merits be assessed at an impressionistic level. Having correctly stated the test as then derived from the authorities of this Court, the primary judge should be understood to have expressed a view as to the insufficiency of the merits in light of the findings his Honour had already made about the lack of an adequate explanation for the delay.

53    As I have mentioned, following the judgment in Katoa there may be scope to argue, in an appropriate case, that an inferior court will commit jurisdictional error if it refuses to grant an extension of time notwithstanding that prospective grounds of review are reasonably arguable. FKV17 was such a case, but this is not. The primary judge was entitled to evaluate the sufficiency of the merits of the grounds for review having regard to all of the circumstances. The assessment of the merits involved matters of judgement and degree, and the language of the primary judge does not indicate any actual or constructive failure to assess where the interests of justice might lie. In accordance with Katoa, the FCCA will not commit jurisdictional error if it refuses to grant an extension of time after identifying that a prospective ground for judicial review is arguable. The FCCA is entitled to evaluate the sufficiency of the merits in light of all of the facts and circumstances, including the circumstance that no adequate explanation had been given for a substantial delay.

54    To the extent that I reached a different conclusion in any earlier judgment, the judgment should be understood to have been impliedly overruled by Katoa.

GROUND 3

55    This ground is expressed as follows:

3.    The Federal Circuit Court judge misapprehended and thereby failed to consider the merits of the grounds of judicial review articulated by the applicant with a view to considering whether the grounds were reasonably arguable.

Particulars

a)    Ground 2 of the proposed grounds of judicial review was that the Minister had erred in failing to place weight on Australia’s obligations of protection and non-refoulement towards the applicant.

b)    The Federal Circuit Court found that it necessarily followed from the Minister’s delegate’s finding that the applicant’s identity was ‘not supported’ (which finding was challenged by the applicant) that the Minister could not be satisfied that the applicant had a well-founded fear of persecution or a real risk of significant harm.

c)    The Federal Circuit Court failed to appreciate that non-refoulement obligations in the context of a decision to cancel a visa are different to and broader than the protection visa criteria in s 36(2) of the Migration Act.

d)    The Federal Circuit Court’s finding that proposed ground 2 lacked merit was based on an erroneous finding at [54] that the delegate’s finding that ‘Australia’s [protection and non-refoulement] obligations in relation to the visa holder no longer apply’ was ‘clearly correct.’ That conclusion is wrong at law, as the applicant was plainly within Australia’s jurisdiction, and relied on three authorities that do not address that point.

e)    The Federal Circuit Court’s misunderstanding of the legal argument the applicant proposed to mount under ground 2 resulted in a failure to consider whether there was sufficient merit in that ground to justify the extension of time.

56    The applicant submitted that his complaint to the FCCA was that the first delegate should have considered Australia’s international law obligations at large, and not through the prism of the criteria for the grant of a protection visa in s 36 of the Act. Following the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417, the applicant conceded that Australia’s international non-refoulement obligations not enacted into domestic law are not mandatory relevant considerations, and cannot otherwise operate as a source of rights and obligations under domestic law. Counsel also withdrew an argument that the applicant remained within Australia’s jurisdiction for the purposes of Australia’s international obligations.

57    The applicant maintained that the contended error of the primary judge was not an incorrect understanding of the applicability of international law obligations to the applicant’s case, but rather a fundamental misunderstanding of the nature of the complaint being made about the first delegate’s decision. As recorded at J[31], in this matter the applicant had made submissions regarding a risk of being forced to leave Pakistan for Afghanistan, where he feared harm. The applicant submits that the second delegate made no reference in the non-revocation decision to that fear of harm. The applicant contends that it was a jurisdictional error of the primary judge not to apprehend that error, as a component of the grounds of review advanced before him.

58    This ground must be rejected for four reasons.

59    First, it has not been demonstrated in this Court that the argument now described was clearly articulated before the primary judge. Rather, the proposed ground for review was expressed in a way that warranted rejection, given the points conceded by the applicant in accordance with the principles stated in Plaintiff M1/2021. On this application the onus was on the applicant to demonstrate that the more subtle argument now said to have been missed or misunderstood by the primary judge was one that was clearly articulated at first instance.

60    Second, the respondent says that a consequence of the finding of the majority in Plaintiff M1/2021 is that even if an administrative decision-maker were to misunderstand un-enacted international obligations, or purport to consider such obligations but make an error of law in doing so, such an error would be within jurisdiction. That conclusion must also follow with respect to errors of an inferior court.

61    Third, the Minister answered this ground for review with two arguments that should be accepted irrespective of the reasoning in Plaintiff M1/2021. In short, the protection visa previously granted to the applicant was based on Refugee Convention criteria, and before the limited enactment of Australia’s obligations under the relevant international instruments into Australia’s protection visa program in 2013. In addition, the first delegate was correct to find that obligations had ceased once the applicant departed Australia, and the applicant has not provided any authority to the contrary:  QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9.

62    Fourth, an error by the primary judge in misunderstanding a submission raised in relation to a prospective ground of review ought not necessarily be characterised as a jurisdictional error:   CZA19 (at [34]). Here, the error alleged, even if established, would not lead to a conclusion that the primary judge fundamentally misunderstood his task or decided a controversy so fundamentally different to that which was before him so as to amount to a failure to decide the application at all. In the circumstances of the present case, error of the kind alleged is properly characterised as one within the jurisdiction of the primary judge.

Associate:

Dated:    5 May 2023