Federal Court of Australia

Li v Federal Circuit and Family Court of Australia [2026] FCA 1034

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed 13 December 2024 is dismissed.

2.    The Applicants are to pay the Second Respondent’s costs of the originating application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

overview

1    The Applicants seek an order under s 39B of the Judiciary Act 1903 (Cth) quashing the decision of the First Respondent (Federal Circuit Court), made 14 November 2024, dismissing the application by the First Applicant (Mr Li) for an extension of time to seek a review of a migration decision (FCC decision). The migration decision – refusing Mr Li’s application for a Business Skills (Provisional) Business Innovation and Investment (Provisional) (Subclass 188) visa (Subclass 188 visa) – was made by a delegate of the Second Respondent (Minister).

2    Mr Li is a citizen of the People’s Republic of China. On 24 November 2020, he applied for the Subclass 188 visa. The Second and Third Applicants are members of his family, whose own visa applications are said to depend on that made by Mr Li. On 31 March 2023, the delegate made the migration decision on the ground that Mr Li did not satisfy the requirement in Sch 2, cl 188.225(1) and reg 1.11 of the Migration Regulations 1994 (Cth) of an “ownership interest” during the prescribed period in one or more “main businesses” with a prescribed annual turnover.

3    Mr Li had a 35-day period within which to apply for a review of the migration decision: Migration Act 1958 (Cth), s 477(1). For reasons explained in evidence, Mr Li did not apply within the prescribed period. On 12 December 2023, more than six months out of time, the Applicants applied to the Federal Circuit Court for an extension of time under s 477(2) within which to seek a review of the migration decision (extension application). The extension application included the grounds of the substantive application for review of the migration decision (proposed review application).

4    The Federal Circuit Court judge dismissed the extension application, finding that the substantive grounds of the proposed review of the migration decision were without merit and there was no utility in granting an extension of time. The Applicants contend that the FCC decision is affected by jurisdictional error on three grounds. Those grounds are set out in an affidavit of Mr Suzanne Lee Weel, solicitor for the Applicants, dated 12 December 2024, and are as follows:

(a)    The learned judge committed jurisdictional error because he failed to consider all matters specifically raised by the Applicants pursuant to s 477(2)(a) of the Act as to why they considered that it was necessary in the interests of the administration of justice to make an order for an extension of time for the filing of the review application, amounting to a constructive failure to exercise jurisdiction;

(b)    The learned judge committed jurisdictional error because he failed to afford the Applicants procedural fairness by proceeding to hear and determine the matter on 12 November 2024, as though he was hearing the extension application concurrently with the review application at a final hearing; and

(c)    The learned judge committed jurisdictional error because his assessment that the grounds in the proposed review application did not have arguable merit was so unreasonable and inconsistent with established legal principles,

(pleaded grounds of review).

5    For the following reasons, the originating application for relief under s 39B of the Judiciary Act will be dismissed and the Applicants will be ordered to pay the Minister’s costs to be assessed, if they cannot be agreed.

fcc decision

6    The pleaded grounds of review centre on the matters it is alleged that the Federal Circuit Court judge did, and did not, take into account in deciding under s 477(2) of the Act whether to grant an extension of time.

7    Section 477(2) provides:

477    Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)

…

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

(a)    an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) 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 and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

8    Section 477(2) of the Act is not referred to in the FCC decision. Nonetheless, the learned judge identified the “relevant considerations” for the extension application in the FCC decision as follows:

[10]    The principles governing applications for extension of time were considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3FCR 344 at [18] – [23], the non-exhaustive list of matters for consideration being as follows:

•    The extent of the delay;

•    The explanation for the delay;

•    Any prejudice to the respondent;

•    The impact on the applicant;

•    The interests of the public at large; and

•    The merits of the substantive application.

9    His Honour then made reference to Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, concerning s 477A of the Act. Section 477A is drafted in relevantly equivalent terms to s 477 of the Act and concerns the power of the Federal Court to grant an extension of time in relation to an application in its original jurisdiction under s 476A(1)(b) or (c) of the Act, in relation to a migration decision.

10    The FCC decision outlined:

[11]    In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA28 at [13] and [17] – [18], it was held by Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:

13.    “In the absence of mandatory considerations for determining whether his Honour had the state of satisfaction required by s 477A(2)(b), the primary judge properly referred to the well established principles guiding decisions whether to extend time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that were stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. Those principles, which are non-exhaustive of the factors that may be relevant to an extension of time under s 477A(2), include that "[t]he merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted"

    …

17.    French J's observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, 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, 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.”

11    There followed a consideration by the Federal Circuit Court judge of the “question of the merits of the substantive application”: FCC decision at [12]. That analysis concluded with the learned judge finding that the Applicants had “failed to establish jurisdictional error on the part of the delegate” and that the “grounds of review are without merit”: FCC decision at [12]-[24]. The learned judge then concluded:

[25]    The extension of time application is dismissed. The Court has found that the substantive grounds of review are unmeritorious, and that there is no utility in the time for the filing of the application for review being extended.

12    Other than identifying the extent of the delay in bringing the proposed review application, the learned judge did not address the other “non-exhaustive list of matters for consideration” identified at [10] of the FCC decision.

grounds of review

13    It is necessary to say something at the outset as to the manner in which the Applicants advanced their case in relation to the pleaded grounds of review. The Applicants’ written submissions-in-chief only addressed ground 3. On the morning of the hearing, the Applicants served the Minister with a document entitled “reply submissions by the applicant with addendum”. The “addendum” appeared to address ground 1. During the course of the hearing, counsel for the Applicants made submissions traversing each of the pleaded grounds of review. At the end of the hearing, orders were made for the Minister to file supplementary submissions following the hearing and for the Applicants to file any submissions in reply. The complaint the subject of ground 2 appeared in those submissions in reply.

14    There was not always a great deal of clarity about the connection between the submissions the Applicants made orally, and in writing, and the pleaded grounds of review. The following exchange at the hearing is illustrative:

HER HONOUR:    … I do want to have an understanding of precisely the grounds that you are advancing on your application. So as I understand it – if we could turn, Mr Boccabella, to the affidavit of Ms Weel, where those grounds are articulated, in terms of your submissions [in chief], they seem to me to address the legal unreasonableness ground, which is ground C in the affidavit. Am I right about that?

MR BOCCABELLA:    No, they’re more the interpretation point and the extension of time point. In essence, the - - -

HER HONOUR:    But why do they say then – the submissions say on page 2:

    The primary judge committed jurisdictional error because his assessment was so unreasonable and inconsistent with established legal principles.

    So, do you not press that ground then?

MR BOCCABELLA:    Well, as I’ve stated, they are – inevitably overlap in the sense of the interpretation of the regulations and unreasonableness are obviously linked - - -

…

MR BOCCABELLA:    - - - and they’re not necessarily separate.

15    These reasons address that ambiguity by identifying each issue raised in relation to each pleaded ground of review.

Ground 1: Did the learned judge fail to consider all the matters specifically raised by Mr Li?

16    Ground 1 concerns the alleged failure of the Federal Circuit Court to consider “all matters” raised by the Applicants as to why it was necessary in the interests of the administration of justice to grant an extension of time. Those “matters” are not particularised in the pleaded grounds of review. They are identified in the Applicants’ “addendum” written submissions as Mr Li’s “explanation for delay and/or the evidence concerning the advice from [his] former lawyer”.

17    The explanation essentially comprised the following matters: (i) Mr Li’s confusion arising from the statement, “there is no right of merits review”, in the letter advising of the migration decision; (ii) advice given to Mr Li at that time by his then lawyer that he “did not have any review rights” with respect to the migration decision; (iii) advice received from a new lawyer in September 2023, that Mr Li had a right of judicial review of the migration decision; and (iv) frustrations and delays in preparing the relevant materials in support of the extension application because Mr Li was in China and it was difficult to arrange time to communicate with his lawyer.

18    The FCC decision does not refer to the explanation.

19    The Applicants contend that the omission constitutes jurisdictional error for two reasons. First, consideration of the explanation for delay is a condition or limit on the jurisdiction of the Federal Circuit Court to make an order under s 477 of the Act: cf, Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1 at [87] (Gordon, Edelman, Steward and Gleeson JJ; Kiefel CJ, Gageler and Jagot JJ dissenting). Second, the explanation constituted a “substantial, clearly articulated argument” that the learned judge was required to consider: cf, Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed at [95]; Gleeson CJ dissenting).

20    The Minister disputes that the explanation for delay is a mandatory consideration conditioning the power under s 477 of the Act. The Minister also puts in issue that the explanation rises to the level of a substantial, clearly articulated argument, or that it ought to be inferred, in the absence of an explicit reference, that the Federal Circuit Court failed to consider the explanation: cf, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ). But even were that the case, the Minister submits that would not constitute jurisdictional error by the Federal Circuit Court as opposed to an error, within jurisdiction, that may found an appeal.

Is the explanation for the delay a mandatory consideration conditioning the power of the Federal Circuit Court under s 477 of the Act?

21    I am not persuaded that the explanation for the delay is a mandatory relevant consideration conditioning the power of the Federal Circuit Court to make an order under s 477 of the Act with respect to an application for an extension of time to seek a review of a migration decision. That is for the following reasons.

22    The power in s 477 is discretionary. The only stated conditions on its exercise are a compliant application (s 477(1)) and satisfaction that an extension of time is “necessary in the administration of justice” (s 477(2)): cf, Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at p 518 (Mason J (as his Honour then was) and Deane J), at pp 533-534 (Wilson and Dawson JJ) and at p 537 (Brennan J). The section does not refer to the explanation for a delay in bringing an application, let alone specify it as a matter, consideration of which conditions the authority of the Federal Circuit Court to reach the state of satisfaction to which s 477(2) of the Act refers.

23    The construction of s 477 of the Act is informed by the decision of the High Court in Katoa to which the Federal Circuit Court referred at [11] of the FCC decision. In that case, the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) said of the analogous power vested in the Federal Court by s 477A of the Act:

[12]    On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court’s satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant’s delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

    (Footnotes omitted, emphasis added)

24    There is no reason Katoa ought not be applied to s 477(2) of the Act. Sections 477 and 477A of the Act are framed in relevantly identical terms. Applying Katoa, on a proper construction, the explanation for the delay in making a review application is not a mandatory, relevant consideration founding the authority of the Federal Circuit Court to exercise its power under s 477 of the Act.

25    The decision of Stanley, on which the Applicants place some emphasis, does not relevantly alter my view as to the proper construction of s 477(2). That case concerned the discretionary power under s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to make, or refuse to make, an intensive correction order: at [65]. Section 66(1) of the Sentencing Act provides that “community safety must be the paramount consideration” when considering whether to make such an order and s 66(2) prescribed that when “considering community safety, the sentencing court is to assess” certain matters (emphasis added). The majority held that the failure of an inferior court to consider the paramount consideration in s 66(1) by reference to the assessment in s 66(2) involved jurisdictional error. That was because it demonstrated “a misconception of the function being performed under s 7 by failing to ask the right question within jurisdiction”: at [88]. The majority also emphasised that unlike other provisions in the legislation, neither s 7 nor s 66 contained a “saving” provision expressly stating that non-compliance did not lead to invalidity: at [89].

26    Stanley is distinguishable. Section 477(2) of the Act neither states that the explanation for the delay in making a review application is a mandatory (let alone paramount) consideration in deciding whether to grant an extension of time, nor prescribes that what is “necessary in the administration of justice” is to be assessed by reference to that consideration. The evaluative task being performed under s 477(2) of the Act is not conditional upon the Federal Circuit Court asking itself what the reasons for delay were in bringing the application in considering the administration of justice. Rather, as the majority found in Katoa, the “broader interests of the administration of justice” allows the Federal Circuit Court to look at a “myriad” of factors including the explanation for the delay: at [12].

When will the Federal Circuit Court commit jurisdictional error in failing to consider the explanation for the delay in bringing an application for a review of a migration decision?

27    The failure of an administrative body to consider a “substantial, clearly articulated argument relying upon established facts” may constitute a failure to accord natural justice or a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25]. A constructive failure to exercise jurisdiction arises where the failure is to afford a hearing of the kind the relevant legislation requires to be given. Thus, by way of example, in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, the failure of an administrative body to hear an application for an adjournment and, consequently, a party’s substantive case of the type to which they were entitled, was found to constitute not just a denial of procedural fairness but a failure to exercise jurisdiction in respect of a live application validly made: see also, Dranichnikov at [32].

28    The Minister does not put in issue that an administrative tribunal may exceed its jurisdiction where it fails to consider a substantial, clearly articulated argument which arises clearly on the material: cf, Dranichnikov at [32]. But as the Minister emphasises, an inferior court, such as the Federal Circuit Court, is in a relevantly different position. That is because an inferior court is entrusted with the authority to identify relevant issues, formulate relevant questions and determine what is and what is not relevant evidence: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at pp 179-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ). A demonstrable mistake by an inferior court in the identification of such issues, or the formulation of such questions, will commonly involve an error of law which may be amenable to appeal: Craig at 180. But such an error will not, ordinarily constitute jurisdictional error: Craig at 180.

29    Ordinarily, jurisdictional error will only arise if an inferior court 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 exists: Craig at p 177; see also, Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [67] and [71]-[72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Thus, in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508, Mortimer J (as her Honour then was) found that the failure of a Federal Circuit Court judge to take into account the whole of an applicant’s explanations for delay in determining an application under s 477(2) did not constitute an error going to jurisdiction: at [57] and [58]. That was because, her Honour found that “there is nothing in the scope, subject matter and purpose of s 477(2) which gives rise to an implication that Parliament intended that adequate and genuine consideration of any explanation for the delay was to be a matter conditioning the exercise of the power to extend time, independently of the stated precondition in s 477(2)(b)” of the Act: at [63].

30    As Mortimer J acknowledged in BVW17, “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 under s 477(2)” it will fall into jurisdictional error: at [64]. That is because, the Federal Circuit Court “will be found to have misunderstood the content of s 477(2)(b)” of the Act: at [64].

31    One such example is BKD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 21. In that case, Jackson J found that the Federal Circuit Court committed jurisdictional error because, in substance, the court proceeded to determine an application for judicial review rather than an application for an extension of time: at [64]. The basis of that conclusion relevantly included that the Federal Circuit Court: (i) referred to the proceeding as an application for judicial review and then said, “[t]here is also an application for extension of time”; (ii) did not refer to the Applicants’ grounds as to why the extension was necessary in the interests of the administration of justice; (iii) other than the merits of the application, did not engage with the other factors that may be weighed in determining whether an extension of time is necessary in the interests of the administration of justice: at [58]-[59].

32    Justice Jackson acknowledged that it would “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)”: at [55]. In the circumstances described above, however, Jackson J found that the Federal Circuit Court had committed jurisdictional error. That was because:

[58]    … 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.

33    It can be seen, therefore, that the discernible difference between an omission in referring to the explanation for a delay constituting, and not constituting, jurisdictional error is where the omission evidences that the Federal Circuit Court misconceived or failed to perform the judicial task before it: cf, BVW17 at [64] and BKD18 at [55]. In that circumstance, the error will be jurisdictional.

Did the Federal Circuit Court commit jurisdictional error with respect to the explanation given by Mr Li for the delay in bringing an application for review of the migration decision?

34    The explanation was clearly articulated in the evidence before the Federal Circuit Court and was relevant to its determination as to whether it was necessary in the interests of the administration of justice to grant Mr Li an extension of time within which to seek a review of the migration decision: Dranichnikov at [24]. I am not, however, persuaded that the absence of a reference to the explanation in the FCC decision supports the conclusion that the Federal Circuit Court committed jurisdictional error.

35    It is evident from the FCC decision at [10] that his Honour was cognisant that he was deciding an application for an extension of time under s 477 of the Act, the relevant considerations for which included the explanation for the delay and the merits of the substantive application. There followed, at [11] of the FCC decision, the learned judge’s reference to Katoa (at [17]-[18]) and the discussion by the majority as to the circumstances “in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits” in determining whether to grant an extension of time under s 477A(2) of the Act (being the relevant provision in that case). His Honour then engaged in an analysis of the merits of the proposed review application leading to the conclusion:

[25]    The extension of time application is dismissed. The Court has found that the substantive grounds of review are unmeritorious, and that there is no utility in the time for the filing of the application for review being extended.

    (Emphasis added)

36    The words in emphasis make clear that the operative reason for the learned judge refusing the extension application was its lack of utility given his Honour’s finding that the proposed review application was without merit. That reasoning is at odds with the proposition that his Honour misunderstood the content of s 477(2) of the Act or had no regard to the facts and circumstances that may be relevant in deciding what is “necessary in the interests of the administration of justice” – including the explanation for the delay: cf, BVW17 at [64]. Were it otherwise, there would have been no reason for his Honour to refer to the “utility” in granting the extension application. The learned judge could have simply dismissed the extension application on the basis of the conclusion that the “substantive grounds of review are unmeritorious”. Thus, properly construed, the Federal Circuit Court judge is to be understood as having relied upon the conclusion that the proposed review application lacked merit in making the determination s 477(2) requires: Katoa at [18].

37    Read as a whole, it is clear that the learned judge correctly apprehended the function his Honour was being asked to perform under s 477(2) of the Act: cf, BKD18. That task – to both identify and evaluate, in the particular circumstances of the extension application, what matters were of significance in determining whether an extension of time was necessary in the interests of justice – was entrusted to the learned Federal Circuit Court judge: CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at [21] (Allsop CJ, Markovic and Colvin JJ). The decision by the Federal Circuit Court judge that the merits of the proposed review application were determinative in performing that task does not amount to jurisdictional error.

38    Ground 1 is not established.

Ground 2: Did the learned judge fail to afford the Applicants procedural fairness?

39    Ground 2 concerns how the learned judge dealt with the merits of the application for an extension of time. The Applicants allege that the learned judge committed jurisdictional error because they were denied procedural fairness, as the learned judge determined the extension application under s 477(2) of the Act as though it was being heard concurrently with the review application.

40    The pleaded ground of review was not substantively developed in the Applicants’ written submissions-in-chief. The only discernible reference therein is the contention that for “all practical purposes the judge at first instance decided the review application rather than properly considering the extension of time point”: cf, DOJ20 v Federal Circuit and Family Court of Australia [2023] FCA 417 at [29], [30] and [37] (Charlesworth J), discussing CZA19 at [15]-[19], [47], [49] and [61].

41    At the hearing, Mr Boccabella for the Applicants placed emphasis on the outline of submissions filed in the Federal Circuit Court in support of the extension application. The outline stated, “Inevitably the merits of any application for judicial review are pertinent to any application for an extension of time” but went on to stress that the submissions there made “are not the final submission[s] on merit as far as judicial review are concerned”. Viewed in that context, Mr Boccabella submitted that the Federal Circuit Court fell into jurisdictional error because the learned judge treated the extension application as if he was deciding the review application. In written submissions filed in reply to the Minister’s supplementary submissions, the Applicants also contended that the Federal Circuit Court judge denied procedural fairness “by not warning the applicants that a final determination would be made on the statutory construction point”.

42    The ground, as developed by the Applicants during the hearing, raises two issues. First, whether the learned judge committed jurisdictional error by engaging in more than an impressionistic assessment of the merits – either because that was beyond the Federal Circuit Court’s jurisdiction or the learned judge misconceived the function his Honour was exercising. Second, whether the Applicants were denied procedural fairness because the learned judge substantively considered the merits of the proposed review application in deciding whether to grant an extension of time, without giving the Applicants notice that he would do so. The second aspect of this ground was not substantively addressed in the Minister’s submissions. This is no doubt because it appears to have been principally canvassed in the Applicants’ reply to the Minister’s supplementary submissions, rather than their written submissions-in-chief or the “addendum” to the reply.

Did the learned Federal Circuit Court judge commit jurisdictional error by engaging in more than an impressionistic assessment of the merits of the proposed review application?

43    The Minister does not put in issue that the Federal Circuit Court engaged in more than an impressionistic assessment of the merits. Notwithstanding, the Minister contends that this does not constitute jurisdictional error. That is because it is within the jurisdiction of the Federal Circuit Court to conduct a substantive determination of merits in deciding an application under s 477 of the Act. That submission is made in reliance on Katoa at [18]-[19]. The plurality there held that it is within the Federal Court’s jurisdiction under s 477A(2) of the Act to consider the merits “in such manner as it considers appropriate”, finding that there will be circumstances in which it is apt “for the Court to engage in more than an impressionistic assessment of the merits” of a substantive application in dealing with an application for an extension of time.

44    Again, there is no reason why the reasons of the plurality in Katoa at [18]-[19] ought not to be applied to s 477(2) of the Act, given that the provision is framed in relevantly identical terms to s 477A(2) of the Act.

45    I am confirmed in that view by BLR23 v Federal Circuit and Family Court of Australia (Division 2) [2024] FCAFC 2; (2024) 301 FCR 129. In that case, the Full Court (Murphy, O’Sullivan and McElwaine JJ) applied Katoa in the context of s 477(2) of the Act. Of present relevance, the issues before the Full Court included whether the Federal Circuit Court misconceived its function on an extension of time application under s 477(2) of the Act by adjudicating substantive aspects of the proposed judicial review application. In dismissing the appeal, the Full Court rejected that a distinction could be drawn between a “less than impressionistic consideration on the merits, which … following Katoa is permissible [and] … a substantive determination on the grounds themselves”: at [20] and [28]. Their Honours found (at [28]-[29]) that such a distinction could not be reconciled with view of the plurality at [18]-[19] of Katoa or that expressed by Gordon, Edelman and Steward JJ at [54] of their joint reasons that:

[54]    … Parliament left it to the judge hearing a particular application for an extension of time, in their discretion, to make an assessment of the extent to which the merits of the application (along with the range of other potentially relevant considerations) are to be taken into account in determining whether they are satisfied that an extension of time is necessary in “the interests of the administration of justice” in the case. In assessing whether it is necessary in the interests of the administration of justice to grant the extension under s 477A(2), the merits of the underlying application may be, and often are, considered and given considerable weight. In some, maybe most, extension of time applications, the judge can and does consider the merits of the underlying application at what might be described as a threshold level – inquiring whether the proposed grounds of review enjoy reasonable prospects of success. In order to resolve the facts and issues raised in an application for an extension of time, however, the judge may sometimes consider that it is necessary to have regard to the merits of the proposed application in greater detail. Indeed, in assessing some extension of time applications, a failure to consider the merits of the proposed application in greater detail might give rise to error.

46    The Full Court also rejected the argument that the error could be characterised as “the conflation of separate questions” finding that “the Federal Circuit Court judge was careful to identify the factors relevant to the exercise of his discretion and was conscious of the distinction between substantively determining the merits as on a full hearing and forming a view about the prospects of success in a case attended by substantial and unsatisfactorily explained delay”: BLR23 at [29].

47    Similar considerations arose in DOJ20, upon which the Applicants rely. Justice Charlesworth there acknowledged that “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”: at [47] (emphasis in original), citing Katoa at [49]. The matter before Charlesworth J was not, however, such a case. That was because, read as a whole, the reasons disclosed “an awareness of the line of authority requiring that the merits be assessed at an impressionistic level”, but that having correctly stated the test, “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”: DOJ20 at [52] (emphasis in original).

48    This is also not a case in which the Federal Circuit Court judge failed to ask himself the right question. It is evident from the FCC decision at [10]-[11] that the learned judge was aware of the considerations guiding the exercise of the power under s 477(2) of the Act. Insofar as it concerned the question of merits, this included that, ordinarily, it will be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”, but there may be circumstances in which it is apt to “engage in more than an impressionistic assessment of the merits”: FCC decision at [11], citing Katoa at [17]-[18]. Read in that context, the subsequent consideration and ultimate conclusion by the learned judge that the review application lacked “utility” can be understood as an assessment that it was not “necessary in the interests of the administration of justice” to exercise the power under s 477(2) of the Act to grant an extension of time because the review application was “unmeritorious”: FCC decision at [25].

Did the learned Federal Circuit Court judge deny the Applicants procedural fairness in dealing with the merits of the proposed review application?

49    Procedural fairness required that the Federal Circuit Court afford the Applicants a fair opportunity to be heard: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [55] (Gageler J).

50    No such opportunity was denied here. The Applicants were given, and took, the opportunity to file the outline in support of the extension application. The outline contained detailed submissions on the merits of the review application, it being acknowledged by their author (Mr Boccabella), that this consideration was “pertinent” to the exercise of the power under s 477(2) of the Act. The Applicants were also given, and took, the opportunity to make oral submissions at the hearing of the extension application before the Federal Circuit Court. As the FCC decision records at [12], his counsel (Mr Boccabella) “strenuously argued” the question of construction of the Regulations to which the principal ground of review in the review application related.

51    The Applicants’ emphasis on the statement in the outline that, “[these] are not the final submissions on merit as far as judicial review are concerned” is misplaced. That statement does not materially bear on whether the Applicants were afforded an opportunity to be heard on the extension application. Rather, it reflects the decision made as to how that opportunity would be used.

52    I am confirmed in that view from the outline, in which the Applicants quoted from Katoa at [17] where the plurality said, “it will often be appropriate to assess the merits of the proposed grounds of review at a ‘reasonably impressionistic level’” – before contending that the “outline of the merit above, well and truly meets that test (and indeed beyond)”. In the very next paragraph of Katoa their Honours went on to state that “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”: at [18]. I do not accept that, cognisant of Katoa, the Applicants were ignorant of the possibility that the Federal Circuit Court would substantively scrutinise the grounds of the proposed review application in deciding the extension application – such that it could be said that they were not on notice, and were denied of a fair opportunity to be heard on the merits of the proposed review application.

53    Indeed, tellingly, the Applicants did not identify any submissions – beyond those the Applicants advanced in writing and orally on the extension application – that they were denied the opportunity to make before the Federal Circuit Court: cf, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2013) 214 CLR 1 at [37] Gleeson CJ).

54    There is a question as to whether a denial of procedural fairness by an inferior court, as opposed to an administrative body, constitutes jurisdictional error: cf, eg, DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; (2018) 264 FCR 454 at [56] (Collier, Logan and Perry JJ). Given my finding that the Applicants were not denied procedural fairness, it is not necessary to resolve that question here.

55    Ground 2 is not established.

Ground 3: Did the learned judge fall into jurisdictional error in his assessment of the grounds of the review application?

56    Ground 3 concerns the assessment by the Federal Circuit Court judge that the grounds of the review application did not have arguable merit. Materially, the ground in the proposed review application that in making the migration decision the delegate failed to properly interpret, or apply, reg 1.11 of the Regulations.

What did the Federal Circuit Court judge find?

57    The requirements of a Subclass 188 visa include that for at least 2 of the 4 fiscal years immediately before the time of the invitation to apply for the visa, the applicant has an “ownership interest” in one or more established “main businesses” that meet the criteria there prescribed: Regulations, Sch 2, cl 188.225. Regulation 1.11(1)(b) relevantly defines a “main business” for that purpose as one that “the applicant maintains, or has maintained, direct and continuous involvement in management of … from day to day and in making decisions affecting the overall direction and performance of the business”.

58    The delegate found that Mr Li did not satisfy that criteria because there was not “sufficiently strong evidence of [his] day to day management involvement and strategic decision-making role” in the company in which Mr Li had an ownership interest. The proposed review application sought to challenge that finding on the basis that the “second limb” of reg 1.11(1)(b) could be satisfied if an applicant such as Mr Li “was ‘involved in’ making decisions affecting the overall direction and performance of the business, however peripherally”: FCC decision at [18].

59    The Federal Circuit Court judge did not accept that submission “as a matter of construction” finding that reg 1.11(1)(b) required Mr Li to establish that he either made the decisions that affected the overall direction and performance of the business or was an integral part of that process: FCC decision at [18]; see also, at [13]-[17]. The learned judge also found that the other grounds of the proposed review application had not been established: FCC decision at [8] and [19]-[23].

Parameters of the dispute as to jurisdictional error

60    The Applicants contend that the learned judge erred in the construction of reg 1.11(1)(b) of the Regulations. That is because reg 1.11(1)(b) “did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure”: cf, Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 at [63] (French, Sackville and Hely JJ) in reference to an analogous provision in the Regulations.

61    The pleaded ground of review alleges that the error was jurisdictional because it was unreasonable and inconsistent with established legal principles. As developed in written and oral argument, that was said to be the case because the Federal Circuit Court judge made an improper finding on a jurisdictional fact: cf, Kirk at [66] and [73]. At the hearing, the Applicants also contended the error was jurisdictional because: (i) it comprised a failure to take into account a mandatory consideration, being the proper construction of the statute that gave rise to the proposed review application; and (ii) left unfinished the assessment of the merits because the learned judge improperly considered the grounds for the judicial review application, being reg 1.11(1)(b) of the Regulations: cf, Stanley at [116].

Did the learned Federal Circuit Court judge commit jurisdictional error?

62    The Minister relies on the submissions before the Federal Circuit Court judge as to why the construction of reg 1.11(1)(b) of the Regulations is correct. But the Minister’s substantive basis of resisting the ground of review is that even if the learned judge misconstrued reg 1.11(1)(b), that did not constitute jurisdictional error. That is because any such error was within the learned judge’s jurisdiction and the proper construction of reg 1.11(1)(b) of the Regulations is not a mandatory relevant consideration conditioning the authority of the Federal Circuit Court to exercise the power under s 477 of the Act.

63    I agree.

64    Section 477 of the Act conferred jurisdiction on the Federal Circuit Court to decide the extension application. The learned judge correctly understood the discretion that section required him to exercise. The merits of the proposed review application were relevant in being satisfied that the extension of time was necessary in the interests of the administration of justice. The grounds of the proposed review application agitated a constructional choice as to the correct interpretation of the “second limb” of reg 1.11(1)(b) of the Regulations. It was within the jurisdiction of the Federal Circuit Court for the learned judge to express a view as to that question: Kirk at [73]. As the Full Court observed in BLR23, “That he might have been wrong is beside the point upon an application that must demonstrate jurisdictional error, as distinct from an error of law within jurisdiction”: at [32] (emphasis added), citing Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 at [107] (Edelman J).

65    This case is distinguishable from Lobo. In Lobo, the primary judge found that the Migration Review Tribunal erred in applying departmental policy to a visa application, which was narrower in terms than the relevant statutory criterion which it should have applied: at [5]. Notwithstanding, the primary judge held that relief was not available under s 39B of the Judiciary Act because of the operation of the privative clause in s 474 of the Act: at [5]. The Full Court allowed the appeal because the failure by the Tribunal to apply the relevant criterion constituted a jurisdictional error that was not protected by s 474 of the Act: at [62]-[68]. Thus, the issue in Lobo was the failure by the primary judge to properly construe the statutory provision governing the jurisdiction of the Federal Court to deal with the error by the Migration Review Tribunal. That is not the case here. The provision governing the jurisdiction of the Federal Circuit Court was s 477 of the Act. For the reasons outlined above, I am satisfied that the Federal Circuit Court judge correctly apprehended what that section required in deciding the extension application.

66    Moreover, and for essentially the same reasons I have expressed in relation to ground 1, the proper consideration of reg 1.11(1)(b) was not a mandatory relevant consideration in deciding the application under s 477 of the Act. Again, Stanley is distinguishable. The Act did not prescribe that the merits of the proposed judicial review application (let alone the proper construction of the Regulations, which underpinned one of its grounds) was a mandatory consideration in deciding whether to extend time under s 477(2) of the Act, nor prescribed that the Federal Circuit Court is to assess the grounds of review such that the said failure to do so correctly can be contended to amount to a failure to perform its jurisdictional function: cf, Stanley at [116]. As such, any error by the Federal Circuit Court judge in the construction of the reg 1.11(1)(b) of the Regulations did not leave “unfinished” the assessment of the merits of the proposed review application.

67    Ground 3 is not established.

conclusion

68    For all of the above reasons, the Applicants have not established the grounds of review in the originating application seeking relief under s 39B of the Judiciary Act. As such, it is not necessary to consider whether the contended errors were material to the FCC decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

69    The originating application filed 13 December 2024 will be dismissed. There is no reason why costs ought not to follow the event. The Applicants will therefore be ordered to pay the Minister’s costs of and incidental to the originating application, to be assessed if they cannot be agreed.

Associate:

Dated: 10 August 2026