APP17 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicants pay the first respondent's costs of and incidental to the application as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of a judge of the Federal Circuit Court of Australia to refuse an extension of time in which to bring an application for judicial review of a decision of the Administrative Appeals Tribunal, as provided for by s 477(2) of the Migration Act 1958 (Cth). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of protection visas to the applicants. Section 476A(3)(a) of the Migration Act provides that no appeal may be brought from an order or a refusal to make an order under s 477(2). 2 Section 477(2) provides: 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. 3 The primary judge not only refused the extension of time application, but also added, unnecessarily but understandably, an order that the application was "otherwise dismissed". An appeal against that otiose order would not be incompetent because it would not be, strictly speaking, contrary to the prohibition in s 476A(3)(a): see SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; 200 FCR 207 at [19]; but cf SZRBN v Minister for Immigration and Citizenship [2012] FCA 984 at [21]-[23] and BZABK v Minister for Immigration and Citizenship [2012] FCA 774; 205 FCR 83 at [35]-[38]. 4 The applicant initially brought such an appeal, but it had no meaningful content, because even if the otiose order that the application for an extension of time was "otherwise dismissed" was overturned, the specific order dismissing that application would remain in force. In apparent recognition of this, that appeal proceeding was abandoned and dismissed, with a consent order as to costs in the Minister's favour. This proceeding was commenced in replacement of the appeal. 5 This application is therefore not an appellate procedure, enabling any general review of the primary judge's order refusing an extension of time, or his Honour's reasons for doing so. No more can be sought or granted than the quashing of the impugned order or decision, relevantly in this case, for established jurisdictional error, there being no suggestion of any error on the face of the record (that is, error of law on the face of the impugned order itself, without reference to the reasons, transcript or evidence unless somehow incorporated in the order: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 180-183). 6 It is helpful to begin with a short outline of the nature of jurisdictional error, a vexed topic. In Craig, as directly relevant to this application (omitting footnotes), the High Court: (1) non-exhaustively identified the nature of errors that will be jurisdictional (at 177): An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. (2) gave a number of examples of jurisdictional error, and commented upon its application to a statute conferring jurisdiction (at 177-178): … jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. and (3) outlined what will generally not constitute a jurisdictional error (at 179-180): … 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. 7 In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82, it was observed in relation to the passage reproduced above at [6(2)] and the difficultly in distinguishing between jurisdictional error and error within jurisdiction (at [163], omitting footnotes): The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not. 8 In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [69], the majority of six justices built on Aala, casting doubt on the assumption in Craig that any clear distinction can necessarily, and in all circumstances, be easily be drawn between a court and an administrative tribunal. That is especially so at the State and Territory level where the ambit of a tribunal is unconstrained by Chapter III of the Constitution and thereby the stricter separation of powers between judicial and executive functions, subject to the jurisprudence on limits concerning Chapter III State and Territory courts. Just as important was dispensing with the notion that courts can be shielded from judicial review because they can "authoritatively" determine, or have "authority" to decide, questions of law as a point of distinction with tribunals. This umbrella label was found to be unhelpful because, in substance, it obscures the need to consider whether or not the question of law at issue was itself determined within jurisdiction: Kirk at [70]. 9 Craig is illustrative of what may constitute jurisdictional error, rather than amounting to any exhaustive taxonomy: Kirk at [73]. In this case, the example of jurisdictional error given in Craig and reproduced above at [6(2)] is useful because it articulates the divide between jurisdictional error and error within jurisdiction in the context of the application of a provision of a statute conferring power to extend the time within which to bring a proceeding, which is what is in play in this application. The terms of s 477(2) are central to the jurisdiction exercised by the primary judge, and whether there was any error in the exercise of that jurisdiction. 10 The sole legitimate issue in this application is whether the primary judge's refusal of the extension of time in which to bring a judicial review application was infected by jurisdictional error, or at most was only an error in the exercise of that jurisdiction. That is, even if all of the arguments as to error advanced by the applicants were made out, did that amount to anything more than deciding issues within jurisdiction incorrectly? The Minister's case is that not only are the matters raised in support of this application doing no more than taking issue with how the jurisdiction was exercised, asserting no more than errors within jurisdiction, but that there was no error in the exercise of jurisdiction by the primary judge either. There was no suggestion that his Honour either exceeded jurisdiction, or failed to exercise jurisdiction, such as by overlooking altogether a basis for seeking an extension of time, or by overlooking a proposed ground of review (as happened in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400). 11 Ordinarily, and certainly in this case given the terms of s 477(2) of the Migration Act being addressed by the primary judge, the assessment of whether or not there is jurisdictional error in the exercise of judicial power does not depend upon any analysis or review of the facts, or the correctness or otherwise of the factual findings made, as opposed to the context provided by those facts, but rather upon an analysis of the terms in which a statutory discretion or power has been conferred: see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 at [15], [21]. 12 It is essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining the presence or absence of satisfaction that it was necessary, in the interests of the administration of justice, to extend time in accordance with s 477(2): SZUWX at [10]. In SZUWX, the Full Court found that there had not been any failure to take into account the absence of prejudice to the Minister in granting an extension of time under s 477(2), but held that even if there had been such a failure, it would have been an error within jurisdiction, and therefore not reviewable. This highlights the steep hurdle the applicants face and the limited scope of the grounds and arguments that they can rely upon. 13 Given that the applicants applied in writing for an extension of time as required, and given that the primary judge was not satisfied that it was "necessary in the interests of the administration of justice" to make such an order, the applicants must establish this conclusion was infected not merely by some error of fact or law, but rather an error going to the very jurisdiction being exercised. Given the broad and unconfined scope of the test to be applied, it was, within the scope of legal reasonableness in the application of that test so as to be within jurisdiction, a matter for the primary judge as to what considerations to take into account in ultimately deciding whether or not his Honour was satisfied that the statutory test had been met.