AZAFX v Federal Circuit Court of Australia

AZAFX v Federal Circuit Court of Australia - [2016] FCA 1139 - FCA 2016 case summary — Zoe

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JURISDICTION ISSUES 6 The FCC has original jurisdiction under s 476 of the Act to hear and determine an application for judicial review of the Tribunal's decision. The FCC's jurisdiction is equivalent to that conferred on the High Court under s 75(v) of the Constitution: see s 476(1). Accordingly, in order to succeed on an application for judicial review of a decision of the Tribunal, an applicant must show that the Tribunal committed jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 7 An application for a remedy in the exercise of the FCC's original jurisdiction must be made within 35 days of the date of the Tribunal's decision: s 477(1) of the Act. Section 477(2) of the Act confers on the FCC the discretion to make an order extending that period. It provides: (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 8 It is convenient at this early juncture to touch on some of the settled principles concerning the power conferred under s 477(2) of the Act. I give more detailed consideration to the principles later in these reasons. 9 This Court has consistently held that the FCC's satisfaction that the grant of an extension of time is "necessary in the interests of justice" within the meaning of s 477(2)(b) is to be formed having regard to whether the proposed grounds of review have "reasonable prospects of success" or, to use like expressions, are "arguable" or "reasonably arguable" or "sufficiently arguable": MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (MZABP) at [63] (Mortimer J) (confirmed on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110), citing SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES) at [48] and SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 (SZRIQ) at [46] - [48]. In MZABP, Mortimer J said (at [63]): … Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision. 10 Other considerations to be taken into account in forming the satisfaction referred to in s 477(2) of the Act include the length of the delay in commencing the application, the adequacy of any explanation given for the delay and any prejudice that might be suffered by the respondent should the extension of time be granted. 11 Section 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confers a right of appeal from a judgment of the FCC to this Court "subject to any other Act". Section 476A(3)(a) of the Act provides that, despite s 24 of the FCA Act, an appeal may not be brought to this Court from a judgment of the FCC that makes an order or refuses to make an order under s 477(2). Thus, a right of appeal lies against a judgment of the FCC made on an application for judicial review commenced in the FCC's original jurisdiction conferred under s 476 of the Act, but no right of appeal lies against a judgment of the FCC to refuse to extend the time in which to commence such an application. 12 Section 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) confers on this Court original jurisdiction to hear applications for orders in the nature of constitutional writs directed at the FCC, including in respect of the exercise of that Court's discretion under s 477(2) of the Act: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, at [11] (Rares, Perram and Wigney JJ). 13 To succeed before this Court, the applicants must show not only that the FCC erred in the manner alleged, but that the errors are jurisdictional in the sense explained by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) and Craig v South Australia (1995) 184 CLR 163 (Craig).

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THE FCC PROCEEDINGS 14 The applicants' separate actions in the FCC were heard concurrently. Prior to the hearing of the applications, the applicants and the Minister consented to orders being made in both actions in the following terms: The matter be listed for the hearing of the application for extension of time and, if time is extended, the substantive application on 23 November 2015 at 10:15am. (emphasis added) 15 The FCC heard full argument on the applications for extensions of time to commence judicial review proceedings in that Court, as well as detailed argument on the merits of the proposed grounds for judicial review. That is not an uncommon practice. 16 In written submissions relied on at the hearing, the Minister accepted that he would suffer no prejudice by the grant of an extension of time. The submissions went on to state: As is usual in applications of this kind, the Minister consents to the hearing being conducted 'as though an extension of time were granted', with the question of whether to allow the extension to be deferred until the Court forms a view as to the merits of the application. 17 The course of submissions before the FCC are fairly summarised in the applicants' written submissions in this Court as follows: In the course of submissions, counsel for the Minster conceded that 'it's not that [counsel for the applicants] hasn't identified matters of serious intellectual rigour' and Judge Brown acknowledged that it was not the case that they were 'incapable of argument' but that the Minister's argument was that the relevant consideration was 'merits in a strict sense' - meaning '[a]re there grounds for the court to make the orders sought?' In other words, the argument in the Federal Circuit Court (at least from that point on) proceeded on the basis that the applicants' case was reasonably arguable. (citations omitted) 18 At the conclusion of the hearing, the learned FCC judge gave the parties leave to file further written submissions on the issue of whether the applicants would suffer prejudice in the event that the FCC refused to grant the extension of time. The grant of leave was occasioned by oral submissions made on behalf of the Minister, apparently by way of rejoinder. The submission was to the effect that the FCC could and should refuse to grant the extension if it found that the proposed grounds of review were not made out on their substantive merits, notwithstanding that the grounds were arguable. 19 On 3 December 2015, the Minister filed further submissions in accordance with the grant of leave. The submissions advanced a contention in the following terms: In this case, the applicants enjoyed the opportunity to fully advance their case as to why the decision of the Tribunal was affected by jurisdictional error. The Court was invited to consider the applicants' case 'as though on a final hearing'. The Court did so, hearing full argument on the substantive questions. If the Court reaches the position where it is satisfied that the applicants have not made out their case for jurisdictional error, no matter the intellectual effort required to reach that position, there is no basis on which the Court could be satisfied that it is in the interests of the administration of justice to extend time … 20 In support of that submission, the Minister relied on the judgment of Wigney J at first instance in SZTES and the judgment of the Full Court on appeal from that judgment: SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 (Logan, Robertson and Kerr JJ), to which I will later refer. 21 In accordance with the grant of leave, the applicants jointly filed further written submissions on 9 December 2015 to the effect that: (1) the passage from SZTES at first instance upon which the Minister relied had been read out of context; (2) the judgment in SZTES was in fact supportive of their case; (3) they had an arguable case on the merits of their applications for judicial review; and (4) they would suffer prejudice if the extensions of time were to be refused because they would have no right of appeal against a judgment by the FCC on the substantive merits of their proposed judicial review applications made in the exercise of that Court's original jurisdiction under s 476 of the Act. 22 The applicants' further written submissions concluded as follows: 19. If the Court is inclined to accept the Minister's submission that the extension of time should be refused if the Court ultimately holds that the application for judicial review should fail, even though reasonably arguable, then the Applicants respectfully request that the Court consider the two issues seriatim. That is, the Applicants ask the Court to consider: 19.1 first, whether the grounds of review are sufficiently reasonably arguable to warrant the grant of an extension of time, to decide upon the orders it should make in that regard, and to make an order extending the time within which to commence the proceedings; and 19.2 secondly, whether, having granted the extension of time by applying the proper basis, the application should be upheld, and to make the substantive orders sought by the Applicants.

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THE FCC REASONS 23 The FCC made orders on 15 March 2016 dismissing both applications: AZAFW and AZAFX v Minister for Immigration and Border Protection [2016] FCCA 500. 24 The reasons of the learned judge indicate that the FCC did not read or take into account the applicants' further submissions filed on 9 December 2015 in accordance with the grant of leave that had been given at the hearing. The reasons record the last date of submissions as being 3 December 2015, being the date on which the Minister's submissions were filed. The Minister acknowledged before this Court that, on the balance of probabilities, the FCC proceeded to judgment without having read and considered the applicants' further written submissions of 9 December 2015. That is an appropriate concession. I proceed on that basis. 25 In his Honour's reasons, the learned FCC judge made the following introductory remarks (at [38] - [39]): 38. … the [Minister] seeks the dismissal of the application and opposes the granting of any extension in which to file the application. It is the Minister's contention that, as the merits of any application for judicial review, in the migration context, have a bearing on whether or not an extension of time should be granted, it is expedient for the court to examine each of the grounds for review placed before it before turning to the extension of time aspect of the case. 39. … counsel for the Minister contends that there is no merit in any of the grounds put forward and therefore the application for extension of time should be dismissed. In Wei v Minister for Immigration & Border Protection the High Court approved such an approach. (citation omitted) 26 The learned FCC judge then proceeded to give detailed consideration to each of the three proposed grounds for judicial review concluding (at [127]) that the Tribunal had "properly acquitted the jurisdiction conferred upon it". His Honour then turned to consider the applications for extensions of time under s 477(2) of the Act, expressing the test as follows (at [142]): In SZRIQ v Federal Magistrates Court of Australia [(2013) 139 ALD 252 at 261 [47]] Foster J considered that the following factors, should ordinarily be taken into account by the court, in considering whether the interests of the administration of justice justified an extension of time being granted: • Whether there was a reasonable and adequate explanation for the applicants delay; • Whether there is any prejudice to the Minister; and • Whether the applicant's substantive case for judicial review was sufficiently arguable to justify the extension of time. 27 The FCC judge held (at [143], [145]) that the applicants had provided "cogent", "reasonable" and "adequate" explanations for the delay in instituting the proceedings but concluded (at [148]) that the applications for extensions of time should nonetheless be dismissed because the applicants had not "demonstrated jurisdictional error in the decision of the Tribunal". 28 There is no statement in the FCC reasons to the effect that the applicants' proposed grounds for judicial review were plainly hopeless or bound to fail or that they were other than reasonably arguable. The expression of the reasons together with the manner in which the proceedings progressed before the learned FCC judge make it plain that his Honour proceeded on the basis that the applications for extensions of time should be dismissed notwithstanding that the proposed grounds were reasonably arguable. The dismissal of the applications on that basis was the very topic in respect of which the learned FCC judge had invited the parties to file further written submissions.

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THE GROUNDS OF REVIEW AND THE RELIEF SOUGHT 29 The two grounds of judicial review before this Court are expressed as follows: 1. The First Respondent erred in its approach to the applications for extension of the time within which to commence judicial review proceedings, in that: (a) Judge Brown heard full argument in relation to the merits of the Applicant's grounds of judicial review and reached a concluded view as to whether the grounds should succeed, before deciding whether or not to extend time; (b) Judge Brown at the hearing expressly accepted that the grounds of judicial review argued before him were reasonably arguable, and the parties were given liberty to file further written submissions on that very basis; (c) Judge Brown made no finding that the applications for judicial review enjoyed no reasonable prospects of success (or equivalent); and (d) given that Judge Brown had: (i) accepted that the explanations for the delay in filing the judicial review proceedings were 'all reasonable and adequate'; (ii) indicated (correctly) that he regarded the grounds of judicial review as reasonably arguable (so that it could not properly be said that the proceedings enjoyed no reasonable prospects of success in any relevant sense); and (iii) determined the grounds of judicial review only after careful consideration following a full hearing on the merits, the jurisdiction to extend time could only lawfully have been exercised in one way, namely by granting the extension of time sought by the Applicant. In approaching the extension of time as it did, the First Respondent misapprehended or disregarded the nature or limits of its function and/or power to consider and grant an application for an extension of time within which to commence proceedings for judicial review of decisions of the Refugee Review Tribunal, or otherwise committed jurisdictional error. 2. The Applicant was denied procedural fairness in relation to the extension of the time within which to commence judicial review proceedings, and the Federal Circuit Court exceeded its jurisdiction, in that: (a) Judge Brown had permitted each party to make further written submissions in relation to the application for an extension of time (with the Minister to file his submissions first and the Applicant to respond); (b) the Minister filed further written submissions in relation to that issue on 3 December 2015; (c) the Applicant AZAFX and her sister AZAFW jointly filed further written submissions in relation to that issue on 9 December 2015; (d) Judge Brown failed to consider the further written submissions filed by the Applicant AZAFX and her sister AZAFW, as is to be inferred from the following facts: (i) the judgment recorded that the 'date of last submission' was 3 December 2015; (ii) the judgment did not make any mention of the further written submissions of the Applicant AZAFX and her sister AZAFW, or refer to any aspect of the submissions advanced therein; (iii) the judgment at [147] purported to apply, without further comment, a passage from the decision of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [66], which had been quoted, out of context, in the Minister's written submissions and which had been the subject of detailed analysis (to the effect that it did not support the dismissal of the applications for extension of time in this case) in the further written submissions of the Applicant AZAFX and her sister AZAFW; and (iv) the judgment made no reference to the request, made ay [sic: at] [19] of the further written submissions of the Applicant AZAFX and her sister AZAFW, that the Court consider the application for an extension of time separately and in advance of determining the merits of the judicial review application; and (e) the Court failed to consider the request of the Applicant AZAFX and her sister AZAFW (contained at [19] of their joint further submissions) that the Court determine the question of extension of time separately and in advance of the merits of the judicial review application. (emphasis added) 30 The applicants seek the following orders: 1. An order in the nature of certiorari, directed to the First Respondent, quashing the decision and orders of the Federal Circuit Court in each of Action No ADG 49/2015 and Action No ADG 48/2015. 2. An order in the nature of mandamus, directed to the First Respondent, requiring it to make the following orders: a. in Action No ADG 49/2015, an order extending the time within which to apply for judicial review of the decision of the Refugee Review Tribunal dated 25 October 2013 in relation to RRT case number 1219857; and b. in Action No ADG 48/2015, an order extending the time within which to apply for judicial review of the decision of the Refugee Review Tribunal dated 25 October 2013 in relation to RRT case number 1219887, and otherwise to determine each of Action No ADG 49/2015 and Action No ADG 48/2015 according to law. 3. In the alternative to order 2 above, an order in the nature of mandamus, directed to the First Respondent, requiring it to determine each of Action No ADG 49/2015 and Action No ADG 48/2015 according to law. 4. Costs. 5. Such other order as this Honourable Court thinks fit. 31 Paragraphs 2 and 3 of the claim for relief seek alternative orders in the nature of mandamus directed to an inferior court. I have already mentioned that the grant of relief in the nature of mandamus is dependent upon the applicants demonstrating that the FCC fell into jurisdictional error: Craig. It is not sufficient for the applicants to demonstrate only that the FCC made an error, even an error of law, that might otherwise warrant the setting aside of the judgment in the exercise of this Court's appellate jurisdiction if there were a right of appeal. So much is properly acknowledged in the expression of the grounds of review in the passages I have emphasised above. 32 Insofar as the applicants seek an order in the nature of certiorari directed at the FCC, that claim for relief is to be understood as ancillary to mandamus and is necessarily limited to quashing the decision of the FCC for jurisdictional error: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [14] (Gaudron and Gummow JJ). Although an order in the nature of certiorari may be made on the ground of an error on the face of the record of an inferior court, the applicants do not allege an error of that kind: compare Craig. 33 I turn first to the issue of whether the FCC committed the errors alleged in the two grounds of review, before then considering whether such errors are properly to be characterised as jurisdictional. Both issues are contentious on this application.

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THE FIRST ERROR - MISAPPLICATION OF PRINCIPLE 34 The Minister contended that the FCC did not err in dismissing the applications for extensions of time, irrespective of whether the proposed grounds of judicial review before that Court were reasonably arguable. 35 As before the FCC, the Minister relied on the judgment of Wigney J at first instance in SZTES. In that case, Wigney J determined an application for judicial review against the refusal of a judge of the FCC to grant an extension of time under s 477(2) of the Act. As in the present case, the parties had argued the substantive merits of the proposed grounds for judicial review concurrently with the application for the extension of time. It was contended (as it is here) that the FCC judge had failed to properly address the question of whether, for the purposes of the extension application, the applicant's grounds had reasonable prospects of success: at [25]. The FCC judge had, it was submitted, erroneously conflated that test with an analysis of the substantive merits of the proposed grounds for review. 36 Wigney J rejected the applicant's submission (at [86] - [88]). His Honour found that the FCC had determined that the proposed grounds for judicial review before that Court had "no basis". That determination was, according to Wigney J, "equivalent to, or tantamount to, concluding that the substantive application was not just weak, but was hopeless or doomed to fail" (at [88]). On appeal, the Full Court (at [67] - [68]) upheld Wigney J's finding that the FCC judge did not apply the wrong test. It was, accordingly, unnecessary for the Full Court to determine whether an error of the kind that had been alleged was properly characterised as jurisdictional. 37 The Minister's primary submission before this Court was that the reasons under consideration by Wigney J were no different in their meaning than the reasons under consideration before me. For the reasons I have given above, that submission should be rejected. Whilst Wigney J held that the FCC judge in SZTES had found that the applicant's proposed grounds for judicial review were hopeless or doomed to fail, no such finding on the part of the FCC is made express in the reasons before me, nor can any such finding be reasonably inferred in all of the circumstances. 38 It is then submitted that the judgment of Wigney J supports the proposition that it was open to the FCC judge to refuse to grant an extension of time in circumstances where the proposed grounds for judicial review are reasonably arguable, notwithstanding that there is an adequate explanation for the delay and notwithstanding that the Minister would suffer no prejudice by the grant of an extension of time. The submission is said to be supported by Wigney J's remarks at [102]: It should again be emphasised that the outcome of this application should not be taken as condoning, let alone encouraging, the Federal Circuit Court to hear and determine extension applications in the manner it did in this matter. Where an application to extend time under s 477(2) of the Act is listed for hearing at the same time as the substantive application for review, and where full argument takes place in relation to the merits of the application, care should be taken to ensure that the issues that arise in relation to the extension application are dealt with clearly and discretely from the issues that arise in relation to the substantive application. That will avoid the sort of confusion that arose in this matter. Furthermore, when the merits of the substantive application are fully argued, it will ordinarily be quite artificial to import into the consideration of the extension application an assessment of the likelihood of success of the application. Where the only issue on the extension application is the merits of the substantive application, and where the merits are fully argued, the better course in all but clearly hopeless cases would be to extend time and deal with the merits on a final basis. That will avoid the unfortunate perception that might otherwise arise to the effect that the extension application was refused so as to deny the applicant appeal rights in relation to the substantive application. 39 That passage does not support the Minister's submission. To the contrary, Wigney J there emphasised that in cases where the other criteria for an extension of time are satisfied, an extension should be granted in all but clearly hopeless cases. Consistent with that principle, in MZABP Mortimer J said (at [62]): As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2). 40 Her Honour went on to hold (at [63]) that the "correct approach" is to proceed as I have summarised at [9] of these reasons, namely to assess whether the proposed grounds of review are "reasonably arguable". That statement of principle was expressly endorsed by the Full Court: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, [21] - [23], [38]. 41 Ultimately, Mortimer J ruled (at [69]) that the applicant in MZABP had not raised a ground of review before her Honour so as to require the Court to determine whether the FCC had erred by departing from the correct approach. On appeal, the Full Court held that Mortimer J had not erred in the exercise of her discretion to make that ruling. 42 Returning to the present case, I am satisfied that the learned FCC judge erred by conflating the issue of the substantive merits of the proposed application for judicial review with the appropriate test for granting an extension of time under s 477 of the Act in which to make the application pursuant to s 476 of the Act, and so committed an error of law. The question of whether that error amounts to a jurisdictional error therefore arises for determination. That question is considered at [53] - [85] below.

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THE SECOND ERROR - denial of PROCEDURAL FAIRNESS 43 The Minister submitted that the FCC's failure to read the applicants' further written submissions did not deprive the applicants of the possibility of a "successful outcome" because the applicants would have failed on the merits of an application for judicial review even if they had been granted an extension of time in which to commence one. It followed, on the Minister's case, that the failure to read the applicants further submissions did not constitute a breach of the rules of procedural fairness at all. Reliance was placed on Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 (WZARH) and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam). In each of those cases, the High Court determined the practical content of the requirements of procedural fairness owed by a decision-maker in the exercise of administrative powers or the performance of administrative functions under the Act. In each case, the decision-maker had stated an intention to proceed in a particular way, but then adopted a different course to that previously foreshadowed. The question of whether the rules of procedural fairness had been breached turned on whether the change of course had worked a "practical injustice" upon the visa applicant. In Lam, Gleeson CJ said (at [25]): … There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision … 44 The case before the Court was not, on the facts, one of them. 45 In contrast, in WZARH the procedure adopted by the decision-maker did, on the facts, work a practical injustice on the applicant and thus amounted to a breach of the rules of procedural fairness. 46 The task of determining the practical content of the rules of procedural fairness in the present case arises in a different context. The FCC is a court of law exercising the judicial power of the Commonwealth in accordance with judicial process. It is beyond controversy that judicial process at the very least requires that a party be given the "opportunity to present … evidence and to challenge the evidence led" against that party: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [56] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). There is no reason why that principle should not extend to the provision of an opportunity to present arguments on questions of law, such as those which arose for determination before the FCC. That is especially so when one party has, as a matter of fact, been heard on the same question. The rules of procedural fairness in a judicial context will be breached when a court takes into account the submissions of one party on a question of law or fact, and yet fails to take into account the submissions of the opposing party in respect of the same question. The practical content of the rules of natural justice applicable before the FCC need no further exploration than that. 47 In my opinion, the question of whether or not the applicants' submissions would have altered the outcome of their applications does not affect the question of whether the FCC failed to observe the rules of procedural fairness. Rather, that question is one that may properly be taken into account in the exercise of this Court's discretion to grant a remedy under s 39B of the Judiciary Act. I am satisfied for that purpose that the applicants were indeed deprived of an opportunity to secure a successful outcome in the relevant sense. 48 The question of whether the applicants were deprived of an opportunity of a "successful outcome" is to be answered by carefully identifying the alternative outcomes of their applications before the FCC. They sought orders enabling them to invoke the Court's original jurisdiction under s 476 of the Act, so as to place them in the same position as they would have been had they made an application for judicial review before the FCC within the 35 day period prescribed in s 477(1) of the Act: see MZABP at first instance at [59]. The Act contemplates that a person who makes an application for a remedy to be granted in the exercise of the FCC's original jurisdiction under s 476 has, if unsuccessful on that application, a vested right of appeal to this Court under s 24 of the FCA Act. The legislature clearly had s 24 of the FCA Act in its contemplation when it enacted Div 2 of Pt 8 of the Act, of which ss 476, 476A, 477 and 477A form a part. So much is evinced by the express preclusion of a right of appeal from a refusal of the FCC to make an order under s 477(2) of the Act: see s 476A(3)(a). Thus, the question of whether it is necessary in the interests of justice to grant an extension of time under s 477(2) of the Act inherently requires the FCC to determine whether it is necessary in the interests of justice that the applicant be put in the same position as a person who makes an application for judicial review within the time specified in s 477(1). The absence of a right of appeal is, therefore, not a mere procedural consequence of a refusal to extend time, but a mandatory consideration to be taken into account in the formation of the FCC's satisfaction as to what is "necessary in the administration of justice" within the meaning of s 477(2)(b) of the Act at least in cases where the proposed grounds of review are arguable and the other criteria for the grant of the extension are satisfied. 49 That, in my opinion, is the principle that underlies and explains the authorities requiring that, on an extension application, the merits of the proposed application for judicial review be assessed only for the purpose of determining whether the grounds are reasonably arguable. The test is an illustration of the futility principle, in that the FCC should not make an order that could not possibly alter the ultimate substantive outcome, not only at first instance but upon the exercise of this Court's appellate jurisdiction. 50 A "successful outcome" in the present case was, relevantly, one in which the applicants had their grounds of judicial review heard and determined, whether favourably or not, on their substantive merits in the exercise of the FCC's original jurisdiction under s 476. The procedural deficiencies in the FCC proceedings deprived the applicants of that opportunity and thereby worked a practical injustice by placing them in a worse position than they would have been in had the extensions of time been granted. Even on the assumption that the test stated in Lam and WZARH applied in the present context, the test is satisfied. There is, in my opinion, no basis to deprive the applicants' relief in this proceeding on the grounds advanced by the Minister. 51 Counsel for the Minister urged me to review the reasons for judgment of the FCC, insofar as the FCC determined the merits of the applicants' proposed applications for judicial review, so as to make my own assessment as to whether an appeal from the FCC judgment would succeed. It is neither necessary nor appropriate to adopt that course. It is sufficient to find, as I do, that the grounds for judicial review before the FCC were at least arguable. Having made that finding, I confidently infer that the same grounds of review that were arguable before the FCC would be equally arguable (albeit translated appropriately into grounds of appeal) before this Court on an appeal commenced pursuant to s 24 of the FCA Act. 52 I am disinclined in the circumstances to undertake a review of the FCC reasons as if conducting a de facto appeal. To do so would, in my opinion, undermine the provisions of s 24 of the FCA Act and the appellate structure of which this Court forms a part. An appeal lies against this judgment to a Full Court of this Court, whereas an appeal from a judgment of a single judge of this Court in the exercise of the Court's appellate jurisdiction lies, with special leave, to the High Court: see s 33 of the FCA Act. Any rights of appeal against the FCC's determination of the substantive grounds for judicial review before it should, in my opinion, vest and be exercised hereafter in the usual way.

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Judicial comity 53 Consistent with what was said by the High Court in Craig, Mortimer J in MZABP described as "difficult" the question of whether an error of the kind sought to be argued before her Honour (equivalent to the error I have identified in the present case), was properly characterised as jurisdictional. Her Honour continued (at [68]): In Kirk, the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. If, for example [the FCC judge] in the present case could be said to have taken the approach that it would only be 'in the interests of the administration of justice' to extend time if persuaded a ground of review would succeed, then this would in my opinion reflects such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred. (citation omitted) 54 Mortimer J there categorised the error as one involving misconstruction of the statute leading the FCC to misapprehend the nature of the power conferred. In doing so, her Honour considered the error to amount to more than a failure to identify relevant issues or to formulate relevant questions in the course of exercising jurisdiction. 55 The applicants contend that I should follow the considered view of Mortimer J in accordance with the principle of judicial comity stated in Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 (Hicks) at [75] (French J): It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong - Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said: 'The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong': Halsbury, 4th ed, vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle...' 56 The references in the above passages to "an earlier decision of another Judge" are to be understood as references to decisions on issues that arose for determination in the earlier proceedings. For reasons explained at [41] above, the question of whether the errors of the kind I have identified in the present case constitute jurisdictional errors did not fall for determination before Mortimer J in MZABP. Nor did the question fall for determination by the Full Court on appeal from her Honour's judgment. 57 In SZTES, Wigney J at first instance expressed the obiter opinion (at [90]) that the error in the exercise of the discretion conferred under s 477(2) of the Act argued in that case (being substantially the same as that sought to be argued on appeal in MZABP) would not, if made out, constitute jurisdictional error. For reasons explained at [36] above, that issue did not arise for determination before Wigney J, nor before the Full Court in SZTES. 58 On the question of whether the principles in Hicks are engaged, I have also given consideration to the judgment in SZRIQ. In that case, Foster J queried whether a judge exercising the discretion conferred under s 477(2) of the Act must take into account the absence of a right of appeal from a refusal to order an extension of time. The reasons of the FCC before his Honour were to the effect that none of the three proposed grounds for judicial review "had any merit whatsoever" (at [52]). Foster J held that the learned FCC judge did not err in that assessment. In that context, Foster J queried (without deciding) whether, having determined the proposed judicial review grounds to be hopeless, the FCC was under any obligation to take into account the "impact of s 476(3)(a)" on the applicant (at [69]). In circumstances where the grounds for review are hopeless, I would respectfully agree with the conclusion of Foster J that no jurisdictional error will be committed by the FCC's failure to consider the impact on the applicant of s 476(3)(a) of the Act. That is not the circumstance that arises in the present case. 59 Further, insofar as Foster J determined (at [52]) that it is a matter for the FCC judge to "choose which factors he regarded as relevant" in exercising the power conferred under s 477(2) of the Act, that statement is to be read in the context of the judgment as a whole. The FCC judge in that case did not, on the facts, fail to consider whether the grounds of appeal were reasonably arguable: the judge considered that issue and correctly determined the proposed grounds to be hopeless. Whether the FCC judge would have committed jurisdictional error by failing to make any assessment at all of the merits of the proposed grounds did not arise for determination before Foster J, nor does that discrete issue arise for determination before me. 60 The question before this Court is more limited: did the learned FCC judge commit jurisdictional error by refusing to grant the applications under s 477(2) of the Act in circumstances where the proposed grounds for judicial review were reasonably arguable and the remaining well-established criteria for the grant of the extensions of time were fulfilled? Neither party could bring this Court's attention to any judgment in which that discrete question had arisen for determination.

[34]

The principles in Craig and Kirk 61 The first error affected the FCC's satisfaction as to whether it was necessary in the interests of justice to grant the applicants the extensions of time they sought. The applicants contend that the error is jurisdictional in that it involved the FCC misapprehending or disregarding the nature or limits of its power to consider and determine their applications for extensions of time. That language is borrowed in part from what the High Court said in this often-quoted passage in Craig (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 his 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. (citation omitted) 62 The High Court cited R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371 and Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132. 63 In Craig itself, a judge of the District Court of South Australia had ordered that criminal proceedings be stayed in accordance with the principles in Dietrich v The Queen (1992) 177 CLR 292 (Dietrich). It is sufficient for present purposes to note that the majority in judgment in Dietrich established that a trial judge has the power to make an order staying criminal proceedings if it appears that the accused would not otherwise receive a fair trial. In the case of an indigent accused charged with a serious offence through no fault of his or her own, the trial judge should adjourn, postpone or stay the proceeding until the accused can obtain legal representation. The trial judge stayed Mr Craig's criminal proceedings having found, among other things, that Mr Craig was unable to obtain legal representation through no fault of his own. On appeal, the State of South Australia submitted that the trial judge had erred in determining that discrete question. The error was said to amount to a jurisdictional error in that the trial judge, in determining that issue, exceeded his jurisdiction by misapprehending or misapplying the Dietrich principle. 64 The High Court rejected the submission. It held that the exercise of the power to order a stay of the proceedings involved the identification and determination of questions going ultimately to the issue of whether a trial in which Mr Craig had no legal representation would be unfair. The proper identification and determination of those questions did not pre-condition the existence of the power itself but, rather, conditioned the manner of its exercise. Although the High Court held that the issue in respect of which the trial judge was said to have erred was a question of fact and not a question of law, that categorisation did not alter the determination that the error was not jurisdictional. In that regard, the High Court concluded (at 186): … Regardless of whether it be viewed as a question of law or a mixed question of law and fact, however, its resolution lay within the primary authority of the trial judge. If [the trial judge] fell into error in assessing the effect of the majority judgment in Dietrich or in concluding the appellant's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It was not a jurisdictional error for the purposes of certiorari. 65 Thus, any failure of the trial judge to ask the right question in identifying and applying the established criteria for the grant of the stay fell within the list of non-jurisdictional errors enumerated in Craig 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 of 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. 66 That list of examples of non-jurisdictional errors is not to be read in isolation from the remainder of the judgment, particularly the examples of jurisdictional error at 177, extracted at [61] above. Any given error may, at least as a semantic exercise, be compressed into a form of words capable of being pigeon-holed into one list or the other. The lists are not to be employed in a manner that overly simplifies the principles underlying the judgment, read as a whole. 67 In Kirk, the plurality said that Craig "was not to be seen as providing a rigid taxonomy of jurisdictional error" and that the examples given in the passages I have extracted above are "not to be taken as marking the boundaries of the relevant field": at [73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Their Honours emphasised (at [72]) that in cases (such as the present) where it is argued that an inferior court misconstrued the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be "particularly difficult to discern" (citing Craig at 177 and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80] - [81]). The difficulties stem in part from the tension between the historical opposing purposes for the grant of an order in the nature of certiorari. That tension, according to the plurality, renders it "unsurprising that the course of judicial decision-making in this area has not yielded principles that are always easily applied" (at [57]). The judgment in Kirk itself does not alleviate the problem there identified. Whilst the judgment cautions against an overly rigid approach in aligning the circumstances of any particular case to the examples of jurisdictional error expressed in Craig, the errors identified in Kirk were found to fall within one of the stated examples in any event. 68 Insofar as there is guidance to be found in Kirk as to how the principles in Craig are to be applied, it may be summarised thus: where (as in the present case) the power said to have been exceeded or otherwise misapprehended is one conferred by statute, the question of whether an inferior court has misapprehended the nature or limits of its powers must be determined by first identifying, as a matter of statutory construction, the nature and limits of the power, with particular reference to the relevant statute establishing the body and regulating its work. 69 In Kirk itself that task involved the proper construction of s 15 and s 16 of the Occupational Health and Safety Act 1983 (NSW) (OHS Act). 70 Mr Kirk and the company of which he was a director were jointly tried and convicted in the Industrial Court of New South Wales for contraventions of s 15 and s 16 in connection with the death of an employee of the company in a workplace accident. The prosecution's statement of the offences did not identify the act or omission said to constitute the contraventions. In a somewhat complicated procedural history, the New South Wales Court of Appeal dismissed an application for judicial review of the orders of the Industrial Court on the basis that the Industrial Court had not committed jurisdictional error warranting the making of an order in the nature of certiorari: see Kirk v Industrial Relations Commission (NSW) (2008) 173 IR 465. On appeal, the High Court identified two jurisdictional errors committed by the Industrial Court. 71 First, the Industrial Court failed to recognise that s 15 and s 16 of the OHS Act, on their proper construction, required that the statement of each offence specify the measures that should have been taken by the accused to obviate an identifiable risk (at [14]). The erroneous construction amounted to jurisdictional error because the Industrial Court had no power to convict and sentence the defendants in circumstances where no particular act or omission was identified by the prosecution as constituting the offences (at [74]). In effect, no act or omission on the part of the defendants had been charged (at [37]) and an essential precondition to the exercise of the Court's power did not, therefore, exist. 72 Second, the Industrial Court failed to conduct the trial in accordance with the rules of evidence, in that it permitted the prosecution to call Mr Kirk as a witness. It proceeded contrary to s 17(2) of the Evidence Act 1995 (NSW) which provided that Mr Kirk was not competent to give evidence as a witness for the prosecution in his own case. It was a matter of some importance that the rule of evidence there referred to was one that could not be dispensed with, even with the consent of the parties. As the Industrial Court's power was limited to trying charges of criminal offences applying the rules of evidence, its failure to comply with the requirements of s 17(2) of the Evidence Act 1995 (NSW) constituted jurisdictional error (at [76]). In that regard, the plurality said (at [53]): It may be that some departures from the rules of evidence would not warrant the grant of relief in the nature of certiorari. That issue need not be explored. The departure from the rules of evidence in this case was substantial. It was not submitted that either the nature of the departure, or the circumstances in which it occurred, were such as to warrant discretionary refusal relief. (citation omitted) 73 As Kirk demonstrates, an error that might appear at first blush to be a mere error in the application of the rules of evidence in (to borrow a phrase from Craig) the "routine discharge" of the ordinary jurisdiction of the trial court to hear and determine a criminal charge, may be properly categorised as jurisdictional when the very power of the inferior court to conduct trials is limited only to trials conducted in accordance with the rules of evidence, particularly those rules that cannot be dispensed with. The requirement to proceed in accordance with those rules was, in that instance, held to be a requirement that limited the jurisdiction of the inferior court in the relevant sense.

[35]

Limits on the power under s 477 of the Act 74 The nature of and limits upon the power conferred by s 477(2) of the Act are to be identified not only from the text of the provision itself but by reference to the structure of the Act and the subject matter with which the provision deals. As to subject matter Div 2 of Pt 8 of the Act is wholly concerned with questions going to the authority of courts to decide applications for judicial review "in relation to migration decisions" as that phrase is defined. The Division expressly recognises the boundaries between the original jurisdiction of the FCC and the appellate jurisdiction of this Court. Consistent with what I have said above, a purpose of the power conferred under s 477(2) is to place an applicant in the same position as he or she would have been had his or her application for judicial review been made within the 35 day limit specified in s 477(1), where the FCC is satisfied that it is necessary in the interests of justice to extend that period. 75 In SZTES, the Full Court held that the formation of satisfaction under s 477(2) is a "pre-condition" to the power to make an order extending time. The text, structure and context of s 477 support that construction: the FCC may grant an extension of time only if satisfied that it is necessary in the administration of justice to do so. 76 It may be accepted that proof of an error in the formation of a state of mind will ordinarily involve more forensic difficulty than proof of an error in the finding of an objective fact. That is especially so when the matters in respect of which the decision-maker is to be subjectively satisfied involve elements of evaluation or discretion. However, it does not follow that such an error, if proven, could not be categorised as jurisdiction. 77 In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 (NAAV) French J said (at [455]): … Where a condition on a statutory power requires formation of an opinion or a state of satisfaction as to a matter it is necessary that the opinion or state of satisfaction be based on a correct interpretation of the relevant statute. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, Latham CJ said (at 430): 'Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.' And at 432: 'If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event, the basis of for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.' 78 In light of what was said in both NAAV and Craig, a judge of the FCC will commit jurisdictional error if the formation of the satisfaction required under s 477(2) (being a pre-condition to the exercise of the power) if the judge takes into account an irrelevant consideration or disregards a relevant consideration when determining what the interests of the administration of justice require. That is what occurred in the present case. The learned FCC judge erroneously took into account the substantive merits of the proposed judicial review grounds. On the proper construction of the Act, that was a consideration the learned FCC judge was required to ignore in forming the satisfaction upon which the very power to grant the extension of time was conditioned. Expressed another way, the FCC judge erroneously disregarded the fact that the proposed grounds of judicial review were reasonably arguable. Either way, the error involved a misapprehension of a pre-condition to exercise of the discretion. 79 If I am wrong in concluding that the proper formation of satisfaction under s 477(2) pre-conditions the power itself, I would in any event categorise the error in the present case as jurisdictional because the practical result of the exercise of the power in all of the circumstances was to wrongfully impose a condition having the effect of denying the applicants the opportunity to invoke the Court's jurisdiction under s 476 of the Act. In that regard, s 477(2) of the Act is to be regarded not only as a standalone power but as the prescription of a procedural pre-condition to the commencement on application under s 476. 80 In Wei v Minister for Immigration and Border Protection (2015) 148 ALD 226 (Wei), Gageler and Keane JJ considered the meaning and operation of s 486A(2) of the Act, which confers on the High Court a power to extend the time limit specified in s 486A(1) in which to commence an application for judicial review in the High Court. Of the interrelation between s 486A of the Act and the High Court's jurisdiction conferred under s 75(v) of the Constitution, their Honours said (at [42]): Section 486A does not prevent the making of an application under s 75(v) of the Constitution. The application is made by filing an application for an order to show cause in accordance with the High Court Rules. Section 486A operates rather to regulate the procedure applicable to the exercise of the jurisdiction that has been invoked by the making of such an application where the application has not been made within 35 days of the date of the decision which the plaintiff seeks to challenge. It does so by making the grant of the relief sought in the application conditional on an order extending the period for the making of the application. The period of the extension need only be to the date on which the application for an order to show cause has in fact already been filed. In parlance which derives from the historical practice of the Court of Chancery, the order is one which can and should be made nunc pro tunc. (citation omitted) 81 When the interrelation between the power conferred under s 477 of the Act and the jurisdiction conferred under s 476 of the Act is conceived of in the same way, it can be seen that an erroneous exercise of the power under s 477 amounts in substance to a misapplication of a pre-condition to the exercise of the Court's power to hear and determine an application for judicial review under s 476. Such an error amounts to a wrongful refusal to actually, rather than notionally, hear and determine the substantive merits of the judicial review application and is, therefore, properly classified as jurisdictional. 82 As the learned FCC judge correctly observed (at [39] of his reasons) the High Court in Wei itself determined the substantive merits of a proposed application for judicial review in the context of determining whether or not an extension of time to commence the s 75(v) application should be granted. See also Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667; [2011] HCA 23 (Plaintiff M13/2011) (Hayne J). I do not consider the approach taken by the High Court in Wei and Plaintiff M13/2011 to be inconsistent with the construction I have placed on s 477 of the Act, for two reasons. First, in each of those cases the High Court identified jurisdictional error on the part of the relevant administrative decision-maker and the question of whether the grounds for review were reasonably arguable (even if weak) therefore did not arise for determination on the extension applications. Second, the legal context in which the power under s 486A(2) of the Act is to be exercised differs from the context in which the power of the FCC is to be exercised under s 477(2). Neither an applicant for an extension of time under s 486A of the Act nor a respondent to such an application is prejudiced by the determination of that application by reference to the substantive merits of the proposed application for judicial review. The practical result in that context is the same: an adverse result with no vested right of appeal in either party from a judgment of the High Court. 83 Finally, in relation to the FCC's failure to afford the applicants procedural fairness, that error in my opinion is one involving a misapprehension on the limits or nature of the FCC's judicial power. It is well recognised that the exercise of judicial power involves the observance of due process. The requirement to observe due process limits the jurisdiction of the FCC in much the same way as the mandatory rules of evidence limited the power of the Industrial Court of New South Wales, as determined in Kirk. 84 I note that although a breach of the rules of procedural fairness may be an independent ground warranting the grant of relief in the nature of certiorari (apart from the breach constituting jurisdictional error), the applicants did not apply for relief on that alternative basis. 85 Nothing in the terms of consent given by the applicants to the conduct of a full hearing on the merits of their proposed judicial review applications detracts from what I have said. The terms of the consent, it will be recalled, made it clear that the applicants consented to the determination of those issues only upon the extensions of time to commence the judicial review proceedings first being granted. Their further written submissions were consistent with the limited terms of their consent.

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