BDA16 v Minister for Home Affairs

Federal Court of Australia|2019-06-07|Before: Mr J, Farrell J

Solicitor for the Applicants: Mr R Turner of Turner Coulson Immigration Lawyers

Solicitor for the First Respondent: Mr J Hutton of Australian Government Solicitor

Counsel for the Second and Third Respondents: The Second and Third Respondents submitted to any order of the Court, save as to costs

AND: MINISTER FOR HOME AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA Third Respondent

JUDGE: FARRELL J DATE OF ORDER: 7 JUNE 2019

The applicants have leave to file a further amended originating application to include a prayer for relief in the nature of a writ of mandamus.
The further amended application is dismissed.
The first and second applicants must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This application is made under s 39B of the Judiciary Act 1903 (Cth). The applicants seek judicial review of a decision of the Federal Circuit Court of Australia delivered on 30 August 2018: see BDA16 v Minister for Immigration and Border Protection [2018] FCCA 2370. The Federal Circuit Court dismissed an application brought under s 477(2) of the Migration Act 1958 (Cth) for an extension of time to bring an application for judicial review of a decision of the Refugee Review Tribunal. 2 The first applicant (father) and second applicant (mother) are married. The third to fifth applicants are their children. All are Jordanian nationals. They arrived in Australia on 19 September 2011 as the holders of visitor visas. They applied for protection visas on 28 October 2011. The father made claims to fear harm. The other applicants applied as members of his family unit. Although the mother also holds Iraqi citizenship, the Minister exercised his discretion under s 91Q of the Migration Act to permit her to make a protection visa application. 3 A delegate of the Minister responsible for administering the Migration Act refused to grant the visas to the applicants on 26 July 2012. 4 The following chronology is relevant on this application and the factual matters set out below are recorded in the Federal Circuit Court's reasons for judgment. The Court does not understand them to be disputed: (1) The Tribunal affirmed the delegate's decision on 19 August 2013. (2) It is the mother's evidence that the applicants acted on legal advice obtained around 23 August 2013 that there was a "good chance" of success of a request for Ministerial intervention under s 417 of the Migration Act and it was cheaper than pursuing an application for judicial review of the Tribunal's decision by the Federal Circuit Court. That advice was accepted. (3) On 10 September 2013, the applicants requested Ministerial intervention under s 417 of the Migration Act. (4) The applicants were advised that the request for Ministerial intervention had not been successful on 31 March 2016. (5) The applicants applied for an extension of time to seek judicial review of the Tribunal's decision by the Federal Circuit Court under s 477(2) of the Migration Act on 12 May 2016 and that application was dismissed with costs on 30 August 2018. 5 On 13 September 2018, the applicants lodged in this Court an application for leave to appeal from the Federal Circuit Court's decision. On 6 February 2019, Griffiths J upheld the Minister's objection to the competency of that application and dismissed the application because it fell foul of the jurisdictional bar in s 476A(3)(a) of the Migration Act on appeals to this Court from decisions made by the Federal Circuit Court under s 477(2) of the Migration Act: see BDA16 v Minister for Home Affairs [2019] FCA 85.

Reasons of the Federal Circuit Court 6 At J[8]-[11], the Federal Circuit Court set out the principles to be applied in determining an application for extension of time under s 477(2) of the Migration Act as follows: 8. The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at [18] - [23]). 9. At the hearing before the Court, the parties were represented by solicitors. 10. It is to be remembered that the exercise of the Court's discretion in s.477(2) of the Act is not dependent simply on one factor. While an arguable case of legal error on the part of the Tribunal may provide a powerful, if not primary, element in exercising the discretion in an applicant's favour, the other factors presented by the circumstances of each case cannot be ignored. 11. In the current case, the factors that emerge for consideration are the length of the delay, whether any reasonable or satisfactory explanation has been proffered for the delay, and whether the proposed substantive application has such merit as to argue for the extension of time in the interests of the administration of justice. In deciding whether to grant an application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility. 7 The Federal Circuit Court identified the following reasons why it was appropriate to refuse the application for an extension of time. 8 First, the delay was "of great length", the application being approximately 33 months out of time in circumstances where the Australian Parliament had said that a reasonable period was 35 days. The statutory intention must be viewed in the context of the "finality of litigation". The delay in this case was not a matter of days or weeks, but of nearly three years. The Federal Circuit Court accepted that this was "unwarrantable delay" and of such length as, itself, to be a basis for refusing the application for extension of time: J[12]-[13]. 9 Second, the Federal Circuit Court found that the applicants had not provided a satisfactory explanation for such a lengthy delay: (1) The Court noted the mother's evidence that the applicants had acted on legal advice, obtained around 23 August 2013, to pursue Ministerial intervention pursuant to s 417 of the Migration Act instead of making an application to the Federal Circuit Court. The applicants therefore knew of the option of seeking judicial review on or about 23 August 2013, within the 35 days allowed under s 477(1): J[15]-[16]. (2) The Court acknowledged that pursuing Ministerial intervention may, in certain circumstances, satisfactorily explain delay but found that this was not such a case. The applicants elected, with legal advice, to pursue Ministerial intervention rather than pursuing judicial review: J[17]-[18] (3) The Court found that the "applicants sought to transfer responsibility for the delay to the Minister", given that it took some time for the Ministerial intervention request to be concluded and the applicants submitted that "the Minister should take responsibility for the delay": J[19]-[20]. (4) The Court noted (at J[21]) a written submission made by the applicants as follows: The High Court in Re Commonwealth; Ex Parte Marks (2000) 177 ACR 491. McHugh J at [16] found: 'unless some conduct of the respondent as public body or official has brought about the delay' was relevant to the issue of delay. In this case it was the First Respondent who delayed making a decision for 31 months which was the major cause of bringing this matter to this court." [Errors in original.] (5) The Court found that there was nothing in the evidence before it to say that the delay in making the application was because of the Minister's conduct or that of anyone acting on his behalf. The Court noted that, having made the request for Ministerial intervention, the applicants were still able to revisit their election and apply for judicial review: J[22]. There was no evidence before the Court to say that there was "any inducement or representation made by the Minister, or his officers, that may have misled the applicants as to their ability to apply for judicial review or even to apply for an extension of time under s 477(2)" at an earlier time: J[23]. The Court noted the mother's evidence that her lawyers advised that there was a "good chance" of success of the request for Ministerial intervention and it was less expensive, advice the applicants chose to accept. It was not conduct by the Minister or his representatives that led to that state of affairs: J[24]. (6) The Court found the applicants' reliance on Re Commonwealth; Ex Parte Marks [2000] HCA 67; 177 ALR 491 (Ex Parte Marks) at [16] to be both selective and misplaced, stating that, if anything, his Honour understood that, in that case, the High Court sought to emphasise the importance of not delaying an application for judicial review: J[25]. (7) The Court found the applicants' reliance on SZTES v Minister for Immigration and Boarder Protection [2015] FCA 719 at [102] per Wigney J did not assist them as the factors in relation to whether it is in the interests of the administration of justice to extend time are non-exhaustive and the merit of the substantive application is not the only issue. With reference to MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [13] and [14] per Mortimer J, his Honour stated that he understood the Federal Court to have noted that the length of delay and explanation for it is a "significant factor". In weighing the relevant factors, the Court's approach in the applicants' case did not ignore the great importance of giving careful consideration to the consequences for a person who has applied for a protection visa: J[26]-[31]. (8) The Court noted that it was the mother's evidence that the applicants had been notified of the outcome of the request for Ministerial intervention on 31 March 2016. Because of legal advice, the applicants already knew of the possibility of judicial review at that time. On the second applicant's evidence, they did not seek further legal advice to initiate proceedings until 10 May 2016, a further delay of five and half weeks which went unexplained: J[32]-[33]. 10 The Federal Circuit Court concluded that, in all, the delay was of "great length" and it had "not been satisfactorily explained": J[34]. 11 The Court found (at J[35]) that the grounds of the proposed substantive application "do not contain such merit as to argue for the extension of time". The Court considered the grounds of substantive application in detail at J[36]-[167] and found that they either "lack[ed] any merit whatsoever", or "[were] of such character that they [did] not call for the extension of time in the interests of the administration of justice": J[168].

Application for review 12 On 7 February 2019, the applicants filed the present application seeking only an order setting aside the orders made by the primary judge. On 13 March 2019, the application was amended to join the Federal Circuit Court as a party. The Minister did not object to the Court granting leave to the applicants to file a further amended application to include a prayer for relief in the nature of a writ of mandamus. 13 The grounds of review are set out in affidavits affirmed by Sai Priya Sivalohan on 7 February 2019 and 12 March 2019 as follows: 1) The Federal Circuit Court fell into error in failing to consider the Applicants' argument that the delay in the Respondent making a decision was an unreasonable delay and therefore, an acceptable reason for the delay in applying to the Federal Circuit Court. a. The Applicants' applied to the First Respondent for Ministerial Intervention on 10 September 2013. b. On 31 March 2016 the Applicants' application for Ministerial Intervention was unsuccessful. c. The Federal Circuit Court failed to recognise that constructively giving the notification of decision to the solicitor is the same as giving the notice to the Applicants, which they only received on 7 April 2016 from their previous solicitor. d. Following notification of the Ministerial Intervention decision, the Applicant sought legal advice from multiple organisations and once they obtained legal representation, they made an application to the Federal Circuit Court for an extension of time on 12 May 2016. e. The Federal Circuit Court only considered the Applicants' explanation for deciding to apply to the First Respondent and failed to consider the undue delay of the First Respondent in providing the Applicants with a decision. f. The Department's delay of almost 3 years to process the Applicants' application is a failure to make a timely decision and resulted in the Applicants' delay in seeking judicial review. g. The Federal Circuit Court erred by not considering the breadth of its discretion to extend time by failing to consider whether the Minister's delay was an acceptable reason for the delay in appealing to the Federal Circuit Court. 2) The Federal Circuit Court fell into error in finding that the Applicants gave the decision record to the Second Respondent for the 'purposes of review'. a. The Tribunal failed to comply with the Migration Act 1958 s. 424A. b. The Federal Circuit Court found that information included in the decision record was not caught by s. 424A as it was given to the Tribunal by the Applicants. c. The decision record was not given to the Tribunal "for the purposes of review", it was given to the Tribunal to satisfy a request made in the application form, by the Tribunal. d. The Tribunal cannot avoid its obligation under s. 424A of the Act by requesting that adverse information be given to the Tribunal. e. The Federal Circuit Court misunderstood the provisions of s. 24A of the Act. 3) The Federal Circuit Court fell into error in considering that the psychiatrist report had been given proper, genuine and realistic consideration to the Tribunal. a. The Tribunal gave "no weight" to the psychiatrist's diagnosis of "major depression" because he was "able to participate in the hearing" and that it was based on what he had told the psychiatrists. b. By giving the report "no weight", the Tribunal effectively failed to give proper, genuine and realistic consideration of the evidence and dismissed it on an improper basis. c. The Federal Circuit Court erred by misunderstanding the meaning of the Tribunal in giving "no weight" to the Applicant's evidence. 4) The Federal Circuit Court fell into error in finding that the Second Applicant lacked credibility because the First Applicant lacked credibility. a) The Tribunal dismissed the Second Applicant's claims because of credibility concerns in relation to the First Applicant. b) Just because the First Applicant, is found to lack credibility, it does not follow that the Second and Third Applicant lacked credibility. 5) The Federal Circuit Court fell into error in finding that the First Applicant was not denied procedural fairness by being required to wait outside the room while the Second Applicant gave evidence and vice versa. a. As the First and Second Applicant were not able to hear each other's evidence, they were not able to corroborate that evidence, especially in regard to the experience of the Third Applicant. b. The Federal Circuit Court failed to properly apply the rules of procedural fairness. 14 Annexed to Ms Sivalohan's affidavit affirmed on 7 February 2019 were copies of the orders made and reasons delivered by the Federal Circuit Court. The Tribunal's reasons are not in evidence.

Applicants' submissions 15 Submissions prepared by the solicitors for the applicants were filed on 20 May 2019. The submissions set out a chronology, each of the grounds was then repeated and, immediately following each ground, a brief submission was made. 16 In relation to the first ground of review, the applicants' written submissions were that the Minister's delay of over two and a half years to make a decision on the application for Ministerial intervention was a failure to make a timely decision and that resulted in the applicants' delay in seeking judicial review. They submitted that they did not simply "sit on their rights" or "fold their hands and do nothing", they actively pursued what they believed to be an avenue of appeal and applied to the Court after they received an unsuccessful outcome. They relied on: (1) A statement made by Bromberg J in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (BMF16 v MIBP) at [29] that "inactivity, long periods where an application simply sits around waiting for some particular step in the process to be taken, provide a more compelling basis for establishing unreasonable delay"; and (2) A statement made by Burchett J in Mitco DB Pty Ltd v Chief Executive Officer of Customs [1999] FCA 712 at [7]-[8] that "[t]he question then is whether the applicant has shown circumstances justifying the discretionary grant of an extension of time of the considerable length involved here … The material placed before me makes it clear that the applicants did not simply sit on its rights, or fold its hands and do nothing". 17 The Court notes that, inconveniently, the applicants' written submissions did not identify where the quotations on which they relied appeared in the cited judgments. That is a bad practice and inconsistent with the Court's guidance in Practice Note APP2 "Content of Appeal Books and Preparation for Hearing" at [5.8] which provides as follows in relation to submissions: All references to authority must give the case name and citation and refer to the relevant page and the relevant part of the page (eg. A v B (1964) 112 CLR 210, 212-213). For further details on how to reference cases refer to the Lists of Authorities and Citations Practice Note (GPN-AUTH)). Albeit that this is not an appeal, the Court applies the same principles generally, and practitioners who appear in this Court are expected to observe this guidance for the efficient disposition of cases: see Central Practice Note: National Court Framework and Case Management (CPN-1) at [14.2]. 18 At the hearing, the applicants' legal representative (Mr Turner) relied on the applicants' written submissions subject to the following: (1) The applicants accepted that, if the Court found that the first ground of review was not made out, it would be unnecessary for the Court to consider grounds 2-5, but if the applicants did make out the first ground of review, it would be relevant for the Court to consider grounds 2-5 on the basis that it would be relevant to the exercise of the Court's discretion whether to remit the matter to the Federal Circuit Court for decision according to law. (2) The applicants do not press paragraph (c) of the first ground. (3) The applicants accepted that Colvin J correctly summarised what the applicants were obliged to demonstrate in an application of this kind in WZAUG v A Judge of the Federal Court of Australia [2018] FCA 649 at [10]. They must show that the Federal Circuit Court: (a) acted outside its power or authority; (b) failed to perform the particular task entrusted to it; or (c) perform the task in a manner that is fundamentally inconsistent with its character as a court of record. (4) The applicants accepted that the Federal Circuit Court acted within its power or authority. 19 Mr Turner submitted that the Federal Circuit Court fell into jurisdictional error because it failed to perform the task entrusted to it under s 477(2) of the Migration Act or, alternatively, it did so in a manner that is fundamentally inconsistent with its character as a court of record by failing to give genuine and realistic consideration to the applicants' claim that was put to it. That claim was that the significant delay in bringing the application to the court - some 33 months - was at least in part due to the inactivity of the Minister. 20 Mr Turner referred to the reasons of the Federal Circuit Court at J[19]-[21] as follows: 19. Before the Court, the applicants sought to transfer responsibility for the delay to the Minister, given that it took some time for the Ministerial intervention request to be concluded. 20. The second applicant's evidence is that the request for Ministerial intervention was made on 10 September 2013 (the second applicant's affidavit at [6]). The applicants received notification that this was unsuccessful on 31 March 2016 (the second applicant's affidavit at [7]). 21. In this light, the applicants submitted that the Minister should take responsibility for the delay. The applicants referred to the following from Re Commonwealth; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 ("Ex Parte Marks") per McHugh J at [16] (see [4] of the applicants' written submissions filed on 23 February 2018): "The High Court in Re Commonwealth; Ex Parte Marks (2000) 177 ACR 491. McHugh J at [16] found: 'unless some conduct of the respondent as public body or official has brought about the delay' was relevant to the issue of delay. In this case it was the First Respondent who delayed making a decision for 31 months which was the major cause of bringing this matter to this court." [Errors in original.] 22. There is nothing in the evidence before the Court to say that the delay in making the application to the Court was caused by the Minister's conduct, or anyone acting on his behalf. Having made the request for Ministerial intervention, the applicants were still, at the same time, able to revisit their election and seek judicial review at an earlier time. 23. There is nothing in the evidence before the Court to say that there was any inducement or representation made by the Minister, or his officers, that may have misled the applicants as to their ability to apply for judicial review, or even an application to extend time pursuant to s.477(2) of the Act at an earlier time. 21 Mr Turner submitted that the Federal Circuit Court erred by its findings at J[19] and [22] which he said failed to take that into account that it was the Minister's inaction over 33 months from 10 September 2013 which was part of the factual matrix relevant to delay and there was evidence of that conduct by or on behalf of the Minister before the Court. Mr Turner submitted that this was "conduct" of the kind referred to by McHugh J in Ex Parte Marks at [16]. 22 Mr Turner submitted that had the Minister only taken three months to determine the application for Ministerial intervention, then the delay would not have been as substantial so that it would have been easier for the Federal Circuit Court to exercise its discretion in favour of the applicants. It was submitted that, while it is true that s 477(1) of the Migration Act provides for applications for judicial review of relevant migration decisions to be made within 35 days, Parliament also enacted s 477(2), giving the Federal Circuit Court a discretion to extend time.

Minister's submissions 23 Submissions prepared by the solicitors for the Minister were filed on 24 May 2019. The Court notes that many of the concessions made by Mr Turner at the hearing (including the need to seek a writ of mandamus to found jurisdiction to (in effect) obtain a writ of certiorari) were responsive to the Minister's submissions. 24 The Minister's position is that the application should be dismissed with costs because: (1) While the applicants have no right to appeal from a decision of the Federal Circuit Court to refuse to extend time pursuant to s 477(2) of the Migration Act by reason of s 476A(3)(a), this Court has jurisdiction to consider an application under s 39B of the Judiciary Act which identifies a "jurisdictional error" as that phrase is used in connection with an inferior court: see CXK17 v Minister for Immigration and Border Protection [2018] FCA 1872. The applicants' grounds do not demonstrate any such error for the reasons set out in the Minister's submissions. (2) Critically, the applicants' grounds do not challenge the correctness of the primary judge's identification of the relevant test for the determination of an application under s 477(2) of the Migration Act.

Consideration 25 Section 477 of the Migration Act relevantly provides as follows: 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 26 As noted by the Minister, the applicants do not challenge the correctness of the primary judge's identification of the relevant test for determination of an application for an extension of time made under s 477(2) of the Migration Act. That is appropriate, since the Federal Circuit Court correctly identified its task as being to consider exercising its discretion under s 477(2) of the Migration Act to extend the time in which the applicant could apply for judicial review in that court under s 476: see J[8], [10]. The summary of matters to be taken into account at J[10]-[11] is a conventional expression of those factors which may be relevant in the exercise of the discretion. The Federal Circuit Court acknowledged that this list is not exhaustive at J[28]. It is essentially a matter for the Federal Circuit Court judge to determine and assess what the relevant considerations are to be weighed in determining whether he or she is satisfied whether it is necessary, in the interests of the administration of justice, to extend time under s 477(2): see SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; 238 FCR 456 at [10] per Bromwich J, Allsop CJ and Flick J concurring.

Ground 1 27 The Federal Circuit Court plainly did consider, in detail, the applicants' reasons for the delay of approximately 33 months and the applicants' claim that those reasons were acceptable at J[12]-[35]. The Federal Circuit Court did not fail to appreciate or deal with the applicants' claim that the time taken by the Minister to make a decision on their request for Ministerial intervention under s 417 was blameworthy and that it was part of the reason for claiming an acceptable reason for their delay in pursuing judicial review of the Tribunal's decision in the Federal Circuit Court. 28 The proceedings giving rise to the judgment in BMF16 v MIBP were originally commenced to seek to compel a delegate of the Minister to determine citizenship applications which had been made 18 months before the application to the Court and later as a ground for setting aside the decision which the delegate made to refuse to grant citizenship. The applicants' submissions to this Court in reliance on BMF16 v MIBP therefore seek to equate the Minister's conduct in the determination of the s 417 request with the failure of the Minister to act promptly in an entirely different situation. The Court accepts the Minister's submission that the quoted material from BMF16 v MIBP at [29] is not relevant to the circumstances of this case. The reasoning in BMF16 v MIBP might have been relevant if the subject matter of the present application was a complaint relating to the Minister's decision-making concerning the request the applicants made for Ministerial intervention under s 417, but that request was not the subject matter of the request for extension of time to file an application for judicial review of the Tribunal's decision brought by the applicants in the Federal Circuit Court. 29 The Court does not accept the Minister's submission that the applicants did not expressly raise the argument (relying on Mitco DB Pty Ltd v Chief Executive Officer of Customs) that they did not simply sit on their rights and do nothing because they made the application for Ministerial intervention before the Federal Circuit Court. While that argument might not have been made directly to the Federal Circuit Court, it is at the core of the applicants' contention that they had an acceptable excuse for the delay. However, the fact that, in a different factual and legislative context, a Judge of this Court decided to grant an extension of time after a long delay during which the applicant pursued administrative remedies does not support the claim that the Federal Circuit Court fell into jurisdictional error by refusing to do so in performing the task that s 477(2) requires. 30 The Federal Circuit Court recognised (at J[18]) that in some circumstances, Judges of this Court and of the Federal Circuit Court have found that delay due to an application for Ministerial intervention was an acceptable explanation for the delay in seeking judicial review of the Tribunal's decision. However, there is also a line of cases in which the election to pursue Ministerial intervention rather than seeking judicial review of a Tribunal's decision was found to indicate that the applicants have abandoned the right to seek review of the Tribunal's decision: see Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; 205 ALR 198 (Daniel v MIMIA) at [14] per Goldberg J and the cases there cited. 31 In SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478 (SZFGO v MIC) (one of the cases cited at J[18]), Edmonds J at [17] expressed doubt that Goldberg J intended that what he said in Daniel v MIMIA should be taken as a general proposition. However, also at [17], Edmonds J noted that while the Full Court in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; 212 ALR 520 (Black CJ, Sackville and Sundberg JJ) did not expressly endorse the views expressed by Goldberg J in Daniel v MIMIA, it did say at [36] that: … Although the primary judge did not dismiss the application for prohibition on the ground of the appellant's lengthy delay in seeking constitutional writs, that, and the making of a s 417 application, reinforce the propriety of the proceeding having been brought to an end.' 32 In finding that there was an acceptable excuse for delay in SZFGO v MIC, Edmonds J noted (at [20]) a concession made by the Minister that the applicants had been pointed in the direction of pursuing Ministerial intervention under s 417 by the Tribunal implicitly and by a Federal Magistrate explicitly where those applicants were litigants in person who may not have had legal advice in pursuing one course over another or both simultaneously. Such a case is clearly distinguishable from this. There was no error by the primary judge in taking into account that there was no evidence of inducement or representation made by the Minister, or his officers, that may have misled the applicants as to their ability to apply for judicial review, or even an application to extend time pursuant to s 477(2) at an earlier time: see J[23]. 33 Mr Turner accepted that the Federal Circuit Court's reasons: (1) Noted the chronology of events beginning with the Tribunal's decision on 19 August 2013; (2) Found that the applicants obtained legal advice on 23 August 2013; (3) Found that the applicants made a choice to pursue an application for Ministerial intervention under s 417 of the Migration Act made on 10 September 2013 rather than pursue an application for judicial review; (4) Found that the application for Ministerial intervention did not preclude the applicants from making an application for judicial review before, at or any time after the application for Ministerial intervention was made, and did not dispute those matters. 34 While it is true that the applicants awaited the outcome of their request for Ministerial intervention and they may well have applied to the Federal Circuit Court sooner had the Minister made his decision sooner, the suggestion that the time taken by the Minister to make his decision was so significant that the Federal Circuit Court fell into error by not accepting that factor as having determinative weight on the application for an extension of time made under s 477(2) must be rejected. The Federal Circuit Court was entitled, in the exercise of discretion under s 477(2), to take into account that it was open to the applicants to seek judicial review or an extension of time at any time during the Minister's consideration of the request for his intervention and to not accept that explanation for delay was reasonable. Indeed, even if the Minister had only taken three months to make his decision, that could well amount to unacceptable delay, in light of the statutory prescription in s 477(1) of 35 days in which to make an application and even though the discretion to extend time under s 477(2) was conferred by Parliament. 35 The Federal Circuit Court did not fail to give "genuine and realistic consideration" to the applicants' claim that part of the reason they had an acceptable explanation for their delay in making the judicial review application to that Court was the Minister's "inactivity" in relation their request for Ministerial intervention under s 417. The Federal Circuit Court did not accept that, in the context in which that occurred, the Minister's delay in making the decision under s 417 was "conduct" of the Minister or the Minister's delegates of the kind contemplated by McHugh J in Ex Parte Marks at [16]. That was a correct finding. 36 The Federal Circuit Court, therefore, took into account the length of the delay, the fact that the applicants accepted legal advice to take the course of applying for Ministerial intervention among other reasons because it was cheaper than seeking judicial review and in circumstances where they could have applied for judicial review simultaneously with the request to the Minister for intervention or earlier than they did and the delay was not occasioned by any misleading representation or inducement by the Minister or on his behalf. No error of the kind alleged by Mr Turner is disclosed by that course.

Grounds 2-5 37 In light of the fact that the Court has found that the first ground of review was not made out and Mr Turner's concession, it is unnecessary for the Court to consider the grounds 2-5 of the application to this Court. 38 The Court notes that the Minister's representative drew to the Court's attention the recent decision of the Full Court in FEZ17 v Minister for Home Affairs [2019] FCAFC 76 in which the Full Court accepted that, in a case such as the present, there might be jurisdictional error revealed in the approach taken by the Federal Circuit Court on the issue of whether there was sufficient prospects of success of the grounds on which the applicant would rely if time for filing of a review application was extended under s 477(2). In this case, grounds 2-5 do not raise the issue of Federal Circuit Court misconceiving its function and the applicants accept that it did not exceed its jurisdiction. Rather, those grounds attack the Court's findings in relation to the matters identified in those grounds. Whether or not the Federal Circuit Court should have found as asserted in those grounds is not a question which this Court should answer, since it falls squarely within the jurisdiction of the Federal Circuit Court: see ALL16 v Minister for Immigration and Border Protection [2018] FCA 419 at [24] per Gleeson J relying on SZTUT v Minister for Immigration and Border Protection [2016] HCATrans 150 per Gageler J. 39 Having had the benefit of the written submissions of both the Minister and the applicants, the Court is satisfied that Mr Turner's concession was properly made in relation to Grounds 2-5.

Conclusion 40 The further amended application should be dismissed with the first and second applicant to pay the Minister's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

SCHEDULE OF PARTIES NSD 171 of 2019 Applicants Fourth Applicant: BDD16 Fifth Applicant: BDJ16

Migration Act 1958(Cth)ss 417, 476A, 477

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (27)