BLR23 v Federal Circuit and Family Court of Australia

Federal Court of Australia (Full Court)|2024-01-29|Before: McElwaine JJ

The appellant's application for leave to rely on a new argument is refused.
The appeal is dismissed.
The appellant is to pay the Minister's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT 1 The appellant is a citizen of Afghanistan. He is currently in Pakistan. In December 2010, he was granted a protection visa on the basis that he faced a well-founded fear of persecution in Afghanistan. In June 2016, he was granted a Resident Return visa. On 29 March 2019, a delegate of the Minister cancelled his Resident Return visa under s 128 of the Migration Act 1958 (Cth) whilst he was in Pakistan (for convenience in these reasons, each reference to a statutory provision is to the Migration Act unless stated otherwise). That provision enables the Minister to cancel a visa if satisfied that there is a ground for doing so under s 116, and it "is appropriate" to cancel a visa under Subdiv F (where ss 494A to 494D are taken to be exhaustive as to the requirements of natural justice) and the person is a non-citizen who is outside Australia. The reason for cancellation was that the delegate was not satisfied as to the appellant's identity:s 116(1AA). 2 On 7 May 2019, the appellant sought to have the cancellation of his visa revoked under s 131. On 19 August 2019, another delegate of the Minister decided not to revoke the visa cancellation. The appellant became aware of that decision, through his agent, on that day. He did not make an application for review of the non-revocation decision within the statutory period of 35 days: s 477(1). On 12 August 2020, he filed an application for an extension of time in the then Federal Circuit Court seeking judicial review of the visa cancellation and non-revocation decisions. 3 Time may be extended conformably with s 477(2) which at that time provided: The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 4 The Federal Circuit Court refused the application. 5 On 6 September 2021, the appellant (as applicant) commenced an originating proceeding in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for a writ of certiorari to quash the decision made in the Federal Circuit Court and a writ of mandamus directing that Court to determine his application for an extension of time according to law. It was necessary to proceed in that way because s 476A(3)(a) provides that an appeal may not be brought to this Court from a judgment of the Federal Circuit Court that makes or refuses to make an order under s 477(2). 6 In this Court, the primary judge dismissed the application. The appellant now appeals the orders of the primary judge in the form of an amended notice of appeal lodged on 31 October 2023 and relies on one ground of appeal, with two aspects. The ground provides: The Federal Circuit and Family Court judge misconceived the Court's function on an extension of time application by adjudicating substantive aspects of the judicial review application, or alternatively, approached that task unreasonably or reasoned irrationally. Particulars (a) The Federal Circuit and Family Court was faced with competing authorities in relation to a point on which the appellant relied for one of his proposed grounds of judicial review. (b) The Federal Circuit and Family Court found that one authority was plainly wrong and should not be followed and followed the other authority and did not have regard to Full Federal Court authority on the topic. (c) The findings of the Federal Circuit and Family Court amounted to adjudication of a substantive aspect of the judicial review application and thus a misconception of the statutory task. (d) The Federal Court erred in finding to the contrary. 7 The legally unreasonable/irrational contentions were not raised before the primary judge. Leave is necessary to advance each in this Court. The Minister objected on the ground that the point is of no merit but was content to have all questions fully argued and the leave issue be determined in our reasons. For the reasons that follow, we refuse leave and dismiss the appeal.

The Federal Circuit Court decision 8 The Federal Circuit Court judge reasoned as follows. He correctly understood and listed the usual factors relevant to the exercise of the discretion to extend time at s 477(2) being the extent of the delay, whether the appellant had provided a reasonable and adequate explanation for the delay, whether the application was sufficiently arguable to support the extension and any prejudice to the appellant and the Minister. In summary, the Federal Circuit Court judge commenced by stating that which was obvious - the period of delay is considerable, and caution should be exercised before enlarging time by many months. The affidavit of the appellant's solicitor did not satisfactorily explain the delay. Refusal of the extension would deprive the appellant of the ability to prosecute his review application (a matter of significant prejudice). In contrast, an extension of time would not cause material prejudice to the Minister. 9 His Honour then turned to an assessment of the appellant's prospects of success at an impressionistic level. He summarised in considerable detail the background facts, including adverse findings that had been made against the appellant by the Minister's delegates. His Honour correctly understood that the Federal Circuit Court's jurisdiction pursuant to s 476(1) is to hear matters in relation to migration decisions where a writ of mandamus, prohibition or certiorari is sought against an officer of the Commonwealth. Accordingly, in assessing the prospects of success of the substantive application, his Honour was concerned with whether the decision to cancel the appellant's visa was affected by jurisdictional error. The appellant's points, so far as they remain relevant, were twofold. One, the cancellation decision proceeded on a material misunderstanding of the power at s 128 in that the delegate was required to first consider the relative merit of proceeding under Subdivs C or D. On this argument appropriate to cancel at s 128(a)(ii) means more appropriate. The second point was that the delegate reasoned illogically or irrationally by considering matters that were not logically connected to the cancellation decision. That point is no longer pressed in this Court. 10 On the s 128 construction contention, the appellant argued that the matters considered by the delegate were equally applicable to a decision to cancel his visa under another power, notably s 116, where, had that power been engaged, he was entitled to unqualified application of the procedural fairness hearing rule, even though he was then in Pakistan: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252. The appellant's core argument relied upon a decision of the Federal Magistrates Court in Singh v Minister for Immigration [2006] FMCA 1163 (Singh) where Driver FM concluded at [99]: … The obligation under s.128(a)(ii) is to reach a state of satisfaction that the exercise of the broad and draconian power of cancellation so conferred is "appropriate". It would be an invalid exercise of the power to limit one's consideration to the fact that the visa holder is outside Australia. That is a separate and necessary criterion for the exercise of the power pursuant to s.128(b). It would be relevant to consider the possibility that the visa holder might seek to re-enter Australia but a proper consideration of that issue necessitates a consideration of the consequence of that possibility occurring. If the relevant ground relied upon was, for example, the ground in s.116(1)(e) the consequence of a visa holder entering Australia would be obvious. In other cases the consequence may not be obvious and may require express consideration. 11 That view was disapproved by Judge Smith in Ametllari v Minister for Immigration and Border Protection [2015] FCCA 603 (Ametllari) at [28]-[33] who concluded that Singh was "clearly wrong" at [28]. In this case, the Federal Circuit Court judge formed the same view and followed Ametllari. His Honour reasoned that the power at Subdiv F is not qualified, and the appellant's construction could not be reconciled with the statutory text.

The review application to this Court 12 The appellant's originating application sought relief on the grounds pleaded in his statement of claim. Only one aspect remains relevant on this appeal. In short, the appellant contended that the Federal Circuit Court judge committed jurisdictional error by misapprehending "the nature of the task" required by s 477(2) by: [A]pplying the wrong threshold to a review of the merits of the proposed ground, or alternatively, by travelling beyond an impressionistic consideration of the merits of the grounds of judicial review and speculating about what might happen at the next stage of review. 13 The primary judge correctly observed that, for the application to succeed, the appellant had to establish jurisdictional error by the Federal Circuit Court judge: Craig v South Australia (1995) 184 CLR 163 (Craig) at 179-180 and Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (Kirk) at [72]-[73]. After the application was argued before the primary judge but before her Honour delivered judgment the decision of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 96 ALJR 819 (Katoa) was published. No application was made by the parties to provide supplementary submissions once it had been published. 14 Her Honour concluded that the appellant's arguments in support of the review ground could not survive Katoa, at least to the extent that the ground was founded in an assumption that an inferior court, by considering the merits of prospective grounds for judicial review at anything other than an impressionistic level, will necessarily commit jurisdictional error. Her Honour emphasised the plurality reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ at [14]-[15] and [17]-[19] and noted to similar effect the separate reasons of Gordon, Edelman and Steward JJ at [47], [49] and [61]. In this case, the plurality reasons at [18] deserve emphasis: However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time. (Footnotes omitted.) 15 Her Honour distinguished the decision of the Full Court in FKV17 v Minister for Home Affairs [2022] FCAFC 93; 292 FCR 201 (FKV17) where a majority (Greenwood and Rangiah JJ; Beach J dissenting) found that the primary judge committed jurisdictional error when refusing the grant of an extension of time under s 477(2) by proceeding as though the substantive application was before him. FKV17 was decided before Katoa. Presciently, Beach J reasoned at [165]-[167] that s 477(2) does not confine the exercise of the discretion to an impressionistic evaluation of the merits to conclude at [167]: …Clearly one purpose of the provision is to ensure that the review jurisdiction of the inferior court is not plagued with cases that are bound to fail. Now if the court can decide this on what is in essence analogous to a summary basis in a particular case, well and good. But if the court chooses to delve further into the merits as if it was a final hearing, and the parties have been put on notice of this and put all that they would wish to, it is difficult to see how any error is involved in applying a higher threshold or greater depth of analysis of the merits, let alone a jurisdictional error. 16 The primary judge rejected the appellant's arguments for two reasons. One, read as a whole, the reasons of the Federal Circuit Court judge demonstrated an understanding that the merits of the grounds were to be assessed at an impressionistic level and the conclusion reached was that the grounds did not enjoy sufficient prospects of success to attract a favourable exercise of the discretion to extend time in light of the considerable period of delay and absence of any explanation for it. 17 The other, by reference to Katoa, that the Federal Circuit Court judge was entitled in the circumstances to evaluate the relative merits of the proposed grounds, particularly given the lack of any adequate explanation for the substantial delay.

The competing submissions 18 In this Court, the appellant repeats the arguments put to the primary judge, without squarely facing the difficulty posed by Katoa. 19 At the basal level of analysis, Dr A McBeth submits on the s 128 construction question that the Federal Circuit Court judge fell into jurisdictional error when he concluded the argument, whilst not devoid of merit, was nonetheless illusory with the consequence that he was not satisfied that it was necessary in the administration of justice to grant the application. In his written case, the submission that his Honour erred in determining the s 128 question is: In substance, that amounted to the primary judge misconceiving the task. Rather than considering whether it was in the interests of the administration of justice to extend time to permit the ground to be argued, the primary judge disposed of the authority on which the applicant relied, and then determined categorically the question of statutory construction that was at the heart of the proposed ground. Having determined the substance of the ground, the primary judge in the next paragraph returned to the proposition that the consideration of the proposed ground was no more than impressionistic, and that while the proposed ground "cannot said to be devoid of merit, any merit in the argument is likely to turn out to be illusory upon a proper examination of the ground." (Footnotes omitted.) 20 It follows, so the argument ran, that in this Court the primary judge erred in finding the Federal Circuit Court judge went no further than expressing a view as to the insufficiency of the merits. Rather, he determined that question. In oral argument, Dr McBeth conceded that the point turns on a "fine distinction" between "a less than impressionistic consideration of the merits, which I accept, following Katoa, is permissible but… on the other hand, a substantive determination of the grounds themselves." The core error attributed to the Federal Circuit Court judge is that he chose between conflicting lines of authority at the same level and thereby reached a concluded view about the proper construction of s 128. 21 The appellant relies on the decision of this Court in Hu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 63 (Hu), as supporting his construction that a decision-maker must consider utilising other cancellation powers before turning to s 128 and places particular emphasis on the reasons of Sackville J at [78] and [89]-[90]. Hu was not cited to the primary judge but was to the Federal Court judge. 22 On the legally unreasonable/irrational contention, the appellant submits that it is sufficient to conclude that the outcome deprived him of the opportunity of arguing the construction question at a substantive hearing. 23 In contrast, Mr G Hill SC with Mr G Johnson for the Minister submits that within the bounds of jurisdictional error, the Federal Circuit Court judge did not misconceive his function in deciding the application to extend time pursuant to s 477(2) because, having regard to the considerable period of delay and the lack of any adequate explanation for it, he was entitled to undertake a more than impressionistic assessment conformably with Katoa. The constructional choice which the Federal Circuit Court judge resolved by preferring Ametllari to Singh, was open and within jurisdiction. That approach does not bespeak of jurisdictional error because read fairly and as a whole, the reasons disclose that his Honour did not undertake a categorical determination of the merit of the construction question. The reasons expressly record that he was doing no such thing, and, in any event, the concluding paragraphs of the reasons explain that the application failed because of the substantial period of delay, the absence of a satisfactory or convincing explanation for it and, at an impressionistic level, the proposed grounds lack sufficient merit. In all those circumstances, the Federal Circuit Court judge was correct to conclude that he was not satisfied that it is necessary in the interests of the administration of justice to extend time. 24 On this approach, it matters not that the appellant's arguments may find support in Hu. The Federal Circuit Court judge was tasked with deciding the extension application as presented to him. Hu was not referred to and his Honour did not commit jurisdictional error by failing to refer to it. He was not jurisdictionally bound to seek out cases that may support the appellant's arguments.

Resolution 25 At times the appellant's arguments proceeded beyond the limited function of this Court on appeal from the dismissal of an application for judicial review of the decision made by the Federal Circuit Court judge. The primary judge was only concerned with whether the Federal Circuit Court judge misapprehended the nature of or the limitations upon the exercise of the jurisdiction to grant or refuse the application for an extension of time pursuant to s 477(2). Her Honour was not concerned to review the exercise of the discretion in the manner of an appeal: cf House v The King (1936) 55 CLR 499. As explained in CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; 285 FCR 447 at [34] (Allsop CJ, Markovic and Colvin JJ): In cases like the present, there is an important distinction between a claim that the Federal Circuit Court judge did not deal with the nature of the application that was made (on the one hand) and a claim that the Court on review should conclude that the Federal Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit (on the other hand). A claim of the latter kind is unlikely to be a claim of jurisdictional error because to seek to identify the nature of the grounds and to assess whether they have merit for the purpose of determining whether it was necessary in the interests of justice to extend time is at the heart of performance of the (within jurisdiction) judicial task. Therefore, the mere fact that a proposed ground may not have been considered in the sense that a different view may be taken by other judges as to the nature and scope of the grounds is not jurisdictional. What is required in order to demonstrate jurisdictional error in such instances is a fundamental misunderstanding of the nature of the application such as where a judge addresses the wrong grounds, overlooks part of the grounds altogether or so fundamentally misunderstands the basis for the application that in effect the application is not considered. Even then, it is to be noted that when reasons are used to determine whether there has been a failure to deal with the nature of the application that has been made, it is only the crucial arguments that are to be addressed by judges in their reasons and it is for the judge to formulate the issues by considering the application: DL v The Queen (2018) 266 CLR 1 at [33]. 26 See also DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95; 264 FCR 454 at [37]-[42] (Collier, Logan and Perry JJ). 27 We are in no doubt that the primary judge did not err in dismissing the appellant's application. First, the "fine distinction" that the appellant seeks to draw between permissible and impermissible consideration of the merit of his application is illusory. What is clear from a consideration of the totality of the reasons of the Federal Circuit Court judge is that he correctly understood that the exercise of his discretion required consideration of four factors: the length of the delay, any satisfactory explanation for it, whether the merits of the application "is sufficiently arguable" to support the extension and the question of prejudice. More than once, his Honour expressly stated that the merits "should be" assessed at a relatively "impressionistic level". Whilst his Honour reasoned in one paragraph that Singh was "clearly wrong", in the next succeeding paragraph he concluded that the appellant's arguments simply did not demonstrate jurisdictional error "at an impressionistic level". In his concluding paragraphs, he emphasised that overall, he was not persuaded to grant the extension as necessary in the interests of the administration of justice because of the four factors that he considered. With respect, the appellant's arguments fix upon one or two sentences in the reasons and fail to read each in proper context. 28 Second, the distinction the appellant seeks to draw cannot be reconciled with the plurality reasons in Katoa at [18] (extracted above) and what follows at [19]: …As the merits of a proposed application are a permissible consideration, it is within the Federal Court's jurisdiction under s 477A(2) to have regard to that factor in such manner as it considers appropriate in the circumstances. Put another way, s 477A(2) entrusts to the Federal Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application. The opinion expressed by the Full Court in DHX17, that a judge who undertakes more than an impressionistic evaluation of the underlying merits of the applicant's case is likely to commit jurisdictional error, was mistaken. (Footnote omitted.) 29 To the same effect is the joint reasons of Gordon, Edelman and Steward JJ at [54]. Doubtless in recognition of the difficulty faced by the appellant's arguments, counsel characterised the error as the conflation of separate questions. We reject that argument. As we have noted, the Federal Circuit Court judge was careful to identify the factors relevant to the exercise of his discretion and was conscious of the distinction between substantively determining the merits as on a full hearing and forming a view about the prospects of success in a case attended by substantial and unsatisfactorily explained delay. 30 Third, the constructional choice presented by the competing arguments upon the hearing of the application before the Federal Circuit Court judge was one that his Honour was required to address as a matter relevant to the exercise of his discretion. In preferring a construction of s 128 contrary to the appellant's arguments, his Honour was acting within the jurisdiction conferred by s 477(2) which required satisfaction that it was necessary in the interests of the administration of justice to extend time in accordance with the appellant's application. Ultimately, even if his Honour erred on that question, he did not step beyond the limits of his jurisdiction as explained in in two passages in Craig at 177: An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. 31 And further at 179-180, when distinguishing jurisdictional error committed by tribunals from inferior courts: In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. 32 Although these passages do not state "a rigid taxonomy of jurisdictional error" (Kirk at [73]), they are dispositive for the present case. The Federal Circuit Court judge correctly understood the discretion that was required to be exercised. The relative merit of the substantive argument was in issue before him, and he did not err in confronting it. The substantive ground of the application agitated a constructional choice as to the correct meaning of s 128. It was within the jurisdiction of the Federal Circuit Court for his Honour to express a view as to that question. That it did not align with the appellant's argument does not demonstrate jurisdictional error. Put another way, the conferral of jurisdiction to decide the application to extend time permitted his Honour to consider the proper meaning of s 128 and form a view about it. That he may have been wrong is beside the point upon an application that must demonstrate jurisdictional error, as distinct from an error of law within jurisdiction: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [107] (Edelman J). 33 For completeness, we accept the submission of Mr Hill for the Minister that the Federal Circuit Court judge did not fall into jurisdictional error in not referring to Hu as that case was not cited. The jurisdiction that was required to be exercised was framed by the manner in which the case was presented. The appellant after the fact cannot make out his case by identifying another authority that he claims assisted his arguments. 34 The primary judge correctly understood these principles and reasoned similarly in dismissing the review application. The appellant has failed to demonstrate error on her part. 35 That leaves for consideration the legally unreasonable/irrational arguments that were not put to the primary judge. The appellant's arguments were directly tied with success upon his primary contention. It having failed, these contentions are of no merit and we refuse leave to argue the points. 36 It follows that the appeal must be dismissed. In deciding the appeal and the leave application it has not been necessary for us to express any view upon the correctness of the competing contentions as to the construction of s 128. 37 There is no reason why costs should not follow the event. We order as follows:

The appellant's application for leave to rely on a new argument is refused.
The appeal is dismissed.
The appellant is to pay the Minister's costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Murphy, O'Sullivan and McElwaine.

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