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Cited legislation

3 cited instruments linked from this judgment.

DAQ22 sought judicial review of the Minister's decision not to revoke cancellation of his protection visa under s 501CA(4) of the Migration Act 1958 (Cth). Because he needed more time to file that review application, he applied to the Federal Court for an extension under s 477A. The primary judge dismissed the extension application on the view that the proposed substantive judicial review had no merit. The High Court judgment records that this was the basis for dismissal, rather than the length of the delay or the adequacy of the explanation for it ([4]).

After the High Court delivered its reasons in NZYQ, the primary judge invited further submissions on the decision's relevance. DAQ22 made two contentions about why the Minister's analysis was said to be erroneous ([5]-[8]). One concerned the consequences of the Minister's understanding of the law: DAQ22 argued that poor prospects of removal could mean release into the community, with destitution as a possible consequence, rather than indefinite detention ([6]). The other concerned the legal effect of NZYQ: DAQ22 argued that the Minister had applied a view of the law that NZYQ later held to be wrong, and that the common law operates retrospectively ([7], [13]). The Minister made no further submissions in response to NZYQ ([8]).

Jagot J identified a specific problem in the primary judge's treatment of those two arguments. The primary judge relied on reasoning from SZMDS to reject the contention about legal unreasonableness ([10], [14]). Jagot J held that SZMDS addressed a different question, namely whether the decision-maker's reasoning was rational on the material before it. It did not answer the distinct contention based on NZYQ's retrospective effect ([14]). The primary judge had therefore failed to consider one of the two concise and central contentions advanced ([15]).

The High Court granted the requested procedural relief. It extended time for filing the constitutional writ application, issued certiorari quashing the Federal Court orders, and issued mandamus requiring the Federal Court to determine the s 477A extension application according to law. The Minister was ordered to pay the costs of the High Court application and the proceedings below. The High Court did not itself decide the extension application or the ultimate merits of the proposed judicial review.

Why the court decided this way

The primary judge's approach to the extension application was not, in itself, the error identified by Jagot J. The reasons state that the primary judge treated s 477A(2) as giving the Court an extension power subject to a written application and satisfaction that an extension was in the interests of the administration of justice. His Honour also treated the merits of the proposed judicial review as an important consideration. Jagot J described those preliminary steps as unobjectionable ([9]). The problem arose in how the primary judge assessed the merits.

The plaintiff's submissions contained two different arguments, which required separate treatment. The first concerned what the Minister believed would happen if the visa cancellation was not revoked. It was framed around a possible misunderstanding of the consequences of the Minister's decision. Jagot J said that this argument could be answered by the proposition that legal unreasonableness is assessed at the time the power is exercised. At that time, the Minister did not know and could not have known the consequences said to follow from the later understanding of the law ([12]). The judgment notes that this reflected an argument rejected by Kennett J in AJN23, but does not decide that issue afresh as the central issue in this proceeding.

The second argument was different. It did not merely say that the Minister misunderstood the practical consequences of a legal error. It asserted that NZYQ stated the law applicable at the time of the Minister's decision, because the common law, once determined, operates prospectively and retrospectively ([13]). Jagot J explained that NZYQ had overruled Al-Kateb v Godwin and that, on the plaintiff's argument, the law declared in NZYQ was therefore treated as having always been the law, including at the time of the Minister's decision ([13]). The issue was whether the Minister's decision was legally unreasonable because it was made on a legal understanding inconsistent with that law.

The Minister argued that the primary judge had not wholly neglected or fundamentally misunderstood the argument, and that a judge need not address every submission ([11]). Jagot J accepted the general distinction between a failure to discuss every point and a failure concerning an argument that is central to the case. The decisive feature was that the second contention was one of only two concise submissions about NZYQ, and was central to the merits assessment that determined the extension application ([15]).

SZMDS could not bridge the gap. As Jagot J explained, the relevant issue in SZMDS was illogicality or irrationality in a decision-maker's process of reasoning, assessed against the evidence and material before that decision-maker ([14]). That case asked whether it was open to the Tribunal to reason as it did and reach its findings on that material. It did not decide how to assess an argument that a later judgment declared what the law had been at the time of the challenged decision ([14]). By relying on SZMDS, the primary judge did not engage with the substance of DAQ22's second argument.

This was more than a disagreement over the weight of a submission or the formulation of the issues. Jagot J concluded that the primary judge fundamentally misunderstood the argument and failed to consider it at all. Given that the merits of the proposed review were the reason for refusing an extension, the omission affected the decision-making process in a jurisdictionally significant way ([15]).

Before and after state of the law

The judgment describes the relevant legal background through the cited cases and the parties' submissions. It does not set out a comprehensive account of the law before NZYQ. It does, however, state that NZYQ overruled Al-Kateb v Godwin and that the common law, once determined, operates prospectively and retrospectively ([13]). In the plaintiff's argument, this meant that the rule stated in NZYQ was to be treated as the law at the time of the Minister's decision, even though that decision preceded NZYQ.

The judgment therefore distinguishes two temporal questions. One is what a decision-maker knew, or could have known, when exercising a power. That question was relevant to the plaintiff's first contention about the consequences of the Minister's decision. Jagot J said the proposition that legal unreasonableness is assessed at the time of decision could answer that contention ([12]). The other question is what law is taken to have applied at that time after a court later states or changes the common law. The plaintiff's second contention raised that question. Jagot J considered that the time-of-decision response did not answer it ([13]).

The judgment's holding is procedural and concerned with the adequacy of the primary judge's consideration of the argument. It does not establish that every decision made under a legal understanding later rejected is legally unreasonable. Nor does it determine whether the Minister's decision was legally unreasonable on the particular facts. The Court's conclusion is narrower: the primary judge could not dispose of the extension application on the merits without considering the distinct retrospective-law contention that had been clearly advanced.

In practical terms, the state of the law after this judgment, as shown by the supplied reasons, is that the Federal Court had to reconsider the extension application according to law. The High Court did not itself grant the extension of time for the migration judicial review application. It quashed the order refusing the extension and required the Federal Court to determine that question afresh. The judgment does not provide the result of that later determination.

Key passages with plain-English translation

At [9], Jagot J said the primary judge's preliminary approach to s 477A and the relevance of the merits was “unobjectionable”. In plain English, the High Court did not find error merely because the Federal Court considered the proposed judicial review's merits when deciding whether to grant more time.

At [12], Jagot J distinguished DAQ22's first contention. The time-of-decision principle could address an argument about consequences that the Minister did not know and could not have known when making the decision. This passage matters because it prevents the two contentions from being treated as interchangeable.

At [13], Jagot J explained the second contention: “The consequence is that the reasoning in NZYQ is the law and is taken to have always been the law”. In plain English, DAQ22 argued that the Minister's decision should be assessed against the law as later declared in NZYQ, not simply against the Minister's understanding at the time. This was the argument the primary judge needed to confront.

At [14], the Court explained why SZMDS did not answer the second contention. SZMDS dealt with whether a decision-maker could rationally reach a conclusion on the evidence available. In plain English, testing the logic of a decision on its record is not the same task as deciding the effect of a later judgment that declares the applicable law.

At [15], Jagot J concluded that the primary judge had “fundamentally misunderstood” the submission and “failed to consider the second contention at all”. The significance is the Court's distinction between not discussing every argument and missing one of a small number of central arguments that determined the merits assessment.

The orders at [16] show the consequences. The High Court quashed the Federal Court orders and required the Federal Court to determine the extension application according to law. It did not decide whether the extension should ultimately be granted.

What fact patterns trigger this precedent

The reasoning is most directly engaged where a court deciding an application for an extension of time treats the merits of the proposed substantive case as important, and a party has clearly advanced a central legal contention bearing on those merits. The case is particularly relevant if the judge rejects that contention by applying authority directed to a materially different question, so that the reasoning does not address the point actually made ([9], [14]-[15]).

The judgment also shows why accurate characterisation of submissions matters. DAQ22's two arguments both concerned NZYQ, but they raised distinct issues: one about consequences that the Minister could not have known at the time, and one about the retrospective operation of the law declared in NZYQ ([12]-[13]). Treating them as a single argument would obscure why the time-of-decision proposition answered one but not the other.

The precedent should not be read as saying that every unmentioned submission creates jurisdictional error. Jagot J expressly distinguished the failure to address every submission from the failure to consider one of two concise, crucial contentions that went to the basis on which the extension application was dismissed ([11], [15]). The importance of the argument in the reasoning process was central.

Nor does the judgment resolve the substantive merits of a challenge based on NZYQ. It establishes that the argument needed to be considered in this case, not that it necessarily succeeds. A later decision-maker or court would still need to determine the relevant application according to law and the arguments and material before it.

How later courts have treated it

The supplied judgment is dated 25 June 2024 and identifies itself as [2024] HCASJ 27. The text provided contains no subsequent decisions applying, distinguishing, or otherwise treating this judgment. It is therefore not possible, on the supplied source alone, to describe later judicial treatment or claim that a particular proposition has been adopted or limited by later courts.

The judgment itself discusses earlier authorities, rather than later treatment of its own reasoning. It refers to NZYQ for the law concerning migration detention and explains that NZYQ overruled Al-Kateb ([3], [13]). It distinguishes SZMDS because that case concerned illogicality or irrationality assessed against the material before the decision-maker ([14]). It also discusses AJN23 in relation to the proposition that legal unreasonableness is assessed at the time the power is exercised ([11]-[12]). Those are the authorities considered in DAQ22, not evidence of how later courts have treated DAQ22.

The safe account from the available text is consequently limited: DAQ22 supplies a case-specific explanation of why a central contention based on NZYQ's asserted retrospective effect could not be disposed of by relying on SZMDS's approach to rationality on the decision record. Information about subsequent treatment would require later legal sources not included here.

Still-open questions

The primary unresolved question is the ultimate merits of DAQ22's extension application. Mandamus required the Federal Court to determine that application according to law, but the High Court did not itself decide whether an extension should be granted ([16]).

The judgment also leaves unresolved whether the Minister's decision was legally unreasonable because it was made on a legal understanding later held to be incorrect. Jagot J explained the plaintiff's argument and held that the primary judge had failed to consider it. The Court did not decide whether that argument was legally correct or whether it established jurisdictional error in the Minister's original decision ([13]-[15]).

A further issue is how the retrospective operation of a later statement of common law interacts with the assessment of legal unreasonableness in other factual and legal settings. The reasons state the premise on which DAQ22's second contention was framed and explain why the primary judge's reliance on SZMDS did not answer it. They do not give a general test for all cases involving a decision made before a later judgment clarifies or changes the law.

Finally, the supplied text does not report what happened after remittal or provide evidence of later judicial treatment. Any conclusion about the Federal Court's eventual decision or subsequent development of the doctrine would go beyond the source available here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.