DBA16 v Minister for Home Affairs

Background 3 The applicant applied to the FCCA for an extension of time within which to bring an application seeking relief in the original jurisdiction of the FCCA under s 476 of the Migration Act. By that proposed application, the applicant sought relief directed to a decision of the Immigration Assessment Authority (IAA) made 15 September 2016 which had affirmed a decision of a delegate of the first respondent (the Minister) dated 20 July 2016 to refuse to grant the applicant a Safe Haven Enterprise Visa. The proposed application to the FCCA would have been the applicant's second application to that court seeking judicial review of the decision of the IAA. An earlier application was dismissed on 23 February 2017 in DBA16 v Minister for Immigration [2017] FCCA 320, and an appeal to this Court from that decision was dismissed by Lee J on 14 December 2017: DBA16 v Minister for Immigration [2017] FCA 1580. 4 In order to explain how the present circumstances arise, I set out below by way of background some findings and observations of Lee J in the applicant's appeal to this Court at [2017] FCA 1580, [2] to [8] - [2] The IAA had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Safe Haven Enterprise Visa (subclass 790) (Visa). The evidence read on the appeal establishes that the appellant was, to use the words in s 5AA(1) of the Migration Act 1958 (Cth) (Act), an "unauthorised maritime arrival", in that he entered Australia at an excised offshore place. That happened because the vessel upon which the appellant was travelling to Australia was intercepted by a Royal Australian Navy ship on 7 April 2013, four nautical miles north of the Ashmore Islands. Due to problems with the vessel's engine, the naval ship embarked all those on the distressed vessel and the next morning arrived at the Ashmore Islands within the Territory of Ashmore and Cartier Islands. The appellant was then transferred to an Australian Customs vessel and conveyed to Darwin, disembarking on 14 April 2013. [3] The significance of the appellant being an unauthorised maritime arrival is that persons who entered Australia at an excised offshore place when the appellant arrived are subject to the fast track review process (FTRP) introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which relevantly inserted Part 7AA into the Act. The statutory regime introduced by Part 7AA is summarised in some detail in two recent Full Court decisions: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[26] per Griffiths J and BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [64]-[75] per Charlesworth J. [4] It suffices for present purposes to say that, as the simplified outline in s 473BA of the Act states, Part 7AA: provides a limited form of review of certain decisions…to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. [5] The FTRP scheme was intended to introduce "rapid", "efficient" and "streamlined" processing of the relevant caseload (which, according to the Minister's second reading speech, was approximately 30,000 persons). Three important aspects of the scheme (which are said to facilitate the streamlined nature of the process) deserve mention. [6] First, in accordance with s 473CA of the Act, the Minister must refer a "fast track reviewable decision" to the IAA as soon as reasonably practicable after a decision is made under s 65 of the Act. Accordingly, unlike Part 7 of the Act, the person whose visa application is rejected need not apply for review (hence, Part 7AA uses the term "referred applicant"). [7] Secondly, the "core function" of the IAA under Part 7AA is to "arrive at the correct or preferable decision in the case before it according to the material before it": see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 342 [10] per French CJ. Having said this, the scheme does not give to the IAA the power to set a decision aside and substitute a new decision; it may, however, remit the decision for reconsideration in accordance with such directions or recommendations as are permitted by regulation. [8] Thirdly, in comparison to the position under Part 7 of the Act, the FTRP scheme limits referred applicants' rights under Part 7AA of the Act to give (and the IAA's duties to receive and consider) material in support of their claims. This limitation has occurred by the legislature defining exclusively the referred applicants' rights: see s 473DA(1), which provides that "[Division 3], together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [IAA]." 5 On 6 August 2018, in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178 (DBB16), the Full Court declared that, the purported appointment of the port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 (Purported Appointment) is invalid, and that the applicant in that case was not an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act. The reasons for the Full Court's decision were published on 19 October 2018. 6 The applicant claimed that the circumstances of his case are materially indistinguishable from those in DBB16, and that the consequences of the Full Court's declaration of invalidity of the Purported Appointment is that the IAA had no jurisdiction to determine the review of the Minister's decision under Part 7AA of the Migration Act in the manner described by Lee J in the passages set out under paragraph [4] above, and that the applicant is instead entitled to a review by the Administrative Appeals Tribunal under Part 7A of the Act. At the hearing before the FCCA, counsel for the Minister accepted that the FCCA was bound by the Full Court's decision in DBB16. 7 In the FCCA the applicant sought an urgent hearing of the application for an extension of time, and the application for final relief, on the ground that a Bill before the Commonwealth Parliament titled Migration (Validation of Port Appointment) Bill 2018 would affect retrospectively the applicant's claim that the purported appointment of a proclaimed port is invalid. The application was initially mentioned before the FCCA on 12 September 2018, and a hearing then took place on the following day, 13 September 2018. The FCCA reserved its decision, and on 27 September 2018 dismissed the application for an extension of time: [2018] FCA 2761. 8 Counsel for the applicant submitted to this Court that the hearing in the FCCA proceeded on the basis that both the extension of time application and the substantive application were heard together, and counsel for the Minister accepted that the case was conducted before the FCCA on the basis that if the Court granted an extension of time, it would then make final orders. Those submissions were consistent with passages in the transcript of the hearing before the FCCA (T 20-21), which indicate that at the conclusion of the hearing the applicant provided draft final orders to the judge. However, the judge's perception may have been different, because at [95] of the reasons the judge assessed the prospects of the applicant's claim on the basis that it was "without full argument". 9 Section 477 of the Migration Act provides for a 35 day time limit within which to bring an application to the FCCA for a remedy in its original jurisdiction under s 476 of the Act in relation to a "migration decision". However, the 35 day time limit may be extended by order of the FCCA. Sub-sections 477(1) and (2) of the Migration Act provide - 477 (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 administration of justice to make the order. 10 The applicant's application to the FCCA identified the following grounds for an extension of time under s 477(2) of the Migration Act - 1. On 20 July 2016, a delegate of the Minister for Home Affairs refused the applicant's application for a Safe Haven Enterprise Visa. 2. On 15 September 2016, the Immigration Assessment Authority affirmed the decision not to grant the applicant a Safe Haven Enterprise Visa. 3. On 19 September 2016, the applicant applied to the Federal Circuit Court for judicial review of the decision of the Immigration Assessment Authority. 4. On 23 February 2017, the Federal Circuit Court dismissed the applicant's application for judicial review of the decision of the Immigration Assessment Authority. 5. On 14 December 2017, the Federal Court of Australia dismissed the applicant's appeal from the decision of the Federal Circuit Court. 6. The decision made by the second respondent on 15 September 2016 is affected by jurisdictional error because: (a) the purported appointment of a port as a proclaimed port, in respect of an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth of Australia Gazette no. GN 3 on 23 January 2002, is invalid; (b) the applicant entered Australia by sea at Ashmore Reef on or around 14 April 2013; (c) the applicant therefore is not and has never been an "unauthorised maritime arrival" for the purposes of the Act; (d) the applicant therefore is not and has never been a "fast track applicant" for the purposes of the Act; (e) the decision of the final respondent's delegate dated 20 July 2016 therefore is not and has never been a "fast track reviewable decision" for the purposes of the Act; (f) accordingly, Part 7AA of the Act did not apply to the delegate's decision; and (g) the second respondent had no jurisdiction, power or authority to conduct a review of the delegate's decision. 7. The applicant was not represented in either his Federal Circuit Court or Federal Court proceedings. 8. The applicant was unaware, during the course of his Federal Circuit Court and Federal Court proceedings, that the ground of appeal set out below as available to him. 11 The FCCA dismissed the applicant's application for an extension of time primarily on the ground that the applicant's claim would be met with a successful claim of Anshun estoppel, and was therefore bound to fail. The FCCA concluded at [97] of its reasons that it was not in the interests of justice to extend time for the applicant to file a second application.

The decision of the Federal Circuit Court of Australia 12 The FCCA considered that the merits of the substantive application were relevant to determining whether it was necessary in the administration of justice to make an order extending time. In relation to the approach to be taken to the assessment of merits, the FCCA set out at [41] and [42] the following passages from the reasons of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [63] and [66] - [63] The correct approach may be expressed by the use of language such as whether a ground is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success" (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). 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. … [66] … In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge can be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court. 13 Earlier, at [61] and [62], Mortimer J addressed the vice of determining an extension of time application after undertaking an exhaustive examination of the merits of the proposed claim - [61] … Counsel submitted it appeared the Federal Circuit Court had decided the extension of time as if the case was fully argued, and this was an incorrect approach, especially given there is no right of appeal from the refusal to extend time: see s 476A(3)(a) of the Migration Act. [62] This was not a matter identified in the amended application as a ground of review in relation to the Federal Circuit Court decision. It was not a matter on which the first respondent made any detailed submissions. It cannot be considered as a basis for granting any relief in this proceeding. However, lest these reasons be taken as an endorsement of the approach taken by the Federal Circuit Court, it is appropriate that I express my disquiet about the way in which the Federal Circuit Court dealt with the factor of the merits of the applicant's proposed grounds of review. 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) 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). 14 On appeal, the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] expressly endorsed Mortimer J's disquiet about the approach of the FCCA in that case, and endorsed what her Honour said about the proper disposition of applications for extensions of time. 15 Whether the FCCA in this case took the approach referred to by Mortimer J in MZABP at [63] and assessed the merits of the substantive application at an impressionistic level is an issue that is in dispute in this proceeding. Mortimer J went on to say at 599 [67]-[69] - [67] In the present case, the Federal Circuit Court's reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review and which I have set out at [15]-[17] above, and because of the extent of the consideration given to each ground. [68] Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court's jurisdiction is another and difficult question. In Kirk (at [74]-[75]), 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, her Honour 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 reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred. [69] In a proceeding where this matter was not a ground on which relief was sought and was not fully addressed in submissions, it is not appropriate to determine the issue. In any event, I am not persuaded her Honour's reasons, fairly read, so clearly take the kind of erroneous approach to which I have referred. 16 In this case, commencing at [46] of the reasons, the FCCA addressed the Minister's claim that an Anshun estoppel precluded the applicant's claim for relief. The Court cited a number of authorities that have referred to the principles applicable to Anshun estoppel, including: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; and Timbercorp Finance Pty Ltd (in Liq) v Collins (2016) 259 CLR 212. The Court accepted that Anshun principles may extend to judicial review proceedings: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221; Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375. 17 The FCCA recorded at [55] the submission of counsel for the Minister that in light of the public interest in the promotion of the efficient use of court resources and time, the finality of litigation, and the preservation of the orderly administration of justice, the failure of the applicant not to have earlier sought the relief he now sought should be characterised as unreasonable. 18 At [56] the FCCA stated that the application of the Anshun principle is discretionary, and at [57] recorded a submission on behalf of the Minister that the discretion exists in only a limited sense. It is desirable to say something about that submission. 19 In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Gibbs CJ, Mason and Aickin JJ applied the following principle expressed by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 at p 115 [67 ER 313 at p 319] - [W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. (emphasis added) 20 Gibbs CJ, Mason and Aickin JJ stated the principles as follows (at p 602) - … there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. 21 In Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245 at 247 [4], Allsop P emphasised that - The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it. 22 The assessment of whether the failure to raise a point in an earlier proceeding was unreasonable involves a value judgment that is to be made referable to the proper conduct of modern litigation: Champerslife at 247 [3]; Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 at 194 [71]. 23 The reference in Henderson v Henderson in the passage set out under paragraph [19] above to "except under special circumstances" has sometimes been said to support the existence of a discretion not to apply an Anshun estoppel: Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10 at 17-18 [38]. In Port of Melbourne Authority v Anshun (No 2) [1981] VR 81 at 89, the Full Court of the Supreme Court of Victoria drew a distinction between a general discretion (which the primary judge had purported to exercise), and a discretion in a limited sense, which the Court (Young CJ, Anderson and Brooking JJ) explained as follows - [W]e accept the submission of Dr. Pannam that the learned Judge, having once determined that the matter of the agreement properly belonged to the subject of the earlier litigation and might have been brought forward at the time of that litigation by the Authority, exercising reasonable diligence, had a discretion only in the sense that, although negligence, inadvertence or even accident would not suffice to excuse, he was required to consider whether special circumstances existed in the sense that justice required the non-application of the general rule (Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd., [1975] AC 581, at p 590). 24 It appears from the above passage that the Full Court considered that there is a discretion in the sense that a court must make a value judgment by reference to a general consideration, that is, whether there are special circumstances such that a claim should be permitted (see Norbis v Norbis (1986) 161 CLR 513 at 518). 25 In relation to the power to stay a proceeding as an abuse of process, in R v Carroll (2002) 213 CLR 635, Gaudron and Gummow JJ addressed the issue whether there was a discretion, and stated at 657 [73] - The power to stay is said to be discretionary. In this context, the word ''discretionary'' indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing [House v R (1936) 55 CLR 499 at 505]. 26 The question whether special circumstances exist such as to hold that an Anshun estoppel should not apply has been considered in several Full Court decisions: Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287; BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65 (which involved the same applicant as S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs); Egglishaw v Australian Crime Commission (2007) 164 FCR 224; Australian Education Union v Lawler (2008) 169 FCR 327; and Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174. In BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [28]-[30] the Full Court addressed the consideration of special circumstances in the following terms - [28] In … Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287, a Full Court of this Court at 296, referred to the passage in the opinion of the Privy Council in Yat Tung [[1975] AC 581at 590] as demonstrating: "… that their Lordships thought that "special circumstances" comprehended situations where, for broad discretionary considerations relating to notions of justice, Henderson v Henderson should not be applied with full rigour." [29] Again, in our view, their Honours cannot be taken to have decided the question whether a conclusion about the existence of "special circumstances" amounted to the exercise of a discretion in the House v R sense. Their Honours assessed for themselves whether there were special circumstances and did not seem to be troubled by any notion of restraint in reviewing the primary judge's decision on the Anshun point, although they agreed with that decision. [30] In our opinion, the better approach is, with respect, that taken by the Full Court of the Supreme Court of Victoria in Anshun (No 2) i.e. that once a court has found that the Anshun principle applies, then the only "discretion" which the court may exercise not to apply the Anshun principle is if it finds that "special circumstances" exist. That is essentially a finding of fact to which the rule in House v R has no application. 27 More recently, in Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174 the Full Court (Allsop CJ, Katzmann and Gleeson JJ), after holding that the respondent had not acted unreasonably, stated by way of obiter at 200 [112] - The expression "special circumstances" comes from Henderson v Henderson. The approach of the High Court differs in this respect from the approach taken in the United Kingdom. The Australian approach is to focus at the outset on all the relevant circumstances or, as Wilcox J put it in Ling v Commonwealth [(1996) 68 FCR 180 at 184], "all aspects of the case". If it were necessary to decide whether the matters raised in the notice of contention amounted to special circumstances so as to defeat the estoppel, then, for the above reasons, we would hold that they were. 28 Returning to the reasons of the FCCA in this case, on the question of the merits of the Anshun estoppel, the Court concluded as follows - 86. The Invalid Proclamation of Port Ground is a fundamental challenge to the IAA's authority to make the IAA Decision. In my opinion the Invalid Proclamation of Port Ground was so connected with the subject matter of the First Application as to have made it unreasonable in the context of the First Application for the claim not to have been made or the issue not to have been raised in the First Application: Tomlinson v Ramsey Food Processing Pty Ltd [(2015) 256 CLR 507, 518 (French CJ, Kiefel, Keane and Nettle JJ)]. The Invalid Proclamation of Port Ground was so relevant to the subject matter of the First Application it was unreasonable not to rely upon it: Timbercorp Finance Pty Ltd (In Liq) v Collins & Anor [(2016) 259 CLR 212, 236 (French CJ, Kiefel, Keane and Nettle JJ)]. 87. The Applicant is bound by the conduct of his case in the First Application Metwally v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 88. I find that it was unreasonable of the Applicant not to have included the Invalid Proclamation of Port Ground in the First Application. My reasons for doing are in accordance with the passage from the judgment of Flick J in Kong v Minister for Immigration and Citizenship [(2011) 199 FCR 375] and set out in paragraph 53 above. 89. In this case the Applicant has agitated the First Application in the Federal Circuit Court and also before the Federal Court. In addition to the matters referred to by Flick J in Kong v Minister for Immigration and Citizenship, my reasons also include the need to preserve the orderly administration of justice and the need to sustain public confidence in curial dispositions: Stuart v Sanderson [(2000) 100 FCR 150, 156]. 90. The application of the Anshun principle is discretionary. The Court has a discretion if it determines that special circumstances exist to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: Wong v Minister for Immigration and Multicultural Affairs (2004) 146 FCR 10, [38]; BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221, [24]. 91. I have considered whether special circumstances exist that would … permit the Applicant to raise the Invalid Proclamation of Port Ground in the Substantive Application, notwithstanding that I have found that it was unreasonable to have not done so in the First Application. 92. On the evidence the only reason that the Applicant did not pursue the Invalid Proclamation of Port Ground, was because the Applicant was not aware of the availability of the ground. I reject this as a special or exceptional circumstance on same basis of the reasoning as the Federal Court in Applicant A210/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 579 (paragraphs 60-61 above) and Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198, 205 (paragraphs 62-63 above). 93. I have considered whether the fact that the Applicant was previously self-represented was circumstance that the Court should take into account as a special or exceptional circumstance. I have taken into account the comments of Flick J in Kong v Minister for Immigration and Citizenship (2011) 199 FCR 375, 390 (paragraph 66 above) and Ferguson J (as she then was) in Sahin v National Australia Bank Ltd [2012] VSCA 317, [98] (Warren CJ and Neave JA agreeing) (paragraph 67 above). Regrettably the position of the Applicant in this case applies to many applicants who come before the courts in migration cases. I find that in this case, being-self represented would be an insufficient reason alone to successfully raise against the application of the Minister's claim of Anshun estoppel. The Applicant would inevitably be met with Anshun estoppel. 94. I have concluded therefore that there are no special circumstances or exceptional circumstances that would … permit the Applicant to raise the Invalid Proclamation of Port Ground in the Substantive Application. The Invalid Proclamation of Port Ground in the Substantive Application would be met with a successful Anshun estoppel. 95. In my opinion on an impressionistic consideration and without full argument, I find the Invalid Proclamation of Port Ground hopeless and bound to fail on the basis that it will inevitably be met with a successful claim for Anshun estoppel by the Minister. I therefore find the merits of the Substantive Application as having no reasonable prospect of success and bound to fail.

Conclusion 96. For the forgoing reasons, including the Applicant's substantial and unreasonable delay, I find that due to the Minister's claim of Anshun estoppel, the Substantive Application has no reasonable prospect of success and is bound to fail. 97. I am therefore satisfied that pursuant to s.477(2) of the Migration Act it is not in the interests of the administration of justice to extend the time for the Applicant to file the Second Application.

The applicant's claim in this Court 29 The grounds on which the applicant claims relief in this Court are alleged in the statement of claim as follows - 1. The decision of the Federal Circuit Court is affected by jurisdictional error in that her Honour Judge Kirton failed to apply the correct test in considering the application under s 477 of the Migration Act 1958 (Cth). Particulars a. At FCC Reasons [84]-[95], it is apparent that her Honour made a concluded determination that the applicant's case would be precluded by reason of Anshun estoppel, and thereby found that any application to the FCC would not enjoy sufficient prospects of success to justify an extension of time. b. This was an erroneous test because the correct question was whether the applicant's case enjoyed sufficient prospects of success of overcoming any Anshun estoppel and otherwise enjoyed sufficient prospects of success to justify an extension of time (and not whether the applicant would fail on the basis of Anshun estoppel if the extension of time were granted). c. This affected the outcome as on the correct test, the FCC may have granted an extension of time and thereby enabled the applicant to appeal to this Court, whereas on the test applied, the applicant cannot appeal to this Court.

The parties' submissions 30 In support of the application, the applicant submitted that although the FCCA at [41], [45] and [84] of the reasons expressly referred to the decision of Mortimer J in MZABP, and stated at [95] that it was dealing with merits on an impressionistic basis, those statements were contradicted by the otherwise clear findings, made on a final basis, that the applicant would be estopped from maintaining the proceeding and therefore any proceeding upon the grant of an extension of time would be "hopeless". In particular, the applicant pointed to the following phrases in paragraphs [91]-[95] which I have set out in full under paragraph [28] above - (a) at [91]: "I have found that it was unreasonable not to have [raised the Ashmore point] in the First Application"; (b) at [92]: "I reject this [the applicant's lack of awareness of the Ashmore point] as a special or exceptional circumstance"; (c) at [93]: "I find that in this case, being self-represented would be an insufficient reason alone to be successfully raise (sic) against the application to the Minister's claim of Anshun estoppel)"; (d) at [94]: "I have concluded therefore that there are no special circumstances or exceptional circumstances"; and (e) at [95]: "I find the [Ashmore point] hopeless and bound to fail on the basis that it will inevitably be met with a successful claim for Anshun estoppel by the Minister." 31 The applicant submitted that these statements are indicative of a concluded view about the application of an Anshun estoppel, and that they necessarily required a resolution of the applicant's arguments opposing Anshun estoppel, on a final basis. The applicant submitted that this reveals that the FCCA applied considerations that are "not a function appropriate to a discretion such as that contained in s 477(2)", and that the FCCA applied the wrong test, which is jurisdictional error by an inferior court. The applicant submitted that it was only upon having made this error that the FCCA was able to say that the proceeding was "hopeless"; that could only be known once the Court resolved the Anshun estoppel debate on a final basis. The applicant submitted that not only is this an excess of jurisdiction, it also deprived the Federal Court of its appellate role in judging the Anshun estoppel debate on its merits, and that the legal consequences of the Court's decision in depriving the applicant of an appeal to this Court appear not to have been taken into account. 32 The applicant relied on the decision of Charlesworth J in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139, and in particular at [60] and [78]. In AZAFX, the FCCA heard full argument on 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. At [28] Charlesworth J held - 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. 33 Then, at [42] Charlesworth J stated - 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. 34 Paragraphs [60] and [78] of AZAFX, on which the applicant relied, concern whether the error of law that had been identified was jurisdictional. Charlesworth J framed the issue at [60] - [D]id 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. 35 Later, at [78] Charlesworth J stated - [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. 36 However, in relation to paragraph [78] of the reasons in AZAFX, counsel for the applicant drew the Court's attention to the decision of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 where at [65] Mortimer J stated - [I]t is not necessary to express any concluded view on the approach taken by Charlesworth J in AZAFX at [78], on which the applicant relied. However I note, with respect to her Honour, that the approach her Honour proposed is one that is generally used to express the applicable principle in reviewing an exercise of administrative power where the power is conditioned by the formation of a state of satisfaction. Indeed, that was the circumstance in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; 123 FCR 298, the decision on which her Honour relied for the proposition she set out. Whether that same approach should be adopted in relation to a statute, such as a s 477(2), which confers a discretionary judicial power in terms which require the Court to be satisfied of a matter, is a question that should be left for another day. 37 Counsel for the applicant also drew the Court's attention to DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 in which the principles relating to establishing jurisdictional error were considered in the context of a case similar to the present case involving a decision of the FCCA to refuse an application under s 477(2) of the Migration Act for an extension of time. At [62] the Full Court recorded that the Minister in that case accepted that, in the context of an application for extension of time, the FCCA would fall into jurisdictional error if it approached the prospects of success as if it were making a final decision. However, the Full Court stated expressly that it was unnecessary to decide whether the Minister's concession was rightly made. 38 Counsel for the applicant submitted that it was not open to the FCCA to find at an impressionistic level that the applicant's case was bound to fail. Counsel for the applicant submitted that such a conclusion was not open to the Court other than on a final basis. 39 In response, counsel for the Minister submitted that correctly evaluated, in dismissing the applicant's s 477(2) application, the FCCA did not reach a concluded view about the application of Anshun estoppel to the applicant's foreshadowed application for judicial review. Rather, it was clear that the Federal Circuit Court, "without the detailed argument and development which attends a full hearing", assessed the merits of the foreshadowed application for judicial review at a "reasonably impressionistic level" and, without purporting to decide the Anshun issue on a final basis, determined that the foreshadowed application had no reasonable prospect of success and was bound to fail. The Minister submitted that the decisive tone of the FCCA's reasons was reflective of the Court's view of the strength of the argument that Anshun would preclude the applicant from obtaining relief, were he to be granted an extension of time. It ought not to be taken to indicate the FCCA was, in reality, finally determining the issue. 40 Further, counsel for the Minister submitted that this case did not engage the dicta of Mortimer J in MZAP at [67] which I have set out at paragraph [13] above because the FCCA did not adopt the approach that it would only be in the interests of the administration of justice to extend time if the Court was persuaded that the ground of review would succeed. Rather, the applicant's complaint was that the FCCA assessed the merits of the proceeding at something more than an impressionistic level. The Minister submitted that if the FCCA had reasoned in that way, it would not constitute jurisdictional error because in that circumstance there would be no modification of the statutory test. In particular, while approaching the examination of the merits of the proposed claim at anything more than an impressionistic level might be the subject of disapproval, it did not amount to an excess of power such as to sustain a finding of jurisdictional error by the FCCA. 41 In relation to the applicant's reliance on the decision of Charlesworth J in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139, counsel for the Minister submitted that the decision was distinguishable and, in any event, wrong on the ground that the observations at [78] concerning taking into account irrelevant or relevant considerations drew on authorities concerning administrative decision-makers, relying upon the comments of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [65], which are referred to at paragraph [36] above.

Consideration 42 The principles relating to jurisdictional error have a different application to decisions of inferior courts than they do to administrative decisions. That is because the jurisdiction of an inferior court is ordinarily broader than that of administrative decision-makers. In a frequently cited passage, the High Court in Craig v South Australia (1995) 184 CLR 163 at 179-180 stated the position in relation to inferior courts as follows - [T]he 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. 43 Earlier, at p 177-178 the Court had said - Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. (Footnote omitted) 44 The distinction between courts and tribunals identified in Craig for the purposes of the application of principles relating to jurisdictional error was referred to with approval in the joint reasons in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 572-573 [67]-[70]. 45 In this case, the issues that arise from the submissions made by the parties are as follows - (a) did the FCCA consider the merits of the proposed claim on a final basis, rather than at an impressionistic level; (b) what was the nature of the function that the FCCA was exercising; and (c) did the FCCA misconceive the nature of that function such as to fall into jurisdictional error? 46 The power that the applicant sought to have the FCCA exercise was the power under s 477(2) of the Migration Act to extend time. The text of that provision requires the FCCA to be satisfied that it is necessary in the interests of the administration of justice to make the order extending time. Guidance in relation to the exercise by the FCCA of the discretion in s 477(2) of the Migration Act to enlarge time has been given in a number of decisions, including in particular the passages from the decision of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 referred to at paragraphs [12] and [13] above, which were endorsed on appeal by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]. 47 In relation to appellate guidance, in Norbis v Norbis (1986) 161 CLR 513 Brennan J stated at p 536 - The authority of an appellate court to give guidance is not to be doubted. It is inevitable that the wisdom gained in continually supervising the exercise of a statutory discretion will find expression in judicial guidelines. That is not to invest an appellate court with legislative power but rather to acknowledge that, in the way of the common law, a principle which can be seen to be common to a particular class of case will ultimately find judicial expression. The orderly administration of justice requires that decisions should be consistent one with another and decision-making should not be open to the reproach that it is adventitious. 48 Brennan J went on to say at p 537 that - It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the Parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise: Gardner v Jay (1885) 29 Ch D 50 at 58-59; followed in Huntley v Alexander (1922) 30 CLR 566. … 49 And later at p 537, Brennan J stated - There may well be situations in which an appellate court will be justified in setting aside a discretionary order if the primary judge, without sufficient grounds, has failed to apply a guideline in a particular case. Where there is nothing to mark the instant case as different from the generality of cases, the failure will suggest that the discretion has not been soundly exercised. The distinction between such a guideline and a binding rule of law, though essential, may be thin in practice. But the distinction must be maintained and a failure to apply the guideline cannot be treated as an error of law: a failure to apply the guideline is no more than a factor which warrants a close scrutiny of the particular exercise of the discretion. 50 Mason and Deane JJ in Norbis v Norbis stated at p 519 - It has sometimes been said by judges of high authority that a broad discretion left largely unfettered by Parliament cannot be fettered by the judicial enunciation of guidance in the form of binding rules governing the manner in which the discretion is to be exercised: see, e.g. Mallet (1984) 156 CLR at 621-622; Evans v Bartlam [1937] AC 473 at 488-489; and Gardner v Jay (1885) 29 Ch D 50 at 58. However, it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise. … The proposition referred to at the beginning of this paragraph should not be seen as inhibiting an appellate court from giving guidance, which falls short of constituting a binding rule, as to the manner in which the discretion should be exercised: but cf. Reg. v. Bicanin (1976) 15 SASR 20 at 25. And despite the generality of some of the statements to which we have referred, there may well be situations in which an appellate court will be justified in giving such guidance the force of a binding rule by treating a failure to observe it as constituting grounds for a finding that the discretion has miscarried. 51 It was not in issue that the evaluation of the merits of the proposed application to the FCCA under s 476 of the Migration Act was relevant to the question whether time should be extended under s 477(2) of the Act. The FCCA formed the view that the merits of the proposed application were hopeless, because the claim of Anshun estoppel would inevitably succeed. Consistently with the nature of the application to this Court as being concerned with the identification of jurisdictional error, this finding was challenged on the basis that such a view could not be formed at an "impressionistic level" (MZABP at [62]), and could only have been formed by the FCCA upon considering the Anshun defence on a final basis, which was an impermissible approach for the purposes of an application under s 477(2) of the Migration Act. 52 Turning to the reasons of the FCCA, the judge stated at [45] that consideration of the merits of the Anshun defence was to proceed as follows - 45. It is therefore necessary in the circumstances of this case to consider whether an Anshun estoppel precludes the Applicant from seeking the relief sought in the Substantive Application. In light of the approach to be taken in MZABP, this consideration is to be undertaken in the context of the Extension of Time Application when considering the merits of the Substantive Application. 53 At paragraph [84], the FCCA judge stated - 84. In turning to consider the merits of the Substantive Application I have taken into account the principles adopted by Mortimer J in MZABP and approved by the Full Court in MZABP v Minister for Immigration and Border Protection as set out above. 54 However, notwithstanding the judge's references to Mortimer J's guidance in MZABP, the judge's findings in relation to the elements of the claimed Anshun estoppel are not expressed in the language of whether the applicant's response to the claimed Anshun defence was "arguable", or whether in relation to the Anshun claim the applicant enjoyed any reasonable prospects of success. It is to be remembered that the two limbs of the Anshun defence which the judge considered, namely whether in the circumstances it was unreasonable for the applicant not to have raised the invalidity of the Purported Appointment in his first proceeding, and if it was unreasonable, whether there were special circumstances, involved questions of fact, degree and value judgment. 55 In Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at 428 [130] Hayne J stated - [B]ecause the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. 56 The steps in the FCCA judge's path of reasoning relating to the evaluation of the Anshun claim are found at paragraphs [86] to [94] of the FCCA's reasons, which are set out under paragraph [28] above. That path of reasoning includes the findings referred to in the summary of the applicant's submissions set out under paragraph [30] above, together with the following - (a) at paragraph [86] the judge stated - In my opinion the Invalid Proclamation of Port Ground was so connected with the subject matter of the First Application as to have made it unreasonable in the context of the First Application for the claim not to have been made or the issue not to have been raised in the First Application: Tomlinson v Ramsey Food Processing Pty Ltd. (b) and, at paragraph [88] the judge stated - I find that it was unreasonable of the Applicant not to have included the Invalid Proclamation of Port Ground in the First Application. 57 The findings at [86] to [94] do not, in my respectful view, appear to be an appraisal at an "impressionistic level" of the merits of the claimed Anshun defence. Rather, the judge's reasons suggest that the Anshun claim was upheld by the judge, including by finding that the applicant's conduct in not relying on the invalidity of the Purported Appointment in the first proceeding was not reasonable, and by finding that there were no special circumstances that might make it permissible for the applicant to bring a second proceeding relying on the invalidity of the Purported Appointment. It was upon the judge finding that the Anshun estoppel was sustained that the judge then held at [95] that "on an impressionistic consideration and without full argument, I find the Invalid Proclamation of Port Ground hopeless and bound to fail on the basis that it will inevitably be met with a successful claim for Anshun estoppel by the Minister." For these reasons, I respectfully consider that the FCCA's stated path of reasoning discloses that the guidance of Mortimer J in MZABP, which was endorsed by the Full Court, was not followed because the claimed Anshun defence was not considered merely at an "impressionistic level". However, whether this amounts to jurisdictional error is an entirely different matter. In MZABP, Mortimer J adverted to a similar question at 599 [68], but the question did not arise for decision in that case. 58 I accept the submissions of the Minister that AZAFX v Federal Circuit Court of Australia [2016] FCA 1139, which was relied on by the applicant and referred to at [32] to [35] above, is distinguishable. In AZAFX, Charlesworth J held at [28] and [37] that there was no statement in the FCCA reasons to the effect that the proposed grounds for judicial review were plainly hopeless or bound to fail. This led Charlesworth J to frame the issue (at [60]) as - [D]id 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? 59 In the present case, the FCCA judge's reasons at [95] are explicit on this topic: the primary judge expressed the view that the proposed claim was hopeless and bound to fail, and that it had no reasonable prospect of success. The issue in the terms framed in AZAFX therefore does not arise. 60 In this case, I am not persuaded that there was jurisdictional error. The FCCA judge had regard to the conditions specified in s 477(2) of the Migration Act that had to be engaged before an order extending time could be made. In relation to whether the judge was satisfied that it was necessary in the interests of the administration of justice to extend time, the judge had regard to the merits of the proposed claim, and formed the view that the merits were hopeless. The reasons supporting that conclusion included the judge's finding that the Anshun estoppel defence would inevitably succeed. The judge's path of reasoning leading to that finding suggests an approach that was not in accordance with the judicial guidance given in MZABP v Minister for Immigration (2015) 242 FCR 585 at [62] and [63] as to the "correct approach". However, relying on the statements of Brennan J and of Mason and Deane JJ in Norbis v Norbis in the passages set out under paragraphs [47] to [50] above, I consider that the elements of the judicial guidance in MZABP, which were endorsed by the Full Court, do not constitute rules of law. The language used by Mortimer J in MZABP at [62]-[66] is the language of guidance. The failure to follow the guidance in MZABP in this case in evaluating the Anshun defence may be characterised as not appropriate (MZABP at [62]), or not to be encouraged (SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [102]), but in my view the FCCA did not fall into jurisdictional error by misapprehending the nature of the power in s 477(2) of the Migration Act, or in any other way. The FCCA judge correctly identified and then addressed the statutory conditions for the exercise of the power to extend time, including whether it was in the interests of the administration of justice to do so. On that issue, the judge was not persuaded that it was in the interests of the administration of justice to extend time, because the judge had formed the view that the applicant's claim was bound to fail. For these reasons, it is my view that no jurisdiction error arises.

Conclusions 61 The application will be dismissed. I shall hear the parties on the question of costs. 62 I record the Court's appreciation of the substantial assistance that it has received from the solicitors and counsel for the applicant, who acted on a pro bono basis, and who presented the applicant's case economically and skilfully. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.