DHX17 v Minister for Home Affairs

1. The application filed on 21 August 2018 is dismissed.
2. The applicants pay the costs of the respondents of and incidental to the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 These proceedings are concerned with an application under s 39B of the Judiciary Act 1903 (Cth) in which the applicants, DHX17 and his younger brother, DHY17, seek the grant of the constitutional writs of mandamus and certiorari directed to the Federal Circuit Court of Australia so as to quash the orders of that Court made on 28 February 2018 dismissing an application by both applicants for an extension of time for bringing the relevant proceedings, and dismissing both an application filed on 24 July 2017 and an amended application filed on 25 January 2018 by which both applicants sought the issue of constitutional writs concerning a decision of the Immigration Assessment Authority (the "IAA") made under the provisions of the Migration Act 1958 (Cth) (the "Act" or the "Migration Act"): DHX17 & Anor v Minister for Immigration and Anor [2018] FCCA 819 (the "primary judge" or "PJ"). 2 On 6 April 2016, each applicant applied to the Minister for the grant of a Safe Haven Enterprise Visa (a "Safe Haven visa"). That application was considered by the Minister's delegate and the application was refused on 15 November 2016. The matter was referred to the IAA on 21 November 2016. On 6 February 2017, the IAA affirmed the delegate's decision. On 24 July 2017, each applicant filed, in the Federal Circuit Court, an application in the exercise of that Court's original jurisdiction under s 476 of the Act, for review of the IAA's decision. 3 Section 477 of the Act at the material time was, relevantly, in these terms: 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in the exercise of the Court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 4 As the decision of the IAA was made on 6 February 2017, the time limited for making an application under s 477(1) expired on either 13 March 2017 or 14 March 2017. The applicants, however, filed their application on 24 July 2017, approximately four months and three weeks out of time. 5 In that application, apart from seeking the grant of the constitutional writs in relation to the IAA decision, each applicant sought an extension of the 35 day period for making the application. The grounds relied upon for the extension of time were these: 1. It is in the interest[s] of justice to extend time. 2. The applicants have an arguable case. 3. There is reasonable explanation for the delay. 6 There are some procedural aspects of the proceeding before the Federal Circuit Court that should be mentioned. On 4 September 2017, orders were made by consent for the progress of the application. Various directions orders were made for the completion of particular steps including the filing and serving of written submissions. On 16 January 2018, the applicant (and the directions were expressed in terms of the first applicant) filed a written outline of submissions seeking leave to raise proposed new grounds of review. The hearing began on 17 January 2018 with the applicant represented by counsel alone. The hearing was adjourned part heard with orders made for the applicant to file and serve any amended application by 22 January 2018 and a further outline of submissions by 23 January 2018. The hearing was adjourned to 28 February 2018. 7 The application was heard by Judge Vasta on 28 February 2018. The applicants sought an adjournment of the hearing of the application to allow more time to enable them to raise money to pay counsel and solicitors. His Honour refused the adjournment and dismissed the application for an extension of time and dismissed the primary application for review. His Honour delivered ex tempore reasons. Those reasons were published to the parties on 5 April 2018. 8 On 23 March 2018, the applicants applied for an extension of time within which to appeal from that decision. Consequent upon an interlocutory application on 7 August 2018, the applicants discontinued that application. On 21 August 2018, the applicants filed the originating application and statement of claim seeking the relief under s 39B of the Judiciary Act. 9 By the statement of claim, the applicants say that the Federal Circuit Court fell into jurisdictional error "by misconstruing the relevant statute and hence misconceiving the Court's function". The particulars, in summary, of that contention, are these: (1) On 28 February 2018, the Federal Circuit Court gave judgment on an application for an extension of time under s 477(2) of the Act. (2) The reasons of the Court were delivered ex tempore on 28 February 2018 and published on 5 April 2018. (3) The reasons do not refer to s 477(2) of the Act being the statutory power that the Court was called upon to exercise. (4) The statutory test in s 477(2) of the Act that the Court was required to apply was whether making an order for an extension of time was "necessary in the interests of the administration of justice". (5) The reasons do not address the statutory test. 10 As to the reasons of the primary judge, the primary judge said this about the scope of the question before him on the s 477(2) application, at [3]: The matters that I need to look at in deciding whether or not I ought grant the extension really come down to three aspects: (a) what was the excuse; (b) what prejudice is there to the respondents; and (c) is there a case on the merits that ought to be argued before the court? 11 The primary judge then examined aspects of the procedural history and said this at [11]: Given the history of this matter, the fact that it is an application that is four and a half months out of time, the nature of the grounds that have already been put up to the Court, the written submissions, and just the sheer history of the matter, I am not inclined to allow the adjournment. Having made that decision, it seems to me that it is best to look to see whether the third limb of the extension of time argument has been met. 12 The reference to the third limb of the extension of time argument is a reference to the matter at of the primary judge's reasons as set out at [10] above. At [12] to [47] of the reasons, the primary judge conducts an analysis of the merits of the grounds of review sought to be advanced in the principal application. Having dealt with those matters, the primary judge then returned to the application under s 477(2) and said this at [49]: Given what I have said about the merits, it then seems to me that, in combination with my view about the merits, the lack of excuse in this matter as to why it is four and a half months out of time, and notwithstanding that there may not be significant prejudice to the respondent, I should refuse the application to allow the filing of this application out of time. I do so. 13 In the course of the reasons, the primary judge does not set out the text of s 477 of the Act. 14 The text of the Act and particularly s 477(2), is the source of the statutory discretionary power the primary judge was called upon to exercise. That provision confers a discretionary power upon the Court to extend the 35 day period as the Federal Circuit Court considers appropriate conditioned on the factors at s 477(2)(a) and (b). Those factors involve an application having been made for an order to extend time which specifies why the applicant considers it is necessary in the interests of the administration of justice to make the extension order, and the Federal Circuit Court being satisfied that it is necessary, in the interests of the administration of justice, to make the order. 15 Section 476A(3)(a) provides that despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that makes an order or refuses to make an order under s 477(2) of the Act. Nevertheless, it is clear that the Federal Court has original jurisdiction under s 39B of the Judiciary Act to hear and determine applications for judicial review, on grounds of jurisdictional error, of the Federal Circuit Court's decision to refuse an extension of time under s 477(2). There are many such authorities and they are gathered together by Thawley J in FEZ17 v Minister for Home Affairs [2018] FCA 1689 at [8]. Two Full Court decisions might usefully be mentioned: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55 at [11] (Rares, Perram and Wigney JJ); SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [15] and [50] (Robertson J; Logan and Kerr JJ agreeing). More recently, see EBT16 v Minister for Home Affairs ("EBT16") [2019] HCA 44, 13 November 2019, Gageler J at [3]. 16 The Federal Circuit Court, obviously enough, is not an administrative tribunal and its authority to decide is not that of an administrative decision-maker. Equally clearly, its "authority to decide" is the same original jurisdiction in relation to a migration decision (as defined by s 5 of the Act) as the High Court has under s 75(v) of the Constitution: s 476(1) of the Act (subject to the section). As a Court exercising the judicial power of the Commonwealth, the jurisdiction or authority to decide "matters" as contemplated by s 75(v) of the Constitution in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth is of an entirely different character to that of the jurisdiction of an administrative tribunal. The essential, but non-exhaustive, features of an "excess of authority or power" by an administrative tribunal giving rise to jurisdictional error invalidating an order or decision of that tribunal are set out in the famous (or at least well-known) passage, by the Court, in Craig v South Australia (1985) 184 CLR 163 ("Craig") at 179. See also the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], particularly as to the non-exhaustive character of the kinds of error identified in Craig at 179. 17 The exercise of the jurisdiction of which the Federal Circuit Court is seized in matters so invested by s 476 of the Act engages, as central to the authority to decide in quelling a controversy: deciding questions of fact; deciding what inferences can properly be drawn from facts found; and deciding questions of law including the scope and content of the questions of law and fact engaged by the text of the statutory provisions engaged by the particular controversy in question. A failure to identify the relevant question to be addressed demanded by the text of the statute or a failure to determine what evidence is relevant and admissible in the resolution of the controversy will engage error or "mistakes" capable of correction on appeal, in the ordinary course, assuming an appeal is available from a decision of the court in question. However, as the High Court observed in the passage from Craig at 180: "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". 18 Jurisdictional error or want or excess of jurisdiction on the part of an inferior court arises (apart from those obvious cases where an inferior court steps so plainly outside the limits of its functions or powers, such as those examples described in Craig at 177), where, for example, the court takes into account or fails to take into account "a pre-condition of the existence of any authority to make an order or decision". Also, as another example, a failure to properly construe the text of the statute or instrument governing the power the court is purporting to exercise or governing the function to be performed in the circumstances of the case, engages want or excess of jurisdiction: Craig at 178. However, herein lies a difficult question of whether the error goes to "jurisdiction" or is to be regarded as a "mistake" within jurisdiction: Craig at 180. 19 Ultimately the text, context and purpose of the statute will determine the scope and boundaries of the grant of the power or function (not the examples identified from time to time in the authorities as the High Court has made plain in the quoted passage below). Questions of construction and characterisation arise. The decision of the judicial officer then needs to be examined to determine whether, in light of the characterisation of the provisions of the statute conferring the power or governing the function to be performed, the judicial officer has stepped outside the boundaries of the grant or has simply made a mistake within the boundaries of the grant. 20 In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [71] to [73], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said this about jurisdictional error on the part of an inferior court: 71 … The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows. 72 First, the Court stated (at 177), as a general description of what is jurisdictional error by an inferior court, that 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" (emphasis added). Secondly, the Court pointed out (at 177) that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified (at 177-178) what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said (at 178) of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes; R v Gray Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union [citations omitted]. 73 As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. 21 In the context of a misconception by the Industrial Court of New South Wales of provisions of the Occupational Health and Safety Act 1983 (NSW), the plurality said this in relation to the "third kind" of example identified in Craig and the subject of the remarks at [72] in Kirk: 74. The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. 75. The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led it to making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make. 22 In this case, the primary judge dismissed the application to extend the 35 day period and then dismissed the principal application. 23 There is a debate in the authorities on the nature of the prohibition contained in s 477(1) of the Act in the absence of an extension of time under s 477(2). The question is, does the prohibition in s 477(1) operate as a limitation on the scope of the jurisdiction conferred by s 476(1) (SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260 at [45]-[47], Moore, Besanko and Buchanan JJ; BZABK v Minister for Immigration and Citizenship (2012) 205 FCR 83 at [43], Foster J) or does it operate merely as a limitation on the exercise of that jurisdiction (SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 at [18]-[20], Keane CJ, Rares and Perram JJ; SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 at [12]-[14], Jagot J; and by analogy with s 486A(1), Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [41], [42] and [52], Nettle J): EBT16, Gageler J at [5]. 24 Notwithstanding that debate, if s 477(1) operates merely as a limitation on the exercise of the authority to decide conferred by s 476(1), the Federal Circuit Court "has authority to dismiss an application to which the prohibition applies in the exercise of jurisdiction conferred by s 476(1)": EBT16, Gageler J at [6]. If, on the other hand, the prohibition in s 477(1) operates as a limitation on the scope of the jurisdiction conferred by s 476(1), the Federal Circuit Court nevertheless has authority to dismiss an application to which the prohibition applies in the exercise of its inherent jurisdiction as a Court of record by s 8(3) of the Federal Circuit Court of Australia Act 1999 (Cth) to "dismiss an application made to it for want of jurisdiction": EBT16, Gageler J at [6]; DMW v CGW (1982) 151 CLR 491 at 507. 25 If the making of the order dismissing the application under s 477(2) to extend the 35 day period did not suffer from jurisdictional error and no extension of time thus subsisted, the primary judge had jurisdiction to dismiss the principal application. 26 As to the application under s 477(2), the applicants say that the only mandatory consideration arising under s 477(2) is "whether the grant of the extension of time sought is 'in the interests of the administration of justice'": SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 ("SZUWX"), Bromwich J at [11]; Allsop CJ agreeing at [19] subject to the Chief Justice's further remarks; Flick J agreeing at [18]. The statutory language is whether the court can be "satisfied that it is necessary in the interests of the administration of justice" to make the order. 27 The applicants say that the scope of the phrase is broad and it comprehends the well-known Hunter Valley Developments factors: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J at 348-349; MZABP v Minister for Immigration and Border Protection (2015) 242 FC\R 585 ("MZABP"), Mortimer J at [41]-[43]. Those factors include: the extent of the delay; whether there is an acceptable explanation for the delay; actions taken by the applicant; prejudice to the respondent; prejudice to the applicant; public interest; the merits of the substantive application; and fairness between the applicant and other persons in a similar position. 28 The applicants say that two key principles emerge in deciding whether extending the 35 day period is necessary in the interests of the administration of justice. 29 First, although the factors to be taken into account and the weight to be attributed to particular factors is a function of the particular circumstances of each case, "more emphasis" ought to be placed on the "explanation for the delay" than on the merits of the underlying application: MZABP at [56]. The merits, they say, should be assessed at a "reasonably impressionistic level" (MZABP at [62]) without transforming the extension application into a "de facto full hearing" (MZABP at [63]). These principles are uncontroversial and they are consistent with the observations of the Full Court (Siopis, White and Perry JJ) in Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] that the Court in exercising the discretionary power "should not descend into a fuller consideration of the arguments for and against each ground" of the principal application. 30 More fundamentally, the "kind of threshold" intended by the presence of "merit" as a consideration in the exercise of the discretion under s 477(2) has been said to be a level of certainty (about the unsuccessful outcome of the principal application) borne out of the grounds on their face (and without detailed argument and development which attends a full hearing) as being "plainly hopeless": MZABP at [62]. 31 In MZABP, Mortimer J also said this at [62]: "If a judge travels beyond 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]; 111 v Krakouer (1998) 195 CLR 516 (Jackamarra) 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)" [emphasis added]. 32 Thus, descending into a fuller consideration of the arguments for and against each ground of review, in exercising the discretion conferred by s 477(2), is said to step outside the boundaries or limitations upon that which is "appropriate to the power". The observations of Mortimer J were affirmed on appeal: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 ("MZABP FC"), Tracey, Perry and Charlesworth JJ. 33 Although I respectfully agree with these observations of Mortimer J, I would also respectfully suggest that two things should also be kept in mind. First, the extent to which a primary judge takes into account the merits of the substantive application in exercising the s 477(2) discretion is not entirely confined to deciding whether, on the face of the grounds of review, the grounds are "plainly hopeless". The inquiry, once engaged, goes beyond that limitation. Second, the measure of the extent of the inquiry as to the merits on such an application is closely confined and is captured by the expressions "[the] court does not go into 'much detail on the merits' in considering whether the time … should be extended" and "[the] court needs to remind itself also that the parties do not expect to argue the merits issue as elaborately as if they were arguing the appeal itself": Jackamarra v Krakouer at [9], Brennan CJ and McHugh J. 34 Thus, at least some detail and some elaboration of the grounds may be required in the exercise of the discretion. 35 In MZABP at [63], Mortimer J recognises, correctly in my respectful view, that the "correct approach" may be expressed as examining whether the ground sought to be agitated, should an extension of time be granted, is "arguable", "reasonably arguable", "sufficiently arguable" or has "reasonable prospects of success": SZTES v Minister for Immigration and Border Protection [2015] FCA 719, Wigney J at [48] (affirmed on appeal SZTES v MIBP [2015] FCAFC 158); SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442, Foster J at [46]-[48]. 36 I agree that it is certainly not appropriate to require an applicant to, in effect, establish that his or her ground of review will succeed: MZABP at [65]. 37 The second key principle contended for by the applicants is, unsurprisingly, that the primary judge must correctly identify and apply the statutory test contained in s 477(2). The applicants say that where a primary judge fails to identify s 477(2) as the source of the power being exercised, which might be thought to suggest a lack of precision in a primary judge's understanding of the text of the provision conditioning the grant of the power being exercised, or the reasons fail to employ the language of s 477(2), an inference is open that "the primary judge was not governed by the terms of [the] section". The applicants say that there are two bases on which it can be said that the primary judge "misconstrued and thereby misconceived" the nature of the function the Court was performing (which seems to take up the observation in MZABP quoted earlier): the first is the failure to state the law conferring the power being exercised. The second is the primary judge's application of the law which is said to further reveal the "misconstruction of the statute and the misconception of the court's function". 38 As to the first, the applicants say that at no point in the reasoning process does the primary judge refer to s 477(2) as the basis of the conferral of the power being exercised and nor does the primary judge refer to the terms or text of s 477(2). The reasons, they say, "do not employ the key language of s 477(2)" or identify the question of whether the Court can reach a state of satisfaction that it is necessary, in the interests of the administration of justice, to make the extension order. Rather, the primary judge adopts, it is said, a reductionist statement of the test by saying that the "matters" that his Honour needed to look at in deciding whether to grant the extension or not "come down to" three aspects: the excuse for the delay; whether there is prejudice to the respondents; and whether there is a case on the merits that ought to be argued before the Court. 39 The applicants say that the primary judge's reference at [11] (as quoted at [11] of these reasons) to "the third limb" of the extension of time argument strongly suggests that there are, conjunctively, three (and only three) elements to be satisfied in the exercise of the power. 40 As to the particular factors identified by the primary judge, the applicants say that the use of the term "excuse" connotes "blame" or "an opportunity to lessen or mitigate the blame" whereas the question to be considered is whether there is an "explanation for the delay" rather than an excuse for it. 41 The applicants say that the primary judge's reference to whether there is a case on the merits that "ought to be argued" is not, as a matter of orthodoxy, the same question as asking whether the grounds are "arguable" or "reasonably arguable" or "sufficiently arguable" or whether the grounds have "reasonable prospects of success". The applicants say that the failure to refer to the text of s 477(2), either expressly or impliedly, and framing a three element test not recognised by the authorities, demonstrates that the primary judge misconstrued and misconceived the function his Honour was performing and the power his Honour was exercising, resulting in jurisdictional error. 42 As to the application of the test as identified by the primary judge at [3] of his Honour's reasons (quoted at [10] of these reasons), the applicants say that the elements were not applied "appropriately" in the sense that the Federal Circuit Court did not "adequately try" the matter as contemplated in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 212 at [26]. That follows, it is said, for these reasons. The relevant delay is the period from the end of the 35 day period and the filing date of the application: 14 March 2017 to 24 July 2017, a period of four months and three weeks. The reasons are said to refer to "duration" but do not examine the explanation for the delay. At [49], the primary judge refers to a "lack of excuse" and this is said to be conclusionary without exposing the underlying basis for the conclusion. It is said to fail to show the "usual and important" understanding of this element of the exercise of the discretion: BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508. Although the primary judge observed that "there may not be significant prejudice to the respondent", the applicants say that this too demonstrates "no real engagement" with this element. 43 As to the merits factor, the applicants say that rather than addressing the question at a reasonably impressionistic level or at least according to the formulation described at [32], the primary judge at [12]-[47] (that is, 36 of the 50 paragraphs of the reasons) examined the merits of the substantive application. This is said to be an extensive discussion of the merits of the substantive application significantly influencing the exercise of the discretion especially where it can be seen that there was no discussion of the prejudice element. 44 Thus, the primary judge is said to have exceeded his function and jurisdiction. The applicants say that in order to resolve the application under s 477(2), the primary judge has conducted a de facto hearing of the primary or substantive application to see whether the substantive application has merit and thus the primary judge has misconstrued the statute and the source of the power and misconceived the function to be performed in an application under s 477(2). 45 If the primary judge fell into error in the exercise of the discretion conferred under s 477(2) and the error is jurisdictional error, a further question arises (to which I will return later in these reasons) of whether the principle concerning materiality, engaged when an administrative decision-maker engages in jurisdictional error, identified at [29] in the reasons of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 ("Hossain"), applies when a court, exercising the judicial power of the Commonwealth, exceeds its jurisdiction. Their Honours say this at [28] and [29] in Hossain: 28 The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that "[d]ecision-making is a function of the real world". 29 That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statue is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. [footnotes omitted] 46 See also Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018), 264 CLR 151, Kiefel CJ, Gageler and Keane JJ at [1], [10] and [11] and Minister for Immigration v SZMTA (2019) 264 CLR 421 ("SZMTA"), Bell, Gageler and Keane JJ at [44], [45]-[50] and [72]; CNY17 v Minister for Immigration and Border Protection [2019] HCA50 ("CNY17"), 13 December 2019, Kiefel CJ and Gageler J at [15]. 47 There are some aspects of the procedural matters before the primary judge which are relevant to his Honour's consideration of the merits. Having observed at [2] that the application was filed "well over four months out of time", the primary judge made the observation about the three matters he needed to look at on the application to extend the 35 day period: PJ at [3], quoted at [10] of these reasons. The application was set down by a Registrar for a hearing on 17 January 2018. The Registrar's directions provided for the filing and serving of written submissions by 3 January 2018. On 16 January 2018, the applicant (the first applicant is the principal applicant and I will simply refer hereafter to the applicant) filed written submissions. In those submissions, the applicant sought leave to raise four proposed new grounds of review. On 17 January 2018, Ms Costello, counsel for the applicant instructed by LUAT Lawyers, made an oral application to amend the grounds of the application and sought to argue those grounds on 17 January 2018: PJ at [5]. After some exchanges with the primary judge about "shortcomings" concerning the grounds, Ms Costello sought and was granted, with some reluctance on the part of the primary judge, an adjournment of the matter to 28 February 2018, not before midday: PJ at [5]. Orders were made that an amended application be filed and served by 22 January 2018 and submissions by 23 January 2018. The amended application was filed on 25 January 2018 and served on the solicitors for the Minister on 14 February 2018. The Minister filed written submissions in response on 22 February 2018. On 28 February 2018, the applicant was represented by Mr Liam Burrow who had instructions to ask for a further adjournment: PJ at [9]. 48 The primary judge at [9] observes that Mr Burrow read into the record: … the salient points of an affidavit that was going to be filed by the applicant, which really went to the impecunious nature of the applicant's position and that he needed more time to be able to pay Counsel and his solicitors to continue with this matter. 49 The primary judge notes some matters of apparent inconsistency on the applicant's part but notes that Ms Costello had returned the brief consistent with the applicant's financial embarrassment. The circumstances confronting Mr Burrow are set out in an email from him to counsel for the Minister, Ms Graycar, dated 28 February 2018 at 10.50am in these terms: I just received a call late yesterday asking me to appear in this matter to seek an adjournment - apparently previous counsel had to withdraw. I am going through the material as quickly as possible and understand there was already a part heard day in January so am not up to speed as yet in terms of what occurred then. I think there is an issue that I need to raise about having a transcript put before the Court on the matter and I do not know whether that has been previously disclosed - though I gather it has as there is some mention of its relevance in one of your submissions. I just wanted to send a heads up letting you know - if it does proceed I have been asked to do what I can despite lack of preparation so if I misquote or incorrectly refer to the material at any time please feel very free to jump up and correct me. Regards Liam Burrow 50 The primary judge refused the request for an adjournment as quoted at [11] of these reasons. The four grounds of the amended application by which the applicants sought review of the IAA's decision were these. Grounds of application 1. The Authority did not give genuine and realistic consideration to the applicants' claims for protection 1. The Authority made new findings on the materials referred to it by the Department but did not invite the applicants to comment on its new findings. 2. The Authority made findings that the prison condition in Vietnam is harsh but not life threatening in absence of any supporting country information but did not put to the applicants for comment. 1. The decision of the second respondent (IAA) is affected by jurisdictional error in that it was unreasonable, irrational or illogical. Particulars The IAA's conclusions at [18]-[20] regarding purported inconsistencies in the first applicant's evidence about the land dispute were not supported by probative evidence; there was no logical connection between the evidence and the inferences or conclusions drawn by the IAA. 2. The IAA's decision is affected by jurisdictional error in that it failed to consider the applicant's ethnicity - Kinh - either separately or cumulatively and thereby failed to review the fast track decision and materials as it was obliged to do by s 473CC and s 473DB(1) of the Migration Act 1958 (Cth). 3. Material that was the subject of the non-disclosure certificate at CB193 was prejudicial and irrelevant, and the decision is affected by apprehended bias. Particulars The opinion of an officer of the Department of Immigration in the Applicant Integrity Form that the First Applicant had provided information that had integrity inconsistencies was irrelevant to the IAA's decision and prejudicial. 4. The IAA's decision is affected by jurisdictional error in that the IAA sent its "acknowledgement of referral" to a residential address rather than to the Playfair Lawyers. In doing so, the IAA acted unreasonably; and inconsistently with ss 473CB(d)(i) and (ii) of the Act in that it did not notify the applicant to the last address for services or business/ residential address provided by the applicant for the purposes of receiving documents. 51 At [11] of the primary judge's reasons as quoted earlier, the primary judge having refused the application for an adjournment, thought it "best" in deciding whether to "grant the extension" (PJ, [3]) to "look to see" whether there was "a case on the merits which ought to be argued before the court". The reference adopted by the primary judge at [3] to "grant the extension" must be understood by reference to the documents framing the controversy before the primary judge. The amended application under the heading "Application for extension of time" refers to "section 477 of the Migration Act 1958". The applicants' written submissions before the primary judge which were relied upon by Mr Burrow said this in relation to the extension of time: Extension of time 31. Under s.477(2) of the Migration Act, the Court may extend time if two things are satisfied. First, an application for such an order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Secondly, the Court is satisfied it is necessary in the interests of the administration of justice to make such order. 32. Here, the applicant raises grounds of review with strong merit. He has provided a reasonable explanation for delay by affidavit. There is no prejudice to the Minister in extending time for the judicial review application. It is in the interests of justice to extend time. 33. In SZRIQ v Federal Magistrates Court of Australia Foster J said: The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include: (a) Whether there has been a reasonable and adequate explanation for the applicant's delay; (b) Whether there is any prejudice to the Minister; (c) Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time. 34. On an application under s.477(2), the Court can consider no more than whether the applicant's case has some merit: Aciek v Minister for Immigration [2017] FCCA 3237 at [32]. And see Mortimer J's observations in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], that a hearing of an application for an extension of time "should not be transformed into a de facto full hearing" and "If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level 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)". 35. Time ought to be extended. 52 From [12] to [47] of the reasons, the primary judge addresses the merits of the grounds of review and at [48], the primary judge observes that his Honour is "satisfied that there has been no jurisdictional error shown in this matter" and observes that the "application would be dismissed if it were a matter that I was dealing with on the merits" [emphasis added]. 53 It is clear from the amended grounds of review and the discussion by the primary judge in his Honour's reasons that the grounds were at least "reasonably arguable" or "sufficiently arguable" once examined not on the footing of a fully developed merits analysis but simply on the footing of whether, on the hearing of the s 477(2) application, there were grounds advanced which could properly be described as falling within either of those two phrases. It will be recalled from the passages quoted at [42] of these reasons that the applicant contended that the grounds of review raised "strong merit". 54 The primary judge ought not to have approached the merits factor, in exercising the discretion under s 477(2) to extend the time or refuse an extension, on the footing of having decided that the substantive application "would be dismissed" if it "were a matter" that the primary judge was deciding on the merits as the primary judge said at [48]. The primary judge weighed that view of the merits into the exercise of the discretion "in combination with" his view about a "lack of excuse" as to "why [the substantive application] is four and a half months out of time" and the consideration that no "significant prejudice" flowed to the respondent Minister. It is clear from [3], [11], [48] and [49] of the primary judge's reasons that the decisive or determinative consideration in exercising the discretion to refuse an extension of the 35 day period under s 477(2) was his Honour's view of the merits. At [11], the primary judge says that the best course on the extension of time question is to look to the merits. At [49], the primary judge weighs the merits analysis in combination with a lack of excuse for the delay but that other factors alone, clearly enough, would not have resulted in a refusal to extend time because the primary judge at [11] thought it best to look to the merits to decide the statutory question and did so as if he were dealing with the substantive application on the merits. Moreover, the lack of any significant prejudice to the Minister was not a factor weighed in the balance as a matter in favour of the making of an extension order but rather was seen as a factor not overcoming the primary judge's views about the merits which is why the word "notwithstanding" appears in [49] of the primary judge's reasons in addressing what is a conclusionary statement on the prejudice factor. 55 On this question of the merits analysis, it needs to be remembered that Mr Burrow, in his email on the day of the hearing, had said to counsel for the Minister before the hearing began that if the matter did proceed that day he was going to "do what I can despite lack of preparation" having received the brief late the preceding day. 56 As to the contentions of the applicants, I make these observations. 57 First, although the primary judge ought to have made reference to s 477(1) and s 477(2) and the text of those sections as the source of the discretionary power being exercised, it seems clear enough from the reasons in the context of the applicants' written submissions that the shorthand phrase "grant the extension" at [3] of the primary judge's reasons was his Honour's reference to s 477(2). 58 Second, the scope of the discretion is very broad and engages whether the Court "considers" an extension "appropriate" if (in addition to s 477(2)(a)) the Court reaches a state of satisfaction that "an extension is necessary in the interests of the administration of justice". Those integers are the mandatory relevant considerations. Thus, the question becomes, what is it in the particular circumstances of the case which enables the primary judge to reach a state of satisfaction (or not) about whether it is necessary, as serving the interests of the administration of justice, to make an order under s 477(2). 59 Third, the factors identified, ex tempore, by the primary judge at [3] of his Honour's reasons ought fairly to be regarded as whether, in the circumstances of the case, there is an explanation for the delay in filing the substantive application; whether there is prejudice to the Minister and, if so, what prejudice?; and (seeking to construe his Honour's description of the third element), is there a case on the merits which the applicant ought to be given an opportunity to have heard and determined on the merits? 60 Fourth, as to the third question, the real question is whether, having regard to the proposed grounds of review and some explanation of contextual material, is any one of the grounds reasonably arguable or sufficiently arguable? 61 Fifth, the three factors identified by the primary judge are those that his Honour thought, in the circumstances of the case, informed the question of whether he could be satisfied that it was necessary to make an extension order in the interests of the administration of justice. 62 Sixth, as it turned out, the primary judge's view on the merits was decisive notwithstanding a lack of explanation for the delay, and sufficiently decisive, to overcome the circumstance that no significant prejudice flowed to the Minister should an extension order be made. 63 The Minister accepts that there is a substantial body of authority for the view that on an application under s 477(2), the assessment of the merits is an impressionistic one only. The tests are described earlier in these reasons and whatever phrase is used to describe the scope of the examination of the merits, the scope of the task involves recognising that the Court does not "go into much detail on the merits" and does not examine the merits "as elaborately" as if the question was being argued on the merits at a final hearing: Jackamarra v Krakouer at [9], Brennan CJ and McHugh J. That degree of intervention into the merits might properly be regarded as simply determining whether one or more of the grounds is arguable or sufficiently arguable or reasonably arguable. Clearly, in this case, the primary judge went beyond an assessment of the merits contemplated by the appropriate test and the primary judge was content to say that he had reached a state of satisfaction that no error had been demonstrated on the merits (and thus no jurisdictional error) such that the substantive application would have been dismissed if it were a matter that his Honour was dealing with on the merits. 64 The Minister says that his Honour's reasons clearly demonstrate the primary judge's understanding of the "limited" statutory task he was undertaking and the reasons at [48] and [49] make clear that his Honour was not conducting the final hearing. The Minister says that there is no error in forming the view that the substantive application would have been dismissed were he in fact conducting a final hearing. 65 The reasons of the primary judge make clear that his Honour was considering an application for an extension of time under s 477(2) and that in relation to that application there were three factors to be weighed in the exercise of the discretion. However, the primary judge descended into an analysis of the merits well beyond forming a view about the merits for the purpose of the exercise of the discretion to extend time or not under s 477(2). The Minister relies upon the observations of the Full Court in SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 ("SZSZW"), Collier, Wigney and Gleeson JJ at [25] where their Honours observe that "[t]here will be cases where an application is so devoid of merit that it would be futile to extend time" and the "FCCA judge's reasons reveal that he formed this view". The Minister says that this is also the case in the present matter. 66 However, the difficulty is that, first, the grounds of review in the present case could not be described as so devoid of merit that any argument in relation to the grounds would be futile. The grounds are arguable. Second, it is clear that the primary judge appreciated that the task he was addressing was whether the discretion conferred under s 477(2) ought to be exercised on the footing that it was necessary in the interests of the administration of justice to make the order yet his Honour elected to determine that matter by reaching a conclusion about the merits as if he were dealing with the substantive application on the merits. 67 The simple fact is that the applicant was entitled to have a hearing on the merits and a determination on the merits in a final sense if the primary judge could be "satisfied" that it was necessary in the interests of the administration of justice to extend the time. 68 Many factors might have played a role in the exercise of the discretion but as it turned out, the exercise of the discretion was ultimately determined by his Honour's view that there "has been no jurisdictional error shown in this matter" and that the substantive application would be dismissed "if it were a matter that I was dealing with on the merits". As already indicated, the lack of any explanation for the delay was ultimately not decisive in the exercise of the discretion and the circumstance that no significant prejudice flowed to the Minister was not a factor which overcame the primary judge's view that "there has been no jurisdictional error shown [by the applicant] in the matter": PJ at [48]. 69 The Minister also relies upon the observations of the Full Court in SZSZW at [27] in these terms: We also reject the submission that the permissible extent of engagement with the reasons of the AAT, and with the associated documentation, is to determine whether there is a factual basis for the proposed ground of review. The issue for the FCCA judge was whether he was satisfied that it was necessary in the interests of the administration of justice to extend time. As Mortimer J observed in MZAPB [2015] FCA 1391 at [52], the test is "deliberately broad". 70 The observations of the Full Court in SZSZW quoted above are concerned with addressing the proposition that there is a limitation upon engagement with the reasons of the administrative decision-maker for the purposes of s 477(2) of simply examining whether there is a "factual basis" for the proposed ground of review. The Full Court was seeking to make clear that the statutory test required to be applied in the exercise of the discretion by the FCCA was whether the primary judge could be satisfied that it was necessary, in the interests of the administration of justice, to extend time and that such a test was framed in deliberately broad terms by the Parliament and not limited to a factual examination of the basis for a ground of review. 71 Framing that test in "deliberately broad terms" does not mean, where a primary judge departs from the orthodoxy of a principled approach to a consideration of the merits of the grounds of review in considering an application under s 477(2) (as determined according to the jurisprudence) by embarking on a review of each of the grounds as if it were the final hearing of the application on the merits, that such a path is a proper means to reaching a state of satisfaction (or not) about whether it is necessary in the interests of the administration of justice to make an order under s 477(2) of the Act. That follows because an applicant who makes an application under s 477(2) is not approaching that application on the footing of a hearing of the substantive application and the arguments for and against it. The question is whether an order for an extension of time ought to be made on the footing that the Federal Circuit Court is satisfied that an extension of time order is necessary in the interests of the administration of justice. 72 The interests of the administration of justice in any particular case are generally served by enabling the judicial power of the Commonwealth to be exercised at a final hearing at which the arguments for and against the relief sought based on the grounds agitated are heard and determined. If it is clear that the challenge sought to be advanced at a hearing is not even arguable, an application for an extension of time to advance such a case is properly refused as making an order for an extension of time could hardly be regarded as necessary in the interests of the administration of justice. If, on the other hand, the grounds are arguable and a party is deprived of an opportunity of fully developing those grounds by reason of a refusal to exercise a discretion to extend time on the footing that the applicant has not been able to show that the grounds of review, upon examination of the arguments for and against them, reveal jurisdictional error, the interests of the administration of justice are not served. 73 The election by the primary judge to determine the application for an extension of time on the footing that the discretion would be exercised against the applicant because the primary judge was "satisfied that there has been no jurisdictional error shown in this matter", caused the discretion to miscarry. 74 The next question is whether a miscarriage in the exercise of the discretion on such a basis is an error within jurisdiction or an error going to jurisdiction (as an excess of jurisdiction). 75 In SZUWX, Allsop CJ agreeing generally at [19] with Bromwich J (Flick J also agreeing with Bromwich J) said this at [20] and [21]: 20. The question as to when a judge exercising the judicial power of the Commonwealth may commit jurisdictional error as opposed to error within jurisdiction is an important one. It is well-known that error that may be committed by a member of the executive may be jurisdictional error, but error of a like kind when committed by another person, perhaps also in a non-judicial context or in a judicial context, would be error within jurisdiction. One only needs to recall the case of Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. 21. There is no need, in the present case, to deal with this as a matter of principle. Here, in my view, there was no error. If, however, there was some degree of error in the case, I agree that it could not be seen to be jurisdictional. The last comment should not be used as a logical premise for argument in any further cases. The question of whether an error is jurisdictional is, and always will be, context-specific as cases such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 make clear. 76 In Kirk, as quoted at [20] of these reasons, the plurality examined at [72] the amplification at pp 177-178 in Craig of an inferior court acting beyond jurisdiction by entertaining a matter outside the "limits of its functions or powers" by reference to three examples. The plurality make plain at [73] that the examples are just that - examples only and not rigid taxonomic boundaries of the field of an inferior court acting beyond jurisdiction. 77 The first example at [72] in Kirk is concerned with an absence of a jurisdictional fact. 78 The second example concerns an inferior court disregarding a matter that the relevant statute requires be taken into account as a condition of jurisdiction. 79 The third example concerns misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. 80 In this case, the applicants say that the miscarriage in the exercise of the discretion in the way earlier described involves a failure on the part of the primary judge to properly construe that which is required by s 477(2) in reaching a state of satisfaction (or not) having regard to whether it is necessary in the interests of the administration of justice to make an extension order. This failure of construction is said to result in the primary judge misconceiving the "nature of the function" to be performed by the Court or the "true scope of the power" to be exercised by the Court under s 477(2). Thus the error is said to be jurisdictional error falling within the conception in example three in Kirk and Craig although of course the examples do not fix the boundaries of the principle. 81 It is, however, this third area where "the line between jurisdictional error and mere error in the exercise of jurisdiction may be difficult to discern": Kirk at [73]. 82 Although the primary judge had written submissions from the applicant before him that identified the section of the Act conferring the power and references to the text as set out in the applicant's submissions ([48] of these reasons), the primary judge's election to examine the merits of the grounds of review in the exercise of the discretion so as to determine whether the applicant had failed to show jurisdictional error on the part of the Immigration Assessment Authority and also on the footing that the application would have been dismissed if it were a matter being dealt with by his Honour on the merits, suggests that the primary judge misconceived the true scope of the question the inferior court was called upon to answer in exercising the discretion conferred by s 477(2) of the Act. 83 It is accurate to describe this misconception as one going to the function to be performed and the power to be exercised under s 477(2) of the Migration Act. 84 The apparent misconception of the function went to the root of the statutory discretionary power to be exercised because an analysis of the merits of the grounds of review in sense reflected at [48] and [49] of the primary judge's reasons was not required by s 477(2) of the Act. The text of s 477(2) which permissively enables an inferior court to have regard to a broad range of factors upon which the court might reach a state of satisfaction about whether an extension is necessary in the interests of the administration of justice, comprehends, plainly enough, having regard to the merits. 85 However, an assessment of the merits for the purpose of s 477(2) is a limited assessment serving the interests of the administration of justice. The assessment of the merits is limited to the primary judge being satisfied (or not) about whether there is an arguable case which warrants a hearing in the sense of a final adjudication on the merits exhibiting all of the features of an exercise of judicial power in quelling the controversy brought to the court. 86 Many other factors may come into play under s 477(2) in the circumstances of the particular case but so far as an examination of the merits is concerned in exercising the discretion, it is undertaken for the limited purpose described. That is necessarily so because, generally, the interests of the administration of justice are served by resolving controversies on the merits at a final hearing unless it can be seen that the case contended for is not even arguable in which event various processes might be engaged to bring a matter to an end without a final hearing so as to avoid wasting time, costs and scarce resources. 87 Section 477(2) by using the statutory phrase in question engages a particular question to be answered and a function to be performed in exercising the discretionary power conferred on the court. The primary judge misconceived the limitation in the scope of the examination of the merits in exercising the discretion under s 477(2) of the Migration Act to grant or refuse to grant an extension of the 35 day period and has thus fallen into error as to the true nature of the function to be performed. 88 However, the question that arises in connection with this third area of enquiry contemplated by Craig and Kirk is whether the Federal Circuit Court exceeded its jurisdiction by concluding that it was not necessary in the interests of the administration of justice to make an order under s 477(2) after undertaking a full assessment of the merits. The Full Court of this Court in MZABP FC, Tracey, Perry and Charlesworth JJ at [21], [23] and [38] accepted that such an error would constitute an excess of jurisdiction. A differently constituted Full Court in DM116 v Federal Circuit Court of Australia (2018) 264 FCR 454, Collier, Logan and Perry JJ at [62] simply noted the Minister's concession in that case that the Federal Circuit Court would fall into jurisdictional error in exercising the discretion under s 477(2) if it approached the prospects of success as if it were making the final decision. The Full Court found it unnecessary to decide whether that proposition was correct and observed: "Even assuming that the Minister's concession was rightly made (which it is unnecessary to decide) in our view the primary judge did not err in holding that the Federal Circuit Court examined the grounds at a 'reasonably impressionistic level' …". Thus, the question did not arise. 89 In EBT16 at [8], Gageler J observes that the Full Court in DM116 at [62] approached the proposition with some "circumspection". 90 The primary judge misconceived the scope of the function to be discharged in answering the question raised by s 477(2) at least so far as the merits factor is concerned and went beyond the "threshold assessment of merit" (to use the term adopted by Gageler J in EBT16 at [7]) contemplated by the authorities. In that sense, the primary judge fell into error. He exceeded the limits of the assessment of merit as earlier described in deciding whether he could be satisfied or not that it was necessary in the interests of justice to make an order for an extension of time. 91 In MZABP, Mortimer J concluded her analysis of the approach adopted by the Federal Circuit Court judge in going beyond the threshold assessment of merit, in this way at [68] to [70]: 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. … 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. 70. However, the line is a fine one, and in my respectful opinion both in respect of s 477(2), and in respect of the corresponding power reposed in this Court under s 477A(2), the need for a restrained approach to the assessment of the merits of grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion as outlined by French J in Seiler [v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98] should be recalled. 92 In the proceedings before Mortimer J in MZABP, it is important to remember that the question of whether the primary judge had exceeded the threshold assessment of merit was not a ground on which relief was sought and nor was the matter fully addressed in submissions. That being so, Mortimer J, of course and unsurprisingly, did not determine the issue and in any event, the reasons of the primary judge did not reveal an erroneous approach. 93 In MZABP FC, the Full Court at [23] recognised that Mortimer J did not decide these matters. Nevertheless, the Court at [21] and [23] noted the observations of Mortimer J at [62], [63] and [67] to [70] of her Honour's reasons and, at [38] of the Full Court's reasons, endorsed her Honour's "disquiet about the approach adopted by the FCC" and also endorsed the approach adopted by her Honour as to the "proper disposition of applications for extensions of time" reflected in those paragraphs of her Honour's judgment previously mentioned which were quoted at [21] and [23] of the Full Court's reasons: see [38], MZABP FC. 94 The enquiry as to whether an error is jurisdictional is context-specific. In this case the context is that the primary judge clearly exceeded the threshold assessment of merit engaged when determining whether an extension of time is necessary in the interests of the administration of justice. However, did the primary judge step outside the jurisdiction conferred on the Court when misconceiving the limitation in the threshold of assessment of the merits when deciding the question raised by s 477(2) of the Migration Act and thus the function the Court was called upon to discharge under an application under s 477(2)? Did the primary judge simply make an unfortunate error in exercising the jurisdiction conferred upon the Court in deciding the question he was called upon to decide? 95 The jurisdiction exercised by the Federal Circuit Court is conferred by s 476(1) of the Migration Act which provides that subject to the section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. The term migration decision is defined by s 5 of the Act to mean a privative clause decision or a purported privative clause decision or a non-privative clause decision or an AAT Act migration decision. The privative clause decision is defined by s 474(2) and includes those things recited at s 474(3). The High Court's original jurisdiction under s 75(v) is original jurisdiction in all "matters" in which a Writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The relief sought by the applicant by the amended application was a Writ of Mandamus directed to the Immigration Assessment Authority and the Minister, a declaration in particular terms and an injunction restraining the Minister from taking particular action the subject of the proceedings. The "matter" the subject of the Federal Circuit Court's jurisdiction is the entire controversy to be quelled a part of which engaged the resolution of the application under s 477(2) in the exercise of the jurisdiction under s 476(1). 96 Having regard to the considerations described at [92] and [93] of these reasons and particularly the Full Court's recognition in MZABP that Mortimer J did not ultimately "decide the point" now in issue, the decision of the Full Court does not operate to bind me in the resolution of the question of whether the election of the primary judge to travel beyond the threshold assessment constitutes jurisdictional error. That follows because the decision in MZABP did not engage a claim for relief on such a ground, the ground was not fully addressed and there was no error let alone jurisdictional error: MZABP at [68]-[70] (as quoted at [91] of these reasons). Moreover, the Full Court recognised that Mortimer J did not decide the question and merely expressed, as their Honours put it, "disquiet" about the approach of the Federal Circuit Court. 97 However, the Full Court in MZABP FC has affirmatively endorsed at [38] the matters of principle set out at [21] and [23] of the Full Court's reasons (inherent in the disquiet reflected in the earlier MZABP decision) and the Full Court in DM116 has not cast doubt on those principles (although expressly electing not to decide the question). Ultimately, the question must be decided in a controversy which actually engages the question and facts relevant to the question to be decided recognising that the determination of the question is a very fact-specific inquiry. 98 Notwithstanding the expression of disquiet and the observation about the matter of principle set out at [68] in MZABP, I regard the error on the part of the primary judge in the circumstances of this case as an error within jurisdiction. I would not regard the error on the part of the primary judge of incorrectly travelling beyond the threshold assessment of merit as taking the Federal Circuit Court outside the scope of the jurisdiction it was called upon to exercise under s 477(2) as an aspect of the matters to be resolved in quelling the controversy as an exercise of original jurisdiction comprehended by s 75(v) of the Constitution as conferred on the Federal Circuit Court by s 476(1) of the Migration Act. In this case the primary judge made a mistake, put at its highest. However, even that matter needs further examination. 99 As to that examination, on 17 January 2018, the primary judge adjourned the hearing of the application at the request of counsel for the appellants from 17 January 2018 to 28 February 2018. The application, of course, comprehended an application under s 477(2) and an application for the grant of mandamus, a declaration and an injunction. When the proceeding came before the primary judge on 28 February 2018, newly appointed counsel sought another adjournment. That application was refused and the primary judge then embarked upon a hearing of the matter. Ideally, the primary judge ought to have first addressed the preliminary question of the s 477(2) application to extend time and having decided that matter according to the factors identified by his Honour (construed, as earlier mentioned, as an explanation for the delay; the degree of prejudice to the respondent, if any; and a case on the merits that ought to be heard but properly understood as whether the grounds reveal an "arguable case"), and then moved on to the hearing of the substantive grounds of review. 100 However, the primary judge chose not to bifurcate the two questions and, in effect, elected to resolve the preliminary question by choosing to allow that question to be answered by looking at the merits of the grounds of review as if he were "dealing with the merits". His Honour seems to have taken that course because he had already adjourned the substantive hearing once for a period of over four weeks and had refused a second adjournment. His Honour was proposing to hear the substantive application that day and chose to allow the extension question to be decided upon his assessment of the merits of the grounds of review. To the extent that taking that course engaged error on the part of the primary judge, it did not engage jurisdictional error in the fact-specific circumstances of this case. 101 Let it be assumed, however, that jurisdictional error has occurred. On that assumption, the final question is whether the principle derived from Hossain, Shrestha and SZMTA (and also CNY17 at [15]) concerning the materiality of non-compliance with a statutory requirement giving rise to jurisdictional error applies to decisions of an inferior court. In the case of an administrative decision-maker, an incorrect understanding and application of the law in making a decision in purported exercise decision-making authority conferred by the Migration Act does not constitute jurisdictional error justifying the grant of relief under or by reference to s 75(v) of the Constitution if a correct understanding and application of the law could not in the circumstances have resulted in the decision that was made being a different decision. 102 I have not had any authority cited to me which demonstrates that the materiality principle has been applied to an error constituting jurisdictional error by an inferior court rather than an administrative decision-maker. However, in the recent proceeding conducted before Gageler J sitting alone exercising the High Court's original jurisdiction under s 75(v) of the Constitution, his Honour addressed a complaint of excess of jurisdiction by the Federal Circuit Court on the ground that the Court had erroneously taken into account the circumstance that the plaintiff had previously applied to the Federal Circuit Court for judicial review and thus an inference was open that the plaintiff knew what he had to do (file an application within a certain period of time) and did not do so. His Honour found that the inference contended for about a self-represented litigant's state of understanding of court procedure was not available to be drawn based solely upon the fact that the plaintiff had previously brought proceedings in the Federal Circuit Court. However, the Federal Circuit Court had correctly apprehended that the application under s 477(2) was without sufficient merit to justify the granting of an extension of time. Gageler J observed that "[g]iven that the Federal Circuit Court properly assessed the application as having no merit, however, it is not arguable that the taking of the plaintiff's litigation history into consideration could have had a material effect on the outcome" [emphasis added]. 103 In those observations quoted above, Gageler J is applying the materiality principle to a contention of jurisdictional error by an inferior court and concluding that the error would not have had a material effect on the outcome, that is to say, the error would not have resulted in the decision made by the primary judge in that case having been different. 104 That being so, I proceed on the footing that the materiality principle applies to an error, going to jurisdiction, made by an inferior court. 105 If the primary judge had confined his assessment of the merits of the grounds of review to the "assessment threshold" dictated by the authorities in resolving the s 477(2) application, would that, in the circumstances, have resulted in the decision that was made to refuse an extension of the 35 day period for instituting the principal application under s 477(1), being a different decision? 106 Had the primary judge addressed the two applications separately, his Honour ought to have concluded that the grounds set out in the amended application were reasonably arguable and his Honour ought to have made an order extending the time under s 477(2) for the purposes of s 477(1). His Honour ought to have then conducted an examination of the merits to decide the principal application, having refused the adjournment. The first order of the primary judge of 28 February 2018 refusing the s 477(2) application would have been different but the dismissal of the amended application would not have been different. Had the primary judge applied a correct understanding of the law relating to the "assessment threshold" for the purpose of the s 477(2) application, that decision would certainly have been different but the decision to dismiss the amended application in the circumstances would not with the result that the appellants would have been in precisely the same position regardless of the jurisdictional error on the s 477(2) application of having their substantive application for review dismissed. 107 Thus, the assumed jurisdictional error made no difference to the outcome. 108 Accordingly, the application under s 39B of the Judiciary Act to this Court must be dismissed with costs. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.