Misunderstanding of function leading to an excess of jurisdiction
44 However, it does not follow from the foregoing that the failure by the FCC judge to correctly exercise his discretion under s 477(2) will not result in jurisdictional error. As previously alluded to, it is possible that the magnitude of an erroneous approach to the exercise of the power indicates that the FCC judge misapprehended or disregarded the nature or limits of his functions or powers. Here it was submitted that such an error was revealed by the FCC judge undertaking a substantive analysis of the merits of the appellants' proposed grounds of review. It was submitted that whilst an impressionistic consideration of the grounds was appropriate, the extensive analysis of their veracity as if they were being determined at a hearing of an application for review, indicated that the Court had misunderstood its function.
45 This submission was founded upon the approach adopted by Mortimer J in MZABP. The issues in that case were substantially similar to those in the present. The FCC had refused the applicant an extension of time within which to apply for judicial review of a decision of the Refugee Review Tribunal (RRT) affirming the decision of a Minister's delegate to refuse the grant of a protection visa. Before the Federal Court the applicant sought to argue that the FCC had made a jurisdictional error by misconstruing the power under s 477(2). In a manner similar to the present case, it was alleged that the FCC proceeded upon the basis that it would be in the interests of the administration of justice to extend time only if it were persuaded that the appellant "could succeed" on any of the proposed grounds of review. It was submitted that the FCC should only have determined whether any of the grounds of review were "reasonably arguable or had reasonable prospects of success". Mortimer J held that as this issue had not been raised by the applicant until the submissions in reply it could not be considered by her as a ground of review. However, her Honour expressed disquiet about the manner in which the FCC had approached the question of the merits of the proposed grounds of review. In that respect she said (at [62] - [63]):
[I]t 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).
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.
46 Mortimer J identified that the erroneous approach to the application of s 477(2) may have resulted from the practice of combining the hearing of an application for an extension of time with the hearing of the application (citing SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (SZTES), [102]). Her Honour then proceeded to consider whether the FCC's approach could be characterised as it exceeding its jurisdiction within the meaning of the principles referred to in Kirk at [72] - [73]. It was observed that in Kirk the plurality held that the misconstruction of a statute which leads a court to misapprehend the limits of its powers should be properly characterised as an error which was jurisdictional in nature. Mortimer J then postulated that, if in the case before her, the primary judge had taken the approach that it would only be "in the interests of the administration of justice" to extend time if persuaded that a ground of review would succeed, that would be a misunderstanding of the discretion in s 477(2) and amount to a misapprehension of the nature of the power conferred.
47 On appeal the Full Court, perhaps, gave tacit approval to Mortimer J's observations although it was accurately recognised that those matters were not relevant to the issues before her.
48 Mortimer J's observations were, to some extent, also cited with approval in DKX17 v Federal Circuit Court of Australia (2019) 268 FCR 64 at 75 [57] and 81 [95] per Rangiah J (Reeves and Bromwich JJ agreeing). That said, nothing in that case suggested that the failure to correctly approach the assessment of the merits amounted to a jurisdictional error.
49 Further support for Mortimer J's view in MZABP can be found in the Full Court's decision in DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454 (DMI16). There, where a similar argument to the present was advanced, the Full Court (Collier, Logan and Perry JJ) observed (at 471 [62]) that the Minister had accepted that, in the context of an application for an extension of time, the FCC would fall into jurisdictional error if it approached the question of the merits of the proposed grounds as if it were making a final determination. However, as it had not been established that the FCC had applied an erroneously higher standard than simply attempting to ascertain at a reasonably impressionistic level whether the grounds had merits, the issue did not arise for determination
50 Similarly in FEZ17 v Minister for Home Affairs [2019] FCAFC 76, the Full Court appeared to acknowledge, as did the primary judge (FEZ17 v Minister for Home Affairs [2018] FCA 1689), that the FCC's treatment of the merits of an application in determining whether an order should be made under s 477 may reveal a misunderstanding of its function, or an excess of jurisdiction (at [13]), however, no jurisdictional error was demonstrated in that case.
51 To similar effect are the observations of Steward J in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400. After considering the reasoning of Mortimer J in BVW17 his Honour went on to say (at [23]):
It does not follow from this observation that the exercise of power under s 477(2) by the FCC is not amenable to judicial review. If the FCC were to mistake its function under s 477(2), or if it were to apply an incorrect construction of the words of the provision, it would commit jurisdictional error. Another example of possible jurisdictional error was identified by Mortimer J in MZABP v Minister for Immigration & Border Protection (2015) 242 FCR 585 at [68] when her Honour said:
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.
52 In the matter before Steward J, the primary judge had failed to consider one of the pleaded grounds in considering the merits of the application under s 477. His Honour opined at [29] that where the ground raised is substantive, or appears to have substance, an inferior court should address it. He further observed that a failure to address it would constitute a fundamental misunderstanding of the discretion in s 477(2) in the sense described by Mortimer J in MZABP, and therefore constituted a jurisdictional error. His Honour concluded at [32] that the FCC's failure to consider one of the pleaded grounds constituted a breach of procedural fairness and a constructive failure to exercise jurisdiction.
53 In SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, the Full Court (Collier, Wigney and Gleeson JJ) emphasised that "there will be cases where an application is so devoid of merit that it would be futile to extend time" (at [25]). There, it had been contended that the FCC judge had erroneously conducted a "fulsome examination" of the merits of the application. The Full Court rejected this submission, concluding that the FCC judge's reasons did not reveal anything more than an impressionistic evaluation of the appellant's proposed ground of review (at [26]), in accordance with the approach identified by Mortimer J in MZABP.
54 In EBT16 v Minister for Home Affairs (2019) 374 ALR 443, Gageler J also considered whether an order made by the FCC dismissing an application for judicial review as a consequence of having refused the application for an extension of time under s 477 exceeded the jurisdiction of that court. His Honour concluded that it had not been established that in refusing the extension of time the FCC judge had "gone beyond a threshold assessment of merit" in relation to the proposed grounds of review (at [7]). However, his Honour clarified at [8]:
By rejecting the arguability of the second ground of the application on the basis on which it is put, I should not be understood to be expressing any view as to the correctness of the proposition, adopted by the Full Court of the Federal Court in MZABP v Minister for Immigration & Border Protection and accepted with circumspection by a differently constituted Full Court in DMI16 v Federal Circuit Court of Australia, that the Federal Circuit Court would exceed its jurisdiction were the Federal Circuit Court to conclude 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. Although the High Court cannot be bound by a decision of any other court in the exercise of its jurisdiction under s 75(v) of the Constitution, it would not be appropriate for me as a single Justice exercising that jurisdiction to depart from or cast doubt on a decision of the Full Court of the Federal Court. Were I to have considered the proposition adopted in MZABP to have been dispositive of the present application, and were I to have entertained doubt about its correctness, the appropriate course would have been for me to refer the application or the relevant part of it to the Full Court of the High Court under r 25.09.3(d) of the High Court Rules.
(Footnotes omitted)
55 In that case the FCC had disallowed the application for an extension of time but had nevertheless purported to dismiss the application which had been filed out of time. Gageler J held that no error arose from it so doing regardless of whether the temporal limitation on making an application for review was seen as a limitation on the scope of the jurisdiction conferred on the FCC or merely as a limit on its exercise. This latter matter is relevant to the present circumstances where the FCC judge had similarly dismissed the application.
56 It was submitted that the observations of Gageler J supported the proposition that no jurisdictional error was involved where an FCC judge undertook a more substantial assessment of the merits of a proposed application than was required. With respect, no such proposition can be detected in that case and, indeed, his Honour's comments that the FCC judge had not "gone beyond a threshold assessment of merit" strongly suggests to the contrary.
57 A slightly different approach was taken by Wheelahan J in DBA16 v Minister for Home Affairs [2018] FCA 1777. There, the applicant's application for an extension of time was heard together with the substantive application for judicial review directed to a decision of the IAA. It was submitted that the primary judge's decision was affected by jurisdictional error because her Honour had failed to apply the correct test in considering the application under s 477. More specifically, that her Honour incorrectly made a determination that the applicant's case would be precluded by reason of Anshun estoppel, rather than whether the applicant's case enjoyed sufficient prospects of success in overcoming any Anshun estoppel.
58 In considering the principles relating to jurisdictional error and inferior courts, Wheelahan J referred to Norbis v Norbis (1986) 161 CLR 513, and more specifically the observations made by Brennan J at 536 - 537, to the effect that guidance provided by appellate courts in relation to the exercise of a discretion does not "harden into legal rules", and that a failure to apply a guideline cannot be treated as an error of law. Similar sentiments were expressed by Mason and Deane JJ at 519, where their Honours opined 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".
59 Wheelahan J went on to find that the "guidance" of Mortimer J in MZABP was not followed on a consideration of the FCC's stated path of reasoning, because the claimed Anshun defence was not considered merely at an "impressionistic level". His Honour considered that "whether this amounts to a jurisdictional error is an entirely different matter", concluding at [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 & 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.
60 His Honour's observations that guidance given by superior courts cannot crystallise into hard and fast rules ought to be accepted. That is particularly so where the question is as to the matters which might be taken into account in the exercise of an unconfined discretion. However, it does not follow that conclusions as to the scope of the power in s 477(2), if made by a court with relevant authority, will not be binding.
61 In APP17 v Minister for Immigration and Border Protection [2019] FCA 794, Bromwich J considered the nature of errors which might be made in the exercise of power under s 477(2) and made the following observations at [10] to [13]:
[10] The sole legitimate issue in this application is whether the primary judge's refusal of the extension of time in which to bring a judicial review application was infected by jurisdictional error, or at most was only an error in the exercise of that jurisdiction. That is, even if all of the arguments as to error advanced by the applicants were made out, did that amount to anything more than deciding issues within jurisdiction incorrectly? The Minister's case is that not only are the matters raised in support of this application doing no more than taking issue with how the jurisdiction was exercised, asserting no more than errors within jurisdiction, but that there was no error in the exercise of jurisdiction by the primary judge either. There was no suggestion that his Honour either exceeded jurisdiction, or failed to exercise jurisdiction, such as by overlooking altogether a basis for seeking an extension of time, or by overlooking a proposed ground of review (as happened in CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400).
[11] Ordinarily, and certainly in this case given the terms of s 477(2) of the Migration Act being addressed by the primary judge, the assessment of whether or not there is jurisdictional error in the exercise of judicial power does not depend upon any analysis or review of the facts, or the correctness or otherwise of the factual findings made, as opposed to the context provided by those facts, but rather upon an analysis of the terms in which a statutory discretion or power has been conferred: see SZUWX v Minister for Immigration & Border Protection [2016] FCAFC 77; 238 FCR 456 at [15], [21].
[12] It is essentially a matter for the Federal Circuit Court judge to determine and assess what were the relevant considerations to be weighed in determining the presence or absence of satisfaction that it was necessary, in the interests of the administration of justice, to extend time in accordance with s 477(2): SZUWX at [10]. In SZUWX, the Full Court found that there had not been any failure to take into account the absence of prejudice to the Minister in granting an extension of time under s 477(2), but held that even if there had been such a failure, it would have been an error within jurisdiction, and therefore not reviewable. This highlights the steep hurdle the applicants face and the limited scope of the grounds and arguments that they can rely upon.
[13] Given that the applicants applied in writing for an extension of time as required, and given that the primary judge was not satisfied that it was "necessary in the interests of the administration of justice" to make such an order, the applicants must establish this conclusion was infected not merely by some error of fact or law, but rather an error going to the very jurisdiction being exercised. Given the broad and unconfined scope of the test to be applied, it was, within the scope of legal reasonableness in the application of that test so as to be within jurisdiction, a matter for the primary judge as to what considerations to take into account in ultimately deciding whether or not his Honour was satisfied that the statutory test had been met.
(Emphasis in original)
62 These passages were relied upon by the second respondent in support of the submission that the manner in which the primary judge approached the merits did not exceed the FCC's jurisdiction. Given the result in SZUWX, the conclusions of Bromwich J are relatively uncontroversial. Although the point is not wholly free from doubt and there are some decisions to the contrary, the weight of authority appears to be that there is nothing in the nature, scope and purpose of s 477(2) which implies an obligation on the FCC to take any particular consideration into account or to eschew consideration of a particular matter. That, however, does not exclude a conclusion that a jurisdictional error has occurred where, in the circumstances of the particular case, a failure to take into account a matter will evidence that the FCC has misconceived its function or the nature of the power being exercised.
63 It must also be kept in mind that, in APP17, Bromwich J was considering a very different case to the present. In APP17 the primary judge had expressly assessed the merits of the proposed grounds of review on a "fairly broad brush approach" as to whether they had reasonable prospects of success. As Bromwich J found, "[t]hat was a course that was plainly not just open to his Honour, but wholly appropriate as the extension of time application is not a hearing on the merits of the proposed grounds of review" (at [17]). His Honour cited MZABP as authority for that conclusion. He concluded that there was nothing that the primary judge did that was remotely at odds with the ordinary assessment of whether or not the test in s 477(2) had been met to his Honour's satisfaction (at [33]).