EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISON 2)

1. The name of the first respondent be amended to read 'Minister for Immigration, Citizenship and Multicultural Affairs'.
2. A writ of certiorari be issued quashing the orders of the Federal Circuit and Family Court of Australia (Division 2) made on 2 December 2021.
3. The matter be remitted to the Federal Circuit and Family Court of Australia (Division 2) for determination according to law.
4. There be no order as to the costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. The applicant is a citizen of Sri Lanka. In October 2012 he entered Australia at the Cocos (Keeling) Islands without a visa making him an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth). In April 2016 the applicant lodged an application with the first respondent (Minister) for a Safe Haven Enterprise Visa (Class XE) (Subclass 790). In October 2016 a delegate of the Minister refused to grant the applicant a visa. That decision was referred to the Immigration Assessment Authority for review in accordance with the provisions of Pt 7AA of the Act. In April 2017 the Authority affirmed the delegate's decision. The applicant successfully applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision. In June 2020 that decision was set aside and the matter was remitted to the Authority for determination according to law. On 25 August 2020 the Authority again affirmed the delegate's decision not to grant the applicant a visa.
2. In September 2020 the applicant applied to the Federal Circuit Court for judicial review of the Authority's second affirmation decision. Section 477(1) of the Act provided that an application for a remedy to be granted in the Federal Circuit Court's original jurisdiction under s 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. The primary judge found that the application was made to the court on 30 September 2020 which was one day after the end of the 35-day period. As a consequence, the primary judge considered that the applicant was required to satisfy her that it was appropriate to exercise the court's discretion under s 477(2) to extend the 35-day period by one day to 30 September 2020. The primary judge was ultimately of the view that it was not so appropriate and dismissed the applicant's application for an extension of time: EIW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 311 (PJ).
3. The applicant has no right of appeal to this Court from a decision of the primary judge refusing to grant him an extension of time under s 477(2) of the Act. However, as explained later in these reasons, this Court may review a judgment of the FedCFamC2 made under s 477(2) for jurisdictional error under s 39B of the Judiciary Act 1903 (Cth). Accordingly, on this basis, the applicant has applied to this Court for judicial review of the primary judge's decision.
4. The applicant represented himself in the proceedings in this Court. His originating application for judicial review does not identify any grounds of review for jurisdictional error. The Minister filed written submissions dated 27 June 2022 in which he, quite properly, sought to identify potentially relevant grounds and address them. However, at a hearing on 13 July 2022, the relevant ground of review was identified as whether the primary judge had misconstrued s 477(1) of the Act and, as a consequence, erroneously concluded that the applicant had not made an application to the court within the 35-day period. The hearing was adjourned and orders were made for the parties to file written submissions addressing that ground. The applicant and the Minister filed written submissions in accordance with that order. Affidavits of the applicant sworn 30 December 2021, Mr Christopher James West affirmed 1 April 2022 and Ms Georgina Roberta Ellis affirmed 27 June 2022 were also read on the hearing of the application.
5. For the reasons that follow, the primary judge's judgment was founded on jurisdictional error and must be set aside.

1. Part 8 of the Act deals with judicial review. At the relevant time (and now), s 474 contained (contains) a privative clause provision that excludes, to the extent the Constitution permits, judicial review of most decisions of an administrative character made, proposed to be made, or required to be made under the Act. At the relevant time, s 476 conferred on the Federal Circuit Court the same original jurisdiction as the High Court has under s 75(v) of the Constitution with respect to most migration decisions made under the Act. That conferral of jurisdiction was coupled with s 477 which imposed a 35-day time limit on applications for judicial review in the Federal Circuit Court subject to a discretion to extend the time limit if appropriate.
2. At the relevant time, s 477 of the Act was in the following 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 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.

...

1. After August 2020, in September 2021, s 476 and s 477 were amended to refer to the 'Federal Circuit and Family Court of Australia (Division 2)' rather than 'Federal Circuit Court'. At the time of the primary judge's judgment, by operation of ss 6, 8(2) and 10 of Federal Circuit and Family Court of Australia Act 2021 (Cth), the Federal Circuit Court became known and continues in existence as the Federal Circuit and Family Court of Australia (Division 2). However, for the purposes of these reasons, it is convenient to continue to refer to that federal court as the 'Federal Circuit Court'.

1. The primary judge records in her reasons for decision (PJ [25]) that the applicant made an application to the Federal Circuit Court for an extension of time on 30 September 2020. That application indicates that it was lodged electronically and accepted for filing in the Federal Circuit Court on 30 September 2020 at 12:00:00 PM AWST. The document has a hand-written date of 28 September 2020. An affidavit of the applicant was lodged and accepted for filing at the same time. The affidavit also has a hand-written date of 28 September 2020.
2. The primary judge then set out the applicant's grounds for the application and a summary of his evidence in support as follows (PJ [26]-[27]):

26 ...

1. I applied for e-lodgement to file my application for judicial review on the 27/9/2020 and requested that my application for e-lodgement to be approved on 28/9/2020. I attested my affidavit on 28/9/2020 and intended to file my appeal for judicial review application on 28/9/2020 but I did not receive the approval of my e-lodgement.

2. On 29/9/2020 at 12.50 pm, I emailed and filed the application and affidavit and the financial hardship application at the Perth registry but the Perth registry office replied that they only received the documents on 29/9/2020 at 8.39 pm and not 12.50pm. I am not sure what has happened but based on my [sent] email record it shows the documents was emailed to perth.registry@fedcourt.gov.au on 29/9/2020 at 12.50 pm. My intention was to file within the 35 days from the date of the IAA decision which I believe I did. I did not intend to file after the 35 days.

3. Based on the grounds that Immigration Assessment Authority made [a] fact finding error, ignored relevant material and relied on irrelevant [considerations] in reaching their decision and reasons on 25 August 2020 and in the interest[s] of administration of justice, I humbly plead for the extension of time.

4. The applicant's affidavit that accompanied his application does not set out the evidence explaining the delay and showing why it is in the interests of the administration of justice for the Court to grant an extension of time. This was required by r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (FCC Rules), which applied at the time the applicant filed his application. Nor has the applicant filed any further affidavit evidence in the course of the proceedings. In circumstances where the applicant is self-represented and has articulated in his application the reasons he considers it is necessary in the interests of the administration of justice to extend the time for him to file the application, I waive the need for him to comply with r 44.05(2)(c) of the FCC Rules and its equivalent provision r 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules).

1. Notwithstanding that the application and affidavit were accepted for filing on 30 September 2020 and that the applicant had made an application for an extension of time under s 477(2), the primary judge considered whether an extension of time was required because the applicant had made a submission, in effect, that his application had been made to the court within the 35-day period stipulated in s 477(1) of the Act. The evidence in support of that submission was not contained in the applicant's affidavit, but in an email tendered at the hearing and in a screenshot submitted to the primary judge after the hearing.
2. The email tendered at the hearing was dated and timed 29 September 2020 at 9:03:32 pm AWST (9:03pm email). It attached an application for judicial review that was signed with a hand-written date of 28 September 2020. The last page of that document (with the signature and date) appears to be identical to the last page of the application accepted for filing on 30 September 2020. However, the second and third pages of the 29 September 2020 document differ from the application accepted for filing on 30 September in that they do not include an application and particulars of grounds for an extension of time. The email also attached an affidavit which appears to be identical to the affidavit accepted for filing on 30 September 2020.
3. The screenshot of an email submitted after the hearing depicts an email that is dated and timed 29 September 2020 at 12:57:00 pm (12:57pm email). The text of the email message is in identical terms to the later 9:03pm email. The screenshot also depicts two attachments to that message, but there are no file names or other means of identifying the attachments.
4. The primary judge considered that evidence and concluded that the applicant required an extension of time. As to the 9:03pm email attaching the application and affidavit, the primary judge reasoned that, because the email was sent after 4.30pm on 29 September 2020, under the Federal Circuit Court rules at that time these documents would be taken to have been filed at 9.00 am on the following day (30 September 2020) which was outside the 35-day period (PJ [29]-[30]). As to the screenshot of the earlier 12:57pm email, the primary judge reasoned as follows (PJ [31]-[33]):
   1. After the hearing, the applicant emailed to my associate a further document, without the leave of the Court. This document appears to be a screenshot of an email sent from the applicant to 'Perth Account' on 29 September 2020 at 12.57 pm. The text of the email reads:

Dear sir/madam

I am hereby filing my application - migration act and supporting affidavit to appeal against the decision of Immigration assessment authority and also filling the application for exemption from paying court fees - financial hardship.

I had applied for e-court registration on Sunday 29/9/2020 and till to date it's still pending approval. I had no choice but to email and file via registry. Please assist and approve my filing.

1. It appears from the screen shot that at least two documents were attached to this email, but it is not possible to identify those documents.
2. In circumstances where the applicant is self-represented and the document appears to have been provided in response to a question I asked at the hearing, I am willing to have regard to this document. However, the document does not alter my view of this case. At its highest, the document may allow an inference that the applicant attempted to provide a document to the Registry for filing on 29 September 2020 at about 12.57 pm. I was prepared to accept that the applicant took steps to file his application before 4.30 pm on 29 September 2020 in any event, on the basis of the grounds in the applicant's application for an extension of time, even though the information in those grounds was not provided to the Court in an acceptable evidentiary form. The additional document provided by the applicant does not show that the Court registry received the whole of any application from him prior to 4.30 pm on 29 September 2020. Nor is there any other evidence before the Court that would enable me to conclude that an application was received within the 35 day time frame.

Accordingly, I find that the applicant did not file an application within the 35 day time frame. The application which was ultimately accepted for filing includes an extension of time application and was filed on 30 September 2020.

(Emphasis added.)

1. The substance of the applicant's submission is to the effect that the primary judge was in error because, on the facts as found in her reasons, the applicant had made an application to the Federal Circuit Court on 29 September 2020 within the meaning of s 477(1) of the Act and, as such, that application was made within the stipulated 35-day period. That is, an extension of time was not necessary and the primary judge was bound to determine the merits of the applicant's application for judicial review made under s 476 of the Act. The applicant did not elaborate on the reasons he contends that, on the proper construction of s 477(1), either the 12:57pm email or the 9:03pm email falls within the meaning of 'an application ... made to the court'.
2. The Minister submits that there are two related questions raised by the application for judicial review. First, what is the meaning of 'made to the court' in s 477(1)? Second, having regard to that meaning, did the applicant make his application within the stipulated 35-day period?
3. As to the first question, the Minister submits that the meaning of the expression 'made an application' necessarily and by design requires consideration of the mechanisms for lodging documents in the Federal Circuit Court's registry to instigate proceedings. That meaning arises from the context of the application in question made to the Federal Circuit Court and the explanatory memorandum that introduced the current s 477 and s 477A into the Act which referred to time limits for applications for judicial review of migration decisions 'filed in' the Federal Circuit Court.
4. The Minister then submits, by reference to the rulemaking power in s 81(1) read with s 43(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), that the court's practice and procedure is to be in accordance with the rules of the Court in place at the time, namely, the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Further, s 46 of the FCCA Act requires that documents be filed in accordance with such rules. Accordingly, so the Minister submits, a person who purports to file a document in a way that would not be an effective means of instituting proceedings in the Federal Circuit Court cannot be said to have 'made' an application to that court. Therefore, while r 2.05 of the FCC Rules permitted electronic filing of documents, those documents, if accepted, were taken to have been filed 'if the whole document [was] received by 4.30pm on a day the Registry [was] open for business - on that day': r 2.05(3)(a). Otherwise, if filed after 4.30pm and accepted, documents were taken to have been filed on the next day the Registry is open for business: r 2.05(3)(b). The Minster submits that it was not doubted by the Full Court in CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447 at [50]- [52] that r 2.05 operated to clarify the date upon which an application was made for the purposes of s 477(1).
5. The Minster submits that, on that construction of s 477(1), the primary judge was correct to conclude that the applicant had not 'made' an application to the Federal Circuit Court until 30 September 2020 because the email attaching the 'whole document' was not received before 4.30pm on 29 September 2020. The earlier email did not demonstrate that the 'whole document' was received before 4.30pm because the attachments to that email could not be identified.

Judicial review of decisions of the Federal Circuit and Family Court of Australia (Div 2)

1. The applicant has no right of appeal to the Federal Court from a judgment of the Federal Circuit Court that refuses to make an order under s 477(2) of the Act. However, the Minister accepts, by reference to the Full Court judgment in Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11] (Rares, Perram and Wigney JJ), that this Court may review such a judgment for jurisdictional error under s 39B of the Judiciary Act. Tang has been accepted and followed in other judgments of this Court: e.g., FKV17 v Minister for Home Affairs [2022] FCAFC 93; (2022) 292 FCR 201 at [133] (Rangiah J) (Greenwood J accepted that there was such jurisdiction as did Beach J although he was in dissent); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [18] (Tracey, Perry and Charlesworth JJ). See, also, SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 at [2], [12], [62] (Perram, Robertson and Griffiths JJ). Gageler J sitting as a single judge in the High Court's original jurisdiction has also said that the Federal Court has jurisdiction under s 39B of the Judiciary Act to review a judgment of the Federal Circuit Court refusing to extend time under s 477(2): EBT16 v Minister for Home Affairs [2019] HCA 44; (2019) 374 ALR 443 at [3]. Additionally, although the plaintiff's application for constitutional writs was dismissed, the judgments of the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 are predicated upon an assumption that, while there is no right of appeal from a judgment of the Federal Court refusing to extend the time to make an application to this Court under s 477A(2) (which is in materially the same terms as s 477(2)), such a judgment may be reviewed for jurisdictional error under s 75(v) of the Constitution. Therefore, by analogy, judgments of the Federal Circuit Court under s 477(2) must be open to review in this Court under s 39B of the Judiciary Act.
2. The Minister also accepts, by reference to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 178-179, that if the primary judge misconstrued s 477(1) and, on the facts as found by the primary judge, the applicant's application was made within the time stipulated in s 477(1), then the primary judge made a jurisdictional error by proceeding on the mistaken basis that the applicant's application to the Federal Circuit Court was out of time. The Minister accepts that in those circumstances, the primary judge would have misconceived the nature of the function which she was to perform, or the extent of her powers in the circumstances of the particular case, in the manner in which the High Court described jurisdictional error in Craig.
3. In Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60]- [77] the joint judgment of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) provides an expansive explanation of the concept of jurisdictional error and important guidance on the statements of principle in Craig. While observing that it is 'neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error' (at [71]) and that the reasoning in Craig 'is not to be seen as providing a rigid taxonomy of jurisdictional error' or 'as marking the boundaries of the relevant field' (at [73]), the joint judgment (at [72]) summarises and comments on the ambit of jurisdictional error, in the case of an inferior court, as follows:
   1. First, the Court stated, 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 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 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 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 [(1978) ; , [(1985) ; at 371] and [(1991) ;

1. Further, while the focus of the reasoning in Craig was jurisdictional error in the case of inferior courts, amenability of a judge of a Federal Court to a constitutional writ does not depend on characterisation of the court as an 'inferior court', but upon the jurisdiction of the court being limited: Kirk at [107] (and the authorities there cited). Therefore, it is important to keep in mind that the concept of jurisdictional error goes 'hand in glove' with any limitation the legislature has placed on the jurisdiction of the court in question. That directs attention to the proper construction of the legislation establishing and limiting the jurisdiction of the court and the nature of decisions that the legislature intended would be authorised (within jurisdiction).
2. As was observed in the joint judgment of Gordon, Edelman and Steward JJ in Tu'uta Katoa:
   1. ... not every error of law made by a court involves jurisdictional error. As the Court explained in Craig, "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine". The discharge of that ordinary jurisdiction - whether by a superior court such as the Federal Court or by an inferior court - routinely involves "[t]he identification of relevant issues [and] the formulation of relevant questions". Where a court is "entrusted with authority to identify, formulate and determine" the relevant issues and questions (as the Federal Court is under s 477A(2)), demonstrable error in the identification of the issues or the formulation of the questions will not ordinarily constitute jurisdictional error, but will be an error "within jurisdiction".

1. In this case, unlike Tu'uta Katoa, the alleged jurisdictional error is not an error in reaching the conclusion that the applicant should not be granted an extension of time under s 477(2). Rather, it is alleged that the error took place at an antecedent point in the enquiry in that the primary judge misconstrued s 477(1) and, thereby, misconceived the nature of the function she was performing. The nature of that alleged error is that the primary judge applied the wrong legal test to the facts when reaching her conclusion that an application had not been made to the court within 35 days of the date of the migration decision and, thereby, her conclusion or state of mind (that absent an extension of time she did not have jurisdiction to hear the application) was not reached on a correct understanding of the law.
2. The Federal Circuit Court clearly had authority to identify, formulate and determine the relevant issues and questions for the purpose of deciding if an application was made within the time stipulated in s 477(1) of the Act. The real question is whether that court had authority to do so erroneously. In effect, the Minister has accepted that the primary judge did not have jurisdiction to determine whether an application was made within the time stipulated in s 477(1) erroneously if that decision was founded on a misconstruction of s 477(1). Notwithstanding the Minister's concession, as was observed in Craig, in this category of alleged jurisdictional error, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern. Therefore, I approach the issue of jurisdictional error from the perspective that I must be satisfied, if there were error on the part of the primary judge in her construction of s 477(1), that the error must be found to have been jurisdictional in the sense that it rendered her judgment unauthorised and beyond jurisdiction. As explained later, that includes being satisfied that any error was material.

Applicable principles of statutory interpretation

1. While the analysis of the meaning of a provision in a statute or legislative instrument starts and finishes with the text, the text must be considered in context and having regard to the legislative purpose: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Where different interpretations are open, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth) s 15AA. To that end, material not forming part of the Act that is capable of assisting in the ascertainment of the meaning of the provision may be taken into account, either to confirm the ordinary meaning of the provision or to determine the meaning in cases where meaning is ambiguous, obscure, absurd or unreasonable: Interpretation Act s 15AB.
2. As to the text, 'the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning': Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ) (footnotes omitted).
3. As to purpose, in CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) summarised the 'modern approach to statutory interpretation' as follows:

... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

(Footnotes omitted.)

1. As to extrinsic materials, s 15AB of the Interpretation Act provides that in the interpretation of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when it is ambiguous or obscure, or the ordinary meaning (taking into account its context in the Act and the purpose or object underlying the Act) leads to a result that is manifestly absurd or unreasonable.

However, the High Court has consistently emphasised that the task of statutory construction must begin with a consideration of the text. 'The statutory text must be considered in its context.' 'Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.': Consolidated Media Holdings at [39] (footnotes omitted). Section 15AB 'does not contemplate that explanatory memoranda might be used by officers of the Executive Government writing them, or by courts considering them, to add to or detract from the text of an enacted provision. Axiomatically, an explanatory memorandum "cannot displace the meaning of the statutory text" and cannot be "substituted for the text"': Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 at [70] (Gageler J) (footnotes omitted).

1. As already noted earlier in these reasons, s 477 is within Pt 8 of the Act which deals with judicial review. That Part and s 477 has its origins in a series of reforms that began with the Migration Legislation Amendment Act 1989 (Cth) and ended with the Migration Legislation Amendment Act (No. 1) 2009 (Cth).
2. The 1989 reforms replaced a broad Ministerial discretion to grant visas with codified criteria. The Migration Internal Review Office, an internal departmental review body, and the Immigration Review Tribunal, a specialist and independent merits review body were created. The MIRO and IRT stood in the shoes of the original decision-maker and made decisions afresh. In terms of judicial review, the Federal Court was given jurisdiction to review decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act. Judicial review was also available in the original jurisdiction of the High Court under s 75(v) of the Constitution: see, generally, Bicket R, 'Controlling Immigration Litigation: The Commonwealth Perspective', (2010) 63 AIAL F J 40.
3. In 1994 significant amendments were made to the Act through the Migration Reform Act 1992 (Cth) which came into force in 1994. That Act expanded the jurisdiction of the IRT to deal with most visa refusal decisions and created the Refugee Review Tribunal to hear and determine appeals in relation to the refusal to grant refugee visas. The Migration Reform Act also introduced Pt 8 and provisions that prevented review under the ADJR Act and limited review under s 39B of the Judiciary Act. The provisions reduced the grounds of review and excluded review on grounds of natural justice, failure to take into account relevant considerations and taking into account irrelevant considerations, making a decision so unreasonable that no reasonable person could have made it, and apprehended bias. Coupled with the provisions restricting the scope of judicial review were provisions that conferred jurisdiction on the Federal Court to hear and determine applications for judicial review provided that applications were lodged within 28 days of the decision, but there was no power of the Court to extend the time for making such applications: see, generally, Bicket.
4. At that time the relevant time limit provision was in the following terms:

SECT 478 - Application for review by Federal Court

(1) An application under s 476 or 477 must:

(a) be made in such manner as is specified in the Rules of the Court made under the Federal Court of Australia Act 1976; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).

1. In 2001 further reforms were made to the scope of judicial review for decisions made under the Act when the Migration Legislation (Judicial Review) Act 2001 (Cth) came into force. That Act amended Pt 8. A key element of the reforms enacted was to introduce the concept of a 'privative clause decision'. The evident intention of the new provisions was to expand the validity of administrative decisions and further limit the scope of judicial review.
2. In the meantime, in 1999 the Federal Magistrates Act 1999 (Cth) came into force. That Act created the Federal Magistrates Court (also known as the Federal Magistrates Service) as a federal court under Ch III of the Constitution. The explanatory memorandum to the Federal Magistrates Court Bill 1999 (at p16) indicated that operating without undue formality would be a key factor in the running of the new court. The provisions introduced through ss 42, 44, 45 and 46 of the Act were expressed (at p 4) to introduce provisions which were innovative and designed to assist the court to develop procedures that were as simple and efficient as possible.
3. After enactment of the Judicial Review Act, the Jurisdiction of the Federal Magistrates Services Legislation Amendment Act 2001 (Cth) was enacted and came into force by which the jurisdiction of the Federal Magistrates Court was expanded to include concurrent jurisdiction with the Federal Court under Pt 8 of the Act. The explanatory memorandum to the Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001 (at p 1) explained the rationale for that concurrent jurisdiction in the following terms:

The Federal Magistrates Act 1999 and its companion consequential amendments Act provided for the establishment of the Federal Magistrates Service. The Service has developed procedures that aim to be as streamlined and as user-friendly as possible, reducing delay and costs to litigants.

...

Many migration matters are of a routine nature and would be suitable for the Service. The proposed additional jurisdiction in migration matters will be a significant step in broadening the Service's jurisdiction beyond family law matters, which has been the main focus of its work.

1. After the enactment of the Judicial Review Act and Jurisdiction of the Federal Magistrates Services Act, subject to the limitations of the scope of the jurisdiction of the Federal Magistrates Court and Federal Court set out in ss 474 - 477 and s 483A, by operation of s 484 of the Act, the jurisdiction of those courts was exclusive of the jurisdiction of all other courts except the High Court. Therefore, by 2001, in addition to limits on the scope of the courts' jurisdiction, time limits were imposed for making applications to each of the Federal Court, Federal Magistrates Court and High Court in the following terms:

477 Time limits on applications for judicial review

(1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for:

(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.

(1A) An application to the Federal Magistrates Court under section 483A for:

(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.

(2) The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.

...

486A Time limit on applications to the High Court for judicial review

(1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision.

(2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35 day period.

...

1. In Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 the High Court construed the privative clause provision in s 474 in such a manner that it could not have the effect of excluding judicial review for jurisdictional error. That is, decisions that purported to be privative clause decisions, but that were decisions founded on jurisdictional error were not a privative clause decision within the meaning of the Act. The majority also held that s 486A (the time limitation provision for applications to the High Court) was not applicable to applications for judicial review founded on jurisdictional error. As a consequence, neither s 477 nor s 486A applied to applications for judicial review founded on jurisdictional error or to a purported privative clause decision.
2. Following Plaintiff S157, in 2005, the Migration Litigation Reform Act 2005 (Cth) was enacted and came into force. That Act introduced the concept of a 'purported privative clause decision' with the evident intention of making Pt 8 and Pt 8A, including the time limits for making applications for judicial review, applicable to both privative clause decisions and purported privative clause decisions: Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) at [45]-[48].
3. The Litigation Reform Act also made substantial changes to the provisions in Pt 8 and Pt 8A of the Act. The explanatory memorandum to the Migration Litigation Reform Bill 2005 (at p 1 - p 2) explains that there were five key areas of reform intended to improve migration litigation as follows:

(i) directing migration cases to the FMC for more efficient handling

Directing migration cases to the FMC is central to the Government's package of reforms for more efficient handling of migration cases. The FMC was established to resolve expeditiously a high volume of less complex and shorter matters, making it a suitable forum for most migration cases.

The Federal Court will have limited jurisdiction under the Migration Act in relation to migration cases. This will comprise, first, complex migration cases transferred from the FMC to the Federal Court and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under section 501, 501A, 501B or 501C of the Migration Act. This second group of migration cases involve decisions not to grant or cancel a visa, or involve deportation of a person, on character grounds. (otherwise known as 'character-related decisions').

Consistent with the key reform of directing migration cases to the FMC, the Bill also channels nearly all migration cases remitted from the High Court directly to the FMC. Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AAT or the Minister personally.

(ii) ensuring identical grounds of review in migration cases

The grounds of review in migration cases in the FMC under the Migration Act will be the same as in the High Court under section 75(v) of the Constitution. Identical grounds of judicial review in these cases, whether applications are filed in the High Court or the FMC or the application comes within the limited jurisdiction of the Federal Court as described above, reduces incentive for applicants to commence matters in the High Court.

(iii) imposing uniform time limits in all migration cases

The Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court.

Applications must be made within 28 days of an applicant having received actual notice of the decision he or she seeks to review. The Court may extend the 28 day time limit by a further period of up to 56 days provided the person seeking to file the application makes the request for an extension of time within 84 days of actual notification of the tribunal decision (or decision of the Minister or delegate) and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit.

(iv) facilitating quicker handling of cases by improving court processes

The Bill also includes amendments to improve court processes. These amendments are designed to complement the reforms implemented by the Bill to direct migration cases to the FMC for quicker handling.

Improvements to court processes include:

• requiring applicants to disclose previous applications for judicial review of the same migration decision, which will assist the courts to identify early in the process applicants seeking to re-litigate matters,
• providing that appeals from decisions of federal magistrates made under the Migration Act will be heard by a Federal Court judge sitting alone, unless a judge considers it is appropriate to refer the case to a Full Court, and
• expressly providing for the High Court to remit migration and other cases filed in the High Court's original jurisdiction on the papers.

(v) deterring unmeritorious applications

The Bill strengthens the power of the High Court, Federal Court and FMC to deal with unmeritorious proceedings by broadening the grounds on which a court can summarily dispose of proceedings. A court will be able to dispose of a matter summarily where it is satisfied that there are no reasonable prospects of success. This provision will have general application.

...

1. Section 476 and s 476A of the Act both conferred and divided jurisdiction for judicial review of migration decisions between the Federal Magistrates Court and Federal Court. Sections 477, 477A and 486A introduced uniform time limits for making applications for judicial review to the Federal Magistrates Court, Federal Court and High Court. Section 477 (Federal Magistrates Court) was then in the following terms:

477 Time limits on applications to the Federal Magistrates Court

(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

...

1. Item 18 of the explanatory memorandum to the Migration Litigation Reform Bill 2005 explained the rationale for s 477 relevantly as follows:

Item 18 Section 477

1. This item repeals section 477 and inserts new sections 477 and 477A. These sections provide time limits for applications for judicial review of migration decisions filed in the FMC (section 477) and the Federal Court (section 477A). A key part of this package of legislative reforms is to impose uniform time limits in migration cases in the FMC, the Federal Court and the High Court.

Time limits on applications to the Federal Magistrates Court 21.

1. Subsection 477(1) requires applications for judicial review of migration decisions in relation to which the FMC has jurisdiction under section 476 to be filed in the FMC within 28 days of the applicant receiving actual notification of the decision.
2. If the application for judicial review is not filed in the FMC within 28 days of actual notification of the decision, the applicant may seek an order from the FMC to extend the time limit by up to 56 days. Subsection 477(2) empowers the FMC to make an order to extend the time limit only if the person seeking the extension has sought the order within 84 days of actual notification of the decision and the FMC is satisfied that it is in the interests of the administration of justice to extend the time limit.
3. Subsection 477(3) provides that, except in accordance with subsection 477(2), the FMC must not make an order allowing an applicant to make an application outside the 28 day period.
4. Subsection 477(4) allows regulations to be made prescribing how persons may be notified of a decision for the purposes of section 477.
5. The FMC will only be able to transfer a migration case to the Federal Court as referred to in paragraph 476A(1)(a) (item 17) if the application is filed in the FMC within the time limit specified in subsection 477(1) or within any longer period permitted by the FMC in accordance with subsection 477(2).

1. In Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651, the High Court held that s 486A of the Act was invalid because it curtailed or limited the right or ability of the applicant to seek relief under s 75(v) of the Constitution in that it applied to purported privative clause decisions and restricted the time for making an application and the High Court's ability to extend time. Further, in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105; (2007) 159 FCR 565, the Full Court (Gyles, Jacobson and Buchanan JJ) held that 'actual (as opposed to deemed) notification of the decision' for the purposes of s 477(1) required physical delivery of a written statement to the applicant personally before the 28-day time limit began to run (at [37], [47], [49] (Buchanan J) (Gyles and Jacobson agreeing at [1] and [5])).
2. Following Bodruddaza and SZKKC, in 2009, the Migration Legislation Amendment Act (No. 1) 2009 (Cth) was enacted and came into force. That Act made amendments to ss 477, 477A and 486A. These amendments made the time limit 35 days, not 28 days, and that time was to run from the date of the migration decision, not the date of actual (as opposed to deemed) notification of the decision. The amendments also removed the restrictions on the courts' power to extend time and replaced it with a general discretion to extend time. After 2009, s 477 remained unamended except to change the name of the Federal Magistrates Court to the Federal Circuit Court in 2013 after the enactment and coming into force of the Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) and Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth). Following those amendments, s 477 was in the terms set out earlier in these reasons at [7].
3. The explanatory memorandum to the Migration Legislation Amendment Bill (No. 2) 2008 explained the rationale for the amendments to s 477(1) and s 477(2) as follows:

SCHEDULE 2 - Amendments relating to judicial review

Migration Act 1958

Item 1 Subsection 477(1)

1. This item amends subsection 477(1) by omitting the words "28 days of the actual (as opposed to deemed) notification of the decision" and replacing them with the words "35 days of the date of the migration decision".

2. Subsection 477(1) currently provides that where a person applies to the Federal Magistrates Court ('the FMC') for a remedy in exercise of the Court's original jurisdiction, the person must make the application within 28 days of the actual notification of the decision (rather than deemed notification).

3. Two important changes to subsection 477(1) are made by this item. Firstly, the 28 day period for lodging an application to the FMC for judicial review of a migration decision will be changed to 35 days. Secondly, the new 35 day period will commence to run from the "date of the migration decision" rather than from the time of actual notification.

4. This item removes actual notification as the time from which the time period for seeking judicial review starts to run because it can be difficult to establish when and if, an applicant is actually notified. In addition, for migration decisions made by the Migration Review Tribunal and the Refugee Review Tribunal ('the Tribunals'), the Full Federal Court held in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 ('SZKKC') that the time period for seeking judicial review of a Tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the Tribunal by a person authorised by the Registrar of the Tribunal. It would be expensive and impractical for the Tribunals to implement the practice of personally serving a written statement of the reasons for the decision. As a result, the time limits for seeking judicial review of a migration decision in subsection 477(1) are not currently effective.

5. The change to the 'date of the migration decision' from which time commences to run for the purpose of time limits for seeking judicial review of a migration decision, will provide greater certainty and overcome the practical difficulties associated with personally serving a written statement of reasons. Item 2 of this Schedule inserts a definition of "date of the migration decision".

Item 2 Subsections 477(2), (3) and (4)

1. This item repeals subsections 477(2), (3) and (4) of the Act and substitutes new subsections 477(2), (3), (4) and (5).
2. Current subsection 477(2) provides that the FMC may, by order, extend the current 28 day time period for seeking judicial review of a migration decision by up to 56 days if:

• an application for that order is made within 84 days of the actual notification of the decision; and
• the FMC is satisfied that it is in the interests of the administration of justice to make the order to extend time.
  1. Current subsection 477(3) provides that the FMC may not make an order extending time to apply for judicial review of a migration decision, outside the 28 day period, other than that provided for by subsection (2). This provision is now redundant as a result of the amendment to subsection 477(2) by this item which provides the FMC with broad discretion to extend time. Current subsection 477(4) provides that the regulations may prescribe the way of notifying a person of a decision for the purposes of section 477. However, this provision is no longer necessary because new subsection 477(1) provides that the time for applying for review of a migration decision will run from the date of a migration decision and not from notification. There are currently no regulations made under subsection 477(4).
  2. New subsection 477(2) will enable the FMC to order an extension of the 35 day time period for applying for judicial review of a migration decision if paragraphs (a) and (b) are satisfied. Paragraph 477(2)(a) will now require applicants to state in their applications why they consider it necessary in the interests of the administration of justice for the FMC to make the extension of time order. Requiring applicants to give reasons in their applications for an extension of time will assist the FMC by drawing early attention to cases where there is a compelling reason to grant an extension of the time. This may assist the Court to deal with requests for extension of time more quickly and may thereby result in a more efficient use of court resources.
  3. New paragraph 477(2)(b) provides that the FMC must be satisfied that it is necessary in the interests of the administration of justice to make the order to extend the 35 day time period. This paragraph provides a new test for the granting of extension time orders. It also removes, the restriction on the period by which the FMC may extend time (56 days) and the requirement that the application must be made within 84 days. The FMC will have broad discretion to extend time for applying for judicial review of a migration decision by whatever period it considers appropriate, provided the FMC is satisfied that it is necessary in the interests of the administration of justice. Vesting the FMC with broad discretion to extend time where it is necessary in the interests of the administration of justice will protect applicants from possible injustice.

Some observations about the relevant context, purpose and extrinsic material

1. As already mentioned, the Minister submits, by reference to the phrases 'applications ... filed in the FMC' and 'application for judicial review is not filed in the FMC within 28 days' in the explanatory memorandum to the Migration Litigation Amendment Bill 2005 quoted above that there was a manifest intention of the legislature for the time limit in s 477 to commence running from the filing of an application in the Federal Circuit Court in accordance with the rules of that court. I do not accept that submission for the following reasons.
2. The submission misapprehends the manner in which extrinsic evidence may be used to assist in the interpretation of legislation. As explained earlier in these reasons, s 15AB of the Interpretation Act 'does not contemplate that explanatory memoranda might be used by officers of the Executive Government writing them, or by courts considering them, to add to or detract from the text of enacted provision' and cannot displace or be substituted for the statutory text.
3. In any event, the submission takes the references to 'filed' out of the context of the description of the purpose or object of the legislation in the explanatory memorandum as a whole and out of the context of the legislative history of Pt 8 of the Act. The general outline of the explanatory memorandum to the Migration Litigation Amendment Bill 2005 identifies the key areas of reform and uses language more consistent with the text of the provisions, as enacted. For example, the 'Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC ...' (emphasis added).
4. The explanatory memorandum to the Migration Legislation Amendment (No. 2) Bill 2008 refers to 'the 28 day period for lodging an application to the FMC for judicial review of a migration decision will be changed to 35 days' (emphasis added). That is language that is consistent with the statutory text as enacted before the 2001 amendments, which referred to lodging applications in the Federal Court, not filing applications as such. In other words, the more recent explanatory memorandum uses language of the concept of 'lodging' as opposed to the concept of 'filing' of applications. The concept of 'lodging' is akin to 'making an application' as it is a step taken by an applicant to invoke the jurisdiction of a court. Given the use of different concepts to describe applications to the court in different explanatory memoranda dealing with the same subject matter, nothing of any moment can be drawn from the use of the concept of 'filing' in the 2005 explanatory memorandum.
5. Having regard to the legislative history and relevant explanatory memoranda, the current provisions of Pt 8 (and Pt 8A) of the Act reflect an evident purpose or object of the legislature to limit judicial review of migration decisions made by administrative decision-makers under the Act. The limitation is imposed through a privative clause that restricts judicial review to decisions involving jurisdictional error and through a relatively short period of time to apply to a court, subject to a discretion to extend time, for review of the decision. That may be regarded as the purpose or object of Pt 8 (and Pt 8A) of the Act which informs the construction of s 477(1) and the meaning of 'application ... made to the court'.
6. In so far as the jurisdiction of the Federal Circuit Court is concerned, it is also relevant that the evident purpose or object of the legislature from 2005 was to divert the vast majority migration litigation to the Federal Magistrates Court, later the Federal Circuit Court and now the Federal Circuit and Family Court of Australia (Division 2). A feature and apparent virtue of that court identified in the relevant explanatory memoranda was the absence of formality, innovative and efficient processes of the Federal Magistrates Court. Having regard to that evident purpose or object of utilising the Federal Circuit Court for most migration litigation due to its lack of formality, innovative and efficient processes, it would be somewhat inconsistent with that purpose to place an unduly formal or technical meaning on 'application to the Federal Circuit Court' for the purposes of s 477(1) of the Act.
7. It is also significant that in 2005 the legislature intended to introduce uniform time limits and provisions for extending time for all applications for judicial review of decisions made under the Act whether made to the Federal Magistrates Court, the Federal Court or the High Court. That suggests that 'application to [the applicable court]' when used in ss 477(1), 477A(1) and 486A(1) should have a consistent meaning and not turn on compliance with the formalities of the rules of each of the Federal Circuit Court, Federal Court and High Court. That is particularly so when there is concurrent jurisdiction between the Federal Circuit Court and High Court and a purpose of the provisions was to facilitate the High Court remitting migration litigation falling within the jurisdiction of the Federal Circuit Court commenced in the High Court to Federal Circuit Court.

Applicable provisions of the Federal Circuit Court Act and Rules

1. As of September 2020, s 43 of the FCCA Act provided that the practice and procedure of that court was to be in accordance with the FCC Rules made in accordance with s 81 of the Act.
2. Section 46 of the FCCA Act dealt with filing of documents in the Federal Circuit Court. It was in the following terms:

46 Filing of documents in the Federal Circuit Court of Australia

(1) If a document is required or permitted to be filed in the Federal Circuit Court of Australia:

(a) the document is to be filed:

(i) at a registry of the Federal Circuit Court of Australia; or

(ii) in accordance with an arrangement under section 90 or 91; and

(b) the document is to be filed in accordance with the Rules of Court.

(2) The Rules of Court may provide that the requirements of subsection (1) are taken to have been met in relation to a document:

(a) if the document, or its contents, is or are given to the Federal Circuit Court of Australia, in accordance with specified software requirements, by way of a specified kind of electronic transmission; or

(b) in such other circumstances (if any) as are ascertained in accordance with the Rules of Court.

1. Section 50 dealt with instituting proceedings by application and was in the following terms:

50 Proceedings may be instituted by application

(1) Proceedings may be instituted in the Federal Circuit Court of Australia by way of application without the need for pleadings.

(2) Subsection (1) has effect subject to the Rules of Court.

1. The word 'filed' is traditionally used to describe the act or process of placing documents in the records of a court or registry: Johnston v Vintage Developments Pty Limited (ACN 067 567 006) [2006] FCAFC 171 at [16] (Tamberlin, Jacobsen and Rares JJ); citing Purden Pty Ltd v Registrar in Bankruptcy [1982] FCA 132; (1982) 64 FLR 306 at 309-310 (Bowen CJ, Fisher and Lockhart JJ); Hong v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 82 FCR 468 at 471C-D, 473B (Burchett, Lehane and Finkelstein JJ). In this context the act of filing a document is the act of the Court, as opposed to the act of lodging it, which is the act of a party: Johnston at [16]. As is reflected in s 46 and s 50 of the FCCA Act, the concept of 'filing' a document in a court is distinct and separate from the concept of 'instituting' proceedings in a court by way of an application to that court.
2. The FCC Rules also recognised and maintained the distinction between accepting a document for filing and starting or instituting proceedings. Part 2 of the FCC Rules dealt with filing and Pt 4 with starting proceedings. Part 44 dealt specifically with applications made under s 476 of the Act. Rule 44.05 provided that an application under that section must be made in accordance with the approved form. Rule 4.01 provided that a proceeding must be started by 'filing an application in accordance with the approved form'. Rule 2.05(1) provided that a document may be filed by: (a) delivering it to the registry; or (b) sending it to the registry by post; or (c) fax or electronic communication, as permitted by the Rules. Rule 2.05(2) provided that a document is filed when it is accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp. Rule 2.05(3) provided that a document sent by fax or electronic communication, if accepted, is taken to have been filed: (a) if the whole document is received by 4.30pm on a day the Registry is open for business - on that day; and (b) in any other case - on the next day the Registry is open for business. Although 'filing' and 'filed' were used both to describe the process by which proceedings were started and to describe when a document was accepted for filing, the concept of starting a proceeding and accepting a document for filing remain distinct and separate in the FCC Rules.
3. Proceedings were started by 'filing' an application in an approved form by one of the methods described in r 2.05(1). However, the application was 'filed' in the traditional sense of that word, when the document was accepted for filing by a Registrar and sealed or stamped or taken to have been filed as set out in r 2.05(2) and r 2.05(3).
4. It is also important to keep in mind that s 3(2) of the FCCA Act provided that the objects of that Act included enabling the Federal Circuit Court to operate as informally as possible and to use streamlined procedures. Further, s 42 provided that the Federal Circuit Court must proceed without undue formality. Rule 1.03 of the FCC Rules provided that the object of the Rules was to assist the just, efficient and economical resolution of proceedings and that the Rules aimed to help the court operate as informally as possible, use streamlined processes and parties must avoid undue delay, expense and technicality. Rule 1.06 provided that the court may in the interests of justice dispense with compliance, or full compliance, with any of the Rules at any time and that any direction or order inconsistent with the Rules would prevail. Rule 2.04(1) provided that, unless the court otherwise orders, strict compliance with approved forms was not required and substantial compliance was sufficient. Accordingly, as Colvin J observed, with respect correctly, in AMB19 v Minister for Home Affairs [2020] FCA 439 at [60]:

These aspects of the Rules reflect the terms of the Federal Circuit Court of Australia Act 1999 (Cth) which identify an express statutory object of the legislation as being, 'to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power': s 3(2)(a). Further, the Court 'must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted': s 42. It is in that context that the legislation states that the Rules may provide for the practice and procedure to be followed in registries of the Court: s 81(1)(a). Therefore, Therefore, it is not to be expected that the Rules would provide for undue technicalities or formalities as to the filing of documents or that the Registry of the Court would be administered in a manner that would have that effect.

1. In keeping with the informal and flexible procedures of the Federal Circuit Court, it is to be expected that no particular form was necessary to invoke the jurisdiction of that court. Any document provided to the court which sufficiently evidenced an intention to invoke the jurisdiction of the court may be considered to have been an application to that court. Once the jurisdiction is invoked, the court may exercise its powers to dispense with formalities and the rules: see, e.g., Fernando v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 975 at [10]- [15]; Yong v Minister for Immigration and Multicultural Affairs [1997] FCA 495; (1997) 75 FCR 155 at 167-169. In Zhen Gang Liu v Minister for Immigration & Multicultural Affairs [1997] FCA 179; (1997) 72 FCR 345 (at 348) Davies J found that a document that 'on its face' sought review by the Federal Court of a migration decision that explained in general (not legal) terms the reasons for review but did not name the respondent, was taken to be 'an application'.
2. In SZICV v Minister for Immigration and Citizenship [2007] FCAFC 39; (2007) 158 FCR 260, although in dissent, Moore J considered that a document filed with the heading 'Application under the Migration Act' which was out of time and did not tick the box relating to an accompanying application for an extension of time nevertheless sought to invoke the jurisdiction of the Federal Magistrates Court under s 476 of the Act and should have been treated as an application for an order extending time having regard to the Federal Magistrates Act and Rules: SZICV at [1], [9]. The majority, Buchanan J (Besanko J, agreeing) considered that an application for an extension of time could not be implied in the document filed. Buchanan J considered that there had to be an application or request of no particular formality within the time stipulated, at that time, for making an application for an extension of time. '[S]ome initiative from the [applicant] or having his authority, is clearly necessary'. 'The use of the term "application" itself posits a definite step which can be evaluated against the statutory context': SZICV at [71]. That is, a definite step of the applicant.

Literal and legal meaning of s 477(1) of the Act

1. Section 477(1) does not refer to an application 'filed' in the Federal Circuit Court. The text of the provision is that 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' (emphasis added). The concept of 'making an application' to a court is unilateral. It is an act that is within the power of the applicant to perform. The concept of 'filing an application' in a court is bilateral. It is an act that is not exclusively within the power of the applicant to perform as it depends upon the court accepting the application and making it part of the court file. Broadly, the purpose of s 477(1) is to require an applicant to invoke the jurisdiction of the Federal Circuit Court to grant a remedy for jurisdictional error promptly. It is not to require the court to process an application for judicial review and accept it for filing in a timely manner. Put another way, the purpose of the provision is to place a limit on applications to the Federal Circuit Court, not a limit on what applications are accepted for filing in that court once made.
2. The Macquarie Dictionary relevantly defines the word 'made' as an adjective to mean 'produced by making, preparing, etc.' and the past tense past participle of 'make' to mean 'brought into existence or produced by any action or causative agency'. The Macquarie Dictionary relevantly defines 'application' to mean 'the act of applying' or 'the act of requesting' or 'a written or oral request or appeal'. Therefore, in context, the natural and ordinary meaning of the phrase 'application ... made to the court' is the act of having brought into existence a written (or possibly oral) request to the court. That is a request to the court for judicial review of a migration decision. Put another way, a person must invoke the Federal Circuit Court's jurisdiction to grant a remedy under s 476 of the Act within 35 days of the relevant migration decision.
3. As already noted, the act of making an application to a court is unilateral. It does not require the court to accept the application. Section 477(1) was concerned with ensuring that the jurisdiction of the Federal Circuit Court conferred under s 476 of the Act was invoked promptly after the relevant migration decision was made. It was not concerned with the particular process or court rules by which that jurisdiction was invoked. It is concerned with that part of invoking the court's jurisdiction that is within the power and control of the applicant. The administrative process of the court falls outside that power and control.
4. In Hong the Court (Burchett, Lehane and Finkelstein JJ) considered s 478(1) of the Act as enacted after the Migration Reform Act referred to earlier in these reasons, which required applications for judicial review of migration decisions to be made to the Federal Court in such manner as was specified in the Federal Court Rules and to be 'lodged' with a Registry of the Federal Court within 28 days of notification of the decision. An issue for consideration in that case was whether an application was 'lodged' when sent to the Registry by facsimile. The Court made the following observations (at 471) that are relevant to the interpretation of s 477(1) in this case:

In accordance with these meanings an application to review will be "lodged" when it comes into the possession of a Registry or the staff of a Registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the Registry staff or, if the application is posted, when it is received by the Registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the Registry when the transmission is complete: compare Talbot v NRMA Holdings Ltd (1996) 68 FCR 590; 139 ALR 755.

1. The Court considered that the view expressed in the passage cited above was supported by Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477 and Francis v City of Ringwood (1978) 54 LGRA 323: Hong at 471-473. The Court then rejected a similar argument to that which the Minister makes in these proceedings to the effect that an application for review is not 'lodged' unless there is conduct by the Registry staff that signifies that the document has been accepted as a document lodged with the Registry. As to that argument the Court said (Hong at 473):

Apart from the fact that this contention was not accepted by the majority in Angus Fire Armour we would in any event reject it for the following reasons. First, it does not conform to the ordinary meaning of the word "lodged". Secondly, it ignores the distinction that has been made in the cases between "lodging" a document which is an act of a party and "filing" a document which is an act of the court. Thirdly, it assumes that a person delivering a document to a Registry will be advised whether the document is accepted or not. Thus it has the potential to bring about a significant degree of uncertainty. Fourthly, for all practical purposes it will deny to an applicant the ability to post an application to review to a Registry. If sent by post the applicant may not know for some time whether his or her application has been accepted in the sense explained by Jenkinson J. If the application is rejected because it is deficient in some respect the time within which an application must be lodged might have passed before an applicant could be aware of the fact that his or her application had not been accepted. Fifth, for the same reasons it would deny an applicant the ability to lodge a document by facsimile transmission. Finally, it could result in the position that an application for review that is made in the manner specified by the Rules and delivered to the Registry within the time specified by s 478 but is wrongly rejected as being deficient (that is not accepted by the Registry staff) will not be regarded as having been lodged. A construction of the meaning of the word "lodged" that would permit any of these results should be avoided.

1. The section of the Act under consideration in Hong specifically required the application to be 'made in such manner as [was] specified in the Rules of Court' and that was regarded as insufficient to import into that requirement the concept of 'filing' a document in accordance with those rules. The section under consideration was 'concerned with an act of a party and not an act of the Court'. That distinction was important and is also contained in s 477(1) in that it is an application 'made to the court'. The Court in Hong reasoned by reference to that distinction that the concept of 'lodge' was not synonymous with 'file'. A person who lodges a document does not have the power or ability to file that document among the records of the Court or its registry. The same can be said of an 'application ... made to the court'. A person who makes an application has no power or ability to 'file' that application in the sense of accepting it for filing.
2. There is no reason here to distinguish between an application 'lodged' for the purposes of the provision under consideration in Hong and application 'made' for the purposes of s 477(1). The reasoning of the Court in Hong is apposite and provides highly persuasive authority regarding the approach that should be taken to interpreting s 477(1).

1. The legislative history, context, purpose and object of Pt 8 of the Act do not demand that 'application ... made to the court' where used in s 477(1) be given any special or technical meaning. Even if s 477(1) were to be read as necessitating that an application be made in accordance with the FCC Rules, those rules provided for significant flexibility in the means by which the jurisdiction of that court may be invoked. Moreover, an evident purpose and object of the FCCA Act and FCC Rules was to promote access to justice by adopting informal and flexible procedures. Therefore, application of the FCCA Act and FCC Rules provide no support for the contention that Parliament intended 'application ... made to the court' in s 477(1) to mean an application made in the Federal Circuit Court which strictly conforms to the form and other requirements in the rules of that court as applicable from time to time to applications for judicial review of migration decisions invoking the court's original jurisdiction under s 476 of the Act.
2. The preceding matters lead me to conclude that an 'application ... made to the court' for the purpose of s 477(1) does not mean an 'application ... filed in the court'. That is, it is not necessary that an application has been made, accepted for filing and has become part of the records of the court before it is an 'application ... made to the court' for the purposes of the time stipulated in s 477(1).
3. For the purposes of s 477(1) of the Act, an application to the Federal Circuit Court for a remedy to be granted in the exercise of that court's original jurisdiction under s 476 in relation to a migration decision is made to that court when a request, of no particular formality, for such a remedy comes into the possession of the registry of that court. That interpretation conforms with the literal or legal meaning of the statutory text and is consistent with the legislative history, context, purpose and object of the Pt 8 of the Act as set out and described earlier in these reasons.

The primary judge misconstrued s 477(1) of the Act

1. The primary judge's focus was on the time at which an application was accepted for filing by the court (PJ [29]) and whether an application was 'filed' within 35 days (PJ [34]). That is, the primary judge failed to take account of the language of s 477(1) and consider if the applicant had 'made' an application 'to the court' within 35 days. That was an error and misconstruction of s 477(1) of the Act.

Was the primary judge's misconstruction a jurisdictional error?

1. As explained earlier in these reasons, as the Federal Circuit Court was a court of limited jurisdiction it is amenable to a constitutional writ for 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 power in a case where it correctly recognises that jurisdiction exists. As the Minister has, in substance, correctly accepted, misconstruction of s 477(1) of the Act that results in the Federal Circuit Court mistakenly denying the existence of jurisdiction or failing to exercise jurisdiction may amount to jurisdictional error. However, that concession and my acceptance of it is subject to two qualifications.
2. First, acceptance that an error resulting in a mistaken failure to exercise jurisdiction under s 476 read with s 477(1) of the Act should not be understood as endorsing the view that an error of fact founded on a correct understanding and construction of s 477(1) would necessarily amount to jurisdictional error (absence of a jurisdictional fact). I express no view on that matter.
3. Second, '[o]rdinarily, a statute which impliedly requires [as a condition of a statutory conferral of decision-making authority that a decision-maker must proceed by reference to correct legal principles, correctly applied] is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance': Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29].
4. Materiality involves consideration of 'the basal factual question of how the decision that was in fact made was in fact made'. That question is determined by proof of historical facts on the balance of probabilities. It is then necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined': Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32], citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38].
5. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard 'reasonable conjecture' is undemanding: Nathanson at [33]. The same may be said of a decision-maker that has failed to take into account a mandatory relevant consideration. There would generally be a realistic possibly of a different outcome unless the consideration was 'so insignificant that the failure to take it into account could not have materially affected' the decision that was made: Hossain at [30] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40. The same principles apply where a consideration that a decision-maker was bound to disregard has been taken into account by that decision-maker. Therefore, a misconstruction of s 477(1) of the Act that has not resulted in a mistaken failure to exercise jurisdiction or could not have resulted in a different outcome (a decision on the correct legal principles to the effect that an application was made within time) would not amount to jurisdictional error.
6. The Minister has not raised materiality. The Minister's concession is, in terms, that if the Minister's construction of s 477(1) is rejected and 'on the facts as found by the primary judge the applicant's application for judicial review is found to have been made within the time period referred to in s 477(1), the primary judge will have made a jurisdictional error'. That concession does not address circumstances in which the primary judge, because of a misconstruction of s 477(1), failed to identify the correct issues and make determinations on the facts germane to the proper construction of s 477(1). If on the facts, as found, there was no realistic possibility of a different outcome based on the correct construction of s 477(1) there would be no jurisdictional error. However, if there were a failure to identify the correct issues and make factual findings on those issues, the undemanding threshold of 'reasonable conjecture' is likely to be crossed and the error would be jurisdictional.
7. In this case, the primary judge's error was material because if she had not asked herself the wrong question she would have had to have made a number of additional findings of fact to determine if the applicant had made an application on 29 September 2020. There are a number of reasons for considering that, on the evidence the primary judge accepted or that was before her, findings could have been made to the effect that the application was made on 29 September 2020.
8. Relevantly, as explained earlier in these reasons, an application is made to the court when it is received by or comes into the possession of the court. As the Court observed in Hong, the means by which it comes into the possession or is received by the court does not matter. If an application is sent by electronic mail to an email address for the Registry, applying general principles, it is reasonably arguable that the email would be received and in the possession of the Registry at the time at which it is capable of being retrieved by the registry staff at its electronic address. See, e.g., Electronic Transactions Act 1999 (Cth) ss 9, 14A and 14B. The primary judge made no findings about the time at which the Registry came into possession of the emails from the applicant. However, as each email was evidently dated 29 September 2020 and timed 12:57pm (screenshot) and 9:03pm (email tendered), if the primary judge had asked herself the correct question she could have reached the conclusion that each email came into the possession of the Registry on 29 September 2020.
9. It is reasonably arguable that an application in the form required by the FCC Rules sent to and received by the Federal Circuit Court registry would meet the description of an application made to the court. Regarding the 9:03pm email that was addressed to 'perth.registry@fedcourt.gov.au' attaching the application (without an application for an extension of time) and affidavit, the primary judge said that the 'email does not show that the applicant attempted to file, or that the Registry received, an application within the 35-day time period' (emphasis added) (PJ [30]). The primary judge's reasoning here appears to be linked to her reasoning to the effect that documents received after 4.30pm on 29 September 2020 were taken to have been filed on 30 September 2020. The primary judge appears to have used 'received' to mean received before 4.30pm. However, on the face of the email, it can be inferred that it was received (as a question of fact) around 9.03pm on 29 September 2020.
10. It was common ground that for the application to be within the 35-day time period the application had to be 'made to the court' before 30 September 2020 or until the end of 29 September 2020. Put another way, as 29 September 2020 was the last day, the application had to be made within that day. A day is, in general, to be considered an indivisible unit of time and 'an act "done in the compass of a day" cannot properly be said to passed until the day is passed'. Further, a day runs from midnight to midnight: Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 at 273, 280. Therefore, irrespective of whether or not the Registry was open for business at 11.59pm on 29 September 2020, it is reasonably arguable that an application received electronically at or before that time would be 'made to the court' within that day; namely 29 September 2020.
11. It follows that it is reasonably arguable that the email to the Registry of 29 September 2020 timed at 9.03pm resulted in the applicant making an application to the court within 35 days. Therefore, the applicant did not require an extension of time. The outcome could clearly have been different if the primary judge considered and made findings about these matters.
12. For the reasons that follow, I also consider that it was reasonably arguable that the screenshot of the 12:57pm email was an application made to the court within the meaning of s 477(1) of the Act. The screenshot was in the following form:

1. Having regard to the subject line and that this email is in the same terms as the email with the attachments sent later on 29 September 2020, it is open to infer that the two attachments to the email reproduced in the screenshot were, as the subject line and body of the email indicates, an application under the Act, supporting affidavit and application for exemption from paying court fees relating to what is described as an appeal against a decision of the Authority. Leaving to one side the question of whether the primary judge erred in failing to draw the inference that the attachments to that email were the same as the attachments to the later email, the contents of the email conveyed a request to the Federal Circuit Court for a remedy to be granted in the exercise of the court's jurisdiction in relation to a decision of the Authority under the Act. Thus, the contents of the email, even without the attachments, arguably sufficiently evidences the applicant's request to engage the process of the Federal Circuit Court, that is, to invoke its jurisdiction to review the Authority's decision. That request arguably meets the description of an application made to the Federal Circuit Court of the character described in s 477(1) of the Act. Once the jurisdiction of the court is invoked, it is within the power of the Federal Circuit Court to cure any procedural irregularity: see, e.g., Fernando at [10]-[15]; Yong at 167-169.
2. As a result of the primary judge's misconstruction of s 477(1) of the Act, she failed to consider if and the extent to which the email depicted in the screenshot was - in and of itself - an application made to the court of the kind described in s 477(1) and, if so, whether she should exercise the range of procedural powers available to her to address or dispense with procedural formalities in accordance with the objects of the FCCA Act and FCC Rules. Again, the outcome could clearly have been different if the primary judge had considered and made findings about these matters.

1. The primary judge misconstrued s 477(1) of the Act. That resulted in a failure to consider if the applicant had made an application to the Federal Circuit Court of the kind described in s 477(1) within 35 days of the date of the relevant migration decision. That error was material and jurisdictional. The orders of the primary judge must be quashed and set aside. The matter should be remitted to the Federal Circuit and Family Court of Australia (Division 2) for determination according to law. As the applicant represented himself, there will be no order as to the costs of the application.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.