The second ground
24 The applicant alternatively argued that the decision of the FCC was affected by jurisdictional error in that the Court applied the incorrect test to the exercise of its discretion under s 477(2) of the Act. The FCC refused the application for an extension of time under s 477(2), holding that:
(a) there was not a reasonable excuse for the significant delay in the applicant bringing his application (which was two years and three months); and
(b) the FCC was not satisfied that the proposed grounds had merit.
25 The applicant only challenges the FCC's consideration of the second proposed ground. The proposed ground was in the following terms:
2. The assessor fell into jurisdictional error in failing to provide procedural fairness and/or unreasonable in the legal sense.
a. The applicant attended a protection obligations evaluation interview on 14 May 2014;
b. On 1 May 2015 the applicant was notified that there was a change of case officer;
c. The new case officer made a decision not to interview the applicant and instead gave the applicant an opportunity to comment on relevant information relating to:
i. Claimed 'abandonment of Islamic religious practice'; and
ii. Website disclosure and return as a failed asylum seeker.
d. The failure of the first case officer to exercise jurisdiction and make a timely decision after the 14 May 2014 interview has caused the decision making process to be procedurally unfair. This has been further compounded by the second case officer failing to interview the applicant and put all her findings in writing to the applicant to comment thereby causing a constructive failure to exercise jurisdiction. The applicant has been denied the proper opportunity to present his case.
26 The primary judge dealt with the prospects of success of that proposed ground at [6]-[11] as follows:
[6] The second ground relies upon the fact that on 1 May 2015 there was a change of officers within the Department of Immigration who was to determine the assessment of protection obligations which was different from the officer who had interviewed the applicant on 14 May 2014.
[7] In similar circumstances, the High Court in the Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 held that there had been a denial of procedural fairness. However, there are significant differences in the circumstances of this case. In WZARH there was no notice given to the applicant that the person who was to make the decision was not the person who had conducted the interview, and therefore the applicant, or respondent in the High Court, never had the opportunity to make any submissions as to whether or not the advantage that the interviewer had in seeing the applicant ought also to have been held by the decision-maker by, for example, holding a further interview.
[8] The Court accepted that the respondent in that case was, and most people are generally not, entitled to insist upon the observance of a particular form of decision making process. However, the Court found that it was the denial of the opportunity to at least say whether the advantage that I have referred to ought to be taken into account that was said to constitute the denial of procedural fairness.
[9] In this case in the letter dated 1 May 2015 (from the second respondent who ended up making the decision but who had not been the interviewer), the applicant was told that "…an officer other than the person who conducted that interview will now be deciding your application for a Protection visa". Leaving aside the inaccuracy perhaps of the reference to "application for protection visa", the letter continued "[t]he Officer making the assessment may make that assessment without further contact with you" and suggested that if the applicant wished to make any further submissions to the Department, he was invited to do so in accordance within the 28 day timeframe. In my view, that is important because it put the applicant clearly enough on notice that there was to be a different decision-maker, and thereby providing the applicant with the reasonable opportunity to make the submissions that he ought to be given a further interview with that decision-maker.
[10] Although this is not decisive, I note that the applicant was at that time, and continued to be, represented by migration agents and could reasonably be expected to have obtained advice about what course to take from those agents. The agents in fact made submissions on 2 June 2015 but did not suggest that the applicant ought to be given a further opportunity for an interview given the change of personnel involved in the decision making process.
[11] Those circumstances distinguished this case from that in WZARH and, in my view, establish that there was no denial of procedural fairness. Considering the matter at a preliminary level sufficient for the purposes of determination of whether there be an adjournment of the proceedings to allow the applicant to obtain further evidence, and further taking into account the difficult situation which Counsel for the applicant faces today in not having an instructing solicitor, and indeed not having, which I accept, met or conferred with the applicant personally, I do not see that it is in the interests of the administration of justice to allow the adjournment.
27 It was submitted that the FCC's exercise of discretion under s 477(2) miscarried by reason that the FCC went beyond an examination of the ground at "a reasonably impressionistic level". In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 ("MZABP"), Mortimer J stated at [62]-[63]:
As I have observed previously (see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48]), it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless. That in my opinion is the kind of threshold intended by the presence of merit as a consideration in the discretion to extend time. If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]; Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
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 [2013] FCA 1284 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.
Mortimer J's approach was approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ).
28 It was submitted that the FCC's consideration of the merits of proposed ground 2 in the present case travelled beyond what was appropriate because it involved a detailed factual analysis not appropriately conducted through the summary processes under s 477(2) of the Act. First, it was submitted that in concluding that the applicant's case was distinguishable from the circumstances of Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 ("WZARH"), which had been relied on by the applicant in aid of that ground, the FCC engaged in "fine factual analysis" including by:
(a) noting at [7] that the applicant in WZARH was not extended an opportunity to make a submission on the change of decision-maker;
(b) noting at [8] that it was this denial of opportunity which the High Court considered to be a denial of procedural fairness in WZARH;
(c) finding at [9] that, by the letter of 1 May 2015, the applicant was on notice that there would be a change of decision-maker and that the applicant was afforded an opportunity to make submissions in relation to the change of decision-maker; and
(d) finding at [10] that the applicant was represented by a migration agent through the POE process.
29 Secondly, it was submitted that having distinguished WZARH, the primary judge concluded at [11] that there was "no denial of procedural fairness". It was submitted that to reach that conclusion necessarily involved an inappropriately detailed consideration by the FCC of the circumstances of this case. It was submitted that the factual analysis that the FCC was required to undertake to reach its conclusions at [11] support the inference that the primary judge determined the applicant's proposed ground 2 on a final and not summary basis and so did more than consider whether the proposed ground was on its face "arguable", "reasonably arguable", "sufficiently arguable" or "has reasonable prospects of success".
30 I do not accept that the FCC applied an incorrect test in relation to the extension of time question. In considering an application for an extension of time, the merits of the proposed application are plainly relevant: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). As Mortimer J observed in MZABP, it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects. In the present case, consideration of the proposed ground to determine whether it had some merit required the FCC to engage with the facts sufficiently to consider whether the facts of WZARH may be distinguishable and the reasons themselves disclose that was the task which the FCC undertook to ascertain whether the ground had any substance. Once the points of distinction were identified by the FCC, it was open to the FCC to hold that the prospects of success on the proposed ground were not such as to warrant an extension of time. Although the primary judge at [11] expressed his conclusion in terms that the distinguishing facts "establish[ed] that there was no denial of procedural fairness", reading the judgment as a whole it is sufficiently clear in my view that the FCC correctly confined itself to the more limited question as to whether the ground disclosed an arguable or sufficiently arguable case to justify the extension of time and formed the conclusion that it did not at "a reasonably impressionistic level", rather than applying an impermissibly high threshold.
31 First, it is apparent from the primary judge's consideration of the first proposed ground that his Honour did not misapprehend the test to apply. In relation to the first proposed ground 1, his Honour was of the view that the proposed ground had "little merit", without deciding conclusively whether it did, or did not. Secondly, on a fair reading of [11], the primary judge reached his conclusion on proposed ground 2 by "considering the matter at a preliminary level". Paragraph [11] must also be read in conjunction with [15] in which his Honour concluded that even if there were a reasonable excuse for the delay, "the lack of merit…would have outweighed that" so that his Honour was not satisfied that it was necessarily in the interests of the administration of justice to make an order extending the time. Thirdly, the approach of the primary judge is also apparent from [3] where his Honour noted that even if there was a reasonable explanation for the delay in bringing the application, he did not think there would be "sufficient merits" to warrant granting an extension of time under s 477(2).
32 Further, it is also apparent that the "lack of merit" was not the only ground upon which the FCC concluded that an extension of time was not warranted. At [14] the primary judge said that the applicant did not have a reasonable excuse for the delay (which was two years and three months) in bringing the application. At [15], the primary judge also said that:
… even if I did consider that there were a reasonable excuse for the delay, the lack of merit, in my view, would have outweighed that, so that I am not satisfied that it is necessarily in the interests of the administration of justice to make an order under s 477(2) extending the period for making an application for orders in respect of a decision dated 7 July 2015.
33 As appears from those reasons, the view taken by the primary judge that the applicant did not have a reasonable excuse for the length of delay was a significant factor in the primary judge's conclusion that it was not in the interests of the administration of justice that there be an extension of time.
34 The application should accordingly be dismissed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.