Authorities concerning s 477 of the Act
59 Subject to exceptions having no present application, s 476 of the Act provides that the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Sections 477(1) and (2) provide:
(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.
60 Three observations may be made of the text and structure of the provision.
61 The first observation relates to its similarity in language and form to s 486A of the Act, which provides:
(1) An application to the High Court for a remedy to be granted in exercise of the court's original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if:
(a) an application for that order has been made in writing to the High 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 High Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
62 In Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, Gageler and Keane JJ discussed the interrelation between s 486A and the High Court's original jurisdiction under s 75(v) of the Constitution. Their Honour said (at [42]):
Section 486A does not prevent the making of an application under s 75(v) of the Constitution. The application is made by filing an application for an order to show cause in accordance with the High Court Rules. Section 486A operates rather to regulate the procedure applicable to the exercise of the jurisdiction that has been invoked by the making of such an application where the application has not been made within thirty-five days of the date of the decision which the plaintiff seeks to challenge. It does so by making the grant of the relief sought in the application conditional on an order extending the period for the making of the application. The period of the extension need only be to the date on which the application for an order to show cause has in fact already been filed. In parlance which derives from the historical practice of the Court of Chancery [See Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 131-132.], the order is one which can and should be made nunc pro tunc.
63 There is no reason to conceive of s 477 of the Act differently in its application to the Federal Circuit Court. As such, it is to be approached and interpreted as a provision that regulates the procedure applicable to the exercise of the jurisdiction conferred on the Federal Circuit Court by s 476 of the Act. It makes the grant of relief under s 476 conditional upon a procedural order extending the period in which the application for judicial review may be made.
64 The second observation is that the power to make an order under s 477(2) is preconditioned by the fulfilment of each of the conditions in subs (2)(a) and (b) in the sense that the power to make the order may only be exercised if each condition is fulfilled.
65 The third observation is that the fulfilment of the condition in subs (2)(b) depends upon the formation of a state of satisfaction on the part of the Federal Circuit Court. The precondition of a statutory power by that subjective criterion does not protect its exercise from judicial review. For example, as Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 (at 430):
Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.
66 Latham CJ continued (at 432):
If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event, the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
67 The judgment R v Connell concerned the legality of a decision of an administrative decision-maker, rather than an inferior court.
68 The fourth observation is that the rules of procedural fairness condition the exercise of the discretion, not least of all because procedural fairness is an essential characteristic of judicial power: Condon v Pompano Pty Ltd (2013) 252 CLR 38; Shrestha v Migration Review Tribunal (2015) 229 FCR 301 at [37] - [38].
69 The circumstances in which a judge of the Federal Circuit Court may commit jurisdictional error in the exercise of the power conferred by s 477 of the Act has been the subject of consideration by this Court in the exercise of its appellate jurisdiction on a number of occasions.
70 In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, Mortimer J dismissed an application for judicial review of a decision of the Federal Circuit Court dismissing an application for an extension of time to apply for judicial review of a decision of the then-named Refugee Review Tribunal. Her Honour made a procedural ruling (at [61]) that the appellant not be permitted to raise an argument as to whether the Federal Circuit Court had misapplied the test under s 477(2) of the Act. The argument sought to be raised was that the Federal Circuit Court had applied the wrong test by asking whether the appellant "could succeed" in any of his grounds, rather than asking whether the grounds of review were reasonably arguable.
71 On appeal, the Full Court concluded that the procedural ruling was not affected by appealable error. Accordingly, it was unnecessary to decide whether an error of the kind alleged to have been committed by the Federal Circuit Court judge ought properly to be characterised as jurisdictional: MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; 152 ALD 478 (Tracey, Perry and Charlesworth JJ). In obiter, the Full Court approved of the approach of Mortimer J on an application under s 477(2). That approach had been elucidated as follows:
62 … 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).
63 The correct approach may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success' (see SZTES [2015] FCA 719 at [48]; SZRIQ at [46]-[48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
72 As to whether such an error may properly be characterised as jurisdictional, whilst not deciding the point, Mortimer J made the following observations:
67 In the present case, the Federal Circuit Court's reasons could be read as if the Federal Circuit Court finally determined the grounds of review. That inference arises because of the concluding expressions used in the reasons after each group of grounds of review and which I have set out at [15]-[17] above, and because of the extent of the consideration given to each ground.
68 Whether the adoption of such an approach could properly be characterised as exceeding the Federal Circuit Court's jurisdiction is another and difficult question. In Kirk (at [74]-[75]), the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature. If, for example, her Honour in the present case could be said to have taken the approach that it would only be in 'the interests of the administration of justice' to extend time if persuaded a ground of review would succeed, then this would in my opinion reflect such a fundamental misunderstanding of the discretion in s 477(2) as to represent a misapprehension of the nature of the power there conferred.
69 In a proceeding where this matter was not a ground on which relief was sought and was not fully addressed in submissions, it is not appropriate to determine the issue. In any event, I am not persuaded her Honour's reasons, fairly read, so clearly take the kind of erroneous approach to which I have referred.
70 However, the line is a fine one, and in my respectful opinion both in respect of s 477(2), and in respect of the corresponding power reposed in this Court under s 477A(2), the need for a restrained approach to the assessment of the merits of grounds of review as one of a relatively unconfined range of factors to be considered in exercising this discretion, as outlined by French J in Seiler, should always be recalled.
73 The issue that was unnecessary to decide in MZABP directly arose for determination AZAFX v Federal Circuit Court of Australia (2016) 244 FCR 401. In that case, I concluded that a Federal Circuit Court judge had made an error of the same kind that had sought to be alleged by the appellant in MZABP. I determined that the error, as demonstrated in that case, was jurisdictional. Among other things, I had regard to the legal context of s 477(2) in light of what was said in Wei. Crudely summarised, I concluded that the error had the effect of erecting a higher threshold to the invocation of the substantive jurisdiction in s 476 that was not contemplated by the Act. The Minister did not appeal from the judgment in AZAFX and the correctness of the judgment has not otherwise been the subject of direct consideration in this Court or elsewhere.
74 In SZUWX v Minister for Immigration and Border Protection (2016) 238 FCR 456 it was argued that the Federal Circuit Court had failed to have regard to a mandatory relevant consideration, namely the lack of any prejudice that might be suffered by the Minister should an order under s 477(2) be made. The primary judge concluded that there had been no failure to take the lack of prejudice into account. The Full Court identified no appealable error in that finding. Bromwich J (with whom Allsop CJ and Flick J agreed) concluded that the absence of prejudice was in any event not to be regarded as a mandatory relevant consideration in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Although the question was unnecessary to decide, each member of the Court was of the view that such an error, if demonstrated, would not be jurisdictional (Bromwich J at [10], Allsop CJ at [21] and Flick J and [16]).
75 In CNC15 v Federal Circuit Court of Australia [2017] FCA 1540 I rejected an argument that the Federal Circuit Court had erred by embarking on a substantive determination of the merits of an application for judicial review. Accordingly, it was unnecessary to determine whether the error was jurisdictional and unnecessary to determine a submission (advanced by the respondent Minister) that AZAFX was plainly wrong and so should not be followed.
76 An appeal from the judgment in CNC15 was unsuccessful: CNC15 v Federal Circuit Court of Australia [2018] FCAFC 204 (White, Perry and Steward JJ). Having upheld the conclusion that the Federal Circuit Court had not committed the asserted error, the Full Court noted (at [45]) that it was unnecessary to consider whether such an error was or was not jurisdictional. The Full Court nonetheless ventured an opinion on the question. After summarising the principles, the Full Court said (at [48]):
Applying these principles, it was not suggested, for example, that the FCC had misconstrued s 477(2) of the Act, thereby misconceiving the nature of its function or extent of its powers. Nor was there any suggestion that the FCC had misunderstood the manner in which it should approach an assessment of whether or not the proposed application for judicial review had any reasonable prospects of success as an aspect of determining whether it was in the interests of justice to extend time under s 477(2)(b): semble BTK16 v Minister for Immigration and Border Protection [2018] FCA 1514 at [39] (Perry J). The disagreement was simply with the FCC's assessment of the merits of the proposed application for judicial review. That is plainly an error within the FCC's jurisdiction.
77 In CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400, Steward J held that a judge of the Federal Circuit Court committed jurisdictional error in the exercise of the power under s 477 of the Act by failing to address one of the proposed grounds of judicial review upon which the applicant had sought to rely. The ignored ground was not on its face meritless, absurd or irrelevant. In describing the error as jurisdictional, Steward J said:
29 … One commences with the proposition from SZUWX that a matter does not become a mandatorily relevant consideration because one of the parties raises it. It would thus not be a breach of the rules of procedural fairness to fail to address a ground of review that raised an irrelevant matter or was manifestly absurd. But where the ground raised is substantive, or appears to have substance, in my view an inferior court should address it concordantly with Dranichnikov. Failure to do so would, in my opinion, constitute 'such a fundamental misunderstanding of the discretion in s 477(2)' in the sense described by Mortimer J in MZABP, as to constitute jurisdictional error.
…
31 The dictum set out above from Dranichnikov is not an exhaustive statement of principle. For example it is not confined to arguments which rely upon 'established facts'. As Griffiths J observed in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [78]:
…I do not accept that procedural unfairness occurs only if the Tribunal has failed to deal with a substantial and clearly articulated submission which relies upon an established fact. That would preclude a finding of procedural unfairness (or, I would add, a constructive failure to exercise jurisdiction) if the Tribunal failed to deal with a submission of substance relating to a legal issue, such as a question of statutory construction.
78 Steward J said that the error constituted both breach of the rules of procedural fairness in the broad sense discussed in Dranichnikov and as a constructive failure to exercise jurisdiction: cf Cecil v Director of Public Prosecutions (Nauru) [2017] HCA 46; 349 ALR 570 at [17].
79 His Honour went on to say that if the error was not properly to be characterised as jurisdictional, the writs of certiorari and mandamus could nonetheless issue, those writs being available where an inferior court fails to provide procedural fairness in accordance with principles stated by the High Court in Ex parte Aala and Annetts v McCann (1990) 170 CLR 596.
80 In DHX17 v Minister for Home Affairs [2019] FCA 2150 (at [66]), Greenwood J upheld an argument that the Federal Circuit Court had wrongly elected to determine an application under s 477(2) by reaching a conclusion about the merits of the grounds of judicial review as if he were dealing with the substantive judicial review application on the merits. His Honour concluded (at [61]) that the grounds of review in that case could not be described as so devoid of merit that an order extending the time under s 477(2) would be futile.
81 Greenwood J went on to say:
72 The interests of the administration of justice in any particular case are generally served by enabling the judicial power of the Commonwealth to be exercised at a final hearing at which the arguments for and against the relief sought based on the grounds agitated are heard and determined. If it is clear that the challenge sought to be advanced at a hearing is not even arguable, an application for an extension of time to advance such a case is properly refused as making an order for an extension of time could hardly be regarded as necessary in the interests of the administration of justice. If, on the other hand, the grounds are arguable and a party is deprived of an opportunity of fully developing those grounds by reason of a refusal to exercise a discretion to extend time on the footing that the applicant has not been able to show that the grounds of review, upon examination of the arguments for and against them, reveal jurisdictional error, the interests of the administration of justice are not served.
73 The election by the primary judge to determine the application for an extension of time on the footing that the discretion would be exercised against the applicant because the primary judge was 'satisfied that there has been no jurisdictional error shown in this matter', caused the discretion to miscarry.
74 The next question is whether a miscarriage in the exercise of the discretion on such a basis is an error within jurisdiction or an error going to jurisdiction (as an excess of jurisdiction).
(emphasis in original)
82 His Honour concluded (at [82] - [84]) that the error suggested that the Federal Circuit Court judge had misconceived the true scope of the question he was called upon to answer in exercising the discretion under s 477(2) of the Act, that it was "accurate to describe this misconception as one going to the function to be performed and the power to be exercised" and that the apparent misconception (at [84]):
.. went to the root of the statutory discretionary power to be exercised because an analysis of the merits of the grounds of review in [the] sense reflected at [48] and [49] [in] the primary judge's reasons was not required by s 477(2) of the Act. …
83 His Honour nonetheless concluded that there was no jurisdictional error, including because the miscarriage of the discretion under s 477(2) could have had no material bearing on the outcome. His Honour conceived of the relevant "outcome" as being the outcome of the exercise of the jurisdiction under s 476 of the Act, which the applicant in that case had sought to invoke.
84 An appeal to the Full Court was allowed: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [65] - [68]. The Full Court (Collier, Rangiah and Derrington JJ) said (at [87]) that the decision of the Federal Circuit Court had been made consequent upon a misconception of the power and that Greenwood J had been correct to so find. The test for materiality, the Full Court said, was to be applied by reference to the outcome of the jurisdiction exercised or purportedly exercised under s 477, and not the substantive jurisdiction conferred by s 476, the two tasks being functionally different (at [98]). The Full Court concluded (at [98]):
… The issue was the legality of the FCC judge's decision under s 477(2) and the correct conclusion was that it was beyond power, having been affected by jurisdictional error in the sense that there was a material failure to exercise the power. The question of the proper disposal of the application to extend time ought to have been remitted to the FCC judge for determination according to law.
85 It is apparent that the numerous occasions for consideration of the question have for the most part involved allegations of error of the same or a similar kind. On most occasions, it was argued that the Federal Circuit Court erred by embarking on a substantive determination of the merits of the application for which an extension of time is sought, rather than approaching the merits at an impressionistic level in determining what the interests of justice required. Unsurprisingly, the focus in those cases is on whether an error of that kind might signify a misconception on the part of the Federal Circuit Court as to the nature of the power in s 477. Consistent with what was said in Craig and Kirk, misconception of the nature of a power is not the only route by which jurisdictional error may be established.
86 The survey of the authorities reinforces the importance of identifying those arguments that arose for adjudication in each case and those that did not. As Allsop CJ said in SZUWX at [21], the question of whether an error is jurisdictional is, and always will be, context specific. As his Honour emphasised, the identification (or not) of jurisdictional error in a specific case ought not to be used as a logical premise for argument in any further case.
87 If there be an apparent divergence of view in the opinions of differently constituted Full Courts (for example, as between the obiter opinion expressed by the Full Court in CNC15 and the later judgment of the Full Court in DHX17), that may be explained by the different manner in which the cases were argued and other variables defining the Court's task. Nonetheless, as the judgment and outcome in DHX17 shows, it is not correct to say in absolute terms that an error in assessing the merits of the proposed grounds of judicial review is in every case to be regarded as an error within jurisdiction. If an error affecting that aspect of the Federal Circuit Court's reasoning is identified, it is necessary to ask what the error might signify. The error may (as in DHX17) signify a misapprehension on the part of the primary judge as to the nature of the power.
88 As discussed below, it may also signify an actual or constructive failure on the part of the Federal Circuit Court to adjudicate the controversy before it.