EWX17 v Minister for Immigration and Border Protection

1. Leave to rely upon an amended originating application be refused.
2. The originating application be dismissed.
3. The applicant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The applicant seeks judicial review of orders made by a judge of the Federal Circuit Court of Australia, under s 39B of the Judiciary Act 1903 (Cth). His Honour dismissed an application under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to bring an application for judicial review of a decision of the Immigration Assessment Authority. Under s 476A(3)(a) of the Migration Act there is no right of appeal from that decision. Hence the applicant's resort to s 39B. 2 The limits on judicial review of a decision to refuse an extension of time under s 477(2) are formidable. In short, the applicant must demonstrate jurisdictional error on the part of the primary judge, because that is what s 39B requires when judicial review is sought of a judicial decision and there is no assertion of non-jurisdictional error on the face of the record: see Craig v South Australia (1995) 184 CLR 163 at 177-180; Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; 217 FCR 55 at [2]-[11], especially [10]; DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [37]-[42]. Examples of what would constitute jurisdictional error on the part of a Federal Circuit Court judge identified in a number of first instance decisions in this Court help to illustrate the point, such as: (1) requiring that success on the ground of review be demonstrated when applying the statutory test in s 477(2) of the "interests of the administration of justice", because that would entail a fundamental misunderstanding or misapprehension of the nature of the discretionary power: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [68]; and (2) failure to afford procedural fairness in the hearing and determination of the application: CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400 at [24]. 3 The applicant represented himself before the primary judge. In his reasons, his Honour outlined the nature of the applicant's claim for a protection visa, considered the reasons given for the application being filed late, and accepted those reasons as being satisfactory so as to satisfy the first limb of s 477(2). His Honour then summarised the Authority's decision in some detail, considered the grounds of review in the judicial application sought to be relied upon, and heard from the applicant. 4 The primary judge was not satisfied that either the pleaded ground sought to be relied upon, or anything raised orally by the applicant, identified any sufficiently arguable case of jurisdictional error to make an extension of time "necessary in the interests of the administration of justice", being the statutory test in s 477(2)(b). The applicant must therefore establish that his Honour, in making his decision upon that basis, acted outside his power or authority, or otherwise failed to perform, or incorrectly performed, the task entrusted to him in relation to the application for an extension of time. That is, the applicant must demonstrate a fundamental failure by his Honour to perform the jurisdictional task. Demonstrating mere error of fact or law will not suffice. Nor will it suffice to identify some further step that could have been taken, but did not have to be. 5 The applicant expressly abandons all of the grounds in the originating application filed on 4 October 2018. Instead, he seeks leave to file an amended originating application with the following grounds as set out in his written submissions: The primary judge made a jurisdictional error by denying the Applicant, who was self-represented, procedural fairness as the primary judge did not consider whether, apart from the Applicant's suggested grounds, the Authority had made a jurisdictional error, in circumstances where the Authority had made a finding of fact which was legally unreasonable in the sense of lacking an evident and intelligible justification, being the conclusion of the Authority at paragraph 16 of its decision that there were discrepancies in the Applicant's accounts of being detained and interrogated by the CID. In the alternative, the primary judge made a jurisdictional error of legal unreasonableness or failing to give proper, genuine and realistic consideration to the Applicant's case by dismissing the application for an extension of time in circumstances where his Honour had accepted the explanation for the delay and lack of prejudice and the Authority had made a jurisdictional error of legal unreasonableness by making a finding of fact which lacked an evident and intelligible justification being its perception at paragraph 16 of its decision that there were discrepancies in the Applicant's accounts of being detained and interrogated by the CID. 6 The Minister opposes the grant of leave. He was right to do so. The grounds are misconceived and should therefore not be entertained. For the reasons that follow, the application for judicial review must be dismissed with costs. 7 The applicant via his counsel accepted that for his application to succeed on the grounds he wished to advance, three hurdles had to be overcome. The applicant had to: (1) be able to find jurisdictional error in the primary judge's refusal of an extension of time by reason of his Honour not going beyond what was advanced in support of the application for an extension of time, including the grounds of review sought to be relied upon, and in particular by delving into the detail in ways that were not mentioned before his Honour; (2) establish that failing to delve into those matters constituted a jurisdictional error; and (3) establish antecedent jurisdictional error on the part of the Authority. 8 Unfortunately for the applicant, he must fall at all three hurdles. Each may be adequately considered in a concise way.