The decision of the primary judge
43 At [4], after a brief introduction, the primary judge observes that the application before him is "for leave to file out of time" and observes that "I did hear full argument on the merits of the substantive application". The Minister describes the primary judge's analysis of each ground of review as "shortly and firmly expressed" and as going no further than a "fairly broad brush approach" to the merits and one not disclosing "substantially more than an impressionistic evaluation of the merits". However, as the primary judge regarded himself as having heard full argument on the merits of the review application, this Court ought to accept that assessment as at least the approach the primary judge adopted.
44 At [5] to [24], the primary judge sets out a description of the claims of the appellant which provided the foundation facts said to support the appellant's Protection visa claims. At [25] to [34], the primary judge identified aspects of the primary findings of the Tribunal. The Tribunal's reasons comprise 19 pages and clearly enough, the 10 brief paragraphs in the primary judge's reasons do not seek to closely examine the detail of the findings or the analytical foundations for the findings.
45 At [35], the primary judge identifies Ground 1 of the review application. At para 56 of the Tribunal's reasons, reference is made to a Certificate issued by the Department under s 438 of the Act certifying that the disclosure of information at particular nominated folios of the departmental file (Folios 46 to 50 and Folio 78) would be contrary to the public interest. Ground 1 of the review application challenged the validity of that Certificate and contended that as a consequence of reliance on an invalid certificate, the non-disclosure of information under s 438(1)(a) of the Act constituted a denial of procedural fairness by reason of ss 424A, 424AA or 425 of the Act. At [37] to [52], the primary judge examined the ground and concluded that para 56 of the Tribunal's decision had been included in error. The primary judge described para 56 of the Tribunal's reasons as "quite anomalous" as Folio 46 was the Protection visa application itself; Folio 50 was the affidavit of the appellant in support; and Folio 78 was the Protection visa decision record. The primary judge notes that at para 56 the Tribunal had said that it had not taken information in these folios into account, when clearly the Tribunal reasons (described by the primary judge as "very thorough") demonstrate that information in these fundamental folios had been taken into account, as was mandatory. Having examined the ground, the primary judge concluded at [49] that the inclusion of para 56 in the Tribunal's reasons was in error and concluded that that was "the only rational conclusion that I could come to, given the state of all the evidence before me".
46 The further amended review application of 16 August 2018 addresses an affidavit of the departmental officer (the delegate who refused the appellant a Protection visa) who completed the "Disclosure Decision Checklist" placed on the departmental file. That checklist said "No" to any s 438(1)(a) documents; ringed Document No. 6 as a s 438(1)(b) document; and circled "Yes" as to an attached certificate of non-disclosure. In the affidavit, the delegate contended that circling "Yes" was "in error" and no non-disclosure certificate was ever issued under s 438(1)(a) or (b) of the Act. The appellant contended for three errors on the part of the Tribunal constituting jurisdictional errors concerning the question of s 438 and para 56 of the Tribunal's reasons.
47 At [54], the primary judge identifies Ground 2 of the review application. The contention was that the Tribunal misapplied the relevant law with regard to the real risk of harm to the appellant from the "Asha" family. The ground contended that there was an insufficient logical or evidentiary basis for the Tribunal's findings that the appellant did not face a real risk of serious harm. The primary judge examined that ground at [55] to [60] and concluded at [60] that the finding was "open on the evidence" and that it could not be said "that there was an insufficient logical basis for the finding".
48 At [62], the primary judge identifies Ground 3 by which the appellant contended that there was an insufficient logical or evidentiary basis for the Tribunal's finding at para 33 that he did not face a real risk of serious harm for the purposes of his claims to hold a well-founded fear of persecution or a real risk of significant harm for the purposes of his complementary protection claims, from the Lord's Resistance Army ("LRA"). The primary judge examined that ground at [63] to [67] observing at [64] that counsel for the appellant was "arguing a totally new ground" and observed at [65], that the ground was one not "actually ever made" by the appellant and one "not considered by the Tribunal". Because the contention had not been made or put to the Tribunal, the primary judge concluded at [66] that it could not now be considered as the basis of a claim of jurisdictional error in the decision-making of the Tribunal.
49 At [68], the primary judge identifies Ground 4. By that ground, the appellant contended that there was an insufficient logical or evidentiary basis for the Tribunal's findings that the appellant did not face a real risk of serious harm or a real risk of significant harm due to psychological, social, economic or political factors, or other identified factors recited in the ground of challenge, after the Tribunal having accepted that he was a former child soldier for the LRA and he has no family in Uganda.
50 As to these matters, the primary judge concluded that there was "simply no evidence" that the appellant would be persecuted for any of the identified reasons and as to para 38, the primary judge concluded at [70] that the Tribunal's reasons illustrate a "logical conclusion" and were "open to the Tribunal". Similarly, the Tribunal's findings at paras 50 to 54 on this topic concerning complementary protection were put this way by the primary judge at [71]: "There is nothing that has been shown to the court that would indicate that the conclusions reached were not open to the Tribunal".
51 At [73], the primary judge identifies Ground 5 of the review application by which the appellant contended for an insufficient logical or evidentiary basis in the Tribunal's finding at para 58 that although his particular circumstances provided a "sound basis for believing that there is a significant threat to his human rights or human dignity", should he return to Uganda, the "mistreatment" he might suffer in that regard did not "meet the criteria for the grant of any type of protection visa", but nevertheless did provide a basis for referring the appellant's case to the Minister under the Ministerial guidelines for the possible grant of a visa under s 417 of the Act. The primary judge concluded at [77] that the Tribunal's observation at para 58 was consistent with its earlier reasoning that it was not satisfied that the appellant's claims met the statutory criteria for the grant of any type of protection visa. At [78], the primary judge observed that the Tribunal's remarks in issue by Ground 5 were "not in any way material to the decision made by the Tribunal and, therefore, could not form any basis to find jurisdictional error" in the Tribunal's decision-making.
52 At [80] to [83], the primary judge considered the question of the application for an extension of time.
53 At [82], the primary judge observed that the "merits of the [review] application are the major consideration and in this case, I have proceeded as if the substantial application was before me". The primary judge at [82] observed that the "reasons for the delay are but one aspect of the considerations" in deciding whether to grant an extension. Another factor informing the exercise of the discretion was the "prejudice to the respondent [Minister]": at [82]. Having identified the factor of the merits as the "major consideration", the primary judge observed at [83] that "[g]iven that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, … the application for extension of time in which to file the application should be refused".
54 As to the sufficiency of the explanation for the delay, the primary judge thought it "very unlikely" that the appellant was unaware of the 35 day period because "notes are sent with a copy of the decision" which "state very clearly what the deadline is": primary judge at [80]. At [81], the primary judge notes the appellant's explanation that he was being assisted by the Red Cross in making a case for Ministerial intervention and he had not been advised by the Red Cross to apply for judicial review. The primary judge at [81] did not consider that matter to be "a valid excuse".
55 The primary judge tells us at [4] that he heard "full argument" on the merits of the review application and at [82] that he proceeded "as if" the substantive application was before him. Having done so, he concluded that the substantive application "fails". Although it is not put this way, the primary judge must have thus concluded that he was not "satisfied" that it was "necessary in the interests of the administration of justice" (s 477(2)(b)) to make an order extending the 35 day period. That seems to be because he regarded the factor of the merits as the "major consideration" in the determination of that matter and, as he had concluded that the substantive application failed, he must be taken to have concluded that it would not be necessary in the interests of the administration of justice to extend the 35 day period for an application he regarded as an unmeritorious application for a remedy under s 476.
56 The primary judge may, or may not, have been correct in his conclusions about any one or more of the five grounds on which a remedy was sought by the appellant in the exercise of the primary court's original jurisdiction under s 476 of the Act. A challenge to a finding of the Tribunal on the ground that the finding is not supported by evidence or that the finding lacks a logical foundation or fails to reflect the application of the rules of reason or is in some legal sense unreasonable or that the finding is not supported by inferences drawn from facts found, is a very context-specific and detailed analysis. The question of whether references in the Tribunal's decision to an apparently anomalous s 438 Certificate refers to matter entirely unrelated to the appellant's case and was incorporated into the Tribunal's decision in error might also require close analysis.
57 The primary judge no doubt addressed the five grounds of review, in the light of full argument and the written submissions filed in accordance with the programming orders, to the extent that he thought necessary in order to reach a conclusion about each ground. Clearly, the primary judge did not subject the Tribunal's reasoning to the detailed and context specific analysis that would have been necessary to fully test whether the challenged findings reflected errors capable of being characterised as jurisdictional so as to support the grant of the constitutional writs in the exercise of the s 476 jurisdiction.
58 The primary judge's view about the merits was largely but not entirely determinative of the outcome of the extension of time application. Another factor was the conclusion that no sufficient explanation had been given for the delay.
59 Thus, it can be seen that the primary judge did significantly more (and said so) than examine the grounds at "a reasonably impressionistic level" to determine whether each ground was "arguable", and did embark on a consideration of each ground to determine whether it would or would not succeed as the major consideration in deciding whether he could be satisfied that it was necessary (or not) in the interests of the administration of justice to extend the 35 day period. The primary judge regarded himself as in a position as if the substantive application was before him for determination.
60 Having regard to the particular circumstance of the programming orders, the filing of all material relevant to the review application, the filing of written submissions by the appellant and the Minister concerning the merits of the review application and the circumstance that the appellant and the Minister were both represented by counsel ready to argue the merits of the review application and the extension application at the hearing before the primary judge programmed for 16 August 2018, there can be little objection, in the circumstances of this case, to the primary judge embarking upon an examination, and perhaps a close examination (or at least an examination at the level of engagement undertaken by the primary judge), of each of the grounds of review and hearing argument about them as an aspect of the determination of the question his Honour had to decide under s 477(2)(b) of the Act, unless as a matter of law, the primary judge was bound to look no further than deciding whether, on the face of the application for s 476 relief, each claim was hopeless or bound to fail. There is no binding authority that supports the proposition that the primary judge was so bound, in the circumstances of the way the case came before him.
61 The immediate difficulty at one level with the primary judge's decision is this. Because his Honour predominantly decided the application for an extension of the 35 day period on the basis of the view he had formed that the application for relief under s 476 "fails" (the primary judge having considered the grounds "as if" that application was before him and as if he were thus determining it), any error in the analysis of any one of the grounds (that may not have been apparent in relation to any one of them because the content-specific analysis of the Tribunal's reasoning was not undertaken by the primary judge), would render the foundation on which the primary judge was unable to be satisfied that it was necessary in the interests of the administration of justice to extend the time, unsound. However, the correctness or otherwise of the primary judge's view about any one of the grounds could not be tested because in the absence of an extension of the 35 day period, s 477(1) would operate such that the primary court's original jurisdiction had not been regularly invoked and the refusal to extend the time under s 477(2) could not be the subject of an appeal to the Federal Court: s 476A(3)(a).
62 In the result, there may be an order made refusing an extension of the 35 day period based on an untestable and unsound foundation as to the merits concerning any one or more of the contended grounds for relief in the form of the grant of the constitutional writs in respect of the Tribunal's migration decision.
63 Having undertaken an analysis of each ground at the level of engagement undertaken by the primary judge in circumstances where the outcome of the analysis would very largely determine the question arising under s 477(2), the possibility that the primary judge might be wrong about one (or more) of the grounds failing, thus imperilling the primary judge's ultimate state of satisfaction under s 477(2), suggests that the application for an extension of time ought to have been granted having regard to the statutory purpose described at [28] of these reasons, and the application for judicial review ought to have been dismissed.
64 For my part, it seems to me that having engaged with the factor of the merits of the claims for relief under s 476 in the way demonstrated in the reasons of the primary judge, the primary judge fell into error by refusing leave to extend the 35 day period. Having chosen to, in effect, hear both applications together, the primary judge erred by not exercising the discretion to extend time so as to ensure as "necessary" in the "interests of the administration of justice" that should the foundation for his decision concerning any one of the s 476 grounds be unsound, the appellant would have the benefit of appellate review by the Federal Court and ultimately by the High Court with leave.
65 It seems to me that it was necessary in the interests of the administration of justice to exercise the discretion to extend time in order to enable that which was necessary in the interests of the administration of justice, namely, the possibility of appellate review of the primary judge's conclusions about one or more or all of the grounds, a possibility foreclosed by the refusal of the extension of time application. The question is whether that decision (if it be error as I believe it is), is jurisdictional error on the footing that the primary judge has misconstrued or misconceived the statutory purpose of the power to extend (or not) the 35 day period.
66 That question is addressed later in these reasons.
67 However, the question agitated by the appellant, is whether the primary judge fell into error for the purposes of s 39B(1) (invoked before Collier J), in embarking upon the analysis of grounds of review at the level of engagement reflected in the primary judge's reasons, reaching beyond the so-called "low hurdle" of impressionistic engagement, and whether the exercise of the discretion therefore miscarried in such a way that the primary judge engaged in an excess of jurisdiction, rather than error within jurisdiction (if it be error).
68 In this case, the programming orders made it plain that the parties came to the primary court ready to argue the merits of the review application. Full argument, both written and oral on the merits of the s 476 grounds, occurred. I accept that there is no authority for the proposition that the primary judge, in the circumstances in which the primary judge found himself, was bound to go no further in considering the merits of the review application for the purposes of the extension of time application, than assessing on simply an impressionistic reading and consideration of the grounds whether he could be "confident" the grounds "must fail" or, put another way, were "plainly hopeless".
69 The position as to the limits of engagement with the s 476 grounds undertaken by the primary court will likely be different where a discrete application for an extension of the 35 day period is made separately and independently of the programming of both the extension application and the substantive application for hearing, in effect, together. That is not this case.
70 I also accept that the primary court does not fall into jurisdictional error whenever it approaches the question to be decided under s 477(2) by examining the grounds relied upon for relief under the s 476 application as if it were deciding that application. The Full Court decision in DKX17 (see [25] of these reasons for the relevant case citations) accepts at [95] that the primary court is not "required" to consider the merits at a level greater than an impressionistic level in deciding the question arising under s 477(2) and CNC15 at [40] accepts that the question for the primary court was to be addressed "at a reasonably impressionistic level". However, in CNC15, the Full Court also observed at [45] that if the error contended for, of going beyond a reasonably impressionistic assessment is made good, it could only be error "within jurisdiction", not jurisdictional error.
71 As to Full Court decision in DHX17, the primary finding in the particular circumstances of the s 39B(1) hearing was that the primary court had misconceived the function it was to perform and the scope of the power to be exercised under s 477(2). As to that finding, the Minister, on appeal, did not challenge the primary finding. The finding that the primary court had misconceived the nature of the statutory function by going beyond, in the circumstances of that case, a threshold assessment of merit, was, in effect, conceded. I do not wish to say any more about that aspect of DHX17 as I was the judge exercising the Court's s 39B(1) jurisdiction in that case.
72 The Minister contends that due to the concession made in DHX17, it ought to be understood as saying no more than when it is clear (by concession or otherwise) that the judge constituting the Federal Circuit Court has misconceived the nature of the statutory function to be performed or the scope of the power to be exercised, the primary court will fall into jurisdictional error. However, the Minister contends that DHX17 is not authority for the general proposition that whenever the primary court goes beyond an "impressionistic assessment" of the proposed grounds of review in addressing the question arising under s 477(2), the primary court "will fall into jurisdictional error". The Minister emphasises that, in this context, the Full Court in DHX17 at [68] observed that the primary court undertaking more than an impressionistic evaluation of the proposed grounds of review "strongly suggests" (not "would result in") misconception of the function and power leading to excess of jurisdiction and at [76], the conclusion will "usually be drawn" (not "always will be drawn" or "be drawn") that the function and power has been misconstrued thus giving rise to excess of jurisdiction.
73 Notwithstanding these contentions of the Minister, it would read down the principle the Full Court was at least contending for in DHX17 and which it regarded as the applicable principle. The Full Court in DHX17 was satisfied at [68] and [76] that once the Federal Circuit Court, in deciding the question arising under s 477(2), embarked upon a consideration of the factor of the merits of the relevant applicant's grounds for s 476 relief beyond the threshold of the so-called "low hurdle" (being the term adopted by the Full Court in DHX17) of merely an "impressionistic" assessment of whether the grounds were "arguable", the primary court would usually, that is in most cases, engage not only in error (by misconception of the power under which the primary court was acting, the conceded factor by non-contention by the Minister in DHX17), but also engage in an excess of jurisdiction giving rise to remedial intervention by this Court under s 39B(1).
74 To the extent the DHX17 contends for a proposition (guiding, as it does, subsequent applications for an order under s 477(2) in the many cases before the very busy primary court) that whenever the primary court, in considering an application under s 477(2) of the Act goes beyond a low hurdle of merely impressionistic assessment of the grounds of relief under s 476 it engages in jurisdictional error, it should be regarded as wrongly decided.
75 There will be cases where it may be appropriate for the primary court to go beyond such a low hurdle, always, of course, remaining conscious of the statutory purpose of s 477(2) emphasised at [28] of these reasons and the statutory question the primary court has to answer, and there will be other cases, like the present one, where the programming orders contemplate what amounts to, in effect, both applications being heard together where the primary court's view about the merits of any one or all of the s 476 grounds will play a major role in the assessment of the primary court's approach to the s 477(2) question.
76 Indeed, in DHX17, the Full Court recognised that the phrase "necessary in the interests of the administration of justice" is sufficiently broad as capable of encompassing a range of considerations. One of them is the merits of the s 476 grounds. The issue, as an expression of the limits of the power, is said to be the level of engagement with the s 476 grounds. In DHX17 at [62], the Full Court recognised that there is nothing in the nature, scope and purpose of s 477(2) which implies an obligation on the part of the primary court to take any particular consideration into account or to eschew consideration of a particular matter. Thus, as the Minister in this case observes, that proposition is consistent with the observation of Mortimer J in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [58]-[62] that a failure to give adequate and genuine consideration to an applicant's explanation for the delay does not amount to jurisdictional error, and there is no jurisdictional error in failing to consider prejudice to the respondent in such an application: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77 ("SZUWX"), Allsop CJ at [20], Bromwich J at [10] and Flick J at [16]. Ultimately, it is essentially a matter for the judge constituting the primary court to determine and assess whether he or she is satisfied that it is necessary in the interests of the administration of justice to extend the 35 day period always remaining conscious of the statutory purpose of the conferred power being exercised.
77 Did the primary judge engage in jurisdictional error by considering the merits of the s 476 grounds for relief in a way that went beyond the low hurdle of impressionistic assessment when deciding the question arising under s 477(2) of the Act?
78 The primary court is an inferior court in the hierarchy of courts but nevertheless it exercises the judicial power of the Commonwealth to quell controversies between citizens and in doing so it has the authority to decide questions of law and fact brought before it for determination in matters in which it has jurisdiction to determine those matters of controversy.
79 In assessing what constitutes jurisdictional error for the purposes of the grant of certiorari and amenability to the writ, the Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Craig v South Australia (1995) 184 CLR 163 ("Craig") was careful to distinguish between the position of inferior courts, on the one hand, and administrative tribunals, on the other. As to an inferior court, it 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: Craig at p 177. An inferior court will fall into jurisdictional error where it makes an order or decision based upon a mistaken assumption or denial of jurisdiction or a "misconception or disregard of the nature or limits of jurisdiction": Craig at p 177. At pp 177-178, the Court in Craig observed that an inferior court will exceed its authority and fall into jurisdictional error if it "misconstrues the statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case" and the Court added that, in this last category of case, "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern". Having emphasised the importance of the constitutional limitations derived from the separation of judicial and executive powers, and the position of administrative tribunals, the Court returned to the position of inferior courts and said this at pp 179-180:
In contrast, 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 identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
80 It follows that error which may amount to jurisdictional error by an administrative tribunal, if committed by an inferior court, may be an error within jurisdiction due to the scope of the inferior court's authority to decide: see also DMI16 v Federal Circuit Court of Australia (2018) 264 FCR 454, Full Court at [39] and [41], adopting the observations of Allsop CJ at [20] (see also [21]) in SZUWK. The question of whether a decision exceeds the limits of the conferred power "is and always will be content specific": Allsop CJ in SZUWK at [21]. In Kirk v Industrial Court (NSW) (2010) 239 CLR 531 ("Kirk"), the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that "behind the conclusions expressed in Craig" lie "unexpressed premises" about what is meant by jurisdictional error which "give content" to the notion of an inferior court's "authoritative" standing to determine questions of law and fact. The plurality observe that the "authoritative decisions" of inferior courts, however, are only "those decisions which are not attended by jurisdictional error" (Kirk at [70]) and thus a general "observation" that inferior courts have "authority to decide questions of law 'authoritatively' is at least unhelpful": Kirk at [70].
81 But what then renders an error of an inferior court (in this case the Federal Circuit Court exercising the judicial power of the Commonwealth under Ch III), a jurisdictional error?
82 In Kirk, the plurality at [72] returned to Craig at p 177 adopting the "general description" that an inferior court will fall 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" [original emphasis]. One aspect of jurisdictional error on the part of an inferior court reflecting the observations in Craig at p 177-178 emphasised by the plurality in Kirk at [72] is: "(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 plurality in Kirk noted (again emphasising the observations in Craig at p 178) that this last example is the class of case where "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern".
83 The plurality in Kirk emphasised that the reasoning in Craig summarised with approval by the plurality in Kirk at [72] was not to be seen, however, as anything other than "examples" of the "ambit of jurisdictional error" and not a "rigid taxonomy" (Kirk at [73]) looking for, put metaphorically, the right sized foot to fit into Cinderella's glass slipper.
84 Although the statements of principle concerning the circumstances of jurisdictional error by an inferior court in Craig at p 177 and p 178 are no more than examples and should not be treated as a rigid taxonomy, the primary court may have difficulty in comprehending where the difficult line lies in addressing a s 477(2) question when dealing with the many migration cases before it. Can a judge of that court consider the grounds on which s 476 relief is sought when deciding the extension question and, if so, at what level of engagement?: impressionistic only so as to determine whether a case is arguable; something more than that; or "as if" the primary judge has the s 476 grounds before the judge constituting the court. The particular difficulty is that every case, of course, will be case-specific and often context-specific and, importantly, the programming orders of the case, as mentioned earlier, will need to be taken into account as orders governing the way in which the case has come forward for hearing. So far as the decisions of "administrative" decision-makers are concerned (MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 ("MZAPC")), the plurality, Kiefel CJ, Gageler, Keane and Gleeson JJ at [28] said this at [29] in MZAPC:
[29] The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without the need for any court to have determined that the decision is invalid.
85 Section 477(2) confers a power to extend the 35 day period in broad terms requiring the primary judge to decide whether an extension is necessary in the interests of the administration of justice. There are no considerations prescribed by s 477(2) required to be taken into account by the primary court in deciding that question. The engagement by the primary court with the factors in the relevant case the primary court considers informs its decision concerning the s 477(2) question must, however, occur within the bounds of rationality and reasonableness. The statutory purpose of s 477(2) is beneficial and enabling. Parliament has conferred a power on the primary court such that if the primary court's jurisdiction has not been regularly invoked because of the 35 day limitation, it may be extended thus regularising the invoking of the jurisdiction if considered by the primary court as "necessary in the interests of the administration of justice". That phrase is capable of comprehending many things but reference to the word "necessary" in the "interests of the administration of justice" suggests at least the interests of the administration of justice in the proceeding sought to be brought by seeking a remedy under s 476, and its possible relationship with other proceedings before the primary court. The appellant contends that the primary judge was required to engage generally with the grounds on which s 476 relief was sought but only for the purpose of determining whether the appellant was asserting an "apparently viable case" (no more and no less) and once the primary judge engaged with the grounds as if they were before him for the purpose of deciding whether each one of them failed or not, as the predominant consideration in deciding the s 477(2) question, the primary judge fell into jurisdictional error by misconceiving the limits of the power and then exceeding the limits of the power. Thus, the primary judge is said to have been no longer acting within the primary court's authority to decide the question before it.
86 So far as the facts of this particular case are concerned, having regard to the way the matter came before the primary judge by the programming orders, the primary judge was not constrained by the text or statutory purpose of s 477(2) in engaging with the merits of the s 476 grounds in deciding the s 477(2) question by going beyond a low hurdle impressionistic assessment of the s 476 grounds and did not by doing so, exceed the limits of the conferred power. It was a matter for the primary judge to examine the s 476 grounds as he determined appropriate so long as he kept in mind the statutory purpose of the provision, its beneficial and enabling character and acted within the bounds of rationality and reasonableness at all times. In that sense, the primary judge did not engage in jurisdictional error by engaging with the s 476 grounds in the way he did.
87 There is, however, a further question.
88 I am satisfied that the primary judge erred, not by reason of considering the s 476 grounds in the way he did, or by, in effect, electing to hear the two applications together, but rather by failing to grant an extension of the 35 day period as "necessary" in the "interests of the administration of justice" on the footing that he had elected to embark upon an assessment of the s 476 grounds as if they were before him and by refusing to extend the time because he could not be "satisfied" that an extension was "necessary in the interests of the administration of justice" (because, in turn, he concluded that all of the grounds failed), he deprived the appellant of something necessary in the interests of the administration of justice, namely, a right to test whether the primary judge's views about the grounds were right or wrong, and this is especially so in circumstances where the primary judge had not subjected the grounds to the content-specific analysis necessary to decisively form a view about whether any one or more of them would or would not fail.
89 The question is whether that error was jurisdictional, rather than the anterior decision to engage with the grounds beyond the level of the so-called "low hurdle impressionistic" assessment leading to the refusal to order an extension of the 35 day period. The primary judge ought to have extended the time and then dismissed the s 476 application, having embarked upon the matter in the way he did. That error is not appellable to this Court by reason of s 476A(3)(a) of the Act.
90 The error in refusing to extend the 35 day period by concluding, on the basis that each of the s 476 grounds failed, that the primary judge could not be satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period, misconceived the statutory purpose of the power as beneficial and enabling such that even though the primary judge had considered the s 476 grounds at the level of engagement beyond the impressionistic low hurdle level and treated them as if they were before him, the engagement was well less than the necessary context-specific analysis of the Tribunal's reasons and the primary judge's view of those matters may have been wrong. The appellant ought not to have been deprived of the opportunity to test those views as a necessary incident of the exercise of the power to decide whether it was necessary in the interests of the administration of justice to extend the time so as to provide the appellant with an opportunity to test the views of the primary judge on each of the s 476 grounds. That misconstruction or misconception of the power gives rise to excess of jurisdiction and jurisdictional error in the Craig proposition "(c)" sense: see Kirk at [72] and the observations in MZAPC at [28] and [29].
91 However, if the error of refusing to make an order under s 477(2) is an error within the exercise of the inferior court's jurisdiction, another entirely separate question arises. I now address that question.
92 Section 39B(1) of the Judiciary Act is not the only source of the Federal Court's original jurisdiction under s 39B. Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Federal Court "also includes jurisdiction in any matter arising under any laws made by the Parliament". The word "also" makes clear that the original jurisdiction of the Federal Court under s 39B(1A)(c) is in addition to the jurisdiction conferred under s 39B(1) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. As Gummow, Hayne, Heydon and Crennan JJ observed at [4] in Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146 ("Futuris"), s 39B(1) "relevantly replicates" the terms in which jurisdiction is conferred on the High Court by s 75(v) of the Constitution. That jurisdiction includes the conferral of jurisdiction to grant certiorari as incidental to the jurisdiction to grant prohibition and mandamus: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [14]. So too, s 39B(1) confers jurisdiction to grant certiorari as ancillary to those writs. Section 39B(1A)(c) is, however, a broad supplementary jurisdiction relevantly identical with s 76(ii) of the Constitution. It is a general conferral of jurisdiction. Section 39B(1A)(c) is the source of original jurisdiction, that is, the authority to decide, any "matter arising under any laws made by the Parliament". It is not the source of a particular remedy, unlike s 39B(1) which confers original jurisdiction with respect to any "matter" by reference to the nominated remedies (including, as ancillary, certiorari) which carries with it all of the jurisprudence concerning the grant of those remedies.
93 In this case, the law of the Commonwealth Parliament is s 477(2) of the Act and the matter is the whole of the controversy between the appellant and the Minister as to whether the primary judge fell into jurisdictional error by engaging with the s 476 grounds in the way he did; whether there was error on the part of the primary judge and whether that error was jurisdictional; and also, whether the primary judge fell into error by failing to be satisfied in the circumstances of the case that an extension of time was necessary in the interests of the administration of justice. Importantly, the s 39B(1A)(c) jurisdiction is a conferral of original jurisdiction in the entire controversy (the matter) arising under s 477(2), not a source of original jurisdiction in the Tribunal's migration decision (and, as to that matter, see s 476A(1) of the Act). Assuming for the moment that the error in not being satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period is non-jurisdictional, it is sufficient to note these matters:
(1) Original jurisdiction is conferred on the Federal Court in the controversy as a supplementary source of jurisdiction under s 39B(1A)(c).
(2) Section 477(2) is the source of a right, duty or liability to be established by the Federal Court in the exercise of the s 39B(1A)(c) jurisdiction. The Court is called upon to determine whether the appellant's application for an extension of time was determined according to law without error. The Court on hearing the appeal gave leave to the appellant to rely on s 39B(1A)(c) by an amended originating application and a draft amended notice of appeal challenging the dismissal of the s 39B(1) proceeding on the hypothesis or assumption of also a dismissal of the s 39B(1A)(c) ground as contended for by leave. The parties were given leave to put on supplementary submissions as to the s 39B(1A)(c) point.
(3) A remedy granted in the exercise of the jurisdiction conferred by s 39B(1A)(c) is not governed by the principles of jurisdictional error which control (see the plurality in Futuris at [47]) the grant of the constitutional writs (although not so for the remedy of injunction) provided for in s 75(v) of the Constitution and s 39B(1) of the Judiciary Act. The real question is the nature of the remedy that might be capable of being granted in the exercise of the Court's original jurisdiction arising under s 39B(1A)(c).
(4) One source of a remedy is a declaration under s 21(1) of the FCA Act, that is, a binding declaration of right that the primary court erred in law in failing to be satisfied that it was necessary in the interests of the administration of justice to extend the 35 day period. Such a declaration may be made regardless of whether any consequential relief is granted. It may be ordered as primary relief but will not be granted where it is inutile to do so or produces "no foreseeable consequences for the parties": Clarence City Council v Commonwealth (2020) 280 FCR 265 at [63], Jagot, Kerr and Anderson JJ; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 ("NAAV"), French J at [537]; Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, Mason J at 188, Aickin J at 189; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ at 582.
(5) A declaration, by itself, will not have the effect of setting aside the order of the primary judge or quashing that order. The proceeding before the primary judge does not regularly engage the primary court's jurisdiction under s 476 as the order dismissing the extension application would remain on foot in the face of the declaration.
(6) Section 23 of the FCA Act, however, confers power on the Federal Court to make orders in matters in which it has jurisdiction of such kinds and to issue, or direct the issue of, writs of such kinds as the Court thinks appropriate. Section 23 empowers the Court to make a broad range of orders including orders "in the nature of" certiorari and mandamus: Baker v Patrick Projects Pty Ltd (2014) 226 FCR 302 at [29], Katzmann J, (Dowsett J and Tracey J agreeing). In proceedings in the exercise of the Federal Court's original jurisdiction under s 39B(1A), the Court is not limited to the constitutional writs "or confined by the criteria for their issue": NAAV, French J at [509]. The Court can shape the relief to do justice between the parties in the exercise of s 39B(1A)(c) jurisdiction. The function of an order in the nature of certiorari is to remove the consequences of a purported exercise of power which has an apparent legal effect upon the rights of the parties at the date of the order: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ at [28]. In exercising judicial review of the orders and judgments of inferior courts, an order in the nature of certiorari is not limited to jurisdictional error or for error of law on the face of the record and extends to the correction of error within jurisdiction, although the correction of jurisdictional error is one of the most important established grounds, but not the sole ground: Craig at pp 175-176.
(7) In Plaintiff 157/2002 v Commonwealth (2003) 211 CLR 476 ("Plaintiff 157/2002"), Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [80] accepted that subject to the existence of a "matter", certiorari may also issue in the exercise of jurisdiction conferred by s 75(iii) of the Constitution, and s 76(i) of the Constitution "in any matter … arising under the Constitution or involving its interpretation". The conferral of jurisdiction in any matter arising under a law made by the Parliament similarly is capable of supporting certiorari and the remedy in the exercise of that source of original jurisdiction is not confined to jurisdictional error. These statements of principle in Plaintiff 157/2002 (and also McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, Gaudron and Gummow JJ at [58]) suggest that certiorari may be granted for non-jurisdictional errors of law on the part of inferior courts in the exercise of jurisdiction conferred by s 39B(1A)(c) and s 76(ii) of the Constitution. The source of the remedial power to shape an appropriate remedy is s 23 of the FCA Act. Section 23 is not limited to the grounds of jurisdictional error governing s 75(v) of the Constitution and s 39B(1) of the Judiciary Act.
(8) Were it not the case that the original supplementary jurisdiction conferred by s 39B(1A)(c) is as broad as it is, and the flexibility to shape an order under s 23 of the FCA Act, is as flexible as it is, so as to do justice between the parties (comprehending orders in the nature of certiorari and mandamus for non-jurisdictional errors of inferior courts) an unfortunate circumstance might arise where the Federal Circuit Court falls into error in the exercise of the power conferred by s 477(2) of the Act, and because a decision under s 477(2) is non-appellable, the applicant for an extension of time has no remedy, which otherwise enables the primary court to act as an "[island] of power immune from supervision and restraint" and permit of "the development of 'distorted positions'": Kirk at [99].
(9) Finally, there is an important question of statutory construction concerning s 476A(3)(a) of the Act. As already mentioned, s 476A(3)(a) provides as follows:
Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:
(a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or
(b) a judgment of the Federal Court that makes an order or refuses to make order under subsection 477A(2).
(10) Section 24(1)(d) of the FCA Act provides that this Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, and relevantly here, s 477(2) of the Act. If the judgment the subject of s 24(1)(d) is characterised as an interlocutory judgment, an appeal may not be brought from a judgment of that kind unless this Court or a Judge gives leave to appeal: s 24(1A). The judgment in question in these proceedings is a judgment of the Federal Circuit Court and for present purposes it may be assumed that the judgment is an interlocutory judgment. It should be noted that by operation of Item 210 of Schedule 1 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), the reference in s 24(1)(d) and (e) of the FCA Act to the "Federal Circuit Court" is a reference to the "Federal Circuit and Family Court of Australia (Division 2)". The question of statutory construction is this: Is s 476A(3)(a), by providing that despite s 24 of the FCA Act an appeal may not be brought to this Court from a judgment of the primary court that makes an order or refuses to make an order under s 477(2), to be construed so as to prohibit an exercise of this Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act? The answer to that question is to be found in the following four circumstances. First, an exercise of original jurisdiction under s 39B(1A)(c) is not an appeal. Second, the section does not say that it operates despite s 39B(1A)(c) of the Judiciary Act and since s 476A(3)(a) of the Act selects the particular statutory instrument which is to be put to one side, an inference arises that had the section sought to displace the operation of s 39B(1A)(c), it would have said so in terms. Third, if s 477(2) is to be construed as prohibiting an exercise of original jurisdiction under s 39B(1A)(c), it ought rationally be construed so as to also exclude an exercise of original jurisdiction by this Court under s 39B(1) of the Judiciary Act. Such a construction is unlikely having regard to the subject matter in question. Fourth, had the circumstances of the statutory regime been than an appeal lies (having regard to the provisions of the FCA Act) from a decision of the primary court under s 477(2) of the Act, discretionary considerations would strongly and powerfully suggest that no remedy ought to be granted in the exercise of this Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act or, for that matter, the Court's jurisdiction under s 39B(1) of the Judiciary Act.
94 For all these reasons, if the dismissal of the application to extend the 35 day period on the footing that the primary judge could not be satisfied that it was necessary in the interests of the administration of justice to extend the time, is a non-jurisdictional error on the part of the inferior court, a remedy is capable of being granted in the exercise of the Court's original jurisdiction under s 39B(1A)(c) of the Judiciary Act and the remedy is a declaration coupled with orders "in the nature of" certiorari and mandamus.
95 However, as mentioned, I take the view, for the reasons described earlier at [28], [61]-[65] and [88]-[90] that the primary judge engaged in jurisdictional error in refusing to grant an extension of the 35 day period, not because the primary judge considered the s 476 grounds beyond an "impressionistic" level of engagement but rather, having considered the grounds at the level of engagement he did, it was necessary in the interests of the administration of justice to exercise the discretion to extend the 35 day period. It was material because it foreclosed the appellant from testing whether the primary judge was in error as to the views he had formed about any one of the grounds. The final question concerns the forms of order to be made in disposition of the appeal. By majority, Rangiah J and I conclude (for entirely separate reasons) that the primary judge engaged in jurisdictional error in the exercise of the power conferred under s 477(2) of the Act. Because Rangiah J concludes that the primary judge exceeded the limits of the power by considering the contended s 476 grounds in the way he did, Rangiah J concludes that the relevant orders of the primary judge should be set aside and the matter remitted to the primary judge to be determined according to law. Because I take the view that the primary judge exceeded the limits of the power by not granting the extension of time as "necessary in the interests of the administration of justice" on the ground that the appellant was deprived of the opportunity to challenge and test the primary judge's conclusions about any one or all of the grounds for s 476 relief, I would set aside the relevant orders of the primary judge and in their place order that the extension of time be granted, as there is no other matter to determine by the primary judge. That follows because I do not accept that the primary judge fell into jurisdictional error by considering the contended s 476 grounds beyond the limit of the so-called "low hurdle" or because the primary judge exceeded a mere "impressionistic" assessment of the contended grounds. However, because there is no consensus in the majority view as to the form of the orders to be made on appeal, the orders ought to go no further than the minimum position. Accordingly, the orders of the primary judge are to be set aside and the matter remitted to the primary court and the primary judge for determination according to law. In that remitter, I remain of the view that the only question for determination by the primary judge is whether the extension of time is to be granted having regard to the primary judge's conclusions about the contended s 476 grounds and in determining that question, the primary judge, in my view, would be acting according to law by extending the time as "necessary in the interests of the administration of justice" having regard to the conclusions reached by the primary judge in his Honour's assessment of the contended s 476 grounds.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.