What happened
The appellant, identified only as MZABP to preserve the anonymity required by s 91X of the Migration Act 1958 (Cth), is a citizen of the small island nation of São Tomé and Príncipe. He arrived in Australia in September 2011 on a student visa and lodged a Protection (Class XA) visa application in March 2012. A delegate refused that application in May 2012. The appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) for merits review. On 30 November 2012 the Tribunal affirmed the delegate's decision, finding that the appellant had fabricated his claims, principally those based on political opinion, and that this finding made it unnecessary to examine in detail his claims based on religion or membership of a particular social group described as "whistle-blowers".
The 35-day time limit fixed by s 477(1) of the Migration Act for filing an application for judicial review in the Federal Circuit Court expired on 4 January 2013. The appellant did not commence proceedings until 6 March 2014, some 14 months late. He therefore required an extension of time under s 477(2). The Federal Circuit Court heard the extension application together with the substantive judicial review application. The appellant, by then represented, explained the delay by reference to advice from his case manager at the Asylum Seeker Resource Centre that he should seek ministerial intervention rather than judicial review. The Federal Circuit Court found that explanation inadequate because the appellant could have pursued both avenues concurrently. It then turned to the merits of the six grounds of review. After a detailed examination occupying the bulk of its reasons, the Federal Circuit Court concluded that grounds 1–3 had not been made out, that there was "no substance" to grounds 4–6, and that the appellant did not have reasonable prospects of success. Accordingly it was not in the interests of the administration of justice to grant an extension.
The appellant then sought judicial review of the Federal Circuit Court decision in the Federal Court under s 39B of the Judiciary Act 1903 (Cth). It was common ground that s 476A(3)(a) precluded an appeal as of right but that judicial review jurisdiction existed. The amended application alleged that the Federal Circuit Court had misapprehended the nature of the s 477(2) power by applying principles derived from Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 rather than the statutory criteria, and by failing to make express findings on the statutory preconditions in s 477(2)(a) and (b). Only in oral reply submissions did counsel articulate a further complaint: that the Federal Circuit Court had treated the merits inquiry as though it were conducting a full hearing on the ultimate success of the grounds rather than applying the lower "reasonably arguable" threshold appropriate to an extension application. The primary judge recorded at [61] that this argument had not been identified in the amended application, had not been the subject of detailed submissions by the Minister, and "cannot be considered as a basis for granting any relief in this proceeding". Nevertheless her Honour expressed disquiet about the Federal Circuit Court's approach to the merits factor, observing that the correct test required only an impressionistic assessment of arguability and that a full merits hearing was inappropriate, especially where no appeal lay as of right. She endorsed observations made by Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719.
The appellant sought leave in the Full Court to amend his notice of appeal to raise two new grounds. Ground 1 embodied the substantive complaint about the Federal Circuit Court's misconstruction of s 477(2). Ground 2, advanced in the alternative, alleged that the primary judge had erred in the exercise of her discretion by refusing to entertain that argument. The Minister opposed leave on the basis that the proposed grounds had no reasonable prospects. The Full Court (Tracey, Perry and Charlesworth JJ) granted leave to amend but held that the primary judge had in fact made a discretionary ruling at [61] that the new argument could not be relied upon. Applying the principles in House v The King (1936) 55 CLR 499, the Full Court found no error in that discretionary decision. The late emergence of the argument in reply, the absence of any particularisation in the grounds, and the lack of any opportunity for the Minister to respond were material considerations properly taken into account. The appeal was therefore dismissed. The Court nevertheless endorsed the primary judge's articulation of the correct low-threshold approach to the merits factor in s 477(2) applications and expressed its own disquiet about the Federal Circuit Court's reasons.
Why the court decided this way
The Full Court's dispositive reasoning is procedural and discretionary. It first characterised the primary judge's statements at [61] and [69] as a ruling, made in the exercise of judicial discretion, that the appellant could not rely on the new argument advanced in reply. Because neither party produced a transcript and none of the appellate counsel had appeared below, the Full Court relied on the face of the primary judge's reasons. Those reasons made clear that the argument had not been pleaded, had been raised only in reply, and had elicited no detailed response from the Minister. In those circumstances the primary judge was entitled to conclude that the argument could not form the basis for relief.
Having so characterised the decision, the Full Court held that appellate intervention was available only on the narrow basis identified by Dixon, Evatt and McTiernan JJ in House v The King at 504–505: that the primary judge had acted on a wrong principle, allowed extraneous or irrelevant matters to guide her, mistaken the facts, or failed to take into account some material consideration. The appellant's alternative ground 2 sought to demonstrate such error by asserting that the misconstruction argument had in truth been encompassed within the existing ground that the Federal Circuit Court had "misapprehended or disregarded the nature or limits of her power". The Full Court rejected that contention. Paragraph (1)(a) of the amended application was an "umbrella" or generalised ground; its particulars in (1)(b)–(e) identified four quite different indicators of misconstruction, none of which corresponded to the substantive complaint about the merits threshold. The primary judge's own summary at [37] of the four indicators confirmed that the new point had not been raised until reply.
The Full Court further held that even though the primary judge had accepted that the argument was reasonable and had herself expressed disquiet about the Federal Circuit Court's approach, that did not exhaust the relevant discretionary considerations. The lateness of the point, the absence of detailed adversarial engagement, and the need to observe procedural fairness and the statutory mandate in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) were all material. No error in the weighing of those considerations was shown. Because the discretionary ruling stood, the substantive ground 1 did not arise for determination and the appeal had to be dismissed.
In reaching this conclusion the Full Court was careful to ground every step in the text of the primary judge's reasons and in the principles stated in House v The King. It did not merely substitute its own view of how the discretion ought to have been exercised. At the same time, the Court used the occasion to endorse, without deciding the substantive ground, the primary judge's exposition of the correct approach to the s 477(2) discretion. That endorsement appears in paragraphs [38] and [21]–[23] of the Full Court's reasons and is plainly intended to provide guidance to the Federal Circuit Court in future extension applications.
Before and after state of the law
Prior to this judgment the law concerning extensions of time under s 477(2) was unsettled in practice even if the statutory text was clear. Section 477(2) permits the Federal Circuit Court to extend time if satisfied that it is "in the interests of the administration of justice" to do so. The section contains no exhaustive list of factors. Courts had borrowed from the analogous but distinct jurisprudence under s 11 of the Administrative Decisions (Judicial Review) Act 1976 (Cth) as explained in Hunter Valley Developments Pty Ltd v Cohen. That line of authority treated the merits of the substantive application as one relevant factor but did not prescribe the intensity with which merits should be examined. In practice many Federal Circuit Court judgments, including the one under review, contained lengthy and apparently conclusive assessments of each ground, using language such as "no substance", "not made out" or "no reasonable prospects of success".
The primary judge's reasons in the Federal Court represented a deliberate attempt to arrest that trend. Drawing on Wigney J's analysis in SZTES at [48] and [102], her Honour emphasised that the merits inquiry should be "reasonably impressionistic", that the statutory subject matter is whether time should be extended so that the application can be heard in the ordinary way, and that a de facto full hearing is inappropriate, especially where s 476A(3)(a) precludes an appeal as of right. The primary judge gave concrete examples of acceptable language ("arguable", "reasonably arguable", "sufficiently arguable", "reasonable prospects of success") and warned against travelling beyond an examination of the grounds "on their face, and without the detailed argument and development which attends a full hearing".
The Full Court did not decide whether the Federal Circuit Court had in fact exceeded its jurisdiction by misconstruing the nature of the power (see [68]–[70]). It nevertheless expressly endorsed the primary judge's disquiet and her articulation of the correct approach. After this judgment, therefore, Federal Circuit Court judges were on clear notice that an extension application is not an occasion for exhaustive merits review. The "low bar" must be applied even when the extension hearing is listed concurrently with the substantive hearing. The judgment also reinforced the procedural strictness with which new grounds raised in reply will be treated on judicial review applications, particularly where the overarching purposes in ss 37M and 37N are engaged.
Key passages with plain-English translation
At [32] the Full Court quotes the classic statement from House v The King: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion." In plain English this means an appeal court cannot simply substitute its own view of what is fair; it must find a specific legal mistake in how the first judge weighed the relevant factors.
At [61] the primary judge (whose reasoning the Full Court accepts) states that the new argument "was not a matter identified in the amended application as a ground of review ... It was not a matter on which the first respondent made any detailed submissions. It cannot be considered as a basis for granting any relief in this proceeding." Translation: because the complaint about the wrong merits test was not written down in the court documents and the Minister never had a proper chance to answer it, the judge refused to decide the case on that basis. The Full Court treated this as a deliberate discretionary ruling rather than a mere observation.
At [62]–[63] the primary judge (expressly endorsed at [38]) explains that the merits factor in s 477(2) is intended to capture cases that are "plainly hopeless" on their face, not after "an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued". The correct question is whether a ground is "reasonably arguable" or has "reasonable prospects of success". The subject matter of the discretion "is whether time for bringing a judicial review application ... should be extended. The subject matter is not whether the applicant will ultimately be successful". In plain English, when deciding whether to let someone file late, the judge should do a quick look-over to see if the legal arguments are at least plausible. The judge should not run a mini-trial or decide the case on the merits at that stage, especially when the applicant cannot appeal if time is refused.
At [21]–[23] and [38] the Full Court records its agreement with the primary judge and with Wigney J in SZTES that the concurrent listing of extension and substantive hearings "may encourage an undue focus upon the merits" and produce an "artificial approach". Nevertheless, provided the correct low threshold is applied there is "no reason why that practice cannot be followed". Translation: the Court is alive to the practical risk that judges will slip into full merits adjudication when both applications are heard together, but the solution is rigorous attention to the statutory test rather than a change in listing practice.
What fact patterns trigger this precedent
This judgment will be engaged whenever an applicant for judicial review of a Federal Circuit Court refusal of an extension under s 477(2) seeks to raise on appeal (or in judicial review proceedings) an argument that was not squarely pleaded below and was first articulated only in oral reply submissions. The precedent is particularly apt where the new argument concerns the intensity with which the Federal Circuit Court examined the merits of proposed grounds of review.
It will also apply to any case in which a party contends that a primary judge's refusal to entertain a late-emerging legal argument constitutes a House v The King error. The fact pattern requires (a) an unpleaded or only generally pleaded point, (b) its emergence in reply, (c) an absence of detailed responsive submissions from the opposing party, and (d) a primary judge who records that the point cannot be considered. In such circumstances an appellate court must first decide whether the primary judge made a discretionary ruling and, if so, must apply the House v The King filter before reaching the substantive legal issue.
The judgment is further triggered whenever a Federal Circuit Court judge is considering an extension application under s 477(2) (or this Court under the analogous s 477A(2)). The reasons make clear that the merits factor must be assessed impressionistically. Any reasons that read as though the judge has finally determined the grounds, used language of "no substance" after pages of detailed analysis, or applied a "could succeed" test rather than a "reasonably arguable" test, are liable to attract the disquiet expressed both by the primary judge and by the Full Court.
How later courts have treated it
Although the present judgment is the source document, it expressly positions itself as continuing a line of authority. It cites and endorses the primary judge's reasons in the same litigation and the single-judge decision of Wigney J in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 (whose appeal was dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158). The Full Court treats those earlier reasons as correctly stating the law. It also cites Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 for the uncontroversial proposition that judicial review under s 39B remains available notwithstanding s 476A(3)(a). The judgment therefore operates as an appellate-level affirmation of the restrained, impressionistic approach to the merits factor in extension applications.
The Court is at pains to ground every proposition in the language of the primary judge or in House v The King. It does not overrule any prior authority but distinguishes Hunter Valley Developments as belonging to a different statutory context. Later courts reading this judgment are therefore directed back to the statutory text of s 477(2), to the need for an impressionistic assessment, and to the procedural strictness required when new grounds surface late. The judgment's treatment of SZTES and of the primary judge's reasons as correct statements of principle gives those earlier articulations appellate weight without the Full Court itself embarking on a lengthy doctrinal exegesis.
Still-open questions
The Full Court expressly declined to decide whether the Federal Circuit Court's apparent adoption of a "could succeed" test would have amounted to jurisdictional error. At [68] the primary judge had observed that such a fundamental misunderstanding "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", citing Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. The Full Court noted at [67]–[69] that the Federal Circuit Court's reasons "could be read as if the Federal Circuit Court finally determined the grounds of review" but concluded that, because the point had not been properly raised, it was "not appropriate to determine the issue". That question therefore remains formally open: does a Federal Circuit Court judge who conducts a full merits hearing and refuses an extension on the basis that the applicant "could [not] succeed" commit jurisdictional error by misapprehending the limits of the s 477(2) power?
A second open question is the precise boundary between a "reasonably arguable" case and a case that is "plainly hopeless". The judgment endorses language such as "arguable", "reasonably arguable", "sufficiently arguable" or "reasonable prospects of success" but acknowledges at [62] that the line is "fine". Future litigation will be required to test how much analysis of the grounds is permissible before an impressionistic assessment becomes an impermissible full hearing.
Third, the judgment leaves unresolved the interaction between the practice of listing extension and substantive applications together and the statutory command in s 477(2). While the Court says the practice is not inherently problematic if the correct test is applied, the repeated judicial disquiet (both here and in SZTES at [102]) suggests that the issue may resurface in a future case where the reasons more clearly cross the line.
Finally, the costs question was reserved. The Court indicated a tentative view that each party might bear its own costs given the justified concerns about the Federal Circuit Court's approach, but it invited written submissions. That procedural question, while minor, remains formally undetermined on the face of the published reasons.
These open questions illustrate that while the judgment provides strong guidance on the correct threshold and on appellate restraint, it deliberately stops short of resolving every doctrinal tension in this frequently litigated area of migration procedure. Practising lawyers should therefore continue to plead extension arguments with precision, particularise any complaint about the intensity of merits review at first instance, and ensure that reply submissions do not become the vehicle for new grounds.