The reasons of the primary judge
15 It is to be recalled that the application to the Federal Court was for judicial review of the judgment of the Federal Circuit Court.
16 Having set out the background, the judge of the Federal Court, the primary judge, said, at [20], that neither the present appellant, nor the Minister, advanced any submissions on the application in relation to the correctness or otherwise of the Federal Circuit Court judge's consideration of the merits of the present appellant's case that the Tribunal had erred jurisdictionally. The primary judge said it was also difficult to give any detailed consideration to that aspect of the Federal Circuit Court's disposition of the matter given that neither the Tribunal's decision and reasons, nor the material that was before the Federal Circuit Court, was in evidence before the primary judge.
17 At [24], the primary judge said that, importantly, both of the present appellant's grounds turned largely on arguments based on the Tribunal's reasons and the proper construction of s 36 of the Migration Act. It was not suggested that the appellant could or would lead any further evidence in support of his application, or put any further material before the court, if his extension application was granted.
18 At [25], the primary judge said it could be readily inferred that the appellant had every opportunity to fully argue these grounds of his application when the matter was heard in the Federal Circuit Court. The appellant was represented by solicitor and counsel at the hearing. He filed detailed written submissions and counsel made oral submissions in support of his case. It was not contended by the appellant that the Federal Circuit Court judge dealt with his grounds in a summary or shorthand fashion given that the Federal Circuit Court judge was considering the grounds in the context of an application for an extension of time. Indeed, one of the points made by the appellant on the application before the primary judge in the Federal Court was that the Federal Circuit Court judge addressed and determined his grounds of challenge to the Tribunal's decision effectively on a final basis. The appellant contended that the judge of the Federal Circuit Court did not correctly address the question of whether, for the purposes of the extension application, the appellant's grounds were reasonably arguable, or whether the appellant had reasonable prospects of success.
19 At [26], the primary judge noted that the appellant did not contend on the application before the primary judge in the Federal Court that the Federal Circuit Court judge erred in his consideration and rejection of the two grounds of review of the Tribunal's decision and reasons. The appellant explained this on the basis that, by reason of s 476A(3)(a) of the Migration Act, he could not bring an appeal in this Court from the judgment of the Federal Circuit Court refusing to make an order under s 477(2) of the Migration Act. The appellant submitted, on this basis, that he could not attack the Federal Circuit Court judge's reasons for finding that the grounds of his substantive application had no merit. Rather, the appellant's challenge to the Federal Circuit Court judge's judgment focused exclusively on the manner in which the Federal Circuit Court judge dealt with the extension application, particularly in light of the fact that the Minister did not oppose the extension application.
20 At [27], the primary judge noted that the Minister did not submit that the grounds relied on before the Federal Circuit Court judge were hopeless or not reasonably arguable. That was consistent with the approach taken by the Minister in the Federal Circuit Court. The Minister maintained, however, that despite his non-opposition to the extension application, the Federal Circuit Court did not err in the exercise of its jurisdiction under s 477(2) of the Migration Act when it dismissed the application.
21 At [51]-[53], the primary judge said that the manner in which the extension application was dealt with by the Federal Circuit Court judge was, in all the circumstances, less than satisfactory. It did not, however, necessarily follow that the appellant was denied procedural fairness. The critical question, in short, was whether as a result of the procedural deficiencies there was any "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38]. The primary judge said that the problem with the hearing in the Federal Circuit Court was the product of a combination of factors. The extension application was set down for hearing at the same time as the substantive application. That was in itself not necessarily problematic. Courts regularly set down applications for leave to appeal or extensions of time at the same time as the appeal or substantive application. When this was done, however, it was important for the court and the parties to proceed in a way that made it clear whether the leave or the extension application remained a live issue. In particular, care should usually be taken to ensure that issues that arose in relation to the leave or extension application were dealt with separately and distinctly from the issues that arose on the substantive application. That did not occur here, the primary judge said. Indeed, the primary judge said, having regard to the way the matter proceeded at the hearing in the Federal Circuit Court, and in light of the Minister's consent or non-opposition to the extension application, the impression appeared to have been given, and the assumption might reasonably have been drawn by the appellant, that there was effectively no issue about the extension of time being granted.
22 At [56], the primary judge rejected the submission on behalf of the appellant that procedural fairness required the judge of the Federal Circuit Court to give him notice that the matter would be decided on the basis of the extension of time issue alone.
23 At [57]-[58], the primary judge said the appellant's reliance on the fact that the Minister did not oppose the extension application also did not assist. The mere fact that the Minister had consented, or did not oppose, the extension application did not oblige the Federal Circuit Court judge to put the appellant on notice that he might still decide the extension application adversely to him. The primary judge said that an applicant was not entitled to assume that an extension will be granted simply because the Minister did not oppose it. In these circumstances, it was difficult to see why procedural fairness required the Federal Circuit Court judge to inform the appellant that, despite the Minister's consent or non-opposition, he still needed to persuade the court that the interests of the administration of justice necessitated the grant of an extension. That was all the more so here where the appellant was represented by solicitor and counsel.
24 At [59]-[60], the primary judge said that the apparent confusion that appeared to result from the way the hearing in the Federal Circuit Court was conducted, and in particular the judge of the Federal Circuit Court's statement "let's move to the merits", whilst unfortunate, did not establish a denial of procedural fairness. The problem for the appellant was that he had not demonstrated that he was in any way materially prejudiced or disadvantaged by the somewhat unsatisfactory way in which the hearing in the Federal Circuit Court proceeded. What was the practical injustice? What would or could he have done differently if notice had been given that the Federal Circuit Court judge might, despite the Minister's non-opposition and the course the hearing had taken, refuse the application for an extension? There was or could be no suggestion that, if put on notice that extension of time was still a live issue, the appellant would or could have put his arguments in support of his substantive grounds of review of the Tribunal's decision differently or more forcefully. More importantly, this was not a case where the appellant intended to file any further evidence, or put any further material before the court, in support of his substantive application: cf. Shrestha v Migration Review Tribunal [2015] FCAFC 87; SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88.
25 The primary judge said, at [62]-[64], that the highest the appellant was able to put his case was that he was deprived of the opportunity of submitting that his grounds of review of the Tribunal's decision were at least reasonably arguable, and that accordingly the extension should be granted, even if the Federal Circuit Court judge was ultimately of the opinion that final relief should not be granted. The appellant submitted that had he been able to make this submission, the result would, or at least might, have been that the appellant would have appeal rights. There was a considerable degree of artificiality in that argument, the primary judge said. The appellant argued before the Federal Circuit Court that his grounds of challenge to the Tribunal's decision were correct. It was implicit in this that he also contended that they were reasonably arguable.
26 At [67], the primary judge said that in all the circumstances it could not be concluded that there was any practical injustice or unfairness to the appellant. The appellant was given every opportunity to present his case that he had good arguable grounds upon which to challenge the Tribunal's decision. Procedural fairness did not require the Federal Circuit Court judge to put the appellant on notice that, despite the Minister's consent, his extension application might nonetheless be dismissed on the basis that he did not have reasonable prospects of success. Whilst there may have been some confusion arising from the way in which the hearing in the Federal Circuit Court was conducted, that confusion did not result in any prejudice or unfairness to the appellant.
27 At [69]-[70], the primary judge said that there was an additional difficulty in relation to the appellant's contention that he was denied procedural fairness because he was effectively deprived of his appeal rights. That difficulty arose from the fact that he had made no attempt to demonstrate that, if he had a right of appeal from the finding in respect of the merits of his substantive application, that right would be of any utility. The appellant had not sought to establish that the Federal Circuit Court judge's assessment of the merits of his substantive challenge to the Tribunal's decision was erroneous. Indeed, he had not even attempted to demonstrate that he had even a reasonably arguable case of jurisdictional error on the part of the Tribunal. The appellant submitted that he did not attempt to demonstrate these matters because he was precluded from bringing an appeal from the refusal of his extension application. That submission was rejected by the primary judge. The fact that s 476A(3)(a) of the Migration Act precluded an appeal from the dismissal of an extension of time application by the Federal Circuit Court did not mean that an applicant who commenced judicial review proceedings alleging that the dismissal involved a jurisdictional error was precluded from advancing any argument based on the court's treatment of the merits of the substantive application.
28 Having reviewed briefly the reasons of the Federal Circuit Court judge's findings and reasons for rejecting the appellant's two grounds of challenge to the Tribunal's decision, the primary judge added, at [72], that to the extent that the appellant's case that he was denied procedural fairness rested on the contention that he was denied the opportunity to appeal from the judge's findings in relation to the merits of his substantive application, the absence of any apparent appealable error provided an additional reason for finding that there was no practical injustice or unfairness in the manner in which the court dealt with his application. There was no denial of procedural fairness.
29 As to the question of the Minister's attitude to the extension of time application, the primary judge noted, at [77]-[79], that the appellant did not appear to rely on any distinction or difference between the Minister's consent, as communicated by the Minister to the appellant prior to the hearing, and the Minister's non-opposition, which was communicated to the Federal Circuit Court. To the extent that the appellant did rely on any difference between consent and non-opposition, he faced two difficulties. First, in the particular circumstances of this case, it was difficult to see any material difference between consent and non-opposition. Second, in any event, there was no evidence that the Federal Circuit Court judge was told that the Minister consented to the application. The Federal Circuit Court judge could not relevantly fall into jurisdictional error by failing to have regard to a matter that was not communicated to him. A further and perhaps more fundamental problem for the appellant in relation to this ground was that, even if the Federal Circuit Court judge did not have regard to the Minister's consent or non-opposition, it did not follow that he made a jurisdictional error. It would only be a jurisdictional error if the Federal Circuit Court judge was bound to have regard to that matter when exercising the power or jurisdiction under s 477(2) of the Migration Act. Section 477(2) of the Migration Act did not expressly state what factors needed to be considered, either in considering the interests of the administration of justice, or in the exercise of the discretion. The question, then, was whether, as a matter of statutory construction, a requirement to consider this factor could be implied having regard to the subject-matter, scope or purpose of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40. A failure to have any regard to the Minister's consent or non-opposition to an extension application might well amount to an error that, but for s 476A(3)(a) of the Migration Act, would be an appealable error. In the circumstances of this case, however, any such error would be an error within jurisdiction. There was nothing in the subject-matter, scope or purpose of the Migration Act, or s 477(2) in particular, which would support an implication that this factor must necessarily be taken into account as a condition of the exercise of the jurisdiction to extend time. It was for the court to determine what was necessary in the interests of the administration of justice in the particular circumstances of the case.
30 As to the claimed misunderstanding by the judge of the Federal Circuit Court of the question of reasonable prospects of success by conflating that question with whether he would grant final relief in the substantive proceedings, the primary judge held, at [82]-[88], that although there was some merit in the appellant's submissions, the Federal Circuit Court judge correctly identified the nature of the jurisdiction to extend time under s 477(2). He correctly identified that he was required to be satisfied that it was necessary in the interests of the administration of justice to make an order extending time. He correctly identified, at [10], that he was not confined in the issues which may be relevant to that question. He correctly considered that a relevant consideration was whether the substantive application had reasonable prospects of success. Whilst the Federal Circuit Court judge considered that the absence of reasonable prospects of success was, or was likely to be, determinative of whether it is in the interests of the administration of justice to extend time, that was not the same as equating or conflating the two tests. The appellant's submissions to the contrary were rejected by the primary judge. A fair reading of the judgment of the Federal Circuit Court judge also did not support a finding that the Federal Circuit Court judge conflated or equated reasonable prospects of success with the question of whether the appellant had made out his case for final relief. Whilst the conclusion at [26] was expressed in somewhat infelicitous terms, the effect of the Federal Circuit Court judge's findings concerning the merits of the substantive application was that there was no basis for concluding that the Tribunal's decision was infected by jurisdictional error. That was equivalent to, or tantamount to, concluding that the substantive application was not just weak, but was hopeless or doomed to fail.
31 In that respect the primary judge noted, at [90], but did not finally decide, that even if the judge of the Federal Circuit Court did err by equating the test for the interests of the administration of justice with the question whether the appellant was entitled to final relief, it was nonetheless at least doubtful that this would amount to a jurisdictional error in the circumstances. Whilst it would most likely amount to an error of law, as the reasoning in Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 showed, not all errors of law by an inferior court amount to jurisdictional errors. The ordinary jurisdiction of a court encompassed the authority to decide questions of law, including the identification of relevant issues and the formulation of relevant questions. The Federal Circuit Court's identification of the issues and questions concerning the interests of the administration of justice would ordinarily therefore fall within its jurisdiction. An error in the formulation of such issues and questions would therefore be an error within jurisdiction.