Federal Court (Full Court). Was the standard of protection in s 36(2B)(b) "satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm", regardless of the circumstances of the individual non-citizen? The Applicant sent the FCCA a time extension application on 2 July 2019, but was only accepted for filing by the Registry on 1 August 2019? Was the application nevertheless deemed to have been filed on 2 July 2019?
The Applicant applied for a protection visa, which a delegate refused to grant. The Tribunal then affirmed the delegate's decision. On 2 July 2019, 4 days after the deadline for a judicial review (JR) application to the Federal Circuit Court (FCCA), the Applicant filed with the FCCA an application for JR of the Tribunal's decision and an application for an extension of time within which to make a JR application. On 1 August 2019, 34 days after the deadline for the JR application, those applications were accepted for filing by the FCCA's Registry.
The Full Court of the Federal Court (FCAFC) described the next relevant events as follows:
6 The matter came before the Federal Circuit Court judge on 13 February 2020. The applicant had filed an application for an adjournment on 28 January 2020, seeking time to obtain pro bono legal assistance. The applicant appeared unrepresented at the hearing via videolink from the detention centre. He was assisted by a Polish interpreter. The Federal Circuit Court judge explained to the applicant during the hearing that he required an extension of time and that he was 34 days out of time. The matter was adjourned for four weeks. The applicant did not point out to the Federal Circuit Court judge that he recognised that he needed an extension of time and that, in point of fact, he had made such an application for an extension of time in writing; nor did he say that the written application was sent four days after the relevant date.
7 On 12 March 2020, the matter was heard before the same Federal Circuit Court judge. The applicant again appeared unrepresented via videolink with the assistance of an interpreter. In a judgment dated 26 March 2020, the Federal Circuit Court judge refused the application for an extension of time and dismissed the matter. His Honour held that there was no proper explanation as to why the application was filed out of time and that the grounds advanced in the applicant’s substantive application lacked sufficient merit to warrant an extension of time.
As there was no appeal available to the Federal Court (FCA) from the refusal to extend time, by reason of ss 24(1)(d), 24(1AA)(a) and 20(3)(b) of the Federal Court of Australia Act 1976 (Cth), the Applicant filed in the FCA "an originating application for relief under s 39B of the Judiciary Act and a statement of claim, seeking a writ of certiorari quashing the Federal Circuit Court’s decision and a writ of mandamus directing the Federal Circuit Court, differently constituted, to determine the application for an extension of time in accordance with law". The FCCA was the First Respondent in such application.
The FCA's Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act that the original jurisdiction of the FCA in relation to the whole of the matter shall be exercised by the FCAFC.
The FCAFC stated as follows:
41 Section 477(1) and (3)(c) of the Migration Act imposed a time limit of 35 days to apply for a review of the Tribunal’s decision before the Federal Circuit Court. The applicant did not file an application for review within the statutory time limit, which expired on 28 June 2019.
42 The factual circumstances surrounding the filing of the applicant’s application for an extension of time to file an application for review are important to the resolution of this ground. On 2 July 2019, the applicant arranged for a bundle of documents to be sent by facsimile from Yongah Hill Immigration Detention Centre to the Federal Circuit Court Registry in Perth. The bundle of documents included an application for review of a decision under the Migration Act which was undated and an affidavit affirmed by the applicant on 2 July 2019. On the second page of the application for review, beneath the question “Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?” the applicant had ticked a box next to the answer “No”.
43 The body of the applicant’s affidavit stated: “I am applying for the judicial review of the decision of the Administrative Appeals dated 24/05/2019. Attached and marked annexure ‘A’ is a copy of the AAT decision dated 24/5/2019”. Hand-written below this were the words: “‘B’ Application for an extension time ‘C’ App Exemption from paying Court”. Annexed to the affidavit were the Tribunal’s decision record, marked as “A”, and an application for an extension of time marked as “B”. The application for an extension of time, signed by the applicant, appears to have been initially dated 26 June 2019, but this date was crossed out and replaced in handwriting with 2 July 2019. The affidavit and annexures were witnessed by a Justice of the Peace.
44 At the bottom of each page of the application for review, affidavit and annexures was a facsimile time and date stamp which showed that the documents had been faxed to 00892687208, being the facsimile number of the Perth Registry of the Federal Circuit Court, on 2 July 2019 at 3:38 pm. The application in this Court proceeded on the basis that the Registry received the documents by facsimile on that date at that time.
45 For reasons that are not explained in the materials before the Court, the “Notice of Filing and Hearing” applied by the Perth Registry of the Federal Circuit Court to the front of both the application for review and affidavit stated the following:
This document was lodged electronically in the FEDERAL CIRCUIT COURT OF AUSTRALIA (FCC) on 1/08/2019 2:40:00 PM AWST and has been accepted for filing under the Court’s Rules. Filing and hearing details follow and important additional information about these are set out below.
46 Below the Federal Circuit Court stamp on the Notice of Filing and Hearing attached to the application for review were the words “Dated: 2/08/2019 2:30:18 PM AWST”. Beneath the stamp fixed to the Notice of Filing at the front of the affidavit were the words “Dated: 2/08/2019 2:30:22 PM AWST”.
2. As can be seen from the dates, the Applicant has filed his application well outside of the 35 day limit permitted.
3. When the matter first came before me on 13 February 2020, I explained to the Applicant that he had not filed the application on time. The Applicant said that this was due to the conditions within the detention centre. To this end, I allowed the Applicant to make a verbal application for an extension of time.
53. As stated above, I explained to him that he had not filed the application on time and that he was 34 days late in filing the application. The Applicant explained that the conditions of the detention centre did not allow him to seek the legal advice he required and he believed he was entitled to. I explained to him that there were numerous Applicants who had appeared before the Court unrepresented and legal representation was not an entitlement. However, I nevertheless allowed the Applicant’s application and adjourned the matter for 4 weeks. I also explained to the Applicant that the matter would be proceeding whether he received the pro bono assistance or not.
73. I do not find that there is any merit in the excuse that the Applicant has given for his failure to file his application within the 35 day time limit. The Applicant may be unrepresented, but he seems to have quite a deal of experience with legal systems both here and in Poland. The notice given to him upon the refusal by the Tribunal, was clear that the Applicant had 35 days in which to make this application.
74. I do take into account that the Applicant has been in detention and may have been moved to different detention centres, but there is no evidence that illustrates what “roadblocks” the detention system put in place so as to prevent him being able to file the application within time.
75. The fact is that the Applicant did not even apply for an extension of time when he filed the application. Notwithstanding that his application form noted that an extension of time was required if the application was not made within 35 days of the date of the Tribunal decision, the Applicant still ticked the “no” box in answer to the question as to whether he was seeking an extension of time.
76. It is clear to me that the Applicant was very cavalier as to his responsibilities to file his application within time.
77. I do note that the Minister has not submitted that there is any undue prejudice afforded to him if the extension of time were to be granted.
48 It is clear from these passages in his Honour’s reasons that the Federal Circuit Court judge did not appreciate that the applicant had sent his application for review by facsimile to the Registry on 2 July 2019. Further, it is clear that his Honour did not appreciate that the applicant had also sent an application for an extension of time to the Registry on that date. In these circumstances, the Federal Circuit Court judge stated that an oral application would suffice and it was so treated by him thereafter.
49 The transcript of the hearing before the Federal Circuit Court judge on 13 February 2020 (the first time the matter came before his Honour) demonstrates that the solicitor acting for the Minister indicated to his Honour that the applicant had provided an application for an extension of time as an annexure to his affidavit affirmed on 2 July 2019. That transcript also reflects that the Federal Circuit Court judge explained to the applicant that his application was brought 69 days after the Tribunal made its decision. The applicant did not dispute this during the hearing before the Federal Circuit Court judge on that date. At  of an affidavit affirmed by the applicant on 18 March 2021, which was read, subject to objection, at the hearing before the Full Court (and the admissibility of which we consider below), the applicant confirmed that the Federal Circuit Court judge had stated his application was filed 69 days after the Tribunal’s decision. The applicant stated that he was confused by what the Federal Circuit Court judge had said, “but assumed that the Judge must be correct and did not question it”.
Some of the questions to the FCAFC were as follows:
Question 1: Can it be said that the "misconstruction of the relevant statute that led to an inferior court misconceiving the nature of the function which the court was performing or the extent of its powers in the circumstances of the particular case was an example of jurisdictional error"?
Question 2: Can it be said that "the line between jurisdictional error and mere error may be particularly difficult to discern in such cases"?
Question 3: Is judicial authority ample and considerable, in order for judges to be able to quell controversies?
Question 4: Can it be said that, where "there is no right of appeal, the nature of judicial power must be respected by all, including other judicial officers"?
Question 5: Is the extent of the FCCA's authority "confined to that which is vested in the Court by laws made by Parliament by express provision", rather than "a description of the kind of matters that may be brought before the Court by reference to their subject matter"?
Question 6: If the answer to Question 5 is "yes", was the extent of the FCCA's authority a question of statutory construction?
Question 7: If the answer to Question 6 is "yes", was the extent of the FCCA's authority in this case, pursuant to s 477(2)(b) of the Migration Act 1958 (Cth), "to extend the time within which to undertake a review where “it is necessary in the interests of the administration of justice” for such an order to be made"?
Question 8: If the FCCA's decision "was guided by a misunderstanding as to the nature and extent of the jurisdiction conferred by s 477(2)", could that error be jurisdictional?
Question 9: Would the error be jurisdictional if caused the FCCA "to extend time in circumstances that were not authorised by the provision"?
Question 10: Would the error be jurisdictional if caused the FCCA to "deny the existence of any authority to extend time in circumstances where there was such authority"?
Question 11: Would the error be jurisdictional if caused the FCCA to "undertake a consideration of a kind that departed from the nature of the consideration that was required"?
Question 12: Would the error be jurisdictional if the FCCA "concluded that it would be in the interests of justice to extend time, but nevertheless did not do so"?
Question 13: Was the FCCA's jurisdiction "also circumscribed by the nature of the application that was brought in the particular case"?
Question 14: Are there mandatory consideration for the purposes of the exercise of the power under s 477(2)?
Question 15: In determining pursuant to s 477(2)(b) where the interests of justice lie, should the proposed grounds of review be evaluated at a reasonably impressionistic level?
Question 16: Can it be said that the prescribed standard of protection in s 36(2B)(b) "was not satisfied by a conclusion that the State authority in question operates an effective legal system for the detection, prosecution and punishment of acts constituting serious harm and the non-citizen has access to such protection", regardless of the circumstances of the individual non-citizen?
Question 17: Is there "an important distinction between a claim that the Federal Circuit Court judge did not deal with the nature of the application that was made (on the one hand) and a claim that the Court on review should conclude that the Federal Circuit Court judge misunderstood the nature of the review grounds the subject of the application or their merit (on the other hand)"?
Question 18: If the answer to Question 17 is "yes", can it be said that "a claim of the latter kind is unlikely to be a claim of jurisdictional error because to seek to identify the nature of the grounds and to assess whether they have merit for the purpose of determining whether it was necessary in the interests of justice to extend time is at the heart of performance of the (within jurisdiction) judicial task"?
Question 19: Do the decisions in CKX16 and AMB19 "establish a general principle that a failure to consider a ground that might be discerned after the event by a court on review as not having been addressed demonstrates jurisdictional error in cases where an applicant seeks to invoke the jurisdiction conferred by s 477(2) to extend time"?
Question 20: Although the Applicant sent by facsimile an application for an extension of time on 2 July 2019, was that application only filed on 1 August 2019?
Question 21: Was the FCCA's finding that the JR application was oral and 34 days out of time when it was in fact in writing and only 4 days late a material misconception as to what the applicant was seeking the FCCA to determine, so as to lead to the conclusion that the FCCA was not dealing with the matter as placed before it?
Question 22: Can it be said that "the Registry and the application of Rules cannot be divorced from the Court as an institution (as opposed to a judge individually) dealing with the applicant’s application filed on 2 July 2019", with the result that the Registry's error is imputed to the FCCA?
The FCAFC answered those questions as follows:
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