Time extension: court limited to impressionistic assessment of JR application?

KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ described the case as follows:

1. This case concerns the correct approach to be taken by a judge of the Federal Court of Australia in the exercise of the power to extend time for making an application under s 477A(1) of the Migration Act 1958 (Cth) ("the Act"). Section 477A(1) provides that an application to the Federal Court for a remedy to be granted in the exercise of the Court's original jurisdiction under s 476A(1)(b) or (c) in relation to a "migration decision" must be made within 35 days of the date of the migration decision. However, by s 477A(2), the Federal Court may extend the 35 day period "as the Federal Court considers appropriate" if an application has been made in the required form, and the Federal Court "is satisfied that it is necessary in the interests of the administration of justice to make the order".

2. The plaintiff sought an extension of time to file an application for judicial review of a decision to cancel his Class TY Subclass 444 Special Category (Temporary) visa. The visa had been cancelled by the then Minister for Home Affairs under s 501(3)(b) of the Act, on the basis of matters that included the Minister's suspicion that the plaintiff had been or was a member of the Comanchero Outlaw Motorcycle Gang ("the Comanchero OMG").

3. The primary judge (Nicholas J) dismissed the extension of time application, after failing to be persuaded that the single ground of review in the proposed substantive application had any merit. The plaintiff contends that the primary judge's decision involved jurisdictional error because his Honour misapprehended or misconceived the nature and purpose of the statutory power in s 477A(2) to extend time. The plaintiff argues that this error is revealed by the primary judge's reasons, which are said to extend beyond an assessment of the merits of the application on an "impressionistic" basis for the limited purpose of assessing whether the application was reasonably arguable.

5. In accordance with common practice in the Federal Court, the primary judge heard the extension of time application together with argument on the substantive application...

Some of the questions to the High Court (HCA) were as follows:

Question 1: Is the common practice in the Federal Court (FCA) of hearing the extension of time application together with argument on the substantive application efficient?

Question 2: If the answer to Question 1 is 'yes', did that approach "require the primary judge to avoid the error of conflating the two applications by refusing to extend time on the basis of a final determination of the issues raised by the substantive application, instead of by reference to a consideration of what was necessary in the interests of the administration of justice"?

Question 3: Does the word "may" in the chapeau to s 477A(2) of the Migration Act 1958 (Cth) confer on the FCA a residual discretion to refuse to extend the time within which to file a judicial review application even if the FCA is satisfied that it is necessary in the interests of the administration of justice to grant the time extension?

Question 4: May be accepted, at a high level of abstraction, that "the purpose of a power to extend time is "to eliminate the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced"?

Question 5: Is the power conferred by s 477A(2), on its face, "unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice""?

Question 6: Is the focus of s 477A(2)(b) "not on the interests of the applicant, but the broader interests of the administration of justice"?

Question 7: Does s 477A(2)(b) allow the FCA to "look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application"?

Question 8: Is the level of satisfaction for the FCA to reach under s 477A(2)(b) low?

Question 9: Can it be said that, "in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level""?

Question 10: Are the interests of justice "likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors"?

Question 11: Can it be said that, "if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional""?

Question 12: If the answer to Question 11 is 'yes', does it follow that Full Court of the FCA in DHX17 "was wrong to say that "the decisional process of exercising the discretion in s 477(2) [here, s 477A(2)] neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review""?

Question 13: Can it be said that "the time limit in s 477A(1) no doubt "represents the legislature's judgment that the welfare of society is best served" by judicial review applications being instituted within a particular period of time, notwithstanding that the enactment of that period may result in a good ground of review being defeated"?

Question 14: In Plaintiff S157/2002 v The Commonwealth, did Callinan J conclude that s 486A of the Migration Act 1958 (Cth) as it then stood was invalid "to the extent that it purport[ed] to impose a time limit of [35] days within which to bring proceedings under s 75(v) [of the Constitution] in [the High] Court"?

Question 15: Did consideration of whether the grant of the extension of time sought was "necessary in the interests of the administration of justice" require having regard to the application made under s 477A(2)(a)?

Question 16: If the answer to Question 5 is 'yes', does that answer deny that there may be "circumstances where, by failing to consider a particular consideration in the context of a particular case (such as an explanation for delay), the Court may be found to have misconceived the nature of the power being exercised under s 477A(2) or acted outside the bounds of legal reasonableness or rationality"?

Question 17: Although the FCA is designated as a "superior court of record", do the errors described in Craig in the context of inferior courts also constitute jurisdictional error when made by a judge of the FCA?

Question 18: Can it be said that, "in assessing some extension of time applications, a failure to consider the merits of the proposed application in greater detail might give rise to error"?

The HCA answered those questions as follows: