Appealing Extension of Time Refusals in Judicial Review
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 16 February 2024
There is a 35 time limit on bringing applications for judicial review in the courts against adverse decisions by delegates (where there is no merit review), the Minister acting personally and the AAT.
But there is the ability to apply for an extension of time to the relevant court. Sections 477(2) and 477A(2) give the Federal Circuit & Family Court and the Federal Court power to extend time if “satisfied that it is necessary in the interests of the administration of justice to make the order”.
BUT, s476A(3) states, quite emphatically that no appeal can be made against any order by a single judge refusing an extension of time – see s476A(3):
(3) 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 and Family Court of Australia (Division 2) 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 an order under subsection 477A(2).
However that’s not the end of the story.
Certainly if the Federal Circuit & Family Court refuses an extension then s39B of the Judiciary Act comes to rescue. Section 39B states as relevant:
Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
(1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Judges of the Federal Circuit & Family Court are officers of the Commonwealth.
In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127, the Full Federal Court overturned a decision of a single Federal Court judge who declined to issue a writ of mandamus or prohibition against a decision of a Federal Circuit & Family Court judge to refuse to grant an extension of time for judicial review.
The Full Court determined that indeed the Federal Circuit & Family Court judge did make an error. The Full court stated:
79.In the context of the above discussion of the authorities, the present case is an example of where the FCC judge actually did engage in substantially more than an impressionistic evaluation of the merits of the proposed grounds of review. Although the FCC judge did not specifically assert that he would extend time only if he were satisfied that the appellants “could succeed” on any of the proposed grounds of review, that is the effect of his conclusions. There is no other reason for the FCC judge’s deep analysis of the proposed grounds and there is nothing in his Honour’s reasons to suggest that he considered any other test was appropriate for the purposes of exercising the power under s 477(2). As the authorities which have been discussed disclose, it is not uncommon for an applicant to assert that an FCC judge approached the discretion by applying a higher test to the assessment of merits than was required but, in most cases, the factual basis for the argument is not sustained. Here, it is undoubted that the FCC judge applied the incorrect test. That was a clear finding of the primary judge and it was not challenged by the Minister.
The difficulty is that the the Full Court made an order remitting the matter back to the Federal Circuit & Family Court for reconsideration. The Full court did not and cannot make a decision actually extending time. The decision of DHX17 is worth reading in full.
It is not clear what the time limit is for an application under s39B. As far as I can ascertain, no time limit is prescribed however, I would advise making an application under s39B within 28 days of the Federal Circuit & Family Court. I know of no provision which states however prudence suggests that an application under s39B
The problem comes if a Federal Court judge refuses an application for an extension of time to bring a judicial review application. It is noted that the Federal Court is the first port of call for seeking judicial review against a decision of the Administrative Appeals Tribunal in a s500 character matter review and similarly in relation to a decision made by the Minister personally in a character matter.
It would seem that the only remedy available if the Federal Court refused an extension of time, is an application for a constitutional writ under s75(v) of the Constitution to the High Court which states:
Original jurisdiction of High Court.
In all matters--
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:
the High Court shall have original jurisdiction.
In R v Watson; Ex parte Armstrong [1976] HCA 39, the High Court issued a writ of prohibition against the Family Court of Australia which it recognised was a ‘Superior court of record’. Barwick CJ, Gibbs, Stephen and Mason JJ stated:
16…it is in any case firmly established that under s. 75 (v.) of the Constitution prohibition will lie to a judge of a tribunal set up by the Commonwealth Parliament notwithstanding that it is declared to be a superior court:
Jacob J although in the minority, stated as follows:
2.I propose to assume that the remedy of prohibition is available upon the ground that a judge of a superior court of record has prejudged credit or is biased where the bias is not a bias by interest in the proceedings. If the remedy is available then there is an original jurisdiction in this Court to grant the remedy, a judge of a federal court being an officer of the Commonwealth within the meaning of s. 75 (v.) of the Constitution.
Of course it would be incongruous if the s39B o the Judiciary Act empowered another Federal Court judge or even the Full Federal Court to issue a writ of mandamus and certiorari against a single judge of the Federal Court (see Re Jarman; Ex parte Cook (No 1) [1997] HCA 13 and Drummond J in Bird v Free (1994) 126 ALR 475 at 479.
In Re McJannet (1995) 184 CLR 620 at 643-4, the High Court ruled that it had power to make orders against a Federal Court on the basis of jurisdictional error which included an error of law.
Applications to the High Court for constitutional writs are not to be instigated lightly. But if a genuine jurisdictional error exists in relation to a decision of the Federal Court to refuse an extension of time then an applicant has no other alternative to deportation!
Note also that the only order the High Court can make is to set the decision aside of the Federal Court refusing an extension and remitting it back to the Federal Cout for consideration!
As usual the words of the Minister for Home Affairs the Hon Clare O’Neil MP are apposite who told the National Press Club on 27 April 2023, the following, emphasising how complex the current system is :
The second big problem is that our migration system has become a bureaucratic nightmare.
Our system is slow and crazily complex. This has real consequences for the quality of our migration program.
Our migration system is ridiculously complex, making the system incredibly difficult to use….. I’ve spoken a bit about the terrible complexity in the current system.
The same can be said about the system of appeals and judicial review particularly relating to extensions of time.
I attach the decision of DHX17