Date of Judgment: 25 June 2024 - [2024] HCASJ 27

HIGH COURT OF AUSTRALIA
JAGOT J
DAQ22 PLAINTIFF
AND
FEDERAL COURT OF AUSTRALIA & ANOR DEFENDANTS
[2024] HCASJ 27
Date of Judgment: 25 June 2024
M18 of 2024
ORDERS
1.The time fixed for the filing of this application be extended from the time period prescribed by r 25.02.1 of the High Court Rules 2004 (Cth) to the date it was accepted for filing.
2.The writ of certiorari be issued quashing the orders of the first defendant, the Federal Court of Australia, made on 8 December 2023 in matter VID499 of 2022.
3.The writ of mandamus be issued requiring the first defendant, the Federal Court of Australia, to determine according to law the plaintiff's application under s 477A of the Migration Act 1958 (Cth) ("the Act") for an order extending the time within which he may file an application for judicial review in relation to a decision of the second defendant, the Minister, not to revoke the cancellation of his visa under s 501CA(4) of the Act.
4.The second defendant pay the plaintiff's costs of this application, and below.

Representation
The plaintiff is represented by Norton Rose Fulbright Australia
The second defendant is represented by MinterEllison
Submitting appearance for the first defendant
JAGOT J.
The application

These reasons for judgment concern an application for a constitutional or other writ in which the plaintiff seeks, relevantly: (a) certiorari to quash a decision of O'Sullivan J ("the primary judge") in the Federal Court of Australia[1] dismissing the plaintiff's application for an extension of time to file an application ("the extension of time application") for judicial review of the Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the plaintiff's protection visa ("the judicial review application"); and (b) mandamus requiring the Federal Court of Australia to determine according to law the extension of time application.
[1]DAQ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1557.
The plaintiff requires an extension of time to file the application in this Court, but the Minister (the second defendant in these proceedings) does not oppose that extension of time application. That extension of time application should be granted because: (a) it is not opposed; (b) the required extension of time is relatively short; and (c) there is an adequate explanation for the failure to file the application for the constitutional writ within the time required by r 25.02.1 of the High Court Rules 2004 (Cth). As explained below, the constitutional writs sought must also be granted.
Background to application for constitutional or other writ
The application for the constitutional or other writ is brought on two grounds. First, that, in deciding to dismiss the plaintiff's extension of time application, the primary judge ignored, overlooked, or misunderstood a substantial and clearly articulated argument in submissions for the plaintiff. Second, that, in so deciding, the primary judge misunderstood the applicable law. The grounds are interrelated and arise from the fact that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCASJ 27
Decision Date

CaseChat Overview and Summary

In the case of [Plaintiff] v [Defendant], the Federal Court of Australia was tasked with considering an application by the plaintiff for an extension of time to file an application in the court. The Minister, who is the second defendant in these proceedings, did not oppose the application. The plaintiff sought to have the application for the constitutional writ granted on the basis that the primary judge dismissed the plaintiff's extension of time application by ignoring or misunderstanding a significant argument presented in the plaintiff's submissions. Additionally, the plaintiff argued that the primary judge misunderstood the applicable law when dismissing the extension of time application.

The court was required to decide whether the primary judge's dismissal of the extension of time application was justified, and whether there were grounds to grant the application for a constitutional or other writ. The court needed to assess the arguments presented by the plaintiff regarding the primary judge's handling of the case, particularly in light of a subsequent decision by the court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs. The court had to determine if the primary judge properly considered the merits of the judicial review application and whether the dismissal was based on an accurate understanding of the law.

The court found that the primary judge's decision to dismiss the extension of time application was not supported by a proper consideration of the arguments presented by the plaintiff. The court held that the primary judge misunderstood the implications of the NZYQ decision on the plaintiff's application. Consequently, the court granted the plaintiff's application for an extension of time to file the application for a constitutional writ and ordered that the writ be issued. The court emphasised that the primary judge should have considered the merits of the judicial review application and the relevant legal principles more thoroughly before dismissing the extension of time application.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff requires an extension of time to file the application in this Court, but the Minister (the second defendant in these proceedings) does not oppose that extension of time application. That extension of time application should be granted because: (a) it is not opposed; (b) the required extension of time is relatively short; and (c) there is an adequate explanation for the failure to file the application for the constitutional writ within the time required by r 25.02.1 of the High Court Rules 2004 (Cth). As explained below, the constitutional writs sought must also be granted. Background to application for constitutional or other writ The application for the constitutional or other writ is brought on two grounds. First, that, in deciding to dismiss the plaintiff's extension of time application, the primary judge ignored, overlooked, or misunderstood a substantial and clearly articulated argument in submissions for the plaintiff. Second, that, in so deciding, the primary judge misunderstood the applicable law. The grounds are interrelated and arise from the fact that this Court delivered its reasons for judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor,[2] confining the constitutionality of continuing migration detention for the purpose of removal from Australia to circumstances in which there is a real prospect of the removal of the unlawful non‑citizen from Australia becoming practicable in the reasonably foreseeable future,[3] before the primary judge dismissed the plaintiff's extension of time application.[2](2023) 97 ALJR 1005.[3](2023) 97 ALJR 1005 at 1016 [44]-[46], 1018 [55], 1019 [61], 1020 [69]-[71]. Following the delivery of reasons for judgment in NZYQ, the primary judge invited the parties to make such further submissions as they wished addressing the relevance of that decision to the plaintiff's extension of time application.[4] His Honour did so in the context that both parties had agreed that the extension of time application should be determined having regard to the merits of the judicial review application.[5] This is important because it establishes that the primary judge dismissed the extension of time application because he considered that there was "no merit in the substantive [judicial review] application, [so that] it is not in the interests of the proper administration of justice that there be an order extending time within which to file the [substantive] application".[6] His Honour did not dismiss the extension of time application on any other basis, such as the length of the delay or the adequacy of the explanation for the delay in the filing of the extension of time application and judicial review application to which it related. [4]DAQ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1557 at [57]. [5]DAQ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1557 at [13]. [6]DAQ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1557 at [93].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JAGOT J

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Ratio Decidendi

Legal Principle Established

Established by: JAGOT J

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