DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127

FEDERAL COURT OF AUSTRALIA

DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127 Appeal from: DHX17 v Minister for Home Affairs [2019] FCA 2150

File number: QUD 25 of 2020

Judges: COLLIER, RANGIAH AND DERRINGTON JJ

Date of judgment: 24 July 2020

Catchwords: MIGRATION – consideration of an application for the grant of constitutional writs under s 39B of the Judiciary Act 1903 (Cth) – Federal Circuit Court judge dismissed application for extension of time under s 477(2) of the Migration Act 1958 (Cth) – Federal Circuit Court judge considered merits of the proposed application in a fulsome manner rather than on an impressionistic basis – Federal Circuit Court judge concluded that the application would not have succeeded if extension of time were granted – primary judge found that the Federal Circuit Court judge misconceived the nature of the function to be performed under s 477(2) in exceeding a threshold assessment of the merits of the case – primary judge erred in concluding this was an error within jurisdiction – consideration of the principles concerning jurisdictional error on the part of inferior court as outlined in Craig v South Australia (1985) 184 CLR 163 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 - consideration of suggestion in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 that consideration of merits in application for extension of time should be undertaken at impressionistic level – weight of authority suggests fulsome consideration of merits in application for extension of time will likely amount to jurisdictional error – consequences particularly severe in migration cases - primary judge erred in concluding that in any event the error was not material because ultimate order would not have been different – incorrect characterisation of materiality – error material if concomitant power would be exercised differently not if outcome would be different