Federal Court. Can it be said in the context of s 477(2) of the Migration Act 1958 (Cth) that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"? Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477(2) as much as it does to an administrative decision maker?
The Federal Court (FCA) described the background as follows:
1 This is an application for judicial review of a decision of the Federal Circuit Court of Australia (as it then was). That court dismissed an application for an extension of time to seek judicial review of a decision of the Immigration Assessment Authority made on 22 February 2018. Any judicial review application to the Federal Circuit Court would have been in that court's original jurisdiction to review a migration decision under s 476 of the Migration Act 1958 (Cth). Under s 477(1), the application needed to be made to the court within 35 days of the Authority's decision. The application was in fact lodged more than 16 months after the decision. So to proceed with the application, the applicant needed a favourable exercise of the power of the Federal Circuit Court to extend time under s 477(2).
2 In the Federal Circuit Court, the primary judge concluded that there was no merit to the applicant's application for judicial review of the Authority's decision. After reaching that conclusion his Honour said that in assessing whether or not there ought to be an extension of time he gave the lack of merit substantial weight, and dismissed the application for an extension. In this court the applicant contends that his Honour fell into jurisdictional error because he failed to give any consideration to the explanations that the applicant advanced for his delay in making the application to the Federal Circuit Court.
17 There is no appeal to this court from a decision of the Federal Circuit Court dismissing an application for an extension of time: Federal Court of Australia Act 1976 (Cth) s 24(1AA)(a). Hence the applicant's only recourse is to seek judicial review of that decision. This court has jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) to determine an application for judicial review of a decision by the Federal Circuit Court of that kind: Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [11].
Some of the questions to the FCA were as follows:
Question 1: Can it be said that "every time the Federal Circuit Court omits to consider an applicant's explanations for delay, it commits a jurisdictional error (if the error is material)"?
Question 2: Is it open to the FCA to find that, despite the fact that the reasons of the Federal Circuit Court do not explicitly reveal a misconception of the nature of the jurisdiction that the primary judge was exercising, "when the reasons for decision are read as a whole it emerges that his Honour had no regard to the reasons advanced by the applicant as to why an extension of time would be necessary in the interests of justice because, in substance, he determined the judicial review application that was proposed to be made"?
Question 3: Can it be said that "a court determining an application for extension of time commits jurisdictional error whenever it omits to recite and deal with each explanation for delay"?
Question 4: Is it conceivable that in some circumstances the ex tempore nature of the judgment could be relevant to the exercise of determining whether the reasons for decision show a misconception of the function of the court?
Question 5: Does the requirement that an error be material in order to be a jurisdictional error, as identified in Hossain, apply to a decision of the Federal Circuit Court under s 477 of the Migration Act 1958 (Cth) as much as it does to an administrative decision maker?
Question 6: If the answer to Question 5 is 'yes', can it be said that, "in assessing the materiality of the error here, it is important to bear in mind that the decision that may or may not have been different is the decision whether to extend time, not the decision that might be reached on any application for judicial review"?
Question 7: If the answer to Question 6 is 'yes', can it be said that the "primary judge's expressed views as to the merits of the application for judicial review do not determine the question of whether his Honour would have granted an extension of time had he approached the matter in a different way"?
Question 8: Can it be said that "the fact that the previous application was withdrawn on legal advice suggests that this was a conscious, well informed decision which, if anything, speaks against giving the applicant a second chance"?
The FCA answered those questions as follows: