Deadline for judicial review

The Federal Court (FCA) summarised the relevant events as including the following:

1. On 13 February 2020, the Tribunal affirmed a the decision of a delegate, which had cancelled the Applicant's visa.
2. On 14 February 2020, the Tribunal sent a formal notification of its decision to the Applicant through his representative.
3. On 19 February 2020, the Tribunal sent to the applicant a "corrigendum" to the written record of its decision.
4. On 20 March 2020, the Applicant electronically lodged with the (then) Federal Circuit Court an application for judicial review of the Tribunal’s decision, giving the date of the decision he sought to challenge as 14 February 2020. The application was not accepted for filing because it was not accompanied by a supporting affidavit.
5. On 1 April 2020, the Applicant once again electronically lodged in the Circuit Court an application for review of the Tribunal’s decision, accompanied by an application for an extension of time within which to seek judicial review. That judicial review application again gave the date of the decision he sought to challenge as 14 February 2020.
6. The Circuit Court dismissed the time extension application and therefore the judicial review application.
7. The Applicant applied to the FCA for judicial review of the Circuit Court's decision.

Some of the questions to the FCA were as follows:

Question 1: Section 477(1) of the Migration Act 1958 (Cth) required the judicial review application to be made "within 35 days of the date of the migration decision". Should those 35 days be counted starting from the day after the date of the migration decision and ending on the end of the 35th day?

Question 2: If the statement of reasons accompanying a decision of the Tribunal were shown by evidence not to have been the true or complete reasons for the decision, could a question arise as to whether the document containing the decision and reasons constituted a “written statement” under s 430(1)?

Question 3: If the answer to question 2 is 'yes' and it could be said that the document containing the decision and reasons did not constitute a “written statement” under s 430(1), could it be said that a later document correcting the reasons or remedying the omission had the effect of bringing the “written statement” into existence, with the result that the “day … the written statement is made” would be the day the statement was completed by that later document?

Question 4: If the answer to question 2 is 'yes' and it could be said that the document containing the decision and reasons did not constitute a “written statement” under s 430(1), could that mean that "any failure by the Tribunal to give adequate “reasons” for its decision, or (for example) to refer to the evidence on which its findings were based, would not only cause time not to run for the purposes of s 477(1), but result in a “decision” not being “made” at all in the light of s 430(2)"?

Question 5: Will a decision-making body generally not "be allowed to rely, as evidence of what its reasons were, on an unsworn statement produced after the decision (particularly one produced when the decision is under challenge)"?

Question 6: Is a later correction of the reasons given at the time of decision, seeking to provide a better or clearer explanation of the decision-maker’s reasoning process, "inconsistent with the initial statement having constituted a statement of “the reasons for the decision”"?

Question 7: Section 477(3)(c) of the Act provided that "date of the migration decision" meant "the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1)". Section 430(2)(b) provided that decision on a review (other than an oral decision) was taken to have been made "on the day, and at the time, the written statement is made". Was date of the “written statement”, for the purposes of s 430(2), the date of the corrigendum?

Question 8: Is an application to a court “made” when the court’s jurisdiction is successfully invoked, with the result that the judicial review application was not made on 20 March 2020?

Question 9: Should the FCA dismiss the judicial review application of the Circuit Court's decision because the applicant did not raise with the Circuit Court the argument that his judicial review application filed with it was not late?

The FCA answered those questions as follows: