Federal Court: Certiorari lies for errors of law on the face of the record (ELFR), whether or not those errors are jurisdictional (Kirk). However, under s 474, certiorari does not lie for ELFR for privative clause decisions (PVC). As a result, certiorari lies for PVC only if the error is jurisdictional, despite the fact that reasons of admin decision-makers comprise the record. FCCA orders comprise the record (DMI16), although its reasons do not (Craig). Appeals to FCA of FCCA decisions to dismiss applications for time extension are precluded by s 476A(3). Thus, FCA can only set aside those decisions under s 39B of Judiciary Act 1903 and if FCCA made a jurisdictional error or if there are ELFR in FCCA decisions. Does the materiality test apply to ELFR in FCCA decisions? If FCCA's reasons state the orders to be made, does record incorporate those reasons? Do the "alleged jurisdictional errors of the Tribunal become jurisdictional errors of the" FCCA?
The Federal Circuit Court (FCCA) dismissed an application for an extension of time to apply for judicial review of a decision of the Tribunal that had affirmed a decision to refuse to grant the Applicant a partner visa.
As an appeal of the FCCA's decision to the Federal Court (FCA) was precluded by s 476A of the Migration Act 1958 (Cth), the Applicant had no alternative (in the sense of seeking certiorari) but to bring an application to the FCA under s 39 of the Judiciary Act 1903 (Cth).
The Applicant claimed both that the FCCA's decision was vitiated with jurisdictional error and that it contained errors of law on the face of the record.
The questions to the Federal Court (FCA) were as follows:
Question 1: Does the materiality test expounded in Hossain apply to errors of law on the face of the record in decisions of the FCCA?
Question 2: If the FCCA's reasons state the orders to be made, does it mean that the FCCA's record incorporate those reasons?
Question 3: Do the "alleged jurisdictional errors of the Tribunal become jurisdictional errors of the" FCCA?
The FCA answered those questions as follows: