High Court: Did availability of alternative avenue of judicial review to FCA preclude application to HCA? Applications to FCCA under s 476(1) must be made within 35 days of migration decision (s 477(1)), unless extension is granted (s 477(2)). Does s 477(1) limit the scope of jurisdiction conferred on FCCA by s 476(1)? Or does it merely limit the exercise of that jurisdiction? Did HCA adopt FCFAC's decision in MZABP? In assessing time extension application, was FCCA's "inference about a self-represented litigant's state of understanding of court procedure ... available to be drawn based solely upon the fact that [Plaintiff] has previously brought proceedings in that court"?
Gageler J said as follows:
1. GAGELER J. By application for a constitutional or other writ filed in the original jurisdiction of the High Court under s 75(v) of the Constitution on 18 June 2019, the plaintiff seeks a writ of certiorari quashing two orders made by the Federal Circuit Court on 14 January 2019, consequent upon ex tempore reasons delivered on that day. By the first order, the Federal Circuit Court refused an application by the plaintiff for an extension of the time prescribed by s 477(1) of the Migration Act 1958 (Cth) for the filing of an application for judicial review of a decision of the Administrative Appeals Tribunal which had affirmed a decision of a delegate of the Minister for Home Affairs to refuse to grant to the plaintiff a Protection (Class XA) visa. The second order went on to dismiss the application for judicial review in respect of which the extension of time was sought. The plaintiff seeks as well a writ of mandamus requiring the Federal Circuit Court to determine his application for an extension of time according to law.
2. Before filing the present application, the plaintiff made an application to the Federal Court for an extension of the time in which to seek leave to appeal from the order of the Federal Circuit Court refusing the application for an extension of the time prescribed by s 477(1) of the Migration Act. The Federal Court dismissed that application on the basis that the proposed appeal would be incompetent by reason of s 476A(3)(a) of the Migration Act.
3. The Federal Court would have jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to hear and determine an application for judicial review of the orders of the Federal Circuit Court...
4. The application relies on two grounds. The first ground is that the Federal Circuit Court had no jurisdiction to make the order dismissing his application as "the only matter before it was at that stage an application for an extension of time". The second ground is to the effect that the Federal Circuit Court misunderstood the nature of its power to grant or refuse an application for an extension of time in that it failed to give proper consideration to, amongst other things, the length of and reason for the plaintiff's delay in making his application to that Court for judicial review of the decision of the Tribunal and in that it impermissibly decided the full merits of the plaintiff's case as opposed to making its decision based upon a preliminary assessment of the merits. Moreover, the plaintiff argues, in giving such consideration as it did to the explanation for his delay, the Federal Circuit Court erroneously took into account the fact that he had previously applied to the Federal Circuit Court for judicial review.
The questions to the High Court (HCA) were as follows:
Question 1: Did the availability of an application to the Federal Court under s 39B of the Judiciary Act 1903 (Cth) present an "impediment to the plaintiff making the application which he now makes to the High Court"?
Question 2: Does s 477(1) limit the scope of jurisdiction conferred on Federal Circuit Court (FCCA) by s 476(1)? Or does it merely limit the exercise of that jurisdiction?
Question 3: "By rejecting the arguability of the second ground of the application on the basis on which it is put, [should the HCA] be understood to be expressing any view as to the correctness of the proposition, adopted by the Full Court of the Federal Court in MZABP v Minister for Immigration and Border Protection and accepted with circumspection by a differently constituted Full Court in DMI16 v Federal Circuit Court of Australia, that the Federal Circuit Court would exceed its jurisdiction were the Federal Circuit Court to conclude that it was not necessary in the interests of the administration of justice to make an order under s 477(2) after undertaking a full assessment of the merits"?
Question 4: In assessing the Plaintiff's time extension application, was the FCCA's "inference about a self-represented litigant's state of understanding of court procedure ... available to be drawn based solely upon the fact that he has previously brought proceedings in that court"?
Question 5: If the answer to Question 4 is "no", did the FCCA's inference have a material effect on the outcome?
The HCA answered those questions as follows:
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