Federal Court (Full Court). For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the Federal Circuit Court to be "scrutinised narrowly and with an eye for error"? Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?
The Federal Circuit Court (FCC) refused under s 477(2) of the Migration Act 1958 (Cth) to grant the Appellant an extension of time within which to apply for judicial review of a Tribunal decision. As no appeals are permitted from decisions under s 477(2), the Appellant applied to the Federal Court (FCA) for judicial review of the FCC's decision, arguing that it was vitiated with jurisdictional error. The FCA dismissed that application, following which the Appellant appealed the FCA's decision to the Full Court of the FCA (FCAFC).
Some of the questions to the Federal Court (FCAFC) were as follows:
Question 1: For the purpose of identifying jurisdictional error, are ex tempore reasons for judgement delivered by the FCC to be "scrutinised narrowly and with an eye for error"?
Question 2: In determining pursuant to s 477(2) whether it is in the interests of the administration of justice to grant a time extension within with to bring judicial review proceedings, can it be said that "the matters to which regard may be had are not expressly confined by the Act"?
Question 3: In determining pursuant to s 477(2) whether it is in the interests of the administration of justice to grant a time extension within with to bring judicial review proceedings, are the following matters usually relevant: "(a) the extent of the delay and the reasons for it; (b) any prejudice to the respondent; (c) the impact on the applicant if the time is not extended; (d) the interests of the public at large; and (e) the merits of the substantive application"?
Question 4: Is it "only natural, in circumstances where the parties chose to present their respective cases in a particular way, that the resultant reasons for judgment will be reactive to that presentation"?
Question 5: Can it be said that "a mechanical, “check list” approach to what is or is not “in the interests of the administration of justice” is to be eschewed"?
Question 6: Would it "require “significantly strong grounds of review” in order to overcome the extreme delay and the applicant's failure to adequately explain it"?
Question 7: Can it be said that "extreme delay and an inadequate explanation will weigh heavily against granting an extension"?
Question 8: "Had the [FCC] simply asked whether the circumstances of the case were “exceptional” and done no more than equate a conclusion of non-exceptionality with a negative answer to the question concerning the state of satisfaction required under s 477(2)(b) (that is, the Court was satisfied “that it is necessary in the interests of the administration of justice to make the order” for an extension of time)", should the FCAFC conclude that the FCC failed to exercise jurisdiction as required by the terms of s 477(1)?
Question 9: Had the FCC "done no more than placed, on one side of the notional scales, the two factors of lack of evidence explaining what steps were taken to obtain advice and the length of the delay (about 10 months) and, on the other side of the scales, the prospective merits of the case and, if the first side outweighed the second side, equated that outcome with a negative answer to the question concerning the required state of satisfaction under s 477(2)(b)", should the FCAFC conclude that the FCC failed to exercise jurisdiction as required by the terms of s 477(1)?
Question 10: Can it be said that "statements may be made in reasons which, in isolation, appear to be expressed at the level of principle but, in fact, have been applied in a more nuanced and fact-specific context"?
The FCAFC answered those questions as follows:
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