Federal Court. Should the Court draw a Jones v Dunkel inference that the Applicant would not have been able to provide any further explanation as to the required extension of time within which to apply for judicial review that would assist him, despite the Applicant’s self-representation at the time he applied for an extension of time?
The Applicant was late by 5 months for an application for judicial review to the Federal Court (FCA) when he, being self-represented at the time, applied for a time extension within which to apply for judicial review. He submitted to the FCA, through his lawyers, that the delay was 'readily explicable' by reference to his lack of legal training, and that he was self-represented and in immigration detention at the time of filing. The Minister contended that this explanation offered no more than generalised assertions unsupported by evidence, and that the applicant was in no different position to other applicants in detention.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Should the FCA draw a Jones v Dunkel inference that the Applicant would not have been able to provide any further explanation as to the required extension of time that would assist him, despite the Applicant’s self-representation at the time he applied for an extension of time?
Question 2: At the time of the delegate's decision under s 501CA(4) of the Migration Act 1958 (Cth), the delegate was bound to comply with Direction 79. By the time of the Tribunal's decision on review, Direction 79 had been replaced by Direction 90? Did the Applicant have an accrued right according to which the Tribunal was bound by Direction 79?
The FCA answered those questions as follows: