Federal Court (Full Court). In Katoa, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In the context of determining whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal, can it be said that "a common theme in MBJY and in Tohi, in keeping with long standing High Court and Full Court authority, is that sufficient merit of the proposed new ground, however assessed, is indispensable to the grant of leave"?
Question 2: In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, the High Court decided that the Federal Court was not limited, in assessing the merits of a judicial review application, to a reasonably impressionistic level of such merits, when considering whether to grant a time extension within which to bring that application. Should Katoa be extended to the consideration of whether to grant leave for a new ground of judicial review to be agitated for the first time on appeal?
Question 3: If the answer to Question 2 is 'yes', does that mean that "a more limited approach is not ordinarily permissible and even desirable"?
Question 4: Can it be said that, as both of the proposed new grounds of judicial review were relatively narrow compass and overlapped, "the distinction between considering the merits of the two related grounds now sought to be advanced at the merely arguable level, and considering them in full, is somewhat illusory"?
Question 5: Was the assessment under Direction 79 of the protection of the Australian community "both backward looking as to what has happened in the past, and forward looking as to the risks as to what may happen in the future"?
The FCAFC answered those questions as follows: