Federal Court: FCCA dismissed application under s 477(2) for extension of time within which to make judicial review application under s 476. As dismissals under s 477(2) are not appealable, Applicant applied to FCA for judicial review of FCCA's decision, arguing that FCCA denied him procedural fairness and thus made a jurisdictional error. In what circumstances can mistranslations or non-translations vitiate a decision? Further, Applicant claimed that his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so". If that claim were accepted, did the representative's action constitute fraud on the FCCA?
To simplify the fact, the Applicant's protection visa application was refused and automatically referred under Pt 7AA of the Migration Act 1958 (Cth) to the Immigration Assessment Authority (IAA) for review.
The IAA affirmed the delegate's decision. About seven months later, the Applicant applied to the Federal Circuit Court (FCCA) under s 476 for judicial review of the AAT's decision and for an extension of time within which to make that judicial review application under s 477(2).
The FCCA carried out a hearing where the Applicant sought to explain the reason for the delay. The Applicant was not represented at that hearing and had the assistance of an interpreter, who made several mistranslations and failed to translate parts of what was said at the hearing, obviously unbeknown to the FCCA.
The FCCA dismissed the application for time extension and therefore the judicial review application itself.
As s 476A(3)(a) provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to the Federal Court (FCA) from a judgment of FCCA that makes an order or refuses to make an order under s 477(2), the Applicant made an application to the FCA in its original jurisdiction under s 39B of the Judiciary Act for judicial review of the FCCA's decision.
The Applicant argued to the FCA that the mistranslations of his hearing at the FCCA resulted in the hearing being unfair. He also claimed that his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so" and that such a failure constituted fraud on the FCCA.
The questions to the Federal Court were as follows:
Question 1: Did the mistranslations result in the hearing at the FCCA being unfair, with the result that the Applicant was denied procedural fairness?
Question 2: If, as the Applicant claimed, his representative "had undertaken to bring proceedings [to the FCCA within the statutory timeframe] challenging the IAA’s decision and yet had failed to do so", did such an alleged failure constituted fraud on the FCCA?
The FCA answered those questions as follows:
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