Federal Court. Is the power under r 36.75(2) of the Federal Court Rules 2001 (Cth) to set aside or vary an order dismissing an appeal discretionary? What are the relevant considerations in the exercise of the power under r 36.75(2)? Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?
A delegate of the Minister refused to grant the Appellant a protection visa. That decision was affirmed by the Tribunal. The Appellant then applied to the FCCA for judicial review of the Tribunal's decision, but that application was dismissed. The Appellant subsequently appealed the FCCA's decision to the FCA, but failed to appear at the hearing, with the result that the appeal was dismissed under r 36.75(1) of the Federal Court Rules 2001 (Cth). The Appellant eventually applied under r 36.75(2) for the matter to be reinstated.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the power under r 36.75(2) to set aside or vary an order dismissing an appeal discretionary?
Question 2: What are the relevant considerations in the exercise of the power under r 36.75(2)?
Question 3: If an applicant's grounds of appeal have no reasonable chance of success, is there purpose in reinstatement?
Question 4: In determining whether the grounds of appeal have a reasonable chance of success, should the court ask itself whether those grounds are speculative or unmeritorious?
Question 5: The Tribunal did not accept the authenticity of 3 letters provided by the Appellant in support of his claim for protection. In SZIAI, the HCA held: "It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional errors". The Appellant argued that "the Tribunal's failure to conduct further investigations into the letters constituted a jurisdictional error, whether by a failure to exercise its power under s 424 or otherwise failing to make inquiries". Can it be said that, "it is also important in the context of whether an inquiry was obvious to the Tribunal that the applicant had not himself sought to adduce additional information from the authors of the letters, or sought to adduce any other evidence that may have allayed the concerns as to authenticity that had been expressly raised and recorded by the delegate"?
Question 6: At the hearing, the Tribunal had an untranslated document before it. The Appellant offered to provide a translation which the Tribunal responded to the effect of 'I will think about it'. Can it be said that "the statement that it would 'think about' that point did not comprise an indication that it would exercise its power to seek a translation or to ask the applicant to provide one, but indicated no more than the fact that it would give consideration to that potential"?
Question 7: Can it be said that "the Tribunal, by indicating that 'it would think about' whether to seek a translation represented that it would inform the applicant one way of its consideration and allow the applicant to respond"?
Question 8: Was the Tribunal "obliged to give a running commentary upon what it thinks about the evidence"?
The FCA answered those questions as follows: