Reinstating judicial review application

Federal Court (Full Court): Applicant did not appear at FCCA hearing, which dismissed a judicial review application under r 13.03C(1)(c) of the Federal Circuit Court Rules. FCCA assessed application for reinstatement of the judicial review application under r 16.05(2)(a), taking into account only one aspect of potentially relevant considerations: whether it was in the interests of the administration of justice to do so. FCCA refused to reinstate. Appellant applied to the Federal Court for leave to appeal the FCCA's decision, arguing that FCCA's failure to take into account other considerations amounted to error.

The Applicant applied to the Federal Circuit Court (FCCA) for judicial review of a decision of the Immigration Assessing Authority, but did not appear at a hearing before the FCCA to which he had been called.

As a result, the FCCA dismissed the judicial review application under r 13.03C(1)(c) Federal Circuit Court Rules 2001 (Cth). Only 5 days after the dismissal, the Applicant applied under r 16.05(2)(a) for reinstatement of the judicial review application.

The only argument made by the Applicant to the FCCA in favour of reinstatement had to do with the reasons for non-appearance, which the FCCA did not accept as true.

The only factor that the FCCA took into account in considering whether to exercise its discretion under r 16.05(2)(a) in favour of reinstatement of the judicial review application was whether it was in the interests of the administration of justice to do so.

The FCCA refused the application to reinstate the judicial review application.

As the FCCA's decision was interlocutory in nature, leave was required for the Applicant to appeal the FCCA's decision to the Federal Court (FCA) and the Applicant applied for leave to the FCA.

In his leave application, the Applicant relied on the following passage of the decision in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]:

As the Federal Circuit Court Judge noted in her reasons, the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review. The latter consideration is important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.

The Applicant argued to the FCA that the FCCA's failure to take into account any issue of delay and any issue of prejudice to the respondent Minister amounted to error.

The questions to the FCA were as follows:

Question 1: Was the FCCA required to consider whether or not it was in the interests of the administration of justice to reinstate the applicant’s application?

Question 2: Are the matters mentioned in decisions such as CAL15, Barbey & Tuttle and Clifford & Mountford mandatory relevant considerations in determining whether a judicial review application should be reinstated?

Question 3: Should it be inferred from the absence of any explicit consideration of some of the matters set out in decisions such as CAL15, Barbey & Tuttle and Clifford & Mountford that those maters were not considered?

Question 4: Is it "generally unlikely that an exercise of judicial discretion will have miscarried merely because no express consideration is given to an argument which was not raised before the judge"?

The FCA answered those questions as follows:

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