s 477(2): assessing full merits of judicial review application = jurisdictional error?

Federal Court: In MZABP, FCAFC had held that it is an error for FCCA to assess the full merits of a judicial review application made under s 476 for the purposes of s 477(2). Here, did FCCA make that error by saying that the application under s 476 "would be dismissed if it were a matter that I was dealing with on the merits"? If so, does the materiality test apply to court decisions? With respect: although the FCA has "not had any authority cited to [it] which demonstrates that the materiality principle" applies to court decisions, an earlier FCAFC decision had answered that question; we believe the FCA misinterpreted the materiality test; we disagree with the FCA's decision on whether the error in the present matter was material.

To simplify the facts, the Applicant made a late application to the Federal Circuit Court (FCCA) under s 476(1) of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority (IAA) and a corresponding application for an extension of time under s 477(2).

In determining whether to grant an extension of time under s 477(2), the FCCA said as follows at [3]:

The matters that I need to look at in deciding whether or not I ought grant the extension really come down to three aspects:

(a)    what was the excuse;

(b)    what prejudice is there to the respondents; and

(c)    is there a case on the merits that ought to be argued before the court?

The FCCA's decision referred neither to s 477(1) or (2) nor to the text of those provisions, but said, regarding topic (c) above, that the “application would be dismissed if it were a matter that I was dealing with on the merits”.

The FCCA dismissed the application for a time extension under s 477(2) and therefore the underlying application for judicial review under s 476.

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.

As a result, the Applicant was required to establish that the FCCA's decision under s 477(2) was vitiated with jurisdictional error.

The Applicant's ground of application to the FCA was that the FCCA fell into jurisdictional error "by misconstruing the relevant statute and hence misconceiving the Court’s function", with the following particulars:

(1)    On 28 February 2018, the Federal Circuit Court gave judgment on an application for an extension of time under s 477(2) of the Act.

(2)    The reasons of the Court were delivered ex tempore on 28 February 2018 and published on 5 April 2018.

(3)    The reasons do not refer to s 477(2) of the Act being the statutory power that the Court was called upon to exercise.

(4)    The statutory test in s 477(2) of the Act that the Court was required to apply was whether making an order for an extension of time was “necessary in the interests of the administration of justice”.

(5)    The reasons do not address the statutory test.

The Applicant also argued that the FCCA had assessed the full merits of the application under s 476, whereas s 477(2) required an assessment of the merits of the application under the former provision only at an impressionistic level. That, the Appellant argued, meant that the FCCA misinterpreted s 477(2) and therefore that its decision was beyond jurisdiction.

The questions to the Federal Court (FCA) were as follows:

Question 1: Should the FCCA have referred to ss 477(1) and (2) and the text of those provisions in its decision?

Question 2: If the answer to Question 1 is "yes", was the lack of reference in the FCCA's decision to ss 477(1) and (2) and the text of those provisions merely an unfortunate error or was it a jurisdictional error?

Question 3: In assessing the application for a time extension made pursuant to s 477(2), did the FCCA make an error by saying that that "application would be dismissed if it were a matter that [it] was dealing with on the merits"?

Question 4: If the answer to Question 3 is "yes", does the materiality principle, according to which an error is jurisdictional only if it is material, also apply to court decisions?

Question 5: If the answer to Question 4 is "yes", was the error described in Question 3 jurisdictional?

The FCA answered those questions as follows:

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