Federal Court (Full Court). Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless”?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that, "when determining whether the primary court can be satisfied that it is “necessary in the interests of the administration of justice” to make an order [under s 477(2) of the Migration Act 1958 (Cth)] to extend the 35 day period, the scope of the power, so far as it engages the Court in a consideration of the substantive grounds supporting the claim for s 476 relief, is confined to simply determining whether the “grounds on their face … are plainly hopeless” or that the primary judge is confined to determining whether, “simply on an impressionistic reading and consideration without full argument a judge can be confident that they must fail”"?
Question 2: If the answer to Question 2 is 'no', can it be said that "the question of the extent to which the primary court might seek to engage with the merits of the grounds of substantive relief in an application for an extension of time is governed by the way in which the application to extend time has come forward for hearing and the basis upon which the parties have acted"?
Question 3: The primary judge of the Federal Court observed that the application before him was “for leave to file out of time” and that “[he] did hear full argument on the merits of the substantive application”. Can it be said that, "as the primary judge regarded himself as having heard full argument on the merits of the review application, [the Full Court] ought to accept that assessment as at least the approach the primary judge adopted"?
Question 4: The primary judge observed that the “merits of the [review] application are the major consideration and in this case, I have proceeded as if the substantial application was before me” and then that “[g]iven that I have found that the substantial application fails and that I am not convinced that a sufficient reason has been given for the delay in filing, … the application for extension of time in which to file the application should be refused”. Can it be said that, as the primary judge concluded that the substantive application failed, his Honour "must have thus concluded that he was not “satisfied” that it was “necessary in the interests of the administration of justice” (s 477(2)(b)) to make an order extending the 35 day period"?
Question 5: If the answer to Question 1 is 'no', can it be said that, "having undertaken an analysis of each ground at the level of engagement undertaken by the primary judge in circumstances where the outcome of the analysis would very largely determine the question arising under s 477(2), the possibility that the primary judge might be wrong about one (or more) of the grounds failing, thus imperilling the primary judge’s ultimate state of satisfaction under s 477(2), suggests that the application for an extension of time ought to have been granted ..., and the application for judicial review ought to have been dismissed"? In other words, did the primary judge made an error in not extending the time?
Question 6: If the answer to Question 5 is 'yes', was that error jurisdictional?
Question 7: Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Federal Court "also includes jurisdiction in any matter arising under any laws made by the Parliament". Does s 39B(1) of the Judiciary Act relevantly replicate the terms in which jurisdiction is conferred on the High Court by s 75(v) of the Constitution?
Question 8: Does 39B(1A)(c) of the Judiciary Act include the conferral of jurisdiction to grant certiorari as incidental to the jurisdiction to grant prohibition and mandamus?
Question 9: Is the jurisdiction conferred by s 39B(1A)(c) of the Judiciary Act a "broad supplementary jurisdiction relevantly identical with s 76(ii) of the Constitution"?
Question 10: Is s 477(2) of the Migration Act 1958 (Cth) the source of a right, duty or liability to be established by the Federal Court in the exercise of the jurisdiction under s 39B(1A)(c) of the Judiciary Act?
Question 11: Can it be said that a "remedy granted in the exercise of the jurisdiction conferred by s 39B(1A)(c) is not governed by the principles of jurisdictional error which control ... the grant of the constitutional writs (although not so for the remedy of injunction) provided for in s 75(v) of the Constitution and s 39B(1) of the Judiciary Act"?
Question 12: Can it be said that, "the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused" under s 477(2) of the Migration Act 1958 (Cth)?
Question 13: Did the Federal Circuit Court make an error under s 477(2) of the Migration Act 1958 (Cth) by determining that "proposed grounds of an application under s 476 which are at least arguable do not demonstrate jurisdictional error and then [refusing] an extension of time for that reason, or partly for that reason"?
Question 14: If the answer to Question 13 is 'yes', is the materiality of the error (i.e. whether it was jurisdictional) based on "whether the outcome of the application under s 477(2) of the Act could realistically have been different, not whether the outcome of a hypothetical exercise of power under s 476 could realistically have been different"?
Question 15: If the answer to Question 13 is 'yes', was the error jurisdictional?
Question 16: Can it be said that a judge is required, "sitting as a member of a Full Court, to find that a prior Full Court decision is plainly wrong before departing from it"?
The FCAFC answered those questions as follows: