Federal Court. Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed? If not, does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the criterion in s 477(2)(a) of the Migration Act 1958 (Cth) a "mere procedural checkbox having no legal consequence for the exercise of the power" to extend the time within which a judicial review application can be filed?
Question 2: If the answer to Question 1 is "no", does that mean that the Federal Circuit Court cannot have regard to matters not articulated by the parties themselves?
Question 3: Can it be said that "the failure to assess (at an impressionistic level) a proposed ground of judicial review may constitute a breach of the rules of procedural fairness and a constructive failure to exercise jurisdiction, and is therefore jurisdictional in nature" and that, "even if not characterised as jurisdictional, the writs of certiorari and mandamus may issue where an inferior court fails to provide procedural fairness"?
Question 4: "It has been said that reasons given in that fashion should not be “picked over” and held to a standard of perfection". Does that mean that "the standards to be applied by [the Federal Court] in the exercise of its supervisory jurisdiction [can] differ according to whether the reasons of the inferior court are delivered orally or in writing"?
Question 5: Is it permissible to "treat what the primary judge said in the transcript of the hearing as if it formed part of his reasons for judgment"?
The FCA answered those questions as follows: