Federal Court. Applicant applied to FCA for extension of time within which to "appeal" AAT decision under s 44(2A) of AAT Act. AAT had decided, based on FCA decision in Lesi, that it had no power to adjourn the review, based on s 24(6)(a) of Australian Citizenship Act 2007. Applicant argued Lesi was wrong, but conceded it was not plainly wrong. If FCA allowed extension application: it could recommend that a direction be made under s 20(3) of FCA Act referring matter to FCAFC; if that was not recommended, Applicant could "appeal" AAT's decision, in which case FCA could dismiss appeal on the basis Lesi was not plainly wrong, but he would then have a right of appeal to FCAFC anyway. If FCA dismissed time extension application, that would be an interlocutory decision, meaning Applicant would need leave to appeal to FCAFC, unless time extension application itself were referred to FCAFC under 20(3). If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for FCA to allow time extension application and make recommendation? Or would FCA also need to find Lesi was plainly wrong? Was there such a doubt?
The questions to the Federal Court (FCA) were as follows:
Question 1: Is a single judge of the FCA bound to always follow decisions of single judges of the High Court?
Question 2: If, on a reasonably impressionistic level, there is a serious doubt about the correctness of Lesi, would that suffice for the FCA to allow the time extension application and make the recommendation that the matter be referred to the Full Court of the FCA (FCAFC)?
Question 3: On a reasonably impressionistic level, was there a serious doubt about the correctness of Lesi?
Question 4: In circumstances were the main reason for the delay in bringing FCA proceedings is that the Applicant's solicitors initially brought proceedings in the Federal Circuit Court (FCCA) because of an incorrect assumption that the FCCA had jurisdiction, was the Applicant's "blamelessness" very material in determining whether a time extension application should be granted?
Question 5: Minister argued that the fact that the Applicant could simply lodge a new citizenship application went against allowing the application for time extension within which to "appeal" the Tribunal's decision. Can it be said that, the fact that there was an unexplained delay of almost 2 years on the part of the delegate in processing the Applicant's citizenship application is a compelling favour in favour of the grant of the time extension in that it "demonstrates the extent of potential prejudice which he may suffer if required to re-apply" for citizenship?
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.