“Simple inquiry” of the Registry; compliance with FCCA rules

The Federal Court (FCA) summarised the facts as follows:

3    The applicant was held in immigration detention and, as a result, faced difficulties in lodging an application in the Federal Circuit Court to challenge a migration decision made by the Immigration Assessment Authority. He made unsuccessful attempts to prepare and lodge the application with the Federal Circuit Court Registry within time. His first attempts resulted in the application being sent to the wrong facsimile number or as incomplete transmissions. Eventually, still within time, he obtained a guide from a legal aid service and sent documents to the Registry by facsimile.

4    On or about 17 January 2019, the applicant received the following letter from the Registry by way of response (Refusal Letter):

I refer to your Application Migration and supporting documents faxed to the court on 16 January 2019. Unfortunately your documents cannot be processed in their present form.

Application

1.    Four parties are listed as the 2nd respondent. Please delete the parties that are not applicable.

2.    Your details must be entered at the foot of page 1 of the application.

3.    'Application for extension of time'. Please answer this by ticking the relevant box.

Affidavit

1.    Parties need to be listed on the front page on the lines provided.

2.    Your details must be entered at the foot of page 1 of the affidavit.

3.    The affidavit must be sworn/affirmed.

The court requires a copy of the decision that you are appealing. The decision can be attached to the affidavit. Also, the 'application for exemption from paying court fees' needs to be dated.

5    Soon thereafter, the applicant lodged what would have been a conforming application but it was subsequently rejected for being out of time. He was then told he needed to apply for an extension of time in order to bring his case. He did so. By the time that further application was prepared and lodged, the applicant was some 19 days out of time to exercise his statutory right to seek review of the migration decision in the Federal Circuit Court.

6    The application set out the following matters as the grounds of the application for an extension of time:

I have limited if not at all knowledge of speaking and reading English and this has the main reason why I got mixed with the dates for the application originating for review of my protection visa and during the Xmas new year period.

Two times my application was sent back by the court due to mistakes in filling the form and this confirms my [in]ability to write English as I was helped by different people.

7    If the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order, there is power to extend time for an application of the kind sought to be brought by the applicant: s 477(2) of the Migration Act 1958 (Cth).

8    The matter came on for hearing in the Federal Circuit Court. The application for an extension of time was dismissed: AMB19 v Minister for Home Affairs [2019] FCCA 2693. The reasons of the primary judge were to the effect that there was no merit in the proposed substantive application and the delay in filing had not been adequately explained.

9    The transcript of the hearing before the primary judge shows that his Honour proceeded on the basis that there was nothing before the Court to show that the Court had received his application and then sent it back again. It was also plain that the interpreter was having considerable difficulty understanding what the applicant was saying when explaining why the application had been filed out of time.

10    When asked by the primary judge to explain his delay, the first response by the applicant was translated as a reference to what was said on the application for an extension and then 'Was Christmas time, my English, didn't have enough time to find people to help me in English and was also returned to me, the application form was returned to me'. After a further question from the primary judge, the transcript records an interpreted answer (given after the interpreter is recorded as saying that it was not very clear what the applicant had said) as being 'Actually, I sent to wrong address. It was my mistake. I didn't send it to court'. And after a further question: 'It was my mistake. I was - at that time I was residing in the camp, campsite, and I faxed it to the wrong number'.

11    On the evidence in this Court, before the application was received by the Registry there was an earlier attempt to file the application by facsimile, but those who were asked to send the application sent it to the wrong number. However, that aspect did not emerge during the course of the short exchange with the primary judge during which the interpreter twice said that she was having difficulty understanding what the applicant was saying. There was very limited inquiry by the primary judge despite those difficulties and no attempt to verify or check what the applicant was saying by any further questions.

12    In oral reasons given at the end of the hearing of the application for an extension of time, the primary judge reasoned as follows (at [38]):

… if the Applicant had attempted to file matters and they were sent back by the Court, there would be some record of that, and the Applicant could have easily provided that to show that he had tried to file the matter in time.

13    The primary judge also reasoned that the applicant had made a concession that what he said was untrue and incorrect and that he did not have an application that was sent back by the Court due to mistakes (at [40]). On the present application, it is submitted that there was no such concession.

14    The primary judge then concluded (at [41]):

It could be asked rhetorically where is that application that has either been faxed to the wrong address or sent to the Court? That is a real deficiency in the excuse that the Applicant has given, and a reason why I totally reject that excuse.

16    The primary judge also dealt with the merits of the review grounds that the applicant proposed to raise. Those grounds were stated in generic terms in an affidavit in support of the application for an extension of time. Before dealing with those grounds, the primary judge said (at [24]):

The grounds of the application are extremely general, and it is obvious that someone other than the Applicant has written these grounds. There is no particularity to them, and they really are meaningless as they do not disclose any jurisdictional error without that particularity. However, I did take the Applicant through each and every one of them and ask[ed] him for his comment.

The questions to the FCA were as follows:

Question 1: Can it be said that the FCCA made a jurisdictional error because "the procedures that were followed by not making the inquiry of the Registry and not taking steps to clarify the interpretation of the answers given meant that the Court did not hear the explanation actually being advanced by the applicant"?

Question 2: Can it be said that, in the context of an application for extension of time within which to make a judicial review application, if the time extension application is made by a self-represented applicant with deficient grounds and particulars, "the Court in evaluating whether there is sufficient merit in a point may look to the substance beyond the precise questions of law as articulated in order to determine, for example, the prospects of" the judicial review application?

Question 3: If the answer to Question 2 is "yes", can it be said that the FCCA failed to "engage with the nature of the application in any meaningful way"?

Question 4: If the FCA holds that the FCCA made a jurisdictional error, should the FCA determine for itself the time extension application lodged with the FCCA?

Question 5: Should the FCA apply "in a general way the concept of unreasonableness to the exercise of a judicial discretion on an application to review the exercise of judicial power (as distinct from an appeal)"?

Question 6: Is there a "mandatory relevant consideration to which there must be regard for a valid exercise of the judicial discretion entrusted to the Federal Circuit Court by s 477(2) other than the expressly stated test of whether the extension is in the interests of the administration of justice"?

Question 7: "The applicant claims in the alternative that it should be granted an extension of time in which to appeal the decision of the primary judge. The application is brought on the basis that the application lodged by the applicant in the Registry was within time and the subject of the Registrar's Refusal Letter was in fact a valid application. It is submitted that, as it was valid, the application that came before the primary judge was an application brought as of right and should have been treated as such". Can it be said that: "the primary judge only had before him the application for an extension"; therefore that "it was only the extension application that was to be determined"; and that in those circumstances, "there can be no error by the primary judge in not dealing with the substantive application (which was not before him) and no appeal can be brought as of right because there has been no decision on any substantive application"?

Question 8: If the answer to Question 7 is "yes", can it be said that "[i]t would have been open to the applicant to contend before the primary judge that the application filed before the Refusal Letter was a valid application and therefore an extension of time was not necessary and seek the extension only if the Court did not accept that contention"?

Question 9: If the FCA is "invited to determine on judicial review that the substantive application should not have been refused for acceptance", would that mean that an appeal could be brought from the decision of the FCCA?

Question 10: In order for the Registrar of the FCCA to accept the filing of a document originating an application for judicial review of a migration-related decision, can it be said that "strict compliance with forms is not required and substantial compliance is sufficient"?

Question 11: Was substantial compliance with the Federal Circuit Court Rules 2001 (Cth) necessary?

Question 12: Can it be said that the requirement that the judicial review application must be "made to the court" within 35 days was met "even if the application that was brought within time was properly rejected, but was then followed up within a reasonable period by an application that was accepted"? In other words, can it be said that the "subsequent application may be sufficiently connected to the application that was made within time that the statutory requirement is met"?

The FCA answered those questions as follows: