Federal Court: the AAT held a second hearing 20 months after the first hearing. The Appellant made a delayed judicial review (JR) application to the Federal Circuit Court (FCCA), which made a decision 13 months after its own hearing. Questions: 1) if the FCCA accepted the delayed JR application, was it required to consider all grounds of JR contained in that application? 2) did the Tribunal's delay subvert the merits review process? 3) did the FCCA's delay give raise to appealable error?
Summary and discussion
The Minister refused to grant the Appellant a protection visa and the Appellant applied to the Tribunal for merits review of that decision.
A Tribunal member carried out the first hearing on 9 October 2014. There was a long delay after the first hearing, without a decision. The same Tribunal member invited the Appellant to a second hearing to give evidence "in relation to any new issues that may have arisen since the last hearing". The second hearing took place on 21 June 2016.
The Tribunal affirmed the Minister's decision on 30 June 2016. The Appellant had 35 days to apply to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but he made a late application to the FCCA, requesting that the 35-day period be extended under s 477 of the Migration Act 1958.
The Appellant's judicial review application contained 11 grounds of review. The FCCA's interlocutory decision as to whether a time extension should be granted dismissed 10 of those grounds of review as lacking merit and not presenting any reasonably arguable jurisdictional error. Only 1 ground of review was determined to justify the time extension, which was granted.
The FCCA carried out its own hearing and published its orders and reasons for judgement 13 months after that hearing.
The only ground of review considered on a final basis by the FCCA was the ground which justified the time extension. The other 10 grounds were not considered on a final basis.
The FCCA dismissed the judicial review applicant and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: once the FCCA extended the deadline for a valid judicial review application based on only 1 ground of review, was it bound to consider the other 10 grounds?
Question 2: was the Tribunal's delay "inordinate"?
Question 3: if the answer to Question 2 is "yes", did that delay subvert the merits review process?
Question 4: was the FCCA's delay "regrettably long"?
Question 5: if the answer to Question 4 is "yes", did that delay produce an appealable error?
The FCA answered as follows...
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