Application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Federal Circuit and Family Court of Australia
Whether explanation for delay is a mandatory consideration conditioning the power under s 477 of the Migration Act 1958 (Cth)
Whether Federal Circuit Court judge erred in engaging in more than an impressionist assessment of merits
Quick Take
1Under s 477(2) of the Migration Act 1958 (Cth), applying Tu'uta Katoa, there are no mandatory relevant considerations beyond the 'interests of the administration of justice'; the explanation for delay is a permissible but not mandatory consideration, and failure to address it does not of itself constitute jurisdictional error.
2An inferior court's failure to refer to the explanation for delay will constitute jurisdictional error only where the omission evidences that the court misconceived or failed to perform the judicial task required by s 477(2), such as by in substance determining the review application rather than the extension application; where the court correctly apprehended the s 477(2) function and treated the lack of merit as determinative of utility, no jurisdictional error arises.
3An error by an inferior court in construing a regulation when assessing the merits of a proposed review application on an extension of time application is an error within jurisdiction, not jurisdictional error, because the proper construction of the regulation is not a mandatory consideration conditioning the s 477(2) power.
