CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400

CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400

The Federal Circuit Court failed to consider a substantive ground of review (concerning the construction and application of s 36(2)(aa) Migration Act), which was raised by the applicant in the extension of time application. This failure constituted a constructive failure to exercise jurisdiction and a breach of procedural fairness, justifying the issue of certiorari and mandamus.

Parties
Applicant: CKX16; First Respondent: Judge of the Federal Circuit Court of Australia; Second Respondent: Minister for Immigration and Border Protection; Third Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
26 March 2018
Procedural Posture
Judicial Review / Judgment on Application Under S 39 B of the Judiciary Act 1903 (cth)
Outcome
Allowed (application granted)
Legal Topics
Extension of Time Applications, Jurisdictional Error, Procedural Fairness, Judicial Review Under S 39 B Judiciary Act 1903, Interpretation of S 477 Migration Act 1958
Migration Law Administrative Law Constitutional Law Human Rights Law Extension of Time Applications Jurisdictional Error Procedural Fairness Judicial Review Under S 39 B Judiciary Act 1903 +1 more

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Parties

CKX16

Applicant

Judge of the Federal Circuit Court of Australia

First Respondent

Minister for Immigration and Border Protection

Second Respondent

Administrative Appeals Tribunal

Third Respondent

Procedural Posture

Judicial Review / Judgment on Application Under S 39 B of the Judiciary Act 1903 (cth)

Legal Issues

  1. 1 Whether the Federal Circuit Court failed to consider a ground of review raised by the applicant
  2. 2 Whether such failure amounted to jurisdictional error or breach of procedural fairness in determination of an extension of time application under s 477(2) Migration Act 1958

Ratio Decidendi

The Federal Circuit Court failed to consider a substantive ground of review (concerning the construction and application of s 36(2)(aa) Migration Act), which was raised by the applicant in the extension of time application. This failure constituted a constructive failure to exercise jurisdiction and a breach of procedural fairness, justifying the issue of certiorari and mandamus.

Court Disposition

Allowed (application granted)

Orders

  • A writ of certiorari quashing the decision and orders of the Federal Circuit Court below.
  • A writ of mandamus directing the Federal Circuit Court, differently constituted, to determine the applicant's application for extension of time in accordance with law.