CXK17 v Judge of the Federal Circuit Court of Australia

The applicant, a national of Sri Lanka, sought to challenge a decision by the Federal Circuit Court of Australia to dismiss his application for an extension of time to make a judicial review application. The applicant's application for an extension of time related to his application for judicial review of a decision by the Immigration Assessment Authority (IAA) to affirm the decision not to grant him a Protection visa. The applicant's matter was referred to the IAA because the decision made in his case was a fast track reviewable decision. The applicant's application for an extension of time was dismissed by the Federal Circuit Court on 16 February 2018. The applicant's appeal from the order was dismissed as incompetent on 19 November 2018. The applicant sought to apply for a writ of certiorari to quash the decision and orders of the Federal Circuit Court.

The court was required to determine whether the Federal Circuit Court had committed a jurisdictional error in dismissing the applicant's application for an extension of time. The court was required to consider whether the Federal Circuit Court denied procedural fairness to the applicant and acted unreasonably by failing to provide a satisfactory interpreter and relying on the interpretation, whether the hearing before the primary judge was fair and whether there were real and potentially material errors in substance in the interpretation of the applicant’s evidence, whether the Federal Circuit Court denied procedural fairness to the applicant and acted unreasonably by failing to consider whether the actions of the applicant’s former representative constituted fraud, and whether the Federal Circuit Court denied procedural fairness to the applicant and acted unreasonably by failing to take sufficient steps to explain its processes and procedures to the applicant.

The court found that the applicant had not established any of his grounds of alleged jurisdictional error and his application must be dismissed with costs. The court found that the applicant had not provided a satisfactory explanation for the delay in issuing the application for judicial review and that the fact that he did not have access to his phone whilst he was in immigration detention was of little significance in terms of the delay of about seven months. The court found that the applicant had not established that the Federal Circuit Court denied procedural fairness to him or acted unreasonably by failing to provide a satisfactory interpreter and relying on the interpretation, that the hearing before the primary judge was fair and that there were no real and potentially material errors in substance in the interpretation of the applicant’s evidence, that the Federal Circuit Court had considered whether the actions of the applicant’s former representative constituted fraud or circumstances analogous to fraud, and that the Federal Circuit Court had taken sufficient steps to explain its processes and procedures to the applicant.

The court dismissed the application pursuant to s 39B of the Judiciary Act 1903 (Cth) and ordered that the applicant pay the Second Respondent’s costs of the application.