FKV17 v Minister for Home Affairs [2022] FCAFC 93

Federal Court of Australia

FKV17 v Minister for Home Affairs [2022] FCAFC 93 Appeal from: FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950

File number(s): QUD 1 of 2020

Judgment of: GREENWOOD, RANGIAH AND BEACH JJ

Date of judgment: 25 May 2022

Catchwords: MIGRATION – consideration of whether the Federal Circuit Court (the "primary court") engaged in jurisdictional error in considering an application and ultimately exercising the discretion arising under s 477(2) of the Migration Act 1958 (Cth) (the "Act") to extend (or not extend) the 35 day period within which an application must be made before the primary court seeking a remedy for the grant of the constitutional writs under s 476 of the Act – consideration of the text, subject matter and purpose of s 477(2) of the Act MIGRATION – consideration of whether there is any limitation derived from the text, subject matter and purpose of s 477(2) concerning the extent to which the primary court is entitled to engage with the likelihood (or otherwise) of an applicant succeeding in obtaining a remedy under s 476 of the Act when considering the exercise of the discretion under s 477(2) – consideration of whether the primary court engaged in jurisdictional error by considering the contended grounds of s 476 relief "as if" those grounds were before the primary court for determination when deciding whether the 35 day period is to be extended or not under s 477(2) of the Act MIGRATION – consideration of whether the text, subject matter and purpose of the section requires the primary court to go no further than deciding whether the contended grounds for relief under s 476 of the Act are simply "arguable" or "sufficiently arguable" and whether the frame of mind to be brought to the extension decision is an "impressionistic" assessment of the contended grounds – consideration of the obiter observations of a single judge of this Court in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62], [63] and [66] MIGRATION – consideration of the distinction between contended error on the part of an administrative decision-maker on the one hand and contended error in the exercise of the judicial power of the Commonwealth by an inferior court on the other hand, in assessing whether error by an inferior court constitutes jurisdictional error – consideration of whether the decision of the Full Court of this Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 is wrongly decided MIGRATION – consideration of whether any error on the part of the primary court in the exercise of the discretion under s 477(2) of the Act, if non-jurisdictional error and thus error within jurisdiction, is nevertheless susceptible of a remedy under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in the exercise of the Federal Court's original jurisdiction "in any matter arising under any laws made by the Parliament", being a matter arising under s 477(2) of the Act