Australian Immigration Daily News

It is very common for visa applicants who have had their applications refused by the Department, and who have also lost their applications for merits review before the Administrative Appeals Tribunal, to “appeal” (put most accurately, “to seek judicial review”) in the Federal Circuit Court, and to do so without the assistance of a lawyer.

In fact, when you read the decisions from the FCC on the Austlii Website, it is apparent that the majority of the applicants seeking judicial review are self-represented. 

One can only guess at the reasons why so many people choose to act for themselves before the Federal Circuit Court, but it is safe to assume that one of the main reasons is that applicants are concerned that they may not be able to afford the cost of getting legal assistance.

Unfortunately, it is also the case that the vast majority of applicants who take their cases to the Federal Circuit Court are not successful with these judicial review applications, and that most of these applications are “dismissed” by the Courts. 

Again, it is a matter of conjecture as to why such a small percentage of judicial review applications  that are pursued by self-represented applicants are not successful, but it does seem apparent that one of the primary reasons may be that they do not fully appreciate that an judicial review application to the FCC is not really an “appeal” in the sense that may traditionally be understood by a layperson, and that the FCC will not undertake a “merits review” of a decision by the Administrative Appeals Tribunal.

The only basis on which a decision of the Administrative Appeals Tribunal can be “quashed” or “set aside”, is if it is found that the Tribunal’s decision was affected by “jurisdictional error” – something which is not always easy for lawyers and even judges of the Federal courts to identify!

In fact, the entire judicial review process must seem puzzling, perplexing, difficult, mysterious and confusing to applicants who are not familiar with the Australian judicial system and who are attempting to navigate the process without legal assistance.

There has been a small ray of sunshine to illuminate the process, coming from a recent decision of the Full Court, in  a case called Minister for Immigration and Border Protection v BJC16 (2017) FCAFC 114 (2 August 2017).

The issue in this case was whether the Registrar of the Federal Circuit Court has the power to dismiss an application for judicial review if the applicant does not appear at the scheduled first court hearing.

What happened in this case was that the applicant had sought review of a decision by the Department that refused her visa application.  She then sought review of that decision in the AAT. But the Tribunal concluded that it did not have jurisdiction to hear the application as it was not filed within the specified time period.

The applicant then sought review before the Federal Circuit Court.

However, she did not appear at the first hearing, and her application was dismissed, by the Registrar, with costs.

So, the question presented to the Full Court was whether the Registrar does have power to dismiss a case because of non-appearance of the applicant at the first court date.

At first blush, and at first reading of the Federal Circuit Court Rules, it may seem like the Registrar does have such a power of dismissal.

After all, Rule 13.03C says that if a party to a proceeding is absent from a hearing (including a first court date), that if the party is an applicant,  “the Court” may dismiss the application.

The issue that was determinative of this case was whether the term “the Court” encompasses “the Registrar”, so that the power to dismiss for non-appearance at the first court date would extend to the Registrar.

The answer given by the Full Court is that the Registrar does not have the power to dismiss an application for judicial review by reason of the applicant’s failure to appear at the first court date.

The reason is that the term “the Court” is defined (by Schedule 3 of the Federal Circuit Court rules, to include only the judges of the court, and not the Registrar.

So there is a very crucial message in this case for any applicant who has had a judicial review application “dismissed” by the Registrar.

Under the Full Court’s decision in BJC16, that purported dismissal of the case was not valid.

The case remains pending before the Federal Circuit Court, and the proper course is for the case to be scheduled for a final hearing.

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