FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKO17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2022 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in dismissing the applicant’s application under s.426A(1A)(b) of the Migration Act 1958 (Cth) – whether applicants were correctly notified of the Administrative Appeals Tribunal hearing – whether applicants were correctly notified of the Administrative Appeals Tribunal’s non-appearance decision – whether Administrative Appeals Tribunal’s decision to reinstate was affected by legal unreasonableness – jurisdictional error found – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.31, 36, 65, 411, 422B, 424A, 424AA, 425, 425A, 426A, 426B, 430, 441A, 441C, 474, 476 Migration Regulations 1994 (Cth), regs.2.01, 4.35D, sch.1. Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| First Applicant: | AKO17 |
| Second Applicant: | AKP17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3392 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 25 July 2018 |
| Date of Last Submission: | 25 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter. | ||
| Solicitors for the Respondents: | Mr Julian Pinder (Minter Ellison) | |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3392 of 2016
| AKO17 |
First Applicant
AKP17
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
(As Corrected)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 8 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the…
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- Case
- [2018] FCCA 2022
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the Tribunal's decision to dismiss the application and its subsequent refusal to reinstate it were affected by jurisdictional error. Specifically, the Court was required to determine if the Tribunal had properly applied the provisions of section 426A and section 426B of the Act, and whether the applicants had been afforded procedural fairness. The Court also considered the effect of section 474(2) of the Act, which renders decisions of the Tribunal final and conclusive unless affected by jurisdictional error.
Emmett J reasoned that the Tribunal's decision was made in accordance with the law. The Tribunal had followed the procedural requirements of section 426B by making a written statement of its decision and reasons. The applicants had been notified of the dismissal decision and the opportunity to seek reinstatement. The Tribunal's refusal to reinstate the application was based on its finding that the applicants had not provided a reasonable explanation for their non-attendance, a finding that was open to the Tribunal on the evidence before it. The Court noted that disagreement with the Tribunal's findings of fact does not, of itself, constitute jurisdictional error.
The application for judicial review was dismissed.
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