FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARX18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3021 |
| Catchwords: MIGRATION – Reinstatement – applicant late to show cause hearing – application dismissed pursuant to rule 13.03C(1)(c) – matter relisted – application treated as oral application for reinstatement – unparticularised grounds of review – Tribunal’s reasons and materials in court book provide no basis upon which application demonstrates arguable case for relief – application refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr 13.03C, 16.05 Migration Act 1958 (Cth), ss 5J, 36, 65, 474, 476 |
| Applicant: | ARX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 410 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 October 2019 |
| Date of Last Submission: | 18 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to r 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.
The applicant pay the first respondent’s costs of the application for reinstatement fixed at $300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 410 of 2018
| ARX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 19 February 2018, the applicant sought judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 16…
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- Case
- [2019] FCCA 3021
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether to exercise its discretion to reinstate the proceeding. This required the Court to assess whether the applicant had demonstrated an "arguable" case for relief, a threshold lower than that required for success at a final hearing. The Court also considered the nature of judicial review of decisions made by the Administrative Appeals Tribunal, specifically that such review is supervisory and not appellate, and that a Tribunal decision is only amenable to review if vitiated by jurisdictional error, particularly in the context of privative clause decisions.
In determining whether to grant reinstatement, the Court applied the principles established in *House v The King*, acknowledging that the decision is essentially discretionary. The Court reiterated that the threshold for an arguable ground of review is that it must not be fanciful, illogical, impermissible, or devoid of merit, but rather possess a level of rationality and a basis in the material sufficient to warrant further argument. The Court noted that when an applicant is self-represented and not a native English speaker, a less stringent expectation applies to the development of grounds of review. Upon re-examining the court book materials and the Tribunal's reasons, the Court found no basis upon which the applicant's grounds for judicial review could be considered arguable.
Consequently, the Court refused the application for reinstatement.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing on judicial review.[8] On an application for reinstatement, the threshold which is applicable to consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’.[9] In CAL15, Mortimer J stated:[10]The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)[8] CAL15, [2016] FCA 1344, [5]. [9]CAL15, [2016] FCA 1344, [5] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391, [62].[10] CAL15, [2016] FCA 1344, [6]. More recently, in Savrimootoo v Minister for Immigration and Border Protection,[11] Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one. [11] [2018] FCA 1167, [47]. The assessment upon an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[12]: cf BAL17 v Minister for Immigration and Border Protection.[13][12] (1936) 55 CLR 499 at 504 to 505[13] [2018] FCA 792, [10] (Bromwich J). I apply these principles in the present application. As the applicant was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s Reasons and her application for review. If the Tribunal’s decision was a privative clause decision,[14] it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[15] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[16] Whether it should do so is a separate issue. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[17] and, where appropriate, to order that the matter be remitted and reconsidered according to law.[14] Act, s 474(2).[15]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). [16] Act, s 476(2).[17]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).