ARX18 v Minister for Immigration

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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

Cases cited:

AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110

BAL17 v Minister for Immigration and Border Protection [2018] FCA 792

BTR15 v Minister for Immigration and Citizenship [2016] FCA 892

CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344

Craig v South Australia (1995) 184 CLR 163

Gallo v Dawson (1990) 93 ALR 479

House v The King (1936) 55 CLR 499

Jackamarra v Krakouer (1998) 195 CLR 516

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392

MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1066

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

MZYPB v Minister for Immigration and Citizenship [2012] FMCA 226

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Savrimootoo v Minister for Immigration and Border Protection [2018] FCA

1167

SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 143

SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCA 774

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

  1. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

  2. Pursuant to r 16.05 Federal Circuit Court Rules 2001 (Cth), the application for reinstatement of the proceeding be dismissed.

  3. 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

  1. 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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Details
Case
[2019] FCCA 3021
Decision Date

CaseChat Overview and Summary

This matter came before Judge A Kelly of the Federal Circuit and Family Court of Australia concerning an application for reinstatement of a judicial review proceeding. The applicant, ARX18, had failed to attend a show cause hearing, leading to the dismissal of their application pursuant to rule 13.03C(1)(c) of the Federal Circuit and Family Court Rules 2021. The applicant subsequently sought to have the matter relisted, which was treated as an oral application for reinstatement.

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).