AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, AVC19, sought leave to appeal from a decision of the Federal Circuit Court of Australia (FCC) which had dismissed an application to reinstate a proceeding for an extension of time under s 477 of the Migration Act 1958 (Cth) to seek judicial review of a decision of the Immigration Assessment Authority not to grant the applicant a Safe Haven Enterprise visa. The FCC had dismissed the application for an extension of time because the applicant did not appear at the hearing. The FCC subsequently dismissed an application for the reinstatement of the proceeding because the FCC was not satisfied that there was utility in reinstating the proceeding because the proposed grounds of review were, in substance, an attempt at impermissible merits review and failed to identify an arguable case of jurisdictional error.

The legal issue before the court was whether leave to appeal from the FCC’s decision not to reinstate the proceeding should be granted. Leave to appeal is necessary because the decision refusing to reinstate an application is interlocutory in nature. In order to be granted leave to appeal, the applicant must show both that there is sufficient doubt as to the correctness of the decision below to warrant review and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The applicant must also show that there was an error in the exercise of the FCC’s discretion not to reinstate the proceeding.

The court held that the reasons of the FCC did not suggest the existence of any such error. The court noted that the decision of the FCC not to reinstate the proceeding was discretionary and so attracted the application of the principles in House v The King. The court held that it was not enough that the judges composing the appellate court considered that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error had been made in exercising the discretion. The reasons of the FCC did not suggest the existence of any such kind of error.

The application for leave to appeal was dismissed. The applicant was ordered to pay the first respondent’s costs of the proceeding.