Basnet v Minister for Home Affairs - [2019] FCCA 3046

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASNET v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 3046

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – dismissal by Tribunal for non appearance – interlocutory dismissal of show cause application – no arguable case of jurisdictional error although immaterial legal error established – orders made in the absence of the applicant – history of non engagement in proceedings – no application for reinstatement to be filed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359, 359C, 360, 362B, 362C, 379A

Migration Regulations 1994 (Cth)

Cases cited:

Datta v Minister for Home Affairs & Anor [2019] FCCA 2604
Singh v Minister for Immigration [2017] FCAFC 105
SZBYR v Minister for Immigration (2007) 81 ALJR 1190

Applicant:

SURUCHI BASNET

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 607 of 2019

Judgment of:

Judge Driver

Hearing date:

24 October 2019

Delivered at:

Sydney

Delivered on:

24 October 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Evans of Sparke Helmore

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
No application for reinstatement under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) is to be accepted for filing.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

THE COURT NOTES THAT:

The Minister’s legal representative undertakes to serve a sealed copy of the Court’s orders made today on Ms Basnet at her last known address for service by ordinary pre-paid post.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 607 of 2019

SURUCHI BASNET

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

I have before me a show cause application filed on 4 April 2019 seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 February 2019 and confirmed on 5 March 2019.
In the first decision, the Tribunal dismissed the review application on account of the non-attendance by the applicant, Ms Basnet, and in the second decision, the dismissal decision was confirmed on account of the failure by Ms Basnet to seek reinstatement.
Ms Basnet’s judicial review application only seeks review of the confirmation decision, although that might have been overcome by amendment. Procedural orders were made giving the opportunity for amendment of the application, but no amendment has been made. It would follow that Ms Basnet would also now need a significant extension of time if she sought to review the initial dismissal decision.
Background facts in this matter are otherwise set out in the Minister’s outline of submissions filed on 17 October 2019.
On 1 November 2016, Ms Basnet lodged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3046
Decision Date: 24 October 2019

CaseChat Overview and Summary

Basnet (the applicant) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which dismissed his application for review of a decision made by the Minister for Home Affairs. The Tribunal's dismissal was based on the applicant's non-appearance at a scheduled hearing.

The primary legal issue before the Federal Court was whether the Tribunal had committed jurisdictional error in dismissing the applicant's case for non-appearance, particularly in light of an interlocutory dismissal of a show cause application. The court also considered whether any legal error established by the applicant was material to the Tribunal's decision.

Justice Driver found that while the Tribunal may have made an immaterial legal error in its handling of the show cause application, this error did not amount to jurisdictional error. The court noted a history of non-engagement by the applicant in the proceedings. Given the applicant's failure to appear at the hearing and the lack of any application for reinstatement, the court concluded that no arguable case of jurisdictional error had been made out.

The application for judicial review was dismissed.

Orders