BPF16 v Minister for Immigration - [2017] FCCA 1680

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPF16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1680

Catchwords:
MIGRATION – Substantive application seeking review of decision of Administrative Appeals Tribunal – whether applicant notified of the Minister’s delegate’s decision – whether Tribunal had jurisdiction.

PRACTICE & PROCEDURE – Application in a Case – substantive application previously dismissed for non-appearance – whether to reinstate application pursuant to r.16.05 – no arguable case raised in the substantive application – application dismissed.

Legislation:

Evidence Act 1995 (Cth), ss.58, 161, 162
Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Migration Act 1958 (Cth), ss.66, 412, 476, 494B, 494C

Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

NAJN v Minister for Immigration [2003] FMCA 414
SZSNJ v Minister for Immigration & Anor [2013] FCCA 260

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284
Haque v Minister for Immigration & Citizenship [2010] FCA 346
SZRLH v Minister for Immigration and Citizenship [2013] FCA 384
NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173
Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407

Applicant:

BPF16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1653 of 2016

Judgment of:

Judge Nicholls

Hearing date:

29 May 2017

Date of Last Submission:

29 May 2017

Delivered at:

Sydney

Delivered on:

21 July 2017

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mr J Pinder of Minter Ellison Lawyers

ORDERS

The Application in a Case made on 14 November 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1653 of 2016

BPF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 14 November 2016, the applicant filed an Application in a Case (“AIC”), seeking to reinstate a substantive application made to this Court on 28 June 2016, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 9 June 2016 which found that it did not have jurisdiction to review the delegate’s decision to refuse the grant of a protection (Class XA) visa to the applicant.
The following is in evidence before the Court:
a)Correspondence from the Minister to the applicant, tendered by the Minister and marked as “RE1”.
b)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE2”).
c)The affidavit of the applicant made on 14 November 2016.
d)The affidavit of Julian Pinder, Solicitor, made on 10 October 2016.
e)The affidavit of Usipua Talele Soliola, Paralegal, made on 3 March 2017.
The applicant first appeared before a Registrar of the Court on 25 August 2016, where, given the circumstances and the nature of the grounds of the substantive application, orders were made giving…

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.

Keep reading for free

Create a free CaseChat account to read BPF16 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1680
Decision Date: 21 July 2017

CaseChat Overview and Summary

The applicant, BPF16, sought judicial review of a decision made by the Administrative Appeals Tribunal. The core of the dispute concerned whether the applicant had been properly notified of a decision made by the Minister's delegate and, consequently, whether the Tribunal possessed the necessary jurisdiction to hear the matter. The application was heard by Judge Nicholls in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were twofold: first, whether the applicant had received adequate notification of the delegate's decision, which would bear upon the timeliness and validity of any subsequent review; and second, whether the Administrative Appeals Tribunal had been vested with the requisite jurisdiction to entertain the applicant's case, likely contingent on the proper notification issue.

In his reasoning, Judge Nicholls considered the procedural history, noting that the substantive application had previously been dismissed due to the applicant's non-appearance. The Court then addressed an application to reinstate the dismissed application under rule 16.05 of the Federal Circuit and Family Court Rules 2021. The Court found that the applicant had not raised an arguable case in the substantive application, which was a prerequisite for reinstatement. Consequently, the application for reinstatement was dismissed.

Orders