BPU15 v Minister for Immigration - [2019] FCCA 126

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPU15 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 126

Catchwords:
MIGRATION – Judicial review – interlocutory application to set aside orders dismissing application.

PRACTICE AND PROCEDURE – Application in a case to set aside or vary Court’s orders dismissing application for non-appearance at final hearing – principles on application to set aside or vary orders – whether applicant’s explanation for non-appearance sufficient – whether arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.8.01, 13.03C, 16.05

Migration Act 1958 (Cth), s.36

Cases cited:

AJY16 v Minister for Immigration & Anor [2017] FCCA 565

AYE16 v Minister for Immigration & Anor [2017] FCCA 1424

AYE16v Minister for Immigration & Border Protection [2018] FCA 108

BTK15 v Minister for Immigration & Anor [2015] FCCA 2586
BNV15 v Minister for Immigration & Anor [2016] FCCA 740
CAL15 v Minister for Immigration & Anor [2016] FCCA 1537
CAL15 v Minister for Immigration & Border Protection [2016] FCA 1344

DVV17 v Minister for Immigration & Anor [2017] FCCA 3096

DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Ibrahim v Minister for Immigration & Citizenship [2009] FCA 1328
Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171
Singh v Minister for Immigration & Anor [2014] FCCA 960

SZRFH v Minister for Immigration & Anor [2017] FCCA 2543

SZRFH v Minister for Immigration & Border Protection [2018] FCA 1100

SZUFS v Minister for Immigration & Anor (No.2) [2015] FCCA 545

WZATI v Minister for Immigration & Border Protection [2015] FCA 923

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant:

BPU15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

DIANNE ADAMS, PO IMA PROTECTION WA, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number:

PEG 369 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

13 March 2018

Date of Last Submission:

13 March 2018

Delivered at:

Perth

Delivered on:

25 January 2019

REPRESENTATION

For the Applicant:

In person (with the assistance of an interpreter)

Counsel for the First Respondent:

Ms L Helsdon (by telephone from Brisbane)

For the Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the applicant’s application in a case filed on 30 October 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 369 of 2015

BPU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

DIANNE ADAMS, PO IMA PROTECTION WA, DEPARTMENT OF…

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 BPU15 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: [2019] FCCA 126
Decision Date: 25 January 2019

CaseChat Overview and Summary

The applicant, BPU15, sought judicial review of a decision made by the Minister for Immigration. The dispute arose from an interlocutory application to set aside earlier orders that had dismissed BPU15's application for judicial review due to non-appearance at the final hearing. The matter was heard in the Federal Circuit and Family Court of Australia before Judge Antoni Lucev.

The central legal issues before the Court were whether the applicant's explanation for their non-appearance at the final hearing was sufficient to warrant setting aside the dismissal orders, and whether BPU15 had an arguable case of jurisdictional error in the original decision under review. The Court was required to consider the principles governing applications to set aside or vary court orders, particularly in circumstances of non-appearance.

Judge Lucev applied the principles established in cases concerning the setting aside of default judgments and orders. The Court considered the applicant's explanation for their absence, assessing its reasonableness and whether it demonstrated a genuine intention to pursue the proceedings. Crucially, the Court also examined whether BPU15 had presented an arguable case of jurisdictional error, as this was a necessary prerequisite for the Court to exercise its discretion to set aside the dismissal orders and reinstate the judicial review application. The Court found that the applicant's explanation for non-appearance was not sufficient and that there was no arguable case of jurisdictional error.

Consequently, the Court dismissed BPU15's interlocutory application to set aside the orders dismissing the judicial review application.

Orders