CCC18 v Minister for Home Affairs - [2019] FCCA 2688

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCC18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2688

Catchwords:
PRACTICE AND PROCEDURE – where substantive application dismissed for non-appearance – where applicant seeks reinstatement – factors for consideration – application for reinstatement dismissed.

MIGRATION – Safe Haven Enterprise (Subclass 790) Visa – decision of Immigration Assessment Authority – whether failure of Secretary to refer material was a jurisdictional error – no arguable case.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.6.01, 13.03C, 16.05

Immigrants & Emigrants Act 1949 (SL)

Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5H, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB
Prevention of Terrorism Act 1978 (SL)

Cases cited:

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

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

CCC18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 218 of 2018

Judgment of:

Judge Kendall

Hearing date:

11 September 2019 and 18 September 2018

Date of Last Submission:

18 September 2019

Delivered at:

Perth

Delivered on:

23 September 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr T Lettenmaier

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application in a case filed 7 May 2019 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 218 of 2018

CCC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 4 April 2018.
The IAA affirmed a decision made by a delegate of the first respondent (the “Minister”) on 16 October 2017 refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) Visa (the “visa”).
This matter was first heard on 19 February 2019. On that date the application was adjourned part heard to allow the Minister to file further submissions and evidence on a point raised in its capacity as a model litigant. The Minister did so and the applicant…

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 2688
Decision Date: 23 September 2019

CaseChat Overview and Summary

The applicant, CCC18, sought reinstatement of their substantive application which had been dismissed by the Federal Circuit and Family Court of Australia for non-appearance. The application concerned a decision of the Immigration Assessment Authority regarding a Safe Haven Enterprise (Subclass 790) Visa.

The primary legal issue before the Court was whether the failure of the Secretary to refer certain material to the Immigration Assessment Authority constituted a jurisdictional error. The Court was also required to consider the factors relevant to an application for reinstatement of a dismissed substantive application.

Justice Kendall found that there was no arguable case that the Secretary's alleged failure to refer material amounted to a jurisdictional error. The Court further determined that the applicant had not satisfied the criteria for reinstatement of the dismissed application. Consequently, the application for reinstatement was dismissed.

Orders