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CHD16 v Minister for Immigration

CHD16 v Minister for Immigration

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Case Copied 21 July 2017 27 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CHD16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1679

Catchwords:
MIGRATION – Application for an extension of time within which to make an application for review of former Refugee Review Tribunal decision.

PRACTICE & PROCEDURE – Application in a Case to set aside Notice of Discontinuance – whether the power to set aside is enlivened – only if power is enlivened then the discretion to set aside is considered – power not enlivened – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 476, 477

Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)

Cases cited:

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal [2014] FCA 91; (2014) 140 ALD 136

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: [2017] FCCA 1679
Decision Date: 21 July 2017

CaseChat Overview and Summary

The applicant, CHD16, sought an extension of time to apply for review of a decision made by the former Refugee Review Tribunal. The respondent was the Minister for Immigration. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether it had the power to set aside a notice of discontinuance filed by the applicant. If this power was enlivened, the Court would then consider whether to exercise its discretion to set aside the discontinuance.

Judge Nicholls reasoned that the power to set aside a notice of discontinuance is not enlivened in circumstances where the applicant has already filed a notice of discontinuance and subsequently sought to withdraw that discontinuance. The Court held that the applicant's application to set aside their own notice of discontinuance was misconceived. As the power to set aside was not enlivened, the Court did not proceed to consider the exercise of discretion.

The application to set aside the notice of discontinuance was dismissed.

Orders