Cob16 v Minister for Immigration - [2018] FCCA 152

FEDERAL CIRCUIT COURT OF AUSTRALIA

COB16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 152

Catchwords:
MIGRATION – Application for an extension of time within which to make an application for review of Administrative Appeals Tribunal decision.

PRACTICE & PROCEDURE – Application in a case to set aside a notice of discontinuance – whether the power to set aside is enlivened – no power to set aside – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Federal Circuit Court Rules 2001 (Cth), r.16.05
Federal Court Rules 2011 (Cth)

Cases cited:

SZGIZ v Minister for Immigration & Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137
Castanho v Brown & Root (UK) Ltd [1981] AC 557
SZSML v Minister for Immigration [2013] FCCA 1253
MZZIO v Minister for Immigration [2014] FCCA 618
BZAGD v Minister for Immigration [2015] FCCA 3471
Chenv Monash University [2016] FCAFC 66
Christodoulou v Disney Enterprises Inc and Others [2006] FCAFC 183; (2006) 156 FCR 369
CHD16v Minister for Immigration & Anor [2017] FCCA 1679
BLR15 v Minister for Immigration & Anor [2016] FCCA 1260
SZUXV v Minister for Immigration & Anor(No.2) [2016] FCCA 1556

First Applicant:

COB16

Second Applicant:

COC16

Third Applicant:

COD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2449 of 2016

Judgment of:

Judge Nicholls

Hearing dates:

22 November 2017, 5 December 2017, and 15 December 2017

Date of Last Submission:

15 December 2017

Delivered at:

Sydney

Delivered on:

29 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr L Teoh

Solicitors for the Applicant:

Weighbridge Lawyers

Solicitors for the Respondents:

Mr J McGovern of Clayton Utz

ORDERS

The Application in a Case made on 23 October 2017 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2449 of 2016

COB16

First Applicant

COC16

Second Applicant

COD16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Application in a Case (“AIC”) made on 23 October 2017 that, in effect, seeks that the Notice of Discontinuance (“NOD”) filed by the applicants in this matter on 27 January 2017, and orders made by the Court on 1 February 2017, be set aside pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
The background to the AIC is as follows.
An application was made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 9 September 2016, which sought an extension of time within which to make a competent application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 27 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to…

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: [2018] FCCA 152
Decision Date: 29 January 2018

CaseChat Overview and Summary

The applicant, Cob16, sought an extension of time to apply for review of a decision made by the Administrative Appeals Tribunal. The respondent was the Minister for Immigration. The matter came before Judge Nicholls in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether it possessed the power to set aside a notice of discontinuance that had been filed by the applicant. This question arose in the context of the applicant's attempt to revive their application for an extension of time after having previously discontinued it.

Judge Nicholls determined that the Court did not have the inherent or statutory power to set aside a notice of discontinuance once it had been validly filed. The Court reasoned that the filing of a notice of discontinuance brings the proceeding to an end, and there is no provision in the relevant rules or legislation that permits a party to unilaterally withdraw a discontinuance. Consequently, the application to set aside the notice of discontinuance was dismissed.

Orders