FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPZ16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2251 |
| Catchwords: MIGRATION – Protection visa – judicial review of decision made by Administrative Appeals Tribunal – applicants members of a family unit – application dismissed for non-appearance at final hearing – application for reinstatement – discretionary power to reinstate – whether applicants had reasonable excuse – whether application for judicial review discloses an arguable case – grounds of review devoid of particulars – no reasonable chance of success – application for reinstatement dismissed. |
| Legislation: Australian Citizenship Act 2007 (Cth), s.12 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 476 Migration Regulations 1994 (Cth), reg 2.08 |
| First Applicant: | CPZ16 |
| Second Applicant: | CQB16 |
| Third Applicant: | CQC16 |
| Fourth Applicant: | CQE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1986 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Third Applicant: | No appearance |
| Fourth Applicant: | No appearance |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for reinstatement of the proceeding filed on 17 March 2017 be dismissed.
The applicants pay the costs of the first respondent fixed at…
Keep reading for free
Create a free CaseChat account to read CPZ16 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2018] FCCA 2251
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was the threshold for demonstrating an "arguable" ground of review on an application for reinstatement. The Court was required to determine whether the applicants had met this threshold, considering the broad discretionary nature of reinstatement and the principles outlined in *House v The King*. A further issue was whether the applicants' failure to particularise their grounds of review, despite opportunities to do so, was a sufficient basis for dismissal.
The Court reasoned that the discretion to reinstate a proceeding is broad, but it requires the applicants to show that their grounds of review are "arguable," meaning they are not fanciful, illogical, or devoid of merit, but possess a level of rationality and a basis in the material. This threshold is lower than that required for a final hearing. However, the Court noted that the applicants' grounds were expressed at a level of generality that made them difficult to understand, a criticism amplified by their failure to provide any submissions to explain these grounds. Citing *WZAVW v Minister for Immigration and Border Protection*, the Court held that an unparticularised assertion of jurisdictional error is vague and meaningless and that failure to particularise a ground of review is a sufficient basis for its dismissal.
The Court concluded that the applicants had failed to demonstrate that their grounds of review were arguable, particularly given their lack of particularisation. Consequently, the application for reinstatement was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[15] There, Mortimer J stated at [6]:The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)[15] [2015] FCA 1391, [62] More recently, in Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 at [47], Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one. The assessment upon an application for reinstatement, which requires the Court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[16]: cf BAL17 v Minister for Immigration and Border Protection.[17][16] (1936) 55 CLR 499 at 504 to 505[17] [2018] FCA 792, [10] (Bromwich J). I agree with the Minister’s submission that the grounds of review are expressed at a level of generality that makes it difficult for the Court or the respondent to understand exactly what aspects of the Tribunal’s decision are impugned by the applicants. This criticism is reinforced when regard is had to the circumstance that the applicants have failed to avail themselves of the opportunity afforded by the orders, made on 5 April and again on 28 April 2017 respectively, to provide submissions which would explain the grounds of their application. As the applicants have not filed any submissions, both the Minister and in turn the Court, are left to discern the existence of jurisdictional error from a ground which is devoid of particulars. In WZAVW v Minister for Immigration and Border Protection[18] Gilmour J said:. . . an unparticularised assertion of jurisdictional error . . . is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed. (Citations omitted)See also MZARG v Minister for Immigration and Border Protection.[19][18] [2016] FCA 760 at [35].[19] [2018] FCA 624 at [25], (McKerracher J).