Dae18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of Dae18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involves an application by the applicant, Dae18, for judicial review of a decision made by the Immigration Assessment Authority. The applicant, Dae18, filed an application for judicial review in June 2018 and was scheduled for a directions hearing on 4 September 2019. However, the applicant failed to attend the hearing, resulting in the dismissal of the application by a Registrar. The applicant subsequently filed an interlocutory application in the Federal Circuit Court (FCC) seeking to reinstate the judicial review proceedings. The FCC dismissed the interlocutory application on 26 June 2020, and the applicant now seeks both an extension of time to appeal the FCC's decision and leave to appeal.

The legal issues in this case primarily revolve around the principles governing leave to appeal from an interlocutory decision and the exercise of discretion by the FCC in reinstating judicial review proceedings. The key issue is whether the FCC correctly exercised its discretion under rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to set aside the order made on 4 September 2019 and reinstate the judicial review proceedings. Additionally, the court must determine whether the applicant had a reasonable excuse for not appearing at the directions hearing and whether there is sufficient doubt about the correctness of the FCC's decision to warrant an appeal.

The court held that leave to appeal from the FCC's interlocutory decision is necessary as such decisions are inherently interim in nature. The court referred to the principles established in Decor Corporation Pty Ltd v Dart Industries Inc and House v The King, which emphasize that leave to appeal from a discretionary decision requires the applicant to demonstrate that the primary judge made an error in exercising the discretion. The court found that the primary judge in the FCC did not consider a material consideration in determining whether the applicant had a reasonable excuse for non-appearance at the directions hearing. However, the court concluded that the primary judge correctly determined that the applicant had no reasonable prospects of success on the substantive application. Consequently, the application for leave to appeal was dismissed.

In summary, the court granted an extension of time for the applicant to seek leave to appeal from the FCC's decision, but dismissed the application for leave to appeal on the basis that the FCC's exercise of discretion was not attended by sufficient doubt to warrant review. The applicant was also ordered to pay the respondent's costs of the application.