DSA16 v Minister for Immigration - [2019] FCCA 1196

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSA16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1196

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (AAT) – show cause hearing – factors considered –– no arguable case raised by the grounds of the application – no basis to dispense with Rule 44.13 of the Federal Circuit Court Rules 2001 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth) rr.1.06, 44.12, 44.13

Cases cited:

Applicant:

DSA16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3428 of 2016

Judgment of:

Judge Nicholls

Hearing date:

12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Sydney

Delivered on:

9 May 2019

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:	HWL Ebsworth Lawyers
Legal…

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 1196
Decision Date: 9 May 2019

CaseChat Overview and Summary

The applicant, DSA16, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The Minister for Immigration was the respondent. The core of the dispute concerned the applicant's failure to establish an arguable case for review of the AAT's decision, leading to the dismissal of their application. The matter was heard in the Federal Circuit Court of Australia before Judge Nicholls.

The primary legal issue before the Court was whether the applicant had raised an arguable case sufficient to warrant further consideration of their application for review. This involved assessing whether the grounds of the application disclosed a substantial question of law. A related issue was whether there was any basis to dispense with the requirements of Rule 44.13 of the *Federal Circuit Court Rules 2001* (Cth), which pertains to the procedure for applications for review.

Judge Nicholls reasoned that the applicant had not presented any grounds that raised an arguable case. Consequently, there was no justification for dispensing with Rule 44.13 of the *Federal Circuit Court Rules 2001* (Cth). The Court found that the application lacked merit and did not present a substantial question of law requiring determination.

Accordingly, the application for review was dismissed.

Orders