DVY17 v Minister for Immigration - [2018] FCCA 3239

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVY17 v MINISTER FOR IMMIGRATION

[2018] FCCA 3239

Catchwords:

MIGRATION – Application purportedly made pursuant to s.487ZK(1) of the Act – notice of objection to competency – whether the Court has jurisdiction – meaning of institutes proceedings – whether the application was made within the prescribed time limit – application of the Rules of the Court with regard to filing of applications – notice of objection to competency upheld – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36
Federal Circuit Court Act 1999 (Cth), s.81

Migration Act 1958 (Cth), ss.5, 474, 476, 477, 487ZI, 487ZJ, 487ZK

Vexatious Proceedings Act 2008 (NSW), ss.4, 5
Federal Circuit Court Rules 2001 (Cth), rr.1.07, 2.01, 2.06, 2.05, 2.07B

Cases cited:

Potier v Attorney General [2015] NSWCA 129
Herbert Berry Associates Limited v Inland Revenue Commissioners [1977] 1 WLR 1437
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77
MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478
Ahmed v Minister for Immigration and Border Protection [2016] FCA 751
SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) FCR 344

Applicant:

DVY17

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

SYG 2250 of 2017

Judgment of:

Judge Nicholls

Hearing date:

1 May 2018

Date of Last Submission:

1 May 2018

Delivered at:

Sydney

Delivered on:

12 November 2018

REPRESENTATION

Counsel for the Applicant:

M Mando by direct access

Counsel for the Respondent:

B D Kaplan

Solicitors for the Respondent:

HWL Ebsworth Lawyers

ORDERS

The Notice of Objection to Competency filed on 7 November 2017 is upheld.
The substantive application is dismissed.
The applicant pay the respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2250 of 2017

DVY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

By a Notice of Objection to Competency (“NOC”) filed in these proceedings on 7 November 2017, the Minister objects to the competency of an application made by the applicant on 14 July 2017, purportedly made pursuant to s.487ZK(1) of the Migration Act 1958 (Cth) (“the Act”) (see further below on the Court’s jurisdiction).
The evidence before the Court is as follows:
a)The affidavit of the applicant made on 11 April 2018. The Minister objected to [6] (save for the part of [6] that refers to pages 113 to 185 of exhibit “MD1”), [8] and [10] on the basis of relevance, and to [9] on the basis of relevance and that it is argumentative. The applicant did not press these paragraphs so far as they related to the hearing of the NOC, and on the basis that the question of their admissibility would be revisited in the consideration of the substantive application (depending on the…

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 3239
Decision Date: 12 November 2018

CaseChat Overview and Summary

The applicant, DVY17, sought judicial review of a decision concerning their immigration status. The Minister for Immigration was the respondent. The core of the dispute revolved around the competency of the application filed by DVY17, which the Minister challenged. The matter came before Judge Nicholls of the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether DVY17 had validly instituted proceedings within the prescribed time limit, and whether the application complied with the Rules of the Court regarding the filing of such applications. Specifically, the Court had to determine the meaning of "institutes proceedings" in the context of the Migration Act 1958 (Cth) and the relevant Rules.

Judge Nicholls upheld the Minister's objection to competency. The Court found that the application was not made within the time prescribed by the relevant legislation and Rules. The reasoning focused on the strict interpretation of procedural requirements for instituting proceedings in migration matters, concluding that DVY17 had failed to meet these essential criteria.

Consequently, the Court dismissed DVY17's application.

Orders