N1112/00A v Minister for Immigration and Multicultural Affairs - [2000] FCA 1597

FEDERAL COURT OF AUSTRALIA
N1112/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 1597
ADMINISTRATIVE LAW – deportation order – application for extension of time within which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal (“AAT”) affirming a decision of delegate of Minister – whether AAT erred by not remitting matter for re-determination by delegate of Minister where Minister conceded that original decision affected by an error of law
ADMINISTRATIVE LAW – deportation order – request for leave to bring an application for an order of review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) out of time – where hearing on merits by AAT available and enjoyed
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth) ss 200, 201
Administrative Appeals Tribunal Act 1975 (Cth) ss 42C, 42D
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 referred to
Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456 cited
Re Company and Commissioner of Taxation (AAT decision no. 12865, 7 June 1998) referred to
N1112/00A v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
N 1112 OF 2000
EMMETT J
1 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1112 OF 2000

BETWEEN:

N1112/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

1 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The notice of motion filed 18 October 2000 be dismissed.
2.        The applicant pay the respondent’s costs of the motion.
3.        Leave to bring the substantive application out of time be refused.
4.        The substantive application be dismissed.
5.        The applicant pay the respondent’s costs of the application.
6.        Orders 1 to 5 above be stayed up to and including Tuesday 7 November 2000.
7.Any publication of the Court’s reasons be by reference to the proceeding number and not the applicant’s name.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1112 OF 2000

BETWEEN:

N1112/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE:

1 NOVEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me two applications by Applicant N1112/00A (“the applicant”). One application is for an extension of time in which to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), constituted by Dr D Chappell, given on 13 August 1999. The other is an application for leave to be granted to the applicant to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) in respect of a decision of the respondent, the Minister of Immigration and Multicultural Affairs (“the Minister”), given on 9 June 1987. That decision was to make an order under s 200 of the Migration Act 1958 (Cth)…

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

AGLC: N1112/00A v Minister for Immigration and Multicultural Affairs [2000] FCA 1597
Case: [2000] FCA 1597
Decision Date: 1 NOVEMBER 2000

CaseChat Overview and Summary

N1112/00A, an applicant seeking a visa, contested the Minister for Immigration and Multicultural Affairs' decision to cancel their visa. The Federal Court of Australia was tasked with reviewing the decision. The primary legal issue was whether the court could grant the applicant leave to bring their substantive application out of time. The court examined whether there were exceptional circumstances justifying the delay and if the applicant could demonstrate a substantial miscarriage of justice if the application was not heard.

The court found that the applicant had not provided sufficient grounds to justify the late filing of the application. It was determined that the applicant had failed to establish exceptional circumstances or a substantial miscarriage of justice. Consequently, the court dismissed the notice of motion and denied leave to bring the substantive application out of time. The court also dismissed the substantive application and ordered the applicant to pay the respondent's costs. The orders were stayed to allow time for potential appeal. Lastly, the court mandated that any publication of its reasons should reference the proceeding number instead of the applicant's name to protect their anonymity.

Orders

Orders of the court

1. The notice of motion filed 18 October 2000 be dismissed.

2. The applicant pay the respondent’s costs of the motion.

3. Leave to bring the substantive application out of time be refused.

4. The substantive application be dismissed.

5. The applicant pay the respondent’s costs of the application.

6. Orders 1 to 5 above be stayed up to and including Tuesday 7 November 2000.

7. Any publication of the Court’s reasons be by reference to the proceeding number and not the applicant’s name.

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

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1112 OF 2000

BETWEEN:	N1112/00A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	1 NOVEMBER 2000
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	1 NOVEMBER 2000
PLACE:	SYDNEY