FEDERAL CIRCUIT COURT OF AUSTRALIA
| OHAKWUME v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1519 |
| Catchwords: MIGRATION – Student visa – cancellation of visa – spousal relationship with primary visa holder no longer exists – delegate and Tribunal decide that they are not satisfied the discretionary factors relevant to the decision on cancellation favour decision to not cancel visa – application for judicial review dismissed – reinstatement – applicable principles – explanation for failure to appear open to scrutiny – whether grounds of review arguable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 5CB, 5F Migration Regulations 1994 (Cth), reg.1.12, 16.05 Federal Circuit Court Rules 2001(Cth), r.13.03C |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 992 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Wilde |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $2.280.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 992 of 2017
| CHIDIEBERE PIUS OHAKWUME |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 16 May 2017, judicial review is sought of a decision of the Administrative Appeals…
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- AGLC
- Ohakwume v Minister for Home Affairs [2019] FCCA 1519
- Case
- [2019] FCCA 1519
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was the threshold required for an applicant to demonstrate in support of an application for reinstatement of a proceeding. Specifically, the Court had to determine the level of satisfaction required regarding the merits of the underlying judicial review application when considering whether to exercise its discretion to reinstate.
The Court reasoned that the exercise of discretion in favour of reinstatement does not necessitate the Court being satisfied of the grounds of review to the same standard as applies at a final hearing. Instead, the applicable threshold is whether the grounds for judicial review are shown to be "arguable." This means the grounds must possess a level of rationality and a basis in the material before the Court, such that it is appropriate to hear full argument, allowing parties a fair opportunity to prepare. The Court emphasised that at this stage, grounds need not be fully developed, particularly for unrepresented applicants whose first language is not English. The decision to reinstate is a broad, discretionary one, guided by the principles established in *House v The King*. The applicant's stated reasons for non-attendance, including a flooded room destroying his documents and thus his record of the hearing date, along with his belief in the reasonable prospects of success of his application, were considered in this evaluative, discretionary assessment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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 are shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[13] 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)More recently, in Savrimootoo v Minister for Immigration and Border Protection,[14] Mortimer J referred to CAL15 and affirmed that the discretion to reinstate a proceeding was a broad one. [13] [2015] FCA 1391, [62][14] [2018] FCA 1167 at [47]. 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[15]: cf BAL17 v Minister for Immigration and Border Protection.[16][15] (1936) 55 CLR 499, 504-505[16] [2018] FCA 792, [10] (Bromwich J). The applicant’s grounds for reinstatement of his application and for setting aside of the orders of 6 December 2017 are as follows:1. That I applied for Judicial review of a decision made by the Minister for Immigration and Border protection and affirmed by the Administrative Appeals Tribunal.2. That the hearing was scheduled to take place on 6 December 2017.3. That I did not attend the hearing because I do not have record of the hearing date.4. My room was flooded as a result, all my documents were destroyed.5. Given that my documents were destroyed I lost record of the hearing date.6. I rang the Court on 7 December to ascertain the date of my hearing, unfortunately they informed that the hearing took place the previous day being 6 December 2017.7. The Court informed me that my application was dismissed.8. I believe that I have a reasonable excuse for my failure to attend court on 6 December 2017.9. I request that my application dismissed on 6 December 2017 be reinstated.10. I have no work right in Australia and have been undergoing financial hardship.11. I ask that the Court dismiss the Order for Cost awarded against me.12. I believe that my application for review of the Administrative Appeals tribunal decision has reasonable prospects of success.13. I attach a photo of my room flooded by water, . . .