Pham v Minister for Home Affairs - [2019] FCCA 786

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHAM v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 786

Catchwords:
MIGRATION – Application in a case to reinstate – substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether there is a satisfactory explanation for non-appearance – whether the substantive application raises an arguable case – whether the substantive application has prospects of success to warrant reinstatement in the interests of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 359A, 359AA, 360, 476

Federal Circuit Court Rules 2001 (Cth), rr.2.05, 2.07B, 16.05

Evidence Act 1995 (Cth), s.160

Migration Regulations 1994 (Cth), reg.1.15A, Sch 2, cls.820.211(2), 820.221

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Cases cited:

Autodesk Inc and Anor v Dyason and Ors (No.2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630; (2003) 75 ALD 630
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Shrestha v Migration Review Tribunal and Anor [2015] FCAFC 87; (2015) 229 FCR 301; (2015) 321 ALR 356

Applicant:

THI THANH THAO PHAM

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3296 of 2018

Judgment of:

Judge Nicholls

Hearing date:

14 March 2019

Date of Last Submission:

14 March 2019

Delivered at:

Sydney

Delivered on:

29 March 2019

REPRESENTATION

Representative for the Applicant:

Ms Yu

Solicitors for the Applicant:

TQH Lawyers and Consultants

Representative for the Respondents:

Ms S Lloyd

Solicitors for the Respondents:

HWL Ebsworth Lawyers

ORDERS

The application in a case made on 8 January 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3296 of 2018

THI THANH THAO PHAM

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an Application in a Case (“AIC”) made on 8 January 2019 by Ms Thi Thanh Thao Pham. On 26 November 2018 Ms Pham filed an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 October 2018 which affirmed the decision of the Minister’s delegate not to grant her a Partner (Class UK) visa (“the visa”).
On 20 December 2018 a Registrar of…

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 786
Decision Date: 29 March 2019

CaseChat Overview and Summary

Pham (the applicant) sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) in the Federal Court of Australia. The applicant had failed to appear at a scheduled hearing before the AAT, and the AAT had dismissed the application for review. The applicant subsequently filed an application in the Federal Court seeking to reinstate their substantive application for review of the AAT's decision.

The central legal issues before the Federal Court were whether the applicant had provided a satisfactory explanation for their non-appearance at the AAT hearing, whether the substantive application for review raised an arguable case, and whether, in the interests of justice, the substantive application had sufficient prospects of success to warrant its reinstatement.

Judge Nicholls considered the applicant's explanation for their absence, which involved a claim of miscommunication regarding the hearing date. The Court applied the principles governing applications for reinstatement, which require demonstrating a meritorious case and a reasonable explanation for the failure to attend. The Court found that the explanation provided was not satisfactory and that the substantive application did not raise an arguable case with sufficient prospects of success to justify reinstatement in the interests of justice.

Consequently, the application to reinstate the substantive application for review was dismissed.

Orders